*444By the Court.
Daly, F, J.Thiswas action against sureties upon an undertaking in replevin. While the nek-m of replevin was pending, the plaintiff died, and the defend;.:;!, upon motion, obtained an order from the Court, that the adndv istratrix of the plaintiff should continue the action, which -he failed to do, and the-defendant obtained judgment. Tinment was not paid, and the action being brought upon the nu-deviating, the defendants demurred upon the ground that íLe action of replevin abated by the death of the plaintiff. It was insisted that replevin was not one of the class of actúen which could he continued by order of the Court, in the name of the personal representatives of the deceased party, for the reason that the cause of action did not survive, and that therefore all the proceedings had, by the order of the Court, after the death of the plaintiff in the replevin, were without authority and void. '
At the common law all actions abated by the death of ehh.-r party for the want of litigants, and if the cause of action .vurvived, the personal representatives of the deceased party ha-1 to bring another action. In replevin, if the plaintiff died, the cause of action survived, but if the defendant died, the right uf action against him died with him, so that although the personal representatives of a party from whom goods or chattels had been tortiously taken in his life-time, might maintain replevin, no such action could be maintained against the personal repivsentatives of one who in his life-time had tortiously possessed himself of goods, unless the property came- into the possession of the personal representatives, and they refused to restore it, In the much debated case of Mason v. Dixon, (Sir Wm. Jones Rep., 173), the common law was declared by the Court to be as follows: If the goods of J. S. were taken tortiously, and he died, his executor could not have trespass at the common law, even though the goods were destroyed, but he could have jvplevin by a writ in detinue for the recovery of the tiling U-'-k", and if J. S. took goods tortiously, and died, trespass would '■■■•■ lie against J. S.’s executor, .even though the .goods were strayed ; but if the executor have the goods in his pas-.-.--.-1 then detinue would lie against him upon his own posses-d-m. The rule-of the common law was enlarged by the sin:-: -■ " 4, of Ed, III., ch. 7, which gave a remedy in damages'io tlx *445cutorfor atortiousicarrying away of the goods of the testator in his lifetime, and this statute being always equitably construed, the executor might, according to the exigencies of his" case, bring replevin, detinue, trover, trespass, or an action for money had and received. It was the design of the statute, said the Court in the Bishop of Coventry and Litchfield's Case (1 Anderson R., 241), where the testator had been tortiously deprived of Ms chattels, that the executor should have such action as the testator could have had; and see to the same effect, Countess of Rutland's Case, 1 Cro. Eliz., 378 ; Berwick v. Andrews, 2 Ld. Ray., 973 & 4; Chamberlain v. Williamson, 2 M. & S., 408.
But neither this statute nor the common law gave any right of action against the executor or administrator of a person who had tortiously taken goods in his lifetime (Carter v. Fossett, Palmers’ R., 329 ; Hambly v. Trott, Cowp., 371).
Thus it was held in Mellen v. Baldwin (4 Mass. R., 480), that though the action of replevin survives the death of tho plaintiff, it does not survive the death of the defendant. “In replevin,” said Chief Justice Parsons, in delivering the opinion of tho Court, “ the ground action-for the plaintiff, is his property, either general or special, and a tortious violation of his right of property by the defendant. The defendant is therefore charged with a tort which cannot survive against his executor or administrator. * * * * But the executor or administrator of a plaintiff in replevin may come in and prosecute, because the chattels of the deceased being vested in him by the law, he might sue a replevin against tho-defendant, who had unlawfully taken, and still held them, and this within the" equity of the statute of 4 Edw., III.”
The present is the case of the death of a plaintiff in replevin where, as has been shown by these authorities, the cause of action survives ; and the Code declares, that where the cause of action survives, the action shall not abate, and that the Court may order it to he continued by the representatives or successor, in interest of the party deceased.
