author: Robertson, J. Woodruff, J.

text:
    Charles Mallory et al., Plaintiffs, v. The Commercial Insurance Company, Defendants.
    1. Where a policy of insurance upon freight of a vessel, which at the time of issuing the policy was in the China seas,, provided that the voyage should be “confined to the trade between Atlantic ports of the United “ States, or the ports of London, Liverpool and Havre, and the Pacific “ Ocean, China seas, including Australia, Tan Dieman’s Land and ports in “the Indian Ocean;”

      Held, that this did not, as matter of law,, extend to a voyage made by the vessel in question from Liverpool to Hew York, on her return from the China seas.
    2. In an action on such a policy, to recover for a loss upon such voyage, it is for the plaintiffs to show either that there is a single trade between the

      Pacific Ocean and China seas, <fec., as one terminus, and both the Atlantic ports of the United States and the specified European ports, indiscriminately, as the other terminus; or that the language of the policy, by usage, is understood to include a direct voyage between the Atlantic ports of the United States and the specified European ports.
    (Before Woodruff, Moncrief and Robertson, J. J.)
    Heard, October 17th, 1861;
    decided, December 28th, 1861.
    This case came before the Court upon exceptions taken on the trial of the cause, before Mr. Justice Pdereepomt and a Jury, on the 13th day of January, 1860, and which were directed to be heard in the first instance at the General Term, judgment being in the meantime suspended.
    The action was brought by Charles Mallory, Charles H. Mallory, Charles Grinnell, Elihu Spicer, Jr., Samuel Willetts, Robert Willetts and David S. Willetts, against The Commercial Mutual Insurance Company, upon a policy of insurance on freight, valued and on time. The form of the policy employed was the ordinary printed one on freight, with printed warrantees therein against the use of certain ports in Europe, British North-America, the West Indies, America and Asia, and against the carriage of grain in bulk, from certain Atlantic ports of the United States. It also contained a written clause limiting the voyages to which the risks insured against were to attach, in these words: “ To be confined to the trade between “ Atlantic ports of the United, States, or the ports of London, “ Liverpool and Savre, and the Pacific Ocean, China Seas, “ including Australia, Van Dieman’s Land and ports in “ the Indian Ocean.” It contained no other description or limitation of the voyage or voyages covered by the policy. At the time of makingAhe insurance in question, the vessel, freight of which was insured, was on a voyage from Singapore to Bombay; from thence she sailed to Liverpool, discharged her cargo, and took on board a new cargo for New York, for which place she sailed, and during the voyage thitherward she was lost. ■
    The complaint alleged the insurance to have been made against loss on freight of the vessel in question for the time specified “ in the trade between any of the following ports and places,” viz: “ Atlantic ports of the Untied States, the ports of Liverpool, London and Havre, the “ Pacific Ocean, China Seas, including Australia, Van “ Dieman’s Land, and ports in the Indian Ocean,” alleging it to have been made by the policy produced on the trial. It also alleged the employment in such a trade of numbers of registered merchant vessels, for many years before the making of such policy, and at that time; a usage for insurers in the City of Hew York, to insure persons interested in such vessels, their cargo or height in such trade, against loss, and to describe such trade substantially by the words used in the policy; and an understanding between insurers and insured that such form described and covered such trade. The complaint, however, did not allege that, if the places between which the trade intended by the policy was to be carried on, were only either the American, Atlantic or European ports named in the policy, on the one hand, and places or ports in the Pacific and Indian Oceans, and China Seas therein designated, on the other, the voyage between Liverpool and Hew York, in which the vessel was lost, came within such trade.
    The answer denied any insurance by the defendants between each and every of the ports and places named in the complaint, as therein alleged, took issue upon the practice, usage and understanding set out in the complaint, and claimed the only voyages upon which the freight was intended to be, or was insured, to he those between Atlantic ports of the United States and the oceans and seas mentioned in the written clause in the policy, and those between the European ports named therein and such oceans and seas.
    The policy in question was a renewal of a precisely similar one, except as to premium, ending on the day the former took effect, both of them having been issued on written applications by the plaintiffs’ agents; in such applications no mention was made of any trade or voyage to which the risk on the freight to be insured was limited; but in answer to a question addressed to the assured, at the foot of the first of such applications, the words “ 7 pr. ct. to be employed ” was written, and in answer to a similar query at the foot of the second, the words “ Eight per cent clause, 7.” A book of rates of premiums on risks, established before the making of either policy, was received in evidence “ prepared by the underwriters of the City of “ Few York, and printed for their guidance as to the rate “ of premiums to be charged, as agreed upon between “ them,” .not sold, but open for inspection in every insurance office by persons desirous of being insured. The pages in such book were divided into three large columns: the first containing descriptions of the proposed employment of the vessel, and, of the other two, one containing opposite to such descriptions, the rates of insurance for vessels known as clippers, and the other those for vessels which were not so. Each of the last two of such columns were subdivided into four, according to the tonnage of the vessel, the limits of which were placed at the head of such smaller columns. The tonnage of the vessel, the freight of which was insured in this case, did not come between any of such limits. Another similar book of established rates of premium was received in evidence, but its adoption w;as subsequent to the making of the last policy.
    In the first of such books of rates of premiums, the rate of insurance for voyages between the Atlantic ports of the United States and the European ports of London, Liverpool and Havre was one per cent less than that for those between the same Atlantic or European ports, and. the oceans, seas and ports mentioned in the policy in question, designating the latter in the same language as is used in such policy; a like difference of premiums was made in the second book, for the same voyages. In such second book, also,, opposite to the seventh description of voyages, was written in pencil “ Fo. 7,” and also a clause dated several months after the making of the policy in question, excepting from the risk “ coastwise, or freighting “ voyages, in the China Seas or Indian Ocean, disconnected “ from her original voyage, out and back to a port in the “ United States or a port in Europe.”
    More than six months after making the policy in question, an insurance was made by the defendants on the vessel, for the voyage from Liverpool to Hew York; and a conversation was held at the same time, in which the defendants, being informed that they were insurers on the freight, stated their willingness to increase their line to the amount of both insurances. The agent of the assured was not advised of, and, of course, did not report, on making such second insurance, in what voyages the vessel had then been engaged.
    Ho evidence was given respecting any trade between the ports of the United States or Europe and the ports in the Pacific or China seas; but four questions were put by the defendants’ counsel bearing on such trade, which were excluded, and their exclusion excepted to; these were:
    I. What, at the date of the policy in question, was the general course of trade pursued by clipper ships of the class of that whose freight formed the subject of insurance in this case, sailing from Hew York to San Francisco?
    II. What, at such date, was the general course of trade of clipper ships of such class, on voyages described in the terms of the policy ip question ?
    III. What, during the time covered by the policy, was the average amount of freight on voyages from Liverpool to Hew York, of ships .of such class ?
    IV. Whether any practice had grown up under policies, containing clauses similar to that in the policy in question, for the assured to obtain permission to make voyages from the European ports named therein to an Atlantic port of the United States ?
    An offer was rejected, which was made on the part of the defendants, to prove that the valuation of freight in the policy would be excessive for voyages between Liverpool and Hew York, by vessels of the class of that in question, but would conform to the average amount of freight of similar vessels on voyages either between the United States’ Atlantic ports and the Pacific ocean and Indian seas, including the places named in the policy, or between the ports of Liverpool, London and Havre, and such ocean and seas. An exception was taken to the rejection of this offer.
    The Judge before whom the cause was tried, charged the Jury, that it did not appear by the evidence that the shiji in question was, at the time of the loss claimed, employed outside of any trade to which she was confined by the policy; to which charge the defendants excepted. A verdict was taken for the plaintiffs for the amount claimed, and the exceptions taken by the defendants on the trial were ordered to be heard, in the first instance, at General Term.

