The Chancellor.
This is an appeal by C. Green from an order of the assistant vice chancellor of the first circuit, upon exceptions to a master’s report, as to the right to surplus moneys arising from a sale of the mortgaged premises, under a decree. And the only question necessary to be considered is, whether the power of attorney from the appellant to his brother, W. C. Green, was sufficient to authorize the latter to assign the judgment in question. The power is not one to do a specific act, and concluding with general words, which general words are usually restricted to the specific object of the power. But it is a general power in the most extended sense of the term. It commences by making the brother the true and lawful attorney for the appellant, “ for me, and in my name, place, and stead, and to my use, to do, transact, and perform every act, matter, deed, or thing whatsoever, which I myself might or could lawfully do if personally present; and, also, to make, execute, sign, seal, deliver, draw, subscribe, endorse, accept, and negotiate, all bills, bonds, drafts, checks, notes, acceptances, transfers, assignments, compositions, releases, and other instruments whatsoever, which he may deem useful, necessary, or advantageous; and to collect and receive all moneys due, or which may become due to me, with power of substitution and revocation.” And it concludes with the general grant to such attorney, of full power and authority in the premises. Under this general power there can be no doubt that the attorney had as much authority to execute an assignment of the judgment, upon receiving the whole or a part thereof, or to make an accord and receive a part of the judgment in satisfaction of the whole, as he had to draw or endorse a note, or to do any other act for the constituent.
R. Manning, Attorney & Counsel for appellant, Chas. Green.
First.—power.
1. A person dealing with an agent, or attorney in fact, is bound to know whether he is such; and the nature and extent of the authority given by the principal or constituent; and to that end he should require the attorney to produce the power for his inspection. (3 Hill, 262,279 ; 5 Ves. 213.) In the latter, the lord chancellor says, <CI take it not merely to be a principle of the law of England, but by the Civil Law, that if a person is acting ex mandato, those dealing with him must look to his mandate.”
2. There is no substantial difference between a special power of attorney to do a particular act, and a general power [298]*298to do all acts in a particular business. And on this principle, a general power, in terms, has been cut down to a particular purpose, according to the intent of the party giving the power. (The North River Bank v. Aymar and others, 3 Hill’s Rep. 262; Story on Agency, 70; Atwood v. Mannings, 7 Barn. & Cress. 278; 1 M. & R. 78; 8 Wend. 494; 1 Taunt. 347; 2 Cow. Rep. 200, 233.)
[297]*297Nor does it lie in the mouth of the constituent, or of his attorney, to say, this assignment was not made by virtue of this power, for the assignment purports to be made .under the hand and seal, of Charles Green, the party of the first part therein, and is subscribed by the attorney thus: “ Charles Green, by his attorney, Walter C. Green.” [l. s.J By the manner of executing the instrument, therefore, W. C. Green held himself out to Forbes as being the attorney of his brother. And it is wholly incredible, that he did not at that time believe he had a power which authorized him to execute the assignment as the attorney of his brother, and that he intended to commit a fraud upon Forbes, by acting in a character which he did not possess.
Again, it is immaterial whether this instrument was good as an assignment to be filled up in the name of such person as Forbes should think proper to insert therein, or not. For if that instrument is invalid as an assignment, for any reason, the agreement between W. C. Green and Forbes, and the payment of the $50, and the giving of the note, would operate as an accord and satisfaction, which the attorney had a right to make and receive, under the power. The whole interest of the appellant in the judgment was, therefore, extinguished, in one way or the other.
The order appealed from must be affirmed, with costs, and the proceedings are remitted to the vice chancellor of the first circuit. ■
[298]*298The object of the power of attorney in question in this case, was to authorize Walter C. Green to do all acts for Charles Green in a particular business, viz.: his banking business at the Branch Bank of U. S., in the city of New-York, in which said Cnarles Green had deposited said power for that'purpose only. A like power of attorney was also deposited by him in the custom-house, and in several other banks of the city of New-York. {See p. 11, fol. 4; p. 12, fols. 10, 11; p. 18,' fol. 31; p. 23,fols. 46, 47.)
A power of attorney, like any other deed, can take effect only by, and according to its delivery, and is limited and restricted accordingly.
In view of these general principles, and of the facts and circumstances of the. case, it is contended, that the assignment of the judgment in question is void as to Charles Green, because Walter C. Green was not authorized to make it, and because it was a fraud on Charles Green.
3. It appears that on the 14th day of July, 1832, Charles Green recovered this judgment in the superior court of the city of New-York against Hezekiah Kelly and Horace D. Forbes, for the sum of $386.01 damages and costs. And, that, on the 1st of March, 1836, the master to whom it was referred, report ed to the court, that there was then due on this judgment the sum of $484.03, and that it was a lien to that amount on the surplus moneys paid into court iii this cause, and that the claimant Charles Green was the owner of the judgment and entitled to the money.
