text:
    Dominick v. Sayre and others.
    A power is always imperative, when its subject, that is, the property given ; and its object, that is, the persons to whom it is given ; arc certain.
    Such a power is not to be construed as discretionary, because the terms used are simply, those of authority, and not terms of direction, request, or recommendation ; nor because a right of selection is given to the donee of the power.
    The general intention of the donor of the power to give to a class, is sufficiently proven when an authority and power of selection and distribution are confided to the donee or trustee. A power is always a trust, when a disposition is limited to be made to a class, unless its execution is made in terms to depend upon the mere discretion of the grantee.
    It is in equity, a gift to all who are the objects of the power, subject to be altered or restricted by its execution.
    When not executed by the donee, its execution devolves upon a court of equity ; and all constituting the class participate in its benefits.
    In the execution by the court, of a power to give real estate to any of the male descendants of the testator, bearing his surname ; it was held, that all the male descendants, of that name, were entitled to take per capita, and not per stirpes.

    Under a power to give to any of the male descendants of the family of the testator, bearing his surname ; it was held, that the word “ family” meant children of the testator. That they were the stock of descent, and their male descendants of the testator’s surname, the objects of the trust.
    D., by his will, gave to his daughter, two lots of land during her life, with power to give the same by deed or will to any of the male descendants of his family of the name of D., and their heirs. Held, that the power was imperative, and created a trust in behalf of the class designated ; and the donee of the power having failed to execute it effectually, that this court, as a court of equity, must execute the same in their behalf,

      The extent of the estate, or interest of the donee of the power, in the land of which it is the subject, does not affect its construction as a trust.
    If the power be given to a tenant for life, it is equally imperative, though it enable him to create an estate in fee.
    The provisions of sections ninety-five (subs, 1st), and one hundred, of the article of the revised statutes relating to powers,” are the same as the previous rules of law as established by the decisions in equity.
    (Before Dcer, Mason, and Campbell, J.J.)
    April 9, 10 ;
    April 20, 1850.
    The bill in tins cause was filed in the late court of chancery, in 1840, by Francis Dominick, against a great number of persons who were the heirs and descendants of Francis Dominick, formerly of the city of New York, deceased. The bill stated that the decedent being seized and possessed of a very considerable estate, real and personal, on or about the twenty-ninth day of March, 1822, made and published in due form of law, so as to pass real estate, his last will and testament in writing, and therein and thereby, after a devise in trust of all his residuary estate, to his executors, during the lives of his wife and his daughter Margaret, and until the youngest child of his son John should become fourteen years old, with certain powers, which need not be set forth; make the following devise, viz.
    “ I give and devise to my daughter Margaret during her life, subject to the said trust and power, those eight lots of land, known and distinguished on one of the said maps, by numbers five, six, seven, and eight, in Grand street, numbers eleven, twelve, and thirteen, in Division street, and number fourteen at the corner of Division and Forsyth, (formerly Second) streets ; the said last, mentioned lots of land being thus known and distinguished on the other of the said maps, with power to give the same by deed or will, to any of the male descendants of my family of the name of Dominick, and their heirs, and any disposition thereof, as aforesaid, by my said daughter, I hereby ratify and confirm as fully as if the same had been made in and by this my will.”
    And the testator further devised and bequeathed to his son Jacob, and his daughter Margaret, and the survivor of them and their heirs, all and singular the residue of Ids estate, real and personal.
    The bill further stated the testator departed this life, May 16th, 1822, and Margaret his daughter survived him. That Nnn Dominick, the widow of the testator, died February 7th, 1823 ; and that Harriet Dominick, the youngest child of the testator’s son John, arrived at the age of fourteen years on the tenth day of June, 1828. That Margaret E. Dominick, the daughter of the testator, being seized and possessed of a considerable real and personal estate, and of the life estate and power of disposal in the eight lots of land so devised to her by the will of her father, on the fifteenth day of November, 1831, made and published in due form her last will and testament, and therein after reciting her father’s devise and the power conferred on her, did in pursuance thereof, give and devise the same eight- lots of ground to his male descendants, of the name of Dominick; and among them she gave to her nephew, John Jacob Dominick, a son of her said deceased brother Jacob F. Dominick, and to his heirs and assigns for ever, the lots thirteen Division street and seven Grand street. That there was no residuary devise contained in her will; and that she died November 29th, 1831. That between the making of her will and her death, on the 23d of November, 1831, her nephew, John Jacob Dominick, departed this life. That thereby the devise to him lapsed, and that the legal estate in those two lots of ground, upon the death of the testatrix, became vested in the residuary devisees of the original testator and their heirs, subject to the execution by the court of chancery, of the power so given to Margaret E. Dominick in and by his will.
    The bill then stated who were the heirs of the testator, and their descendants, in whom the legal estate was vested, at the commencement of the suit. The complainant was a son of Jacob F. Dominick, a son of the testator, who died before the testator. The other persons in whom the legal title vested, «were made defendants in the suit. It then charged, that the only male descendants of the family of the testator of the name of Dominick, and who survived his daughter Margaret, were Francis W., John W., and Henry Dominick, sons of the testator’s son, John Dominick, deceased; Francis Richard, a son of the last named Francis W. Dominick; George G. Dominick, and the complainant, Francis Dominick, sons of the testator’s son, Jacob F. Dominick, deceased; James, a son of the testator’s son, Francis Dominick, Junior, deceased; and Francis Jacob, a son of the same James Dominick. And the bill insisted, that the power contained in the will of Francis Dominick, deceased, to Margaret, to give those two lots of ground, by deed or will, to any of the male descendants of the testator’s family of the name of Dominick, and their heirs, Laving remained unexecuted, as to those lots so devised by her to John Jacob Dominick, in consequence of the lapse of the devise to him; the complainant, and the other seven Dominicks, sole male descendants, as before stated, became equitably entitled, upon the death of Margaret E. Dominick, to an estate in fee simple, as tenants in common, in those two lots of ground, each of one equal undivided eighth part thereof. That, nevertheless, the other heirs and descendants claim to be the owners thereof, in common with the parties above named, as heirs of Margaret E. Dominick. The bill prayed that the other heirs and descendants, having the legal estate, might be decreed to convey the same to the before named male descendants.
    The defendant, David L. Sayre and Mr. Callaghan, as trustee for his wife, who was one of the heirs of the testator, put in answers, insisting that she was seized in fee as a tenant in common of the premises in question, with all the residuary devisees of the testator, Francis Dominick; and denying that their estate was subject to the execution, by the court, of the power so given to Margaret E. Dominick by his will. The answer also denied that the will created such a power in trust, as would induce the court of chancery to execute the same, in default of the execution by M. E. Dominick.
    A replication was filed; the cause was transferred from the supreme court, and it was brought to a hearing on the pleadings,

      W. W. Van Warjenen and B. F. Butler, for the complainant.

      0. O' Conor, for Mr. D. S. Sayre, Mrs. Sayre, and her trustee.

      C. 8. Woodhull and T. I. Wells, for other defendants.
   By the Court.

Duer, J.

Franch Dominick, deceased, by bis last will and testament, devised eight lots ut‘ ground in this city, which are described in the will and the pleadings, to his daughter Margaret, during her life, and added to the devise these words : “ with power to give the same by deed or by will, to any of the male descendants of my family of the name of Dominick, and their heirs.” The daughter, Margaret, by lier will devised two of the lots to a nephew, who, subsequently to the execution of her will, died in her lifetime, and as by his death the devise in his favor became lapsed, the power given to the daughter, as to those two lots, remains unexecuted, and the question is, whether the pi over, as created, implied a trust, the execution of which lias devolved upon the court. In other words, was the power merely discretionary, or must it be construed as imperative ? If the exercise of the power rested in the mere discretion of the donee, it is a necessary consequence of the failure in its execution that, an absolute fee is now vested in the heirs at law, or in the residuary devisees ; but if the power, as imposing a duty of execution, is to be regarded as imperative, it has fastened a trust upon the lands, which we are bound to declare and enforce.

The article of Powers in the revised statutes, declares that every power involves “a trust, when the disposition which it authorizes is limited to ho made to any person or any class of persons other than the grantee of the power,” (1 R. S. 734, § 95, sub. 1,) and a subsequent section provides, that “ if the trustee of a power with the right of selection shall die, leaving the power unexecuted, its execution shall be decreed in equity, for the benefit equally of all the persons designated as objects of the trust.” (p. 735, § 100.) As the testator in this ease died before the revised statutes were in force, these provisions are not applicable, as a positive law, to the construction of his will, but they are applicable if they are not introductory of new rules, but only declaratory of those which the decisions in equity had previously established. That they were regarded by the revisers as simply declaratory, we think is fairly to be collected from the language of their notes, and upon a careful examination of the cases, we are satisfied that such is their true character, and consequently that they supply the rules which must govern our decision.

