author: Düeb, J.

text:
    Kanouse v. Martin.
    Writs of error, out of the supreme court to inferior tribunals, are issuable upon judgments by default.
    The powers and jurisdiction of the supreme court, as formerly organized in this state, were the same as those of the supremo court of the colony, and the latter were identical with those of the king’s bench in England.
    It has long been settled in England, that error would lie upon every final judgment in a court of record, including judgments by default, and that all such judgments might be reviewed in the king’s bench.
    The doctrine that error from the court of errors would not lie upon judgments by default, was founded upon the particular language of the constitution in respect of that court, and was not applicable to the supreme court.
    April 1, 1850.
    Motion to dismiss a writ of error, argued before Düeb, J., and decided with the concurrence of Mason and Campbell, J.J. The writ of error was issued out of the supreme court to the court of common, pleas of the city and comity of Hew York, on a judgment by default in the latter court. After the cause was at issue on the assignment of errors, it was transferred to this court. Its final decision on the merits, after the disposal of this motion, will be found ante, at page 606.

      J. M. Martin, for the defendant in error.

      A. S. Ga/rr, contra.
   By the Court.

Düeb, J.

The motion to dismiss this writ of error proceeds upon the single ground, that the writ ought not to be entertained by the appellate court, when it appears from the record that the judgment in the court below bad been obtained by the default of the party seeking its reversal. In fewer words, that a writ of error does not lie upon a judgment by default. It is certain that, in our late court of errors, this doctrine was established by a series of decisions ; (Gelston v. Hoyt, 13 J. R. 561; Henry v. Cuyler, 17 Johns. 471; Colden v. Knickerbocker, 2 Cow. 31; Campbell v. Stokes, 2 Wend. 137;) nor can it be denied that most of the reasons which were assigned in its support by Chancellor Kent, in the leading case of Gelston v. Hoyt, apply with equal force, whatever may be the powers and jurisdiction of the court in which the writ of error is brought. His main argument had no relation to the peculiar character of the court of errors, under the constitution of the state.

It is, however, insisted, on the part of the plaintiff in error, that this doctrine was in tact limited to the court of errors ; that it had never been considered to be applicable, nor in a single case has ever been applied to writs of error from inferior tribunals to the supreme court, and my examination of the subject compels me to say that these positions are fully sustained by authorities that I am hound to follow. I am satisfied that the appellate jurisdiction of the supreme court has never been subject to the limitation, which the court of errors, by a strict construction of its constitutional powers, chose to impose upon its own action.

In England, the law is fully settled, and has never been doubted, that a writ of error lies upon any and every final judgment in a court of record. Nor is any intimation to be found in any elementary or text writer, nor I believe in any adj udged case, that there is any class of judgments which constitutes an exception from the general rule. (Co. Litt. 288 b; 9 Viner’s Ab. 474 a, pl. 6; Com. Dig. Pleader 3, B. 7; 2 Black. Com. 406; Stephens on Pl. 120; Commonwealth v. Judges of Common Pleas, 3 Binney 276.)

That judgments by default are not an exception, is proved by many express decisions, to some of which I shall briefly refer. Salkeld v. Ld. Howard, (Cro. Jac. 547,) was a writ of error to the king’s bench, upon a judgment in a real action, rendered by the default of the plaintiff in error, the defendant below, in the common pleas, lie assigned as a special error, that he was not tenant of the premises in question when the original writ was issued. The judges were divided in opinion upon the question whether he was not precluded from relief by his neglect to plead “ non tenure ” in the court below ; but no question was raised as to his right to bring, and their duty to entertain the writ, and they all agreed, that if the plea of non tenure could not have been properly interposed, the judgment might he reversed. That decision suggests a remark that hereafter may he found to have an important bearing upon the present case ; namely, that although the omission of the plaintiff in error to plead in the court below may not divest him of his right to bring the writ, yet it may preclude him from assigning any error in law' or fact, not apparent upon the face of the record, of which he might have availed himself by plea to prevent the recovery of the judgment.

In Williams v. Gwyn, (2 Saund. 43,) error was brought by the heir, upon a judgment against his ancestor, in a writ of dower unde nihil habet. The judgment had been rendered upon a nil dic'd, which, as it is equivalent to a confession of the plaintiff’s right, presents a stronger case than an ordinary default. The right of the heir to bring the writ was not denied, and the cause was therefore heard upon the errors assigned; but as these errors, in the opinion of the court, so far from being prejudicial to the defendant below, were in his favor, the judgment was affirmed.

The last and perhaps the strongest case that I shall cite, is Wade v. Rogers, (1 W. Black. 950.) This was a motion to quash a writ of error upon a judgment by default; not, however, upon the ground that the writ would not lie, but. that the plaintiff had in effect stipulated that it should not he brought. The court denied the motion, not being satisfied that this was the necessary construction of the agreement of the parties, and by this denial, by a necessary implication declared that it is only by an express stipulation that the right of a defendant to bring a writ of error upon a final judgment, whatever may be its form, or the pleadings or evidence upon which it was rendered, can be barred or restricted. And that such, in former times, was the general understanding of practitioners, not only in England, but in this state, is rendered evident by the fact, that even where the judgment was given by confession, it was usual to insert in the warrant of attorney, or cognovit, a release of errors, or a positive stipulation that no writ of error should be brought.

There are numerous cases in the books, in which application has been made to the court below to enforce such a stipulation, by quashing a writ of error issued in violation of its terms, and in every one of these cases the application would have been needless, and must have been denied, if, in the absence of the stipulation, it would have been the duty of the appellate court, to dismiss the writ. (4 Moore & Scott, 333 ; 6 Bingham 387 ; S. C. 4 Moore & Payne, 21; 1 Term Rep. 388; 2 Ibid. 183; Graham’s Pr. 941.)

The English cases which have been cited were all in the court of king’s bench, and the fact is proper to be stated, since it will be seen that it gives to these cases a controlling and decisive authority, upon the question under consideration.

It is a remarkable fact, that the powers and jurisdiction of the supreme court, as formerly organized, were not defined in either of the constitutions of the state, or by any act of the legislature. Tire constitution of 1777 recognizes the court as then existing, and adopts it with the powers it then possessed, and the constitution of 1821, although it altered materially the constitution of the court, is equally silent as to its jurisdiction. It is a necessary consequence, that the extent and limits of its jurisdiction can only be ascertained by referring to the object and terms of its original creation; and hence the revised statutes have truly declared, that it possessed the powers, and exercised the jurisdiction which belonged to the supreme court of the colony, subject only to such exceptions, limitations, and additions, as are created and imposed by the constitution and laws of the state; (2 R. S. 196, § 1 ;) for this provision, although an enactment in its form, is in truth only declaratory of the meaning and effect of the silence of the constitution.

The supreme court of the colony was first permanently organized by an act of the colonial legislature in 1697; and from that time, during the whole residue of our existence as a colony, and within the bounds of the colony, it possessed the powers and exercised the jurisdiction, civil and criminal, appellate as well as original, of the court of king’s bench in the mother country. (1 Smith’s History of Hew York, Appendix 6.)

In relation to writs of error, no portion of the jurisdiction had been taken away or abridged by the constitution, or by any law of the state. And as it was virtually given by the constitution, it is obvious that the exercise of no portion of it could be renounced by the judges themselves. They had not the power to dismiss any writ of error which the supreme court of the colony, our colonial king’s bench, must have entertained, for in so doing they would have violated a plain duty which the constitution, if not in terms, yet in reality imposed. As the constitution gave the jurisdiction, they could not decline its exercise.

We are now acting as the supreme court in the exercise of its former rightful jurisdiction, and it would have been a subject of regret, had we found that there were any prior decisions of the court, in conflict with the views that have been stated, as those it -was hound to follow. Rut in truth no such cases are to be found. So far as I have been able to discover, the practice of the court, and its actual decisions, have at all times been in harmony with its powers and its duty, as I have attempted to explain them.

In the case of Burr v. Waterman (2 Cow. 38, note,) a judgment by default, in the common pleas of this city, was reversed by the supreme court, for errors disclosed in the proceedings, brought up by a certiorari; and in Hart v. Seixas, (21 Wend. 40,) a similar judgment was affirmed. In neither of these cases, it is true, was any question raised as to the jurisdiction of the court; and perhaps, for this reason, their authority may be doubted, since it was upon this ground that the court of errors, in Henry v. Cuyler, refused to follow its own prior decision in Cheetham v. Tillotson, (5 John. R. 430.) But this exception cannot be taken to the cases next to be cited. In Campbell v. Stokes, (2 Wend. 145,) Chancellor Walworth stated very clearly the distinction between the jurisdiction of the court of errors and the appellate jurisdiction of the supreme court; and while he insisted that the former court could only re-examine and correct erroneous decisions actually made by other tribunals, upon questions actually presented to them for their determination, he admitted that the supreme court was bound to correct all ei’rors in the proceedings of inferior tribunals that were brought before it, whether the decisions had been actually or only nominally made in the court below. It is true that these remarks, so far as they relate to the supreme court, were only the expression of an opinion, hut it was the opinion of a judge, whose dicta upon such a subject have nearly the force of authority.