4. It appears, also, that one Henry W. Brentnall claimed title to this judgment by an assignment of it to him for $50, by Walter C. Green, as attorney for Charles Green, made on the 24th day of April, 1835, of which Charles Green was igno[299]*299rant until it was produced before the master. And he denies that Walter C. Green had any authority for making it.
5. It was conceded on the other side, that this assignment does not bind Charles Green, unless Walter C. Green was invested with adequate power to make it. And. for that power they referred to a power of attorney on file in the office of the Bank of the United States, in the city of New-York, deposited there by Charles Green himself, on the 12th day of January, 1830, and there remaining on file on the 23d of January, 1836, which accidentally came to their knowledge in the course of their examination of their witness, Walter C. Green, whom they produced to prove that he was authorized to make the assignment. (P. 18, fol. 31, and p. 26; p. 23, fol. 46.) ’
6. But Walter C. Green expressly testified, that he did not act under that power, or any other written power,"when he compromised this judgment with Forbes, and signed-the instrument prepared by Forbes for transferring it to Brentnall, as Forbes’s trustee. And that he never acted under said power except for banking purposes.
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The Chancellor.
This is an appeal by C. Green from an order of the assistant vice chancellor of the first circuit, upon exceptions to a master’s report, as to the right to surplus moneys arising from a sale of the mortgaged premises, under a decree. And the only question necessary to be considered is, whether the power of attorney from the appellant to his brother, W. C. Green, was sufficient to authorize the latter to assign the judgment in question. The power is not one to do a specific act, and concluding with general words, which general words are usually restricted to the specific object of the power. But it is a general power in the most extended sense of the term. It commences by making the brother the true and lawful attorney for the appellant, “ for me, and in my name, place, and stead, and to my use, to do, transact, and perform every act, matter, deed, or thing whatsoever, which I myself might or could lawfully do if personally present; and, also, to make, execute, sign, seal, deliver, draw, subscribe, endorse, accept, and negotiate, all bills, bonds, drafts, checks, notes, acceptances, transfers, assignments, compositions, releases, and other instruments whatsoever, which he may deem useful, necessary, or advantageous; and to collect and receive all moneys due, or which may become due to me, with power of substitution and revocation.” And it concludes with the general grant to such attorney, of full power and authority in the premises. Under this general power there can be no doubt that the attorney had as much authority to execute an assignment of the judgment, upon receiving the whole or a part thereof, or to make an accord and receive a part of the judgment in satisfaction of the whole, as he had to draw or endorse a note, or to do any other act for the constituent.
R. Manning, Attorney & Counsel for appellant, Chas. Green.
First.—power.
1. A person dealing with an agent, or attorney in fact, is bound to know whether he is such; and the nature and extent of the authority given by the principal or constituent; and to that end he should require the attorney to produce the power for his inspection. (3 Hill, 262,279 ; 5 Ves. 213.) In the latter, the lord chancellor says, <CI take it not merely to be a principle of the law of England, but by the Civil Law, that if a person is acting ex mandato, those dealing with him must look to his mandate.”
2. There is no substantial difference between a special power of attorney to do a particular act, and a general power [298]*298to do all acts in a particular business. And on this principle, a general power, in terms, has been cut down to a particular purpose, according to the intent of the party giving the power. (The North River Bank v. Aymar and others, 3 Hill’s Rep. 262; Story on Agency, 70; Atwood v. Mannings, 7 Barn. & Cress. 278; 1 M. & R. 78; 8 Wend. 494; 1 Taunt. 347; 2 Cow. Rep. 200, 233.)
[297]*297Nor does it lie in the mouth of the constituent, or of his attorney, to say, this assignment was not made by virtue of this power, for the assignment purports to be made .under the hand and seal, of Charles Green, the party of the first part therein, and is subscribed by the attorney thus: “ Charles Green, by his attorney, Walter C. Green.” [l. s.J By the manner of executing the instrument, therefore, W. C. Green held himself out to Forbes as being the attorney of his brother. And it is wholly incredible, that he did not at that time believe he had a power which authorized him to execute the assignment as the attorney of his brother, and that he intended to commit a fraud upon Forbes, by acting in a character which he did not possess.
Again, it is immaterial whether this instrument was good as an assignment to be filled up in the name of such person as Forbes should think proper to insert therein, or not. For if that instrument is invalid as an assignment, for any reason, the agreement between W. C. Green and Forbes, and the payment of the $50, and the giving of the note, would operate as an accord and satisfaction, which the attorney had a right to make and receive, under the power. The whole interest of the appellant in the judgment was, therefore, extinguished, in one way or the other.