      Daniel Lord for the defendants.
    I. The terms of the policy are express and unambiguous, giving the termini of the trade on one part to be Atlantic ports of the United States, or three named Atlantic ports of Europe, and on the other part to be the Pacific Ocean and its subordinate seas and ports.
    1. There was no evidence showing that the trade limited by the policy could embrace a doubling of Atlantic ports on both sides of that ocean.
    2. A voyage between the Atlantic-European ports,'not shown to be connected with a trade to the Pacific, would not have been within the policy.
    3. Kor would a voyage between Atlantic ports of the United States, not shown to be connected with a trade to the Pacific.
    Therefore, a voyage between Atlantic ports on both sides of the ocean is equally without the policy.
    II. Even if the voyage between Liverpool and Kew York had been shown to be connected with a particular adventure commencing in the Pacific, the policy would not have covered it, unless this were a known and common course of trade.
    1. “ The trade ” expressed in the policy meant a known trade, not any extraordinary and unusual adventure.
    2. By reference to “ the trade,” &c., as a definite thing, the underwriters would be able to determine the voyages, which, in its known course, it would embrace, and they would rate the premium to these risks.
    3. The most broad liberties are construed in subservience to the general trade to which the policy is applicable. (1 Arn. on Ins., 373, § 141, and cases cited; Hamilton v. Sheddon, 3 Mees. & Wels., 49 ; Williams v. Shee, 3 Camp., 469; Hammonds. Reid, 4 Barn. & Ald., 72; Solly v. Whitmore, 5 Barn. & Ald., 45 ; Bottomley v. Bovill, 5 Barn. & Cress., 210.)
    III. The plaintiffs showed affirmatively that the voyage from Liverpool to Hew York was not connected with the voyage to or from the Pacific Ocean.
    1. In Liverpool she took in a full cargo for Hew York, as a new and independent voyage.
    2. It had not even that semblance of a connection with a Pacific voyage, which a final return home might have given it. The insurance was to continue until Hovember 15,1857, with a power to renew for three months, if on a passage; whereas the Liverpool voyage was to have ended at Hew York in July.
    IV. The evidence offered by the defendants to show what “the trade” between the termini in the policy was, ought to have been received. It was clearly admissible to determine the subject to which the policy applied. (1 Arn. on Ins., 336, § 133, and cases cited; Uhde v. Warlters, 3 Camp., 16; Robertson v. Clarke, 1 Bing., 445.)
    V. The effecting of the policy on the ship from Liverpool to Hew York, in June, 1857, could not be held to affect the previous policy in question.
    VI. The loose conversation at the time of this insurance on ship could not vary the effect'of the existing policy.

      Charles O’Conor for the plaintiffs.

      I. The primary terms of the policy having authorized the plaintiffs to employ their ship in any trade whatever, the restriction upon that right subsequently imposed by the defendants, must be strictly construed as against the defendants. (Palmer v. Warren Insurance Company, 1 Story’s C. C. R., 362; 1 Duer on Ins., p. 161, §§ 5 and 6; 5 Cranch, 342; 2 Sumner, 375, 380; Notman v. Anchor Ins. Co., 22 Jur. R.,p. 714; 1 Burr., 347; 2 Cr. & Jervis, 251.)
    The particle “OB” slipped into the clans e of restriction by the defendants, cannot have effect to prejudice the plaintiffs.
    1. Giving to that particle the effect claimed for it, and necessary to the defense, would render the clause exceedingly obscure and ambiguous.
    The acts of the parties under this policy is perfect evidence that the defendant’s construction would render it “ a mockery, a delusion and a snare.” (2 Curtis O. C. R., 616.)
    III. The clause of restriction is either insensible and void or it must be construed as allowing a trade between any of the points named. In order to develop this intent, it is only necessary to read “ or” as “ and.” That is frequently done; and it is quite" apparent that the Hew York Board of Underwriters on two occasions, years apart, printed and issued, for the guidance of all insurers, precisely such a clause, using the conjunctive particle in the place where these defendants have inserted the disjunctive.
   Robertson, J.

It is plain from the language of the written clause in the policy in question, which determines the employment of the vessel whose freight is the subject of insurance therein, that such employment is controlled by a trade and not mere voyages. A trade between places comprehends voyages between them, but may include something more; especially when so wide a latitude is given to its boundaries as the principal ports in the United States and Europe^ and the Pacific and Indian oceans and Ohina seas.

The principal if not only embarrassment in interpreting the clause in question, arises from the difficulty of determining whether a single trade or two trades are described in it. Two different trades, one between the United States’ Atlantic ports and the Pacific and other oceans spoken of in such clause, and the other between the therein designated European ports and the same oceans, may be known to dealers in insurance, (Coit v. Commercial Ins. Co., 7 J. R., 385,) or there may be but one kind of trade, in which the same oceans may furnish one of the termini of the voyages in such trade, and the same American or European ports, indiscriminately, the other; and the word “trade,” in the singular, may have- been employed for that reason. It would also be possible that the course of trade might permit a reinvestment in Europe of the proceeds of a cargo brought from Asia to Europe, in a cargo for the American market so as to preserve the continuous unity of the trade; or it might be only necessary and sufficient for the same purpose to bring to the United States part of the cargo shipped in Asia, after landing another part in Europe; or, vice versa, the reinvestment in Europe of the proceeds of a cargo brought from America, in a cargo suited for the Asiatic market, or a reservation of part of it for the final port, might still keep the adventure single, or a round voyage. The Court, however, cannot take judicial notice of the character of such trade or trades, (Child v. Sun Mut. Ins. Co. 3 Sandf., 26,) and no evidence was furnished on the trial relating to them; indeed, the defendant was precluded from introducing any evidence on the subject.

On the other hand the plaintiffs did not introduce any evidence, either to show that the loss occurred in any special trade, or to sustain the allegation in the complaint that a trade between each and all of the places or ports named in the policy was usually designated by the terms employed therein. They rest their right to recover, therefore, solely on the position that the word “or,” which creates an alternative, is to be read “and,” (or rather, perhaps, as there is a subsequent copula, be actually omitted,)—and then, voyages between any of .the places and ports named, and any other of them are to be assumed as intended by “ the trade” between them i and they claim that without such a change the clause would be insensible and void, because it contains an alternative without affording the means of determining it.

I do not perceive that the proposed change of substituting “ and ” for “ or,” or even dropping the last altogether, without some other change, would materially aid the plaintiffs without some other change, as there are no- less than three other “ ands” in the sentence, which seriously affect its construction ; that one which connects the three named European ports together, literally construed, requires the particular trade to be conducted by voyages between all those ports, and any other named place; while the last one would require the trade to be conducted by voyages between the Pacific ocean, Ohina seas (including the places named) and ports in the Indian ocean, and any other named place. To make the sentence complete, so as to read as the plaintiffs’ case demands, it requires the words “or any one or more of them” to be added after the enumeration of the European ports named, and the words “or any where in such oceans, “ seas, or ports,” after the names of the specified sea or ocean. It would then read, “ Between the Atlantic ports “of the United States and the ports of London, Liverpool “and Havre, or any one or more of them, “and the Pacific ocean, Ohina seas, (including, &c.,) and “ports in the Indian' ocean, or any where in such oceans, seas or ports.” The voyage in which the vessel in question was actually lost was not in a trade between America and the ports of London, Liverpool and Havre, but between it and Liverpool alone, being only one of such ports. The changes and additions thus rendered necessary for the plaintiffs’ purposes seem to be too extensive for any rule of mere interpretation to justify.