We deem it unnecessary to sustain this opinion by a minute and critical analysis of the numerous cases upon this subject which are to be found in the books, and most of which were referred to upon the argument. It is not to be denied, that the language of the court, in some of these cases, favors very strongly the position upon which the learned counsel for the defendants insisted, namely, that words of mere authority or power are not sufficient to create a trust, unless the estate or interest of the donee in the property which is the subject of the power is commensurate with the power itself, and that where his estate or interest, is less extensive, as where a tenant for life is authorized to dispose of the fee, the power is not to be construed as imperative, unless other expressions or provisions are to be found in the will, manifesting the intention of the testator that it shall be executed, and therefore imposing its execution as a duty. But whatever support these positions may seem to derive from the earlier eases — and it was upon these, chiefly, that the counsel relied — we apprehend that they are not only inconsistent with, but are distinctly refuted by the later decisions. In the earlier cases, there is much confusion and uncertainty as to the proper construction of powers similar to the present; and of this no more striking proof can be given, than results from a comparison of the decisions of Lord Ilardwieke in Harding v. Glynn, (1 Atk. 496.) and in the Duke of Marlborough v. Lord Godolphin, (2 Ves. 61,) decisions which no effort of legal subtlety, as both Lord Eldon and Lord C-ottenham have virtually confessed, has hitherto been able to reconcile.

But the uncertainty in 'which the earlier eases involved the question, we are convinced, no longer exists. It was terminated, in a great measure, by the judgment delivered by Lord Kenyon, when master of the rolls, in Pierson v. Garnett, (2 Bro. Ch. Ca, 38.) It was terminated by the plain, broad, and practicable maxim which he there laid down, and which has since been a guide to his successors, namely, that a power of disposition limited to a class, in all cases implies and creates a trust, where the property which is given is certain, and the objects, (that is, the persons,) to whom it is given are also certainevidently meaning, that where this certainty exists, the trust arises, whether the words are those of positive direction, or of mere recommendation, or mere authority. And the maxim or rule thus interpreted, we conceive to have been the basis of the decree that a trust existed in favor of those descendants, who, in that case, were the objects of the power. Lord Thurlow, in affirming the decree of the master of the rolls, which he did without hearing counsel in its support, expressed himself with his usual brevity and decision, saying, “ where the object and the property are both certain, the rule (i.e., that there is a trust) must be adhered to.” (2 Bro. Ch. Ca. 230.) It is here proper to remark, that this general rule, although more clearly enunciated by Lord Kenyon, had been plainly recognized by Lord Tlmrlow in each of the previous cases of Harland v. Trigg, (1 Bro. Ch. Ca. 142,) and Wynn v. Hawkins, (Id. 172;) the trust in the first of these cases being held to have failed solely from the uncertainty of its objects, and, in the second, from that of the property.

It is true, that in Pierson v. Garnett, there were strong expressions in the will manifesting the desire of the testator that the power should he executed, and it is certain that in numerous cases such expressions, and many much weaker, are held to he imperative, that is, to impose a duty of execution ; but it is equally certain that it was not upon the force of these expressions that either the master of the rolls or the lord chancellor laid the stress of his opinion. On the contrary, Lord Kenyon said, it would be lamentable if a distinction were to be raised upon slight words borrowed from the civil law, such as “ Peto, Rogo,” &c.; and Lord Thurlow, that the use of such words is only important as making a designation of the object,” the plain inference being, that such words are useless, if the “ designation” is otherwise certain. It is, indeed, difficult to understand why the same effect should not be given to words of mere authority, or power, as to words of recommendation, entreaty, or desire. A power, positive in its terms and limited in its execution to a particular class, is not only sufficient, but it seems to us conclusive evidence of the desire of the grantor that it shall be executed. The desire of its execution can be the only motive for its creation, and if the mere wishes of a testator are to be followed as a law, it is surely immaterial whether they are declared in terms, or collected by a necessary implication.

There is another circumstance, however, which may be deemed important, which distinguishes Pierson v. Garnett from the present case. The power was a power of distribution merely, without a right of selection. Hence, as all belonging to the designated class were entitled to a share under an execution of the power, it might well be construed as a gift to all, and therefore a trust for all, should the power remain unexecuted. But to the objection which this distinction may be thought to create, the conclusive reply will be found in the cases to which we shall next advert. The first of these is Harding v. Glynn, (1 Atk. 469,) in which the power which was held to create a trust in favor of the next of kin of the testator, was to give certain personal property to and among such, of his relations as the donee of the power might think most deserving ; words, which certainly give as large a discretion as those in the present will. ¥e shall not, however, dwell upon this case, as it is briefly and imperfectly reported, and, as we have already intimated, was contradicted, and, as some have thought, overruled by Lord Hardwieke in the case of the Duke of Marlborough v. Lord Godolphin.

Owing to these circumstances, the authority of the principle upon which Harding v. Glynn was decided, was for a longtime in abeyance, but was fully restored and firmly established by the next case which we shall cite. A case which seems to have undergone as thorough and elaborate a discussion, as any found in the reports, and which in England lias settled the law, that a power of disposition to a particular class, is a trust in favor of all belonging to the class, even when the power is limited in its actual execution to such as the donee may select. This leading case, Brown v. Higgs, was first, heard by Lord Alvanley, when master of the rolls, (4 Ves. 708,) was re-heard, (5 Ves. 495,) by the same eminently learned and cautious judge, (such is tbe testimony borne by Lord Eldon to Ins judicial character,) was then heard on an appeal from the rolls by Lord Eldon himself, (8 Ves. 561,) and was finally carried by an appeal from bis decree to the House of Lords, (2 Sugden on Powers, 276,) the original decree being sustained and affirmed in each subsequent stage in the cause. The power in this case was created in terms of mere authority. “ I authorize and empower.” It was given to John Brown, a nephew of the testator, to pay over the rents and profits of certain real estate, deducting prior charges, as follows: “ To such children of my nephew Samuel Brown, as my said nephew John Brown shall think most deserving and will make the best use of it, or to the children of my nephew William Augustus Brown, if any such there are or shall be.” The donee of the power, John Brown, died in the lifetime of the testator, and the question was, whether by his death the devise had wholly lapsed, or the power was to be considered as a trust,, the execution of which had devolved upon the court.

The counsel for the defendant strenuously and very plausibly insisted, that the large discretion which was given to the donee, repelled the presumption of a trust in favor* of all the children, who were the objects of the power, since it was plainly not the intention of the testator that all should take. The gift, as made by the testator, was not to all, but only to such as the donee might select, and consequently, that no selection having been made, there was no gift at all. To declare a trust in favor of all the children, was not to execute, but to defeat the intention of the testator; nor was it possible for the court to make a selection ; the power of doing so being a personal confidence reposed in the donee ; a discretion, -which it was meant that he, and he alone, should exercise.

The master of the rolls, in giving his opinion upon the rehearing, referred to Harding v. Glynn as exactly in point, remarking that the only distinction was, that in that case there were words of request and desire, (5 Ves. 503, 506,) and this distinction, in a subsequent part of his opinion, he rejected as wholly immaterial. As to the construction of the power, he held that all the children were to be considered as the objects of the bounty of the testator, and that- the power given to the nephew, John Brown, was to be regarded as a power merely of selection. The gift was to all, although the donee of the power, In the exercise of his discretion, might limit it to some. The court, could not take upon itself the exercise of a similar discretion, but could carry into effect the intention of the testator by declaring a trust for all who were the objects of his bounty; and in several passages of his opinion, the learned judge referred to Pierson v. Garnett, as having settled the principles by which he was governed.

The case of Langmore v. Brown, (7 Ves. 124,) preceded the final decision of Lord Eldon in Brown v. Higgs, but it was decided upon the same principle and partly on the authority of the prior decree of Lord Alvanley. The power, which was given to executors, was declared in the wdll itself to be a trust, but the case is still important as showing that where a discretion is given to the devisees of a trust power in the selection of its objects, if the discretion is not exercised, the trust will be enforced in equity, for the equal benefit of all to whom any portion of the property might have been given. The trust in this case was, that the executors should divide the personal estate of the testator, to and amongst two brothers and a sister or their children. As the executors might have given a portion, or even the whole, to the children, it was held that they were entitled to share equally with their parents, and the master of the rolls (Sir William Grant,) decreed a distribution per capita upon this principle. His decision is, therefore, a pertinent authority, to prove that a trust is not converted into a mere power by the non-execution of which it is defeated, by the addition merely of the right, of selection.

