
    Therese Benoist, Administratrix of J. L. Sompeyrac vs. Peter Poirier, Administrator of Louis De Villers.
    One who was authorized by power of attorney, to demand and receive a legacy for his principal became indebted to the executor, in whose hands the legacy was, and failed ; afterwards, by letter to the executor, he acknowledged that he was indebted to him a balance of two thousand eight hundred and ninety-one dollars, and promised to account to his principal for this sum, as so much of the legacy; but he gave no discharge to the executor, nor did he receive one from his debt, nor was there any agreement that one demand should go in payment of the other : Held, that this was not a payment by the executor, which would discharge him for that amount.[*221]
    
      It seems, that even if there had been an agreement between the executor and the attorney, that the debt due from the latter to the former, should be regarded as so much payment of the legacy, and mutual acquittances given, it would not, under such circumstances, be a compliance with the power, and therefore void. [*¿22]
    
      Theodore Sompeyrac, by his last will, bearing date the day of 1822, gave the residue of his estate, to be held by his executors, liable to the draft of his father, or, in the event of his death, of bis mother — ■ of which will be appointed Louis De Villers and A. Fourgeaud, his executors, and soon afterwards died, leaving his father, Jean Louis Sompeyrac, and his mother, Desire Sompeyrac, him surviving. De Villers and Four-geaud proved the will and ^administered the assets ; the residue in their hands, after paying the debts and legacies, was $4,098, which in February, 1829, De Villers passed to the credit of De Villers and Poirier, assignees of Sompeyrac and Petitpain, upon the supposition that Jean Louis Sompeyrac was indebted to them in an equal or greater amount; but in fact, Jean Louis Sompeyrac was not so indebted. The said Jean Louis Sompeyrac died in-at Bordeaux, in France, and by his last will gave all his estate to his widow, Desire Sompeyrac ; but the will was never proved in America. The bill was filed -by Therese Benoist, to whom administration of the estate of J. L. Sompeyrac has been committed by the Ordinary of Charleston District, for an account and settlement of the estate of Theodore Sompeyrac.
    The defendant, Peter Poirier, by his answer, admits the balance of $4,089, for which the estate of Louis De Villers is accountable; but insists that a part of the sum, to wit, $'2,891 has already been received by Desire Sompeyrac, who, as executrix of J. L. Sompeyrac, had a right to receive it, and is also the party beneficially entitled in this suit. In support of his defence, the following case was made at the trial.
    Jean Louis Sompeyra and Desii’e Sompeyrac, his wife, about the 12th day of February, 1823, gave to their son, Melisse Sompeyrac, a general power of attorney, “ to demand and receive all such sums and property as they, or either of them, were entitled to, under the will of their son, Theodore.” Melisse Sompeyrac came to Charleston, and entered into business with Hyppolite Petitpain, under the firm of Sompeyrac and Petitpain. De Villers became their endorser to a great amount; and while Melisse Sompeyrac was in Mexico, Petitpain executed a deed, by which he assigned all the goods, moneys and effects belonging to Som-peyrac and Petitpain, to De Villers and Poirier, in trust, in the first place, to indemnify them, and in the next place, to satisfy the creditors generally of Sompeyrac and Petitpain. Notice of this assignment was communicated to Melisse Sompeyrac, who assented to it, and acltnow-ledged that he held *in his hands $2,891, for which he was accountable; but insisted on retaining it, as the attorney of his mother, who was entitled, as the legatee of J. L. Sompeyrac, to the residue of Theodore Sompeyrac’s estate, in the hands of De Villers; as appears by the following letter:
    [Translation.] “ Mexico, 15th April, 1828.
    “ Dear Sm : — I have received your friendly letter of the 21st November, by Mr. G-iraud. I will not repeat to you what I have said in my former letters, on the subject of the enormous losses that we have sustained in this country. It is sufficient that they have been, in part, the cause of our ruin.” [Here follows a detail of circumstances which it is unnecessary to state ] “I saw Mr. Giraud yesterday, to whom I gave all the accounts relating to our unfortunate affairs. You will see, by the result that there is a sum of $2,891 51, that I am answerable for, as a balance.” [A statement of his partnership accounts and commercial transactions here made, is omitted.]
    “You will see, my dear sir, that I am accountable for the above mentioned sum, which I hold, subject to the order of whoever is entitled. But by the letters, which I have received from Charleston, I am informed that yon have received from the estate of my brother, five or six thousand dollars, more or less. From this sum must be deducted the amount due to Messrs LePrince & Dumont, which I consider perfectly just. And as to that of the Messrs. Benoists, you can have an understanding- with them. The residue will belong to my mother, who is legally the legatee, under my father’s will; and as I have been authorized by their joint and several power of attorney, which is deposited in the French Consulate at Charleston, I shall be obliged to give an account of the sum which you will have received. Have the goodness to hand to Mr. Giraud a statement of what you have received, in order that we may ascertain the balance. You can come to an understanding with friend Fourgeaud, to whom I will write on this subject; and will speak to Madame Benoist, to whom I have sent a copy of my power of attorney.” * * *
    *“I received Mr. Poirier’s letter at the same time with yours, You may communicate this to him.
    I have the honor to be, &c.”
    The assets of Sompeyrae and Petitpain fell short of the sums for which DeYillers was responsible for them ; and a very large sum is still due him on that account. To prove that this sum had been actually paid to Desire Sompeyrae, the following letter from her was produced.
    [Translation.] “Bordeaux, 28th June, 1831.
    “Sir: — I have received your letter of 16th May, which informs me that you are administrator of the estate of the late Mr. DeYillers, and. that you have in your hands the sum of $4,089, arising from the estate of my deceased son, Theodore, of which you say that my son Melisse ought to account to me for $2,891 55, and that you have no objection to pay the difference to my attorney. My son Melisse has been a long time absent, I presume in England. I have just had his papers examined by one of my friends. He has found in effect an account of his agency, dated Mexico, 29th February, 1828, balanced by $2,891 51; but-my friend remarked that this account had no connexion with the estate of my son Theodore, but only with the house of Sompeyrae & Petitpain, of Charleston. These gentlemen owe to my deceased husband a large sum for advances and shipments which he made for their account, and the above named sum would be but a small set off. However, sir, as I am an enemy of law suits, I write to my mother by the same opportunity, and engage her and give her full authority to settle with you definitively and amicably, and to see, if necessary, some mutual friends, who can decide the matter. I recommend to her, in my behalf, to avoid the expenses of the law. Be pleased sir, to see her on the subject, and believe me your devoted servant, &c.”
    At May Term, 1832, the case came before his Honor, Chancellor De Satjssure, who made the following decree.
    