But the whole basis of the argument for the necessity of change is removed, if the law furnishes a means of determining the apparent alternative. A right of electing, vested in either party to the contract, would do so. Lord Coke lays it down, that “ in case- an election be given of two several " things, always he that is the first agent, and which ought to do the ‘ ‘ first act, shall have the election/’ (Co. Litt., 145, a;) and the right of election has been, in numerous cases, held to be conferred on the party to be benefited by a contract, where he is the active party, and such contract is silent as to the party who shall make the election. (Disborough v. Neilson, 3 J. Cas., 81; Smith v. Sanborn, 11 J. R.,59; Layton v. Pearce, Doug., 16; Small v. Quincy, 4 Greenl., (1 Bennet’s ed.,) 497.) In regard to policies of insurance, it must essentially be so, and has been adopted without demur; thus, in Kane v. The Columbian Ins. Co., (2 Johns. R., 264,) it was held that where an insurance is to several places, and the assured intends to go to but one of them, he may go there first, at his election, although, if to more than one, he must observe the order in which they are mentioned in the policy. In Tredenburgh v. Gracie, (4 J. R., 444, n,) the insurance was “ at and from any port or ports in the West Indies, and at “ and from thence to Yew York,” without the policy containing anything to determine whether the voyage should be from one port or more; and the cargo was held to be covered on a voyage from one port to another in the West Indies. In Gilfert v. Hallet, (2 J. C,, 296,) liberty was given in the policy to touch at one or two places, the adventure to continue until the landing of the cargo insured, at one or two ports, no mode being specified of determining whether it should be one, or two, and the risk was held to continue after the landing of part of the cargo in one place. By analogy to such cases, a policy of insurance on freight in a trade between the Pacific ocean and American or European ports, or vice versa, as in the case before us, could hardly be held to be detached from the freight of that part of a cargo originally brought from the Pacific ocean or America, which should remain after the vessel bearing it should stop and land part of her cargo at a European port, particularly in case of a valued policy. If the vessel was engaged in either of the trades (if there were two) when the loss accrued, the policy should be considered as still attached, as the stoppage at a port mentioned in the policy with part of the cargo could not well be considered a deviation as to that part which might afterwards be lost in a voyage to another port, (Keeler v. Fireman's Ins. Co., 3 Hill, 250,) particularly where the voyages insured are trading voyages. (Gilfert v. Hallet, 2 J.C., 296.) The election to be made may be considered as made when the vessel parts with all the cargo which can characterize the voyages in which she is engaged, as being in the trade between the Pacific ocean and European or American ports, or, as is possible, when she fails to continue that trade, after parting with such cargo, by taking on board a new cargo and sailing on a new voyage in such trade, after which the assured may be considered as having divested himself of the protection of the policy on the freight.

If the order of the termini of the trading voyages had been inverted in the clause under consideration, which, of course, would not alter the sense, I think no doubt could be entertained as to its legal effect.. If the employment of the vessel had been confined to a trade between the Pacific ocean, &c., and specified American or European ports, the most natural suggestion to add would be, whichever the assured may select; so that if the insurance was intended to cover the freight only while the vessel was engaged in one of those trades, both parties might allow and agree upon the price of incurring such risk, and fix a corresponding premium. If the vessel should be employed in any other trade of greater or less risk, during the allotted period, her freight could be withdrawn from the protection of such insurance, to be regained upon her re-employment in the specified trade.

Even the rule that words are to be construed in a policy of insurance most strongly against the underwriters, as the promisors,'is not applicable upon the question of the obligatory character of the contract as at present worded, and the necessity of a change to give it any effect; such rule is only of value when two interpretations may be given to. the same words, and the question is between them, and not when it is to be determined that no interpretation can be so given to the words as they stand, so as to make a binding contract.

The clause in question does not appear to be capable of the interpretation, that the two trades intended, if there were two, might have been, one between American ports alone, and another between the specified European ports and the Pacific ocean, &c.: Such a construction would require a repetition of the proposition “ between,” immediately before the names of the European ports, so as to separate the oceans and seas enumerated from the American ports, and prevent the application of the first “ between ” to them. A contest between Americans or Europeans and Ohinese.could never be construed, grammatically, to mean a contest between Americans among themselves, or between Europeans and Ohinese, and substituting trade for contest, and taking ports instead of people, will not alter the sense.

I do not find, therefore, a necessity existing, in order either to sustain the policy as a binding contract, or to carry nut an otherwise manifest intention in the instrument, that there should be a change of the disjunctive into the conjunctive conjunction, or any other alteration in the language. As a commercial instrument in reference to a subject perfectly well understood between the parties themselves, although not expressed with the utmost fullness and accuracy, it is sufficiently capable of definite construction.

I have heretofore examined the question of the con.struction of the clause in controversy, without the aid of, or reference to, any extrinsic evidence-; but what little appears in the case gives some support to the view that, among underwriters and assured, the trade insured was considered as one and entire; in the book of rates introduced by the plaintiffs, a voyage by clippers such as the vessel in question, between London, Liverpool, or Havre and America, was considered a different voyage from those specified in the clause in such book similar to the one under consideration, and subject to a higher rate of premium; while the voyages, if there be more than one composing the trade or trades in question, if there be several, are mentioned in one clause; indeed, the underwriters seemed so much to look upon it as one trade or venture, that they originally connected the mention of the European ports with that of the American by an “and,” and afterwards changed it to an “or,” perhaps through apprehension' of the application of the very construction now contended for by the plaintiffs. The description also of the voyage as being “ one out and bad: to a port in die United States or a port in Europe,” in the exception after-wards adopted,-is very significant; it is very clear, however, that in such book of rates, the underwriters, by the clause similar to that in question, did not intend to insure voyages to and fro between Hew York and Liverpool, disconnected from a trade with the Pacific, Ohina, the East Indies and Australasia. The question, therefore, put by the defendants’ counsel, as to the course of trade of such vessels as that in question, on voyages between either the United States Atlantic ports or the European ports named in the policy, and the Pacific ocean and other places named therein, was pertinent to show what was meant by the trade mentioned in the policy, whether there was one trade or two, or one was part of the other, and it should have been allowed. Perhaps the plaintiffs were bound in the first place to show what the trade was, and thafthey were within the terms of the policy,, in order to recover at all; and, perhaps, they may be able to establish the allegation in the complaint, that a trade, such as they were engaged in at the time of the loss, was usually described by underwriters and assured in the terms of the policyboth these matters can be better determined on a new trial. If the defendants do not choose to rely upon the interpretation of the clause as it stands, as giving the plaintiffs an election to choose the trade in which they would employ the vessel, if there were two mentioned, they also have a right to introduce testimony to show whether there are not two distinct trades known to persons dealing in insurance, or only one, and that there is in fact no alternative in the clause in controversy.

There must, therefore, be a new trial, with, costs-to. abide the event.

Woodruff, J.

I concur in the conclusion that there must be a new trial, on the ground that if the construction of the defendants’ contract is to be determined by the mere terms of the policy, according to what appears to me their natural and obvious signification, the trade in which the vessel was to be employed, while the insurance should operate, was that wherein the termini were, on the one hand, Atlantic ports of the United States, or the ports of Liverpool, London and Havre; and, on the other hand, the Pacific ocean, China seas, and ports in the Indian ocean.

A well established course of “ trade ” may have given a construction to the terms employed, so that trading voyages from port to port, in either ocean, and permission to touch or lie at such ports, would be included, or so that United States vessels insured here might begin and terminate their voyages when entering upon or ending their trade between the Atlantic ocean and the other oceans mentioned, by going first from an Atlantic port in the United States to London, Liverpool and: Havre, and by returning from the latter ports to the United States; (such passage across the Atlantic being connected with and forming a part of the trade between the Atlantic and" Pacific ports, and being only incidental to the main purpose of the adventure or adventures.)

If the terms employed have, by usage, acquired a technical meaning more comprehensive than their natural and ordinary import, I think it was not necessary that the defendants should give the evidence thereof, but they might safely rest on the language of the policy, and leave the plaintiffs to proof that a trade such as the policy describes includes, as incidental to or forming part of it, a direct voyage between Liverpool, London or Havre and Hew York, or other United States port on the Atlantic.

