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    Martin Very, Appellant, v. Jonas Levy.
    In equity; where a creditor agrees to receive specific articles in satisfaction of a debt, . even although it be a debt upon bond, secured by mortgage, he will be held to the performance of his agreement.
    But, in order to bring a case within this principle, there must be,—
    1. An agreement not inequitable in its terms and effect.
    2. A valuable consideration for such agreement.
    3. A readiness to perform, and the absence of laches, on the part of the debtor. Where the agreement to receive payment in goods was'made by a person who acted
    under a power of attorney from the creditor, authorizing him to trade, sell, and dispose of notes, bills, bonds, or mortgages, and, under this power, a partial payment was received in goods, which was afterwards recognized as a payment by the creditor, the power was sufficient to authorize an agreement to receive the remaining amount, also in goods, at any time when called for within twelve months, especially - as the bond had yet four years to run.
    This agreement was not inequitable; there was a valuable consideration for it; and the debtor was always ready to, comply with it, on his part.
    The creditor cannot now.allege fraud in his debtor. It is not charged in the bill; •and, although he may not have known of the agreement when the Dill was framed, "yet, when the answer came in, he might have -amended his bill, and Charged fraud.
    This was an appeal from the Circuit Court Of the United States for the District of Arkansas.
    • In 1841,' one .Darwin Lindsley .owned a lot of land in the town of Little Rock, and State of Arkansas, which was known as lot No. 7, in block or square No. 35, in that part of the city west of the Quapaw line, and known as the Old Town. :
    On the 3d. of March, 1841,:he.sold this lot to Jonas Levy, who gave two bonds, each for $4,000, one payable five years after date, and the other six years after date. Both were to carry interest, at 7 per cent., payable quarter-yearly. • The bond, payable ‘in five years, was not involved in the present suit, and no further notice need be taken of it. Both bonds were secured by a mortgage of the property.
    On the 25th-of -March, 1841, Lindsley assigned the six years’ bond to Martin- Very, a citizen of the State of Indiana.
    This bond had-the following credits indorsed upon it: •
    1841, March 15. . . . . . .. -$550.00.
    1842, January 29 ... . . . 181.12,
    1843, March 3 (in goods) . . . 1898.25
    The last credit was signed- Martin Very, by J. S. Davis, and arose in this way :
    On the 25th of November, 1842,- Davis addressed the following letter to Levy.
    New Albany, Indiana, Nov. 25,1842. Dear Sir, — My object in writing to you, is to inquire what you will give in cash and jewelry for the last note that you gave to Darwin Lindsley, and which was assigned by him to Martin Very. I have bought a part of the note, and am authorized to make disposition of it, and I thought, as a matter of justice, you should have the refusal of the note, at a considerable discount, if you desired it. Please let me hear from you at your earliest convenience. I write for myself and Mr. Very. I am, respectfully yours, &c.
    Mr. Jonas Levy. ’ • John S. Davis.
    (Indorsed,) — Mr. Jonas Levy, Little Rock, Arkansas.
    (Postmarked) — New Albany, Ind., Nov. 26.
    On the 28th of January, 1843, Very executed the following power of attorney to Davis:
    Know all men, by these presents, that I, Martin Very, of the county of Floyd, and State of Indiana, have made, constituted, and appointed, and do, by these presents, make, ordain, constitute, and appoint, John S. Davis, of the city of New Albany, Indiana, my true and lawful attorney, for me, and in my name, and for my use,, to ask, demand, sue for, recover, and receive, all such sum or sums of money, notes, bills, bonds, mortgages, or debts, which are or shall be due, owing, or belonging to me, in any manner, or by any means whatsoever; and I hereby give my said attorney full. power and authority to trade, sell, and dispose of any notes, bills, bonds,' or mortgages, held • or owned by me, on any resident or residents of the State of Arkansas; and I hereby give my said attorney full power, and authority, in and about the premises, to have, use, and take all lawful ways and means, in my name, for the purposes aforesaid; and, upon the receipt of such debts, dues, or sums of money, to make, seal, and deliver, acquittances and other sufficient discharges for me, and in my name, qr, upon the sale of any bill, bond, note, or mortgage, to execute a good and sufficient assignment the same to the purchaser thereof, for me, and in my name; and, generally, to do and perform, in my name, all other acts and things necessary to be done and performed in and about the premises, as fully and amply, to all intents and purposes, as 1 myself could or might do, if personally present; and attorneys, one or more, under him, for the purpose aforesaid, to make and constitute, and again at pleasure revoke. And I hereby ratify and confirm all and whatsoever my said attorney shall lawfully do, in 'my name, in and about the premises, by-virtue of these presents; and I hereby make this power of attorney irrevocable, to all intents and purposes. In testimony whereof, I.have hereunto set my hand, and seal, this, the 28th day of January, in the year bf our Lord 1843.' Martin Very, [seal.]
    Signed, sealed, and delivered in presence of
    Jos. P. H. Thornton.
    Under this power, Davis went to Little Rock, and, on the 3d of March, 1843, put. the receipt above mentioned upon the back of the bond for ¡§1,898.25, paid in goods; and, on the same day, executed the following paper,, viz.:
    Little Rock, March 3d, ’43.
    I hereby agree to take in goods, such as jewelry, &e., the balance due me on a note assigned by D» Lindsley to .ipe, as also a mortgage assigned by the said Lindsley; said goods to be delivered to me, or any agent at Little Rock, Arkansas, at reasonable prices,' at said Little Rock; said goods to be called for within twelve months from this time.- Martin Very.
    By J. S. Davis, .
    . Attorney in fact.

    .Davis, .stated in his deposition that, in January, .1844, he wrote to Levy, directing him to pay the balance, in jewelry, .watches, &c. to Mr. Waring, in Little Rock; that he received an answer-from Levy, declining to do so ; but that he had lost or mislaid this answer .from .Levy.
    On the 3d of February, 1844, Davis wrote to. Levy the following letter:
    . New Albany, Féb. 3, 1844.
    . Dear Sir, — If you can pay the balance of your note in good silver or gold watches, arid, good-jewelry, fat fair , prices, say about half of each, or two thirds watches, you will.please notify me of the fact by return of mail, and I will send on for them at once. The things you let me have before were too high, — at least Mr. Very says so.'- Let me hear from you. I am your friend,, John H. Davis.
    Mr.,J. Levy.
    (Postmark) — .New Albany, Ind.,.Feb. 5.
    (Indorsed)" — Mr. Jonas Levy, Jeweller, Little Rock, Ark.
    - In April,. 1848, Very filed his bill in the Circuit Court of the United States for the District of Arkans'as against 'Levy, for the purpose of foreclosing the mortgage. The answer of Levy admitted all the allegations of the bill, but set úp ás a defence the execution of the power of attorney by Very to Davis, and the subsequent agreement between Davis and himself, by which the goods were to be called for within twelve months. It was then alleged, that not only during the next twelve? months, but always afterwards, Levy had kept on hand goods enough of the proper character to pay the balance due, been always ready and still was ready to deliver them, and had often urged the complainant to receive and accept them, and would deposit them in the custody of any one directed by the court.
    Levy brought into court a large quantity of goods and jewelry, which was placed in the hands of-a receiver.
    • The’ case being heard on bill,' amendment, answers, replications, exhibits, and testimony, the court held Very bound by the agreement, and found that Levy had always had sufficient goods on hand ready to be delivered; and directed the master to ascertain the balancé’ due on the bond, and the value of the goods delivered to the receiver.
    The master reported the balance due on the 3d March, 1844, to be §2,002.59, and the value of the goods; §5,776.99. No exception was taken to the report, and it was confirmed.
    The court then ordered the 'complainant to select out of the goods, to. the amount of §2,002.59, and on his failure, after notice to his solicitor, that the master should do so. The complainant failed, to select; .the master set apart the requisite amount, the residue were redelivered to Levy, and the court decreed that Very should' receive the goods so set apart by the master, and that the bond and mortgage were satisfied; denied the relief prayed, and* dismissed the bill; all costs to be paid by th e- complain ant.'
    Very appealed to this court. It was argued by Mr. Sebastian, for the appellant, jand by Mr. Lawrence, for the appellee, on whose side there was also a brief filed by Mr. Pike.

