concurring.
All the questions in this case, except two, were .waived. Of those two, the first was, as to whether Frith was entitled to an allowance for the debts of Lorenzo Siller, which he had paid after the death of Lorenzo; and the second was, as to what was the measure of the damages, in respect to the negroes.
Lorenzo’s share in the property sued for, exceeded in value the amount of his debts paid by Frith. Frith, therefore, in paying those debts, did not incroach on the shares of the ©ther distributees.
[1.] And the act of payment, was, at most, but the act of an executor de son tort, and the acts of an executor de son tort, will be upheld, if they are such as the regular administrator would be bound to do.
I think, then, the Court was right in holding, that Frith was entitled to an allowance for the payment of these debts.
Frith, soon after his marrige with Mrs. Siller, sold the negro woman and child belonging to the estate of the late husband of Mrs. Siller. After the sale, the woman had other children, and the child which was a female, also had children.
The Court held, what amounted to this; that the value of the woman and her child, at the time of the sale, yvas, (plus hire,) the value to be taken, as the measure of the damages. Dorsett’s counsel objected to this, insisting:- First, that the value of the issue born after the sale, should also be taken into the account: Secondly, that, if wrong there, yet, that *544the value of the woman and child at' the time of the sale, or tthe value at any time afterwards, up to the trial, might, at the option of the jury, be taken as the measure of the damages.
The time of the sale, for ought that appears to the contrary, was the time of the conversion. The conversion consisted it seems, in the act of sale.
There is a conflict among the authorities, as to whether the jury are confined to the value at the time of the conversion, or are to have the option of taking that, or, some subsequent value. Mr. Sedgewick seems to think, that they are confined to the value at the time of the conversion. Sedgewick, Meas. Dam. 481. See Id. 475, et seq. See too, Suydam vs. Jenkins, 3 Sand. 614.
This Court has held, that the jury were at liberty to take the value even up to the trial.
The injury consists in the conversion, and as long as the conversion endures, the injury endures. Every instant of the conversion may be considered a repetition of the injury. The thing remains the true owner’s at the last instant of the conversion, as much as it was his, at the first. But after the wrong doer has parted with the thing to another person, the conversion ceases as to him, and passes over to that person, and abides with him as long as he keeps the thing.
I think, therefore, that the only cases in which, the option exists to the jury, of taking a value subsequent to the first conversion, are the cases in which, the property remains in the possession of the defendant subsequent to that conversion ; that is, are cases in which, there is a continuing conversion ; and, that in these cases, the option does not extend beyond the time when he parts with the possession ; that, if the owner wants to recover by a value taken subsequent to that time, he must elect to sue the person to whom the possession has passed.
In the use of the word, “ elect,” I do not mean to say, that suing one who converts a female slave, and recovering from *545Mm, is a bar to a suit against a person to whom he may have sold her, for the issue of the slave, if she have had issue after she came into the possession of this person. I express no opinion on this point.
It must be apparent from what I have said, that I agree with the Court below, on the question under consideration» The conversion was nota continuing one.