The order appealed from must be affirmed, with costs, and the proceedings are remitted to the vice chancellor of the first circuit. ■
[298]*298The object of the power of attorney in question in this case, was to authorize Walter C. Green to do all acts for Charles Green in a particular business, viz.: his banking business at the Branch Bank of U. S., in the city of New-York, in which said Cnarles Green had deposited said power for that'purpose only. A like power of attorney was also deposited by him in the custom-house, and in several other banks of the city of New-York. {See p. 11, fol. 4; p. 12, fols. 10, 11; p. 18,' fol. 31; p. 23,fols. 46, 47.)
A power of attorney, like any other deed, can take effect only by, and according to its delivery, and is limited and restricted accordingly.
In view of these general principles, and of the facts and circumstances of the. case, it is contended, that the assignment of the judgment in question is void as to Charles Green, because Walter C. Green was not authorized to make it, and because it was a fraud on Charles Green.
3. It appears that on the 14th day of July, 1832, Charles Green recovered this judgment in the superior court of the city of New-York against Hezekiah Kelly and Horace D. Forbes, for the sum of $386.01 damages and costs. And, that, on the 1st of March, 1836, the master to whom it was referred, report ed to the court, that there was then due on this judgment the sum of $484.03, and that it was a lien to that amount on the surplus moneys paid into court iii this cause, and that the claimant Charles Green was the owner of the judgment and entitled to the money.
4. It appears, also, that one Henry W. Brentnall claimed title to this judgment by an assignment of it to him for $50, by Walter C. Green, as attorney for Charles Green, made on the 24th day of April, 1835, of which Charles Green was igno[299]*299rant until it was produced before the master. And he denies that Walter C. Green had any authority for making it.
5. It was conceded on the other side, that this assignment does not bind Charles Green, unless Walter C. Green was invested with adequate power to make it. And. for that power they referred to a power of attorney on file in the office of the Bank of the United States, in the city of New-York, deposited there by Charles Green himself, on the 12th day of January, 1830, and there remaining on file on the 23d of January, 1836, which accidentally came to their knowledge in the course of their examination of their witness, Walter C. Green, whom they produced to prove that he was authorized to make the assignment. (P. 18, fol. 31, and p. 26; p. 23, fol. 46.) ’
6. But Walter C. Green expressly testified, that he did not act under that power, or any other written power,"when he compromised this judgment with Forbes, and signed-the instrument prepared by Forbes for transferring it to Brentnall, as Forbes’s trustee. And that he never acted under said power except for banking purposes. That it never was delivered to him; that it never was in his possession; that,-he never saw said power, or heard it read, and was ignorant of its contents, excepting that he had been informed by said Charles Green that he had lodged powers of attorney in certain banks in the city of New-York and at the custom-house, to authorize him to transact for him his custom-house and banking business, respectively. And, moreover, this power of attorney had then become dormant, for its authority had terminated more than two .years before, when said Charles Green had retired from business, and Walter C. Green was no longer in his employ. For then the business, for the transaction of which the power had been given, was executed; and the power itself remained in the possession, and was the property of the bank, as a document. (Seep. 12,fols. 8, 9,10, 'll; p. 16,fol. 22; p. Yl,fols. 26, 27 ; p. 18, fol. 31; pp. 23, 24, fols. 46, 47, and p. 26; Kent’s Com. 2 v. 643.)
7. As this power of attorney was never delivered to Walter C. Green, nor in his possession, but only to the United [300]*300States Bank, it was not a general power to him, except for the purposes for which it was delivered to the bank.
8. The intent of the person who gives a power of attorney is to govern its construction and use. This is a well settled rule. And it is manifest, that this power was never intended by Charles Green to be applied to the compromise, or collection or transfer of this debt, or judgment, after his repeated rejections of Forbes’s offers. And especially, since Forbes a year or two before had offered 50 per cent., which Charles Green had rejected, and put the claim in suit and recovered the judgment in question, declaring he would take nothing short of the full amount. (Seep. 17,jfols. 27, 28; p. 10, 11, fols. 2, 3, 4.)
9. And this intent as to the power is further manifested by another circumstance : That when shortly after this assignment, Walter D. Green went to the states of Maine and New-Hampshire, to sell and convey certain lands for the said Charles Green, he was furnished with a power of attorney for the purpose. (See p. 15, fols. 20.)
10. It has been said that the safety of persons dealing with attorneys in fact, requires that this assignment should be sustained. But it is contended that this position is not tenable, and there is no rule of law to support it. Walter C. Green proves, (and he is their own witness,) that he assigned the judgment to Forbes without any authority from Charles Green, who, he says, was entirely ignorant of it; and when he informed him of it, he refused to ratify it. And when he told Forbes of this, and offered to return the $50 and the note, Forbes did not pretend that he had been either wronged or deceived by him, but said he had expected to have been benefited by the assignment. (They neither of them appear to have had any knowledge or reference to this power, in this transaction, p. 13, fol. 13; p. 14, fob. 14, 17, 18.)
