view to an increase in its value, and would give to the trespasser all the advantages of a purchaser under a fair contract of sale. Damages for the use of the property, in its original shape, are legitimate; and no reason can be assigned, to prevent the owner from recovering the value of such use, instead of interest on the value of the property. In replevin the jury are required to assess the present value of the property, and the damages for its detention. Special damages are not often recoverable; being duly alleged, they may be recovered when they are the natural or proximate consequence, of the wrongful act; 2 as where money and time are expended in searching for chattels wrongfully taken or appropriated.3 Special damages resulting from the effect produced upon the owner's business, are too remote; unless the action is brought to recover the team or the tools with which he prosecutes his business.5 By reason of a certain difference in the natural bias of mind existing among jurists, the rule of damages appears in two forms or phases: the affirmative form gives to the owner the value of his property at the time it was taken from him, with interest from that date, as an indemnity for the injury he has sustained; and the negative form, or the exceptions from that rule, seem to be framed with the design of preventing the wrong-doer from gaining any advantage through his wrongful act. Hence the affirmative or general rule applies where the conversion takes place without malice, or without any intent to invade the rights of property; and it is evident that the tendency of opinion is towards a uniform rule, giving the owner the value of his property with interest from its conversion, or the value with interest from a reasonable time thereafter." Under the English practice the court will sometimes stay the proceedings, on the defendant's paying the costs and restoring the subject of controversy; where no special damages can be claimed for the conversion, and where the value of the property remains unchanged. Though this 1 Shotwell v. Wendover, 1 John. R., 65; Allen v. Fox, 51 N. Y., 562; Suydam v. Jenkins, 3 Sand., 614, 621; Haviland v. Parker, 11 Mich., 103. 2 Starkey v. Kelly, 50 N. Y., 677. 3 Bennett v. Lockwood, 20 Wend., 223; McDonald v. North, 47 Barb., 530; Forsyth v. Wells, 41 Penn. St., 291. 4 Brizsee v. Maybee, 21 Wend., 144. Bodley v. Reynolds, 8 Q. B., 779; see Hurd v. Hubbell, 26 Conn., 389. 6 Matthews v. Coe, 49 N. Y., 57; Baker v. Drake, 53 N. Y., 211, overruling Markham v. Jaudon; Wyman v. Amer. Powder Works, 8 Cush., 168; Robinson v. Barrows, 48 Maine, 186; Cushman v. Hayes, 46 Ill., 145; Bates v. Stansell, 19 Mich., 91; Page v. Fowler, 39 Cala., 412; Pinkerton v. Manchester R. R. Co., 42 N. H., 424, practice be scarcely known in this country, it assumes the usual rule of damages and also allows the plaintiff an opportunity to recover damages for the detention as well as for the depreciation of the property. In the action of replevin, this practice and the rule with its qualifications are manifestly convenient and just ; and the same result may be wrought out under our practice by an offer to allow judgment.3 § 113. Notwithstanding the Code has obliterated the distinction between actions at law and suits in equity, and abolished the well known forms of actions previously used in this State, the remedies by suit remain still essentially unchanged;1 because the principles of law remain as heretofore. The plaintiff must allege facts that constitute a cause of action, and the allegations of his complaint must show a right of recovery under principles previously applied to the actions of replevin, case, trover and the others. The statement contained in his complaint, must include every fact necessary to establish a right of action known to the law. And, since the principles of the common law, as well as the principles of pleading under it, must be studied and learned chiefly from the decisions which have been made under forms of action now disused, it is evident that the plaintiff's complaint must be drawn with at least a tacit reference to the requisites of pleading used in some one of those forms." Though the statute has abolished the forms, it has not separated them from the adjudications which have blended them together through a long course of years. The terms, assumpsit, case, trover, &c., convey the idea of distinct and well known causes of action, so that it is still more convenient to use them in speaking of legal principles than to adopt the circumlocution necessary to express the same ideas in popular language. The single term, trover, which has 'Fisher v. Prince, 3 Burr., 1363; Whitlen v. Fuller, 2 W. Black, 902; Earle v. Holderness, 4 Bing., 462; see Stevens v. Low, 2 Hill, 132. 