In the case, however, of Pike & Gandall, (9 Wend. 147, 153,) we reach at last an express decision ; for the defendant was greatly mistaken in supposing that the observations of Chief Justice Savage in this case were in any degree extrajudicial ; so far from being extraneous to the case, they were necessary to its decision. It was an action of replevin, in which the defendant put in five several cognizances, to every one of which the plaintiff in error had failed to answer, and in consequence, judgment of non pros, had been entered against him. It was objected by the defendant in error, that judgment in the court below having been taken by default, and no question having been actually decided by that court, a writ of error would not líe; and in reply to this objection, the chief justice, in delivering the judgment of the court, said, “ that the decisions in the court of errors had been mainly founded upon the constitution. and that the doctrine which those decisions established had never been applied, and was not applicable to writs of error removing proceedings from inferior courts into the supreme court.” And for errors in substance apparent upon the record, the judgment was reversed. We should have been justified in reposing ourselves upon the authority of this decision, without any observations of our own, but it was deemed expedient by a full examination of the subject, to remove the doubts, which we had reason to know, still remained in the minds of the profession. It is certain that the decisions in the court of errors had created a very general impression, that in no case can error be assigned in any court upon a judgment by default, and from this impression our own minds were not exempt.

Whether, under the provisions of the new code of procedure, an appeal will lie from a judgment by default, is a question by no means free from difficulty, but which I decline to examine, since I am satisfied that these provisions have no application to the present case; whatever other changes the code may have effected, it has not transmuted pending writs of error into appeals. Its provisions upon the subject are wholly prospective.

Whether the proceedings in the court below, that have been brought before us by certiorari, furnish any valid cause for a reversal of the judgment, is a question which, although argued by the counsel, I must refuse to decide. A certiorari is a writ of right, and a plaintiff in error is entitled by this process to bring before the appellate court any of the proceedings in the inferior court that he may deem material, and the question of their relevancy or irrelevancy as affecting the merits of the judgment, or the jurisdiction of the court in which it was rendered, must be raised upon the hearing of the errors assigned, and cannot be summarily disposed of upon motion. Such was the decision of the supreme court in Pelletreau v. Jackson, (9 Wend. 478,) which we hold ourselves bound to folio»'.

Although this motion, by the consent of the parties, was heard by me at chambers, it was made, and is proper to be decided at a general term. This opinion has accordingly been submitted to, and is approved by my brethren; and the decision is to be regarded as that of the court.

The motion to dismiss the writ of error is denied, but without costs ; the propriety of bringing the question before us in this form, having been suggested by the court.


source: Caselaw Access Project

author: Campbell, J.

license: Public Domain

text:
    Scranton v. Baxter.
    The death of a sole plaintiff, after the report of a referee to whom the cause was referred, in favor of the defendant, will not prevent the entry ot a judgment against him on the report,
    la this respect, the report of referees is within the spirit of the statute regulating the entry of judgment after the death of a party, on verdicts rendered before that event.
    April, 1850.
    MotioN to strike a cause from the calendar of the general term. The suit had been transferred from the supreme court. The action was trover, the cause was referred, and the referee reported in favor of the defendant, The plaintiff made a case with a view to move to set aside the report, and thereupon obtained a stay of proceedings. He subsequent!)' died, and his executors refused to become parties to the suit. The motion to strike the cause from the calendar was made in their behalf,

      J. Ah Taylor, in support of the motion.
    i?. Goodman, contra,
   Campbell, J.

(with the concurrence of two of his associates.) The statute, 2 R. S. 38T, § 4, provides for the entry of final judgments on verdicts in the name of the original parties, within two terms after verdict, notwithstanding the death of either party after verdict and before such final judgment is entered.

Judgment may be entered upon the report of referees the same as upon verdict ; and this was expressly decided in Burhans v. Burhans, 10 Wend. 601: the statute applying virtually to both in spirit if not in terms.

This case is different from that of an executor prosecuting in bis own name, as executor for the recovery of a claim originating in the lifetime of the testator. In such case, the executor may be excused from costs, because, in the language of the opinions, “ he cannot understand the whole subject.” (Ketchum v. Ketchum, 4 Cowen 87.) It is not the case of executors applying for leave to discontinue a suit before verdict, without costs, for the same reason might apply that they had not sufficient knowledge of the facts to enable them to prosecute, even though there might be, in point of fact, a good cause of action.

In Seymour v. Dego, 5 Cowen, 289, the facts were like the present, except in that case the plaintiff was nonsuited ; in this, there was a report against him. It was, therefore, in that case purely a question of costs. Nothing was settled. Here is a report which, if affirmed and final judgment entered upon it, settles the matter In controversy.

The rule is well settled, (2 Tidd’s Practice, 845 ; 2 Dunlop’s Pr. 746,) that “ if either party die after a special verdict, and pending the time taken for argument or advising thereon, or on motion in arrest of judgment, or for a new trial, judgment may be entered at common law after his death, or of the term in which the portea was returnable, or judgment would otherwise have been given, nunc pro tune ¡'' and the very good reason given is, that “ the delay arising from acts of the court may not prejudice the party.” But the delay,may arise, and the prejudice be done, as well by giving the opposing party time to prepare and argue his case, as in postponing the decision after argument. It is true, as alleged, that there is fO one to stand up and argue the case, according to the fiction that the parties are present in court conducting their own actons. But a cause on argument is very different from a cans--' 0,1 trial. In the former, on a suggestion from any one, tp court might look into the matter, and see whether the repop verdict should be set aside,, and this it would be competen- aild proper to do, though no argument was had. Not so orAnarily in a trial, where witnesses are to be produced, and tesfetnony taken.

In the ease of Sir John Trelawney v. Bishop of Winchester, 1 Burrows 221, the plaintiff died during the first argument, but the event did not prevent the court from proceeding to hear a second argument after the lapse of more than a year. (See Springled v. Jayne, 4 Cowen 423; Spalding v. Congden, 18 Wend. 543.)

The case in 20 Wend. 677, cited on behalf of the executors, was a motion for leave to enter a judgment on demurrer, which the court said was not a final judgment; and that it would not settle the matter in controversy.

Upon the whole, we think this motion should be denied.


author: Mason, J.

text:
    Capet and wife v. Parker.
    Under the code of procedure, “summary proceedings to recover the possession of land in certain cases,” as provided in the revised statutes, may be stayed by injunction.
    Neither the advice of his attorney, that the injunction is illegal, nor the declared intent of the magistrate to disregard it, will justify or excuse the party enjoined, in violating the injunction.
    Such condurt on the part of on attorney L*» highly censurable.
    The injunction order, under the code, has all the power and efficacy that the writ of injunction formerly possessed.
    The late court of chancery could regain, by injunction, summary piOeeedings of this character. Jones v. Siuyvesant, in note.
    June 24, 1850.
    The complaint was fif'd fin* the specific performance of an agreement for the sale of «ertain promises in the city of New York, by the defendant, Pait-or, to the plaintiff, dim. Capet, before her intermarriage, and <r which, at Hie time of such agreement, she was in possession «. tenant to Parker, and also for an injunction restraining him froa the further prosecution of (•'- mn proceedings commenced by’»⅛ before one of the ju„ b - - if the city, for Hie purpose of distossessing the plaintiffs on the plea that they held over after the expiration of their term. The substance of the complaint, so far asis necessary for the understanding of the grounds of the decision, is stated in the opinion of the court.
    An injunction order was made ex parte^ by Mr. Justice Campbell, which was duly served on Parker and his attorney, and notice of the injunction given to the justice.
    The attorney, after service of the order, declined proceeding before the justice, alleging as a reason, not the existence and binding authority of the order, but that he might be needed as a witness. He advised Parker, however, as appears by his own affidavit, that the order was illegally issued. The justice also declared, that he should disregard the notice; that no court or officer could interfere with, or stay the proceedings, on any application of that kind pending before him; that he should go on with the case, and that unless Parker called his witnesses he should dismiss it. Parker thereupon, with the aid of other counsel whom he had brought there, produced his proofs; and Capet and wife not appearing, the justice gave judgment in his favor, and issued his warrant for their dispossession.
    Parker, on the day after the injunction was served, and before the service of the warrant of dispossession, gave notice of motion to vacate or modify the injunction order upon the complaint, and the papers accompanying it; and the plaintiffs in this suit, a few days afterwards, obtained an order for Parker to show cause why an attachment should not issue against him for a violation of the order. Both motions were heard at the same time, by Mason, J., and the decision was made with the concurrence of two other justices of the court.

