the established principles of private right and The clauses of that instrument which declare that no freeman shall be taken or imprisoned, or be disseised of his freehold or liberties or free customs, or be outlawed or exiled, or any other wise destroyed, or be passed upon except by the lawful judgment of his peers or by the law of the land, and that justice shall not be sold nor denied nor delayed to any man, are considered by English jurists and statesmen to be sufficient to protect the personal liberty and property of every freeman from arbitrary imprisonment and arbitrary spoliation. judgments of the highest courts of England as illegal and unconstitutional, and from that day to this such warrants have never been issued. No barrister or judge in England would now have the hardihood to assert that such warrants are due process of law. To me, therefore, it is a marvel that in this country, under a Constitution ordained by men who were conversant with the principles of Magna Charta, and claimed them as their birthright-a Constitution which declares in its preamble that it is established "To secure the blessings of liberty to ourselves and posterity "—it could ever be contended that an order of the Executive, issued at his will for the arrest and imprisonment of a citizen, where the courts are open and in the full exercise of their jurisdiction, is due process of law, or could ever be made such by an Act of Congress. I certainly never supposed that such a proposition could be seriously asserted before the highest tribunal of the Republic by its chief legal officer. I had supposed that we could justly claim that in America, under our republican government, the personal liberty of the citizen was greater and better guarded than that of the subject in England. It is only the extraordinary claim made by the counsel of the government in this case which justifies any argument in support of principles so fundamental and heretofore so universally recognized. It may be necessary at times with respect to them, as it is necessary at times with respect to admitted principles of morality, to restate them, in order to rescue them from the forgetfulness caused by their universal admission. The assertion that the power of the government to carry on the war and suppress the rebellion would have been crippled and its efficiency impaired, if it could not have authorized the arrest of persons and their detention without examination or trial, on suspicion of their complicity with the enemy or of disloyal practices, rests upon no foundation whatever so far as Vermont was concerned. There was no in "It is obvious," says Hallam, "that these words, interpreted by any honest court of law, convey an ample security for the two main rights of civil society. From the era, therefore, of King John's Charter, it must have been a clear principle of our Constitution, that no man can be detained in prison without trial." 2 Hallam, Middle Ages, ch. 8, pt. 2, p. 310. And the same writer, in his Constitutional History of England, mentions among the essential checks upon royal authority, established under Magna Charta as part of her Constitution, "That no man could be committed to prison but by a legal warrant specifying his offense," and that "The officers and servants of the Crown violating the person-vasion or insurrection there, nor any disturbal liberty or other right of the subject might be sued in an action for damages, to be assessed by a jury, or in some cases were liable to criminal process; nor could they plead any warrant or command in their justification, not even the direct order of the King." 1 Hallam, Const. Hist., ch. 1, pt. 3. ance which obstructed the regular administration of justice. A claim to exemption from the restraints of the law is always made in support of arbitrary power whenever unforeseen exigencies arise in the affairs of government. It is inconvenient; it causes delay; it takes time to furnish to committing magistrates evidence which, in a country where personal liberty is valued and guarded by constitutional guaranties, would justify the detention of the suspect "The glory of the English law," says Blackstone, "consists in clearly defining the times, the causes and the extent, when, wherefore and to what degree the imprisonment of the sub-ed; and therefore, in such exigencies, say the ject may be lawful. This it is which induces the absolute necessity of expressing upon every commitment, the reason for which it is made, that the courts upon a habeas corpus may examine into its validity, and, according to the circumstances of the case, may discharge, admitto bail, or remand the prisoner." 3 Blackstone's Com., 133. As stated by counsel, the last vestige of any claim on the part of the government of England to the right of arrest, except upon such process as was authorized by the general law of the land, was overthrown in 1765, in the celebrated contest concerning the legality of general warrants. The arrests of parties by such warrants from the Secretary of State was condemned by repeated advocates of the exercise of arbitrary power, the evidence should not be required. A doctrine more dangerous than this to free institutions could not be suggested by the wit of man. The proceedings required by the general law for the arrest and detention of a party for a public offense-the charge under oath, the examination of witnesses in the presence of the accused with the privilege of cross-examination, and of producing testimony in his favor, creating the objectionable delays-constitute the shield and safeguard of the honest and loyal citizen. They