Administrators of Parrott v. Dubignon

The question for the decision of the court in this case is, whether an action of trover can be brought by an executor or administrator, for a conversion in the lifetime of the testator or intestate. It is settled by the case of Harnbly vs. Trot, Cowp. 371, that trover does not lie against an executor for a conversion by his testator ; and on this point the expressions of lord Mansfield, are these : “ No action, where in form the declaration must be qu ire vi et armis et contra pa-cem, or where the plea must be, as in this case, that the testator was not guilty, can lie against the executor. Upon the face of the record, the cause of the action arises, ex delicto; and all private criminal injuries or wrongs, as well as public crimes, are buried with the offender.” Ibid. 375. This is not, however, the law e converso, for the action of trover can be sustained by an executor for a conversion in the lifetime of the testator. This law is founded upon the stat. 4 Ed. 3. 7, which enacts, “ That executors shall have an action for a trespass done to their testator, for his goods and chattels, carried away in his life, and shall recover their damage in like manner as he, whose executors they are, should have done, if he had lived.” These are the principles of that statute, as abridged by Vingat, tit. executors, f. 208. The statute being so explicit, it is unnecessary to multiply cases decided under it. I shall only cite one which will place the *262doctrine in a very clear point of view. I allude to the case of Fisher vs. Young, in 2 Bulst. 268, the substance of it is this : If the goods, which were the property of a testator’s will, are' proved, and the person appointed executor, do af-terwards prove the will, he may maintain an action of trover.

The motion of Mr. Solicitor Leake, to dismiss this action, because it is brought by an administrator for a conversion in the lifetime of the intestate, is, therefore, overruled.