      Mr. Sebastian, for appellant.
    Much irrelevant matfer is drawn into the case, which it is not my purpose to notice; and except the points noticed below, the whole defence fails, upon the Well-settled principle that matters set up in an answer by way of avoidance avail nothing unless proved. 1 Munf.. Rep. 373; 1 Johns. Rep. 590; 14 Id. 74 ; 4 Paige, 33; Cathcart v. Robinson, 5 Pet. Rep. 267; United States Bank.v.- Beverley, 1 How. U. S. Rep. 151.
    Under the. power given, to Davis, he had authority, as is contended for Very, only to receive the amount of the bond .and mortgage in money, or to sell and transfer them, and no other .authority whatever to agree to receive at a future day a payment in goods, and to bind his principal so to receive them, — no authority to substitute a new contract, by which Very must necessarily be a loser, and bind Very to its performance* From the pleadings and evidence, it is clear that Davis did nqt receive payment, in money or otherwise. Is it not equally clear that he did not sell and transfer the bond and mortgage ? And in what part of the power can the authority be found for Davis to bind Very by a new contract, to be performed in future ? The whole object of the power was to close up and put an end to his business in Arkansas, and not to entangle himself with new contracts, liabilities, and litigation, and which has been the. result of the unwarrantable construction put on the power by Levy, and the unauthorized acts of Davis under it.
    And it is a well-settled principle of law, and nowhere controverted, that if an agent exceed his authority his ¿cts in such excess do not bind his principal. Taggart v. Stanbery, 2 McLean’s Rep. 549; Planters Bank v. Cameron et al., 3 Smed.. & Marsh. Rep. 613; Gordon v. Buchanan, 5 Yerg. Rep. 79; 2 Kent’s Com. (1st ed.) 483; 3 Eng. (Ark.) Rep. 230; Wahren.dorff v. Whitaker, 1 Missouri Rep. 148; 3 Stew. (Ala.) Rep.. 26, 27; Fox v. Fisk, 6 How.. (Miss.) Rep. 345; Fenn v. Harrison, 3 Term Rep. 759; Stewart v. Donnelly, 4 Yerg. Rep. 180; Thompson v. Stewart, 3 Conn. Rep. 183; 1 Hovenden on Frauds, 180; North River Bank v. Aymar, 3 Hill’s (N. York) Rep. .266; Piatt v. Oliver, 2 McLean’s C. C. R. 316; Story on Agency, § 165, 172;
    This was a special authority to.Davis, and not a general one, and Levy was bound to know the extent of his authority; and if that authority was exceeded, Levy must be the loser by the' unauthorized act, and not Yery, who gave not the authority. 2 Kent’s Com. (original ed.) 484; Payne v. Stone, 7 Bmedes & Marsh. Rep. 373;' Gullett v. Lewis, 3 Stewart’s (Alai) Rep. 26, 27; 1 Hovenden on Frauds, 179,181; 3 Hill’s Rep. 266; •Owings v. Hull, 9 Pet. Rep. 628; Story on Agency, § 72, 73, 81, 165; Story on Contracts, § 284; Denning v. Smith, 3 Johns. Ch. Rep. 344.
    And a special power must be strictly pursued, and cannot, be enlarged. Batty v. Carswell, 2 Johns. Rep. 50;. Mayor, &c. of Little Rock v. The State Bank, 3 Eng. (Ark.) Rep. 230; 2 Kent’s Com. (1st ed.) 484; Dickenson v. Gilliland, 1 Cow. Rep. 498; Nixon v. Hyserott, 5. Johns. Rep. 59; Story on Agency, § 185.
    And although Davis’s power should be esteemed, in technical parlance, as a general agency, yét the'act performed under it must have reference to, and be limited by, “ the purpose for which the power was given;” And the purpose in this case, as is. clearly shown by the power itself, was not to make new obligations to be performed by himself, but to receive payment and close up finally those due to him from others. See 3 Smed. & Marsh. Rep. 613; Story on Agency, § 21, 62-69, 83,. 89; 6 How. (Miss.) Rep. 345; 4 Ye¥g. Rep. 180; Mechanics Bank v. Bank of Columbia, 5 Wheat. Rep. 337; Story on Contracts, § 287.
    And even in such case the act performed must appear to have been, a necessary means of carrying into effect the power granted by the principal. And could the new contract made by Davis be deemed a legitimate and necessary means of receiving payment in móney, or of effecting a sale of the securities ? Surely not. See 3 Sm. & Marsh. Rep. 613; Story on Agency, § 62 -69, 83; 5 Johns. Rep. 59.
    Here, too, a special power of attorney was given in writing, and such powers are subjected to a “strict interpretation.” Story on Agency, § 68, 69; Story on Contracts, § 287.
    A factor is a general agent, yet he cannot bind his principal to sales on credit, or to any mode of payment other than the receipt of the money at the sale, unless there be a general usage, established controlling such agency. 2 Kent’s Com. (1st ed.) 485, 486.
    And any general agent to receive payment of a debt is bound to receive it in money only, unless otherwise directed. Martin’s Adm. v. The United States, 2 Monroe’s Rep. 90; 4 Yerg. Rep. 180; 6' How. (Miss.) Rep. 345; 3 Stewart’s (Ala.) Rep. 27; Story on Agency, § 62, 98, 99,181; Story on Contracts, § 299.
    • And the power to sell and-transfer could-surely not authorize the compromitment of Veryl-s rights, by any species of contract whatever not embraced in the letter, spirit, or meaning of the terms used in the power. darkens Lessee v. Courtney, 5 Pet. Rep. 347 ; 5 Johns. Rep. 59; Story on Agency* § 62 - 69, 89; Williamson v. Berry, 8 How. U. S. Rep. 544.
    And the opinion of Davis as to the extent of his powers under the agency, and that he was authorized to bind Very by this new contract with Levy, cannot aid the latter, nor is it-any evidence of Davis’s authority to make it. Clark’s Ex’ors v. Van Reimsdyk, 9 Cranch’s Rep.. 158; Garvin..». Lowry, 7 Smed^& Marsh. Rep. 27; 5 Wheat. Rep. 337.
    The act of Davis’s agreeing to receive goods in payment was never ratified by Very; nor can such ratification be presumed, because the evidence of Davis himself, invoked- by Levy, shows that Very knew not of the existence of such a contract, and that .the payment in goods, indorsed on the bond, was no párt of-the contract to, receive other goods, in future. And an acquiescence in receiving the -goods- already paid cannot be tortured into a ratification of an unauthorized act of a faithless agent to receive others in future, and of which the principal had no knowledge.

      For the ratification of such an act, whether in fact or presumed, could not be binding on Very, without, a full knowledge of its existence and of all the circumstances under which it was made. Lyon v. Tams & Co., 6 Eng. (Ark.) Rep. 205; Cairnes v. Bleeker, 12 Johns. Rep. 305; 2 Kent’s Com. (4th ed.) 616; 2 Stark. Ev. (7th Am. ed.) 43, notes. A, B; Armstrong v. Gilchrist, 2 Johns. Cas. 430, note A; 7 Smed. & Marsh. Rep. 27; Owings D. Hull, 9 Pet. Rep., 629; Story on Agency, § 90, 239, 242, et seq.
    Besides, even were it in law true, which is .denied-,.'that Davis had authority, to bind Very by the ' new contract entered into with Levy, yet from the evidence of Davis himself, who is Levy’s own witness, such contract was obtained by the false pretences and fraud of Levy himself, both by the suppression of truth and utterance of falsehood, and could not be binding either upon Davis or Very, in law or equity. For fraud vitiates and fenders void all contracts into which it enters. See" Story on Contracts, § 165, 167, et séq., 177, et seq., 542, et seq.; Roberts on Frauds,.(Philadelphia ed. of 1807,) 521; 2 Saupd. PI. & Ev. 527, 528; Anderson v. Lewis, 1 Freeman’s Ch. Rep. 206; Bell v. Hill, 1 Hayw. Rep. 95; Reigal v. Wood, 1 Johns. Ch. Rep. 406; Stoddard v. Chambers, 2 How. TJ. S. Rep. 318; Barnesiey' v. Powell, 1 Ves. 120; Pope v. Anderson, 1 Smed. & Marsh. '/Ch. Rep. 156, _ _ .
    _ _ Levy’s entire defence rests on this unauthorized contract made by Davis; and a contract too which the only evidence (that of Davies) establishing its existence, proves conclusively to have been obtained by fraud. And will a court of equity, under such circumstances, enforce it ?
    The counsel for the appellee made the following points.

      Point 1. The arrangement made by Davis was warranted by the letter of attorney; regarding that in connection with, and explaining it by, the other facts in the case.
    The debt was not due within about three years. All the interest accrued, was overpaid. Levy was looked upon as insolvent, and' the mortgaged property not worth the debt;
    The power of attorney not only authorized Davis to collect and receipt for money due Very, but to sell, trade, and dispose of the bond and mortgage in question, and to assign-the same. Davis’s testimony shows that this power, though general in its terms as to any and all debts, was really intended to apply only to this identical debt. It is very evident that the real object of the power was to enable Davis to dispose of the claim, or make some kind of compromise or arrangement by which it might be closed up at once. The letter of Davis himsélf shows that -it had already been in contemplation to allow Levy to pay the debt in goods, and that it was thought to; be only just to give him the refusal, in offering the claim for sale, and he was applied to accordingly.
    When this was done, Davis owned part of the claim. He says in his testimony that such was the pase, but that when he made the arrangement he no longer had an interest. He did not tell Levy that.- And if he no longer had an interest in the claim, why was the power of attorney expressly declared to be irrevocable ?
    In considering whether the arrangement made by Davis was within the power conferred, it is 'legitimate to consider whether a proposal to receive payment in goods at a fair- price was an unusual or extraordinary inducement to be held out in order to procure purchasers for a debt not due within three years; whether Very could have imagined that such a claim could be disposed of, traded, or sold, without some discount or change of the mode of payment; whether it was to be expected that Levy would pay the whole debt in money at that time.
    Davis had a general power given him to sell, trade, or dispose of the claim. He was not limited as to the person to whom he should sell, or the mode in which the price should be paid. No one can doubt that if he had sold it to a third person for goods or jewelry, part paid at oncp, and part to be paid in twelve months, the sale would have been within the power, for surely there is no warrant to say that an unqualified power to sell a debt limits the agent to sell for cash.
    And as there was no restriction as to the person, it was quite as competent to him to sell to Levy as to any one else. It was natural to expect that Levy would give more than any one else.
    Again, how was the power to collect to be exercised, except by a compromise of some kind. The debt was not due, and could not be collected by law. It could only be collected by the consent of Levy, a consent not to be expected without any consideration. Taking the whole language of the power together, it is obvious 'that Very meant to dispose of the claim in some way to some person, and the previous letter of Davis shows that the object was to dispose of it to Levy for goods, at a discount. ,
    All grants of power are to be construed liberally, so as to meet the ends and purposes of the parties. Kenworthy v. Bate, 6 Ves. 793 ; Nicolét v. Pillot, 24 Wend. 240 ; North River Bank v. Rogers, 22 Id. 649; Me Morris v. Simpson, 21 Wend. 612.
    For the general rules as to the construction of powers, we need refer only to 2 Sugden on Pow. c. 8, 9,18; 22 Wend 651; 1 Wash. C. C: R. 457.

      In Parsons v. Administrators of Gaylord, (3 J. R. 463,) C gave his bond to B ; on payment of which B was to convey land to him. B delivered the bond to F with authority to receive payment ; F took' a note in payment of it. Held that his agency authorizéd this, and B’s subsequent dissent made no difference, but the bond was extinguished.
    The extent of a power given to an agent is deducible ás well from facts as from express obligation. In the estimate of such facts, the law has regard to public security, and often applies the rule that he who trusts must pay. Parsons v. Armor & Oakly, 3 Pet. 428.
    In law, however it may be in words or technical language, there is no difference between a general agency, so far as the principal is concerned, when considering what acts bind- him, and an agency giving the agent general and unlimited power to do any particular act or transact any particular business, without pointing out the mode of doing the act. Story on Agency, sects. 17,18,127, V. 1, 128, 129, 133; Andrews v. Kneeland, 6 Cow. 354; Jeffrey v. Bigelow, 13 Wend. 518; Planters Bank v. Cameron, et al. 3 S. & M. 613; 2 Kent, 617, 620; ISandford v. Handy, 23 Wend. 266; Le Roy v. Beard, 8 How. S. C. R. 466; Anderson v. Cowley, 21 Wend. 279.
    In either case, all the incidents necessary to effectuate the objects of the power are implied and go with it. A power shall be construed as a plain man would understand it. Withington v. Herring, 5 Bing. 442.

