made out, might recover exemplary damages, and refused to charge, as requested by defendant's counsel, that the plaintiff's right of action, if she had one at all, was limited to her actual damages, and that she was not entitled to exemplary damages.

The defendant excepted to charge as made, and to the refusal to charge as requested.

The verdict of the jury in favor of the plaintiff exceeded the amount of the actual damages as proved. Franklin v. Schermerhorn, 8 Hun, 112.

According to the evidence the only connection of the defendant with the case was that he owned the premises where the liquor alleged to have caused the intoxication of plaintiff's husband was sold, and that he let them to be used as a hotel, knowing that intoxicating liquors were to be sold therein. There was no proof connecting the defendant with any aggravating circumstances. There was evidence tending to show that the barkeeper of the tenant sold to the husband of the plaintiff three drinks of whiskey at short intervals; but it did not appear that he was at all intoxicated until after he had swallowed the last of these drinks. The exceptions therefore present the question whether in a case brought under the Civil Damage Act against the owner of the premises, the plaintiff may, in the discretion of the jury, receive exemplary damages without proof of aggravating circumstances with which the owner is connected.

The statute provides that "every husband, wife, child, parent, guardian, employee or other person who shall be injured in person or property or means of support by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her name against any person or persons who shall, by selling or giving away intoxicating liquors, have caused the intoxication in whole or in part of such person or persons, and any person or persons owning or renting, or permitting the occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold therein, shall be liable, severally or jointly, with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sustained, and for exemplary damages. Laws of 1873, ch. 646, § 1.

What did the Legislature mean when it imposed this liability: "For all damages sustained, and for exemplary damages?" Did it mean to commit to the arbitrary discretion of an irresponsible jury the power of awarding exemplary damages without evidence or law to guide them? Or did it mean that the damages sustained, when proved according to the common law, should be recovered, and also exemplary damages, when proved in like mannner? In other words, did it mean to create a new cause of action, leaving the damages to be measured by the principles of the common law? Or to create not only a new cause of action, but also a new measure of damages?

All statutes are to be construed with reference to the principles of the common law in force at the time of their passage, and all words having a well known and definite meaning at common law are presumed to be used in the same sense when they appear in a statute. Dwar. Stat., 564-5; Sedg. Const. Stat. & Com. Law, 221; United States v. Jones, 3 Wash. C. C. R. 209.

The words "exemplary damages" are well known to the common law, and are thus defined by common law writers, editors, and judges:

"Damages allowed as a punishment for torts committed with fraud, actual malice or deliberate violence or oppression." Bouvier.

Damages given by way of punishment; or in com. mon parlance, smart money.' Burrill.

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Damages on an unsparing scale, given in respect of

Damages increasing cempensation for wrongs done with bad motives." 1 Suth. Dam. 716.

"Damages where fraud, malice or oppression intervenes. 1 Sedg. Dam. (7th ed.) 53.

For torts, under circumstances of great aggravation, the jury, in addition to such actual damages as they may find the injured party entitled to, may further allow, for an example to others, and a punishment to the wrongdoer, exemplary or punitive damages." Field Law Dam. 28.

"If the defendant in committing the wrong complained of acted recklessly or wilfully and maliciously, with a design to oppress and injure the plaintiff, the jury, in fixing the damages, may disregard the rule of compensation, and beyond that may, as a punishment to the defendant, and as a protection to society against a violation of personal rights and social order, award such additional damages as in their discretion they may deem proper." Voltz v. Blackmar, 64 N. Y. 440, 444.

"Damages by way of compensation for malicious injuries." Bixby v. Dunlap, 56 N. H. 456, 465.

"In actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive or vindictive damages, upon a defendant, having in view the enormity of his offense rather than the measure of compensation to the plaintiff." Day v. Woodworth, 13 How. 371.

See also Huckle v. Money, 2 Wils. 205; King v. Root, 4 Wend. 113; Burr v. Burr, 7 Hill, 207.

From these definitions it is apparent that exemplary damages at common law imply malice, bad motives or evil intent on the part of the person against whom they are awarded. They are allowed not to compensate the one who suffers the wrong, but to punish the one who inflicts the wrong, on account of his evil design, and as an example to others.