      O. IF! Barnard, for the plaintiff.

      8. Sanxay, for defendant.
   Mason, J.

The complaint, which on the motion to vacate or modify the injunction, must be taken as true, clearly shows that the justice had no jurisdiction in the matter. He has power, under the statute, authorising summary proceedings to recover the possession of land, upon the application of a landlord, to remove a tenant from premises occupied by him in certain sped-fied eases; but it is essential to the exercise of this power, that the relation of landlord and tenant should hare existed, and that the tenant, holds over without permission, either after the expiration of the term, or after default in the payment of rent, or after he had been discharged under an insolvent act. There is only one case in which this power is conferred on him, as to parties, between whom the relation of landlord and tenant has not subsisted, and that is where a person holds over, and continues in the possession of real estate which has been sold and conveyed by virtue of an execution against him. In all other cases, the party proceeded against must be a tenant who wrongfully holds the possession against the landlord. If the party in possession has himself become the owner of the premises, he cannot be turned out under this act, even though the party seeking to do so has previously borne towards him the relation of landlord. Under such circumstances, the justice would have no jurisdiction, and all his proceedings would be coram non judiee and void. Now, in the present case, it distinctly appears by the complainant, that although the plaintiff, Caroline Capet, before her intermarriage, had hired the premises from the defendant for a term which expired on the 1st of May last, yet that in the month oí February last, she received from him a written agreement for the sale of the premises to her, which she accepted, and with the terms of which she complied, by the payment of the whole purchase-money in the manner and to the person designated by the defendant for that purpose, long before the commencement of the proceedings, to dispossess her, and as earl}' as the middle of April last. Having thus purchased the premises, the relation of tenant wars merged in that of owner, and her right of possession for a limited and definite time was changed into one which was absolute and unlimited. She became the equitable, if not the legal owner of the property, and was entitled to a conveyance thereof from the defendant. It will not be pretended, that if the defendant had fulfilled his contract, by the execution and delivery of the conveyance, he would have had any right to have instituted these proceedings, and under them, as landlord, to turn the plaintiffs out of possession. Surely then he cannot, by a refusal to comply with his contract, acquire greater rights than he would have had, if he had acted up to its letter and spirit. The pretence, that the plaintiff held over after the expiration of this term, while it would exonerate the justice from any wrong intention, and might justify him in commencing the proceedings, yet would not authorise him in continuing them, after he had notice of the true state of the case, or in holding cognizance of a controversy in which the real question was the title to the land, and not merely the right of possession, as between landlord and tenant.

Admitting, then, that the counsel for the defendant is right in proposing that the 47th section of the act, which declares that the proceedings on the application of the landlord shall not be stayed or suspended by certiorari, or by any other writ or order of any court or officer, applied to injunctions out of courts of equity, as well as to proceedings at law, vet it can only affect cases in which the justice has jurisdiction, and not cases in which, by the admission of the person assuming to be landlord, the justice has no jurisdiction. A mere allegation on the part of the person instituting the proceedings, that the circumstances exist which the statute requires, cannot authorise the justice to proceed, when it is proved or admitted that the allegation is false. Upon this ground alone the injunction was properly-granted, and ought to be continued.

But that portion of the 47th section above referred to, has been virtually repealed by the 4Tlst section of the code, which, while it continues in force, the statute relative to these summary proceedings expressly repeal any particular provision contained in it, inconsistent with the code; and this particular provision of the 47th section is, we think, plainly inconsistent with the 219th section of the code, which authorises an injunction to issue when it shall appear by the complaint, that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission, a continuance of which, during the litigation, would produce injury to the plaintiff.

Now, the plaintiff Caroline Capet, having purchased the premises from the defendant, and paid for them in full, is clearly entitled to a conveyance, if the agreement entered into is not of itself a conveyance, and the plaintiffs are also entitled to be quieted in the possession; and the proceedings before the justice, if carried out to the granting of the dispossessing warrant, would produce a serious injury to them,

The motion to vacate the injunction is therefore denied, with ten dollars costs.

Upon the motion for an attachment against the defendant, I cannot hesitate for a moment. The defendant has, by his own confession, openly and wilfully violated it. He went on and proved his case before the justice, and took out a warrant for the removal of the plaintiff from the premises, after the service of the injunction upon him. Neither the advice of his counsel, that the injunction was illegal, nor the declaration of the justice, that he would go on and try the case, notwithstanding the injunction, affords any justification of the defendant’s conduct. If he choose to rely upon these irresponsible opinions, and set the authority of the court at defiance, he must abide the consequence. The distinction taken by the counsel for the defendant, between an order for an injunction and an injunction tinder the seal of the court, is a distinction without a difference. The seal under the old practice did not possess any such magic virtue as was ascribed to it by the counsel. Its whole efficacy depended on the fact, that it was a conclusive evidence of the order of the court, for it could not be affixed to any writ, and especially to a writ of injunction, without an order of the court expressly authorizing it. The code has taken away the necessity of using this particular sign or evidence of an order, hut it has left the substance — the power in the court or judge to make the order, and the power to enforce it.

The conduct of the defendant’s counsel, upon the service of the injunction, was very different from what should have been pursued. He was an officer of the court. He ought, therefore, to have advised his client to respect its authority, even though in his opinion the court had erred. We live under a government of law, and it is one of the peculiar felicities of our condition, that the, moral sense of the community is so strongly on the side of obedience to law, that, in the civil administration of justice, resort to physical force is seldom necessary to carry the judgments of the courts into effect. They are submitted to as a matter of course. It is peculiarly the duty of those who profess the law, to cherish this feeling, and to elevate and strengthen the spirit of obedience to judicial authority. And it is a nfatter of deep regret, when any of those whose province it is to aid in the administration of justice, encourage resistance to or disregard of the decisions of the court, or of its judges. In the present case, the counsel did not himself violate the injunction, nor does it appear that he advised his client to do so, but the expression of his opinion as to the illegality of the order, was certainly calculated to induce the defendant to believe that he might disregard it with impunity. That circumstance, therefore, may be taken into consideration in determining the punishment to be inflicted, but cannot prevent the issuing of the attachment,

The defendant, however, may prevent its being issued, by vacating all the proceedings taken before the justice, on the 28th of May and subsequently* and dismissing his application, and paying $10 costs of this motion within three days after service of a copy of this order. Otherwise the attachment must issue.

         In the case of James v. Stuyvesant, before the chancellor, in December, 1839,. an injunction had been issued, restraining the defendant’s proceedings taken under this act, to dispossess the complainant from several leasehold premises, on the ground of the non-payment of rent. The bill charged fraud, and various other equitable grounds for relief. A motion was made to dissolve the injunction, under the 35th rule of the court of chancery, for the reason that the bill was not served within six days after the defendant appeared. The author, as counsel for the complainant, sought to excuse this omission, and to have the complainant relieved on terms, retaining his injunction. The defendant then insisted that the injunction ought to be dissolved on the matters of the bill, relying on the 47th section of the act, and that therefore the complainant ought not to be permitted to retain it. The question on this section was argued at large, and the chancellor, in conclusion, allowed the complainant to retain the injunction, saying, that in his opinion the 47th section did not prevent the court of chancery from relieving the tenant in a case of frauJ. — See contra, Moffat v. Smith, (1 Barb, S. C. R. 65.)

         S. P. — Per Edmonds, J., in Cure v. Crawford, 5 Howard’s Pr. R. 293, in the supreme court, first district, July, 1850.


author: SaNdfobd, J.

text:
    Linden and Fritz v. Hepburn and others.
    The code of procedure has not changed the inherent difference between legal and equitable relief ; although it has abolished the distinction between legal and equitable remedies.
    Á complaint may now ask alternative relief, of which or;e alternative could formerly be obtained only in an action at law, and the other only by bill in equity ; but it cannot demand inconsistent relief.
    Thus, a lessor cannot, in the same complaint, seek a forfeiture oí the lessee’s term and an injunction against a breach of his covenant as to the particular use to he made of the tenement : the forfeiture being totally inconsistent with any equitable relief.
    A lease by the lessee to a sub-tenant for the residue of his original term, reserving rent to himself and a right to re-enter for breaches of the covenants which required the sub-tenant to keep the covenants in the original lease; is a sub-lease as between the original lessee and the sub-tenant, and not an assignment of the original lease. The lessee may re-enter for breaches of the conditions, although there be had no reversion.
    (Before Oakley, Cil J., and Sandford and Paine, J.J.)
    Nov. 30;
    Dec. 21, 1850.
    This case came before the court on two appeals taken by the defendants Hepburn and Wills, (who alone defended the suit,) one, from an order at chambers granting a motion for an injunction, the other from a judgment at the special term overruling a demurrer to the complaint.
    The complaint made the following case. James IT. Roosevelt leased to A. and F. Roux, the houses and lots, 418 and 480 Broadway, in the city of New York, for eight years from May 1st, 1845. The lease provided, that if the rent should be unpaid, or default be made in any of the lessee’s covenants, the lessor might re-enter. The lease was declared to be on the express condition, that the premises were to be occupied and used only as a dwelling and cabinet maker’s shop and ware rooms, except that the basements on Broadway might be let to trades not noisy, but not for billiards, tenpins, &e.; that no persons, furniture, &c., should be placed or go on the roofs of the Broadway houses; that no projecting signs should be put up, nor any awnings or posts ; and that no alteration should be made in the buildings without the lessor’s written consent.

