Hunt vs. Rousmanier. stand by the word "interest," an interest in that which is to be produced by the exercise of the power, then they are never united. The power to produce the interest must be exercised, and by its exercise, is extinguished. The power ceases when the interest commences, and therefore, cannot, in accurate law language, be said to be "coupled" with it. But the substantial basis of the opinion of the court on this point, is found in the legal reason of the principle. The interest or title in the thing being vested in the person who gives the power, remains in him, unless it be conveyed with the power, and can pass out of him only by a regular act in his own name. The act of the substitute, therefore, which in such a case is the act of the principal, to be legally effectual, must be in his name, must be such an act as the principal himself would be capable of performing, and which would be valid if performed by him. Such a power necessarily ceases with the life of the person making it. But if the interest, or estate, passes with the power, and vests in the person by whom the power is to be exercised, such person acts in his own name. The estate, being in him, passes from him by a conveyance in his own name. He is no longer a substitute, acting in the place and name of another, but is a principal acting in his own name, in pursuance of powers which limit his estate. The legal reason which limits a power to the life of the person giving it, exists no longer, and the rule ceases with the reason on which it is founded. The intention of the instrument may be effected without violating any legal principle. This idea may be in some degree illustrated by examples of cases in which the law is clear, and which are incompatible with any other exposition of the term "power coupled with an interest." If the word "interest," thus used, indicated a title to the proceeds of the sale, and not a title to the thing to be sold, then a power to A to sell for his own benefit, would be a power coupled with an interest; but a power to A to sell for the benefit of B, would be a naked power, which could be executed only in the life of the person who gave it. Yet, for this distinction, no legal reason can be assigned. Nor is there any reason for it in justice; for, a power to A, to sell for the benefit of B, may be as much a part of the contract on which B advances his money, as if the power had been made to himself. If this were the true exposition of the term, then a power to A to sell for the use of B, inserted in a conveyance to A, Hunt vs. Rousmanier. of the thing to be sold, would not be a power coupled with an interest, and, consequently, could not be exercised after the death of the person making it; while a power to A to sell and pay a debt to himself, though not accompanied with any conveyance which might vest the title in him, would enable him to make the conveyance, and to pass a title not in him, even after the vivifying principle of the power had become extinct. But every day's experience teaches us, that the law is not as the first case put would suppose. We know, that a power to A to sell for the benefit of B, engrafted on an estate conveyed to A, may be exercised at any time, and is not affected by the death of the person who created it. It is, then, a power coupled with an interest, although the person to whom it is given has no interest in its exercise. His power is coupled with an interest in the thing which enables him to execute it in his own name, and is, therefore, not dependent on the life of the person who created it. The general rule, that a power of attorney, though irrevocable by the party during his life, is extinguished by his death, is not affected by the circumstance, that testamentary powers are executed after the death of the testator. The law, in allowing a testamentary disposition of property, not only permits a will to be considered as a conveyance, but gives it an operation which is not allowed to deeds which have their effect during the life of the person who executes them. An estate given by will may take effect at a future time or on a future contingency, and, in the meantime, descends to the heir. The power is, necessarily, to be executed after the death of the son who makes it, and cannot exist during his life. intention, that it shall be executed after his death. veyance made by the person to whom it is given, takes effect by virtue of the will, and the purchaser holds his title under it. Every case of a power given in a will, is considered in a court of chancery as a trust for the benefit of the person for whose use the power is made, and as a devise or bequest to that person. per It is the The con It is, then, deemed perfectly clear, that the power given in this case is a naked power, not coupled with an interest, which, though irrevocable by Rousmanier himself, expired on his death. The English and American cases fully recognise the doctrine, that a power of attorney, coupled with an interest, is irrevocable by the grantor. Bromley vs. Hunt vs. Rousmanier. Holland, 7 Ves. 28. Gaussen vs. Morton, 10 Barn. & Cress. 731. Raleigh vs. Atkinson, 6 Mees. & Welb. 670. Smyth vs. Craig, 3 Watt's & Ser. 24. But the researches of the editor have not brought to his notice any English case, in which the effect of the death of the principal upon the authority of the agent, when connected with an interest in the subject of the agency, is considered. That the student may more fully understand the principle upon which the doctrine is founded, and the limits to which it is carried, we insert a portion of the opinion delivered by Mr. Justice Story, when the case first came before him in the Circuit Court of the United States, and reported in 2 Mason C. C. R. 244. "I do not understand the terms, a power coupled with an interest,' exactly in the same broad sense as they seem to be understood in the argument at the bar. The case of Bergen v. Bennett, 1 Caines' Cas. in Err. 1, cited at the bar, is certainly good law, and it will illustrate the distinction between naked powers and powers coupled with an interest. There the party mortgaged an estate as collateral security, and gave authority to the grantee to sell the estate absolutely. And the Court held, that this was a power coupled with an interest, and that the grantee might well sell the estate, notwithstanding the death of the grantor. But if he did sell, in whose name was the deed to be made? Plainly, not in the name of the grantor, for he was dead; but in the name of the grantee, as his own act, in virtue of his power, and as having an interest in the estate