If the proper preliminary foundation for giving parol evidence to vary the construction of the language of the policy was made, then it might be received; but, on the case, as it was presented to the Court on the trial, I think it was erroneous to declare, as a judicial construction of the policy, that a voyage from Liverpool to Hew York was not outside of any trade to which the vessel was confined by the policy, and at the same time exclude evidence of the course of trade.

Hew trial ordered.


source: Caselaw Access Project

author:
Bosworth, Ch. J. Hoffman, J.
      Robertson, J.

license: Public Domain

text:
    Anthony Pollak, Plaintiff and Appellant, v. Ira W. Gregory et al., Defendants and Respondents.
    1. An agreement by which a person is to be paid a stipulated sum for giving testimony, on the condition that it leads to the termination of a suit favorable or satisfactory to the other contracting party, who is a party to such suit, is illegal and void.
    2. Where parties to an action involving the question of the validity of a patent, entered into an agreement with one who was qualified to testify as an expert, by which the former paid the latter $1,000; and, further, agreed to pay him §2,000, upon the condition that the information possessed by him, or the testimony given by him, should enable them to succeed in the action; and, further, agreed to pay him his traveling expenses, and the usual per diem of an expert; he agreeing, in consideration of the premises, to “hold himself at all times in readiness to give his testimony, or to impart his information, as above, as an expert in said matters: ”

      jE[eld, that the whole agreement was void; and that he could not recover even Ms fees as expert and his traveling expenses. Robertson, J., dissented.
    (Before Bosworth, Oh. J., Hoefman and Robertson, J. J.)
    Heard, December 2d, 1861;
    decided, December 28th, 1861.
    This was an appeal by the plaintiff from a judgment entered in favor of the defendants, upon an order dismissing the complaint, made on the trial before Mr. Justice Woodruff and a Jury, on the 20th day of May, 1861.
    The defendants were Ira W. Gregory, James E. Kelley, William O. Watson and George H. Wooster. The action is brought on an agreement, which was as follows:
    Article of agreement, made and entered into this fourth day of September, A. d. one thousand eight hundred and fifty-seven, between William 0. Watson, George H. Wooster, Ira W. Gregory, and James E. Kelley, all of the City of New York, party of the first part, and Anthony Pollak, of the City of Washington, party of the second part, Witnesseth:
    That whereas, the said Poliak is in possession of certain knowledge and information on the subject of sewing machines, which has been recently obtained by him at a large outlay of both time and money, and which the party of the first part have, by their counsel, Joseph P. Pirsson, been advised is of great importance to them in certain suits or issues at law, and pending or about to be made, to which either themselves or others with whom they are interested are parties.
    And whereas, the said party of the first part are desirous of availing themselves, in said suits or issues, of the knowledge and information of said Poliak, the said parties of the first and second part have agreed as follows:

      Firstly. The said party of the first part will, upon the sealing and delivery of these presents, pay over to the said Poliak, as on account of moneys already expended by him, the sum of one thousand dollars, and will pay hereafter, that is to say, so soon as the said suits shall have been terminated in favor of said party of the first part, whether by an issue or trial at law, or by negotiation, or in any other manner, the further sum of two thousand dollars, which said further payment shall be upon the condition that the information possessed by the said Poliak, or the testimony given by Mm, shall have been such as has led to the satisfactory termination of "said suits to the interest of said party of the first part.
    And they will also pay from time to time to said Poliak, during the progress of said suits, all his actual traveling expenses, and the usual per diem (twenty-five dollars) of a scientific expert, while acting as such for said party.

      Secondly. The said Poliak, in consideration of the premises, and of the aforesaid sum of one thousand dollars, the receipt of which upon the sealing and delivering of these presents he does hereby acknowledge, will hold himself at all times in readiness to give his testimony, or to impart his information as above as an expert in said matters.
    In witness whereof, the said parties have hereunto set their hands and seals, the day and date first above written.

      Signatures.

    Under this agreement the plaintiff claimed to recover the following items, with interest:
    1. The sum of two thousand dollars mentioned in the above agreement.
    2. For attending, between September 4th and 15th, 1857, as a scientific expert, for eight days, in the suits mentioned in the agreement, two hundred dollars.
    3. For traveling expenses, incurred in pursuance of the agreement, sixty dollars.
    Payment of the sum of one thousand dollars mentioned in the agreement, by defendants to the plaintiffs, was admitted.

      E. Hoffman, for plaintiff, (appellant.)
    I. The contract was not void in any respect. Plaintiff performed, and was entitled to recover. (Curtis on Patents, § 180, and note, and § 321, and note; Spencer v. King, 5 Ham., 183; 1 Pickg., 415; 14 N. Y. R., 289.)
    II. At all events the covenants to pay twenty-five dollars per day as an expert, and his traveling expenses, are not tainted with illegality, are distinct and capable of separation from the illegal part, and not dependent upon the termination of the suit in the United States Court, and should therefore be upheld. (1 Williams’s Saunders’ Reports, p. 66, note; 6 Taunton, 359; Jarvis v. Peck, 1 Hoff., 479; 11 Moore, 483; 13 Wend., 53; 4 N. H., 285.)

      Charles Jones, for defendants, (respondents.)
    I. The contract is illegal and void.
    1. It is for the services of plaintiff as a witness in' a suit, and provided that the money should be paid only upon the condition that the information possessed by the plaintiff or the testimony given by him should be such as had led to the satisfactory termination of the suits to the interest of the defendants.
    The only service proved is that the plaintiff made his affidavit, which was used on a motion in one of the suits.
    2. The contract is illegal upon the ground—

      (a.) That the fees of a witness are fixed and regulated by law, and no other fees can be recovered than those prescribed by the statute.

      (b.) The contract in terms provides for payment only in case the testimony enables the party to succeed.
    (c.) Every person having knowledge of any matters involved in a suit, is bound to impart it without further compensation than the law provides. (Laws of U. S., ch. 80, (1853;) Chitty on Cont., 5th Am. ed, 587; Addison on Cont., 2d Am. ed., 96; Willis v. Peckham, 1 Brod. & Bing., 515; Collins v. Godefroy, 1 B. & Ad., 950; Hatch v. Mann, 15 Wend., 44; Gray v. Hook, 4 Comstock, 449; Davison v. Seymour, 1 Bosw., 88; Stanley v. Jones, 7 Bingham, 369; 1 Parsons on Contracts, 380; Burth v. Place, 6 Cow., 431; 17 Barb. S. C. R., 397.)
    II. The contract was not performed. There was no termination of the suit as therein provided for.
   Bosworth, Ch. J.

The plaintiff testified that “ the testimony mentioned in the agreement” sued on,“ was intended to be an answer to the Morey and Johnson patent,” which patent the present defendants were charged with infringing. By the agreement in question, the defendants covenanted to pay the plaintiff $2,000, “ upon the condition that the information possessed by the said Poliak, or the testimony given by him, shall have been such as has led to the satisfactory termination of said suits, to "the interest of said” defendants; and also to “pay, from time to time, to said Poliak, during the progress of said suits, all his actual traveling expenses, and the usual per diem ($25) of a scientific expert, while acting as such for said” defendants.

The plaintiff covenanted to “ hold himself in readiness at all times to give his testimony or to impart his information as above, as an expert in said matter.”

He brings this suit to recover the $2,000, and also $200 for eight days’ attendance in Hew York as an expert, between the 4th and 15th of September, 1857, on a motion in the U. S. Circuit Court for an injunction in one of the suits named in said agreement, and the further sum of $60 for traveling expenses.

At the time when the plaintiff charges for attending as an expert, he made an affidavit in behalf of the defendants, which was read on said motion, and he testifies that he. made it “in accordance with the terms of the said agreement.” It bears date September 10th, 1857, and tlfe motion was made on the 12th.

