Church, J.
The defendant, at the trial, insisted, that this action could not be maintained, because there was, as he said, no proof that the plaintiffs had ever accepted the trust under which they now assume to act and prosecute this suit. But the court instructed the jury, that proof of such acceptance was furnished, and might be presumed by the jury from the fact that the plaintiffs had, before the court of probate, accepted the executorship of the will of Daniel Baldwin, the testator, without renouncing or declining the trust created for the benefit of Lucia Baldwin and her family ; to prove which the record of the probate of said will was offered and admitted.
[481]*481The defendant ought not to complain of the charge, in this respect; for it was most favourable to himself. Instead of submitting the question of acceptance to the jury, as a matter of fact, the judge at the trial would have been warranted in considering it a question of law ; and of saying, that the law would imply the assent of the plaintiffs to this trust, and their acceptance of it, in the absence of proof of a renunciation by them. Matthews on Pres. Ev. 32. Halsey v. Whitney, 4 Mason, 206. Brooks v. Marbury, 11 Wheaton, 78. Lip-pincott & al. v. Barker, 2 Binn. 174. McAllister v. Marshall, 6 Binn. 338. Hastings v. Baldwin, 17 Mass. Rep. 552. Nichol v. Mumford, 4 Johns. Ch. Rep. 529. Shepherd v. McEvers, 4 Johns. Ch. Rep. 136. Thompson v. Leach, 2 Salk. 618. Toimson v. Tickel, 3 Barn. Ald. 31.
But the acceptance of the office of executors, without any intimation of an unwillingness to perform the whole duty imposed by the will, very rationally, as a matter of fact, afforded a presumption from which the jury might infer, that the plaintiffs had accepted the trust in question. It was certainly to be expected, that persons to whom the testator had confided the trust of executing his will, and who, by accepting the office of executors, had engaged to do so, would provide for the execution of this trust, by others, if they did not intend to discharge it themselves.
It is true, as the defendants claimed, that the trust created for the benefit of Lucia Baldwin and her family, was distinct from the ordinary duties of executors, and perhaps might have been declined, without an entire renunciation of executorship ; yet this furnishes no answer to this argument of presumption. Nothing is more frequent than that special powers and directions are given by will to executors, which the law of itself would not throw upon them; such as a power to sell lands for other purposes than to pay debts, &c.; and yet we do not think, that an instance can be found of any other evidence of the acceptance of such collateral trust, than such as the general acceptance of the executorship affords. The principle of the charge in this particular is very distinctly recognized in the case of Mucklow v. Fuller, Jacob 198. (4 Eng. Cond. Ch. Rep. 93.)
2. The defendant in effect claimed, that the court should charge the jury, that if Birdsey Baldwin, Esq., the husband [482]*482of Lucia Baldwin, and the father of her children, was permitted, by the plaintiffs, to have possession of the trust estate, to manage it as he would have done irrespectively of any trust, for the support of his wife and children; the trust property would thereby be rendered subject to his debts ; and that the trustees would thereby be estopped from denying the right of his creditors to take and sell it on execution ; whether there was any actual fraud in the transaction or not; or whether the levying creditors were in the least deceived or misled, by this conduct of Birdsey Baldwin, or not. This claim of the defendant cannot be supported. We know of no principle which gives countenance to it. Whether trustees, by any conduct of their own, can subject the trust estate to attachment for their private debts, without any fault, negligence or consent, on the part of the cestuy que trusts, we need not anticipate. But we hazard nothing in saying, that a court of equity, in such case, would interfere to protect the rights of cestuy que trusts against any such attempts. Moses v. Murgatroyd, 1 Johns. Ch. Rep. 119. Shepherd v. MeEvers, 4 Johns. Ch. Rep, 136.
It is a general principle, that no man can sell property or transfer title to that which he does not own ; nor can one man's property, without his consent, be rendered subject to the demands of another. To this rule there are exceptions; but they are such as become necessary to protect innocent persons against fraud; else they are founded upon matter of policy, which does not exist in the present case. Therefore, it has been holden, that if the owner of goods voluntarily permit another to hold himself out to the world as being the true owner, and for this purpose, entrust him with the exclusive possession or other indicia of title, under circumstances which would naturally tend to mislead, he shall be concluded by the sale of it to an innocent and mistaken purchaser. Pickering v. Busk & al. 15 East 41. Dyer v. Pearson, 3 Barn. Cres. 38. So again, if one who is owner, or has a lien or incum-brance upon property, stands silently by, and sees one who has no title or an imperfect one, transfer it to another, he shall be precluded afterwards from reclaiming it. Rob. on Frauds, 30. But all these cases proceed upon the ground that the owner has deliberately assumed a false position, and a character inconsistent with that of owner, which, if changed, would [483]*483result in fraud and damage. And therefore, upon principles of clear justice, a bona fide purchaser, in such cases, should be. protected. But to cases, like the present, where there has been no fraud, nor misapprehension of the real state of the title, this principle can have no application. A contrary doctrine, and such as is claimed by the defendant, would lead to practical consequences which could not be endured. Every borrower or bailee for hire, uses the thing bailed, in many respects, as his own ; and his conduct, to some extent, furnishes a false index of property; but yet, the legal powers and duties of bailee being entirely consistent with the true position and character of the owner, the rights of the bailor will be protected against the abuse of the bailee’s powers, though he were to sell the property bailed to a bona fide purchaser.