      In March, 1848, A. and F. Roux transferred the lease to the plaintiffs, who in the same month demised to the defendant West, for fire rears from May 1st, 1848, the whole of 480 Broadway, except the front basement and a room adjoining it, subject to all the covenants and conditions contained in the original lease. "West covenanted to observe and fulfil the same, and his lease contained a provision that the plaintiffs might re-enter if any default should be made in any of the covenants therein contained. The rent was payable by West to the plaintiff. ‘West entered, and is in possession of part of the tenement so underlet, and Hepburn and Wills are in possession of the residue, under West,
    West and the other defendants, have broken the covenants of the lease and conditions in all the four particulars before mentioned. They are using the premises for the retailing of liquors, &c,. have kept furniture on the roof, put up projecting signs, and made unauthorized alterations in the buildings. By reason of which the lease to West has become forfeited, and the plaintiffs are entitled to re-enter.
    The complaint prayed for judgment to that effect, and that the defendants might be removed from the premises and the plaintiffs put in possession. And that the defendants might be enjoined from using the premises in the manner complained of, and from violating the covenants and conditions in Roosevelt’s lease.
    The plaintiffs moved for an injunction, which was granted, after argument, so far as to restrain several of the inhibited uses of the premises. The defendants demurred to the complaint, and the court, at special term, overruled the demurrer.

      J. Cochran, for the defendants.

      J. W. Knox, for the plaintiffs.
   By the Coukt.

SaNdfobd, J.

The only ground presented by the demurrer which recpiired any serious consideration, is that no right of entry exists in the plaintiffs; that the lease executed by them to West, operated as an assignment of the original lease, pro tanto, and there being no reversionary interest in the plaintiffs, they cannot recover.

Wthatever the effect of this lease might be, as between West and the original lessor of the demised premises, we have no doubt that as between West and the plaintiffs, it is to be regarded as a sub-lease, and not as an assignment of the original term. The right to re-enter was reserved to the plaintiffs, and this suffices to enable them to enter for breach of the conditions, although there be no reversion remaining in them. (Doe. ex dem. Freeman v. Bateman, 2 B. and Ald. 168.) And see Kearney v. Post, 1 Sandf. R. 105; affirmed on appeal, 2 Comst. 394. The judgment for the plaintiffs on the demurrer, must be affirmed with costs.

On the appeal from the order granting the injunction, a different question arises. The complaint, after setting forth the violations of covenants and conditions fur which the plaintiffs seek to recover, prays for a judgment of forfeiture of the term of years, that the defendants be for that cause dispossessed, and that the plaintiff be put into possession of the premises. It then prays for an injunction, to restrain the defendants from making alterations in the buildings, and from using them for retailing liquors and in other inodes prohibited bv the covenants in the lease.

The forfeiture and re-entry prayed, are the relief heretofore granted in the action of ejectment brought for the recovery of demised premises. The injunction asked, is purely equitable relief, heretofore given in a chancery suit, and in conformity to the principles of equity. The ejectment brought to effect a re-entry for breaches of the condition in. a lease, has always been regarded in the law as a hard action, one dridissrmi juris • and the English chancery reports abound in cases in which the courts of equity have been importuned to relieve tenants against the forfeitures claimed in such actions. A proceeding like that before us, would never have been thought of under the system of remedies in force prior to the code of procedure. Equity abhors forfeitures, and always relieves against them -when possible to do so; and no man would have ventured, under that system, to ask her for one of her most benign remedies, while in the same breath he demanded from her a vigorous forfeiture of his opponent’s estate in the subject of the controversy.

Does the code of procedure make any change in this respect ? Can a plaintiff, under the code, ask for equitable relief, and in the same suit, demand a forfeiture ? We are clear, that the code has not altered the rule. It lias abolished the distinction between legal and equitable remedies ; but it lias not changed the inherent difference between legal and equitable relief. Under the code, the proper relief, whether legal or equitable, will be administered in the same form of proceeding. In some cases, alternative relief may be prayed, and relief be granted, in one or the other form, in which cases an‘action at law was necessary before to attain the one form, and a bill in equity to reach the other. A suit for specific performance is one of that description. Hut we think inconsistent relief can be no more asked now than it could be under the old system, A vendor cannot now exhibit a complaint, demanding payment of an instalment of purchase money in arrear, and also a forfeiture of the contract of sale and restoration of possession ; even if the contract expressly provided for such payment and forfeiture.

There can be no better illustration of our meaning than this very case. The forfeiture of the term, is a relief totally inconsistent with any equitable remedy. The lessor may pursue his remedy for a re-entry and possession; or he may proceed for an injunction and damages, leaving the tenant in possession. He has an undoubted option to do either. He cannot do both at once.

“ He that seeks equity, must do equity,” is a maxim which, lies at the foundation of equity jurisprudence; and it is not at all affected by any change of remedies. We imagine that a much broader effect has been claimed for the violation of the distinction between legal and equitable remedies, than was ever intended by the legislature. The first section of the code, shows what was intended by the word remedies. It is limited to actions and special proceedings, and the declared object of the preamble to the code, is, simply to abolish the distinction between legal and equitable actions. There is no ground for supposing that there was any design to abolish the distinction between the modes of relief known to the law as legal and equitable, or to substitute the one for the other, in any case. Those modes of relief, the judgment or the decree, to which a party upon a certain state of facts, was entitled, were fixed by the law of the land. No inference or deduction from a statute, nothing short of a positive enactment by the legislature could change them. The code contains no such enactment, and we repeat that we do not perceive in it any countenance for an inference or deduction to that effect.

The chapter of the code relative to injunctions, in our judgment, does not affect the question. It substitutes an order for the writ heretofore used, and it defines the cases in which ft may be granted, the latter being the same substantially as were established in our court of chancery. It does not profess to create a new remedy. On the contrary it recognizes the injunction as an existing provisional remedy, provides the order in place of the writ, and regulates the mode of granting it. Its character as a mode of equitable relief is not at all altered or impaired.

Our conclusion is, that the plaintiffs had no right to an injunction, while they demanded a forfeiture of the lease. As the case made by the complaint would entitle them to an injunction if their relief had been limited to that remedy together with damages, we will permit the injunction to stand, on their stipulating not to take judgment for a forfeiture or delivery of possession of the premises. And they may amend their complaint so as to ask for damages.

Unless they thus stipulate, the order for the injunction must be reversed.


author: Mason, J. Oakley, Oh. J.

text:
    Bennett v. Chapin and others.
    A receiver is entitled to his commissions on the value of all the personal property and things, in actions of which he has become possessed, and which he transfers and delivers, in specie, under the order of the court.
    He is not entitled to make rests, and begin anew with a full commission of five per cent, every time he makes a deposit in the Trust Company where the order requires him to deposit whenever the money received by him amounts to a specific sum. His commission is to he computed, on the aggregate amount, at five per cent, for the first thousand dollars, two and a half per cent, on the next four thousand, and one per cent, on the residue.
    A receiver may employ the counsel of one of the parties in the suit in a service relative to the fund which is for the common interest of both parties, and not adversely to either.
    Dec. 7;
    Dec. 21, 1850.
    MotioN arising on the accounts of a receiver, who, by an order made by consent, was directed to pay over and deliver all the money, property, and effects in his hands to certain of the parties. He had, accordingly, paid over the money collected, amounting to something more than twenty thousand dollars, and had transferred and delivered a large amount, nominally, of book accounts and other things in action. He claimed commissions on the money received and paid, as stated in the opinion of Mason, J. The parties contested his claim as made, and also a charge for a payment to counsel. The facts sufficiently appear in the opinion of Judge Mason which precedes that of the court. The receiver appealed from that decision, and the motion was argued at the general term, before OaHey, Ch. J., and Sand-ford and Paine, J.J.

      Murray Hoffman, for the receiver.