were designed not merely to insure punishment to the guilty, but to insure protection to the innocent, and without them everyone would hold his liberty at the mercy of the government. "All the ancient, honest, juridical principles and institutions of England," says Burke-and it is our glory that we inherit them-"are so many clogs to check and retard the headlong course of violence and oppression. They were invented for this one good purpose, that what was not just should not be convenient." Whoever, therefore, favors their subversion or suspension, except when in the presence of actual invasion or insurrection the laws are silent, is consciously or unconsciously an enemy to the Republic. If neither the Order of the President nor the Act of Congress could suspend, in a State where war was not actually waged, any of the guaranties of the Constitution intended for the protection of the plaintiff from unlawful arrest and imprisonment, neither could they shield the defendants from responsibility in disregarding them. Protection against the deprivation of liberty and property would be defeated if remedies for redress, where such deprivation was made, could be denied. I pass from this subject to the second position of the defendants, that if they were not justified by the Acts of Congress, so far at least as to be exempted from responsibility for their treatment of the plaintiff, they were entitled to give in evidence testimony subsequently discovered, tending to establish the correctness of their suspicions of the complicity of the plaintiff in the desertion of the substitutes. The court below refused to admit the testimony, and this court holds that it thus erred and, for that reason, reverses its judgment. The testimony consisted of three depositions filled with hearsay, conjectures, understandings, beliefs and other irrelevant matter which rendered them inadmissible as a whole in any court on any subject; and on that ground they were objected to, and in my judgment ought to have been excluded. They were offered to show the guilt of the plaintiff in aiding the desertion of the substitutes; and though the evidence they furnished was of the vaguest and most unsatisfactory character, the court excluded them, on the ground that the guilt or innocence of the plaintiff was not a question for the determination of the jury; and that for the purpose of rebutting malice and showing good faith, they could not give in evidence circumstances of which they had never heard until after the commencement of the action. As facts not known at that time could not have influenced the conduct of the defendants, it is difficult to comprehend how proof of those facts could be received to show the motives-of malice or good faith with which they then acted.' 1. Letter to the Sheriffs of Bristol. 2. The record reads as follows: "The said three depositions were offered for the purpose of satisfying the jury of the guilt of Bean by evidence which was not known to or did not come to the knowledge of the defendants prior to said release. The court excluded said depositions upon the ground that the guilt or innocence of said Bean was not a question for the determination of the jury, but that all the facts and circumstances which were known to the defendants, or with which they in any way became acquainted prior to the imprisonment, could be admitted for the purpose of rebutting malice and showing that they acted in good faith, but that they could not give in evidence circumstances of which they had never heard until after the commencement of this suit." Independently of this consideration, it seems to me that the evidence of the guilt or innocence of the plaintiff was entirely immaterial. Assuming that he was guilty of the complicity alleged; that he had admitted his guilt to the defendants; that circumstance would not have justified their conduct in the slightest degree. They would have been equally bound upon that assumption, as they were in fact bound-no more and no less-to take the plaintiff before the proper magistrate, to be proceeded against according to law. To keep him for nearly six months in the state prison among convicts, without taking him before the proper officer to be held to bail or brought to trial, was a gross outrage upon his rights, whether he were guilty or innocent. There were magistrates in every county of the State competent to act upon the charge, and the district attorney was ready to take control of all cases against the laws of the United States and prosecute them. The defendants not only omitted this plain, imperative duty, but detained the plaintiff in prison, not with a view to punish him for the offense of which they suspected him to be guilty, but to coerce from him payment of money alleged to be due by him and others to a substitute broker. Where is the law or reason for allowing one, who by force holds another in confinement in order to extort the payment of money, to show in extenuation of his conduct that the man had been guilty of some offense against the law? The answer in all such cases should be that the law attaches the proper penalties to its violation, and appoints the ministers by whom those penalties are to be enforced; and whenever they can act, whoever usurps their authority and attempts to punish supposed offenders in any other mode than that provided by the law, is himself a criminal. For, as it was said by a distinguished statesman and jurist of England, when the laws can Act, "every other mode of punishing supposed crimes is itself an enormous crime." The doctrine announced by the decision of the court in this case