Brown v. Higgs has been followed in numerous cases, and particularly in Parsons v. Barber, (18 Ves. 475,) Prevost v. Clarke, (2 Maddock, 458,) and Forbes v. Ball, (3 Merivale, 437.) The first of these, Parsons v. Barber, was not cited upon the argument. It is a strong case, and the master of the rolls placed his decision, most, distinctly and emphatically, upon the plain and sensible rule of Lord Kenyon and Lord Thurlow, that a trust is raised whenever the objects and the property are certain.

The cases that have now been cited leave unanswered only this single objection, that the construction which they follow is not applicable, when the estate or interest of the donee of the power is less extensive than that which the power enables him to create.

It is not easy to understand why this circumstance should be permitted to vary the construction of the power, since where the terms are the same, they would seem to afford the same evidence of the intention of the testator, whatever may be the nature of the estate. Whether it is annexed to a fee or to a life estate, as the objects and the property are certain, no reason seems to exist why the general rule should not be equally applied. In truth, the donee of the power is in both cases only a tenant for life, since where a power annexed to a fee is construed as a trust, its necessary effect is to cut down the fee into a life estate. (Wright v. Atkyns, 17 Ves. 255.) But upon whatever grounds this objection may rest, it is met and refuted, like those before stated, by express decisions.

In Buck v. Wade, (3 Ves. & Bea. 198,) the testator gave a life estate to his wife, with a power to dispose of one third of the principal of his estate and effects, among such of her relations as she might think proper. No objection was raised on the ground that she had only a life interest, and the master of the rolls decided, that as the power was not general, but was limited to a particular class, it created a trust in favor of the next of kin of the wife. There -were expressions, however, in this will, (“ it is my will and desire,”) that if referred to the disposition to be made under the power — and the master of the rolls appears so. to have understood them — were clearly imperative, and hence the authority of the decision, as bearing upon the question now under consideration, may be doubted.

In Grierson v. Kersopp, (2 Keen, 653,) a life interest only was given to the widow of the testator, with the power to sell certain real estate, and to distribute the proceeds of the sale amongst the children of the testator, as she might think proper. All the children died in the lifetime of the widow, and their personal representatives were held to be entitled, plainly upon the ground that they had a vested interest as cestuis que trust, which could not be defeated by a failure in the execution of the power. It must be admitted, however, that in this case also, the terms in which the power was created, were such as plainly to impose a duty of execution.

We have referred, however, to the two last cases as plainly contradicting, and therefore overruling, Crossling v, Crosding, (2 Cox Ch. R. 396.) and other similar cases, in which, although the terms of the power -were certainly imperative, and were not denied to be so, yet in consequence of the failure in its execution, it was held that the fee descended to the heir at law, discharged from any trust in favor of the objects of the power, and this upon the sole ground that the donee of the power had only a life estate.

The cases we shall next cite, it will be seen, are not liable to the exception that the power was created in terms that rendered its execution imperative. In Whetmore v. Trelawney, (6 Ves. 129,) the testator gave to his wife the interest of certain stock during her life, with power to devise by her last will, five thousand pounds of the principal amongst her nieces. One of the questions was, whether this was a mere posver, the execution of which was necessary to enable the nieces to take any thing, or whether they had a vested interest, independent of the power. This question, in the first part of his opinion, Lord Eldon refused to decide, yet in a subsequent passage he in effect decided it, by holding that had the wife died during the lifetime of the testator, the nieces would have been entitled to the £5000 at his decease, plainly meaning, -would have been so entitled under bis will, which they could only be by construing the power to the wife as equivalent to a gift to them; that is, by construing the power not as discretionary, but as imperati ve.

In Brown v. Pocock, (6 Sim. 257,) the words of the power are not recited, but they seem to have been those of mere authority, and it is plain that the donee had only a life interest. He was a mere annuitant. Hie substance of his power, was to leave by will the moiety of £8000 in stock, for the benefit of his wife and children, and the vice-chancellor was of opinion that it was a gift to them, subject to the execution of the power, and the power not having been well executed, he decreed that they were entitled to a moiety of the stock as joint tenants.

The next case is Grant v. Lyman, (4 Russ. 292.) The testator gave a life estate in leasehold property to his wife, with power to dispose of the same after her decease, to any of his family she might think proper. She made an appointment under the power to a relative of the testator more distant than the next of kin, and the master of the rolls held it to be a good execution of the power, but he also held, that had the power not been executed, the next of kin to the testator would have been entitled, which they could not have been unless the power was construed as raising a trust in their favor. And that such was his meaning is rendered certain by his referring to Harding v. Glynn, in which this construction was adopted, as a controlling authority. This case is also important as proving that the learned judge disregarded entirely the supposed distinction between words oí request and those of mere authority. It must be admitted, however, that in this, as in the preceding cases, the objection that the donee of the power had only a life interest, was not distinctly raised, and therefore was not passed upon.

But the objection was raised, and fully argued, in the next case, the last to which we shall refer, Burrough v. Philcox, (5 Mylne & Craig 72,) a case which, we think, is in no respect distinguishable from the present, and the decision in which, if admitted to be law, and looking to the grounds upon which it was placed, is an answer to the entire argument, upon the part of the present defendant. The power was given to a tenant for life, its terms were those of mere power, not of discretion, recommendation, or request; and although it was limited in its execution to a particular class, the donee had an unlimited right of selection. It was a power to dispose of by will, all the real and personal estate of the testator amongst his nephews and nieces, or their children, either all to one of them, or to as many of them as the donee of the power might think proper. The counsel for the defendants relied upon each and all of the distinguishing circumstances that have been mentioned, as proving that the power did not impose a duty of execution, but vested in the donee an absolute discretion, wholly inconsistent with the supposition, that the nephews and nieces, and their children, took any interest as cestuis que trust; and the lord chancellor overruled all their arguments and objections, by holding that the power was not discretionary, but imperative, and was in effect a gift to all the nephews and nieces, and their children, subject only to the power of selection given to the donee. The case is very fully reported, and the opinion of Lord Cottenhain is particularly able and lucid, and leaves no doubt whatever as to the true grounds of his decision. He remarked, (page 95,) that much argument had been urged upon the ground, that the donee of the power had no estate in the property under the will, beyond a life estate; but that in his view of the case, this was quite immaterial. It was not, indeed, one of those cases in which expressions are added, as to the disposition of the property , that are held per se to fix a trust upon the gift, but that it was sufficient, if a declaration was found in the will, of who, in the events that had happened, were to be the cestuís que trust, and when that is sufficiently expressed, it is immaterial whether the donee of the power be also a trustee, or whether the trust be vested in others; in other words, it is immaterial in whom the fee is vested, at the time the power is to be executed, if the persons to whom the property is to he, or may be, given by an execution of the power, are designated with sufficient certainty. There is then a trust in their favor.

In reply to the objections arising from the unlimited right of selection, and the absence of recommendatory or precatory words, his lordship observed, that it was shown by the cases to which he had referred, (Harding v. Glynn, Brown v. Higgs; and Witts v. Bodington, 1 Atk. 469, stated more fully from the register’s book, 5 Ves. 501.) that when there is a general intention in favor of a class, and a particular intention in favor oí individuals of that class to be selected by the donee of the power, and the particular intention fails from that selection not being made, the court will cany into effect the general intention in favor of the class. In every such case, the power is so given as to make it the duty of the donee to execute it, and the court will not permit the objects of the power to suffer by his negligence in its execution, but fastens a trust upon the property for their benefit. And after a careful analysis of the opinions of the master of the rolls, and of Lord Eldon, in Brown v. Higgs, his lordship arrived at the conclusion, that the general intention of the donor of the power to gire to a class, is in all cases sufficiently proven, when an authority and power are confided of selection and distribution; thus plainly saying, that words of mere authority have the same efficacy in creating a trust, as a positive direction. The words, in their ordinary acceptation, may be discretionary, but in a court of equity are mandatory. Connect together the several propositions, in the opinion of Lord Oottenham, and they will be found to correspond exactly with the provisions of the revised statutes, that a power is always a trust, when a disposition is limited to be made to a class; and that if it is accompanied by a right of selection, and remains unexecuted, its execution must be decreed in equity, for the benefit equally of all who are its objects.

