#### Barret and Wife, Plaintiffs in Error, v. Stephen Gaston, Ex’r, Defendant in Error.

ERROR TO RANDOLPH.

This court will not entertain a writ of error on a judgment founded on a tort, after the death .of the tort feasor.

Opinion of the Court by

Justice Smith.

In this case it is manifest, the proceedings on the writ of error can not be sustained.

The cause of action is for a tort, and could not survive against the executor of James Gaston, who has been made defendant in error.

Suppose this court were to reverse the judgment of the circuit court, what object could be gained by such reversal ? The executor has only to plead the fact of the death of his testator, and the circuit court, on the proof of the truth of such plea, would be bound to give judgment for the defendant. Is not then this court bound, when the plaintiffs in error themselves, by their own proceedings, disclose the same facts, to pronounce a decision similar in its effects ? The record shows the cause of action, the writ of error suggests the death of James Gaston, and that Stephen is his executor, and that, consequently, as against James Gaston, in whose favor the judgment of the court below was, the cause of action is gone, and can not survive against his executor. If the executor retains the possession of the plaintiff’s wife, under a claim, in right of his testator, as an indentured servant or slave, that might present a question of legal investi*256gation in a new action against him, but it can form no ground of examination in this. We are therefore of opinion that the writ of error must abate, and that judgment be entered accordingly.

Cowles, for plaintiffs in error.

Breese, for defendant in error.

Writ of error abated.