      “ It appears by the answer of Mr. Poirier, that on settling the affairs of Theodore Sompeyrac, there is a balance of $4,089 due by the executors to the estate of Theodore Sompeyrac, which is ready to be paid over the representatives of *Jean Louis Sompeyrac, the legatee,'unless the Court should be of opinion that the estate of De Tillers is entitled to retain the whole or part of the above sum, under the following circumstances: After the death of Theodore Sompeyrac, his father and residuary legatee (and mother) gave a power of attorney to his son, Melisse Sompeyrac, to collect and receive whatever might be coming to him from the estate of his son Theodore. Melisse came to this country, formed a co-partnership with Mr. Petitpain, carried goods to Mexico, and failed in debt to DeYillers.
    “ The administrator of DeYillers claims the right to deduct from the balance due by the executors of Theodore Sompeyrac to the estate of John Louis Sompeyrac, the amount due by Melisse, or rather by Som-peyrac & Petitpain, to DeYillers.
    “ It appears to me that these demands are entirely indistinct rights, and cannot be set off as claimed. The administratrix of J. L. Sompey-rac is entitled to be paid the above balance, to be applied in the course of administration; and if Melisse is entitled to any part of the funds, the administratrix to apply his share to pay his debt. It is therefore ordered and decreed, that the defendant pay to the complainant the balance admitted to be due to the representatives of John Louis Sompey-rac, with interests and costs of this suit.”
    From this decree the defendant, Peter Poirier, appeals, and insists that the real question is whether Desire Sompeyrac, the widow and executrix in France, of Jean Louis Sompeyrac, received, through her attorney and son, Melisse Sompeyrac, the sum of $2,891.
    That this question is by the evidence settled in the affirmative, and that of course the plaintiff in this action, suing for the benefit of Desire Som-peyrac, can only recover the residue, after deducting $2,891.
    
      Pettigru, for the appellant.
   Earle, J.