      E. L. Fancher, for the plaintiff.
   Mason, J.

(At chambers.) — -The order in this case limited the compensation of the receiver to a commission, such as is allowed to executors and administrators, and the well settled construction of the statute on the subject of the commission of executors and administrators is to allow five per cent, for receiving and dishinving the first thousand dollars, two and a half per cent, upon the next finir thousand, and sine per cent, for the residue. The receiver has, however, retained five per cent, on all sums of and from two to four per cent, on all sums of $2.000 and upwards, and it is contended, that, as the order directed him to deposit the montvs collected by him in the Yew York Life Insurance and Trust Company as the same should from time to time he received : each deposit must be considered in the light of an annual rest. The object of annual rests is to strike a balance, and charge the executor or trustee with interest on the sum which may he found in his hands at the end of every year, and, in such cases, full commissions are allowed. But this is the first time, we believe, that it was ever gravely contended, that a mere deposit in bank was in the nature of an annual rest. Besides, here the deposits occur every three or four weeks, as often as the receiver had collected a thousand dollars. This case is very similar to that of the receiver of the Bank of Niagara, (6 Paige 213,) the order for whose appointment contained the same clause in relation to his commission as in the order before us. The receiver, in that case, had charged, and the master had allowed full commissions of five per cent, on all the receipts and disbursements; but the chancellor held, that the receiver could only charge the statutory allowance on the gross amount of his receipts and disbursements, unless he had rendered periodical accounts of his trust, in conformity with the standing rule of the court, or the account was directed to be taken with annual rests for the sake of charging him with interest on the balances in Ins hands. The commissions in the present case must he charged therefore in the usual way, as that receivership did not here continue more than a few' months.

(The judge then proceeded to examine other points which were not involved in the appeal.)

The charge of $50 paid as a counsel fee to Mr. Cutting is objected to on the ground that Mr. Cutting was counsel for the defendants in the suit in which the receiver was appointed. It was admitted on the argument, that this stun was not paid as a fee to Mr. Cutting for advising and assisting the receiver in the general duties of his trust, but as a specific fee for services in relation to the joint fund in which both plaintiffs and defendants were interested. He was not engaged then, adversely to either of the parties to the suit, but to advance the common interest of both, and his employment did not come within the principle of' the rule which prohibits the receiver from employing the solicitor or counsel of either of the parties to the suit in which he is appointed receiver. Indeed, Chancellor Walworth, in Ryckman v. Parkins, (5 Paige 543) while stating the rule in broad and general terms, expressly excepts from its operation the case of the counsel of one of the parties being employed to obtain or create a fund for the joint benefit of both parties. This payment must therefore be allowed.

By the Couet.

Oakley, Oh. J.

(On the appeal.) We concur fully with the views expressed by the judge at chambers, in respect of the receiver’s right to make rests and begin with full commissions every time he made a deposit. This was plainly inadmissible, and he must abide by the direction given by the order appealed from. lie is, however, entitled, in addition to those on the money received and paid, to commissions on the value of all the assets taken out of his hands by the order settling the suit, and delivered to the parties. These were book accounts and other things in action, not yet converted into money. (Matter of De Peyster, 4 Sand. Ch. R. 511.) If the parties cannot agree upon the value of these effects, we will appoint a referee to ascertain it.

No question was made before us, as to the propriety of the allowance of the counsel fee paid by the receiver.

Order accordingly.


author: SaNdfoed, J.

text:
    Ross v. Clussman.
    One who becomes the assignee of a judgment after the return of an execution, is the judgment creditor, and as such may institute proceedings on the judgment supplementary to the return of the execution, under the code of procedure.
    Those proceedings are prosecuted in the action in which the judgment was recovered, and the assignee of the judgment may conduct them in the name of the plaintiff of record.
    The defendant, in proceedings supplementary to the execution, was enjoined by an oidor of one of the justices of the court, from disposing of or in any manner interlining with his property. By a series of adjournments and delays of the proee.-lne-, he protracted the appointment of a receiver for a long period, and meantime eoufessed a judgment in another court for a large amount to his father-in-law, upon which aa execution was immediately returned, supplementary proceedings taken, a receiver appointed, and an assignment made by the defendant to him under a judge's order, before the. receiver in the first suit was appointed, and the latter was thereby prevented from receiving the fund which the party in that suit was seeking to reach. Held, on the facts, that the judgment was confessed for the purpose and with a view to enable the second judgment creditor to obtain a receiver and a transfer to him of the fund, and thereby to prevent the first creditor from reaching it. Held further, that this was a plain and intentional violation of the injunction.
    Although simply confessing a judgment will not be a violation of such an injunction order, yet it will he so deemed, if accompanied by other acts which show an intent to change the disposition of the debtor’s property to the prejudice of the creditor who has obtained the injunction.
    It appearing that the fund diverted by the defendant’s violation of the injunction was sufficient to pay the plaintiff's debt and costs, the defendant was fined a sum equal to the amount of the judgment with interest, and the plaintiff’s costs of the supplementary proceedings and of the application to punish the contempt; and he was committed until the fine was paid.
    Whether the rule of the late court of chancery, in ea-e of successive creditors’ suits, giving priority to the one first instituted, before whatever vice chancellor it might he, is to be applied to successive supplementary proceedings under the code, in the same or different courts, Quere. It seems it must be so applied, in order to avoid incessant confusion and clashing of jurisdiction respecting such proceedings.
    (Before Oakley, Ch. J., and SaNdford and Paire, J.J.)
    Nov. 16, 23;
    Dec. 28, 1850.
    This was a motion to punish the defendant for a contempt of court, argued by arrangement, before three of the justices, instead of one at chambers. On a previous occasion, an order had been made, referring it to Joseph S. Bosworth, Escp, to ascertain the facts and report thereon, and the motion was heard on his report.
    From this report the following facts appeared. The judgment in this suit was recovered May 14th, 1849, for $565 44, and an execution thereon ovas returned unsatisfied August 17th, 1849. On the 18th of December, 1849, Mathew T. Wallace, to whom the judgment had been assigned in the meantime, on his affidavit, obtained from the Chief Justice an order requiring the defendant to appear before him on the 19th, and answer on oath concerning his property, and ordering him, until the further order of the court, “ to refrain and desist from assigning, disposing, or in any way interfering with his property or rights in action, or any part thereof.” The order was served on the defendant personally, whli appeared on the 19th before Sandford, J., and was sworn and Ms examination commenced. On the 20th of December the parties again appeared, and by consent it was referred to Mr. Bosworth to take the examination. The order of reference contained an injunction upon the defendant, in the same words as that in the original order. The referee proceeded and reported the examination, January 2d, 1850. On the 21st February, Wallace’s attorney served a notice on the defendant, that on the 4th of March he would move for a receiver. A motion was made on the 4th, and the justice directed the defendant to show cause on the 5th, why C. Dunning should not be appointed. March 5th the defendant obtained an adjournment to the 6th, on that day to the 7th, and then to the 8th of March, when it was referred to Mr. Bosworth to report a suitable receiver, &c. He reported on the 13th, and on the 15th of March an order appointing a receiver was made, and the defendant requii*ed to attend, on notice, and assign to him all his property. He attended, on notice, April 24th, procured an adjournment to the 25th, and then executed the assignment, at the same time stating that on the 12th of March he had executed an assignment of all his property to another receiver.
    It further appeared, that on the 23d February, 1850, the defendant confessed a judgment in the supreme court, for $6,020- 05 to W. M. Willmarth, his father-in-law, with whom he was then boarding, on demands which were justly due. They were left on that day, by "Willmarth, with an attorney, who made out and served on the defendant a summons and complaint. At the attorney’s request, he called the same day on the latter, and confessed the judgment. Execution issued immediately, and was returned in four or five days, and thereupon proceedings supplementary to execution were commenced by Willmarth, before a judge of the New York common pleas, an examination had, a receiver appointed, and defendant ordered to assign to the receiver. The latter was on March 9th. The judge then expressing doubts as to his authority, that proceeding was dropped ; and fresh, proceedings supplementary, &c. were, on the 9th March, commenced before a justice of the supreme court. The order required the defendant to appear before a referee named therein, at five p. m. of the same day, who was also to appoint a receiver of his effects. The defendant appeared, and was then examined. The referee reported on the 11th of March, appointing a receiver, an order of the corah was made the same day confirming it, and directing the defendant forthwith to assign to the receiver all “ his rights of action, equities, rights, and interests and on the 12th March, he assigned, accordingly, to Willmarth’s receiver, all his property and effects. He did not disclose to the referee or the supreme court, the pendency of Wallace’s proceedings against him.
    The property which Wallace had in view and was endeavoring to obtain, was an interest of the defendant, given to him by his grandfather, which was in the hands of the trustees of the will • and it was more than sufficient to pay Wallace’s judgment, interest, and costs. All the proceedings of Wallace were entitled in this court, in the suit of Ross v. Clussman.
    Mr. Rosworth reported, that the defendant confessed the judgment to Willmarth voluntarily, for the purpose and with the intent of facilitating proceedings to be taken, of the character which ensued, and with the expectation they would be taken, by Willmarth, to procure from him an assignment of his interest in his grandfather’s estate to a receiver, and for the purpose and with the intent of thereby preventing Wallace from reaching and applying that interest to the satisfaction of the judgment assigned to him by Ross. That he had violated the injunction orders of Dec. 18th and 20th, 1849, and should be fined an amount equal to Wallace’s judgment and interest, and the costs of proceedings.