I think no one, carefully reading the agreement, can doubt that the plaintiff would never have agreed to attend as a witness, and impart as such the information which he had, upon an agreement merely to pay his traveling expenses, and $25 per day. If he would, the present defendants had no inducement to pay $1,000 down, or agree conditionally to pay $2,000 more. It is a just inference that the plaintiff insisted upon all the conditions and stipulations in his favor which the agreement contains.

And I think it equally clear that both parties contemplated that one mode of Poliak’s imparting his information, and the important and efficient mode, would be, his testimony as a witness on the stand, and by affidavits, to be used, whenever affidavits could be used, according to the practice of the Courts; that it is an essential ingredient in every part of the agreement that his information is to be presented by him as a witness, although it was also to be stated to counsel in consultations and otherwise, as might be useful; and that the agreement to pay the $25 per day and traveling expenses, was essentially induced by the conditional bonus for which he stipulated., and which all parties expected he would earn by giving testimony which would, according to the terms of the agreement, entitle him to it.

This idea is enforced by the circumstances under which the claim is made in this suit for eight days’ attendance. The complaint alleges that Poliak attended on those days “ in pursuance of said agreement, * * as a scientific expert.” He testifies that he so attended as an expert; but he further testifies that he then, “in accordance with the terms of said agreement, made an affidavit which was used on the 12th of September, 1857, in behalf of the said defendants on a motion argued during such attendance.”

This implies that he considered it a part of his duty as a scientific expert under such agreement, to give testimony and make affidavits, and in that way impart information in execution of the contract on his part.

I therefore regard the consideration entire, and the agreement in its object and purpose indivisible. (Barton v. Port Jackson, &c., 17 Barb., 397, and cases there cited.)

An agreement by which a person is to be paid a stipulated sum for giving testimony, on the condition that it leads to the termination of a suit favorable or satisfactory to the other contracting party, (who is a party to such suit,) is illegal and void, as having a direct and manifest tendency to pervert the course of justice. (Stanley, adm'r, v. Jones, 7 Bing., 369.) Such an agreement as strongly contravenes public policy, and is as deserving of condemnation, as that denounced by Lord Chief Justice Wilmot, in 2 Wilson’s R., 349, (Collins v. Blantern.)

In Yeatman v. Dempsey, (7 J. Scott, N. S., 628,) there was no condition in regard to the effect or results of the defendant’s testimony. His right to compensation for his time and expenses, and professionally, was not made dependent on any such condition. And in that case, when his counsel, arguendo, stated the proposition, viz.: “ A contract such as this, which almost amounts to a conspiracy to get up a case against the lady, is manifestly contrary to public policy;” he was answered by Erle, Ch. J., thus: “There is no plea of illegality, and no point of this sort was reserved; it therefore is not open to you.” (Id,. 634.)

There is nothing in the facts of that case, nor in anything said by the Judges, which militates at all against the decision in Stanley v. Jones, (supra.)

Any agreement which has a direct and manifest tendency to. pervert the course of justice, is illegal and void. By the agreement in question the plaintiff, as a condition to earning his $2,000, is to give testimony which will produce a stipulated result. The pernicious tendency of such a contract is so obvious, that it is unnecessary to state it. And, as an integral part of the same contract, he is to hold himself in readiness to give his'testimony, or impart his information as an expert, either in the form of affidavits to be made a basis of judicial action, or orally as a witness upon the stand. The whole agreement is void.

The interest of the State to convict persons guilty of crimes, is the reason of the rule which authorizes a reward for information that will establish their guilt. If it so happen that the person earning the reward becomes necessarily a witness, that result is accidental, and the objection goes to his credit and not to his competency.

With the wisdom of that rule we have nothing to do. It is a special case founded on considerations of public policy; and whether public justice as a whole is subserved by it, is a question which does not affect the case before us. (1 Greenl. Ev., § 411.) If the rule is to be abrogated or modified, it must be done by the Legislature and not by the Oourts.

I think the judgment should be affirmed.

Hoffman, J.

The agreement, which is the subject of

the présent action, may be analyzed and developed into the following statements and stipulations:

A statement and admission by the defendants that the plaintiff was in the possession of certain knowledge and information on the subject of sewing machines, which had been obtained by him at a large outlay of time and money, which was of great importance to the defendants in certain suits then pending, in which they were interested as parties, and that they were desirous of availing themselves of such knowledge and information in such suits.

A sufficient admission by the defendants, that the plaintiff was an expert, and competent to render beneficial services as such.

An agreement by the defendants that they will, upon-the delivery of the instrument, pay the plaintiff one thousand dollars, as on account of moneys already expended by him.

Another stipulation by the defendants, that they will thereafter pay, that is, as soon as the said suits shall have been terminated in favor of the defendants, in any manner, the further sum of $2,000, which said further payment shall be upon the condition that the information possessed by the said Poliak, or the testimony given by him, shall have been such as has led to the satisfactory termination of said suits, to the interest of the said party of the first part.”

“A further agreement by the defendants to pay, from time to time, to said Poliak, during the progress of said suits, all his actual traveling expenses, and the usual per diem ($25) of a scientific expert, while acting as such for said defendants.” Then, secondly, in a distinct paragraph, Poliak covenants, in consideration of the premises, and of the aforesaid sum of $1,000, that he “ will hold himself, at all times, in readiness to give his testimony, or to impart his information as above, as an expert in said matters.”

Let us suppose that the whole contract was the recital of the plaintiff’s knowledge and qualifications, his agreement to impart it, and to testify as an expert, and then the stipulation by the defendants to pay the $1,000, and the $2,000, upon the condition in the first clause of the first article of the agreement. I have a strong opinion that such a contract could not be sustained; and hence that, so far as the $2,000 is sued for, this action will not lie. It is unequivocally an engagement with Poliak to pay that sum of money to him, if the defendants find it expedient to examine him, and they win the cause through his testimony. It is true the information possessed and imparted might have been sufficient to secure a favorable result, without examining him, but yet the covenant is plainly this: If it is found necessary to use you as a witness, you shall have $2,000, provided the cause is won by your testimony.

I cannot think it safe to test the validity of such a contract, either by any speculation as to the nature of the evidence the party can give, or by the character of the evidence actually given by him on a trial. It may be, that there was no necessity for calling the plaintiff as a witness, except to authenticate the copy of the specification. It may be, that nothing else was anticipated, but it cannot be said that the necessity or utility of a far more extended examination might not arise. The agreement covers this contingency, tempting the party to partial or false testimony. A contract like this is against public policy by the common law, because it injuriously affects the administration of justice. (14 N. Y. R., 289, 292.)

In Stanley v. Jones, (7 Bing. R., 369,) the agreement to communicate such information as would enable the party to recover a sum of money by action, and to exert influence to procure evidence to sustain the claim, upon condition of receiving a portion of the sum recovered, Was adjudged illegal. After discussing it as a case of champerty, the Court say: “If there is any difference between this contract and direct champerty, it appears to us to be strongly against the legality of the contract, as the bargain to furnish and procure evidence for the consideration of a money payment in .proportion to the effect produced by such evidence, has a direct and manifest tendency to pervert the course of justice.”

The position thus taken is not at variance with the decision in Yeatman v. Dempsey, (7 J. Scott, N. S., 628.) Services had been rendered in collecting testimony, and time employed and money spent, with a promise to attend the trial, upon an engagement by the plaintiff to compensate the defendant, a medical man. Such a contract, the. case upholds. Such a contract is free from the vice of making compensation to depend upon the force of the testimony of the witness.

But, secondly, in my opinion, a contract single and independent, limited to the recital in the present agreement, to a stipulation by Poliak to hold himself at all times in readiness to give his testimony, or impart his information as an expert, and a covenant by the defendants to pay him from time to time his traveling expenses, and the 825 per day for his services in aiding counsel, and his assistance generally, would be valid and binding. (Yeatman v. Dempsey, 7 J. Scott, N. S., 628; Webb v. Page, 1 Carr. & Kir., 23.) These cases are not at variance with the authorities which hold, that upon the taxation of costs against an unsuccessful party, there cannot be an allowance to experts for time spent in experiments, &c., to prepare for the trial, except in the case of medical men. (Severn v. Olive, 3 Brod. & Bing., 72, and the cases cited.)