is nothing less than this: that a gross outrage upon the rights of a person may be extenuated or excused by proof that the outraged party had himself been guilty of some crime, or, at least, that the perpetrators of the outrage had reason to suspect that he had. This doctrine is pregnant with evil. I know not why, under it, the violence of mobs, excited against guilty or suspected parties, may not find extenuation. Let such a doctrine be once admitted, and a greater blow will be dealt to personal security than any given to it for a century. If we turn to the adjudged cases, we shall find nothing to support, but everything to condemn, the doctrine. Thus in Delega v. Highley,32 Eng. C. L., 398 [3 Bing. N. C., 950], which was an action brought for a malicious charge before a magistrate, the defendant pleaded that he had caused the charge to be made upon reasonable and probable cause, stating what the cause was. Upon special demurrer, the plea was held insufficient in not alleging that the defendant, at the time of the charge, had been informed of or knew the facts on which the charge was made. "If the defendant," said Chief Justice Tindal, "instead of relying on the plea of not guilty, elects to bring the facts before the court in a plea of justification, it is obvious that he must allege, as a ground of defense, that which is so important in proof under the plea of not guilty, viz.: that the knowledge of certain facts and circumstances which were sufficient to make him or any reasonable person believe the truth of the charge which he instituted before the magistrate, existed in his mind at the time the charge was laid, and was the reason and inducement for his putting the law in motion. Whereas, it is quite consistent with the allegations in this plea that the charge was made upon some ground altogether independent of the existence of the facts stated in the plea; and that the defendant now endeavors to support the propriety of the charge, originally without cause, by facts and circumstances which have come to his knowledge for the first time since the charge was made." So, also, the converse of this doctrine is true: if a defendant prove that, at the time of the arrest, he had reasonable cause to believe the plaintiff guilty, this cannot be rebutted by proof that, afterwards, he turned out to be entirely innocent. Foshay v. Ferguson, 2 Den., 617. of their official authority, confined the plaintiff in a state prison among convicts for many months, not that he might be prosecuted for a public offense, but for the avowed purpose of coercing the payment of money, they ought not to be permitted to set up, either in mitigation of actual or exemplary damages, that the plaintiff was guilty of an offense for which the law had prescribed another and different punishment. In the whole range of adjudications in the English and American courts I can find no ruling which sanctions the admission of such testimony for any purpose. There is nothing in the cases cited in the opinion of the majority from the English Common Pleas, or from the decisions of the courts of Ohio, Kentucky and Illinois, which has any relevancy to the question here presented, as anyone may satisfy himself by their examination. The circumstances, of which evidence was there allowed, existed and were known when the grievances complained of were committed, and tended to establish probable cause for them. There is no intimation, in any of the cases, of the novel doctrine, now for the first time announced, that subsequently discovered evidence could be received in extenuation of conduct not founded upon it. The charge of the court to the jury was, except perhaps in one particular, as favorable to the defendants as the case permitted. It gave a succint and clear statement of the facts, and declared the law applicable to them with precision and accuracy. It told them that the arrest of the plaintiff was of little consequence as compared with his imprisonment; that had he It will appear from an examination of the adjudged cases, as it must on principle, that when illegal measures have been taken to redress private wrongs, or to punish for offenses against the public, it is inadmissible to prove, in mitigation of actual or exemplary damages, that the party injured was guilty of the offense or misconduct constituting the provocation to the illegal measures, except where the provocation is of a personal character calculated to excite passion, and so recent as to create the presumption that the acts complained of were committed under the influence of the passion thus excited. Thus, in an action of trespass for destroy-been taken at once before a United States coming or injuring certain dwelling-houses, it was held by the Supreme Court of Maine incompetent for the defendant to prove in mitigation of damages that they were occupied as houses of ill-fame. Johnson v. Farwell, 7 Me., 370. So, in a similar action, for shooting into a house in the night-time, it was held by the Supreme Court of Illinois that the defendant could not prove, in mitigation of exemplary damages, the kidnaping and seduction of his daughter by the plaintiff and her husband, done nearly a year previous. Huftalin v. Misner, 70 Ill., 55. And in trespass for tearing down the plaintiff's house, evidence that it was occupied by disreputable females as a disorderly house, whereby the defendant had suffered serious injury and disturbance, was held by the Supreme Court of New Hampshire inadmissible either to rebut the presumption of malice or in answer to a claim for exemplary damages. Perkins v. Towle, 43 N. H., 