charge and compound the same; 2. He had authority to dispose of the real estate of Pynchon; and, 3. To accomplish at discretion a complete adjustment of all the concerns of Pynchon. Does this latter clause confer any authority not relating to the business previously mentioned? The case of Hay v. Goldsmidt, cited by Lawrence, J., in Hogg v. Smith, 1 Taunt. 356,' was as follows: The plaintiff's testator had given a letter of attorney to J. and R. Duff, to ask, demand, and receive of the East India Company all money that might become due to him on any account whatsoever, and to transact all business, and upon non-payment, to use all such lawful ways and means as he might do if personally present. Under this power the attorneys received an India bill, which they indorsed to the defendants, who discounted the bill; the defendants received the money on the bill, to recover which this action was brought. The court was of opinion that the power to transact all business did not authorize the attorneys to indorse the bill; they said the most large powers must be construed with reference to the subjectmatter; the words "all business" must be confined to all business necessary for the receipt of the money. In Fenn v. Harrison, 3 Taunt. 757,' a special agent indorsed a bill contrary to the instructions he had received from his principals, and the court held that they were not liable. In the East India Company v. Hensley, 1 Esp. 111, the distinction was taken between a general and special agent, and where a broker was authorized to purchase the best Bengal raw silk, but purchased that which was not so. Lord Kenyon held the principal was not holden, because the contract was made without his authority. In Batty v. Carswell, 2 Johns. 48, an attorney was authorized to sign a note for the defendant of two hundred and fifty dollars, payable in six months, and he drew one payable in sixty days. Livingston, J., says "this was a special power, and ought to have been strictly pursued;" and the note was made without authority. In Nixon v. Hyserott, 5 Johns. 58, a power was given to execute, seal, and deliver such conveyances and assurances as might be necessary, but no special authority was given to bind the principal by covenants; the attorney executed a deed with the covenants of seisin, etc., and the court said a conveyance or assurance is good and perfect without warranty or personal covenants, but no authority was given to bind the principal by covenants. In Gibson v. Colt, 7 Johns. 390, the owners of a vessel authorized the master to sell a ship in the

1. 1 Taunt. 349.

2. 3 T. R. 757.

same manner as they themselves might and could make sale, etc. The master sold the vessel, and represented that she was a registered vessel, whereas she had only a coasting license. The court held the owners were not bound. The master was a special agent, and if he exceeded his authority when he made the representation, his principals were not bound, and therefore the remedy was against the agent alone. The same doctrine will be found in White v. Skinner, 13 Johus. 307 [7 Am. Dec. 381]; and Munn v. Commission Co., 15 Id. 44 [8 Am. Dec. 219], and many other cases.

It was contended on the part of the defendant that Pynchon had recognized the acts of the defendant subsequently, and thereby his liability on the note was established, even if the authority by the letter of attorney were doubtful; but I apprehend the true question is, whether the defendant had at the time authority to sign the note, and thereby obligate Pynchon to its payment. The note when executed was either the note of one or the other; if it was the note of Pynchon, then the defendant is not liable; if it was not the note of Pynchon, it was the defendant's note. The cases cited show that the authority of a special agent must be strictly pursued. The letter of attorney specifies two subjects upon which authority is given, and it is added, "to accomplish a complete adjustment of all my concerns in said state." According to the case in Taunton, this only extends to the collection of money and the disposition of the real estate. It seems to me it is going too far to say that the power given authorized the giving a note for six hundred dollars, or any other sum. Making an adjustment of his concerns, if it relates to any subject not previously mentioned in the letter of attorney, is no authority for signing a note. If the judge erred in his charge, it was an error in favor of the defendant. New trial denied.