      Point 2. Even if the. acts of Davis were originally an excess of power, they were so acquiesced in and ratified by Very, that he was ever after estopped to repudiate the agreement.
    Undoubtedly so far as goods were actually received,- it was a good payment. Notice to the agent is notice to the principal; and if Very had any ground to complain that his agent had acted in bad faith, or transcended his authority -, if he meant not to abide by the contract made by him, good faith required that he should at once notify Levy of that determination. There is-no pretence that he did-so, or that he was at all dissatisfied. So far as the goods were received, be accepted them. That appears in the bill itself.
    Suppose Levy had, during the year, delivered the residue of the goods, couid Very then have repudiated the acts of his agent ? And if that agent had authority to receive goods in payment, had he not authority to agree and contract to secure them?
    In his bill of complaint, Very expressly states, as .one of the payments made on the bond, the sum of $1,898.25, without explanation or qualification, and exhibits the bond, with the indorsement, “ Received on the within, in goods, the sum of eighteen hundred and ninety-eight dollars and twenty-five cents, March 3,-1843, Martin Very, by J. S. Davis.” This is an explicit admission that he received the goods, an admission that if was a valid payment, and an admission either of an original authority in Davis to receive pay in goods, or of a ratification by Very of his act in receiving them.
    How can he profit by the act of his agent by adopting part of the transaction and repudiating the residue ? Especially how can he do this, when the latter was the price given by his agent for the benefit.which: he did not object to accept. Le Roy v. Beard, 8 How. 466.
    Under the authority given by the power, of attorney; and in pursuance of the previous proposition contained in the letter, Davis received nearly two thousand dollars in goods, and agreed in writing to receive the residue within twelve months. .Gan Very be allowed, after thus inducing Levy to pay, in goods and money, the whole debt to within a little over two thousand dollars, can he be allowed, after thus getting the debt reduced to not much more, if, not actually less than the value of the mortgaged property, to enforce it. against that property, repudiating the agreement made for him and in his name, by his agent ?
    And though Davis denies in his testimony that, the receipt of the goods actually accepted, and the written agreement to receive the residue in the same way, were concurrent acts and parts of a single transaction, yét his own letter and all the circumstances infallibly demonstrate that this is an utter falsehood, g,nd that- Levy paid the amount in goods long before it was due, in consideration, of the promise to receive the residue in the same way, or in performance of the very written agreement itself.
    On what ground is Very to be allowed to escape from this firm contract,'made by his agent in his name, in pursuance of an ample power ? Righter -v. Steel et ux. 3 Sandford, Ch. R. 608.
    It is perfectly evident that Davis executed the power in entire good faith towards Very. All the circumstances show that he did precisely what was intended to-be done; and his statement, that he afterwards wrote to Levy to turn over the residue of the goods to a particular person at Little Rock, makes the proof-on this point conclusive, and shows that all that Davis did was ratified.
    No weight is due to the statement of Davis that Levy declined turning oyer the -residue of the goods, because it is inconsistent with. the undeniable fact that he always retained the goods, kept them apart, did - not expose them to Sale, said they were to go in payment of the. debt; because the letter is .not produced, and was rather too important to be lost, and because the refusal may have been a qualified one, on good grounds, which the letter would show.

      Point 3. The arrangement so made extinguished the original debt and mortgage.
    As was held by the Supreme Court of Arkansas in Levy t>. Very, above cited, if the agreement of Very, by his agent Davis, had been under seal, it would, together with the payment made in goods, have completely extinguished the original obligation, and been pleadable in bar at law. See also Case v. Barber, Sir T. Raym. 450; Thatcher v. Dudley et ux. 2 Root, 169; Good v. Cheeseman, 2 Barn. & Ad. R. 328; Cartwright, Adm. v. Cook, 3 Id. 701; Coie & Woolsey v. Houston, 3 Johns. Cas. 243 ;■ Boyd v. Hitchcock, 20 J. R. 76 ; Watkinson v. Inglesby & Stokes, 5 J. R. 386; Strong v. Holmes, 7 Cow. 224; Brooks v. White; 2 Met. 283 ; MaCreary v. McCreary, 5 Gill & Johns. 147; Downer v. Sinclair, 15 Verm. 495.
    In a court of equity the technical law rule that a contract can only be dissolved eo ligamine quo ligatur, disappears altogether; a rule which originally prevented absolute payment in money, of a bond, being pleaded at law. A court of equity looks'through the form to the substance, and an unsealed agreement, the substance being the same, avails there, to precisely the same ’extent as a sealed one.
    And then the; principle applies, as established in Pennel’s case, 5 Co. 117, that, though payment of a less sum, on the day, in satisfaction of the greater, cannot be a satisfaction of the whole; yet the gift of a horse, or the like, in'satisfaction, is good, for it shall be intended that the horse might be more beneficia! to the party than the money, or he would not have accepted it in satisfaction.
    And where any other articles than money are received, and agreed to be accepted in full satisfáction of a debt, the cour-t will not estimate their value in money’s worth, but hold the consideration to be good, and the promise to discharge the entire debt a valid contract. . Brooks v. White, 2 Mete. 283; Boyd v. Hitchcock, 20 J. R. 76; Kellogg v. Richards, 14.Wend. 116.
    The law Of tender has nothing whatever to do with this case. The agreement was, that Very would receive the residue of his debt in goods, “to be called for” within twelve months. No tender.was necessary. Levy was only bound to deliver the goods'when- called on. Of course, his store was the place of delivery. If he kept the goods there, ready to be delivered, and remained always ready, that wai enough.

      No specified day, and no place, being fixed for the delivery of the residue of the goods, Levy could not be in default until Very had called for the goods, and he had refused to deliver them. His store was the place of delivery. -This is well settled. Vance v. Bloomer, 20 Wend. 199; La Farge v. Rickert, 5 Wend. 187^ Robbins v, Lute, 4 Mass. 475; Morton v. Wells, 1 Tyler, 386; Admrs. of Conn v. Ex. of Gano, 1 Ohio, 483; Savary v. Goe, -3 Wash. C. C. R. 140; Sheldon v. Skinner, 4 Wend. 525; Cranche v. Fastolfe, Sir T. Raym, 418; Ranson v. Johnson, 1 East, 203; Whitehouse v. Frost, 12 Id. 615.; Mitchell v. Merrill, 2 Blackf. 89; 1 Hill, 523; 2 Hill, 352; Cóie v. Houston, 3 Johns. Cas..243.
    After the end of the year, Levy held the -goods as trustee of Very, and at his risk. 4 Wend. 529 ; 8 J. R. 478 ; 3 Johns. Cas. 258. And it made no difference that the goods of Very were- mixed with his own, part of a large quantity. White-house v. Frost, ubi sup.
    As to Davis’s testimony in regard to the statements of Levy, on which he was induced to make the arrangement, and their falsehood, it is di.reetly contradicted by his-own letter, which shows, that the proposition came from himself, and was made to Levy before Davis went to Little Rock, for reasons and from motives wholly different from those stated by him in his deposition.
   Mr. Justice CURTIS

delivered the opinion of the court.

This is a suit in equity to foreclose a mortgage, commenced in the Circuit Court' of the United States for the District of Arkansas. The bill alleges that on the 3d of Marcjh, 1841, the respondent, Levy, executed his writing obligatory,.for the sum of four thousand dollars, bearing interest at the rate of seven pier cent, per annum, payable to Darwin. Lindsley in. six years after its date, and secured the same by a mortgage on certain premises situated in th'Q city of Little Rock; that by assignment from.Lindsley the complainant became the owner of this bond and mortgage on the 25th of March, 1841, and the bill prays for -an account and foreclosure.

The answer of Levy admits the execution of a bond and mortgage, and their assignment to the complainant,; and avers that on the 3d of March, 1843, he agreed wffh the Complainant, through one John S. Davis, his agent, to deliver goods, such, ns jewelry, &c., in which the respondent dealt, at Little-Rock, upon reasonable prices, in satisfaction of this bond and mortgage, within twelve months from the 3d of March, 1843; that in pursuance of that agreement he did actually deliver on that day a part of the goods, agreed to be of the value of $1,898.25, and afterwards, on the same day, the complainant, through his agent, Davis, signed and delivered to the respondent a nimorandum in writing as follows :

“ Little Rock, March 3d, ’43. I hereby agree to také in goods, such as jewelry, &c., the balance due me on a note assigned by D. Lindsley to me,' as also a mortgage assigned by said Lindsley; said goods to be delivered to me, or any agent at Little Rock, Arkansas, at reasonable prices at. said Little Rock; said goods to be called for within twelve mbnths from this time. Martin1 Very. By J. S. Davis, Attorney in fact.”

That in further pursuance of this agreement, the respondent kept in his hands, and ready for-delivery, and withdrawn from his trade, a sufficient amount of goods, such as are referred to in the memorandum, during the whole year which elapsed after the making of the agreement, and was constantly ready and willing to deliver the same at Little Rock, but the complainant was not there, and did not .authorize any one to receive-them; that the respondent has ever since been ready and willing to perform his agreement, and offers to bring the goods into court, or place them in the hands of a receiver. The court below appointed a receiver, ascertained the amount of goods necessary to satisfy the unpaid residue of the bond, ordered the' receiver, upon demand, to deliver the same to the complainant, in full satisfaction of the bond and nhortgage, decreed the mortgage satisfied, and ordered the complainant to pay the costs. From this decree the complainant appealed.