220; see, also, Weston v. Gravlin, 49 Vt., 507. Many other illustrations might be adduced from the adjudications of the state courts. They are founded upon the plain principle that no one can be allowed to undertake the punishment of wrong-doers according to his own notions; that the administration of punitive justice for all of fenses is confided by the law to certain public officers, and whoever assumes their functions without being authorized, usurps the prerogative of sovereign power, and becomes himself amenable to punishment. He shall not be permitted to set up the real or supposed offenses of others to justify his own wrong. Here, the defendants, having, by a gross abuse missioner, the arrest without a warrant, though an illegal act, would have called for small damages; and that the importance of the case consisted in his imprisonment and the purpose of it. In adding that after the plaintiff was imprisoned it was not the purpose of the defendants to try him in the civil courts, but to hold him with a strong hand until the money was paid, the court merely stated what the uncontradicted evidence on the trial established, and what was not disputed. "For this," said the court, "he is entitled to just damages, to be recompensed for his expenses, to be paid for the suffering to body and mind from confinement in a common cell in the state prison, for the disgrace, for the separation from his family at a time when it was very important that he should not be separated from them; in brief, for the loss of his personal liberty, and for the immediate and necessary losses in his business resulting from his confinement, and to the pecuniary loss which he immediately and directly sustained." To this the court added, that if the defendant Henry was influenced in all his conduct by a determination to prevent the release of the plaintiff, and to hold him after he was ordered to be turned over to the civil authorities, and was thus guilty of malice or ill-will, the jury might give.in addition to remunerative, punitive damages; that is, such sum as would punish him for the malice exhibited, and teach him and others to refrain from similar conduct. The case here is much stronger than that of Mitchell v. Harmony, reported in the 13th of Howard, 115. There the property of the plaintiff had been seized by an officer of the Army of the United States upon the belief that he was | tion was drawn as to the extent of liability beunlawfully engaged in trading with the enemy. tween the two defendants, or that any other It turned out that he had been permitted by the than compensatory damages were allowed by Executive Department of the Government to the jury. They may well have supposed that trade with the inhabitants of neighboring Prov- the amount awarded was at best but poor cominces of Mexico which were in the possession pensation. Few, indeed, would consider the of the military authorities of the United States. verdict given as sufficient for the disgrace, huIn an action for trespass for seizing the prop-miliation, and suffering wantonly inflicted upon erty, the defendant, among other reasons, justified the seizure on the ground that he acted in obedience to the order of his commanding officer and, therefore, was not liable. But the court answered, Chief Justice Taney speaking for it, by referring to the case of Captain Gambier, mentioned by Lord Mansfield in his opinion in Mostyn v. Fabrigas, 1 Cowp., 180, and observing, that "Upon principle, independent of the weight of judicial decision, it can never be maintained that a military officer can justify himself for doing an unlawful act by producing the order of his superior. The order may palliate, but it can never justify." And in that case the court added that the defendant did not stand in the situation of an officer who merely obeys the command of his superior, for it appeared that he advised the order and volunteered to execute it, when that duty more properly belonged to an officer of an inferior grade. Here the defendant, Henry, was especially officious in securing the arrest and in continuing the imprisonment of the plaintiff. He advised the arrest; he insisted upon the imprisonment until the payment of the $800 was coerced, and he urged against turning the case over to the civil tribunals. The spirit which actuated him, as well as Beckwith, is shown in their telling the plaintiff at Sutton, on the day of his arrest and afterwards, when in confine ment in the state prison, "That if they could not hold him as privy to the desertion, they should take him to Canada, to be prosecuted there under the foreign enlistment Acts for enlisting the men, unless he paid over the money." The case of Captain Gambier, mentioned by Lord Mansfield and referred to by Chief Justice Taney, was this: by order of an admiral of the English Navy he had pulled down the houses of some sutlers in Nova Scotia who were supplying the sailors with spirituous liquors, by which their health was injured. "The motive," says the Chief Justice," was evidently a laudable one, and the act was done for the public service. Yet it was an invasion of the rights of private property, and without authority of law, and the officer who executed this order was held liable to an action, and the sutlers recovered against him to the value of the prop. erty destroyed." "This case," he adds, "shows how carefully the rights of private property are guarded by the laws of England; and they are certainly not less valued nor less securely guarded under the Constitution and laws of the United States." The only criticism perhaps to which the charge is open is, that