SO LONG AS ATTORNEY ACTS STRICTLY IN EXECUTION OF DUTIES OF HIS PROFESSION, and does not actually participate in the commission of the trespass, he is not liable with his client for the trespass; but when he steps be yond that line and actively aids his client in the execution of his purpose he is not shielded from responsibility. Therefore he would be liable when he employed workmen and instructed them to remove certain fixtures wrongfully, and paid them for it: Schalk v. Kingsley, 42 N. J. L. 33, citing the principal case. An attorney is liable for suing out void process upon which a party is arrested. So, where he does so maliciously and without probable cause: Note to Bissell v. Gold, 19 Am. Dec. 493.

EXECUTION OF SEALED INSTRUMENT BY AGENT HAVING PAROL AUTHORITY ONLY does not bind principal if the instrument requires a seal; but if no seal is necessary, the instrument is valid as the simple contract of the principal: Worrall v. Munn, 55 Am. Dec. 330, and note 343. Where the contract made by agents of the corporation would have bound the corporation if it had been a parol contract, the fact that the agents signed it with their seals will not invalidate it as against the corporation, but it will be sustained as a simple contract: Haight v. Sahler, 30 Barb. 223, citing the principal case. It was held in Fullam v. Inhabitants of West Brookfield, 9 Allen, 6, that where a town authorizes a committee to bind them by contract, and the committee enter into a sealed contract in their individual names as "committee for the town,' such contract does not bind the town, but the individuals who sign it. And Metcalf, J., in delivering the opinion of the court, said: “In Dubois v. Delaware & Hudson Canal Co., 4 Wend. 285 (recognized in Worrall v. Munn, 5 N. Y. 229, and Troy v. Williams, 13 Id. 585), it was decided that when an authorized agent makes a contract in his own name and under his private seal, which contract is for the sole benefit of the principal, and which is not required to be under seal, it is to be deemed the simple contract of the principal, on which the proper action against him for a breach thereof is assumpsit. ... We are now asked to adopt the doctrine of the foregoing cases, so far as to sustain the present action of contract against the defendants. This we cannot do. The doctrine is anomalous, and was resorted to by the courts of New York in consequence of their having rejected the common-law remedy against the agent personally, and for the purpose of giving some remedy against the principal, which the plaintiff would not otherwise have. As we adhere to the cominon-law remedy in a case like the present, the plaintiff needs no new remedy, and can have none at our hands.' The unnecessary addition of a seal to an instrument by an agent authorized by parol will not vitiate it: Worrall v. Munn, 55 Am. Dec. 330, note 343. Authority to execute a sealed instrument must be under seal, and ratification of such an act must be of the same character: Drumright v. Philpot, 60 Id. 738; note to Worrall v. Munn, 55 Id. 343.

LIABILITY ON INDEMNITY BOND FOR UNLAWFUL SEIZURES: See Hutchinson v. Lord, 60 Am. Dec. 381. Judgment creditors who direct the sheriff to sell property assigned by the judgment debtor in trust for the benefit of creditors, and who indemnify him for so doing, are jointly liable with the sheriff to the assignee for such illegal act: Ball v. Loomis, 29 N. Y. 417. Indemnitors are liable for an unlawful seizure of the property named in the bond; but where the bond indemnifies against seizing a safe, the indemnitors will not be liable for the improper seizure of property contained in the safe, unless they knew that the safe could not be taken without its contents: Chapman v. Douglas, 15 Abb. Pr., N. S., 426; S. C., 5 Daly, 250, both citing the principal case.

RATIFICATION OF CONTRACT FOR SALE OF LANDS MADE BY AGENT IN HIS OWN NAME.-In Squier v. Norris, 1 Lans. 287, it was held that where a contract for the sale of lands is made by an agent in his own name, without disclosing the agency, the contract is not binding upon the principal, nor would the contract be ratified and made binding by a receipt of a portion of the purchase money by the principal, and his subsequent parol promise to be bound by the contract, and though the principal case, with others, was urged upon the court as authority to the point that a party cannot repudiate the acts of an agent performed without authority, where they have been subsequently ratified, and some benefit has been derived from them, it was said that these cases were not authority to the extent that a parol agreement for the sale of real estate may be a ratification of the contract made by another party: See Newton v. Bronson, infra, and note.