An agreement by a creditor, to receive specific articles in satisfaction of a money debt, is binding on his conscience ; and if he ask the aid of a court of equity to enforce the payment, he can receive that aid only tó compel satisfaction in , the mode in which he has agreed to accept it. A court of ecjuity will even go further; and in a proper case will enforce the exe* cutiomof such an agreement. At law, a mere accord is not a defence; and before breach 'of a sealed instrument, there is a-technical rule, which prevents such an. instrument from being. discharged, except by matter of as high a nature as the deed itself. Alden v. Blague, Cro. Jac. 99; Kaye v. Waghorne, 1 Taunt. 428; Bayley v. Homan, 3 Bin. N. C. 915. But no, such difficulties exist in equity. On the broad principle that what has been agreed to be done, shall be considered as done, the court will treat the creditor as if he had acted conscien-' tiously, and áceepted in_ satisfaction, what he had agreed to' accept, and what it was his own fault only that he had not received. Indeed, even a court of law, in a case free from the technical ■ difficulties above noticed, will'do -the same thing. Bradly v. Gregory, 2 Camp. 383.

In order, however, to bi;ing a case within these principles, three things are necessary. . An. agreement, not inequitable in its terms arid effect; a valuable consideration for such agree-' merit; readiness to perform and the absence of laches on the part of the debtor.

In this case the agreement was in writing, and one objection to it, made by the complainant-is, that the person who executed it on his behalf was not authorized to do só. The authority was it. writing, and gave the attorney “ full power and authority to trade, sell, and dispose of any notes, bills, bonds, or mortgages, held or owned by me, on any resident, or residents of the State of Arkansas.” Acting under this power, Davis did actually accept a partial payment in goods, amouriting to .$1,898.25, and^ signed the. memorandum in'writing, which is-relied on.. The bond being produced; bears the following indorsement :

. « Received on the within, in goods, the sum of eighteen hundred and iiinety-éight dollars and twenty-five cents, March Sd, 1843. Martin . Very. By J. S. Davis,”

The cornplainant, in his bill, treats this as a payment, and it does not appéar-that he made any objection to it, though Davis says, in one of his letters, he thought’the prices were too high.

Upon this state of facts we are'of opinion Davis had authority to enter into the-agreement iri question. Besides the power to collect ’ and sell, is the power to trade this bond and mortgage. It might be difficult to attach any general legal signification to this word. But considered in reference to the particular facts of this case we think its meaning sufficiently clear.

It is proved by Davis, that the power, though general in its .terms, was given solely in reference to this particular bond and .mortgage. The bond had yet four years to run. When, therefore, Davis was authorized to collect this bond, the parties to the letter of attorney must have had in view some agreement’, respecting its -extinguishment,- which should vary its original terms of payment; and when he was further empowered to trade it,1 it is not an inadmissible interpretation that the new agreement fqr its extiriguishment, which he was empowered to make, might be an agreement to receive specific articles in payment. It has been said that special powers are to be construed strictly. If by this is meant, that neither the agent, nor a third person dealing with him in that character, can claim under the power any authority which they had not a right to understand its language-conveyed, and that the authority is not to be extended by mere..general words' beyond the object in view, the position, is correct. But if the words in question touch only the particular mode in which an object, admitted to be within the power, is to be effected, and they are ambiguous, and with a a reasonable attention to them would bear the interpretation bn which both the agent and a third person have acted, .the principal is bound, although upon a more refined and critical examination the court might be of opinion that a different construction would be more correct. Le Roy v. Beard, 8 Howard, 451; Loraine v. Cartwright, 3 Wash. C. C. R. 151; De Tastett v. Crousillat, 2 Wash. C. C. R. 132; 1 Liv. on Agency, 403, 404; Story on Agency, sect. 74. Such an instrument is. generally to be construed, as a plain man, acquainted with the object in view, and attending reasonably to the language used, has in fact construed it. He is not bound to take the opinion of á lawyer concerning the meaning of a word not technical, and apparently employed in a popular sense. Witherington v. Herring, 5 Bing. 456.

' In this case, the complainant, besides empowering Davis to collect a bond not yet payable, has authorized him to trade it,— a word frequently used in popular language to signify an exchange of one article for another, by way of barter..

This power was intended by the complainant to be acted on by the respondent, a jeweller, in the State of Arkansas, and we think he cannot complain that it' was understood in its popular sense; more especially when he accepted, without objection, goods amounting to $1,898.25, and gave the defendant no.notice of his dissent from that construction of the power under which his agent received them, in part payment of the bond.

But it is insisted that, if Davis had authority to receive those goods in part payment, he had not power to enter into an executory. agreement to receive the others. This' might have presented a. question of some difficulty, if the effect of that agreement had been to give a credit to the obligor, or to' subject the principal to any risk, or place his claim in any less advantageous position than it would have been in if no contract had been made in reference thereto. ,

It must be borne in mind, that it is proved by Marcus Dotter and Emanuel Levy, and other witnesses, that the defendant had on hand more than sufficient goods, of the description mentioned, at the • time the other goods were delivered and' the memorandum signed. By the memorandum, the residue of the goods was to be delivered, at any time within twelve months, when called for by the complainant. The defendant was obliged to keep this amount of these goods constantly on hand, and ready for delivery. He. could, therefore,. gain nothing- by-delay. On the other hand, the complainant might have' found it more- convenient not to. take all at one time; the bond bore interest, which was accruing by the delay; and if the defendant, upon demand, should fail to comply, the bond would remain in force, :and no right of. the complainant to the money debt, or its security by the mortgage, would be prejudiced.

Under these circumstances, we are of opinión that, as Davis had authority to receive payment in goods, he had also authority to enter into this agreement, having the same object in view, and providing for its accomplishment in a way apparently more beneficial for the creditor than the receipt of all the goods at the time the 'arrangement was made.

That the agreement itself imports a consideration, deemed by the law valuable, there can be no doubt. An agreement to give a less sum for a greater, if the time of payment be anticipated, is binding; the reason being, as expressed in, Pennel’s case, (5. Co. R. 117,) that péradventure parcel of the sum, before the day, would be more beneficial than the whole sum on the day. Coke’s Lit. 212, b: Com. Dig. Accord, B. 2 ; Brooks v. White, 2 Met. 283. And when the time of payment is not anticipated, the law deems the delivery of specific articles a good satisfacción of a money debt, because it will intend them to be more valuable than the money to the creditor who has consented to the arrangement. Bac. Ab. Accord, A; Pennel’s case, 5 Co. R. 117; Booth v. Smith, 3 Wend. 66 ; Kellogg v. Richards, 14 Wend. 116 ; Steinman v. Magnus, 11 East, 390 ; Lewis v. Jones, 4 B. & C. 513.

In this case, both these rules apply; for the time of payment was to be anticipated* and specific articles delivered.

We consider it also clearly proved, that the defendant has been ready to perform at all times since the agreement was made. Tt is said by Davis that, in 1844, January, he thinks, he addressed a letter to Levy, requesting him to pay the money eoming to Very in jewelry, watches, &c.; and also requested him to put them up, and deliver them to Mr. Waring, in Little Rock; and that Levy declined paying, as requested. That he has searched for Levy’s letter, but cannot find it.

It is certainly highly improbable that Levy, who had had these goods, on hand, and set apart from his trade, ready for delivery, ever after the agreement was made, should have thus refused to deliver them.

He produces a letter of Davis, which, though it bears date on the 3d of February, 1844, is undoubtedly the letter Davis speaks of, and is as follows:

“ New Albany, Feb.'3,1844. Dear sir, — If you ca* pay the balance of your note- in good silver or gold watches, and good jewelry, at fair prices, say about half of each,, or two thirds •watches, you. will please • notify me of the fact by return mail, and I will send on for them at once. The things you let me have before were too high, at least Mr. Very says so. Let me hear from you. I am, your friend. John S. Davis. Mr. J. Levy.”

It thus appears, Davis was mistaken in supposing he designated a person in Little Rock to receive the goods ; and unless it was the purpose of this letter to vary the original understanding of the parties in respect to the proportion of watches to be delivered,, it is difficult to s^e- what fair object it could have had. The testimony, of Davis that Levy refused, without undertaking to state the contents of Levy’s letter, or the substance of its contents, cannot be deemed sufficient to prove a refusal by Levy to perform his contract. Before the defendant can be prejudiced by testimony of a refusal, it is reasonable the court should know what it was. It certainly was not a refusal to deliver the goods to Waring, as Davis says, for Waring was not mentioned by Davis in .his letter. The conduct of Davis in this matter is somewhat strange. . He made the memorandum in writing as Very’s agent, agreeing to accept payment of the balance of the bond in these articles; he delivered to Very the jewelry received, but says he did not tell Very of the contract to receive the balance in. goods; and ele ven months afterwards he wrote' the letter of the 3d of February, which seems to be a new proposal, as if mo contract had yet been made on the subject; he misstates the contents of his own letter in a material particular, says he has lost Levy’s letter, but the latter declinea paying as requested. We are not satisfied that a breach of contract by Levy, or any laches on his part, is made out.

It is asserted by the complainant’s counsel that the contract was void on account of Levy’s fraud; that it .was obtained from Davis by false statements and the suppression of material facts by Levy, and, of course, cannot be the basis of any right, in a court of equity.

But this ground is not open to the complainant. No fraud is charged in the bill, and though the complainant may .not have anticipated, when the bill was filed, that this contract would be set up in the answer as a defence, yet on the- coming in of the answer he might have amended his bill, as he did in another particular, m erring that if any such agreement was in fact made, it was void, and charging in what the fraud consisted. Not having done so, he cannot now avail himself of it. Besides the evidence comes in a very irregular way, and is wholly unsatisfactory. It is brought out by Davis, in answer to interrogatories which do not call for any statements touching such subjects, but relate to wholly different matters. Thus the 19th interrogatory inquires: “ For what reason was the agreement, marked B, given or executed, if ever executed.” To this Davis replies: “ That said agreement was executed and delivered for several reasons: The first of which reasons was, that Levy represented that he had expended large sums of money in defending suits for the benefit of Very, and for.the purpose of saving Very from losing the money for which this suit is brought; the second reason was, that said Levy represented himself as insolvent or wholly unable to pay the. debt due Very; and thirdly, that the property mortgaged was of little value, and would only pay at best a very small portion of the money intended to be secured fry the mort-gage; all which statements and representation thus. made by said Levy, said Davis, subsequent to the signing and delivering said agreement, found to be false.”