it does not distinguish between the conduct of the defendant Beck with and that of the defendant Henry. The former does not appear from the evidence to have been as officious and persistent as the latter, in efforts to hold the plaintiff until the money was coerced from him. But no objection to the charge was made on this ground; nor does it appear that on the trial any distinc the plaintiff. As punitive damages, the verdict was not at all excessive. On this last point I will quote from only one case, decided in 1763. It is the case of Huckle v. Money, 2 Wils., 205, tried before the Chief Justice of the Common Pleas of England. The plaintiff was a journeyman printer, and was taken into custody by the defendant, the King's messenger, upon suspicion of having printed a newspaper called the North Briton, and was kept in custody six hours; but he was used civilly, so that he suffered little or no damages. The defendant attempted to justify under a general warrant of the Secretary of State to apprehend the printers and publishers of that paper; but the justification was overruled by the Chief Justice, and the plaintiff recovered £300 as damages. A new trial was moved for on the ground that this amount was excessive, it being in evidence that the printer received only weekly wages of a guinea. But the motion was denied, and in giving the decision of the court the Lord Chief Justice said: "That if the jury had been confined by their oath to consider the mere personal injury only, perhaps £20 damages would have been thought damages sufficient; but the small injury done to the plaintiff, or the inconsiderableness of his station and rank in life, did not appear to the jury in that striking light in which the great point of law touching the liberty of the subject appeared to them at the trial; they saw a magistrate over all the King's subjects, exercising arbitrary power, violating Magna Charta, and attempting to destroy the liberty of the kingdom, by insisting upon the legality of this general warrant before them; they heard the King's counsel, and saw the Solicitor of the Treasury, endeavoring to support and maintain the legality of the warrant in a tyrannical and severe manner; these are the ideas which struck the jury on the trial, and I think they have done right in giving exemplary damages. To enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish inquisition, a law under which no Englishman would wish to live an hour; it was a most daring public attack made upon the liberty of the subject: I thought that the 29th chapter of Magna Charta, Nullus liber homo capiatur et imprisonetur, etc., nec super eum ibimus, etc., nisi per legale judicium parium suorum vel per legem terræ, etc., which is pointed against arbitrary power, was violated." the court below should be affirmed, and I am I am clearly of opinion that the judgment of authorized to say that Mr. Justice Clifford Concurs with me in this respect and in the views I have expressed. The following statement of the character of the evidence given on the trial touching the treatment of the plaintiff is printed from the record in the case: "The plaintiff's evidence tended to show that on the 11th day of November, A. D. 1864, while on his return from a trip to Boston, to his home in Coati- | the northern part of Vermont to Windsor, Brattlecook, in the Province of Quebec, he was arrested in a passenger car, near Wells River, in the State of Vermont, by deft. Beckwith, without any warrant or process of law, and taken from thence to Sutton, Vermont. That Beckwith at first proposed to take plaintiff to St. Johnsbury jail, but afterwards decided to take him to his (Beckwith's) residence at Sutton, to which place he was then on his way, for the purpose of allowing plaintiff to see his father, who lived about fifteen miles from Sutton. That said Beckwith kept the plaintiff there through the ensuing night, under charge of keepers; that the plaintiff's father, for whom the plaintiff sent after his arrival at Sutton, came there during the night, but Beckwith refused to allow the plaintiff to have an interview with his father except in his (Beckwith's) presence. That, on the following day, defendant, forcibly and against the will of the plaintiff, took him, and by order of Gilman Henry, the other defendant, placed him in the state prison, at Windsor, Vermont, where he remained until on or about the 26th day of April, 1865, when he was admitted to bail, and released from said imprisonment. That during all that time he was locked up in the night-time, and for the first few days in the day time also, in a narrow and scantily furnished cell, being one of those in which convicts in the state prison were confined at night; that after the first few days he was allowed, upon his complaint of the coldness of the cell in the daytime, to spend the day in the shop where the convicts worked, but was required to go out and return to his cell when they did, and not at any time to be out of sight of a keeper, nor to go upon the corridors or in the yard for exercise; that the food offered him was the fare served to the convicts, and which he could not eat; and thenceforth he obtained his meals to be sent to him from the keeper's table,by paying $3 per week, which he paid during the whole time. The plaintiff's evidence further tended to show that he was informed, at or soon after the time of his arrest, by defendants, that he was charged with being one of three persons who had received $800 of money paid for two men who had enlisted in the army in June previous as substitutes, and had immediately deserted, as more