It was true, as was argued by the learned counsel for the present defendants, that in Burrough v. Philcox, the lord chancellor referred to other expressions in the will of the testator, which he regarded as imperative, but it is certain that he referred to them only as fortifying the conclusions on which he had before rested, and not as necessary grounds of his decision. Had no such expressions or provisions been found in the will, he would have pronounced the same decree.

Upon the authorities, and for the reasons that have now been stated, we are clearly of opinion that the power in the will of the testator, Francis Dominick, created a trust which we are bound to enforce, and had there been no previous cases upon the subject, a just regard to the intention of the testator would have led us to the same conclusion. A power, when the disposition which it authorizes is limited to a particular class, unless its execution is made in terms to depend upon the mere discretion of the grantee, always creates a reasonable presumption that the grantor means that it shall be executed, and his intention thus ascertained, a court of equity is bound to effectuate by construing the power as imperative.

It remains, then, only to inquire how and in whose favor the trust we have declared is to be executed. Its objects are the “ male descendants, bearing the name of Dominick, of the family of the testator.” The word family” is exceedingly vague and indefinite; so much so, that upon the sole ground of the uncer-taintv of its application, Lord Tliurlow, in Harland v. Trigg, 2 Bro. Ch. Ca. 142, refused to decree the execution of a power as a trust; but his decision is not very consistent with subsequent cases, and it may now be considered as settled, that it is the duty of the court to give, if possible, a definite meaning to the ambiguous term “ family,” by a reference to the context of the will, and to the relative situation of the testator. Thus, where the trust related to real estate, the family of the testator was held by Lord Eldon to mean the heirs at law. (Wright v. Atkins.) In Grant v. Lyman, where the trust was of personal property, and the testator died without children, it was confined to his next of kin. In MacLerath v. Bacon, (5 Ves. 159,) a power of appointment for the benefit of a married woman and her family, was construed, upon the whole will, to include her husband, and an appointment in his favor was, therefore, sustained; and in Barnes v. Vatch, (8 Ves. 604,) a disposition in favor of the families, of certain persons named in the will, was restricted to their children, exclusive of the parents. We agree with the counsel on both sides, that it is proper to adopt this restricted interpretation in the present case, and therefore hold, that by the “ family” of the testator, his children only are meant. In construing the power, the children are to be considered as the stock of descent, and their male descendants bearing the surname of Dominick, the objects of the trust.

In England, it is settled by several decisions, that where a power is given to distribute- personal property among the relations of the testator, with a right of selection, although the donee may execute the power in favor of any relative, however distant, of the testator, yet if its execution devolves as a trust upon a court of equity, it will be confined to the next of ldn entitled to take under the statute. (Harding v. Glynn, Grant v. Lyman, before cited; Cole v. Wade, 16 Ves. 27; Mason v. Savage, 1 Scho. & Lef. 112.) And it occurred to us upon the hearing, that governed by analogy, it might become our duty to declare, that only those male descendants are entitled, who at the death of the donee of the power were competent to take under the statute of descents, and that in fixing their relative shares, they must he held to take stirpes and not per capita, but upon further consideration we are satisfied that the reasons which led to the adoption of the rule in respect to relations, have no application, to the present case, and that the supposed analogy does not exist. The execution, as a trust, of a power to distribute among relations, if the term were held to include all related by blood to the testator, would be impracticable. There are no means by which the persons so entitled can be ascertained, and the gift would he void for uncertainty. (2 Bro. Ch. Ca. 127; 4 Russ. 272.) But, as Lord Thurlow has observed, there is no such hazard, when the power is limited in its execution to the descendants of a testator, or of any other living person. The persons constituting the class may then, without difficulty, be ascertained, and the number will usually be less than of the next of kin of a person dying without children. (2 Bro. Ch. Ca. 281.) We therefore decide that all the male descendants of the children of the testator, bearing the name of Dominick, who were living at the death of his daughter Margaret, were entitled, as objects of his trust, to equal shares as tenants in common. We have found only three cases in which a disposition under a power was limited to be made to a class of descendants eo nomine, and in each of these, it appears to have been held that the persons forming the class were entitled to take per capita and not per stirpes. (Pierson v. Garnett, Parsons v. Barber, before cited; Crosby v. Clare, Amb. 397.) The names of all the persons who are entitled, under the construction of the trust which we have adopted, are set forth in the pleadings, and it is alleged that all are now before us as parties in the suit; but when the rights of a class are concerned, it is the invariable practice of the court to ascertain by an express inquiry, who, as belonging to the class, are the persons entitled.

There must, therefore, be a reference to a suitable person to ascertain and report what male descendants of the children of the testator, bearing the name of Dominick, were living at the death of his daughter Margaret, and are now living; and if any then living have died, who are entitled as their heirs or devisees ; and the same reference must also take a proper account of the rents and profits received or accrued since the death of Margaret. All further directions are reserved until the coming in of his report.

We add a single remark in conclusion. It may be thought that we have bestowed unnecessary pains upon the consideration of a question which, owing to the provisions of the revised statutes, it is not probable will again become a subject of legal discussion. But in truth, there are various provisions in the article of Powers in the revised statutes, upon the construction and application of which the observations that have been made, and the authorities that have been cited, may be found hereafter to have a material bearing.


source: Caselaw Access Project

author: MasoN, 3.-

license: Public Domain

text:
    Franklin and others v. Pendleton and others.
    In a suit on a bond, executed to obtain the discharge of a vessel, under the act for attaching ships and vessels, the defendants cannot set up irregularities or defects in the affidavit of the obligee upon which ho became an attaching creditor. The question is not on the sufficiency of the affidavit, but on the validity of the claim and its existence as a lien.
    It is no objection to such a bond, that the condition is, to pay all such claims as have been exhibited, and which shall be established to have been subsisting liens ; omitting the words “ at the time of exhibiting the same respectively,” contained in the statutory provision for the bond.
    Such a bond, is not taken by the officer, colore officii, it not being to himself, or for his own interest or protection.
    It is not necessary that such a bond should appear on its face to have been taken by or before the officer who issued the attachment.
    An old steamboat, of three hundred and forty tons, was fitted up for a theatre, and uéed as such, at different river ports. Alter being thus fitted a new enrolment was taken out. Held, that she was liable to process under the act for the attachment of ships and vessels, in favor of one who furnished materials for repairing, fitting, and equipping her, although a part of the same were used for the fining up of the theatre, as distinguished from, the hull.
    The recital in the bond of the issuing of the attachment, is sufficient evidence of that fact in an action against the obligors.
    (Before Deer, Mason, and Campbell, J.J.)
    March 14;
    April 20, 1850.
    Case subject to the opinion of the court. The cause was transferred from the supreme court, where it was tried before EdmoNds, circuit judge, in March, 1847. The action was debt, on a bond executed by the defendants in June, 1845, to the plaintiffs, on the attachment of the steamboat Virginia, by them under the statute. The suit was prosecuted for the benefit of the plaintiff, G. H. Franklin, whose demand against the, vessel was for materials furnished to one Driggs, at his request, as “ master, owner, or agent,” towards the repairing, fitting, furnishing, or equipping the vessel. At the trial, Franklin’s application to the- circuit judge, to become an attaching creditor, was produced, which stated the materials to have been furnished to the steamboat, the items being annexed; and the affidavit of the witness attached, stated that the debt was “for materials furnished to the said steamboat, to and for the use of the said vessel, at the port of New York.”
    The bond executed by Pendleton as owner, and the other defendants as sureties, recited the seizure of the steamboat or vessel, by virtue of a warrant issued on the application of some of the obligees; and its condition was, to “ pay the amount of all such claims and demands as have been exhibited, which shall be established to have been subsisting liens upon the said vessel, pursuant to the provisions of the eighth chapter of the third part of the revised statutes.”
    The defendants proved, that previous to Franklin’s dealing with the steamboat, she had been used as a planing mill at different wharves on the North river, and was then turned into a theatre, having one tier of boxes, a pit, a stage, and a saloon for refreshments. She was fitting for this purpose when Franklin’s materials were supplied, viz. in January, February, and March, 1845, and F. knew that such was the object of the repairs and refitment. That in January, 1845, the owner chartered the steamboat to Driggs and others for three years, to be converted into and used as a theatre, with the privilege of purchasing her at $4500. The materials used, were in part upon the hull and in part were for the fittings of the theatre.
    The plaintiffs proved that the steamboat was enrolled in New York, April 23, 1845, W. S. Pendleton owner, and Driggs, master. Previously, she had been enrolled in Philadelphia. Was built in Baltimore in 1887 ; ber tonnage 340 tons. They also proved that about the first of June, 1845, she was at Troy, at the dock. Soon after she was on the ways at the dry dock in New York. The owner at that time resided in Philadelphia. The enrolment stated Driggs to have become the master on the 1st of April, 1845, and that Pendleton was the previous master.