The-two casas in this State relied- on "by tho defendants upon tho argument, are not in conflict with the view of the law as above stated. Wibber's Excutors v. Underhill, 19 Wend., 447, was a ease of the death of a defendant in repAevin, and the
*447fair clays, including the day of sale, to unload the‘vessel. The sale was made on the 14th of May, 1862, and the two following days were fair. On the day of the sale, the defendants sent their sampler, who examined the grain, and reported it equal to the sample. On the same day, Gordon’s clerk was referred by one of the defendants to the sampler, a Mr. Grout, for directions as to the disposal of the grain. The clerk went several times to Grout for directions, and finally was directed by him to have the' grain alongside of the ship Bavaria. The clerk, thereupon, in the afternoon of lath, filled up an order to that effect, and gave it to Grout. This order was delivered on the boat on the morning of the 16th, between nine and ten o’clock, and the boat immediately proceeded to the ship Bavaria. Mr. Dane, the agent, and part owner of the boat, learned from Mr. Grout that the ship was not ready to receive cargo, hut probably would be ready by noon of the next day. Mr. Dane, thereupon, gave notice to the plaintiffs’ agents, that the boat must be unloaded that day, or that he would put the wheat in store ; and, not hearing further from them, at about three p. ir. ordered the boat to leave the Bavaria, and placed the wheat in store, in his own name, subject to his order, paying the charges. The next day, the 17th, he gave plaintiff;’ agent notice that they could have the wheat on paying these charges, which they did.
The defendants, having demanded the grain, it was afterwards delivered to them, upon an understanding that they would pay the amount paid by the plaintiffs’ agents for lighterage and storage, if bound in law to do so.
The defendants’ evidence contradicted this in some points, and especially as to the date of the completion of the sale, which they claimed was not till the lath; also, as to the state of the ship Bavaria, on hoard of which they claimed the wheat could have been received on the 17th, and they denied any such understanding as was alleged by the plaintiffs, as to their reservation of the right to recover the charges from the defendants.
The justice, on this evidence, rendered a general judgment for the plaintiffs for two hundred and forty-eight dollars and thirty-one cents, from which judgment the defendants appealed."
H. W. Johnson, for appellants.
W. C. Barrett, for respondents.
*448Bt the
Cocjst.—Daly, F. J.— Womust assume, in respect to every point on which the testimony is conflicting, that the ju.-tie-j fennel in favor of the plaintiffs, and arc consequently hound to conclude that he found that the grain was sold to the defendants on the 14th; that it was to he put on hoard a vessel to he designated "by Grout, the measurer; that, according to the custom, the purchaser has three days of fair weather, including the day of the purchase, to unload, and that, in this case, the 16th was the last day; that the vessel was designated hy Grout, hut was unahle to receive the grain within the time limited; that the plaintiffs’ right to the use of the canal-boat expired on the 16th, and that on the afternoon of that day the owner of the boat, being entitled, on the next day, to the use and possession of it, unloaded the grain, and stored it in a warehouse, at the charge and expense of the plaintiffs, which they might lawfully do (Rowland v. Miln, 2 Hilt, 150 ; Fisk v. Newton, 1 Denio, 45), and that to enable the defendants to get it, the plaintiffs’ agent paid the charges upon it, amounting to two hundred and twenty-four dollars and fifty-one cents, upon an understanding between them and the defendants that the defendants would pay the amount if they were hound in law to do so. Upon this state of facts, the justice gave judgment for the plaintiffs, and I think lie decided correctly.
The owners of the canal boat were responsible to the warehouseman for the storage, and the plaintiffs, in turn, were answerable for it, to the owners of the canal-boat. It was not, therefore, a voluntary payment on the part of the plaintiffs, but was compulsory, as they were liable for the storage, and as the act of storing the grain was for the benefit of the defendants, as purchasers, and had become necessary, in consequence of the defendants’neglect to have the boat unloaded within the timo limited, it was a payment to the use of the defendants, and such being the ease, the plaintiffs could recover it from the defendants (Hunter v. Hunt, 1 Com. Bench R., 304; Hooper v. Treffry, 1 Exchq. R., 17 ; Maydew v. Forrester,5 Taunt., 615; Cowell v. Edwards, 2 Bos. & Pul, 268; Gottburger v. Harned, 2 E. D. Smith, 128 ; Wells v. Porter, 7 Wend., 119).
The dc-ebtiT:fines of Grout were inadmissible to'show that the Bavaria could not take in the mv.ia on the 16th; hut the fact w..s *449sufficiently shown by the defendants’ letter, by which they required until the end of the next day, the 17th, to unload the ea-. nal-boat.
The judgment should be affirmed.