ACTS OF AGENT BIND PRINCIPAL, WHEN.-The settled rule is, that though where an agency is general in its character, the acts of the agent bind the principal, yet if the agency be special, the principal is bound only by acts within the special authority: Blane v. Proudfit, 2 Am. Dec. 546; Munn v. Commission Co., 8 Id. 219; Thompson v. Stewart, Id. 168; Beals v. Allen, 9 Id. 221; Banorgee v. Hovey, 4 Id. 17; Moore v. Lockett, Id. 683; Martin's Adm'r v. United States, 15 Id. 129. That a special agent must strictly pursue his authority in order to bind his principal, is held, citing the principal case, in Williams v. Birbeck, Hoff. 364. An agent to collect can not commute or compromise the demand, or receive anything but money: Martin's Adm'r v. United States, 15 Am. Dec. 129, and note. An authority to locate and survey land confers no power to sell it, and a subsequent authority to sell will not validate a previous sale: Moore v. Lockett, 4 Id. 683. A special agent

AM. DEC. VOL. XXIV-5

to sell property can not apply it to the payment of his own debt: Parsons v. Webb, 22 Id. 220. A power of attorney "to act in all my business, in all concerns, as if I was present myself, and to stand good in law, in all my land and other business," confers no authority to sell land: Ashley v. Bird, 14 Am. Dec. 313. But a power to bind the principal by a bill drawn in his name may be inferred from the fact that the principal has acquiesced in the previous drawing of bills by the same person, and has paid bills so drawn without objection: Hooe v. Oxley, 1 Id. 425. The principal case is cited in Mills v. Carnly, 1 Bos. 164, to the point that a power of attorney confers no authority not necessary to the execution of powers expressly given; and in Hollsinger v. National Corn Exchange Bank, 6 Abb. Pr. N. S. 298, to the point that general words in a power of attorney must be construed to relate to special terms. So, generally, that in all instruments of a special character, general terms are to be construed with reference to the particular terms, in Taylor v. Harlow, 11 Barb. 235.

AGENT PERSONALLY BOUND, WHEN.-See Locke v. Alexander, 11 Am. Dec. 750, and note; Underhill v. Gibson, 9 Id. 82, and note; White v. Skinner, 7 Id. 381; McClure v. Bennett, 12 Id. 223; Stone v. Wood, 17 Id. 529. As to when an agent is not personally bound by a contract made by him, see McDonough v. Templeman, 2 Id. 510, and note. A public agent who fails to bind his principal by a contract, does not bind himself: Brown v. Austin, 2 Am. Dec. 11, and note; Walker v. Swartwout, 7 Id. 334; Stinchfield v. Little, 10 Id. 65; Freeman v. Otis, 6 Id. 66; McClenticks v. Bryant, 14 Id. 310, and note; Belknap v. Reinhart, 20 Id. 621, and note. As to the liability of one signing a note as agent for another, without authority, see Dusenbury v. Ellis, 2 Am. Dec. 144, and note; and Bullou v. Talbot, 8 Id. 146. In Pentz v. Stanton, 10 Wend. 277, the principal case is cited to the point that if the name of the principal appears on the face of a contract executed by an agent, and the agent intended to bind the principal and not himself, and acted by competent authority, he is not personally bound. But the case is relied on as authority for the position that one assuming to be another's agent, and executing a note as such, without authority, is himself bound, in Palmer v. Stephens, 1 Denio, 480; Hegeman v. Johnson, 35 Barb. 205, where the doctrine is said to be "somewhat anomalous," but too well settled to be disturbed, at least by that court: De Witt v. Walton, 9 N. Y. 575; White v. Madison, 26 How. Pr. 483; S. C., 26 N. Y. 123, where Selden, J., however, remarks that the authority of Rossiter v. Rossiter, and of some other cases there cited on this point, has been "somewhat shaken" by Walker v. Bank of New York, 9 N. Y. 582. In Richardson v. Crandall, 47 Barb. 364, the principal case is referred to as authorizing the position that generally, where an agent contracts beyond the scope of his powers, he is personally liable to the person with whom he deals. In Plumb v. Milk, 17 Barb. 78, the case is cited on the point as to where the burden of proof rests when an agent's authority to bind his principal is denied in an action against him.

BAKER V. WHEELER AND MARTIN.

[8 WENDELL, 505.]

THERE IS NO PARTNERSHIP IN REALTY, but partners are tenants in common in land.

WHERE TENANTS IN COMMON OF TIMBER LAND ARE PARTNERS in the lumber business, they are partners in the timber on such land when converted into logs.

