The act of 1799, ch. 18, sec. 5, declares that no action of detinue or trover, or action of trespass, where property, either personal or real, is in contest, and such action of trespass is not merely vindictive, shall abate by the death of either party. This is an action of trespass, though not vi et armis, and the passions and feelings have no concern. It is, in substance, to recover for an act done by the defendant's testator, whereby he has been made richer and the present plaintiff poorer.

Wherefore, we are all of opinion that the plaintiff is entitled to judgment, and that scire facias be awarded against the testator's heirs and devisees.

Cited: Molton v. Miller, 10 N.C. 498; Helme v. Sanders, ib., 565;Butner v. Keelhn, 51 N.C. 61.

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