particularly stated hereafter, and with being privy to their desertion. That he was imprisoned on Saturday, and saw no one but the keepers till the Monday following, when deft. Henry came to see him; that Henry told him he could be discharged on payment of the $800, and $25 more for expenses; that the plaintiff protested his innocence and demanded a trial; that he was told by Henry he could not have a trial, and could not get one, but that his case would be reported to Major Austine, at Brattleboro', Ass't Pro't-Marshal-Gen'l. That plaintiff thereupon requested him to make immediate report, which he promised to do. That later in the same day the plaintiff being in much distress of mind and anxiety to return to his family, and thinking, perhaps, the money might be paid under protest, telegraphed to his father to come and bring $800, and sent word to Henry, by the messenger who took the dispatch requesting him not to report the case till his father arrived, which he expected would be on the following day. That his father arrived on the next day but one. That his father had an interview with Henry, and said to him that neither he nor the plaintiff would pay a dollar, and requested him to report the case at once. He was further told by both defendants, both at Sutton and after his confinement at Windsor, that if they could not hold him as privy to the desertion they should take him to Canada to be prosecuted there under the foreign enlistment acts for enlisting the men, unless he paid over the money. That, from that time, plaintiff constantly urged that his case should be reported, or that a trial should be given him, or that he be admitted to bail, and protested his innocence. And Henry repeatedly promised to report the case, but frequently told him and his father he could not get a trial, nor be admitted to bail, and that he would be discharged at any time on payment of the $825. * "The plaintiff's evidence further tended to show that throughout his imprisonment he made constant efforts in various ways to obtain a trial, or a release on bail, which he was able and willing to furnish; that his father made eleven journeys from boro', etc., for that purpose: that among other efforts he addressed to Maj-Gen. Dix, then in command of that dep't, the following letter: WINDSOR STATE'S PRISON, Jany. 21, 1865. 'Maj-Gen. J. A. DIX: 'SIR,-I am told by one Daniel Beckwith, a deputy provost-marshal here, by whom I have been committed here on a charge (of which I am entirely innocent) of aiding or being privy to the escape of two substitutes who had received $800 paid them by one Stevens, and that you have ordered my imprisonment here till I pay the $800 and expenses. If I am guilty of aiding a soldier to desert, I ought to be punished, and I cannot see, sir, how (I say it respectfully) you have any right to order my imprisonment for any indefinite time without giving me an opportunity to prove my innocence. I ask nothing but what is right, and the right of every citizen of the United States; that is, a trial. I do not believe, sir, that you have made any such orders, but the fact is, I am kept in prison ever since Nov. 11, 1864, my family suffering and my character defamed, and a trial denied me. I am told, sir, there is a United States Attorney in Vermont whose duty it is to investigate such matters, and I respectfully ask, sir, if the matter is within your jurisdiction, that he be directed to bring me to trial; and if the government is not ready for trial, I can find any number of respectable people who will become my bail until such time as the government is ready to try me. Again, sir, I ask you candidly and respectfully to order a complaint to be made against me, and, if proved guilty, I must suffer the consequences. Yours respectfully, ANDREW J. BEAN.' That said Bean obtained the intercession at Washington of Mr. Baxter, a member of Congress from Vermont. His evidence further tended to show that he learned early in April of an order for his release having been sent from Washington, and made, as did his father, urgent efforts to obtain his release, as his wife was then about to be confined; that he did not succeed, though repeated applications were made to Henry, until the 26th of April, and after the confinement of his wife, when Henry brought him before a justice of the peace of Windsor, who took bail for his appearance before a United States Commissioner when called on." Mr. Justice Miller did not hear the argument in this case or participate in its decision. Cited-111 U. S., 338. GRINFILL BLAKE ET AL., Appts., V. WILLIAM J. HAWKINS AND WALTER CLARK, as Assignees in Bankruptcy of THOMAS P. DEVEREAUX, Deceased, a Bankrupt, ET AL. (See S. C., 8 Otto, 315-331.) Will, evidence of intention-executed power-object of will-appointment of fund—executor de son tort. 1. An expressed intention in a will may serve to explain language afterwards used, and show what its meaning is; but the intention must be found in the acts or dispositions of the testator, and not alone in any previously expressed purpose. 2. Although a will be expressed to be made in pursuance of a power, yet if the testator appears to dispose of his own property only, the power will not be executed by the will. 3. On the other hand, if the will contains no expressed intent to exert the power, yet if it may reasonably be gathered from the gifts and directions made that their purpose and object were to execute it, the will must be regarded as an execution. The intent and its execution are to be sought for through the whole instrument. 4. In this case the will in question was held an |