majority">Rvlasd, Judge,

delivered the opinion of the court.

The main question in this case involves the right of the plaintiff in the original suit to prosecute the same, after the death of the original defendant, against his administrator.

It will be seen, that the action was detinue, brought by Mc-Dermott against Samuel A. Childs, for the recovery of a negro *365man, named Bob. Daring the pendency of this suit, Childs departed this life, and John E. Darby, public administrator of St. Louis county, took charge of his estate as administrator, and the action was revived in his name, and carried on against him as administrator of Childs. Does the action of detinue survive against an administrator ? If not, then the demurrer to this present suit was properly sustained by the court below.

The original action of detinue was commenced in July, 1844, and the statute concerning practice at law, Rev. Code, 1835, was then in force. The third section of article five of that act is as follows “ When there is but one defendant in an action, and he shall die before final judgment, such action shall not be thereby abated, if it might be originally prosecuted against the heirs, devisees, executors or administrators of such defendant; but such of them as might be originally prosecuted for the same cause of action shall, on the application of the plaintiff, be made defendants in such suit, by an order of the court substituting them as defendants therein.” Now if the action of detinue could, as such, be carried on against an administrator in the first place for property found in the possession of his intestate, then it can be revived against him ; but I apprehend that such an action is never brought against an administrator ; for if he, as such, should have the goods in his possession, his keeping them and refusing to deliver them •up makes him personally liable — mot as an administrator, but as an individual. He is not. sued for an act of his intestate, but of his own.

It will not be necessary to notice the long array of authorities on this subject, nor the learning in the books showing that the action of detinue is sometimes considered in some cases as one ex contractu, and in other cases as one ex delicto.

In the case of Jones v. Littlefield, 3 Yerger, 133, the court, after making much examination into the law upon this subject, reviewing the cases and commenting thereon, proceeds thus : ‘ ‘ Here the administrators are sued in an action of deti-nue, depending against them by the process of scire facias, *366and prayed to be enforced against them by tbe motion'to revive, and make them parties as administrators. But the books say not, for this is their own act, in detaining the negroes after the death of their intestate, Robertson; nor need they be named as administrators, for they shall not answer in damages for their intestate’s detaining. In other words, a suit in deti-nue cannot be supported against administrators, as such, upon the detainer of their intestate, or upon their own detainer ; not in the former case, for it is a wrong or tort of their intestate, for which the assets are not liable, nor they responsible, as administrators, holding them and entrusted with their appropriation and distribution ; nor in the latter case, for the detainer is their own act, for which they are answerable in their own private capacity. The conclusion is, that this aetion of detinue for the specific negroes, brought against the intestate, Benjamin F. Robertson, cannot be revived against his administrators as such.”

If the plaintiff wishes the specific property, he must bring his action of detinue against the person in whose possession it may be found, whether administrator or not.

Our statute concerning administration, article 2, section 24, Digest 1835, provides that, “for wrongs done to the property, rights or interest of another, for which an action might be maintained against the wrong doer, such action may be brought by the person injured, or after his death by his executor or administrator against such wrong doer, and after his death, against his executors or administrators, in the same manner, and with the like effect, in all' respects, as actions founded on contract.”

This statute changes materially the common law. The old rule of actio personalis moritnr cum persona, is no longer of binding force in its full extent. We see, “ for wrongs to property, rights and ’interest,” personal actions do not give way to the death of the person.

Then the detaining and loss to the plaintiff of the negro man in this ease, was a wrong for which he had a remedy against *367tbe estate of the wrong doer. But this remedy against Ms administrators may not be detinue. If the negro man is in the possession of the administrator, he may be, liable in his individual capacity, if he refuses on demand to give him up; or the plaintiff may waive the tort, and proceed against the estate for the value of the negro. All that this court says is, that the present action cannot be revived' against an administrator. Many other points were discussed and pressed in the written arguments of the counsel on both sides, but it will not be necessary to notice any besides the one here decided, as that must determine this action. The judgment of the court below is, with the concurrence of the other judges, affirmed.

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