In my judgment, there would be a right of action upon a contract so restricted.

Can, then, this agreement be so severed in its parts, as to allow that to be sustained which if it stood alone would be valid, and that to be rejected, which, by itself, is illegal? I think this is the only question of doubt in the case.

The forms in which illegality is traceable in a contract, may generally and in substance be thus stated. Either there is illegality in the consideration for the undertaking, which a party is called upon to perform, or is sued for not performing; or illegality in the stipulation he has made, though none in the consideration. Again, there are modifications of such cases; as where there are several considerations for the thing undertaken, some of which are legal and others illegal; or several undertakings of the party sued, some lawful and others unlawful, yet on one valid entire consideration; or several undertakings with some valid and other invalid considerations.

The case of Arkwright v. Cantrell, (7 Ad. & Ellis, 565,) is an example of a consideration being wholly valid, and part of the grant or subject transferred invalid, and the rest legal. It was sustained for the legal portion. In consideration of a fine and rent, the lord of a manor granted the mines in a district, and the office called bar-master, grantable by him. Such officer was to supervise the mines and to do justice between miner and miner, as well as between miner and the lord. The grant of the office was held void from incompatibility with the interest taken as lessee or farmer.

Nicholls v. Stretton, (10 Queen’s Bench R., 346,) is a case similar in principle. The consideration for .various covenants was one and the same, and was legal: A covenant to do business for existing clients was sustained; one relating to future clients was rejected as invalid. They admitted of separation.

So also in The Bank of Australasia v. Breillat, (6 E. F.. Moore Priv. Coun. R., 152,) the Court say: “From Pigot’s case, (11 Coke’s R., 26,) to the latest authorities, it has always been held, that when there are contained in the - same instrument distinct engagements, by which a party binds himself to do certain acts, some of which are legal, and some illegal at common law, the performance of those which are legal may be enforced, though the performance of those which are illegal cannot.”

In the same instrument, directors had bound the company to payment of money used for proper purposes, and had attempted, also, to bind it to other covenants, which were assumed to be ultra vires. x

There is much variety of authority upon the point whether, if the promisé sued upon is entire, and one of several considerations moving it is illegal, an action can be sustained, there being also a good consideration.

In Deering v. Chapman, (9 Shepley R., 488,) a promissory note was given partly for spirituous liquors sold in violation of a statute, and partly for proper items of demand. It was held that the note was wholly void. No action could be supported for part.

In Woodruff v. Hinman, (11 Vermont R., 592,) the action was upon a promissory note, the principal consideration of which was the costs and expenses of a criminal prosecution, improperly discontinued. The sum of $10 was included, on a legal demand. No action could be supported. If part of the consideration was simply invalid, it would do; not, when it was contrary to law.

Burt v. Place, (6 Cow., 431,) is strongly in point to the same effect. The illegality was a violation of a statute.

In Jarvis v. Peck, before me as Assistant Vice Chancellor, (1 Hoffman’s R., 479,) it was held, that when it is evident an agreement has been made upon considerations, one of which, if it stood alone, would have supported the contract, its® union with an invalid one shall not destroy - the contract. With an exception where the contract contains a provision violating a positive statute, and/.ándther exception, where it is for an act malum in se, I consider this conclusion most consonant to the principles of justice, and at least as consistent as the opposite doctrine with, the - analogies of law. '

When the case was before the Chancellor on appeal, he affirmed the decree on one ground, and observed that it was not necessary to consider this question. “It would be seen, however, by a reference to, the case of Bunn v. Guy, as reported by Mr. Smith, that Lord Elleítboeoxjgh takes that ground distinctly. His Lordship, at the conclusion of his argument, says: ‘ Here is a boryl for the payment of money, and unless the consideration is bad by the statute, the bond is good, if any part of the consideration is good.’ See 1 Smith’s R., 11. A similar opinion was expressed by him in the case of Newman v. Newman, (4 Maule & Selwyn, 70.)”

In Carleton v. Woods, (8 Foster’s N. H. R., 290,) notes were given for goods sold. They included sales of spirituous liquor, made illegal by a statute. Under the money counts, it was held, that a recovery could be had for the other articles. There was a divisible contract.

Yundt v. Roberts, (5 Serg. & Rawle, 139,) was the case of a note, given for a tavern reckoning, which, exceeding twenty shillings, was void by statute. It included other items of account, unobjectionable. It was held good for the latter.

In Frasier v. Thompson, (2 Watts & Serg., 235,) the defendants had purchased goods at different times of the plaintiff. He bought also pills alleged to have been spurious, and fraudulently imposed upon him. This purchase amounted to $150. The note was for $400. A judgment on verdict for the balance was affirmed. The contracts were separate and distinct. The good could be separated- from the bad. It made no difference that the contracts were made at the same time, provided the considerations were not so blended as to form but one consideration.

Mr. Chitty (On Contracts, 657) says, that the-test whether a demand connected with an illegal transaction is capable of being enforced at law is, whether the plaintiff requires any aid from the illegal transaction to establish his case.

This is approved by the Court in Rose v. Truax, (21 Barb., 361,) in Buck v. Albee, (26 Vermont R., (3 Deane,) 184,) and in Gray v. Hook, (4 Comst., 449.)

The summary of part of the law on this subject seems to me well stated in Rose v. Truax, ut supra. “If any part of an indivisible promise, or any part of an indivisible consideration for a promise, is illegal, the whole is void, and no action can be maintained on it. An illegal element being incorporated in an instrument, in which the bargain is one, the consideration one, and the covenant one, the whole is vitiated.”

I refer also to the strong language of Comstock, Justice, in Curtis v. Leavitt, (15 N. Y. R., 1-96.,) Mr. O’Conor’s able and full argument led to this conclusion: “A doctrine which is expressed in the words, ‘ void in part void in toto,’ has often found its way into books and judicial opinions, as descriptive of the effect which a statute may have upon deeds or other instruments which have in them some forbidden vice. There is, however, no such general principle of law as the maxim would seem to indicate. On the contrary, the general rule is that if the good be mixed with the bad it shall nevertheless stand, provided a separation can be made. The exceptions are: First, where a statute, by its express terms, declares the whole deed or contract void, on account of some provision which is unlawful; and, second, where there is some all-pervading vice, such as fraud, for example, which is condemned by the common law, and avoids all parts of the transaction, because all are alike infected.”

But the case becomes complicated when we find one of several covenants in an agreement perfectly lawful, induced by several considerations, some of which are good, and others illegal, and other illegal covenants induced by the same considerations. I confess I think that the true rule, <3 even here, would be that we can apply what is valid as a consideration, to what is. valid as a promise, unless the instrument shows plainly that the good promise would not have been made without the unlawful consideration <■ predominating, or at least concurring.

But if the legal undertaking is severed, or fairly severable and distinct; if the legal consideration is also severed or severable; if, without dealing arbitrarily with the language of the contract, we can conclude that the lawful motive influenced the lawful stipulation, without being compelled to find that the unlawful one necessarily combined in producing it, then, in my view, an action on such stipulation can be sustained. By this principle I proceed to test the agreement in question.

Nothing can be more, clear upon the face of this instrument than that the parties meant to give to the plaintiff a distinct right of action for his per .diem allowance and expenses, from time to time. An action could have been sustained for a demand of this nature prior to the termination of the suits in which the defendants were engaged. Successive actions could have been sustained as a further allowance became due, and further expenses were incurred. This obligation, then, was distinct, independent, and unconnected with that which rested upon the successful termination of the suits. This obligation was valid, and a Court would be bound to give it effect. It is separated in the mere point of position in the document from the other undertakings of the defendants. It is separable in its nature and subject matter. It is capable of being taken as a distinct engagement, without affecting the other engagements of the defendants, and without it being necessary, to consider such engagements, to judge of this.