If the Legislature in enacting the statute in question, instead of using the words "exemplary damages," had used the common-law definition of those words, they would have expressed precisely what the statute means now. Davis v. Standish, 26 Hun, 608, 615. When thus construed it does not mean that the jury may award exemplary damages in any case, but only when the defendant has acted from bad motives. If for instance, in an action against the one who sold the liquor that caused intoxication from which actual damages were sustained, it appeared that he sold in violation of law, or to a person whom he knew to be far gone in the habit of intemperance, or who was already obviously under the influence of liquor, or who habitually squandered in dissipation the wages with which he should support his family, the jury might well infer that he acted from bad motives, and award exemplary damages. Also in an action against the owner of the premises if it appeared that he leased them to a tenant, knowing that he kept a disorderly place, or sold without a license, or to minors, or habitual drunkards, there would be a basis on which the jury might allow exemplary damages against him.

But in this case there is no evidence from which the jury could infer that the defendant acted from bad motives. He leased his premises for a lawful purpose. Jackson v. Brookins, 5 Hun, 530, 535. His tenant had a license, granted under the laws of the State, and so far as appears kept an orderly and respectable hotel. No aggravating circumstance was shown with which

do not therefore doubt that for expenses lawfully incurred, or absolutely lawfully made by the board of health of the defendant town in the performance of its duties the town would be held responsible, but it must appear that what the board did was within the scope of its lawful authority. While acting in behalf of the town it is not an agent of the town in any sense which should make the town responsible for its acts when it exceeds its lawful authority, as a principal may often be held liable under such circumstances for the agent whom he appoints. As a general rule a town is not liable for the unauthorized acts of the public officers whom it appoints. The plaintiff's amended declaration, which is the only one before us, and is termed one in contract, alleges that the board of health of the defendant town, pursuant to its lawful powers, acting for and on behalf of the town, took possession of the plaintiff's house and furniture therein as and for a hospital, that it occupied, controlled, and used his house as a hospital for the term of six weeks and one day. It is not alleged that the board of health occupied by any leave of the plaintiff, or made any express or implied promise to pay for the same and the taking would be a trespass unless it were done under some authority of law. It must be deemed therefore that the plaintiff bases her action upon the ground that what the board of health did was lawful, and that a promise to pay for the same will be implied against the town. We are thus brought to the inquiry whether the board of health has authority, where a person infected with a contagious disease, too sick to be removed without imminent danger, is found in any house, to take possession of the premises and furniture and use the same for a hospital, thus excluding the owner or occupant from his otherwise lawful premises. Public Stat., ch. 26, §§ 16, 17; ch 80, $$ 40, 41, providing for the safety of the inhabitants where a person is infected with a sickness, dangerous to public health, contemplate that a contract will be made for the care of a person too sick to be removed as by furnishing him with nurses, necessaries, attendance, etc., and further that the place where he is, with its immediate vicinity, and the persons there found, will be subjected to the regulations of the board of health, but they give no authority to take possession of the property of any one to the exclusion of the person who is entitled to such lawful possession. It is however rather upon Gen. Stats., ch. 26, § 44; P. S., ch. 80, § 75, that the plaintiff relies, which provide that where a disease dangerous to public health breaks out, the board of health may cause any sick and infected person to be removed thereto, unless his condition will not admit of his removal without danger to his health, in which case the house or place where he remains shall be considered as a hospital, and all persons residing, or in any way connected with the same, shall be subjected to the regulations of the board of health.

It by no means follows that because a place may be subject to the regulations of the board of health it may be seized and taken possession of. It is considered a hospital for this purpose in order that the danger to public health may be averted.

The case of Lynde v. Rockland, 66 Me. 314, is strikingly similar to that at bar.

Had the power of seizing and appropriating property been conferred on the board of health acting by its own authority,it can hardly be doubted but what it would have been given in explicit terms. Circum

stances might arise where it would be necessary for

board may lawfully impose in regard to the management of property and the conduct of persons in relation thereto, in protection of the public health, may often seriously affect its value, the right to impose such regulations as to its management has been held to be quite distinct from that of appropriating private property when any emergency requires it for public use; the one rests on the police power of the State, which attends to all matters concerning its internal regulation, the other on the right of eminent domain. The one prescribes the mode in which each shall enjoy his own property in order that others may enjoy theirs and that their health and welfare may be secured, and the owner who is subject to such regulations has of right no title to any sum if the value of the property is thereby diminished; it is a necessary burden which he bears as a member of society in common with others similarily situated; by the other, where property is appropriated to public use, the owner is entitled to proper compensation therefor. While the impressment of property is provided for it is accompanied by all appropriate safeguards, and provision is made for a just compensation to be paid by the town where the person or the property or both are impressed. It is done by virtue of warrants, regularly issued, served by executive officers, who while they are to act under the direction of the board are still to obey the precepts contained in their warrants, that property is seized and taken possession of for an important public purpose, and just compensation is provided for. Independently of these provisions there is no authority in the board of health to take possession of, or impress any place as a hospital. If therefore the board of health took possession of the plaintiff's house and furniture and occupied, controlled, and used said house as a hospital, it had no authority so to do. The defendant town is not responsible for their actions. Demurrer sustained.

