case Elizabeth countess OF rutland against isabel countess OF rutland trover  lie by a executor upon a conversion in the time of the testator although the  good have never be in the actual possession of the executor and the time of  the conversion be not traversable and need not he allege in the declaration  post I roll ab Owen more roll ab Lut Mod Sav pop Leon hob vent several  executor may sue by attorney though some of they be within age I roll ab side  Mod say vide Satifid vent Mod lev contra Elizaheth Countqss of Rutland and  other executor of Edward earl of Rutland executor of John earl of Rutland  against Isahel countess of Rutland action upon the case of trover of diverse  jewel and other good to the value of l and allege that the defendant know  those good to appertain to John earl of Rutland in his lifetime and after his  death to Edward earl of Rutland as executor to John and after his death to the  plaintiff as executor to Edward executor to John have convert they to their  damage of l the defendant plead not guilty and find guilty to the damage of it  be now move in arrest of judgement that this action lie not for a executor  upon a trover and conversion in the time of their testator for it be not  within the Edward c as a quare hinder and a ejection firmtv have be take to he  within the equity thereof second because there be not any certain time show of  the conversion whether it be in the time of the testator or of the executor I  Yelverton to the first exception the action well lie for a executor by the  equity of the statute and so it be adjudge pasch Elizabeth b r that this  action lie for executor upon a trover and conversion in the time of their  testator and it be one a this judgement be reverse upon a writ of error in the  queen bench east Elizabeth and it be agree by gawdy Clench and Fenner to be a  limitation and not a condition Owen see also dyer Plowd croak Elizabeth er p  drake case to the second the day of the conversion be not material for he it  in the time of the one or the other the executor shall recover and have damage  to the use of their testator but the count be certain enough for it be that  the defendant know the good to he the good of the say Johl earl of Rutland and  intend to defraud the plaintiff have convert they croak Elizabeth so of  necessity it be to he intend that the conversion be in the plaintiff time as  to the first all the justice resolve that a executor may well maintain a  action for good convert in the time of their testator by the equity of the  Edward as well as a quare hinder and so be the common experience at this day  but as to the second Heaumond and Owen hold it to be a material exception for  the day of the conversion ought to be express lie although it be not  traversable for it be matter of substance and the pohit of the action and  therefore the day and place of the conversion ought to be express mention and  it have be adjudge in the queen bench in Stranshams case and in sir Thomas  Pyllistons case that the lace of the conversion ought to be lie otherwise it  be ill and as this case be the p ctib n man he bring of the conversion in the  time of the testator or in his own time and it be doubtful in who right it be  bring for want of the time certain express and in the one case he ought to  have his action upon the statute and in the other case by the commonlaw  wherefore it be not good but Anderson and Walmsley hold strong to the contrary  for the case be agree that the executor shall have the action as well for the  conversion in the time of their testator as in their own time it be not  material in who right the action be bring for they be to recover damage to the  use of their testator both way and it be agree on all side that the day lie  down be not traversable and not be express it be not much material nor the  inquest shall not have regard thereto but the time be well lie down for it be  post death intend to defraud so of necessity it be to he intend that the  conversion waspost death and as to the case cite that the place of the  conversion be material in this action that be because otherwise there can be  any trial if no place have be allege but as this case be be after verdict it  be not any exception to stay the judgement although peradventure it may have  be a exception if there have be a demurrer thereupon for that be not in  default of substance but it be to the manner only afterward in this term the  record of the case of Russel and Pratt which be Hilary Elizabeth roll in banc  regince be bring in and show and in that it be prove that a action lie for a  executor for a conversion in the time of his testator kind of spinach nothing  prove for the day and it be say by Anderson that the Lord chief justice and  chief baron be of this opinion but further day be give till the next term and  if any of the party die judgement shall he tuncpro nunc and afterward the next  term it be adjudge accord for the plaintiff notam that in this case it be  resolve that threeexecutors bring this action and the one be a infant and they  all sue by attorney that it be good because they all be but one person and sue  in autre law and not in their own right and it be not reasonable that one or  two shall sue by attorney and a three by guardian or prochein any