Keite v. Boyd

The opinion of the court was delivered by Rogers, J. At common law, all personal actions died with the party. The inconvenience and injustice of this rule, as respects the death of parties’ plaintiffs has been remedied, in cases of trespass de bonis asportatis, trover, and replevin. The rule seems to have been founded on the reason that as the assets of the deceased are not benefited, his estate shall not be liable, and from a desire, I suppose, to have an end to an action frequently arising from the passions of the parties. ” In those, cases where the reason applies, the rule is founded-on the soundest principles of public policy; as in the case of slander, libel, and the like. It does not apply where the matter in dispute involves a right of property. Where one man receives the property of another, his fortune ought to answer it, for that swells the assets in the hands of his personal representatives. In'contravention of this rule, it has however been decided that trover abates by the death of the defendant. 6 Serg. & Rawle, 272. Without venturing to deny the authority of that case, I may be permitted to regret that such is the law of Pennsylvania; and am unwilling to extend the cases further than we are bound to do by theprinciple of state decisions. Replevin in this state is an'action to try the. right of property. It issues wherever a man claims goods in the possession of another, without any regard to the manner in. which the possession was obtained. 1 Dall. 157. 6 Binn. 3. 3 Serg. & Rawle, 562. In practice, it is a suit much resorted to, having many advantages over any other form of action. You either repossess yourself of your property, or obtain security to the amount of its value. To expose the plaintiff to the risk of losing his remedy, by the death of the defendant, would be to curtail, nay, in some cases to destroy his chance of justice; for unless the property remains in specie, in the hands of the executor, you would be deprived of all remedy, contrary to every principle of justice, and every rule of public policy. As we are not fettered by any decided case, and the action has been so essentially changed, the court are of opinion, that the suit does not abate by the death of the defendant in replevin. Judgment affirmed.