Waties, J., delivered the opinion of the whole court, Wilds, J., absent. This action, which has been invented in this State, as a substitute for the action of trover, is founded in tort, and does not survive against the personal representatives of the parly who .committed the injury, according to the determination in the case of Hambly v. Trott, Cowp. 374, and the maxim of law, quod actio j/ersomlis moritur cum persona; and upon this ground the plaintiff ought not to be allowed to prosecute his action.
JBut if the action be regarded in the light of an action founded on contract, or quasi ex contractu, the plea is certainly applicable. Note. 1 believe the objection to the plea was informal, and not by way of demurrer. But the consequence would have been the same, if the plea had been domurred to for special cause, forasmuch as the unsoundness of the action wad matter of substance, which might be taken advantage of. Motion discharged,