Thus far there seems little difficulty in the case.

It is also true, that there is to be found a lawful consid-' eration for this lawful engagement, in the undertaking of Poliak “ to hold himself at all times in readiness to give his testimony, or to impart his information as above, as an expert in such matters.”

But, to sustain this view, we must discard the apparent meaning of the words “ as above,” and not refer them to the giving of such testimony as shall produce success. And if this were permissible, we have yet to say, that the unlawful undertaking to testify did not combine with the lawful consideration in leading to this promise of the defendants. I think this cannot be said. On the contrary the result of my reflection is, that the defendants "would not have engaged to pay the per diem allowance and expenses, if this undertaking to testify had not been in the contract. The fidelity to the promise so to testify, as well as the readiness to give the information possessed, and render the services, previous to trial, were bargained for and secured by this allowance, as much as the $2,000 was bargained for upon success attending the testimony. I cannot but conclude, that the illegal consideration not only did concur to induce this promise, but really was the predominating motive for making it.

The judgment must, therefore, be affirmed.

Robertson, J.

On the face of the instrument in suit it would seem that the main object of the defendants was thereby to secure the benefit of the information acquired by the plaintiff. The recital is confined to it, the first condition of the defendants’ liability is its communication to them, and plaintiff covenants to impart it. The obligation of giving testimony or aid as a scientific expert holds a secondary position, and inasmuch as the defendants were ignorant of the nature of the information, would appear to be inserted only for greater caution, in case it became necessary. By extrinsic evidence only we discover that, while the information consisted of knowledge of the existence of a patent prior to that claimed in the litigation recited to be then pending, the testimony of the plaintiff to establish .the accuracy of the copy of the patent and specifications might be found useful; such testimony, however, although useful, does not appear to have been indispensable, for, in case of the plaintiff’s death, absence or refusal to testify, another witness might have proved the same thing. The main point was to learn the existence of such a patent and where to find it. If that had been known to the defendants, they would certainly not have agreed to pay anything like $3,000 for the testimony, and probably not more than the per diem allowance and traveling expenses. These preliminary remarks are rendered necessary by the great stress laid on the fact that one of the conditions of the defendants’ liability was giving testimony by the plaintiff, and its treatment as the predominant purpose of the instrument, and as indispensable to enable the defendants to accomplish the object they had in view in making the agreement.

‘ The giving of testimony by the plaintiff is not, by the terms of the instrument, a necessary condition of the defendant’s liability; he might even die before it could be given, and yet his representatives could recover if the necessary information was given; it is but one of the conditions on which the defendants would be liable; the alternative one is imparting information already acquired Tby the plaintiff, provided it he such as to lead to a successful issue in the pending litigation. The independent covenant of the plaintiff, merely to hold himself in readiness to give testimony generally, might expose him to a recoupment in damages, but would not by implication render such testifying a condition precedent to the right to recover; because the parties, having expressly declared what those conditions should be, that expression necessarily excludes any implication. Ho construction of the covenant could make it necessary for the plaintiff to give testimony as well as information, to entitle him to recover, if the latter be sufficient to assist the defendant in successfully defending himself against the pending claims; nay, even if the testimony given by the plaintiff was hostile to the interests of the defendants, he would still have the same right, provided they were successful and the information given by him contributed to such success. The compensation, therefore, was not for both united, but for either one, which formed the condition of the right to recover 5 and there is no room for inferring, in a case where th6 plaintiff could recover by simply establishing his communication of the efficacious information, without having given any testimony, that his becoming a witness constituted any part of the consideration for such liability. The only embarrassment in the .case arises from the fact, that apparently the same sum of money is to be paid in either event, whether the plaintiff only gives the desired information or testifies also; but this difficulty is easily solved, as it is only one of construction, for it will be found that although numerically the sum is the same, yet in legal character it becomes two sums in reference to the consideration; one being a compensation for giving valuable information, on which alone the right to such compensation depends,, and the other a compensation for giving testimony, on which alone the right to that compensation depends. There is no question that the parties in this case could have entered into two separate stipulations, by one of which the defendant should agree to pay $3,000 for the desired information, and by the other the like sum for the desired testimony, and have provided that a recovery or payment upon either should be a satisfaction of the other liability. The covenant in question does no more, and is but a grammatical condensation of such stipulations ; the creation of an alternative by a disjunctive conjunction must operate entirely to separate, in meaning and effect, the two branches of the covenant. They become, in fact, two covenants, with a different consideration for each, entirely disjoined, both in the basis and proof of the covenantor’s liability, so that either might have been omitted, and left the other to stand upon its own merits. This is the natural interpretation of the clause in question; but, were it otherwise, the rule is well settled that any reasonable construction is to be adopted to prevent a contract from failing by reason of illegality. (Ld. Howden v. Simpson, 10 Ad. & El., 793; S. C., 37 Eng. Com. L., 249.)

It remains to be seen, therefore, only how far the introduction of an illegal stipulation, or consideration, in an instrument, or a clause of it, affects such instrument or clause. And upon this point the general rule is that the common law struggles to sustain every part of an instrument from which the illegality can be extracted; it is only a statute which makes the whole void by reason of the illegality of one of its parts. (Pigot's Case, 11 R., 26; Bank of Australasia v. Breillat, 6 E. F. Moore’s (P. C.) R., 152; Curtis v. Leavitt, 15 N. Y. R., 91.) Illegality, at common law, vitiates a contract only in two cases, to wit, where the act to be performed is illegal or the consideration is so. In Rose v. Truax, (21 Barb., 361,) the test is declared to be the inseparability of the legal from the illegal parts of the undertaking, or the indivisibility of the consideration; so that if one undertakes to do an illegal as well as a legal act for a legal consideration, or a legal act for a consideration partly legal and partly illegal, and there is no mode of determining in the first case how much of the consideration was for the act which was legal, and in the second