NOTE,-In Bamber v. City of Rochester, 62 How. Pr. 103, it was held that the defendant was not liable or

responsible for the acts of its board of health in issuing an order for the destruction of a quantity of rags which were infectious and dangerous to the public health. (See 29 Eng. Rep. 14.)

E. W. Strong, for complainants.

RUNYON, Chancellor. This suit is brought to obtain a construction of the will of Thomas Snell, deceased, late of Middlesex county, who died September 1, 1874. By the will (which was made in August, 1874), the testator, after directing payment of all his debts and liabilities, gives to his wife for her life, his farm and household furniture, live stock and farm imple.

*S. C., 38 N. J. Eq. 119.

about the farm then belonging to him. To his executors he gives, in trust, $15,000, which they are to invest and keep invested during her life, and pay her the income thereof not exceeding $1,000 per annum. He then directs that after her death the farm and the $15,000 shall "revert" to his executors and "be disposed of by them in the same manner as the rest and residue of his estate thereinafter mentioned." He next gives to his executors, in trust for the benefit of his heirs at law, his sons, Thomas, Robert, George and William, land in Westchester county, New York, and leaseholds in the city of New York, with power to convert them into money at any time before the estate shall be divided, and whenever in their judgment the estate will be benefited by the sale. He then gives to his executors, in trust for the benefit of "said heirs at law" (his sons), all and singular the rest and residue of his estate, "both real and personal, consisting of bonds, stocks, notes and money and other securities," and declares that it is his will that his estate shall not be divided or the heirs be paid their respective shares thereof until the youngest of them shall have attained the age of twenty-five years; and he further directs that upon the arrival of the youngest of them at that age, the estate shall then be divided among them in equal shares. He also directs that until such division or distribution shall take place, the executors invest and keep invested the money of the estate and accumulate it, and adds that they are not to pay away any portion of it except in the case of the illness or death of any of his "said heirs at law," in which event they are to have power to make such disbursements as in their discretion the emergency may require. He also provides that in case any of his "said heirs shall die before the division of the estate shall take place, the share of such decedent shall, if he be married and have issue, go to the issue; but if no issue, then the decedent's wife shall receive her dower out of said share, and the rest and residue shall revert to the surviving heirs."

The questions submitted for decision are whether the executors have power to sell the farm; and if so, whether they can execute the power before the death of the widow, she being desirous that the sale be made and being willing to join with them in the conveyance or to convey or release her estate to them or the purchaser.

The testator intended to give his wife, for life, the farm (with remainder in fee to the executors) and $1,000 a year of the interest of $15,000; the rest of his property (except of course the $15,000) to go to his ex. ecutors, to be converted by them into cash and invested for the benefit of his children, and to be equally divided among the latter when the youngest should have attained to the age of twenty-five years. At the death of the widow, whether before or after the youngest child should have reached the age of twentyfive years, the $15,000 and the farm were to be disposed of in like manner with the rest of the estate.

The executors undoubtedly have power to sell the farm. The will provides that after the decease of the testator's widow that property is to “ ་་ "revert to the executors and be disposed of by them in the same manner as the rest and residue of the estate thereinafter mentioned. It then gives to the executors the land and leaseholds in New York, with express power of sale. This is followed by the gift to them, in trust, for the benefit of the testator's children, of all the rest and residue of his estate, both real and personal. The gift of the New York property and the residue is for the purpose of enabling the executors to take care of, invest and accumulate those parts of the estate and divide them when the time of distribution arrives. The gift is unqualified, except by the trust. Moreover it is of personal and real estate blended together,

to be divided and paid over in shares, and in the meantime to be invested for accumulation.

