13. In North Carolina, an action for the seduction of a slave from his master's service lies against the representatives of the wrong doer. 1 Hayw. No. C. 182; Cam. & N. No.
C. 95. In Virginia, by statute, detinue al ready commenced against the wrong-doer survives against his executors, if the chattel actually came into the executor's possession ; otherwise not. 6 Leigh, Va. 42, 344. So in Kentucky, 5 Dan. Ky. 34. Replevin in Missouri does not abate on the death of defendant, 21 Mo. 115; nor does an action on a replevin bond in Delaware, 5 Harr. Del. 381. It has, indeed, been said that where the wrong-doer has secured no benefit to himself at the ex pense of the sufferer, the cause of action does not survive, but that where, by means of the offence, property is acquired which benefits the testator, then an action for the value of the property survives against the executor, C How. 11; 3 Mass. 321 ; 4 id. 480 ; 5 Pick Mass. 285; 20 Johns. N.Y. 43; 1 Root, Conn. 216; 4 Halst. N. J. 173 ; 1 Bay, So. C. 58 ; and that where the wrong-doer has acquired gain by his wrong, the injured party may waive the tort and bring an action ex con tractu against the representatives to recover compensation. 5 Pick. Mass. 285 ; 4 Halst. N. J. 173.
14. But this rule, that the wrong-doei must have acquired a gain by his act in order that the cause of action may survive against his representatives, is not universal. Thus, though formerly in New York an ac tion would not lie for a fraud of deceased which did not benefit the assets, yet, it was otherwise for his fraudulent performance of a contract, 20 Johns. 43 ; and now the sta tute of that state gives an action against the executor for every injury done by the testator, whether by force or negligence, to the pro perty of another, 1 Hill & D. N.Y. 116; as for fraudulent representations by the deceased in the sale of land, 19 N. Y. 464; or wasting, destroying, taking, or carrying away per sonal property. 2 Johns. N. Y. 227. In Mas sachusetts, by statute, a sheriff's executors are liable for his official misconduct, 7 Mass. 317 ; 13 id. 454, but not the executors of a deputy sheriff. Ibid. So in Kentucky, 9 B. Monr. Ky. 135. And in Missouri, for false return of execution. 10 Mo. 234. Under the statute of Ohio, case for injury to property survives, 4 McLean, C. C. 599; under statute in Missouri, trespass, 15 Mo. 619; and a suit against an owner for the criminal act of his slave, 23 Mo. 401 ; in North Carolina, deceit in sale of chattels, 1 Car. Law Rep. 529 ; and the remedy by petition for damages caused by overflowing lands, 1 Ired. No. C. 24; in
Pennsylvania, by statute, an action against an attorney for neglect, 24 Penn. St. 114 ; and such action has been maintained in England. 3 Stark, 154; 1 Dowl. & R. 30.
15. But in Texas the rule that the right of action for torts unconnected with contract does not survive the death of the wrong-doer, has not. been changed by statute. 12 Tex. 11. And in California trespass 'does not lie against the representatives of the wrong doer, 3 Cal. 370 ; nor in Alabama does it survive against the representatives of de. fendant. 19 Ala. 181. Detinue does not sur• vive in Tennessee, whether brought in the lifetime of the wrong-doer or not, 3 Yerg. Tenn. 133 ; nor in Missouri, under the stat. of 1835. 17 Mo..362. Trespass for mesne profits does not lie against personal repro sentatives in Pennsylvania, 5 Watts, Pcnu. 474 ; 3 Penn. St. 93 ; nor in New Hampshire, 20 Vt. 326 ; nor in New York, 2 Broth'. Surr. N. Y. 80 ; but the representatives may be sued on contract. Ibid. But this action lies in North Carolina. 3 Hawks. No. C. 390, and Vermont, by statute. 20 Vt. 326. Trespass for trim. con., where defendant dies pending the suit, does not survive against his personal representatives. 9 Penn. St. 128.
16. Where the intestate had falsely pre tended that he was divorced from his wife, whereby another was induced to marry him, the latter cannot maintain an action against his personal representatives. 31 Penn. St. 533. Case for nuisance does not lie against executors of wrong-doer, 1 Bibb, Ky. 246 ; nor for fraud in the exchange of horses, 5 Ala. w. s. 369 ; nor, under the statute of Virginia, for fraudulently recommending a person as worthy of credit, 17 How. 212; nor for negligence of a constable, whereby he failed to make the money on an execution, 3 Ala. N. s. 366 ; nor for misfeasance of con stable, 29 Me. 462; nor against the personal representatives of a sheriff for an escape, or for taking insufficient bail bond, Harr. N.J. 42; nor against the administrators of the marshal for a false return of execution, or imperfect and insufficient entries thereon, 6 How. 11; nor does debt for an escape survive against the sheriff's executors, I Caines, N.Y. 124; aliter in Georgia, by statute, 1 Ga. 514. An action against the sheriff to recover penal ties for his failure to return process does not survive against his executors, 13 Ired. No. C. 483 ; nor does an action lie against the re presentatives of a deceased postmaster for money feloniously taken out of letters by his clerk. 1 Johns. N. Y. 396.