2 Allen v. Fox, 51 N. Y., 562. Our practice is different; Brewster v. Silliman, 38 N. Y., 423, 428. 3 Code of N. Y., § 385. The offer may be made to allow judgment for the property; but it must in all cases be explicit aud definite. Marble v. Lewis, £3 Barb., 432; Tompkins v. Ives, 36 N. Y., 75. • Hall v. Southmayd, 15 Barb. S. C. Rep., 32; Horner v. Wood, id., 371; Barker v. Russell, 11 Barb. S. C. Rep., 303, and Rodgers v. Rodgers, 595. A suit in equity and an action at law may be combined; Davis v. Morris, 36 N. Y., 569. Boyce v. Brown, 7 Barb. S. C. Rep., 80, and the cases there cited; Eldridge v. Adams, 54 Barb., 417. 6 Childs v. Hart, 7 Barb. S. C. Rep., 370, and Rayner v. Clark, 581; Garvey v. Fowler, 4 Sand. R., 665. been so commonly used as a remedy for the violation of the contract of mandate, describes a cause of action brought for the unlawful detention or conversion of goods; in which the plaintiff's right to them, their value, and the defendant's conversion of them, were put in issue and necessary to be proved. The plaintiff must have either a general or special property in the goods, and a right to the immediate possession; and where the defendant is a mandatary, it must be shown that he has been guilty of some breach of trust, which the law regards as a conversion of the property to his own use. We describe the suit accurately under the new procedure, by calling it an action in the nature of trover.1 3 § 114. The Contract, how determined. The death of the mandatary leaving the mandate wholly unexecuted, works no change in the title to the property; and where the trust is of a personal nature, his representatives must have the liberty of restoring the property and thus terminating the contract. And unless by the terms of the bailment some third party has acquired a vested interest in the property, the bailee's executor or administrator will be justified in restoring the same to the mandator.5 On his death the mandatary's goods and effects pass into the custody of his legal representatives, and although a personal trust will not thus devolve upon them, they will be bound to take care of the property coming into their hands, and should be held liable for at least an equal degree of care as that required of the deceased in keeping it. Though they do not come under the mandatary's exact contract, they do become bailees or custodians of the property in the due course of business. In respect to an ordinary contract, it is their legal duty to fulfill it according to its terms; the estate is under the obligation of the contract, and entitled to the moneys growing due thereon. In respect to property held 1 Tharpe v. Stallwood, 5 Mann. and Gr., 761; Armory v. Delamirie, 1 Strange, 505; Meny v. Greene, 7 Mees. and W., 623; Tell v. Beyer, 38 N. Y., 161. 2 The Manhattan Co. v. Bentley, 13 Barb. S. C. Rep., 641; Conway v. Bush, 4 Barb. S. C. Rep., 564. The cause of action must be stated in the complaint, and the defence properly pleaded, and the judgment must follow according to the allegations and proof; the Code has not changed this settled rule of practice. Wright v. Delafield, 25 N. Y., 266. And as a rule, a pleading which is sufficient in the action of assumpsit at common law, is sufficient under the Code. Farron v. Sherwood, 17 N. Y., 227. Suing on a special contract which he has fulfilled, plaintiff may recover on the old count of indebitatus assumpsit. Hosley v. Black, 28, N. Y., 438. 3 Hurd v. West, 7 Cowen, 752. 4 Roulston v. McClelland, 2 E. D. Smith, 60. 5 Carle v. Bearce, 33 Maine, 337; Britton v. Aymar, 23 La. Ann. R., 63. in trust, the rule is that it does not pass to the legal representatives, but goes to the party for whom it is held.1 So far as accrued liabilities are concerned, the legal representatives are liable; they represent the de ceased and must answer for his debts and torts beneficial to the estate, e.g. the conversion of personal property. The law makes no provision for the execution of a specific trust by the legal representatives; it leaves them to the liabilities growing out of the relation voluntarily assumed by them.3 They receive the trust property as individuals; it is not to be deemed assets in their hands, unless the liability of the deceased has really assumed the form of legal liability. In some cases the character of the property will depend upon the facts to be ascertained on investigation; and here they will receive it