The 20th interrogatory inquires, “ What was the inducement and consideration for giving and executing the said agreement B ? ” To this he answers: “ That the inducement and consideration for giving and executing agreement “ B were the false representations of said Levy of his' circumstances, the value of the property mortgaged, and that he, said Levy, had paid large sums of money to save said debt secured by said mortgage for said Very; these statements and representations were made before and at the time said agreement “ B ” was executed and delivered, and said Davis then believed them to be true, but subsequently found them to be false.”

This is all the testimony in support of the charge of fraud. What he means, when he says he subsequently found the representations to be false, he does not explain. That he had any personal knowledge of their falsehood he does, not say; and his statement indicates only that, by subsequent inquiry, and the information elicited thereby, he became satisfied that he was deceived. It would not be in conformity with settled rules of pleading and evidence in courts of equity, to convict a party of a fraud, not charged on the record, and brought out for the first timé by the voluntary statements of a witness in answer to no question, and resting at last upon mere hearsay.

The decree of the Circuit Court is affirmed, with costs.

Order.

This cause came on to be heard on the transcript of the. record from the Circuit Court of the United States for the District of Arkansas, and was argued by counsel. On considera-: tion whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.


author: Mr. Justice GRIER

text:
    Horace H. Day, Plaintiff in error, v. W. James Woodworth, Miller Turner, William W. Pynchorn, Robert L. Fuller, Andrew Sisson, Harvey Clemence, Thomas Bolton, Merret Bristol, Joseph Bowen, Andrew Elmandorf, Seth G. Pope, Edward Gorham, Ephraim C. Brett, Arnold Turner, Marcus Toby, George J. Kipp, John B. Bump,-Atthouse, Erastus Brown, Erastus F. Russell, John C. Russell, Asa C. Russell, Edward P. Woodworth, Loring G. Robbins, Lorenzo H. Rice, and Mark Rossiter.
    Where .an action of trespass quare clausum, fregit was brought, and the defendants justified, and the court allowed the defendants, upon the trial, to open and close the argument, this ruling of the court is not a proper subject for a bill of exceptions.
    The suit being brought by the owner of a mill-dam below, against the owners of a mill above, for forcibly taking down a part of the dam, upon the allegation that it injured the mill above, it was proper for the court to charge the jury, that, if they found for the plaintiff, upon the ground that his dam caused no injury to the mill above, they should allow, in damages, the cost of restoring so much of the dam as was taken down, and compensation for the necessary delay of the plaintiff’s mill; and they might also allow such sum for the expenses of prosecuting the action, over and above the taxable costs, as they should find the plaintiff had necessarily incurred, for counsel-fees, and the pay of engineers in making surveys, &c.
    But if they should find for the plaintiff, on the gro.und that the defendants had taken down more of the dam than was necessary to relieve the mill above, then, they would allow in damages the cost of replacing such excess, and compensation for any delay or damage occasioned by such excess; but not any thing for counsel-fees or extra compensation to engineers, unless the taking down of such excess was ■ wanton and. malicious.
    In actions of trespass, and all actions .on the case for torts, a jury may give exemplary or vindictive damages, depending upon the peculiar circumstances of each case. But the amount of counsel-fees, as such, ought not to be taken as the measure of punishment, or a necessary element in its infliction.
    The doctrine of costs explained.
    Whether the verdictiWould carry costs or not, was á question with which the jury had nothing to do.
    This case, was brought up, by writ of error, from the Circuit Court of the United States for the District of Massachusetts.
    It was an action of trespass quare clausum fregit brought by Day, a citizen of New York, against the defendants in error, citizens of Massachusetts, for pulling down, a mill-dam within the town of Great Barrington, in the county of Berkshire, Massachusetts!
    The defendants put in a plea of; not guilty, and also a special plea of justification, viz.:
    And the defendants, further say, that at the time when the said trespasses are alleged to have been committed, and for a long time previously thereto, and prior to, ánd at the time of the erection of the said plaintiff’s said dam, certain mills and a certain mill-dam, the property of, and in the use and possession of the Berkshire Woollen Company, (a .corporation duly established by the laws of the State of Massachusetts,) had been and were then lawfully erected and maintained, by, upon, and across said stream on which plaintiff’s dam was built; that while said mills and dam were thus erected and maintained, and used by said corporation, the plaintiff' unlawfully caused to be erected in said stream, and below said dam, and at the time of said alleged trespass, unlawfully caused to be maintained therein the said dam in his declaration mentioned, in such manner as to injure the said mills and dam of the said corporation; that the defendants, by direction of said Berkshire Woollen Company, and as their agents and servants, did enter upon the said plaintiff’’s close, and did break down an.d demolish said plaintiff’s dam, in the manner least injurious to said dam; that they broke down and demolished no more of said dam than was necessary to remove or relieve the injury to said company’s mills and dam caused by the maintenance of said plaintiff’s said dam as aforesaid, and that said defendants did not break and enter the plaintiff’s close, any further or otherwise, nor thereupon use more force or violence, than were reasonably necessary to relieve the injury aforesaid.
    The plaintiff joined issue upon the plea of not guilty, and replied to the special plea as follows:
    And as to the said plea of the said defendants by them first above pleaded, the said plaintiff says, that he ought not to be barred from having and maintaining his aforesaid action thereof against them; because he says, that although true it is that at the said time when, &e., the said Berkshire Woollen Company were then the owners and possessed of the said mills and dam in the said plea, mentioned, and although true it is that the said mills and dam were upon and across the same strearil on which the said plaintiff’s dam then was, and although true it was that the said defendants committed the said trespasses by command of the said corporation, for replication nevertheless in this behalf, the said plaintiff says, that the said defendants of their own wrong and without the residue of the cause iii their said plea alleged, broke and entered the close of the said plaintiff, and tore down and destroyed the said dam, and committed the said trespasses in the introductory part of the said plea mentioned, in manner and form as the said plaintiff hath above complained, and this he prays may be inquired of by the. country1. Wherefore he prays judgment and for his costs.
    By B. ft. Curtis, Esq., Ms Attorney.

    And the defendants do the like.
    By William Whiting, Esq., their Attorney.

      Upon the trial, the jury came into court once for instructions, and afterwards returned three times with verdicts.
    The final verdict was as follows-:
    In the above-entitled cause the jury find that the reduction of the said dam of the said plaintiff, to the extent of three inches for its entire length, was justified; but that the further reduction was not justifiéd; and so the jury find that the said defendants, of their own wrong, and without the residue of the cause by the said defendants in their said first plea alleged, committed the trespasses in the said plea mentioned, in manner and form as the said plaintiff hath, in his said declaration, complained; and thereof assess damages in the sum of two hundred dollars.
    Robert Orr, Foreman.

    Whereupon the court entered up judgment for two hundred dollars damages, without costs. The reason why the judgment wa.s entered “ without costs ” may be seen by a reference to a book recently published by Stephen D. Law, Esq., p. 256. The book is upon the jurisdiction and practice of the United States Courts.
    The bill of exceptions contains the proceedings of the court with respect'to these several verdicts,-and was as follows :

      Bill of Exceptions.

    This is an action of trespass for breaking and entering the plaintiff’s close and tearing down his mill-dam. The.defendants justified under an .alleged right to enter, &c., because the dam was a nuisance to mills above, on the same stream, belonging to the Berkshire Woollen Company, whose servants thé defendants were, and that, by command of the said company, the defendants entered and took down so mucli and no more of the said-dam as was necessary to relieve the mills above.
    At the trial the defendants claimed the right to begin and offer their evidence first, and open and close the argumentT The plaintiff claimed the same right. The presiding judge ruled in favor of the defendants, and the plaintiff’s counsel excepted to the ruling. The presiding judge instructed the jury in his first summing up, that the defendants had a right by law to' enter the plaintiff’s close, and to take down so much of the plaintiff's dam as waá necessary to relieve the mills above from all practical injury occasioned by that dám; but that 'f the defendants had taken, down more of the dam than was necessary for that end, or if none was necessary to be taken down for that end, the jury must find for the plaintiff.
    That if the jury should find for the plaintiff on the last ground, viz. that the plaintiff’s dam caused no injury to the mills above, the plaintiff was entitled to «a complete indemnity, and the jury would allow in damages the cost of restoring so much of the dam as was taken down,, and -compensation for necessary delay of plaintiff’s mill; and they might also allow such sum for the expenses of prosecuting the action, over and above the taxable costs, as they should find the plaintiff had necessarily incurred for counsel-fees and the pay of engineers in making surveys, &c. But if, the jury should find for the plaintiff on the first ground, viz. in that the defendants had taken down more of the dam than was necessary to relieve the mills above, unless such excess was wanton and malicious, then the jury would allow in damages the cost of replacing such excess, and compensation for any delay or damage occasioned by . such excess, but not any thing for counsel-fees or extra compensation to engineers.
    The plaintiff’s counsel requested the court to instruct the jury that they might allow counsel-fees, &c. if there was any excess in taking down more of the dam than was justifiable, and gave as a reason that the defendants thereby became trespassers ab initio. The presiding judge instructed the jury as above set forth on this point.
    After being charged by the presiding judge, the jury retired, and subsequently came into court for instructions, preferring a' written request, as follows :

      U. S. O. C. Jury Room, Dec. 8,1849.
    To his Honor Judge Sprague :
    . If the jury find that the plaintiff’s dam was too high and ought to be reduced, but not to the extent of the- reduction by the defendants, can the jury find a verdict to that effect for the plaintiff according to law? if so, can they find damages for the excess of such reduction ? R. Orr, Foreman.

    Thereupon' the presiding judge gave anew the instructions aboye set forth, except that he instructed them not to allow anything for counsel-fees, &c. if they should find that the reduction of the dam to any extent was justifiable. The jury again retired, and subsequently returned into court with, a written paper, in the words following:

      U. S. C. p. Jury Room, Dec. 8,1849.
    In the case of H. H. Day against Woodworth et al. the jury find that the reduction of the plaintiff’s dam -to the extent of three inches for its entire length justifiable. The jury further find that the defendants pay to the plaintiff the sum of one thousand dollars in full for such excess of reduction and delay.
    Robert Orr, Foreman.