      II. M. Dewey and O. P. KirUand, for Wallace, the judgment creditor.

      G. B. J. Bowdoin and W. G. Noyes, for the defendant.
   By the Ootjet.

SaNdfoed, J.

The defendant interposes two preliminary objections to the proceedings supplementary to the execution, which we will first examine; although the omission to raise them at an earlier period, ought perhaps to be deemed a waiver of the alleged irregularities.

First. It is contended that the assignee of a judgment cannot prosecute this proceeding at all, under the provisions of the code of procedure; which gives the remedy only to the “judgment creditor.” That the only judgment creditor in this case is Andrew Ross, the plaintiff in the judgment, and that his assignee, Mathew T. Wallace, is not the judgment creditor, within the meaning of the code, although he may he the owner of the judgment.

We think this objection is wholly unfounded. The judgment creditor is the person who owns the judgment, to whom it is due, and who alone has a right to receive it and to give a discharge; not the person in whose name the judgment was recovered, but who has transferred it and thereby ceased to be a creditor of the defendant. We suppose that one to whom a bond has been assigned, is beyond all doubt the bond creditor, and that no one would think of calling the obligor the bond creditor, after he had parted with his interest in the debt by an absolute assignment.

The provision of the revised statutes, enacting the then established rule of equity which was the foundation of creditors’ suits, (as they were usually termed,) gave the remedy to “ the party suing out the execution; ” which is apparently much more restricted in its scope, than the word “judgment creditor ” in the code. (2 E. S. 173, § 38.) Nevertheless, it was well settled, that an assignee of a judgment to whom it was transferred after the issuing and return of an execution, could file a creditor’s bill, without taking out a new execution. (Gleason v. Gage, 7 Paige, 121.)

The chapter of the code granting to judgment creditors this summary remedy, was avowedly a substitute for the proceeding by a creditor’s bill; and we cannot imagine that there was any intention to make it less easy or less extensive in its application. We are perfectly clear, that under its provisions, an assignee may institute the proceeding, upon an execution returned by his assignor.

Second. The next objection is, that the proceeding should have been in the name of the assignee as plaintiff. It has throughout been confessedly prosecuted by the assignee, but it is said the papers should all have been entitled in his name.

So far as the affidavits are concerned, an answer to the objection may be found in section four hundred and six of the code, which virtually makes it unnecessary to insert any title in an affidavit.

Without regard to that section, we think there is no foundation for the objection. The " proceedings supplementary to the execution,” are all in the action in which the judgment was recovered. Their design is to obtain satisfaction of the judgment, and they are as much proceedings in the original suit, as are the executions on which they are founded. There is nothing in the entire, chapter, which countenances the idea that the remedy it provides is a new action or suit.

Where the cause of action is transferred pending the suit, the action may be continued in the name of the original party, or the court may allow the assignee to be substituted in his place. (Code, § 121.) For the purposes of this proceeding, the action is still pending; and it is properly entitled in the name of the original plaintiff.

This brings us to the examination of the principal question in the cause, the alleged contempt of the defendant in disobeying the orders of the eighteenth and twentieth of December, 1849. The same question, substantially, was decided in the case of Le Grand and Delmotte v. Hoguet, by one of ns at the special term in June, 1849, and by the other two justices, on an appeal from his decision, in March, 1850. We were, nevertheless, induced by its importance, to hear it argued anew, and after maturely considering it, we see no reason to change our opinion. The full, clear, and learned exposition of the subject, contained in the report of the referee, makes it quite unnecessary for us to go into the discussion at large.

In regard to the matter of fact, no one can doubt, upon the testimony, that the defendant confessed the judgment to Will-marth, for the purpose and with a view' to have Willmarth obtain a receiver, and a transfer to him of the defendant’s interest in his grandfather’s estate, and thereby to prevent Wallace from reaching that interest by his pending proceedings in this suit.

Those proceedings were commenced two months before any steps were taken by Willmarth, were prosecuted with diligence by the creditor, and would have been perfected and terminated before the appointment of a receiver in Willmarth’s suit, but for the delays interposed by the defendant.

The injunction commanded the defendant to refrain from disposing of, or, in any manner, interfering with his property, or rights in action. By the combined means of confessing a judgment to Willmarth, and purposely interposing delays in the proceeding of his more vigilant creditor, Wallace, he has caused his property which the latter would have obtained in regular course, to be vested in a receiver, appointed in the suit and for the benefit of Willmarth. He has thus palpably interfered with his property, and so far as he could, has disposed of it, so that it shall not be obtained by Wallace. Thus, the injunction orders made by the justices of this court, have been plainly and intentionally violated. We were referred to the case of Lansing v. Easton, (7 Paige 364,) as an authority, that a defendant who was under a similar injunction in a creditor’s suit, in the late court of chancery, might confess a judgment, without disobeying the command of the court; and the one hundred and ninety-fifth rule of that court, was cited to the same proposition.

As to the case in 7 Paige, the rule is there laid down, that any active interference with the property by the defendant, for the purpose of having the legal title to the same transferred to another, and thereby to deprive the complainant of the equitable lien he has acquired upon the property by the filing of Ills bill, was a violation of the letter as well as the spirit of the injunction. And the application of the rule made in that case by the chancellor, amply sustains our conclusion in the case before us. The chancellor’s observation as to the effect of confessing a judgment, was no more than liad already been made the law of the court by the one hundred and ninety-fifth rule. And we do not intend to decide that simply confessing a judgment, will be a violation of these injunction orders under the code. If, however, it be done with an obvious intent to change the disposition of the debtor’s property, to the prejudice of the creditor who lias obtained the injunction, and has that effect, we shall hold, as we do in this case, that it is as much a violation of the injunction, as would be any more direct transfer or disposal of the same property.

The saving of the expense of a suit is no longer a motive for ■confessing a judgment, under such circumstances ; and debtors under injunction, at the suit of prior judgment creditors, will do well to see to it, that there be no other act of theirs, in addition to the confession of the judgment, which will point to an intention to prefer another creditor, in the disposal of their property, ■over him who has obtained the injunction.

The defendant having violated the injunction orders, it remains to determine the amount of the fine which shall be imposed on him for his contempt of court. The statute prescribes, that this shall be sufficient to indemnify the plaintiff for the injury he has sustained, and to satisfy his costs and expenses. (2 R. S. 538, § 21.) It appears, that the fund diverted by the defendant’s misconduct, from the plaintiff’s receiver to the receiver of 'Willmarth, was sufficient to pay the plaintiff’s debt and costs.

It may be said, that, to the extent of his debt and costs, the plaintiff may still, obtain that fund, by an application to the supreme court, on the ground of a prior lien by his instituting proceedings in this court, supplementary to his execution. If the principle which prevailed on this subject, in the court of •chancery, be adopted, and applied to these substituted proceedings under the code, the plaintiff is undoubtedly entitled to priority over Willmartlrs subsequent receivership in the supreme court. And we are free to say, that we do not perceive, how the courts are to avoid incessant confusion and clashing of jurisdiction, in respect of proceedings supplementary to an execution, unless the just and equitable principle of the court of chancery, in relation to successive creditors’ suits, be adopted and applied to them. It is not for us to anticipate what rule the supreme court may adopt on this subject, and as no such rule has been as yet adopted there, so far as we know, we must proceed to fine the defendant to the extent of the plaintiff’s injury, as it now appears. If, hereafter, the plaintiff obtain any part of the fund from the supreme court, the defendant may apply to mitigate the fine accordingly.