Where an executor is directed by the will or bound by law to see to the application of the proceeds of the sale, and no direction is given as to the person by whom sale is to be made, or if the proceeds of sale in the disposition are mixed up and blended with the personalty-which it is the duty of the executor to dispose of and pay over-then a power of sale is conferred by implication. Lippincott v. Lippincott, 4 C. E. Gr. 121. There can be no doubt that the executors have power to sell the farm, and I am of opinion, that with the consent of the widow, and on her releasing to them or to the purchaser her life estate, or joining with the executors in their conveyance of the property, they may lawfully convey the farm at once. The will provides that after the widow's death the farm shall "revert "to them, and be disposed of by them in the same manner as the rest and residue of the estate thereinafter mentioned. The intention of the testator, in this provision, was to give to the executors the remainder in fee. And he intended that after the termination of his wife's life estate, whether by death or otherwise, the property should go to them. There is no evidence of any intention, on his part, that it shall be held unsold until after her death, for any reason, whether prospective rise in value, benefit of infaut children or any thing else. The possibility that the widow might desire to part with her interest in the property before her death was not contemplated by him, and it seems clear that had he contemplated it, he would have provided for the sale of the property by the executors and her together, or by them with her consent.

In Uvedale v. Uvedale, 3 Atk. 117, where a testator, by his will, directed that his wife should have the rents, etc., of certain lands for her life, and directed that after her death the property be sold, Lord Hardwicke said that the words, "after her death," were not put in to postpone the sale, and directed that the sale be made. See also Co. Litt. 113 a note; 8 Vin. Abr. 466, 469; Sug. on Powers, 349, 350.

In Gast v. Porter, 13 Penn. St. 533, it was held that a power given to executors to sell at the death of the widow was well executed, if the widow, for whose benefit the sale was postponed, joined as one of the executors in the deed, and that the fee would pass to the purchaser. The decision was put on the ground that the intention of the testator governed the case, and made it an exception to the general rule, that a devise to executors to sell on a contingency cannot be executed until the contingency happens. And so too in Styer v. Freas, 15 Penn. St. 339. Mr. Ram, in his work on Assets, says: "The rule to be deduced from the cases is that where the property which is the subject of the power of sale is devised for life, the time for sale will depend on the intention to be collected from the whole will; and so far as the particular words may not be governed by the context in the will, on the weight due to the authorities, grounded on the same or similar expressions, and consequently the time for sale may be either before or after the death of the tenant for life, according to the circumstances of the particular case." Ram on Assets, 108.

In the case under consideration the testator gives a life estate to his wife with remainder in fee to his executors, and directs (substantially) that after her death they convert the property into cash to divide it among his children. Here is not a mere power of sale, but a gift of the property to the executors in fee, subject to the life estate. The widow wishes to remove from the farm and desires to have it sold, if possible, and for that purpose is willing to relinquish her life estate and to convey it to the executors or to the purchaser, or any one else, in order to make a clear title

to the property. George Snell is dead. He died since the testator's death. He was never married and left no will. Thomas and William are both past the age of twenty-five years. The former is thirty-eight and the latter twenty-seven. Robert left his home in 1871 and has never since (a period of about thirteen years) been heard from, although much effort has been made to obtain tidings of him. He was then unmarried. If living, he is now about thirty-four years old. Thomas Snell and Maltby G. Lane are the executors. They are desirous of selling the property. A price is offered

for it, which in their judgment, and in that of William also, is a good one, and they and he think it would be advantageous to all persons interested to sell it at that price. In my judgment, the executors, with the consent of the widow and her release of her life estate, have power to sell the property now.

NOTE.-The general rule, that where a power of sale is to be exercised at a specified time, its attempted execution before then is invalid, has been recognized in this State in Booraem v. Wells, 4 C. E. Gr. 87; Hampton v. Nicholson, 8 id. 423.

In Ismam v. Del., Lack. & West. R. Co., 3 Stockt. 227, lands were conveyed in 1834, in trust to be leased until 1840, and then to be sold, and the proceeds invested, and the interest therefrom paid to the grantor's sisters, A. and S., for life, and to their children after their death, until the youngest child should be twenty-one, and then the principal to be divided among said children per capita. In 1836, before A. and S. had married, they with the trustee reconveyed the lands to the original grantor. A. and S. afterward married, and in 1856, both had children. Held, that the reconveyance in 1836 was void, but capable of confirmation by the trustee after 1840. See Hetzel v. Barber, 69 N. Y. 1.

In Fairly v. Kline, Penn. *754, lands were devised, in 1785, to testator's wife for life or widowhood, and then power was given to the executor to sell and divide the proceeds among testator's children, equally. In 1797 the executor sold the lands, with the widow's consent, and paid over the proceeds to the surviving children, who paid the widow £5 each annually until her death, in 1801. No question as to the validity of the executor's sale was raised, as the case turned on another point.