Nor do the principles of law applicable to fraudulent sales, have any place here, and thus render the property subject to all creditors, whether actually deceived or not Here has been no sale; no retained possession by a vendor ; and nothing inconsistent with the real truth of the case.
If these are correct views, then it is clear, that the judge at the circuit was not only justified in refusing the charge demanded, but was entirely correct in the charge given.
It should be recollected, that if Birdsey Baldwin, in right of his wife, had not strictly an interest in this fund, yet as a parent and natural guardian of his children, it was at least his natural, if not his legal duty to render it, with least expense, productive and available for the purposes of its appropriation.
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Church, J.
The defendant, at the trial, insisted, that this action could not be maintained, because there was, as he said, no proof that the plaintiffs had ever accepted the trust under which they now assume to act and prosecute this suit. But the court instructed the jury, that proof of such acceptance was furnished, and might be presumed by the jury from the fact that the plaintiffs had, before the court of probate, accepted the executorship of the will of Daniel Baldwin, the testator, without renouncing or declining the trust created for the benefit of Lucia Baldwin and her family ; to prove which the record of the probate of said will was offered and admitted.
[481]*481The defendant ought not to complain of the charge, in this respect; for it was most favourable to himself. Instead of submitting the question of acceptance to the jury, as a matter of fact, the judge at the trial would have been warranted in considering it a question of law ; and of saying, that the law would imply the assent of the plaintiffs to this trust, and their acceptance of it, in the absence of proof of a renunciation by them. Matthews on Pres. Ev. 32. Halsey v. Whitney, 4 Mason, 206. Brooks v. Marbury, 11 Wheaton, 78. Lip-pincott & al. v. Barker, 2 Binn. 174. McAllister v. Marshall, 6 Binn. 338. Hastings v. Baldwin, 17 Mass. Rep. 552. Nichol v. Mumford, 4 Johns. Ch. Rep. 529. Shepherd v. McEvers, 4 Johns. Ch. Rep. 136. Thompson v. Leach, 2 Salk. 618. Toimson v. Tickel, 3 Barn. Ald. 31.
But the acceptance of the office of executors, without any intimation of an unwillingness to perform the whole duty imposed by the will, very rationally, as a matter of fact, afforded a presumption from which the jury might infer, that the plaintiffs had accepted the trust in question. It was certainly to be expected, that persons to whom the testator had confided the trust of executing his will, and who, by accepting the office of executors, had engaged to do so, would provide for the execution of this trust, by others, if they did not intend to discharge it themselves.
It is true, as the defendants claimed, that the trust created for the benefit of Lucia Baldwin and her family, was distinct from the ordinary duties of executors, and perhaps might have been declined, without an entire renunciation of executorship ; yet this furnishes no answer to this argument of presumption. Nothing is more frequent than that special powers and directions are given by will to executors, which the law of itself would not throw upon them; such as a power to sell lands for other purposes than to pay debts, &c.; and yet we do not think, that an instance can be found of any other evidence of the acceptance of such collateral trust, than such as the general acceptance of the executorship affords. The principle of the charge in this particular is very distinctly recognized in the case of Mucklow v. Fuller, Jacob 198. (4 Eng. Cond. Ch. Rep. 93.)
2. The defendant in effect claimed, that the court should charge the jury, that if Birdsey Baldwin, Esq., the husband [482]*482of Lucia Baldwin, and the father of her children, was permitted, by the plaintiffs, to have possession of the trust estate, to manage it as he would have done irrespectively of any trust, for the support of his wife and children; the trust property would thereby be rendered subject to his debts ; and that the trustees would thereby be estopped from denying the right of his creditors to take and sell it on execution ; whether there was any actual fraud in the transaction or not; or whether the levying creditors were in the least deceived or misled, by this conduct of Birdsey Baldwin, or not. This claim of the defendant cannot be supported. We know of no principle which gives countenance to it. Whether trustees, by any conduct of their own, can subject the trust estate to attachment for their private debts, without any fault, negligence or consent, on the part of the cestuy que trusts, we need not anticipate. But we hazard nothing in saying, that a court of equity, in such case, would interfere to protect the rights of cestuy que trusts against any such attempts. Moses v. Murgatroyd, 1 Johns. Ch. Rep. 119. Shepherd v. MeEvers, 4 Johns. Ch. Rep, 136.