The defendant must be fined a sum equal to the amount of the judgment, with interest, and the plaintiff’s expenses. We allow to the plaintiff thirty dollars for costs of the supplementary process, fifty dollars for the charges of his attorney and counsel, on the application to punish the contempt and the reference and subsequent proceedings thereon, and the fees paid to the referee for his services on both of the references. The order will direct the defendant to stand committed until the fine be paid.


author: Duer, J.

text:
    Selden v. Vermilya and others.
    After the remittitur from the court of appeals has been filed in the court from which the cause was removed by the appeal, a motion to restore it to the court of appeals, with a view to its amendment or correction there, cannot be entertained in the court below.
    The inferior court has no authority to grant such an application, without the express assent or direction of the appellate court, authenticated by its certified rule or order.
    The intention, wish, or assent of the appellate court cannot be ascertained by affidavit?, or by the opinions, declarations, or acts of the members of the court individually.
    The case, of Murray v. Blalchford, 2 Wend. 221, commented upon and explained.
    (Before Deer, Mason, and Campbell, J.J.)
    December, 1850.
    This was a motion on the part of the defendants, to take a remittitur transmitted from the court of appeals, from the files of this court, to the end that it might be returned to the clerk of the court of appeals, with a view to enable the defendants to move that court for a corred ion of it,-, decree in various particulars, in which the,}' claimed that errors and omissions had in ad-ven teiitlv occurred. After the decision of the cause in this court, reported in vol. 2, page oiiS, the complainant appealed to the court of appeals, where that decision was reversed, and a decree for partition entered, (fj Count. R. o2o.) Tlie decree directed the cause to be remitted to this court, to complete its execution. The opinion of the court on the motion now made, will further explain the facts.

      A. II Dana and 0. W. Sanlford, for the motion.
    jP. Y. Cutler and II. Sandford, for the complainant.
   By the Court.

Duer, J.

In this case a decree has been made in the court of appeals, settling definitively the rights of the parties, but requiring in the execution of its details, that farther proceedings shall be had in this court, and in order that these proceedings may be had, the, cause has been remanded to us, and the remittitur having been filed, our exclusive jurisdiction over the case lias been restored.

Under these circumstances, an application has been made to us on the part of the defendants, for an order directing the clerk to take the remittitur from the files of the court, and the effect of granting the application, it is admitted, will be, that the execution in this court, of the decree of the appellate court, will be indefinitely suspended. Hence our jurisdiction over the cause will cease entirely and that of the court of appeals, in all its extent, be restored. The object is avowed to be to enable that court, when it shall have become repossessed of the cause, to reform its present decree by the correction of certain grave errors which, greatly to the prejudice of the defendants, it is alleged, have intervened. We are asked, therefore, under the form of an order upon the clerk, to remand the cause to the court of ultimate jurisdiction, in order that it may have the power of reversing or modifying or amending its own former proceedings.

¥e deem it unnecessary to state the special grounds upon which a motion so unusual has been rested, since we are satisfied that without the express assent of the court of appeals, we have no power to grant it, nor upon the papers before ns ought we 'to have listened to the application. The granting or denying of every motion which, as a court, we have a right to entertain, rests entirely in our own discretion. It is true, this discretion is not arbitrary, but judicial; but it is equally so that it is absolute in its exercise and final in its results. There is no other tribunal that can review our decisions in these cases, nor even inquire into the reasons upon which they are founded; and unless we revoke or modify them ourselves, whatever injustice may be done, the parties who suffer are without redress. We find it impossible to believe that we have such a discretion in relation to the question now before us. We cannot believe that we have an election to put an end to the jurisdiction that we have been enjoined to exercise, and to obey or disobey the lawful mandates of the superior tribunal. We cannot assent to a doctrine that strips the court of supreme and ultimate jurisdiction, of its most essential attributes and necessary powers; that divests it of any authority to enforce obedience to its own decrees, by leaving their execution to depend upon the mere discretion, the will and pleasure, of the subordinate courts to which they are directed. Yet it is in reality to this doctrine that our assent is required, if the consequences of taking the remittitur from the files of the court are such as have been asserted. If the power may be exercised now, its exercise may be repeated as often as the defendants may choose to make a similar application, and we for any reason be disposed to grant it. The court of appeals, as often as it please, may order the remittitur to be filed, but we by ordering it to be removed, whenever we please, may render the direction a nullity. Such is not our construction of the powers of the superior court and of our duties as a subordinate court. The court of appeals has ordered the remittitur to he filed in order that its decree may be executed, and it has, therefore, by a necessary implication, ordered that it shall remain on file so long as the execution of the decree may require. The duty of executing the decree, it has imposed upon us, and from the performance of this duty, by no act of our own can we be released. To grant the present motion would, in our judgment, be an act of positive disobedience to an authority that we are bound to obey, and a reversal, not indeed in terms, but in effect, of a decree that we are bound to accept and enforce.

It lias been said that by suspending the decree in the present case, we shall violate no duty and incur no responsibility, since we have sufficient evidence that the court of appeals desires to re-examine and, if necessary, amend its own proceedings; and to enable it to do so, it desires that the application which has been made to us shall be granted. Rut we are very clearly of opinion, that there is no evidence of these facts now before us, upon which, as judges, we could be justified in acting.

The question as to the washes and intention of the court of appeals is not to be determined upon affidavit. It does not depend upon the opinions, declarations, or acts of its individual members. It is only by some act of the court, as such, that the wishes of the court can he manifested; and to enable us to comply with its wishes, proper evidence of the necessary act must be furnished to us. A resolution of the court, entered upon its minutes, would seem to be the necessary act; and a copy of the resolution, certified by the clerk, would furnish to us the requisite proof. Nor, perhaps, is it necessary that there should be any direct communication from the court of appeals to this court. The clerk of this court has not filed the remittitur under any order made by us. He has acted in direct obedience to the decree of the court of appeals, and if by the true construction of that decree, he is bound to retain the remittitur upon file, he is still the immediate ministerial agent of that court, and in the discharge of his duties as such must be subject to its immediate orders. At any rate, an order from the court of appeals directing the clerk to take the remittitur from the files and re-deliver it to the solicitor of the plaintiff, we doubt not would be promptly obeyed, nor, if necessary, would our aid be wanting to enforce obedience.

So far as has been discovered, Murray v. Blatchford, (2 Wend. 221), is the only case to be found in the reports, in which an application like the present has been granted, or made. In that case, the remittitur was taken from the file by order of the chancellor, and for the purpose, it would seem, of enabling the court of errors to remodel and reform its own decree. But it does not appear from the report that the motion was resisted before the chancellor. And we think it is to be inferred that it was granted chiefly upon the ground that the remittitur was improperly or prematurely filed. Even liad this precedent been as direct and positive as it seems to have been considered, our convictions as to our own powers and duties are too clear to have been yielded to its authority. To require us, without any request from the court of appeals, to send hack to that court its own decree, in order that the errors which it is alleged to involve may be there corrected, is to require us to hold to the highest tribunal in the state this extraordinary language — “ You have reversed our decree, but the decree which you have sent to us we shall not execute, for we are satisfied that it has been made by you without due deliberation. We have looked into it, and must say, that upon its lace its errors are manifest and grave; these errors it will be your duty to correct. To enable you to perform that duty we send you back your decree.” What reply the court of appeals might deem it advisable to make to the strange insult upon its authority that such a proceeding would imply, we know not, but that it might justly visit upon us its severest animadversions and rebukéf we do not at all doubt. So long, however, as we retain any respect for that high tribunal or for ourselves, by no act of ours shall such an animadversion be provoked or justified.

The motion of the defendant is denied, but without costs. The case of Murray v. Blatchford, is a sufficient precedent to justify the application. It is proper to add, that all the judges of this court having been consulted, this deálsion is to be regarded as their unanimous judgment.


author: By the Cottet.

text:
    The Hudson River Railroad Company v. Outwater and others.
    The general railroad incorporation act of 1850, does not apply to the mode of ascertaining the compensation to be made for lands taken for railroads under prior special charters, which prescribe a particular mode for that purpose.
    Where a railroad company designates lands required for its road, procures commissioners to be appointed, and th%y ascertain and report the compensation to be made for such lands to the owners ; the proceeding is still incomplete, and neither party has any vested right, neither the company to the lands, nor the owners to the money awarded.
    There is no vested right on either side, until an order of the court is made confirming the report, and directing the payment of the money.
    Until then, the proceeding may be set aside or abandoned.
    The Hudson River Railroad Company were held entitled by their charter to change the route of their road, after an appraisement made, and before its confirmation, so as to take less of the same land, or different land from the same owner; and to have commissioners appointed to appraise the damages for such new line. The court, however, appointed the same commissioners, and required the company to pay the •costs and expenses of the owner on the first appraisement.
    (Before Oakley, Ch. J,, and Sandford and Paine, J..T.)
    Dec. 14;
    Dec. 21, 1850.
    The Hudson River Railroad Company applied to the court pursuant to the act of February 10th, 1848, (Laws of 1848, ch. 30, § 1,) for the appointment of commissioners to ascertain the compensation to be made to the owners, in respect of three parcels of land required for their roadway, at Tivoli, in the town of Red Hook, in the county of Dutchess. One parcel belonged to Peter Outwater, another to James Outwater, and the third to John S. Livingston. The petition set forth a description of the lands as appearing on a new map of their track as altered, at the place in question.
    From the affidavits and papers presented by the owners of the lands, it appeared that the company, after making and filing a map of the track of their road through the lands of these parties at Tivoli, procured the appointment of commissioners in the supreme court in the second district, who proceeded to ascertain the compensation to be made for the lands thus taken, and awarded to James Outwater for land, dock, and buildings, $10,000 ; to Peter Outwater, for land and buildings, $5,000; and to J. S. Livingston, for the like, $3,500.
    The company finding the awards much beyond their anticipation, altered the line of their road through Tivoli, and filed a new map pursuant to the- fifth section of the act of 1848. By the new line, the company took from P. and J. Outwater only about half as much land and fewer buildings than by their former line. The new line embraced more land of Mr. Livingston.

