
    Tripler and others against Olcott and Lord.
    Where F. made a bill of sale of a ship, then on her voyage, and of freight to be earned, to L*y which was absolute on the face of it, and L. sent to O., the master of the ship, a copy of the bill of sale, with a power of attorney, and instructions to him as to the disposition of the property, and O,, considering L. as the owner from that tibie, acted as his agent, and afterwards accounted to him for the proceeds of the freight, &c. Held, that O. was not accountable to F. as having a resulting trust, though some of the letters from L. to O. incidentally mentioned that the bill of sale was intended to secure Ccertain advances and responsibilities} there being no fraud or collusion between L. and O.
    BILL stated that Tripler fy Craig, plaintiffs, were partners in trade in the city of New-York; and that the plaintiff, Fanning, was owner of the ship Zephyr, of the value of 38,000 dollars, then on a voyage -from Wew-York to Wants, with a freight to be earned, amounting to 31,009 
      dollars; and being indebted to the defendant Lord, on three promissory notes, Amounting to 2,569 dollars; in or-(|er to secure’the payment of the same, on the 22d of De1812, by deed, assigned the said ship and freight to the defendant Lord, on the express agreement, that after L. was paid his debt and interest, he should hold the ship and surplus freight to the use of F., and subject to his order. That after the arrival of the ship at L? Orient, and the freight had been _ earned, F. being indebted to the plaintiffs, Tripler 8f Craig, in the sum of 10,000 dollars, on the 10th of September, 1813, assigned to them the ship or proceeds thereof, and the surplus freight, after paying L., &c. That relying on this assignment, T. 8f C. had assumed to pay out of the proceeds, remaining over and above their debt, a debt due from F. to the City Bank, amounting to 6000 dollars. That soon after this last assignment, to wit, on the 18th of December, 1813, F. executed another assignment to T. 8f C., reciting the former assignment of the 10th of September, the objects of which had been executed, and that T. 8f C. had been paid the 10,000 dollars by F., and that they had since lent F. other sums of money; to secure the payment of which, and of other sums to be lent and advanced, F. assigned the said ship and the homeward freight, and all the interest of F. in the same, in whose hands soever the same might he. This assignment was absolute, with the usual power of attorney. The defendant O. was master of the ship during the voyage, and continued to be master, until she was captured on her homeward voyage. That at the time of the last Assignment, T. 8f C. had paid F. 1,200 dollars, and had since paid him 1,400 dollars, and F. now owed T. Sf C. 2,800 dollars, exclusive of the sum due the City Bank. That the defendant L., after the ship arrived in France, applied to F. for directions respecting the disposal of the .ship and freight: and F. instructed L. not to risk any part of them or of the proceeds, upon the homeward voyage, unless well insured; and that on the 9th of 
      August, 1813, F. gave directions to L. to write to his agents in France to that effect, and L. afterwards said that he had given such orders. That the outward freight was paid to 0. as master, and agent for L That 0. was employed as master, by F. as sole owner, and at the time he received the homeward freight, he knew that F. was interested therein. That L. was informed of the two last assignments to T. 8f C. and of their advances and responsibilities for F.; but had given such orders as induced O. to act as if T. fy C. had no interest in the ship and freight.That 0. remitted 14,000 dollars of the outward and homeward freight to L. in bills of exchange which are retained as due to L. and 0. That 0. sailed from France to JVewYork, with freight and other property of the plaintiffs, and embarked part of the outward freight in another ship, without insurance, and in consequence of capture, the security of the plaintiffs ther ein has been lost.
    The plaintiffs charged, that there is due to them, out of the proceeds of ship and freight, under the last assignment, 40,000 dollars. That O. received Of the homewárd freight 3,320 dollars; that if the freight out and home had been insured, as it might have been, in Francethe plaintiffs would hake been entitled to 25,000 dollars; and if the ship had also been insured, to 40,000 dollars. That the defendants have left the plaintiff F. charged with the payment of a premium of insurance tin the outward voyage, of 11,000 dollars, the greater part of which he had paid.That the defendant O. threatened to depart out of the state. Prayer, that the defendant O. may be compelled to give security not to depart out of the state, and that the defendants may account, &c. The plaintiff made affidav vit,-that there Would be found due to the plaintiffs, from the defendants, On á settlement of accounts, 20,000 dollars,in relation to the freight, &c. A ne exeat was granted the 12tli of December, 1814, marked 10,000 dollars.
    