conveyed. But suppose, instead of a mortgage of the estate, there had been a mere power of attorney, authorizing the party to sell the land, and apply the proceeds to the payment of the debt, for which such power was given as collateral security, there the power would not be coupled with any estate in the land; but would be a mere naked power to sell, and could not be executed after the death of the grantor of the power. There is a difference between a power coupled with an interest in the property itself, and a mere interest or benefit in the execution of a power. If a man authorize one as his attorney, to sell his ship and apply the proceeds to the payment of a debt due to him, the latter may have an interest that the power should be executed; but the power is not coupled with any interest in the thing conveyed. It would be otherwise, in case of a conditional assignment of the ship to one as collateral security, with a power to make an absolute sale. Mr. Justice Kent lays down the distinction in very exact terms, in the case of Bergen vs. Bennett. He says, 'A power simply collateral and without any interest, or a naked power, is when, to a mere stranger, authority is given to dispose of an interest in which he had not before, nor hath, by the instrument creating the power, any estate whatsoBut when power is given to a person, who derives under the instrument creating the power, or otherwise, a present or future interest in the land, it is then a power relating to the land.' A power, too, may be a naked power, and yet may be executed, nay, by its very terms, must be executed after the death of the party creating it. A power given by a testator in his will to his executors, to sell his estate for payment of debts, is a naked power; and it can only be executed after the death of the testator; and such execution will then be good, because the act may be done in the name of the executors, and not as the act of the testator. But a devise of the land itself to the executors to sell for a like purpose, is a power coupled with an interest, for they have an interest or title ever. Bank of Washington vs. Triplett & Neale. in the land itself. When, therefore, it is said that a naked power is extinguished by the death of the person creating it, the language is meant to be confined to those cases in which, as in the case now before the court, the power is to be executed in the name and as an act of the grantor, and not of the grantee. It is not applied to naked powers generally, but only to naked powers of attorney. A power of attorney to deliver livery of seizin, after the decease of the feoffer, is for this reason void. In my judgment, this was not a power coupled with an interest in the sense of the law. It was a naked power, and, as such, by its own terms could be executed only in the name of Rousmanier, and therefore became extinct by his death." BANK OF WASHINGTON US. TRIPLETT & NEALE.* Liabilities of Banks, acting as agents for the collection of Commercial Paper. MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court. This is a writ of error, to a judgment of the United States' Circuit Court, of the District of Columbia, for the county of Alexandria. On the 19th June, 1817, William H. Briscoe, of Alexandria, drew a bill on Peter A. Carnes, of Washington, payable four months after date, to the order of Triplett & Neale. The payees of the bill endorsed it in blank, and delivered it to the Cashier of the Mechanics Bank of Alexandria, for the purpose of being transmitted, through the said bank, to a bank in Washington, for collection. The Cashier of the Mechanics Bank of Alexandria endorsed the bill, to the order of the Cashier of the Bank of Washington, and transmitted it to him, for collection, in a letter of the 19th of July, 1817. Neither of the banks had any interest in the bill. The bill was protested for non-payment; and this suit was brought by Triplett & Neale against the Bank of Washington, to recover its amount. The declaration charges, that the bank did not use reasonable diligence to collect the money mentioned in the said bill, nor take the necessary measures to charge the drawer; but neglected to present the bill either for acceptance, * 1 Peters' Rep. 25. Bank of Washington vs. Triplett & Neale. or payment; and to have the same protested; whereby the plaintiff's have lost their recourse against the drawer. It was proved, on the part of the bank, that either on the day the bill was received, or the succeeding day, one of its officers called with the bill, at the house of the said Peter A. Carnes, for the purpose of presenting it for acceptance, and was told that he was in Baltimore. He called again, three or four days afterwards, for the same purpose; and was again told that he was in Baltimore. These answers were reported to the Cashier. On the 9th of October, 1817, the Cashier of the Mechanics Bank of Alexandria addressed the following letter to the Cashier of the Bank of Washington: "DEAR SIR, "The holder of the draft on Peter A. Carnes, for 625 dollars 34 cents, desires me to inform you, that if the draft is not paid, to make the notary send a notice to P. A. Carnes, Baltimore, and likewise to W. H. Briscoe, Leesburg, provided it is not paid at his residence, in Washington." On the 13th of the same month, the Cashier of the Bank of Washington, in answer to this letter, stated that the bill had not been accepted, because the drawee could not be found; and that the directions given in the letter of the 9th should be observed. On the 24th of October, the fourth day after that expressed on the face of the bill, as the day of payment, it was protested for non-payment, and returned, under protest, to the Mechanics Bank of Alexandria. Notice was given to the drawer, who has refused to pay the same. On the trial, the counsel for the defendant moved the Court to instruct the jury: 1st. That upon this evidence, if believed, the plaintiffs are not entitled to recover. 2d. That the plaintiffs are not entitled to recover for any loss of recourse against Briscoe, the drawer of the said bill. 3d. That the failure of the defendants (after having called at the residence of the drawee of the said bill to obtain his acceptance, and not finding him, or any person there to accept it) to notify the drawer of that circumstance, was not such negligence, as discharged the said drawer from his liability, on the said bill, and entitles the plaintiffs to recover. 4th. That if they believed, from the evidence, that the defendants conformed to their former usage in regard to such bills as the one in question, in calling on the drawee for acceptance (the |