    The plaintiff asked to have a verdict presented to the foreman for his signature, following the words of the issue. The presiding judge stated- that he was not prepared to say to the jury that that would be the same in substance as their finding; and ruled that the verdict, to be presented to the foreman for his signature, should also set forth that part of the finding that the plaintiff’s dam was lawfully reduced to the extent of three inches throughout its entire length. There was ho evidence that the defendants had reduced the plaintiff’s dam through its entire length, but it appeared that the plaintiff’s dam was one hundred and twelve feet long, and that the part cut down by the defendants was the most westerly' part, about fifty-four feet in length, and that this fifty-four feet was cut down about inches, and that this would have the effect of reducing the obstruction presented by. the dam more than three inches for its entire length.
    . To the above rulings of the presiding judge the plaintiff excepted.
    In this stage of the proceedings, the defendants’ counsel desired of the presiding judge to inquire of the jury whether something for counsel-fees was not included in the sum of one thousand dollars mentioned in said finding of the jury.
    The presiding judge being of opinion that there was noevidence which would warrant the jury in finding damages to the amount of one thousand dollars for the said excess of reducing the dam, without expressing this opinion, made -the inquiry requested, to which the foreman answered, that they did not allow any thing for counsel-fees, but only for the excess and delay, as appeared by the written verdict. The defendants’ counsel then urged that the written verdict said that the sum of one thousand dollars Was to be in full, and requested the presiding judge to ask the jury if they did not allow that - sum in the expectation that the plaintiff was to recover no more. The foreman of the jury responded in substance as before but one of his fellow’s said he understood the plaintiff was to recover no more, and that each party was to pay his own costs, and that he had agreed to the verdict on that understanding. This understanding was denied by another of the jury, and the presiding judge then said that it must be the verdict of each,juror, and that this was not the verdict of the one who said he had agreed to it on the misunderstanding, and therefore the presiding judge proceeded to sum up anew on the subject of damages, referring to the evidence, and giving to the jury substantially the instructions, in point of law, before given, and adding that* if the plaintiff should recover $1,000 damages, he would,-as the prevailing party, by law recover his taxable costs; and having so done, directed the jury again to retire; to this proceeding the plaintiff’s counsel excepted. Subsequently, the jury again returned into court, and brought in a second verdict, in writing, in the words following;

      U. S. C. C. Jwy Room, Boston, Dec. 8,1849.
    In the case of Horaca H. Day v. Woodworth et al. the jury find that the reduction of the plaintiff’s dam to the effect of three inches for its entire length was justifiable.
    The jury further find, that the defendants pay to the plaintiff the sum of two hundred dollars for such excess of reduction and delay. Robert Orr, Foreman.

    This verdict was put in the form in which it appears on the record, but before it was'signed the plaintiff’s counsel suggested to the presiding judge, that, as the jury had been instructed that in one event the plaintiff would recover costs, some of the jury might have agreed to this verdict with that understanding, and requested that this inquiry might be made of the jury; thereupon the presiding judge inquired of the jury whether, in rendering this verdict, they had any reference to costs, and the foreman of the jury, having replied that they had not, was about to sign the verdict, when one of .his fellows objected, and stated that he had agreed to tae verdict in the belief that, as prevailing party, the plaintiff could recover his costs; thereupon the presiding judge charged the jury a third time on the subject of damages, referring to the evidence, and repeating in substance the instructions in point of law before given; and further instructed them that the plaintiff, recovering only two hundred dollars, would not recover costs, and that it would be a violation of their oaths to have any regard to the costs, it being their duty to find the actual damage proved, and no more, and. directed them again to retire; which having done, they brought in the verdict which appears of record. To all these proceedings the plaintiff excepted, and prayed that his exceptions might be allowed, and that this bill’ of exceptions might be signed and sealed by his honor the judge; all of which being found ‘true, the same is accordingly signed and sealed.
    Peleg Sprague, [seal.] Judge of the U. S. Mass. District.

    Upon this exception the case came up to this court, and was argued by Mr. Gillet, for the plaintiff in error, no counsel appearing for the defendants.

      Mr. Gillet made the following points :

      First. The affirmative was with the plaintiff, and he had the right to introduce evidence first, and the right to open and close the argument. Burrill’s Practice, 233.

      Where the general issue is pleaded, the plaintiff has always the right to begin. Carter v. Jones, 6 Carr. & Payne, 64; Col-ton v. James, 1 Moo. & Mai. 273, 275, and 505; Cooperu. Wakley, 3 Carr. & Payne, 474 and note; Fish v. Travers, 3 Carr. & Payne, 578; Price v. Seaward, 1 Carr.' & Marsh. 23; Booth v. Millns, 15 Mees. & Weis. 669 ; Cripps v. Well's, 1 Carr. & M. 489; Mercer v. Whall, 5 Adol. & EL (n. s.) 447; Harrison v. Gould, 8 Carr. & P. 580 ; Ayer v. Austin, 6 Pick. 225; Brooks ??. Barrett, 7 Pick. 94; Ware v. Ware, .8 Maine, 42; Lunt v. Wormell, 19 Maine, 100,102; Sawyer v. Hopkins, 22 Maine, 268; Robinson v. Hitchcock, 8 Met. 64; 'SuIIivant ■??. Reardon, 5 Pike, 140; Lexington Ins. Co. ??. Paver, 16 Ohio, 324.

      Second. The judge erred in refusing to instruct the jury, that if the defendants cut down the plaintiff’s'dam more than was necessary to relieve the mills above, that they were not authorized to .allow any thing in addition to cover counsel-fees. or extra compensation paid by him to engineers. -

      Third. The judge erred in charging the jury that it would be a violation of their oaths to have any regard to whether their verdict would carry costs or not.

      Fourth. This being an action of tort tÜe plaintiff was. not limited to the actual damages proved; but the jury white authorized to give him such' as the circumstances of the case might inda-, cate as proper; Allen ??. Blunt, 2 Woodb.. &'Min. 121; Jennings ??. Maddox, 8 B. Mon. 109; Whipple v. The Cumberland Man, Co., 2 Story, 661; Washburn v. Gould,. 3 Story, 136; Whit-more v. Cutter 1 Gall. 478; 1 Bald.328; The Apollon, 9 Wheat. 379; Staats ■??. Ex. of Teneyck, 3 Caines, R. Ill; Kingsbury ??.■ Smith, 13 N. H. R. 122; 4 Johns. 1; Street v. Patrick, 12 Maine, 9; Beal v. . Thompson, 3 B. & P,. 407; Pitkin v. Leavitt, 13 ■Verm. R. 379; Earle v. Sawyer, 4. Mass. T, 12; Boston Man. Co.! v. Fiske, 2 Mason, 1-19,120; Sedgwick on,Damages; Curtis on Patents, &e.
   Mr. Justice GRIER

delivered the opinion of the court.

The plaintiff in error was plaintiff below in an action of trespass, charging the defendants with tearing down and destroying his mill-dam. The defendants pleaded in justifichtion that the Berkshire Woollen Company owned mills above the dam of plaintiff, who illegally erected and maintained the same, so as to injure the mills aboVe; that by direction of said company, and as their agents and servants, they did- enter plaintiff’s close, and did break down and demolish so much of the plaintiff’s dam as was necessary to remove the nuisance and injury to the mills above, and no more, and. as they lawfully might. To this plea the plaintiff replied de injuria, &e.

On the trial of this issue, the defendants “ claimed the right to begin and offer their evidence first, and open and close the argument.. The plaintiff claimed the same right. The court ruled in favor of the defendants, to which the plaintiff excepted.’* This ruling of the court is now alleged as error.

Our attention has been pointed to numerous decisions of English and American courts on this subject, which we think it unnecessary to notice more particularly, than to state, that the question whether a defendant in trespass who pleads a plea in justification only, has a right to begin and conclude, has been-differently decided in different courts. It is a question of practice only, and depends on the peculiar rules of practice which the court may adopt. The English courts have .regretted that. an objection to the ruling of the court at nisi prius on this question should ever have been permitted to be received as a ground for a new trial. But although a court may sometimes grant a hew trial where the judge has not accorded to a party certain rights to which,-by the rules of practice of the court, he may be justly entitled, we are of opinion that the ruling of the court below on such a point is not the proper subject of a bill of exceptions or a writ of error. A question as to the order in which counsel shall address the jury does not affect the merits of the controversy. As a matter of practice, the Circuit Court of Massachusetts had a right to makes its own rules. The record does not show that the rule of the court is different from their judgment oh this occasion. So that the plaintiff has failed to. show any error in the decision, assuming it to be a proper subject of exception.

The great question, on the trial of this case, appears to have been whether the plaintiff’s dam was higher than he had a right to maintain it, and if so, whether the defendants had torn down more of it, or made it lower than they had a right to do.

The plaintiff’s counsel requested the court to instruct the jury that “ they might allow counsel-fees, &c., if there was any excess in taking down more of the dam than was justifiable, and give as a reason that the. defendants thereby became trespassers ab initio.”

The court instructed the jury “ that if they should find for the plaintiff on the first ground, viz., that the defendants had taken down more of the dam than was necessary to relieve the mills above, unless such excess was wanton and malicious, then the jury would- allow in damages the cost of replacing such excess, and compensation for any delay or damage occasioned by such excess, but not any thing for counsel-fees or extra compensation to engineers.?’

This instruction of the court is ex'cepted to, oil two grounds. First, because “ this being an action of trespass, the plaintiff was not limited to actual damages proved,” and secondly, that the jury, under the conditions stated in the charge, should have been instructed to include in their verdict for the plaintiff, not only the actual damages suffered, but his counsel-fees and other expenses incurred in prosecuting his suit.

It is a well-established principle of the common law, that in actions of trespass and all actions on the case for tort's, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offence rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument. By-the common as well as by statute law, men- are often punished for aggravated misconduct or lawless acts, by means pf a civil action, and the damages, inflicted by way of penalty or punishment, given to the party injured. In many civil actions, such as libel, slander, seduction, &c., thé. wrong done to-the plaintiff is incapable of being measured by a money standard; and-the damages assessed depend on the circumstances, showing the degree of moral turpitude or atrocity of the defendant’s conduct, and may properly be termed exemplary or vindictive rather than compensatory.

