#### Niven Clark *v.*Kenan and Hill.

The action of trover may be supported against executors for a con version in tho lifetime of their testator.

This was an action of trover, originally brought the party who converted; but he. (tying, his executors were m .dr p.n tie-- under the act of 1786, c. 14, and the Plaintiff proceeded to take a verdict against *356them. The Defendants moved to arrest judgment, foe that they as executors, were not liable to a teco very of damages by the Plaintiff foe a conversion iri the lifetime of their testator, and of which he alone was guilty. They relied upon the case, of *Hamly*and *Trott*m *Cotvp.*371 ; and insisted, ¡hat as this pohit of the common law which had been sojong doubted of, had then come before the, court, and had upon argument and mature consideration received an unanimous decision, it ought now to rest, unless very substantial reasons could he gi>cn against the propriety of that decision It is of great importance that (he rule of law should be known, and that it should be steady and uniform in its operation — uncertainty of a rule of such frequent application, is the parent of great confusion, and is of very great detriment, to the parties concerned in the application.

*E contra*

It was argued by *Mr. Hay,*that though he was ready at all times to contribute his share of pplause to the great abilities of *Lord*Mansfield, am! 'he rest of the court who made the decision in the case »f *Hamly mñ. Trott;*and though he wav at all times ready to pav a proper deference to the opinions of so great a-man, he yet could not place an unbounded confidence in them, nor give himself up to be governed by them; nor could be be brought not to suspe-1. but that thes=- opinions, like all other human productions, did sometimes partake of human infirmity — and more particularly would lie be inclined to doubt the propriety of the decision in the ease of *Hamly*and *Trott,*so far as it may be attempt,<d to be applied here, since the Judges of this country have so often had the case of *Hamly*and *Trott*under consideration and decided against it. They have decided in many instances, that the action nftro>er is maintainable against executors. It was decided by Ashk and Wilhams. Judges, Edentoo, April Term, 1793, in the case of *Be-orow*v. *Moore’s*executors. The snme. point was decided by Ashk, Spekckk and Williams. Judges, at. Edenton or Newbern, some time helm.- this: and the same point was derided by Williams. Judge, Morgan. September Term, 1791, *McJChmie’s*executors v. *Oliphant’s*executors. Many other d eisions to the sam- effect have taken place before the same Judges in dift'iem parts of this country, and if ¡t Sr of importance shut the rule should be steady and uniform, it is surely far better to adhere *357to these decisions, which have taken place in our own country, and have been acted upon as the law of the country, than now to alter the rule established by them, and adopt a contrary one out of merecomnlaisance *»» the decisions of *Lord Mansfield*and the rest of the court of King’s Bench in England. To shew that we ought not to deliver ourselves up *o the authority of this decision, I will .take the liberty to mention the opinion of Lord Chancellor *Hardwicke*— he says,'speaking of a subject similar to that now before ns, 3 *Mh. 757.*trover may be brought by an executor, and it seems strange and contrary to justice, that these actions should not lie against executors as well as for them, Scr. An opinion very similar to this was delivered by *L. Ch. Cowper.*t *P. Wil. 4(-7.*These authorities may serve to shew, that very great men have entertained opinions different from those delivered by the court in the case of *Hamly*and *Trott,*and therefore «e should at least take the liberty of suspending a perfect acquiescence in its propriety til] we have collected such lights as will enable us to decide upon this subject for ourselves. No inconvenience can result from saying this action will lie against executors,but' cases may be conceived where the contrary position will defeat injured persons of justice. Such a case is stated in the arguments in the case of *Hamly*and *Trott,*and is never answered ; and *Lord Mansfield*says, suppose the testator had consumed them and eaten the sheep, is the executor to get off altogether ? Another of the Judges says, where goods come to the hands of an executor in specie, trover will lie; where in value, an action for money had and received — but I would ask what remedy has he where the property has neither come in specie or value, to the executor, as where the testator killed the sheep of the Plaintiff and eat them — no value there came into the hands of the executors — if trover will not lie in that case assumpsit will not, as it can only be implied in cases *ex contractu, or quasi ex contractu.*A contract can never be implied from a direct trespass, you can only imply a contract where the party hath received value for your property — as where he drives your lamb to market arid sells it, you may in such case elect to consider him as doing so by your permission, but there is no instance of c inverting the killing of your animal *vi et armis,*into a oos/.jiu t to pay so much-for him — and so long as the an-client boundaries of actions shall be preserved, so long as *358the trespass *vi et armis*cannot be converted into an action on ibe ca-'C, opon assumpsit, so long wiü.i' be impossible foe t! e Plaintiff to get any redress in a Court, of Law for such íiijut-y a-1 have just mentioned, unless the action of trover may be supported against executors.

*Curia advisari*— And after three or four days consideration, tiny delivered their opinions that this action was maintainable against the executors, for a conversion by thei> testator in his lifetime. The ease of *Hamly*and *Trott*they said was entitled to much respect, having been determined upon deliberation by men of the greatest talents ; yet it seemed upon consideration to leave some injuries without redress at the common law, andparticu-larly the cause, stated by the counsel, it is better to adhere to the decisions that have formerly taken place here, since they have been made, and are found to be productive of no inconvenience, than by deciding differently from the other Judges to make the rule of law uncertain — should these derisions be found in any future time to produce disorder, they may be altered by the Legislature, or by a solemn judicial determination to the contrary. So there Was judgment for the Plaintiff*

*Note.*— Vide *McKinnie’s Ex’rs.*v. *Oliphant’s Ex’rs.*and the references in the note, *ante*4.