In Meyrick v. Coutts, 1 Sug. on Powers, *335 [*350], under a devise to testator's wife for life, and after her decease a power to trustee to sell and to pay the money among the children of B., who had an infant child then living, a bill by the widow against the trustees and infant for an immediate sale was after two arguments dismissed.

In Smith v. Great Northern R. Co., 23 W. R. 126, a testator gave to his wife the personal use of a leasehold messuage for her life, and if she should not think fit to reside therein, the premises should form part of his residuary estate. He then directed the conversion of his real estate, with power in his executors to postpone such conversion. Under the trusts of [the residue, the widow took one-fourth of the income. A railway company having taken the premises, under its compulsory powers, while the widow was in occupation, made an agreement with her as to her interest, and a separate agreement with the trustees. Held, that although the house, subject to the interest of the widow, was part of the residuary estate, it would not be a proper exercise of the executor's trust to sell during the continuance of the widow's occupation.

In Mosley v. Hide, 17 Q. B. 91, lands were conveyed to trustees, to the use, after the husband's death, of his wife for life, and on trust upon her death, to sell and divide the purchase-money among the children of the marriage on their respectively attaining twenty

one.

E. and M. were the children, and after they had attained twenty-one, and the husband had died, the trustees, during the wife's life-time, sold the lands. Held, that the sale was void. See Cox v. Day,14 East, 118.

In Want v. Stallibrass, L. R., 8 Exch. 175; 5 Eng. Rep. 363, vendors sold as trustees under a will which devised the estate to them on trust to pay the income to F. S. for life, aud thereafter to sell the estate and hold the proceeds "upon the trusts for the children of F. S.;" and it was further stated by counsel that F. S. would join in conveying the property. The trusts for the children were that the proceeds should be paid to those who were living at testator's death, to be paid to them at twenty-one, or if daughters, at twenty-one, or on marriage. All of said children were over twentyone at the time of the sale. Held, that specific performance would not be decreed..

In Henry v. Simpson, 19 Grant's Ch. 522, a testator gave to his wife during her life all the rents and issues of his property for her sole use; then that his property should be divided into three shares-one to his wife, one to his daughter M., and one to his daughter E.; that M. should have her portion after her mother's death, and should invest it for the benefit of her children; that E. should have one-half of her portion absolutely, and the interest of the other half for her life, and that then this half should go to M.'s children, unless E. had a child, and if so, to E.'s child. The wife and daughters were executrixes. Held, that the lands could not be sold during the life-time of the wife even with her consent.

In Davis v. Howcott, 1 Dev. & Bat. Eq. 460, there was a devise of the use of certain lands to testator's widow during the term of her natural life, and after her death said lands were to be sold by the executors and the proceeds of the sale divided among testator's four children or their survivors. The widow and executors, by order of the court, on their joint petition sold the lands, and no part of the purchase-money ever came to the use of the children. Held, that their legal title to the land, after the widow's death, was not barred.

In Jackson v. Ligon, 3 Leigh, 161, power to sell lands was given to an executor after the death or marriage of testator's wife, for whom he made provision in his will. The wife renounced those provisions, and the executor sold thereafter, while she was living and unmarried, and his sale was held void.

In Rope v. Sanders, 21 Gratt. 60,under a similar will, dower was assigned to the widow after her renunciation, and she subsequently joined with the executor in selling the devised lands. Held, that the executor had no power to sell during her widowhood; and held further that the court could set aside the sale, so far as made by the executor, and confirm it, so far as made by the widow.

In Hall v. McLaughlin, 2 Bradf. 107, testator devised certain property to his wife during her widowhood until his youngest son should arrive at age, when he directed it to be sold by his executors and the proceeds divided. The widow died before the youngest son attained twenty-one. A petition by one of those entitled to the proceeds of the land when sold, to compel the executor to sell, was dismissed. Quære, Under such circumstances, who is entitled between the death of the widow and the time when the youngest son attains twenty-one? See Levet v. Needham, 2 Vern. 138; Mansfield v. Dugard, 1 Eq. Cas. Abr. 195; Carter v. Church, 1 Ch. Cas. 113; Boraston's case, 3 Co. 19; Lomax v. Holmeden, 3 P. Wms. 176; Coates v. Needham, 2 Vern. 65; Castle v. Eate, 7 Beav. 296; Laxton v. Eedle, 19 id. 321; Green v. Tribe, 38 L. T. (N. S.) 914; Simpson v. Cook, 24 Minn. 180; Williams v. Murrell, L. R., 23 Ch. Div. 360.