case how much of the act was for the part of the consideration which was legal, that contract becomes invalid. Some cases do not even go as far as this: for in Bunn v. Guy, (1 Smith’s R., 11,) Lord Ellenborough held a bond to be good, if any' part of- the consideration was good, unless a statute interfered, and he reiterated the same view in Newman v. Newman, (4 Maule & Selw., 70.) The same doctrine was held by one of my brethren, when Assistant Vice Chancellor, (Jarvis v. Peck, 1 Hoffm. Ch. R., 479.) In the cases of Carleton v. Woods, (8 Foster, [N. H.,] 290,) Yundt v. Roberts, (5 Serg. & Rawle, 137,) and Frazier v. Thompson, (2 Watts & Serg., 235,) the contract was apportioned for the legal consideration, it being in the form of a promissory note. In Arkwright v. Cantrell, (7 Ad. & El., 565,) and Nicholls v. Stretton, (10 Q. Bench R., 346,) although the consideration was entire, the illegal act to be done was rejected and the rest left valid. In Deering v. Chapman, (9 Shepley, 488,) Woodruff v. Hinman, (11 Vt., 592,) and Burt v. Place, (6 Cow., 431,) the contract was declared void, because part of the consideration was in violation of a statute. It may be doubted, however, whether those last three cases are not contrary to the current of authority, and whether they do not confound the cases where a statute merely forbids an act, with those where it makes a whole instrument void which attempts to carry it out, whatever legal stipulations it may contain. In this case, however, the instrument itself separates the two parts of the contract, or rather makes two for two different considerations ; and, although it stipulates - only to be liable for but one payment, even if both acts constituting the different considerations be done, yet it also requires only one of those acts to be done to entitle the plaintiff to recover. It clearly stands the test furnished by Mr. Chitty to discover whether any part of a contract be illegal, to wit, that the plaintiff requires no aid from the illegal part to secure his right to the legal. (Chit. on Cont., 5th Am. ed., 657.) That test is also approved of in Gray v. Hook, (4 Comst., 449.) It is to be observed in this case, that the seal to the instrument is sufficient consideration for the performance of the covenant by the defendant, and that the communication of the desired information, or giving the beneficial testimony, are made mere conditions. It is true that if the only condition were to give the required testimony, and that were illegal, the Court would have a right to presume the giving of such testimony to be the consideration of the covenant; but where there is another condition, on the performance of which alone the plaintiff is to become entitled to the same amount, and which is perfectly legal, it cannot be said that from the face of the instrument the Court have a right to presume that the consideration of the covenant was ah undertaking to give testimony beneficial to the defendants. It is to be recollected that it is a covenant of the’iatter, who are entirely ignorant of the nature of the plaintiff’s information, and whether his testimony would not or would be needful; and even if the plaintiff knew that the condition as to the testimony was illegal, and that he could not recover if that were the consideration, but that such testimony was not indispensable, he had a right to risk his right of compensation upon the other ground of the practical effect of his mere information. If there were an answer setting up an illegal contract dehors the instrument, and there was extrinsic evidence to prove it, of course the mere seal would prove no barrier in this case to such a defense; but there is no such defense, and no such proof, and the defendants rely on the legal interpretation of the instrument itself to make the covenant void. The plaintiff, therefore, derives no aid from the supposed illegal part of the instrument, according to its legal interpretation, in order to be entitled to compensation for giving his information; he is not bound by the conditions to give his testimony at all in order to receive that compensation, and were it not, in fact, that his affidavit is introduced, as the mode and evidence of his communicating the desired information, there would be nothing to show that he gave his testimony; at all events, it was not necessary for him to rely on it as testimony, even if it were so, which it probably was not within the meaning of the covenant, as it was not on a trial, although the result of the disclosure was to induce the defendants’ adversaries to abandon the litigation. Whether it came within the other description in the covenant, is another question. At all events, what has been said is sufficient to skov that the plaintiff’s right to recover on the face of this instrument, according to the legal force of its proper interpretation, requires no aid from his giving testimony.

I have referred to the separate covenant of the plaintiff, in the same instrument, “to hold himself in readiness to “give his testimony, on impart his information as above “as an expert,” as not furnishing by implication the consideration for the defendants’ covenant. But if it were the only place where we could look for a consideration standing by itself, it could not be construed to mean to give only favorable testimony; which would be his going out of the way to make the contract illegal. In fact, it is hardly a covenant to give testimony, which he could be compelled to do, but merely to be in a position to give it when called on. The words “ as above ” clearly refer only to the information, since the defendants, being declared to be ignorant what the information was, could hardly be understood to speak of the testimony as being that of an expert, although they might of the information. For any refusal of the plaintiff, under this covenant, both to testify and give information, he is only liable in damages; and it is clear that, even if the testimony he should give were prejudicial, the defendants could not recover at all, and that damages for not testifying, or being away when needed, would only be recoverable by way of recoupment against any sum due for giving information, by reason of being in the same instrument, and not by way of diminution of the value of the plaintiff’s services; but, in fact, this covenant is also in the alternative, so that the plaintiff escapes liability on it, if he does either of the two, the election being with him. The covenant to pay a per diem" allowance for attendance as an expert, cannot make a covenant merely to attend as a witness illegal, dr change it by interpretation into one to give favorable testimony, however proper it might be (if the allowance were very large) as evidence to show, with other circumstances, an extrinsic illegal understanding.

It is not unnatural to assume that no part of an instrument containing many stipulations would have been signed unless the parties understood that all such stipulations could and would be carried out, and therefore, in one sense, every stipulation may be considered to be part of the consideration for every other one in such instrument ; but the law does not presume such to be the case, and it depends upon the relation of such stipulations to each other, as established in the instrument, or of the acts for which they undertake, whether they are to be construed as in law mutual considerations; and more particularly are they to be considered independent where one is illegal. The case of Nicholls v. Stretton, (ubi sup.,) goes farther than this, for, where the covenants were plainly considerations for each other, an illegal covenant was avoided and a legal one sustained, although the same consideration applied to both. In this case the tendency to look upon the instrument as one entire contract to make the plaintiff as available as possible as an expert and witness, is still further sustained by the extrinsic evidence that the testimony of the plaintiff was so useful, not to say indispensable, to the making of his information available, but that tendency must yield to the legal interpretation of each part of the instrument, and the duties it imposed and right it gave.

It seems to me that every point that could be legally strained so as to exclude so ungracious a defense as this, should be invoked for the purpose. The plaintiff, at great labor and expense, procured the valuable information, and the defendants agreed to pay $3,000 for it, if it accomplished a certain end, and after it has done so, they now seek to set up a technical illegality to defeat the plaintiff’s action, if the disclosure of such information, being legal, can be brought within any of the rules applicable to work done or goods sold, so as to make the defendants liable for its value. I think the covenant in this case ought to he admitted to be the measure of that value, as in other cases. •

I have assumed throughout that the consideration of giving testimony favorable to the defendants was illegal, but I do not wish to be understood as meaning to express any opinion on that point. The case of Yeatmcm v. Dempsey, (7 J. Scott R., [N. S.,] 628,) is very strong •against it. It would seem very illogical or unjust in that case to have allowed the plaintiff to have recovered substantial damages, unless the absence of the testimony of the defendant was proved to have been positively injurious : the action being on the contract to perform the specified services for the price therein mentioned, and not as any general duty, it would seem to sanction his right to recover for such services in proportion jp their benefit to the plaintiff. Assuming that such contracts lead to perjury, I have never been able to appreciate the distinction made in favor of a witness interested in the conviction of an offender criminally, that he is entitled.to the reward from motives of public policy; that might lead to depriving him of the reward, because no man should be allowed to disqualify himself from being a witness; but, if such contracts are illegal in a private suit, because it leads to perjury,.how much more dangerous to place the life and liberty of an accused man at its mercy. I have also not deemed it necessary to defend the covenant to pay a certain price for information leading to success in a lawsuit from the objection of illegality. Stanley v. Jones, (7 Bing. R., 369,) proceeded solely on the ground that the agreement sued on was champertous; that difficulty is removed by the Revised Statutes, (Sedgwick v. Stanton, 14 N. Y. R., 289;) any views casually thrown out in that ease seem to be overruled in Yeatman v. Dempsey, (ubi sup.,) where the plaintiff was allowed to recover substantial damages, upon an agreement to attend on a trial and give information collected to qualify the defendant to become a witness. The contract in the case before us was free from such vice, because it was to pay the price of information already collected, when communicated.

I have already stated that I do not read the covenant of the plaintiff in the instrument in suit as agreeing to give testimony to enable the defendants to succeed, being merely “to hold himself in readiness,” which is not to embarrass himself by anything which could prevent him, and to be near at hand in case of need. I also have not been able to find in the covenant to pay the plaintiff his traveling expenses and a daily compensation for his services as a scientific expert, anything said as to testimony or his being a witness, and unless the whole instrument is so redolent of nothing but a design to induce the plaintiff to warp his testimony in the defendants’ favor as to taint every part of it, I should be inclined to think the plaintiff could recover upon that covenant, even without being a witness, particularly as the payments are to be made from time to time in the progress of the cause, and he could not be perpetually a witness. I have already stated my views of the whole instrument; they are sucli as to let the covenant last mentioned stand upon its own merits, which I do not perceive to be affected by any illegal purpose.

The evidence on the trial was sufficient to have gone to the Jury under proper instructions, of the identity of the information communicated by the plaintiff with that recited in the agreement, of the termination of the litigation of the defendants satisfactory to their interests, and of the tendency and agency of such information in bringing about such a result. I think, therefore, the complaint was improperly dismissed, and there ought to be a new trial with costs to abide the event.

Judgment affirmed.