      Olcoit, in his answer, admitted that F. was owner of the ship, &c. That he, 0., took command of her, on the 12th of November, 1812, and was employed by F. as owner; that he acted as master under F. until after his arrival in France. That, on the 25th of February, 1813, he received a letter from L., dated the 23d of December, 1812, inclosing a copy of a bill of sale of the ship, freight, and proceeds, to L.; and, also, a power of attorney from L. to act for him. That, from that time, he considered L. as the owner, and acted as agent of L. in respect to the ship, freight, and proceeds, and in conformity to the letters and instructions of L. That the proceeds of the outward freight were received by him as the agent of L. And he insisted, that he was accountable only to L. for his agency. That he would not have accepted the agency, distinct from his office as master of the ship, had he supposed that either of the plaintiffs, and not the defendant L.. was interested in the property. That he was first informed of the two assignments to T. fy C. on his arrival at New-York, in October, 1814. That by his agreement with F., he acted only as "master; and the farther interest and concern of F. were intrusted by him to a supercargo, D. Sheldon, who acted as supercargo and agent of F. until 0. received the letters of L., with the bill of sale and power of attorney, with instructions as to the proceeds of freight, &e. The defendant O. further stated in his answer the contents of the letters of L., of the 23d and 29th of December, 1812, and 20th of January, 1813, and of his instructions, and of all the transactions by him as agent. That in the letter of the 29th of December, 1812, L. stated that the bill of sale was on account of the failure of Fanning 8f Coles, and for the purpose of paying custom-house bonds, and to save friends. That, in October, 1813, he received a letter from L. dated the 16th of August, 1813, saying, that he took the ship and freight as security for about 6^000 dollars, and to cover a demand of Carey 
      of about 1500 dollars, and feared he should lose all, unless the property was insured in France. That, in Qctober, 1814, the defendant and L. rendered to each other e their respective accounts, of all their transactions and concerns, on which there was a balance due to the defendant 0. of 1,028 dollars and 86 cents.
    
      September 28th
    
    June 22d and 23d.
    Evidence was taken in the cause, which was brought ta a hearing, as to the defendant 0., in June last.
    
      Riggs and Baldwin, for the plaintiffs.
    
      T. A. Emmet and Wells, for the defendants.
   The Chancellor.

This case was brought to adiearing on the part of the defendant Olcott, and we are only to discuss the case as it regards him.

Two of the plaintiffs (Tripler &f Craig,) have not shown any right or title whatever to an account, for they have not proved the assignment charged in the bill to have been made by Fanning to them on the 18th of December, 1813. This assignment is the only foundation of their claim, and it is not admitted by the answer. We must recur to the resulting trust of Fanning, as the only existing right shown on the part of the plaintiffs.

The bill of sale from Fanning to Lord, was absolute upon its face, and no resulting trust appears. Nor is there proof of the express agreement charged in the bill. The evidence, that the bill of sale was intended to be qualified and not absolute, appears from the two letters of Lord to Olcott, of the 29th of December, 1812, and the 16th of August 1813. In the one, he says, that the bill of sale arose from the failure of Fanning, and others, and was for the purpose of paying custom-house bonds, and to save friends; and in the other he states, that he took the ship and freight as security for about 6,000 dollars, and to cover a demand of one Carey for 1,500 dollars-. These were. representations entirely contrary to the statement in the bill of the agreement between Fanning and Lord, made on the delivery of the bill of sale. Nor do the two accounts given in the letters correspond with each other, and they were mentioned to Olcott rather incidentally, and without any full, precise, and satisfactory explanation of the trust: They were not intended to form any rule or guide to OlcoWs conduct, and he could only look to Lord, as the owner. The authentic evidence which he had of any right or title in the property, xvas the bill of sale and the letter of attorney; and he could not, and did not, recognise any other title, interest, or authority. A resulting trust, mentioned in this incidental and obscure manner, and especially when attended with the clear title and positive acts and instructions of Lord as oxvner, did not probably, attract any attention from Olcott; and he says, in his answer, that he considered Lord as the sole owner, and as having the exclusive interest, and that he would not have accepted of any agency for any other person, distinct from that of master of the ship.