The Chancellor refused to allow the defendant the benefit of $2,891, which he claimed to have deducted from the plaintiff’s demand, as so much received by *Melisse Sompeyrac, the agent and attorney of Desire Sompeyrac, for whose benefit the suit is brought. It is alleged that the Chancellor is mistaken, in saying that the “ demands are entirely in distinct rights, and cannot be set off as claimed for the defence is not set up by way of discount, but of actual payment; and that this defence is supported by the evidence. Passing by any objection which might be raised to the Validity of the power itself, as having been executed by a married woman, at a time when she had no subsisting interest ; or admitting that there may be evidence of a subsequent confirmation, it is not very clear that the Chancellor is mistaken in supposing this to be a naked offer to set up against the demand of the plaintiff, a debt due to the defendant’s intestate, from the plaintiff’s agent. Melisse Sompeyrac, the agent and attorney of Desire Sompeyrac, at the utmost, only acknowledges himself to be indebted to DeYillers in the sum of $2,891, which he is answerable for, as a balance; and after referring to the assets of his brother, in the hands of DeYillers, and to his power of attorney, professes to be accountable to Desire Sompeyrac, his mother, for that sum. This would be giving his letter a most liberal construction for the defendant. There is no evidence that DeYillers ever assented to this proposition — he did not discharge Melisse Sompeyrac, nor receive from him any acquittance, from the demand of the plaintiff. So far as there is evidence, it is the reverse; from the letter of Desire Sompeyrac, three years after the date of that of Melisse Sompeyrac to himself, he seems to have stated to her, (and the evidence comes from himself,) that her son ought to account for the sum of $2,891. There is not even an Agreement, between the attorney and DeYillers, to regard the balance dme the latter from the former, as a payment of so much of the legacy.

If it were otherwise, and admitting, for the sake of argument, that there was an agreement to that effect, and mutual acquittances, yet it would not be a compliance with the power, and therefore void. The terms of the power are certainly as various, and the authority given is as comprehensive, as can well be imagined. Yet, in giving it its true ^interpretation, and in deciding upon the conformity of his act, under it, we must have regard to the object originally had in view, and the means contemplated through the agency of the attorney. The power is dated 12th February, 1823, very soon after the death of Theodore Sompeyrac, their son, and the primary object was .to recover for them, and in their behalf, his estate; and the general authority, first given, is to seek for and recover all property, real and personal, which may belong to the estate of the said Theodore Sompeyrac. The subsequent specification of powers, as minute as it is possible, seems to contemplate that the attorney is to take upon him the actual administration of the estate, perhaps without knowledge of the will; for many things he was appointed to do, could only be done, without doubt, by an executor or administrator — when, therefore, power is given to renounce claim to the debts and credits of the estate, and “in all cases where it maybe necessary, to compound, compromise, covenant, and appoint arbitrators,” these taken in connection with other powers, as to “ sue for all sums of money, pay all that may be due,” evidently have reference to a general course of administration, for the purpose of realizing the assets, and certainly do not contemplate the intervention of an executor or administrator, from whom alone the attorney could receive the fund, and whom alone it would be necessary to sue. The power to renounce, to compound, to compromise, had relation only to debts and claims, existing for and against the estate. It is true, the power must be regarded as both general and special; and after the estate had been fully administered by the executors, who alone had control over it, Melisse Sompeyrac, as attorney under the power, had unquestionable authority to receive the legacy from them. But in that state of things, with full knowledge that the whole estate was actually in the hands of the executor, as he admits, upon the most liberal construction of the power he had authority only to demand and receive payment, and, as a consequence, on nonpayment, to institute proceedings. If the power were to receive payment only, it is clear that nothing but an actual* receipt of the money would suffice. The attorney, under such a power, could not accept a note of another, in discharge. Such an acceptance would not bind the principal; and if the principal would not be bound in that case, certainly he would not be bound where the attorney agrees to accept, in discharge, an unliquidated claim or demand upon another, an insolvent person. 11 Mod. 71, 87; 2 Ld. Ray. 928. Here the case is still stronger against the defendant and attorney, for the claim and demand alleged to be accepted, in discharge, was one upon the attorney himself, which the former had no other means of securing, and the latter no other means of paying. This can never be allowed — and if we construe the words, “compound and compromise” in their most enlarged sense, and as applying as well to the claim upon the executors as to claims previous to administration, it would be equally a violation of law, and a fraud upon the principal, to permit the attorney to compound or compromise the right of the principal, by accepting in discharge of a claim which he knew to be perfectly good, a debt upon himself, an insolvent person according to his own acknowledgment.

The decree of the Chancellor is affirmed.

Johnson and O’Neall, Js., concurred.  