. In actions of trespass, where the injury has been wanton and malicious, or gross and outrageous, courts perrtñt juries to add to the measured compensation of the plaintiff which he would have .been entitled to recover, had the injury been inflicted without design or intention, something farther by way of punishment or example, which has sometimes been called “ smart money.” This. has been always left to the discretion of.the jury, as the degree of punishment to be thus inflicted must depend on the peculiar circumstances of each casé. It must be evident, also, that as it depends upon the degree of malice, wantonness, oppression, or outrage of. the defendant’s conduct, the punishment of his delinquency cannot be measured by the expenses of the plaintiff in prosecuting his suit. It is true that damages, assessed by way of example, may thus indirectly compensate the plaintiff for money expended in counsel-fees; but the amount of these fees cannot be taken as the measure of punishment or a necessary element in its infliction.

This doctrine about the right of the jury to include in their verdict; in certain cases, a sum sufficient to indemnify the plaintiff for coúnsel-fees and other real or supposed expenses over and above taxed costs, seems to have been borrowed from the civil law and the practice of .the courts of admiralty.' At first, by the common law, no costs were awarded, to either party, eo nomine. If the plaintiff failed to recover he was amerced pro falso clamore. If he recovered judgment, the' defendant was ira misericordia for his unjust detention of the plaintiff’s debt, and was not. therefore punished-with the expensa litis under that title. But this being considered a great hardship, the statute of Gloucester, (6 Ed. 1, c. 1,) was passed, which gave costs in all cases when .the plaintiff recovered damages. This was the origin of costs de incremento; for when the damages were found by the jury, the judges -held themselves obliged to tax the moderate fees of counsel- and attorneys that attended the cause. See Bac. Abr. tit. Costs,

Under the provisions of this statute every court of common law has an established system of costs, which are allowed to the .successful party by way of amends for his expense and trouble in prosecuting his suit. It is true, no doubt, and is especially so in this country, (where the legislatures of the different States have so much reduced attorneys’fee-bills, and refused to allow the honorarium paid to counsel to be exacted from' the losing party,) that the legal taxed costs are far below the real expenses incurred by the litigant; yet it is all the law allows as expensa-litis. K the jury may, “if they see fit,” allow counsel-fees', and expenses ask.a part of the actual damages incurred by the plaintiff, and then the court add legal costs de inf cremento, the defendants may be truly said to be in misericordia being at the mercy both of court and.jury. Neither the common law, nor the statute law of any State, so far as we are informed, has invested the jury with this power or privilege, s It has been sometimes exercised by the permission of courts, but its results have not been such as to recommend it for general adop-. tion either by courts or legislatures.

The only instance where this power of increasing the “ actual damages” is given by statute is in the páteñt laws of the United States.' But there it is given to the court'and not to the jury. The jury must find the “.actual damages ” incurred by the plaintiff at the time his suit was brought; and if, in the opinion of the' court, the defendant has not acted in gqpd faith, or has been stubbornly litigious, or' has caused. unnecdssary expense and trouble to the plaintiff, the court may increase the amount of the verdict, to the extent of trebling it. But this penalty cannot, and ought not, to be twice inflicted; first, at the discretion of the jury, and. again at the discretion of the court. The expenses of the defendant over and above taxed costs are usually as great as those of plaintiff; and yet neither court nor jury can compensate him, if the verdict and judgment be in his favor, or amerce the plaintiff pro falso clamore beyond tax costs. Where such a rule of law exists allowing the jury to find costs de incremento in the shape of counsel-fees, or that equally indefinite and unknown quantity denominated (in the plaintiff’s prayer for instruction) “ &c.,” they should be permitted to do the same for the defendant where he succeeds in his defence, otherwise the parties are not suffered to contend in an equal field. Besides, in actions of debt, covenant, and assumpsit, where the plaintiff always recovers his actual damages, he can recover but legal costs as compensation for his expenditure in the suit, and as punishment of defendant for his unjust detention of the debt; and it is a moral offence of no higher order, to refuse to pay the price of a patent or the damages for a trespass, which is not wilful or malicious, than to refuse the payment of a just debt. There is no reason, therefore, why the law should give the plaintiff such an advantage over the defendant ih One case, and refuse it in the other. See Barnard v. Poor, 21 Pickering, 382; and Lincoln v. the Saratoga Railroad, 29 Wendell, 435.

We are of opinion, therefore, that the instruction given by the court in answer to. the prayer of the plaintiff, was correct.

The instruction to the jury, also, was clearly proper as respected the measure of the damages, and that the jury had nothing to do with the question whether their verdict would carry costs. The judgment is therefore affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Massachusetts, and was argued by counsel. On.consideration whereof, it is now here ordered and adjudged by mis court, that the judgment of the said Circuit Court in this cause be, and the 'same is hereby,- affirmed, with costs, for the defendants in error.


author: Mr. Justice McLEAN

text:
    Joseph Fowler, Junior, Appellant, v. Nathan Hart.
    Beal property, in'Louisiana, was bound by a judicial mortgage.
    The owners of--the property then took the benefit of the Bankrupt Act of the United States.
    A creditor of the bankrupt then filed a petition against the assignee, alleging that he -had amortgage-upon the same property, prior in date to the judicial mortgage, but that, by some error, other property had been named, and praying to have the error corrected. Of this proceeding the judgment creditor had-no notice.

      The court being satisfied of the error, ordered the mortgage to be reformed,'and thus gave the judgment creditor the second lien instead of the first; and then decreed that the property should be sold free of all incumbrances. Of-this proceeding, and also of the distribution of the proceeds of sale, the judgment creditor had notice, ’ but omitted to protect his rights.
    In consequence of this neglect, he cannot afterwards assert his claim against a purchaser, who has bought the property as being free from all incumbrances.
    This was an appeal.-from the Circuit Court of the United States, for the Eastern District of Louisiana.
    The facts are stated in the opinion of the court.
    It was argued by Mr. Bradley-, for the appellant, no counsel appearing for the appelleé.

      Mr. Bradley thus stated his case and points.
    Daniel T. Walden, as indorser of two notes of William Christy, was indebted to Fowler, the complainant, and suit was brought by him upon these two notes, and judgment recovered, as above stated.
    At that time, Daniel T. Walden held and owned the premises described in the petition of Fowler, and also at the time when the third judgment was converted into a mortgage. Nor was there then any legal mortgage, nor had Fowler any notice of any equitable mortgage on that property. Just .prior to that time, Walden, being indebted to the defendant, Hart, had given him a special mortgage, describing with'particularity certain other property, not embracing or touching any part of the premises now claimed by Fowler. In this condition of things, Walden was. declared bankrupt. Hart then filed his petition in the Bankrupt Court, setting up, as against the assignee and Walden, that there'was a mistake in the description of the property intended to be conveyed by Walden’s mortgage to him, and claiming that the said mortgage was intended to convey the premises now claimed by Fowler.
    No process was served upon Fowler, or upon the other creditors of Walden. The Bankrupt Court, however, proceeded' to take the proofs and adjudicate, and in its judgment affirmed the pretensions of Hart, ordered the mistake to be corrected, set up his special mortgage on these particular premises, and ordered them to be sold to satisfy that special mortgage, and the surplus, if any, to be brought into- the general fund. The sale was made in execution of that order, and at that sale Hart becamé the- purchaser, for a sum less than the amount of his mortgage, received a deed, went into possession, and has ever since been in possession, claiming under that proceeding and sale.
    The Circuit Court decided, on this state of facts, that the law and the evidence are in favor of the defendant; ordered, adjudged, and decreed, that there be judgment in favor of the defendant, Hartmand that the cause be dismissed at complainant’s costs. And Fowler appealed.
    In the case of Houston et al. v. The City Bank of New Orleans, 6 How. 505, 506, this court distinctly affirmed the power of the District Court, in bankruptcy, to convene the mortgage creditors, sell the mortgaged property^ pay the proceeds to the mortgagees, according to their respective priorities, and order the cancellation of the mortgages. No such order has been made in this case.
    The questions arising in this case, and not hitherto decided by this court, are, —
    1st. The powers of the District Court to exercise, in a summary proceeding, a jurisdiction heretofore limited to"courts of equity, to correct mistakes in deeds, and reform thém according to the intent of the parties; and,
    2d. To correct a.mistake in a deed, as between third parties, creditors, or purchasers, without notice.-
    3d. To make such correction, without causing such third parties to be convened and made parties to the suit.

      First.

    I. This court has said, in Ex parte Christy, 3 How. 312, that the District Court, sitting in bankruptcy, is. clothed with the most ample powers and jurisdiction “ over the rights, interests, and- estate of the bankrupt, and over the conflicting claims of creditors'; and,
    II. Page 3171 The District Court has. a concurrent jurisdiction, to the same extent and with the same powers as the Circuit Court, over liens, judgments, and securities.
    III. But it is submitted, that this jurisdiction must be over liens and securities already created, and not over such aq are to be created by the superior power of a court of equity.
    IV. A court of law of general jurisdiction has, unquestionably, jurisdictiori over, the same subjects, to a certain extent; but it has not, and never has been, supposed to have, that creative power which has been hitherto confided to courts of equity alone, to compel men to reform their deeds and contracts according to the intent of the parties.
    V. The 8th section of the Bankrupt Act gives to the Circuit Court cQncurtent jurisdiction with the District Court, in bankruptcy ; and it may well have been designed for such cases as this, and to prevent that injustice, danger of which might well be apprehended from the exercise of the summary powers given to the District Court in bankruptcy.

      VI. It is not essential to the exercise of the summary jurisdiction granted, and intended to be conferred, inasmuch as, by this 8th section, provision is made for the means which may be needed to effect a full settlement of the estate of the bankrupt.
    VII. Inasmuch, then, as the power is not given in terms in the Bankrupt Act, and is not essential as a means to accomplish the end sought bythat act, it is submitted that it does not exist, and that the court in bankruptcy had no power to correct a mistake, if any such existed, in the description of the property claimed by the defendant, Hart.

      Second.

    I. The recording of the judgment created a mortgage upon the real property of Walden, and that mortgage had priority, according to its date.
    II. It was a lien such as was recognized by the law of Louis-, iana, and protected by the Bankrupt Act. Waller v. 'Best, 3 How. Ill; Peck. v. Jenness, 7 Id. 620, 621. “ It is clear, therefore, that, whatever is a valid lien or security upon property, real or personal, by the laws of any State, is exempted by the express language of the act.”
    III. The mortgage creditor takes as a purchaser, and, taking as a purchaser, his title can only be affected by notice. It is not pretended there was, prior to the mortgage of Fowler, any notice in this case of the mistake, if any, in the description of the property in Hart’s mortgage.
    IV. A court of equity would have had no power to order the correction of the mistake, as .against him, a multo fortiori, the court in bankruptcy had not .power to do so, and to direct the cancellation of his mortgage.