LICENSE BY ONE TENANT IN COMMON to a third person to cut timber on the common land is good, and gives such person title to the trees cut, especially where the license is given in satisfaction of a demand against all the co-tenants.

SAWING TREES CUT BY AND BELONGING TO ANOTHER into logs is a conversion.

RULE OF DAMAGES IS A QUESTION OF LAW in an action of trover, and the jury are to ascertain the quantum of damages according to the rules of law.

OWNER OF PROPERTY TORTIOUSLY TAKEN IS ENTITLED TO ITS ENHANCED VALUE until it has been so changed as to alter the title.

OWNER OF LOGS TORTIOUSLY TAKEN AND CONVERTED INTO LUMBER is entitled to recover the value of the lumber.

INTEREST IS PROPERLY GIVEN IN TROVER as well as the value of the property converted.

TROVER to recover damages for the conversion of a quantity of saw logs. At the trial at the circuit, it appeared that the plaintiff and the defendants, being joint owners of certain timber land, made a division of it, assigning one part to the plaintiff, and the other to the defendants, who were partners in the lumber business, no lines being run, but the agreement being that if either party encroached upon the other's land, and took timber, an equal quantity of timber should be allowed him from the land of the party so encroaching. Afterwards it appeared that the defendants had taken about one thousand three hundred feet of timber from the plaintiff's land, and a portion of the defendants' land was accordingly assigned him from which to take as much timber as he had lost. On his proceeding to do so, it was found that there was not enough timber on such portion by about six thousand feet to make up what he had lost. Wheeler, one of the defendants, accordingly agreed that he might take the quantity so deficient from another part of the defendants' land. The plaintiff thereupon cut two hundred and twenty saw logs on the defendants' other land. One Thompson, alleged to be a servant of the defendants, took these logs to a mill at Fort Edward, in 1824, where they were credited to the defendants, and sawed into boards and plank, and carried to market. The evidence as to Thompson being the defendants' servant is stated in the opinion. The value of the logs where they were cut was proved to be one dollar and twelve and one half cents each, and their value as lumber at Fort Edward was proved to be from two to three dollars. Evidence as to the value of them as logs at the latter place offered by the defendants was rejected. The judge instructed the jury that if Thompson was the defendants' servant,

and took the logs of the plaintiff, and the defendants converted them into lumber, they were liable; that if taken to Fort Edward, and sawed into boards and plank, the plaintiff was entitled to recover their value as such, with interest, but if not taken to Fort Edward he could recover only their value when cut. Verdict for the plaintiff for six hundred and two dollars and eighty cents damages, which the defendants moved to set aside.

R. Weston, for the defendants.

S. Stevens, for the plaintiff.

By Court, SAVAGE, C. J. The plaintiff showed sufficient title to the logs in question. The defendant Wheeler gave him license to cut them on the land of the defendants, who were tenants in common of the land, and partners in the lumbering business. Though the defendants were partners, there is no partnership in real estate: 15 Johns. 160. The partners are tenants in common; but I apprehend that tenants in common in timber land, who are also partners in the lumber business, are partners of the timber when converted into logs. In Martyn v. Knowllys, 8 T. R. 145, it was decided that no action lay in the nature of waste by one tenant in common against another for cutting down trees of a proper age and growth for being cut; and Lord Kenyon said: "If one tenant in common were liable in such an action, it would have the effect of enabling him to prevent the other tenant in common taking the fair profits of their estates; in another form of action he might recover a moiety of the value of the trees that were cut." This case decides that one tenant in common may cut trees proper to be cut on the land held in tenancy in common, and the remedy of the co-tenant is in an action against the co-tenant cutting the timber, for his share of the value. If one tenant in common may cut himself, he may give license to another. Here the license was given in satisfaction of a fair demand against both tenants in common, and on that ground the plaintiff had title to the logs. But there is another ground. Both defendants agreed before the timber was cut on the plaintiff's land by the defendants, that if they did cut on the land of the plaintiff, he might cut as much on their land. The plaintiff has cut no more on the defendants' land than they cut on his land. It is said that the plaintiff was concluded by accepting the timber assigned; but it can not be doubted that it was competent for the defendant Wheeler to waive that acceptance, and