      JE. C. Benedict, for the plaintiffs.
    _ZY JB. Blunt, for the defendants.
   By the Comer.

MasoN, 3.-

The right of the plaintiff to recover in this cause is denied principally on three grounds.

I. It is alleged that the affidavit of the plaintiff, as an attaching creditor, presented to the judge who issued the warrant, is defective — that it does not state whether Driggs, at whose request the articles were furnished, was master, owner or consignee, but only that he was one or the other — that the articles are stated to have been furnished for the use of the vessel, and not for or towards the building, equipping or repairing &c., as required by the act; and that the facts and circumstance establishing the demand are not set forth.

It might be a sufficient answer to these objections, to say th&t they should have been presented to the officer before whom the bond was taken, on a motion to discharge the vessel from the claim of this plaintiff, and that the voluntary execution of the bond is a waiver of the alleged defect, and an admission that the plaintiff had complied with the requisites of the statute, so as to entitle him to the benefit of the bond.

But there is another and conclusive answer, and that is that the suit is now on the bond, which is executed in favor of the plaintiff, and is conditioned to pay all such claims as shall have been exhibited, which, shall be established to have been subsisting liens on the vessel. That a claim was exhibited by this plaintiff is evidenced by the execution of the bond in his favor— and the only questions now are, what was the nature and amount of .the claim, and was it a subsisting lien.

Admitting the affidavit to have been defective as alleged, the question now is not on the sufficiency of the affidavit, but on the validity of the claim — and the plaintiff is not by reason of defects in the affidavit excused from any proofs, nor are the defendants shut out from any defence, affecting the merits of the action. The affidavit is a mere preliminary proceeding, and is rendered unimportant by the giving of the bond.

II. It is said that the bond is void on its face — that it is a bond taken colore officii — and is wanting in the essential requisites of the statutory bond which is required to be conditioned for the payment of all such claims as shall have been exhibited, and which shall be established to have been subsisting liens at the time of exhibiting the same respectively, whereas the condition of the bond in question omits entirely all after the word “ Liens.”

The case of Ring v. Gibbs, (26 Wend. 502,) completely answers this objection. In the bond in that case, the same words were omitted as in the bond before us, and also the words, “ as shall have been exhibited,” thus making it conditional, as was contended by the counsel, for the payment of all demands which should be established to have been subsisting liens at any time, whether the same had been exhibited to the officer or not. But the court of errors unanimously held that it was not a bond taken colore officii, for though taken by tke officer who issued the warrant, it was not a bond to himself, but was executed to and for the benefit of the parties suing out the warrant; and that the variance of the condition from the terms of the statute did not render the bond void.

Another objection was, that it did not appear by the recitals, that the bond was taken before the officer who issued the warrant. But the statute does not require that fact to be inserted in the bond or in any recital to it. Besides, it was voluntarily executed by the obligors, without notice to the plaintiff, and has accomplished, as the defendant intended it should, the release of the vessel. It would, therefore, be the height of injustice, to allow the defendants to avoid a security thus voluntarily given by themselves, and which the plaintiff is bound to accept, on the ground of technical defects or informalities, which they themselves have committed. Tliey cannot get rid of their obligations by setting up their own negligence or fraud.

III. The third objection is, that the steamboat Virginia was not a vessel, within the meaning of the statute.

She was a vessel of the burthen of three hundred tons and upwards, was enrolled and licensed for the coasting trade, and therefore a vessel of the description to which it has been expressly held that the act applies, (Walker v. Blackwell, 1 Wend. 557; Marcy v. Noyes, 5 Hill 35.)

The fact that she had a theatre erected on her deck did not render her less a vessel, or in any manner alter her character. She was to be employed, and was employed, in sailing from port to port, with the view of being profitable to her owners by theatrical exhibitions, instead of the usual mode of carrying freight or passengers; but she was as much a vessel, within the meaning of the act, when employed in the former as in the latter mode. The articles furnished by the plaintiff were ordered for the “ Steamboat Virginia,” and were charged to the “ Steamboat Virginia and the owners,” they were articles necessarily used in the repairing, fitting, furnishing or equipping the vessel, and the plaintiff" is not responsible for the misapplication of any of them by the defendants to other purposes. It is proved, however, that the greater part of them were actually used upon the vessel, as distinguished from the theatrS.

As to the objection that the plaintiff did not prove the relation in which Driggs stood, whether owner, master or agent, we are of opinion that there was sufficient evidence on that point to go to the jury, and that the non-suit prayed for on that ground was properly refused. Die authority of Driggs, as master or agent, was however afterwards clearly proved by himself when he was called as a witness for the defendant.

The same remark applies to several other exceptions taken to the ruling of the judge — such as the admission of proof of Driggs’s signature to the order for the articles furnished by the plaintiffs, and the refusal of the j udge to nonsuit for want of sufficient evidence. Even if his decisions were in these respects erroneous, the objections were afterwards obviated by further testimony.

The defendants also excepted to the decision of the judge allowing the bond to be read in evidence, and also to proof of the items of the plaintiff’s claim without previous proof of the preliminary proceedings on issuing the attachment, so as to show that the officer granting the warrant had jurisdiction. The obvious answer to this is, that the bond itself admitted in terms the issuing of the attachment, and is against these defendants conclusive evidence of the jurisdiction of the officer and of the regularity of those proceedings.

We think that none of the objections of the defendants were well taken, and that the plaintiff is entitled to judgment on Ms verdict.

Judgment for the plaintiff.


author: Dues, J.

text:
    Raney and Cheney v. Weed and others.
    The relation of principal and agent, is a voluntary relation, springing from a contract, to which the consent of the parties is essential.
    A public officer, not appointed or selected by the party whose process he executes, is not, by the receipt of such process, made the agent of the party.
    The parly is not responsible, on the footing of principal and agent, for the act3 of the officer, unless where special directions are given and followed.
    A sheriff or marshal, to whom an execution against property is delivered to be served, does not thereby become the agent of the plaintiff in the full legal sense of the term.
    A plaintiff is not liable to the publisher of a newspaper, for an advertisement of the sale of land, made by the sheriff or marshal, under the plaintiff’s execution ; where neither he nor his attorney employed the publisher, nor gave any special directions on the subject.
    There is no such privity of contract or of law, between the plaintiff in the execution and the publisher of the newspaper, as to render the former personally responsible for the publisher’s bill for advertising.
    (Before Duer, Mason, and Campbell, J.J.)
    April 5;
    April 20, 1850.
    Motion to set aside the report of a referee, in an action of assumpsit, transferred from the supreme court. The declaration was for work, labor, services, and materials. At the trial, it appeared that the defendants in this suit recovered a judgment in the circuit court of the United States, in the district of Michigan, against one Henry Acker, upon which an execution was issued to the marshal of that district. The execution went into the hands of a deputy marshal, who, by virtue of it, advertised Acker’s lands for sale in a newspaper published by the plaintiffs in the state of Michigan. The sale was postponed from time to time by the deputy marshal, and the notice of the sale was continued in the plaintiffs’ newspaper for nearly eighteen months.
    It was not proved that the now defendants had anything to do with the publication or the employment of the plaintiffs ; or that’ their attorney interfered in the matter, beyond issuing the execution, and directing the marshal to levy upon Acker’s real estate. The referee reported in favor of the plaintiffs for the sum of five hundred and ten dollars.

      11 A. Weed and D. I). Field, for the defendants.

      T. II. Rodman and A. Mann, Jr., for the plaintiffs.
   By the Couet.

Dues, J.

This is a motion to set aside a report of a referee, as contrary to law and evidence.

The action is brought by the plaintiffs, as the printers and publishers of a newspaper in the state of Michigan, to recover the amount of their bill for printing an advertisement of the sale of real estate, under an execution which was issued from the circuit court of the United States for that district, upon a judgment recovered in that court, by the present defendants. The plaintiffs were employed and authorized to publish the advertisement, and to continue its publication with notices of the postponement of sale from week to week, for a period of nearly eighteen months, by the deputy marshal, in whose hands the execution had been placed for collection, and it is insisted that this employment created such a privity between the plaintiffs and defendants, as entitles the former to maintain this action. The referee, adopting this view of the case, has reported that there is due to the plaintiffs, the sum of five hundred and ten dollars, which is the amount of their bill exclusive of interest.