It is a general principle, that no man can sell property or transfer title to that which he does not own ; nor can one man's property, without his consent, be rendered subject to the demands of another. To this rule there are exceptions; but they are such as become necessary to protect innocent persons against fraud; else they are founded upon matter of policy, which does not exist in the present case. Therefore, it has been holden, that if the owner of goods voluntarily permit another to hold himself out to the world as being the true owner, and for this purpose, entrust him with the exclusive possession or other indicia of title, under circumstances which would naturally tend to mislead, he shall be concluded by the sale of it to an innocent and mistaken purchaser. Pickering v. Busk & al. 15 East 41. Dyer v. Pearson, 3 Barn. Cres. 38. So again, if one who is owner, or has a lien or incum-brance upon property, stands silently by, and sees one who has no title or an imperfect one, transfer it to another, he shall be precluded afterwards from reclaiming it. Rob. on Frauds, 30. But all these cases proceed upon the ground that the owner has deliberately assumed a false position, and a character inconsistent with that of owner, which, if changed, would [483]*483result in fraud and damage. And therefore, upon principles of clear justice, a bona fide purchaser, in such cases, should be. protected. But to cases, like the present, where there has been no fraud, nor misapprehension of the real state of the title, this principle can have no application. A contrary doctrine, and such as is claimed by the defendant, would lead to practical consequences which could not be endured. Every borrower or bailee for hire, uses the thing bailed, in many respects, as his own ; and his conduct, to some extent, furnishes a false index of property; but yet, the legal powers and duties of bailee being entirely consistent with the true position and character of the owner, the rights of the bailor will be protected against the abuse of the bailee’s powers, though he were to sell the property bailed to a bona fide purchaser.
Nor do the principles of law applicable to fraudulent sales, have any place here, and thus render the property subject to all creditors, whether actually deceived or not Here has been no sale; no retained possession by a vendor ; and nothing inconsistent with the real truth of the case.
If these are correct views, then it is clear, that the judge at the circuit was not only justified in refusing the charge demanded, but was entirely correct in the charge given.
It should be recollected, that if Birdsey Baldwin, in right of his wife, had not strictly an interest in this fund, yet as a parent and natural guardian of his children, it was at least his natural, if not his legal duty to render it, with least expense, productive and available for the purposes of its appropriation. His duty of husband and parent still remained perfect, although provision had been made by another, for the partial support and maintainance of his wife and children. An objection to the principles of the charge involves in it a claim that these conjugal and parental duties could not be discharged, without subjecting the fund to the claims of the creditors of the husband, and thus rendering an act honestly intended to carry into effect the objects of the fund, the means of its destruction.
3. Another claim of the defendant we consider equally unfounded: That the labour and services of B. Baldwin, in cutting the timber and converting it into saw-logs, imparted to him a specific right or title in the logs themselves, to the amount of the value of such labour, &c., which could be taken on execution against him. We know of no such manner [484]*484of acquiring title to personal property. There was no con* ^ugjon 0j- g00(js_ Baldwin had no goods to intermingle with t^ese . an(] jf hacj; ⅛6 namre of the property was such, that it could be easily distinguished, and thus there could be no confusion of goods.
Nor was any title acquired by accession. Such title, when acquired, is exclusive, and never gives a right in common with the original owner, as in the case of confusion of goods. Besides, the identity of the property was not changed. The labour and services of B. Baldwin were in aid of the trust estate, and not adverse to it; and it would indeed be strange, if labour thus bestowed should ensue to the exclusive benefit of the operator, and confer upon him a title. 2 Kent’s Com. 293. Betts & al. v. Lee, 5 Johns. Rep. 348. Rightmyer v. Raymond & al. 12 Wend. 51.
4. A question of more difficulty, in the settlement of the rule of damages in this case, is presented. The property in dispute was logs, which the defendant, as constable, took and sold on execution against Birdsey Baldwin. At the public sale of the logs, Baldwin, and as the defendant claimed, in behalf of the present plaintiffs, bid them off, and became purchaser for the sum of 56 dollars, 70 cents, only ; which, as the jury have found, was considerably less than their real value. And this the defendant offered to prove in mitigation of damages ; and the evidence was rejected, by the court. And now, whether the valueof-the,property, or the amount, paidjobid it in, by the plaintiffs, or on their behalf, constitutes the rule of damages, is the question.