Second.—assignment in blank.
1. But, supposing this power to be sufficient, and that Walter C. Green acted under it in making the assignment, yet the assignment is invalid, because it was executed in blank [301]*301without any description of the judgment, or designation of the assignee, and in that state delivered to Forbes.
FRAUD.
BÜ" No proof that Forbes knew it was a lien on Kelly’s land.
2. It is void, also, because it was obtained from Walter C. Green by the application and misrepresentation of Forbes, after his propositions had been repeatedly rejected by Charles Green. And Walter C. Green was ignorant of the value of the judgment which Forbes represented to him to be "worth nothing; when in fact it was good to the full amount of it, as a lien on the real estate of Kelley.
3. The justice of the case requires, that Charles Green should not be held bound by this assignment. For, while Forbes loses nothing, but in fact gains the object he professed to have in view in buying up the judgment, Green is defrauded of a just demand.
NOT ACCORD AND SATISFACTION.
4. But it is. said by the chancellor, that if this assignment, for any reason, is invalid, the agreement between Walter C. Green and Forbes, and the payment of the $50 by the latter, and giving his note for $27 more, would operate as an accord and satisfaction, and extinguish the whole interest of the appellant in the judgment. But this position is disputable. For, according to the authorities, the acceptance of a less cannot be a satisfaction in law of a greater sum then due; nor can it operate as an extinguishment of the debt. There is, therefore, no merger or extinguishment of this judgment. (Fitch v. Sutton, 5 East, 230; Cumber v. Wane, 1 Str. 426; Heathcote v. Crookshanks, 2 J. R. 449; Seymour v. Minturn, 17 J. R. 169; Boyd v. Hitchcock, 20 J. R. 76.)
5. The order or decree appealed from is also erroneous, because it directs the said fund in court to be applied to the payment of a judgment in favor of Lewis Decasse and Pierre A. Miege, against Hezekiah Kelly and Horace D. Forbes: whereas, in the master’s said report no such judgment is men[302]*302tioned; the judgment there stated is against Hezekiah Kelly only.
[jS6S” You have no interest in that question, if your judgment is assigned. J
Now, a judgment against two cannot be taken to be the same as a judgment against one only. (Readshaw v. Wood, 4 Taunt. 13.)
6. The decree of the chancellor, and also that of the assistant vice chancellor, ought to be reversed, with costs, and the master’s report confirmed; and directions given for an order to be entered, directing the clerk of the first circuit to pay to Charles Green or his solicitor, out of the said surplus fund, the amount of said Green’s judgment, as reported by the master.
R. Manning, of Counsel for appellant.
Edward H. Seely, Attorney, and
W. A. Seely, Counsel for respondents, Decasse & Miege.
First. The power of attorney by Charles Green to Walter C. Green was inform and terms sufficient to authorize the latter to make the assignment—or to make an accord and satisfaction as to the judgment, and the claim of Charles Green on the surplus funds in court became thereby extinguished.
Second. It did not lie in the mouth of Charles Green or oí Walter C. Green to say that the payment was not made in pursuit of the powers given.
Third. That the statement of Walter C. Green given in evi-. dence before the master, that he did not believe when he executed the assignment he was authorized to do so, and also that he did not know that he had executed an assignment of the judgment, were wholly incredible.
Fourth. The procurement by Forbes as a defendant in the judgment, of the assignment for his own benefit, satisfied and extinguished all claim on the judgment by or for him, and thus gave the judgment of Decasse & Miege the sole right to the fund in court, subject to the $25 directed to be paid to Brentnall.
Fifth. It is manifest from the evidence before the master that the appellant was induced to deny the power and to repudiate [303]*303the assignment in consequence of the unexpected appearance of the surplus fund in court, after the execution and delivery of the assignment, and the whole face of the evidence is marked with a want of frankness and with insincerity.
W. A. Seely, of Counsel for respondents.
Assignment—though in blank, it was good to extinguish the judgment—being given for the benefit of Forbes, the debtor—authority to fill up blanks.
Decision.—Decree affirmed unanimously.
Note.—Where an assignment of a judgment was executed by “ C. G-. [L. S.] by his attorney, W. C. G.and it appeared that W. C. G. had a general power of attorney from C. G., which was claimed by C. G. to have been in fact restricted to a particular business, of which this assignment was not within its scope-^-AeZiZ, that by the manner of executing the assignment, the constituent and his attorney were estopped from saying that the assignment was not made by virtue of the power.
A negotiation and agreement by the attorney to receive part payment or accord and satisfaction for a judgment belonging to his constituent under such a power, and the actual receipt of such payment—held, valid and binding on the constituent.
-Not reported.