Upon the hearing, various objections to the report, arising upon the facts as well as upon the law, were forcibly urged by the counsel for the defendants, but the only question we have found it necessary to consider, and shall determine, is the main question of law, upon which the right of the plaintiffs to recover at all, depends, namely, whether there exists such a privity of contract or of law, between them and the defendants, as can render the latter personally liable.

In considering this question, we dismiss at once the allegation that the deputy marshal who employed the plaintiffs, is to be regarded as the immediate agent of the defendants, and was rendered so by the special instructions given to him by the attorney for the defendants, in relation to the publication and continuance of the advertisement. We dismiss the allegation, not as unsound in law, but as unsupported by the evidence. The testimony of the deputy marshal in regard to his instructions, is exceedingly vague, and standing alone, would be inconclusive, and the inference that has been drawn from his testimony, is positively contradicted and shown to be groundless, by the evidence of the attorney and of the marshal himself. We cannot believe, and shall not intend, that the referee founded his report upon the truth of an allegation which is destitute of a semblance of adequate proof. We must consider the act of the deputy as the act of the marshal, and as an act performed by him, not under special directions from the defendants or their attorney, but in the discharge of a duty which the law imposed upon him.

In our judgment, therefore, the liability of the defendants depends solely upon the proper answer to be given to the general question, whether the plaintiff in an execution is directly and personally responsible upon every contract which the marshal or sheriff, to whom the execution lias been delivered, may find it necessary or convenient to make, in order to render the process effectual?

We harm searched in vain for any direct authorities in support of the affirmative of this proposition, and certainly none such have been produced or referred to by the counsel for the plaintiffs. We think it may be very safely averred, that no adjudged case resting upon this principle, is to be found in the English reports or in our own. The mere novelty of an action, it is true, is not conclusive to prove that it is not maintainable, since cases have frequently arisen, and may still bo expected to arise, in which, although no precedents are found, it may be demonstrated that the-remedy which is sought, ought not to be, and without a violation of principle cannot be denied ; but it must be borne in mind that it is only by such a demonstration, that the strong presumption, which arises from the total absence of precedents, can be overcome.

The argument that has been relied on in this case as supplying this demonstration maybe stated in a few svords. It is said that a marshal or sheriff, to whom a fi. fa. or other process has been delivered, becomes by the very act of its delivery the agent of the plaintiff in whose favor it is issued. When the plaintiff is known to the person with whom the officer deals in the course of his employment, the presumption that an exclusive credit is given to the officer may perhaps be admitted ; but vdien the plaintiff, as in the present case, is unknown, this presumption is repelled, and the general rule of law then applies, that an unknown principal when discovered, is directly and personally liable, upon every contract made by his agent within the scope or limits of Ins agency.

The links in this chain of reasoning are perfectly connected, and if the truth of the premises is admitted, that of the conclusion cannot be denied ; but if we do not greatly err, the argument fails in its foundation, and assumes the very position that was necessary to be proved. It assumes, that the relation of principal and agent subsists between the officer and the suitor, and this assumption, we apprehend, is not merely gratuitous, but is inconsistent with the nature of the relation which it supposes to exist.

We have always understood, and until better instructed, must continue to believe, that the relation of principal and agent, is in all cases a voluntary relation, springing from a contract, to which, as to all other contracts, the consent of the parties is essential. It is described and treated as a purely voluntary relation by all the text waiters, by Palev, by Livermore, and by Judge Story, -whose treatise upon the subject, although one of the earliest, is perhaps the most complete and accurate of his numerous publications. As all these writers explain the relation, it is from the principal, and from the principal alone, that the agent derives his authority. It is the will of his principal that fixes the limits of his authority, regulates its exercise and determines its existence. The principal appoints, directs, controls, removes him. It is plain that these observations cannot be applied to the relation between the marshal or sheriff, and the suitors, who in the prosecution of their legal rights are constrained to employ him. As they have not the power of selection nor he the liberty of refusal, it cannot be said that this relation flows from the will of the parties. It is the creation of the law, not the result of a contract. He is a public officer, who, when be acts for individuals, acts, not by virtue of their choice or of his own agreement, but in discharge of a positive, independent duty. He is appointed by the government, or elected by the people, is removable only by the appointing power or by process of law, and unless where special instructions are given to him, it is the law, and the law alone, that defines his authority and prescribes bis duties, and controls him in their discharge. When special directions are given to him, the plaintiff is, doubtless, responsible for his acts, so far as the directions are followed, and in such cases the officer, within a limited sphere and in a restricted sense of the term, becomes the agent of the suitor; but setting aside these exceptional cases, the assertion that they are connected by the relation of principal and agent, is not simply gratuitous, but as the observations we propose to make we think will evince, is repugnant to established principles, and is contradicted by the authorities.

If this relation exists, it must exist with all its legal consequences, for no reason has been, nor, we think, can be given for the exclusion of any. If this relation exists, the general rights, duties and responsibilities of the parties, must be the same that are admitted to flow from it in other cases. Hence, if the plaintiff in an execution, as the principal, is liable on every contract made by the officer, with a view to the execution of the process, as principal, he must be just as liable to third parties for the misconduct and the negligence of the officer, his torts and his omissions in the course of the same employment. This consequence is inevitable, if the employment of the officer to execute the process, constitutes an agency in the ordinary and legal sense of the term, (Story on Agency, §§ 308 and 452, and the cases there cited ;) and according to Judge Story, this liability attaches, even where the principal, so far from having authorized, justified or participated, in the wrongful acts of the agent, has disapproved of and condemned them. If, therefore, a marshal or sheriff seize and sell the goods of A, under an execution against B, the plaintiff, as his principal, must be immediately liable to the owner in an action of trespass or trover, although the proceeds of the sale not having been paid to him, he has derived no benefit from the act, and it is clearly proved, neither directed nor in any manner assented to its performance, but on the contrary, as soon as it came to his knowledge, condemned and rejected it.

Nor can the responsibility of the plaintiff as principal be confined within these limits; he is just as liable for the acts and proceedings of every sub-agent, whom the marshal or deputy-may choose to employ, that is of every deputy into whose hands the execution may be passed. A privity exists between a subordinate agent and the principal in all cases, where the consent of the principal, to his employment, is expressed or implied, and the law implies this consent in every case where the employment is rendered necessary by the nature of the agency, or is justified by a general usage. (Story, §§ 387, 201, 217 a.) Upon both these grounds, if a plaintiff, whose execution has been delivered to the sheriff, is to be regarded as a principal, his consent to the employment of a deputy in the service of a process, must be implied, and a reciprocal liability is the necessary consequence of the privity which is thus created. He must be personally bound to compensate the sub-agent for Ms services, and the sub-agent is directly liable to him for any breach of duty in the course of his employment; nor is this all, where a sub-agent is employed with the consent of the principal, the responsibility of the original agent, except as to third parties, wholly ceases, (Story, 217 a, 313, 201.) Hence, if an under or deputy sheriff, embezzles or refuses to pay over the moneys which lie has collected upon an execution, he is not only personally liable to the plaintiff, but the sheriff is not liable at all. Considered as an agent of the plaintiff, the sheriff lias discharged the whole duty which the law imposed upon him, and no action can be maintained against him.

It is sufficient to have stated these propositions, and it is needless to cite authorities to show that they are just as contrary to law, as to an unprejudiced mind they must appear to be, to reason and justice. It is settled by numerous decisions that the sheriff is responsible, and is alone responsible, for the acts of his subordinate officers, and that as against them no action founded upon a breach of duty can be maintained, except by the sheriff himself. They are not liable either to third parties, or to the suitors in whose immediate service they may be acting. (Morse v. Slue, 1 Ventris 238; Cameron v. Reynolds, Cowper 403; McIntyre v. Trumbull, 7 John. 35, 36, note; Tuttle v. Love, 7 Ibid. 471; Paddock v. Cameron, 8 Cow. 212; Walden v. Davison, 15 Wend. 575 ; Colvin v. Holbrook, 2 Comst. 126; Paley on Agency, 396; Story, § 310.) It is true that in Tuttle v. Love, an undersheriff was held to be liable to the plaintiff for moneys collected upon an execution, but it was upon an express promise of the defendant that the court placed its decision, admitting in the plainest terms, that had no such promise been proved the action could not have been sustained. In all the cases that have been cited, to which many might be added, the sole ground of the decision is, that subordinate officers, as the known agents of the sheriff, are accountable to him alone as their principal, and consequently that no privity exists between them and the-suitors or other persons to whom the sheriff may be responsible. They are decisions, therefore, which could not have been made, had the sheriff been considered as the original and primary agent, for upon this supposition, the privity, which is denied, must have arisen.