The evidence was rejected, in the court below, upon the authority of the case of Rotter v. Dickinson, stated at the bar to have been decided, some years ago, in the superior court, wherein the same question was made. This question is not clear of doubt: judicial opinions, which have been expressed in cases somewhat analogous, have not been uniform.
That the value of the property converted is the general rule of damages, in an action of trover, is admitted. To this rule there are exceptions. And both the rule and the exceptions, proceed upon the principle that the plaintiff ought to recover as much, and no more damages, than he has actually sustained ; which commonly is the value of the property ; and hence the general rule. No good reason, consistently with moral [485]*485principle, can be suggested, why greater damages should ever be recovered, than have in truth been sustained, except in those cases where the law permits, by way of punitive justice, the recovery of vindictive damages. Such damages are never recoverable in the action of trover. On this principle, if after conversion, the property be restored before suit, damages for the detention only can be recovered. And so, if an executor prosecute an action of trover, the defendant may show in mitigation, that he has paid debts due from the deceased. Whitehall v. Squire, Carthew 104. 2 Phil. Ev. 125. And for the same purpose, the defendant may show, on the general issue, that the plaintiff was only part owner of the chattel converted. Bloxam v. Hubbard, 5 East, 420. And on the same princi-j pie of indemnity for actual loss, the plaintiff has been permit-f ted to recover the enhanced value of the converted chattel, Fisher v. Prince, 3 Burr. 1363. Whitton v. Fuller, 2 Bla. Rep. 902.
In actions of trespass de bonis asportatis, which are concurrent with actions of trover, the value of the property converted is not certainly the rule of damages, because in these actions vindictive dajnjages may sometimes be given ; but the value of the property is always an essential enquiry, and so far furnishes a rule, that the damages may not generally fall below it. And therefore, so far as the present question is involved, the course of judicial decisions on this point, in these actions, may furnish authority. In the case of Brace v. Head 3 Dana, (Ken. Rep.) 491., which was an action of trespass de bonis asportatis for goods illegally sold on execution, it was holden, that if the avails of the sale went to the plaintiff’s benefit, this would operate to mitigate damages. The case of Baker & al. v. Freeman, 9 Wend. 36. in its circumstances, was essentially the present case. Personal chattels had been sold under an illegal school district warrant; and the agent of the owner bid off the property at the sale, for the benefit of his principal; and it was holden, that the amount paid and the interest, furnished the rule of damages. That case differs from this only in the form of the action, which was trespass de bonis asportatis. The same principle was recognized, by the same court, in the case of Clark v. Hallock, 16 Wend. 607.
Tn the present case, it is very evident, that the real damage [486]*486sustained by the plaintiffs, was the sum paid at the sale; by l|le i0gg weve restored to the possession of the plaintiffs, an[| were appropriated, as the motion states, for the benefit of Mrs. Baldwin and her children. And the real state of the case is, that the defendant took the logs in question under colour of legal process, and in the course of his proceedings, the plaintiffs have been illegally subjected to a loss of 66 dol* Iars, 70 cents, and no more. This sum, and the interest upon it, will indemnify them for the loss sustained ; and this, and no more, they ought to recover.
We think a contrary doctrine, in cases like this, would, in most cases, work great injustice. A claimant of goods taken on execution for the debt of another, generally attends at the place of sale, makes known his claim and forbids the sale. Purchasers dare not, under such circumstances, interfere, or at least are unwilling to do so, at any hazard, and cannot be induced to offer the real value for any such disputed article. The owner, therefore, by his own act, would be enabled to regain possession of his property, for a sum merely nominal. It would be an affront to the principles of justice to say, that after having thus obtained bis property, the owner should, in addition, recover its full value in money.
Notwithstanding this is our opinion, and we believe, that the evidence which the defendant offered in mitigation of damages, should have been received ; yet we do not think, that a new trial ought to be unconditionally granted. The plaintiffs, by remitting from the amount of the verdict recovered, all above the sum of 56 dollars, 70 cents, and the interest, can place the defendant in the same situation where a new trial ought to place him, and without its expense and delay. Our advice, therefore, will be, that for the rejection of the evidence offered in mitigation, a new trial be granted, unless the plaintiffs will remit on the record, so much of the sum found by the jury, as damages, as will leave due to the plaintiffs the aforesaid sum of 56 dollars, 70 cents, and the interest thereon. Evertson v. Sawyer, 2 Wend. 507. Smith v. Brush, 11 Conn. Rep. 359.
In this opinion the other Judges concurred.
New trial to be granted nisi.