#### Rhodes vs. Gregory's administrators.

HODEc took an attachment against Frazier for a debt due from him, and delivered the same to Gregory, the sheriff, who seized a Negro, and returned upon the attachment, that hé escaped. Whereupon he sued Gregory in an action of debs upon the case, for negligence and misconduct in his office : Gre* gory died, and his administrator was brought is by ¡tírefacial.:, *352Andií was now i asís ted by Mr. Graham, for the defendant, ih'at such an action would not lie at the common law against executors ; nor will it by force of the act of 1709, for that only makes a trespass survive against executors, where property, either real or personal, is involved in the decision to be made upon it.

Karris, c contra.

Either trespass extends to trespass on the case, as well as trespass vi ct armes; or if not, the equity of the act extends to this case. The motive of the act was to prevent a wrong by the death of the defendant, by subjecting his estate to make compensation. Here a wrong is done the plaintiff, and he cannot recover satisfaction for the debt he has lost, unless he is suffered to maintain this action. It is not pretended any other will lie.

Per curiam.

It has been decided in the Court of Conference, that such an action is not maintainable against executors after the death of defendant, then testator.

On the importunity of one of the defendant’s counsel, the Judge agreed to carry the cause to the Court of Conference.