Opinion of the Court, per SELDEN, J.

requirements of the law. If the clause in question purported, in terms, to invest the assignee with any discre tion, as coming directly from the assignor himself, it would be fatal to the assignment; as, if it had authorized the assignee to dispose of the property, at such time and in such manner as, in his judgment, would be most conducive to the interests of the creditors, or as he should deem expedient and best calculated to promote their interests.

The difference between a discretion conferred by an assignor, as a power accompanying the transfer of the title, and that discretion which results ex necessitate from the duty which the assignee has to perform, is obvious. The assignor, being the absolute owner of the property, and in no manner obliged to assign, may annex such conditions and qualifications to the transfer as he pleases.

If he annex an improper condition, the court must pronounce the assignment itself void; it cannot hold the transfer good, and disregard the condition; because that would be to take the property from the assignor against * 171 ] his will: he having consented to part with his title only upon certain conditions, the transfer and the condition must stand or fall together. If, therefore, the court upholds the assignment, it must, of necessity, protect and enforce the terms and conditions upon which it is made; it cannot sustitute its own discretion for that with which the assignor has, in express terms, invested the assignee. The discretion of the latter, in such a case, would be absolute, and beyond the control of the court, if honestly exercised. Any bad faith on the part of the assignee would, of course, justify judicial interposition, but nothing short of it. The control which courts of equity have over trusts, must be exercised with due regard to the terms of the instrument by which the trust is created. Under a provision, therefore, which expressly gives to the assignee a discretion as to time, the sale of the property might be indefinitely delayed, so long as the assignee might deem it expedient to wait for better

Opinion of the Court, per SELDEN, J.

prices; and, hence, the effect of such a provision in subverting the assignment. On the other hand, that discretion which is unavoidably incident to the trust reposed in the assignee, is entirely subordinate to the judicial power, and any error of judgment on the part of the assignee, in its exercise, could be at once corrected by an application to the court.

All the cases involving this question which have herefore arisen in this state have been decided in accordance with these views. An assignment authorizing the assignees to convert the property into money," within such convenient time as to them should seem meet," was held void upon its face, in the case of Woodburn v. Mosher (9 Barb. 255). So, in Murphy v. Bell (8 How. Pr. 468), where the assignees were directed to convert the assigned estate into money, "within such convenient time as to them shall seem meet, and as shall be most conducive to the interests of all parties concerned," the assignment was in like manner condemned. Both these cases are cited with approbation by this court, in the case of Brigham v. Tillinghast (13 N. Y. 215). In Kellogg v. Slauson (11 N. Y. 302), the authority given to the assignees was to sell and dispose of the property, upon such terms and conditions as in their judgment may *appear best [ * 172 and most for the interest of the parties concerned; and this court sustained the assignment, upon the ground. that the phrase "terms and conditions" related exclusively to the manner of conducting the sale; but the court said, that if the discretion vested in the assignees had extended to the time of sale, it would have been fatal to the assignment. A discretion as to the time for distributing the proceeds of the assigned property, has also been held to avoid the assignment. D'Ivernois v. Leavitt, 23 Barb. 63). There, the assignees were authorized to distribute the funds realized under the assignment, among the general creditors," at such reasonable time or times as they, in their discretion, might think proper."

Opinion of the Court, per SELDEN, J.

In each of these cases, it will be seen, that the assignment contained language expressly authorizing the assignees to determine when the proper time for action had arrived. The property was to be sold, or the proceeds distributed, not at such time as the law would dictate, bnt when it should, in the judgment of the assignees, be expedient. The assignment in the present case contains no such language. It requires, it is true, that the interest of the creditors shall be consulted in fixing the time; but it does not say that the assignee shall be the judge of those interests. Whatever discretion is vested in the assignee here, he derives, not from the terms of the assignment, but from the law; and it is this which distinguishes the present case from all those in which the assignment has been condemned. The legal effect of this assignment is in no respect different from what it would be, if its language had been that the assignee should sell immediately, or at such time or times as his duty would require.

