A Selection of Cases On the Law of Pleading Under Modern Codes

here are express authorities that trover and conversion does not lie against an executor. I mean, where the conversion is by the testator. Sir William Jones, 173-4, Palmer, 330. There is no saying that it does. The form of the plea is decisive, viz., that the testator was not guilty; and the issue is to try the guilt of the testator. And no mischief is done; for so far as the cause of action does not arise ex delicto, or ex maleficio of the testator, but is founded in a duty, which the testator owes the plaintiff, upon principles of civil obligation another form of action may be brought, as an action for money had and received. Therefore, we are all of the opinion that the judgment must be arrested. Per Cur. Judgment arrested. McDERMOTT v. MORRIS CANAL CO. 38 N. J. L., 53. [1875.] The opinion of the court was delivered by Knapp, J.: To the declaration filed in this cause, the defendants interposed a general demurrer. The first and second counts of the declaration are in tort, and set forth a cause of action in form and substance essentially the same. They charge that the plaintiffs, being the owners of a mill near to a certain stream in the County of Warren, were entitled to have, and for a long time had a portion of the water from said stream flow through a certain flood-gate or sluice-way, to the plaintiff's mill, for running it, and the defendants unlawfully pulled down a stop-gate placed in the stream for the purpose of turning the water to the mi... --This text refers to the Paperback edition.