We do not deny, but on the contrary distinctly admit, that in every civil suit in which the sheriff is employed, a privity, and therefore a mutual liability, does exist between him and the plaintiff, but it is a privity which the law, and not the consent of the parties, creates and defines.

It does not flow from the ordinary relation of principal and agent, nor is it governed by the rules upon which the rights and liabilities of the parties in that relation usually depend. There is, indeed, a partial analogy, by which the counsel for the plaintiff and the referee have probably been misled, but the analogy fails in the material circumstances upon which the liability of a principal for the acts of his agent is reasonably founded. It is perfectly just, that he, who employs an agent, should be responsible for the acts, within the scope of his authority, of the person whom he selects, trusts and controls; but it is not just that any person should be responsible for the acts of a public officer, whom, without regard to his own wishes, the law commands, and unless he choose to abandon, his rights, compels him to employ.

It is not just that he should be liable for the acts of a person whom he does not select, may not trust, and has no power to remove. So far as by special instructions he controls his discretion, and so far as he participates in the wrongful acts of the officer, lie is justly liable, and no further.

The remarks that have been made lead us necessarily to the conclusion that the referee has erred in founding his report upon the supposition of an existing privity between the parties, which, entitles the plaintiffs to maintain this action; he has erred in deciding that the defendants were in any sense parties to the contract upon which, the claim of the plaintiffs is founded. It is, therefore, impossible for us to confirm his report. We have purposely abstained from any remarks upon the nature of the plaintiffs’ demands, since we desire it to be understood, as is the fact, that the special circumstances of the ease have had no influence upon our decision. The demand of the plaintiffs, extravagant as the amount seems, and unusual as it certainly is, may be perfectly reasonable and just as against the marshal or his deputy ; and if so, it is against them, or one of them, that the plaintiffs must seek their remedy. They have no right to call upon the defendants, who, as to them, are strangers.

The report must be set aside, with costs to abide the event, and the order for a reference must also be vacated, since, as the ease now appears, it is manifestly proper that it should proceed to a trial in the ordinary way. If upon the trial no other evidence shall be adduced than the report contains, the judge, if our opinion shall be followed, will either nonsuit the plaintiffs, or direct a verdict for the defendants ; and if we have erred, the plaintiffs will then have the opportunity of correcting the error, by an appeal to a higher tribunal.


author: MasoN, J.

text:
    Kipp & Brown v. Wiles.
    Where an executory contract for the sale of merchandise is broken by the failure of the vendor to deliver according to its terms, the measure of damages is the difference between the contract price and the market value of the article at the time stipulated for its delivery.
    The defendant, in October, 1845, made a contract to deliver to the plaintiff a load of oats, “ on or about the first of November next!’ In an action to recover damages for the non-delivery of the oats, held that the measure of damages was the difference between the contract price and the market value of the oats within a reasonable time after the first of November.
    What is a reasonable time, in such a ease, is a question of fact for the jury to deter» mine, taking into consideration all the circumstances of the case.
    It is no answer to an action to recover damages fora breach of a contract for the sale of goods, that the plaintiffs were informed by a person professing to act as the defendant’s attorney, that the defendant did not intend fulfilling the same.
    (Before Dues, Mason, and Campbell, J.J.)
    April 4;
    April 20, 1850.
    This was an action of assumpsit, brought to recover damages for the breach of a contract made by the defendant, for the delivery of a quantity of oats to the plaintiffs in the city of New York.
    The cause came on for trial before the Hon. Jons W. Ei> MOND8, circuit judge, on the 26th day of April, 1847.
    Upon the trial, the contract was read in evidence as follows :
    “ Memorandum or agreement made between John J. Wiles, of Oanajoharie, Montgomery co., of the first part, and Solomon Kipp and Abraham Brown, of the second part:
    “ The party of the first part agrees to deliver in the city of New York, at the foot of Twenty-sixth street, North river, two canal-boat loads of good Northern Jefferson county oafs, of this year’s growth, containing about 7,000 bushels, more or less; one load now on the Erie Canal, and the other load to he delivered on or about the first of November next; for which, the party of the second part agrees to pay the party of the first part forty-one cents per bushel as fast as delivered.
    “ Syracuse, 8th Oct., 1845.
    “ JOHN J. WILES,
    “ By David Wiles.”
    The authority of David Wiles to execute the contract, and the failure of the defendant to deliver any part of the oats, was proved by evidence sufficient presumptively to establish the plaintiff’s case.
    The evidence as to the price of oats during the months of October and November, 1845, was somewhat variant. According to the witnesses, the price between the 1st of November and the 1st of December, ranged from 48 to 52 and 53 cents per bushel. On the 12th of November, the plaintiffs purchased a quantity at 511 to 52 cents. From the 18th October to the 25th, the price ranged from 41 to 43 cents.
    The defendant gave some evidence to show that before November, lie notified the plaintiffs, that he would not fulfil the contract.
    The judge charged the jury, “ that the whole merits of the case depended upon the question whether David Wiles had authority to make the contract referred to, and that if he had, the plaintiffs were entitled to recover ; that as to the amount of damages, if the jury found for the plaintiffs, the rule of damages was not that claimed by the plaintiffs’ counsel, the price which the plaintiffs had to pay for other oats to replace those mentioned in the contract, or the highest price antecedent to the commencement of the suit; but that they were restricted to the price of the oats at the time they were to have been delivered, viz. to allow a reasonable time for the delivery of the first load, and the first day of November for the second.”
    To the latter part of the judge’s charge, the plaintiffs’ counsel excepted, and requested the court to charge that the plaintiffs were entitled to the price oats brought a reasonable time after the 1st of November, 1845, inasmuch as they would have been bound to have accepted a delivery for several days subsequent to the first of November. The judge refused so to charge, and the plaintiffs’ counsel excepted.
    The jury gave a verdict for the plaintiffs, for six cents damages; and the plaintiffs moved for a new trial in this court, to which the cause was transferred.

      A. L, Jordan, for the plaintiffs.

      J. E. Gary, for the defendant.
   By the Court.

MasoN, J.

This case came up on a bill of exceptions taken by the plaintiffs. The defendant had entered into a written contract to deliver to the plaintiffs two boat loads of oats, containing about seven thousand bushels, more or less, one load represented to be at that time on the Erie canal, and the other load to be delivered about the first of November then next, for which the plaintiffs agreed to pay forty-one cents per bushel as soon as delivered. The defendant failed entirely in the delivery, and the judge charged the jury that the plaintiffs were restricted in their recovery to the price of the oats at the time the two loads were respectively to have been delivered, viz. a reasonable time after the contract for the first load, and the first day of November for the second. To the latter part of this charge, to wit, that the plaintiffs were restricted as to the last load, to the price on the first of November, the plaintiffs’ counsel excepted. They also requested the judge to charge that the plaintiffs were entitled to the price oats brought a reasonable time after the first of November, inasmuch as they would have been bound to have accepted a delivery for several days after that clay. The judge refused so to charge, and the plaintiffs’ counsel excepted.

We are of opinion that the learned judge erred in restricting the jury to the price of the oats on the 1st of November. The words “ on or about” the first of November, in the contract, show that the defendant did not intend to bind himself to a strict compliance on that day. He might have delivered a few days previously, and the plaintiffs would have been forced to take the oats and pay for them. The same obligation would have rested on them, if the oats had been delivered shortly after that day. It must have been a reasonable time after, but to insist on the defendant’s performing on that precise day and no other, when lie had refused to bind himself to that day, would be at variance both with the letter and spirit of the contract.

What would have been a reasonable time was a question for the jury, taking into consideration all the circumstances of the case, (Ellis v. Thompson, 3 Mees. & Wels. 445.) But until that reasonable time liad elapsed, the plaintiffs would have been bound to take the oats if tendered, and they are consequently entitled to recover upon the defendant’s failure to deliver, the difference between the contract price and the market price on the last day they would have been bound to receive them. (Davis v. Shields, 24 Wend. 322.)

It is no answer to say that the plaintiffs were informed by a letter from George Smith, whose authority to act in the matter does not appear, that the defendant did not intend to fulfil, and, therefore, they might have purchased elsewhere, without reference to the contract. The jury, however, have found, that notwithstanding that letter, the defendant was bound to perform. He might therefore, as the plaintiffs had not released him, still have made up his mind to make the deliveries ; and it is by no means certain that the plaintiff's would not have been bound to receive the whole quantity, if tendered on or about the 1st of November.