The rule on this subject is, as this court has before said, that all that an insolvent debtor, who makes a voluntary assignment for the benefit of his creditors, can properly do, is, to authorize a sale of the property, and direct the order in which the proceeds shall be applied; in the present case, the assignor has done no more than this. The phrases objected to are wholly superfluous, and without the slightest effect upon the construction of the as* 173] signment. The rule that "mere surplusage does not vitiate," is as applicable to such an instrument as to a judicial pleading. The judgment should, I think, be reversed, and there should be a new trial with costs to abide the event.

Judgment reversed, and new trial awarded.'

1 Followed in Benedict v. Huntingdon, 32 N. Y. 219; and Townsend v. Stearns, Ibid. 209; and see Whitney v. Krows, 11 Barb. 198; Clapp v. Utley, 16 How. Pr. 384.

Statement of the Case.

COMMISSIONERS OF EXCISE OF TOMPKINS COUNTY v. TAYLOR et al.

Excise.-Intoxicating Liquors.

Under the Act of 1857, c. 628, the sale of strong beer, in quantities less than five gallons, without a license, renders the seller liable to the penalty of $50.

APPEAL from the general term of the Supreme Court, in the sixth district, where judgment was rendered in favor of the plaintiff, upon a case submitted under § 372 of the Code.

It appeared by the case submitted, that the defendants, on the 3d October 1859, sold "strong beer" to one J. R. Smith, in a quantity less than five gallons, to be drunk in their store, without having a license. The plaintiffs claimed that the defendant had thereby forfeited the sum of $50, for which this suit was brought; and the court below having so decided, the defendants took this appeal.

*Ferris and Dowe, for the appellants.

Dana, Beers and Howard, for the respondents.

[* 174

WELLES, J.—The law upon which the judgment in the court below was founded, is the 13th section of the act entitled "an act to suppress intemperance, and to regulate the sale of intoxicating liquors," passed 16th April 1857. (Laws, vol. 2, 405). That section is in the following words: "Whoever shall sell any strong or spirituous liquors or wines, in quantities less than five gallons at a time, without having a license therefor, granted as herein provided, shall forfeit fifty dollars for each offence." The only question to be decided is, whether strong beer is

Opinion of the Court, per WELLES, J.

embraced in the terms strong or spirituous liquors, as expressed in the section referred to.

In the case of Nevin v. Ladue (3 Denio 43), it was held by the supreme court, that ale and strong beer were included in the terms "strong or spirituous liquors" as used in the excise law of the Revised Statutes (1 R. S. 680, § 15), making it penal to sell such liquors in quantities less than five gallons, without a license. The section of the revised statutes referred to is identical with § 13 of the act of 1857, above recited, excepting that in the former, the penalty for such sale was $25, and in the latter, it is $50.

The case of Nevin v. Ladue was afterwards taken to the court of errors (3 Denio 437), where the judgment of the supreme court was reversed, on the ground that upon the trial before the justice, where the action was originally commenced, the judgment was rendered against Nevin, on his confession that he had sold ale, or strong beer, or fermented beer, without a license; he was charged before the justice with having sold ale, strong beer, or fermented beer, and he confessed the charge. The court of errors held, that the term "fermented beer" might have well been understood by Nevin to mean some * 175 ] one of the various kinds of beer which had long been in use in this country, under the different names of spruce beer, ginger beer, molasses beer, &c., none of which could properly be termed "strong beer" or be included in the words of the statute, "strong or spirituous liquors;" and all of which had undergone, to some extent, the process of fermentation, and therefore, as the charge confessed was of selling only one of three kinds of liquor, to wit, ale, or strong beer, or fermented beer, the charge and confession might as well relate to the latter as to either of the others, and being thus in the alternative, did not prove the sale of either one in particular. The only opinion reported in the court of errors was by Chancellor WALWORTH, who, after an elaborate.