      Third.

    I. Nor is he estopped in any manner by the decree in bankruptcy. Such decree could only be operative upon parties and-privies. The record shows that the only parties to the proceeding to correct the alleged mistake were Hart, and Christy the assignee, and Walden. Interrogatories are propounded to Walden, but he never appeared and answered. Christy alone answered, denying the allegations of the petition, and proof was taken, and upon these the decree was made.
    II. Hart had notice, at the time of filing his said petition, of the lien of Fowler, because he was returned as a creditor by judicial mortgage,- and therefore, having a lien, he was entitled to be convened. The-object being to affect his^rights, so far as they were superior to those of the general creditors, Hart could only limit those rights by a proceeding in which Fowler could defend them.
    III. Nor is he estopped by the notice and order of sale. The property therein described is said to be bounded by New Levee, Commerce, St. Joseph, and Julia streets.
    The property in the decree correcting the mistake is described as containing 23 feet 5 inches front upon New Levee street, between Julia and St. Joseph streets, by 125 feet 6 inches deep on the line nekt to St. Joseph street, and 124 feet - 7 inches on the line of lot No. 2, and designated as- the house or store No. 110 in said New Levee street; and the description of the property in the petition of the assignee for the sale of the property is still different, and makes, it house No. 10." The description in the original mortgage is, a certain lot of ground, No. 2, the house numbered .109,’ situated.....between St. Joseph and Julia streets; measuring 18 feet 10 inches front on New Levee street, by 124-feet 7 inches deep on the dividing line of lot numbered 3, and 123 feet 8¡| inches on the dividing line of lot No.' 1, and about 2.1 feet 8 inches in the rear of the dividing line of lot No. 5. So that in fact the lot described in the mortgage was alongside of the one which it was pretended was designed to be conveyed, and both were within the- description in the said notice to Fowler. He, therefore, was not only neither party nor privy; but he had no . -tice of-such pretended claim to put. him on inquiry. .
    VII. Finally, it does not appear that there ever was any order by the court in bankruptcy to erase and cancel the said mortgage of said Fowler, and the same is now and hath ever been a valid and subsisting "lien upon the lot claimed in his petition. In such case the law óf-Louisiana is clear that he had a right to proceed against the person holding the land, and to a judgment for the sale of the lot, and an account of the rents and profits in the hands of Hart, holding and claiming the same adversely.
   Mr. Justice McLEAN

delivered the opinion of the court.

- This is an appeal, from the Circuit Court of the United States for the Eastern District of Louisiana.

Fowler filed his bill in the Third District Court of New' Orleans, representing, that on the 16th December, 1839, he recovered a judgment in the Commercial Court, of New Orleans, against Daniel T. Walden and William Christy for $3,530.-22, besides interest; that oil the 29th December, 1839, he caused the judgment to be duly inscribed in the office of the recorder of mortgages for the parish- of New Orleans, by which the same became a judicial mortgage on the real estate of the defendants in the parish; that Walden afterwards became bankrupt, and Christy was appointed his assignee; and that he procured an entry of cancellation to be made by the recorder óf judicial mortgages without his consent, and illegally; that the mortgage remains in force.

And the plaintiff states that when the judgment was recorded, and up to the time of the bankruptcy of Walden, he was the owner and in possession of a certain lot of ground and buildings thereon in the city of New Orleans, to wit, in the second municipality, in the square bounded by New Levée, St. Joseph, Commerce, and Julia. streets, measuring 23 feet 5 inches front oii New Levee street, by about 125 feet 6 inches in depth on the side nearest St. Joseph street, 124 feet 7 inches .in depth on the side nearest Julia street, and about 21 feet 8 inches on the rear line; which property is liable to the judicial mortgage of the petitioner; that Christy, the assignee of Walden, sold the same lot to one Nathan Hart, of New York, who took possession thereof, and- still remains in possession; that he well knew, at the time of his purchase, that the petitioner’s mortgage was a lien on the same, and that Christy, the assignee, had no power to cancel the same. And the petitioner avers that his judgment lien was good under the 2d section of the Bankrupt Law.

' On the application of Hart, he being a citizen of New York, the suit was removed from the State court to the Circuit Court of the United States.

In his answer Hart denies that the petitioner has a mortgage on' the property described in his petition; and states that he purchased the same for the sum of $4,700, under a-sale of the marshal, on 16th June, 1845, in pursuance of a decree of the United States District Court, entered the 23d' May, 1845, sitting as a court of bankruptcy, in the matter of the bankruptcy of Daniel T. Walden, and confirmed according to law by a sale duly recorded from Christy, the assignee, before a notary-public the 19th June, 1845; and clear of all mortgages, the same having been cancelled, by order of the. judgment of said court, the 23d May, 1845, on a rule, notice of which was duly served on petitioner.

The mortgage of the defendant, Hart, on the above property was dated 22dMay, 1838, the judicial mortgage of the petitioner took effect the 29th December, 1839. But after the bankruptcy of Walden, and before the sale of the property to Hart by the assignee, it was discovered that there was a mistake in the mortgage in describing the property intended' to be mortgaged. . To correct this mistake a bill was filed by Hart against Christy, the assignee; and on the 5th December, 1844, a decree was obtained correcting the mortgage so as to describe the. lot intended to be mortgaged.'' Of this proceeding the petitioner, Fowler, seems to haye had no notice.

Afterwards, on the 24th April, 1845, the assignee petitioned the District Court, stating “ that there is still in his possession-, as assignee, the following- described property, specially, mortgaged to Nathan Hart to secure the payment of the-sum of' $8,655, with interest, which he prays may be- sold on' certain terms named. The lot above described is stated, and also other property of the bankrupt. The court ordered that'due notice of the petition be published in tw;o newspapers printed in the district, ten days at least before- the time assigned for the hearing, and that the petition be heard on the 23d May ensuing. -

-On the 10th May, 1845, the following rule was entered by the court: “ The assignee of the said estate having filed in this court a petition as above -described, it is ordered by the court that a hearing of the said petition be had. on Friday the 23d May next, at 10 o’clock A. M., when,; as one of the mortgage; creditors of said estate, you are notified to appear and show-cause why the property, as described bélow, should not be sold upon the terms and in the manner and form set forth in said petition, and why the said assignee should not be authorized to erase and cancel the mortgages, judgments, and liens recorded against said bankrupt, and in favor of certain creditors of the estate, affecting the property surrendered, so that said assignee may convey a clear and unincumbered title to any purchaser thereof, reserving to such creditors all their rights in law tp the proceeds of the sale of the said property upon the final distribution-thereof.”

To this rule was appended the following, with, other descriptions of property ordered to be sold. 1. “ Property in the second municipality, bounded by New Levee, Commerce, St. Joseph, •and Julia streets, with the improvements there'on, mortgaged to Nathan Hart. Terms, one third cash, the balance on a credit of twelve-and eighteen months.”

To the. property above designated No. 1, the name of Joseph Fowler was appended, and' the marshal returned “ that he had received the same on the 12th May, 1845, and on the same day served a copy of the rule on the within named Joseph Fowler.”

The principal objection to the validity of the sale of the property to Hart is founded on the procedure in the District Court, for the - correction óf the misdescription of the mortgage. As' between the mortgagor and mortgagee, there can be no objection to this proceeding. The District Court had jurisdiction of the matter, and it is but the ordinary exercise of the powers of a court of-chancery to reform a.mortgage or other instrument so as to effectuate the intention of the parties. But it is alleged that. Walden-having become a bankrupt, his property was vested in-his assignee for the'benefit of his creditors,'and that, the judicial mortgage of the petitioner could not be affected by a procedure- in which the petitioner was not a party, and of which he had no notice.

The assignee generally represents the creditors, and being made a party to the proceeding on the mortgage, he appeared and denied the allegations of the petition of the mortgagee; but on the hearing the District Court-was satisfied of the truth of the allegations in the bill, and reformed the mortgage so as to describe truly the property intended to be mortgaged. It is true that Fowler, the petitioner, was not a party to this proceeding, and if the action of the ,District Judge had here terminated, it would be difficult to maintain the decree.

By the 11th section of the bankrupt law the court had power to order the assignee to redeem and discharge “ any mortgage or other pledge or deposit, or lien upon any property,” &c. It also necessarily had the power, on the sale of mortgaged premises, to distribute the proceeds as the law required. And in regard to the property in question it appears that due notice was given to Fowler of -the application for the sale of it by Hart, who claimed to have a special mortgage on it; and the property was substantially described, and the day stated on which the court would act on the application. And in' addition, a notice was published in two newspapers ten days before the time set,for hearing by the court. The object of-this notice was stated to be, to make an unembarrassed title to the purchaser, and enable Fowler to make any objections he might have to the sale, and the cancelment of his mortgage. That the rights of creditors were reserved as to the proceeds of the mortgaged premises on a final distribution.

Whether the petitioner, Fowler, took any steps under this notice does not appear; and. in the absence of such evidence, it may well -be presumed that he acquiesced in the procedure. The notice afforded him an opportunity to assert his rights, and to object,to the decree for the reform of Hart’s mortgage, of which he now complains, as' fully as if he had- been made a party to that proceeding. This he could have stated as an objection to the sale of the premises, or in claiming the proceeds of that sale. The reform of the mortgage by the court could not have estopped him from the assertion of his rights, as he was not a - party to that. proceeding of the court. But, having neglected to assert his rights on the above occasion, it is no>v too late to set them up against the purchaser of the. property at the sale.

. Although there is some discrepancy in the -description .of the property contained in the notice from that in the decree reforming the mortgage, yet-substantially it is believed to embrace the same property; and as the notice was served upoíi the petitioner, as having a mortgage on the property; wé think it was sufficient. The decree of the Circuit Court is affirmed, with costs.

Order.

xms cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consider-' ation whereof, it is now here ordered; adjudged, and decreed by this court, that the decree of the said District Court in this cause be, and the samé is hereby, affirmed.