We cannot, trader this bill of exceptions, inquire into the authority of David Wiles to make this contract for his father. That was a question of fact on which the jury have passed. On a new trial the defendant will of course be at liberty to submit the question anew.

The exception to the charge of the judge was well taken, and a new trial must be granted. Costs to abide the event.


author: Campbell, J.

text:
    Ladd v. Moore.
    As a general rule, a party who wishes to disaffirm a contract, is bound to return whatever he has received upon it. But this is upon the condition, that such party shall thus restore himself to his own original position.
    There are cases where the omission to return may bo excusable, in point of law.
    The defendant obtained from the plaintiff merchandise under fraudulent representations, paying part of the price in cash, and giving his note for the balance. At the maturity of the note, the defendant could not be found, upon inquiry, at his last place of residence. Held, that an action of trover would lie for the goods, without a tender of the money or note; and that it was sufficient if the note were produced and tendered at the trial .

    Where the original taking was tortious, trover will lie without a demand and refusal.
    (Before Dyer, Mason, and Campbell, J.J.)
    March 15;
    April 20, 1851.
    Tins was an action of trover, brought to recover a quantity of silver ware, alleged to have been obtained by the defendant from the plaintiff under fraudulent statements, as to his pecuniary condition. The cause was tried before the Hon. Selah B. Strong, one of the justices of the supreme court, on the 19th day of February, 1848. Upon the trial, it appeared that the plaintiff was a dealer in jewelry in the city of New York; that in the spring of 1845, the defendant, who was keeping a hotel in the city, called upon him to purchase silver ware, consisting of table and tea spoons; and made various statements and representations as to his situation, property, and debts, which induced the plaintiff to sell him goods to the amount of $480, taking therefor two hundred dollars in cash, and his note at sixty days for the balance. It was then proved, that the statements so made were untrue, and the defendant must, have known their falsity at the time.
    The note was not paid. Before it fell due the property in the hotel was sold under a mortgage. A clerk of the plaintiff, on the day of the maturity of the note, made inquiries for the defendant at the hotel, but was unable to learn anything of him. The defendant’» counsel mooed for a nonsuit, on the ground that there was no proof of any return of, or offer to return, the money paid, or the note given on the purchase of the property, which motion was denied.
    The court charged the jury, that it was a rule of law, that a party seeking to rescind a contract, and bringing trover for the property sold, must, before commencing his suit, restore, or offer to restore, whatever he had received, if the purchaser was accessible ; that the question in this case was, whether proper exertions had been made to find the defendant, that such inquiry liad been made at the hotel, which seemed the proper place to find him, and that nothing could be learned of him ; that the delivery of process to the officer for service was a mere experiment, to ascertain whether he could find the defendant to serve process upon him, and it was unnecessary to deliver the note with such process, in order that it might be tendered.
    The defendant’s counsel excepted to the refusal to nonsuit, and to the charge. He requested the court to charge that the jury must find, that the inquiries made for the defendant, were made with the intention and purpose of tendering back the money, or such inquiries could not avail as an offer to restore, which the court refused, but said, that if diligent inquiry had in fact been made for the defendant, at the instance of the plaintiff, it was all that was required.
    The defendant's counsel further requested the court to charge, that the delivery of the process to the officers for service was not the commencement of a suit, which, could be commenced by actual service of process only, and that in such case it was incumbent on the plaintiff’ to accompany his process with an offer to restore the money received, which the court refused to charge, and the defendant’s counsel excepted.
    The defendant’s counsel further requested the court to charge that, if the neglect to restore or tender the money was on account of the defendant’s being inaccessible, in such case it wms necessary to do so at the trial. The plaintiff’s counsel thereupon tendered the note to the counsel for the defendant.

      The jury found a verdict for the plaintiff, for $335 60.
    The cause was transferred from the supreme court, and the defendant moved for a new trial.
    fV. B. Blunt, for the plaintiff.

      8. P. Nash, for the defendant.

         See Nellis v. Bradley, 1 Sand. 560»

   By the'Cocet.

Campbell, J.

The defendant, in April, 1845, purchased from the plaintiff, silver ware to the amount of four hundred and eighty dollars, paying in cash two hundred dollars, and giving his note at sixty days for the remaining two hundred and eighty dollars. The plaintiff, subsequent to the sale-, learned that the defendant had procured the goods upon fraudulent misrepresentations ; that, at the time of the purchase, he stated that he was not in debt, and was in a good business, whereas he was greatly embarrassed, and his property covered by chattel mortgages. and subject to heavy judgments, lie commenced this action in trover. The testimony showed, that before the commencement of the suit, search was made for the defendant, but he could not be found. On the trial of the cause, the plaintiff produced and tendered the note, but did not offer to return the two hundred dollars received in cash. The judge instructed the jury, that the plaintiff had done all that was required of him in seeking for the defendant, and the jury found a verdict for the plaintiff, for $335 60, being the balance of the original bill and interest, after deducting the two hundred dollars.

It is insisted by the defendant, that the plaintiff should have tendered the two hundred dollars, if not before suit brought, then such tender should have been made at the trial. In this case, it was not necessary to make demand of the property. “ Trover will lie without demand and refusal, because the original taking was tortious.” (22 Pick. 18, Thurston v. Blanchard.) The defendant acquired no title to the articles. The sale being effected by fraud, worked no change of property. The proof of the fraud, was the proof of the conversion. (See Cary v. Hotaling, 1 Hill 311, and cases cited in opinion of Justice Cowen.)

A demand, in this case, would have been an idle ceremony; but the plaintiff sought the defendant, and could not find him. Doubtless, the plaintiff would have been entirely willing to have returned the money and the note of the defendant, if he could thereby have procured a return of his property. But it is very evident the defendant would not have made such a return. The evidence given on the trial shows that in a few days after the goods were procured of the plaintiff, the defendant executed bonds and warrants of attorney upon which judgments were entered up for several thousands of dollars; and that he gave a chattel mortgage also upon Ids personal property, and on the lease of the hotel which he occupied; and also that a judgment existed and suits were proceeding against him to judgment, at the time that he obtained the goods, and defendant’s property was sold under the chattel mortgage. He liad, in the just language of the supreme court in Masson v. Boset, (1 Denio 69,) “ so entangled himself in the meshes of his knavish, plot, that the party defrauded could not unloose him; the fault was his own.”

It is undoubtedly true, as a general rule, that a party who would disaffirm a contract, must return whatever he has received upon it. But surely this must be upon the condition, that the party returning shall thus restore himself to his own original position ; else in case of fraud, the party committing the fraud might, as in this case, place himself in a situation that he could not restore, and yet the injured party shall have no redress, through a proceeding to arrest the person of the defendant, unless he restores all that he has received, and obtains nothing in return but a judgment, which, in a majority of instances, proves worthless. Most of the cases in which the rule is laid down, relate to executory sales, and where on the ground of failure to fulfil, the other party seeks to rescind. Few case relate to transactions which are fraudulent and void. (See Voorhees v. Earl, 2 Hill 288, opinion of Cowen, J., and cases cited.)

Suppose, in this case, the plaintiff, before suit brought, had found the defendant, and had tendered to him the note and the two hundred dollars, and demanded a return of his property, and which had been refused, he certainly would not have been obliged to leave the note and money with the defendant, before he could proceed in trover against him. Upon the trial the plaintiff was not certainly obliged to do more than he would have been before commencement of suit, except as to the note. On the trial, lie must tender the note, because that is merged in the judgment, and being transferred, might otherwise have been held by bona fide holders, and the defendant thus lie made twice liable. Rut on the trial, there was no pretence that the defendant had the silver ware in court to return to the plaintiff, on receiving his note and the two hundred dollars. If he had been solicitous on this subject, he might, have brought in the property and tendered it, and if the plaintiff did not voluntarily consent to receive it, and return the note and money, the court would most probably have made an order, by which judgment would not have passed against him. (See Selwyn’s Nisi Prius, 1303, 4; and 7 Term Reports 53.) But says Cowen, J., in Voorhees v. Earl, speaking of the rule where a party desires to rescind, he must do so in toto ; “ even in a case of a fair sale, the rule is not universal.” We do not think it can be or ought to be applied in this case. We think the charge of the judge was correct, and we see no reason for disturbing the verdict,.

Motion for new trial denied.