conditionally. As between themselves, neither is entitled to exclude the other from the custody or possession of the property." § 115. When the mandatary has money in his hands due to a third person, and dies, he leaves his estate indebted for that amount, and it is the duty of his legal representatives to discharge the debt; but where he has a package of money or goods in his possession for a third party whose property they are, and dies, his legal representatives acquire only the bare custody of the articles; they come into the possession of the property without any express authority from the owner, and are to be held liable for it, not as executors or administrators, but on the same general ground as the finder of goods. § 116. Under the general rule of the common law the death of one of two or more persons jointly authorized to act for another, arrests the execution of the power." And hence where joint mandataries are authorized to do some private act requiring their consultation and concurrence, the death of one dissolves or puts an end to the power;10 in other words, where an authority to act in a matter of a private nature is con 1 Moses v. Murgatroyd, 1 John. Ch., 119. The property will not pass to an assignee in bankruptcy; Kip v. Bank of N. Y., 10 John. R., 63. 2 Brocket v. Bush, 18 Abb. Pr., 337. 3 See Banks v. Wilkes, 3 Sand. Ch., 99; Bowman v. Rainetoux & Sabbatton, 1 Hobb. Ch., 150. 4 The statute specifies what shall be assets in their hands, not including any such trust property. See Levin v. Russell, 42 N. Y., 251. 5 Scoville v. Post, 3 Edw. Ch., 203; Champney v. Blanchard, 39 N. Y., 111. 6 Burt v. Burt, 41 N. Y., 46. 7 Ante § 86, 97. * Ante § 19, § 90, § 100, § 103; McGehee v. Mahone, 37 Ala., 258. 9 Martine v. International Life Ins. Society, 53 N. Y., 339; Stisnermann v. Cowing, 7 John. Ch., 275; Tooke v. Hollingworth, 5 Term R., 215. 10 Sinclair v. Jackson, 8 Cowen, 543. ferred by the principal upon more than one person, all must act in the execution of the power, unless it is given in such terms as will authorize its execution by a less number. An authority conferred upon a firm, cannot be properly executed by the members that remain in business, after its dissolution;2 and an authority given by a firm is withdrawn by a change in its members with notice.3 § 117. The death of the mandator puts an end to all authority to enter upon any new business or engagements in his name. Money or personal property in the hands of an agent or mandatary, at the death of the principal, goes to his representatives; and where the authority to complete the mandate is thus terminated, the law imposes upon the mandatary the duty to restore the thing bailed to the party who represents the estate, or to the owner where the property belongs to some other party. The law will imply an obligation to surrender the trust in a way that shall be agreeable to equity; and it seems the acts of an agent or mandatary, before notice of the death, done in good faith in the execution of the contract, will be held binding upon his principal's estate; as where he completes a transaction or receives a payment on behalf of his principal. A power of sale, coupled with an interest in goods, capable of being executed in the name of the agent, may be executed after the principal's death; as where a factor makes advances upon and receives goods for sale, and is not reimbursed on the death of his principal. The factor has an interest in the property, like that of pledgee, and a sale by him contemplated from the first, is only a reasonable mode of realizing his interest in the goods. An agency cannot outlive the principal; under this rule of the common law it is evident that an agent or mandatary can only be protected. in such acts and dealings in the business entrusted to him, as the situation naturally calls for. He must preserve the property and surrender it to the parties entitled to receive it. 1 Hawley v. Keeler, 53 N. Y., 114, 121. 253 N. Y., 339; Hamilton v. Mutual Life Ins. Co., 9 Blatch., 235. 3 Callanan v. Van Vleck, 36 Barb., 324; 41 N. Y., 619. 4 Farrow v. Bragg, 30 Ala., 261; 1 Bell's Com., § 413, 4th ed. Nicolet's admr. v. Pillot, 24 Wend., 240. The agent ought to be protected; see Howe v. Buffalo, N. Y. & E. R. R. Co., 37 N. Y., 297. 6 Cassiday v. McKensie, 4 Watts & Serg., 282; Carriger v. Whittington, 26 313. Mo., 7 Edwards on Factors and Brokers, § 86, 87; Ish v. Crane, 8 Ohio St., 520; Story on Agency, § 496. * Hunt v. Rousmanier, 8 Wheat., 174, 201; Smout v. Ulberry, 10 Mees. & Welsby, 1; Megary v. Funtis, 5 Sand., 376; Park v. Hammond, 6 Taunt., 495. |