On his return to the United States, in October, 1814, he duly accounts to and with Lord; and the question is, whether he is bound to account also to Fanning.

It does not appear to me, that Olcott could with safety or propriety, have dealt xvith any other person than Lord. He had no business of concern with the dealings between Lord and Fanning, and the loose hints communicated to him by Lord vvere of no use. It would be equally dangerous and inconvenient, in the business and affairs of the xvorld, to deny, that Olcott could not definitively and safely account with Lord, under the circumstances of this, case. If there had been fraud and collusion, charged, and proved between him and Lord, in the settlement, to the prejudice of the known rights of others, it would have presented a very different question. But no such allegation or proof exists; Fanning must look to Lord, and cannot look bey ond Mm, for an account of the management and proceeds of the property assigned to him in trust.

It is stated to have been held in Pollard v. Downes, (2 Ch. Cas. 121.) that where a trustee made a letter attorney to S. to manage and receive the rents and profits of. land, and S. afterwards accounted to the trustee for his agency, he was, after the death of the trustee, and on a bill by the cestuy que trust, directed to account to him.

That case is so destitute of all facts and circumstances requisite to a clear' understanding of the principle and the application, that it can scarcely be regarded as an authority. It may be, that there was a collusion between the trustee and the agent, or that the agent had notice from the principal not to account with the trustee, or that the trust had expired at the time. It is impossible to be maintained, that if an agent duly and fairly accounts with his, immediate and authorized principal, that he is bound, in all cases, to account over again to the person standing behind his immediate principal. This would be a doctrine not to be endured; there must have been something in the case cited which does not now appear, and which gave if a special direction. Lord Eldon, in Beaumont v. Boultbee, (7 Vesey, 605. 610. 617.) laid down this rule, that an account settled between an under and an upper agent, without vouchers, and upon mere confidence, was not to be considered as settled against the. principal, without allowing him the liberty to surcharge and falsify those accounts. But, in that case, it appeared that the under steward, (as he was termed,) was employed both by the upper steward and the principal, and the liberty given to the principal went no farther than to surcharge and falsify ; and that was founded on the extraordinary and unusual mode of accounting which had been adopted in that case. Under such checks and limitations, there can be no doubt. that the party ought to account again to the person who . has the ultimate interest. But when no special circumstances appear, and there is no fraud, then I apprehend the general rule to be otherwise, and that it was truly de - ' clared in Clavering’s case. (Prec. in Ch. 535.)

The plaintiff in .that case was entitled to several collieries of value, and his guardians or trustees, during his minority, had appointed the defendant an agent to manage the same, with a salary which they had increased as they saw occasion. He passed his accounts regularly with the trustees or guardians, every half year; and they, from time to time passed and allowed those accounts. The plaintiff being of age, filed his bill, not only against the trustees or guardians, but the agent, to have a general account. The agent pleaded the accounts themselves, and the plea was held good, for he was but a servant to the trustees; and as they had authority, to employ him, they had the same to discharge him and allow his accounts, and he had nothing at all to do with the plaintiff; that if it were otherwise, none would ever be concerned in an infant’s affairs, and the plaintiff would suffer no sort of mischief by it; for he was at full liberty to go through the whole account against the guardians or trustees, and they were only and immediately responsible to him, and would be so for the embezzlements of the servants they employed.

In the cases referred to, the character of the trustee, and the relationship between him and the principal, was, no doubt, distinctly known and declared. But in the present case, Fanning had clothed Lord with the absolute legal title, and held him out to the world, and suffered him to deal with others, as the real and absolute owner. Upon every just and safe principle, the settlement between Olcott and Lord ought to be absolute; it ought not to be opened by Fanning; nor the defendant Olcott called on to account de novo with him, except upon the ground of fraud and collusion, and that is not the ground taken in this case.

I am, accordingly, of opinion, that the bill, as to the defendant Olcott, be dismissed, with costs.

Bill dismissed, accordingly.  