NEWTON V. BRONSON.

[13 NEW YORK (3 KERNAN), 587.]

NEW YORK COURT OF APPEALS CANNOT, IN EQUITY SUIT, REVIEW QUESTIONS OF FACT determined by the supreme court.

SPECIFIC PERFORMANCE OF CONTRACT FOR SALE OF LANDS SITUATED IN ANOTHER STATE will be decreed by chancery against a resident within the jurisdiction duly served.

CODE PROVISION THAT ACTIONS CONCERNING LAND SHALL BE TRIED IN COUNTY WHERE Land is Situated does not remove jurisdiction to decree specific performance of contract for sale of lands without the state, since it does not apply to lands not situated in any county of the state. EXECUTOR CANNOT, AS EXECUTOR MERELY, CONVEY LANDS IN ANOTHER STATE, but may do so in virtue of a power given in the will; and in so doing, he acts as donee of a power, and not under an authority conferred by the surrogate.

EXECUTOR CANNOT DELEGATE TO AGENT DISCRETIONARY POWER TO SELL LANDS.

CONTRACT FOR SALE OF LAND OF ESTATE MADE BY ANOTHER THAN EXECUTOR, who has power to sell lands, is made valid when the executor ratifies it, with full knowledge of the facts, since in ratifying he exercises the discretionary powers of his personal trust.

WRITTEN CONTRACT FOR SALE OF LANDS MADE BY UNAUTHORIZED AGENT may be ratified by parol, as the original authority might be given by parol; and in either case the statute of frauds is satisfied.

WRITTEN CONTRACT FOR SALE OF LANDS MADE BY ONE TO WHOM SUCH POWER COULD NOT BE DELEGATED, as by one assuming to act for an executor who is by the will donee of a power to sell, may be validated by ratification, but the ratification must be in writing, to satisfy the stat ute of frauds.

INSTRUMENT ITSELF NEED NOT BE SIGNED BY PARTY, TO SATISFY STATUTE OF FRAUDS, but it is sufficient if he signs some writing that refers to and accepts the instrument as his contract.

APPEAL from a judgment ordering specific performance of a contract to sell and convey land. The defendant was executor

of the former owner of the land, which lay in Illinois. Brokers acting in his name negotiated a sale of it, which the executor approved; but owing to a dispute arising about sufficiency of payment, he refused to convey, raising the objections considered in the opinions. The court below decreed a conveyance, and he appealed. The appeal was submitted.

J. Larocque, for the appellant.

I. S. Newton, for the respondent.

By Court, DENIO, C. J. This action was commenced subsequent to the enactment of the code of procedure, and all the proceedings therein are subject to its provisions. It was tried by the court without a jury. The question principally discussed in the printed briefs submitted by the counsel is, whether the purchase money mentioned in the contract for the sale of the premises in question was fully paid up by the plaintiff as assignee of the original vendee. Whether it was entirely paid or not depends upon the question whether the sum of thirty-three dollars and fifty cents, charged by Messrs. Ogden & Jones for their services respecting the mortgage of Erastus Newton, and deducted from the money paid by Isaac S. Newton to them, was properly retained by those gentlemen, or whether it ought to have been applied on the contract. This depends upon a variety of evidence, written and oral, and was purely a question of fact. There is no statement of facts found; but it is apparent from the judgment, as well as from the opinion of the judge before whom the case was tried at special term, that this sum was by the court allowed to the plaintiff on account of the moneys payable by his contract. The determination of questions of fact in this class of cases belongs to the supreme court, whose judgment upon such questions we have no authority to review: Dunham v. Watkins, 12 N. Y. 556; Griscom v. Mayor etc. of New York, Id. 586. We shall therefore assume, as the supreme court has adjudged, that the whole purchase price of the land contracted for was paid. There are, however, certain questions of law which arise upon the pleadings and the conceded facts, which are properly before us.

1. The contract was for the purchase of lands lying in the state of Illinois, but the parties are residents of this state, and subject generally to the jurisdiction of its courts. The defendant's counsel insists that the court below had no jurisdiction in such a case to decree a specific performance. It is not denied but that such a jurisdiction existed in the court of chancery,

nor but that it passed to the supreme court by the provisions of the present constitution. That concession could not be avoided consistently with a settled course of adjudication: Massie v. Watts, 6 Cranch, 148; Shattuck v. Cassidy, 3 Edw. Ch. 152; Ward v. Arredondo, 1 Hopk. Ch. 213; Mead v. Merritt, 2 Paige, 402; Mitchell v. Bunch, Id. 606 [22 Am. Dec. 669]; Sutphen v. Fowler, 9 Id. 280. The cases in the English court of chancery will be found referred to by Chancellor Walworth in the last of these cases. The doctrine thus established is that this court, having jurisdiction of the person of the defendant, will, by its process of injunction and attachment, compel him to do justice by the execution of such conveyances and assurances as will affect the title of the property in the jurisdiction within which it is situated. The present supreme court possesses the jurisdiction formerly exercised by the court of chancery: Const., art. 6, sec. 3; Laws 1847, p. 325, sec. 16. The reliance of the defendant's counsel is upon section 123 of the code. That provision relates to "the place of trial in civil actions," and declares that certain actions shall be tried in the county in which the subject of the action or some parts thereof is situated, subject to the power of the court to change the place of trial. Among the actions enumerated are such as are brought "for the recovery of real property, or of an estate or interest therein, or for the determination, in any form, of such right or interest." The latter branch of the statute is vague and indefinite, but the language is comprehensive, and it may perhaps embrace suits for a specific performance of contracts for the sale of lands where they are situated in this state. It has been so held in the superior court of the city of New York, and I am inclined to assent to the views of that court: Ring v. McCoun, 3 Sandf. 524. Conceding that it is sufficiently broad to embrace such suits, it clearly has no application to cases where the subject of the action does not lie within any county in this state. The object of the section is to determine the venue in the classes of actions to which it refers, and it does not profess to limit or define the jurisdiction of the court. It is sought to be implied from it that where, in the actions enumerated, the subject of the controversy does not lie in some county in this state, no action whatever will lie. This would be a very violent implication. When the legislature determines to abolish any portion of the jurisdiction of the superior courts of this state, we may expect that it will be done in direct and unequivocal language, referring to that particular subject, and that the pro

visions will not be found lurking under a remote implication drawn from provisions relating to the place of trial. This objection to the judgment under review is untenable.

2. It is argued that the defendant's office of executor does not extend to the lands in Illinois, upon the principle that letters testamentary and of administration have no force beyond the jurisdiction in which they are granted: Shultz v. Pulver, 11 Wend. 372. Hence it is said the defendant cannot effectually perform the judgment of the supreme court, not being able, as it is insisted, to affect the title to lands out of this state. But the authority of the defendant in respect to real estate is not conferred by the probate court. He is the donee of a power at common law and under the statute; and although it was by the will made a condition to his acting under the power that he should qualify as executor, when he has performed that condition he acts in conveying the lands as the devisee of a power created by the owner of the estate, and not under an authority conferred by the surrogate: Conklin v. Egerton, 21 Wend. 430, 436.

3. It is urged by the defendant's counsel that the contract of sale is void for the reason that it was made by an agent of the defendant, according to the maxim, Delegatus non potest delegare. The rule of law no doubt is, that a power of this kind is a personal trust and confidence, which cannot be committed to another than the grantee or the donee of the power: Berger v. Duff, 4 Johns. Ch. 369. Besides this difficulty, the defendant in his answer denies that the agents who executed in his name the contract which the plaintiff seeks to enforce had any authority, in fact, from him to execute it, and the plaintiff has failed to show any power of attorney or other express authority from him to them. The last objection is fully overcome by ample and repeated acts of acknowledgment and ratification by the defendant of the contract in question, in writing as well as by parol. The evidence upon this point was quite sufficient to enable the court to decide that the agents were authorized by parol to execute the contract, and a parol authority under our statute and under the statute of Illinois, which is identical in its provisions, would be sufficient. The contract itself must be in writing, but where it is signed by an agent, the power to execute it may be by parol: Lawrence v. Taylor, 5 Hill, 107, 112; Champlin v. Parish, 11 Paige, 405; McWhorter v. McMahan, 10 Id. 386. That a subsequent ratification is equally effectual as an original authority is well settled: Weed v. Carpenter, 4 Wend. 219; Story on Agency,