      P. Outwater, Jr. and J. Rowley, for P. and J. Outwater ; and G. Livingston, for J. S. Livingston,
    contended that the alterations made were not within the spirit of the act, which contemplated an entire new line of road. That the award settled the rights of the parties, and the company were bound to pay it, and perfect their first location, before they could make a new one. The award is founded on an implied agreement to submit the matter to commissioners, and is binding as a verdict. The whole thing is in bad faith. It is an attempt by the company to avoid awards which are unsatisfactory to them, and to experiment on the rights of these parties with another set of commissioners. They also claimed, that the general railroad act of 1850 applied to the case; and that the. owners of lands were entitled to be served with a copy of the petition to be presented to the court in these cases.

      J. Thompson and G. O'Conor, for the petitioners,
    referred to the case of Comal street, 11 Wend. 155, and Anthony street, 20 ibid. 620, also 18 Wend. 1. The title to the land is not changed, nor any right vested either to the land or the money, until the commissioners’ report is confirmed by the court, and the amount awarded is paid, as directed by the order thereupon made.
   By the Cottet.

Where special acts of incorporation prescribe a particular mode of ascertaining damages for lands taken for these quasi public works, that mode is not affected by the general act of 1850 for the incorporation of railroads by voluntary association, which subjects all existing railroad companies to its provisions, where not inconsistent with those contained in their charters.

As to the principal questions discussed :

1. The company had an undoubted right, under the fifth section of its charter, to change and alter the line of their roadway, if the directors deemed it might be thereby improved, so as to take different land of the same owner, or a part of the same land that they had previously designated on their filed map.

2. Neither the company have any vested or indefeasible right or title to the land mapped and sought to he taken, nor the owner any such right or title to the compensation therefor ascertained by the commissioners, until their report is filed and confirmed, and the order of the court made for the payment of the amount. Until then, the proceeding is incomplete, and it may be set aside or abandoned. If there be needless delay in the application to confirm the report, the owner can move the court on the subject. And if the proceeding be relinquished, the court, we think, has the power to indemnify the land owner in respect of his expenses.

We will, therefore, make an order appointing commissioners, on the company’s paying to these owners their expenses for wifi nesses and counsel on the former appraisement. We shall appoint the same commissioners that acted before, there being no allegation against the fitness of either of them.

Order accordingly.


author: Sastjfoed, J.

text:
    Ransom v. Miner.
    Things in action cannot be levied upon and sold upon an execution against property, under the code of procedure.
    The definitions of words, enacted in title fifteen of the code, are controlled by such specific provisions, occurring in the same statute, as enlarge or modify the terms . defined.
    January 11, 1851.
    This was an action to recover costs and counsel fees due to the plaintiff. Ransom. Miner defended the suit by Mr. Dresser, his attorney, and, in its progress, Ransom served on the latter an account, containing the items of his demand, verified by Ins oath, as required by the code. A motion was now made by Mr. Dresser to compel Ransom to discontinue his suit, or to cease to prosecute it, upon the following state of facts :
    Dresser, in May, 1849, recovered a judgment against Ransom, in the justice’s court of the third district of the city of Hew Tort, for forty-one dollars. In November, 1850, having-docketed the judgment in the county clerk’s office, he issued an execution against Ransom’s property to the sheriff of Hew T urk, With the execution, he placed in the sheriff’s hands the bill of particulars or account served in this suit. The sheriff’ levied upon the account, advertised it for sale as personal property, 'sold Ransom’s right, title, and interest in it to Dresser, as the highest bidder, and executed to him a transfer of the same indorsed on the bill of particulars.
    Dresser then notified Ransom of his purchase, and required him to take no further steps in this suit towards the collection of the plaintiff’s demand, and, on his persisting, made the motion as first stated.

      H. Dresser, in support- of the motion.
    The plaintiff’s demand is a thing in action. By § 463 of the code, things in action are personal property, within the meaning of those words, wherever used in the code. An execution against property, is to be satisfied out of the personal property &c. of the debtor, (Code, § 289, subd. 1.) This is, therefore,in conflict with so much of the old law, as required chattels sold by the sheriff’, to be present and within view. The supplementary proceedings, (§ 292, &c.,) are for the purpose of reaching property not found by the sheriff.

      G. P. Kirkland, for the plaintiff.
    This proceeding is entirely unwarranted by any provision of the code; which, in respect of executions, makes a clear distinction between chattels and things in action. (§§ 293, 294, 297, 299.) The difference is even more marked by the several provisions respecting attachments as a provisional remedy in a suit. (Code, |§ 227, 231, 232, 235 to 237, 244.)
    Things in action have never been liable to levy or sale on execution. (12 John. 220.) They could only be reached before the code, by a proceeding in equity. (5 J. C. R. 280 ; 20 John. 554; enacted into a statute law in 2 R. S. 173, 174, § 38, 39. See the reviser’s notes, 3 lb S. 669, 2d Ed.)
    The general terms of section 463 of the code, are of course to be applied subject to the previous specific provisions, by one of which, (§ 291.) the existing law relative to executions, their incidents, sales under them, &e., was applied to executions issued pursuant to the code. Then 2 R. S. 365, § 14 to 20, 22, 23, regulating the levy and sale of goods on execution, will be found utterly at war with the idea that things in action can be taken and sold on execution.
   Sastjfoed, J.

(With the concurrence of all the justices of the court.) We have considered this novel proceeding, and are confirmed in our first impression, that it is founded on an entirely erroneous construction of the code. The definitions made in title fifteen are necessarily general in their character, and are controlled by specific provisions, limiting or enlarging them, wherever they occur in the same statute. Where there is nothing in the particular provision to show that the words “personal property,” have a different meaning, section four hundred and sixty-three no doubt extends them to include things m action. But it is equally plain that there are particular provisions winch preclude those words in the section relative to executions from embracing tilings in action ; and there is nothing in any specific enactment of the code which indicates that the legislature designed to make a change so radical in its nature, and so very difficult to be regulated and guarded against abuse. The substitute for the former creditors, suit, after execution, enacted in the second chapter of title nine, is carefully framed to reach and apply things in action and evidences of debt, and ⅛ quite inconsistent with the idea of a levy and sale by the sheriff being equally open to the creditor.

In the remedy by attachment as a process in a suit, the sheriff is to attach all the defendant's property. He is not permitted to sell any things in action of the debtor. He is to collect and receive them, pending the suit, and pay the -proceeds to the plaintiff on the judgment recovered ; and also after judgment, he is to proceed with such collection and payment until the judgment is satisfied. Yet. the same chapter directs the sheriff to sell on the execution on the judgment recovered, all other real and personal property attached. A conclusive answer to the proceeding attempted, is found in the requirement of law that personal property offered for sale on execution, must be present and within view of those attending the sale. Such was the common law, and it was enacted in 2 Rev. St. 367, § 23. By section two hundred and ninety-one of the code, the existing provisions of law, relating to executions and sales under them, were applied to the executions prescribed by that chapter, when not in conflict therewith. So far from being in conflict, the requirement of law just stated is in harmony with all the provisions of the chapter of the code relative to “ the execution of the judgment in civil actions.”

Motion denied.


author: Sandford, J.,

text:
    Howard v. Tiffany and others.

      "The facts constituting the cause of action,” which the complaint is to contain,, (Code, § 142,) Eire not merely the facts upon which the plaintiff’s right to relief ⅛ founded, but all such facts as are necessary to found the particular relief demanded, and to enable the court to give the proper judgment in the action.
    In actions strictly legal, (using the old nomenclature,) the facts constituting the cause of action rnay he stated substantially as they were formerly in the declaration.
    But where the suit is for equitable relief, such as an injunction or the like, and where the costs of the suit are in the discretion of the court, it is often necessary to state in the complaint facts which will bear upon the granting of costs, or of particular relief, as they were formerly stated in a bill in chancery.
    Jan. 25;
    Jan. 27, 1851.
    This was an action praying for a preliminary and a perpetual injunction, in respect to the use of demised premises, contrary to the covenants and conditions of a lease. The defendants moved to strike out certain portions of the complaint, as redundant and irrelevant. It is deemed unnecessary to set forth the matter at large. The points are stated in the decision.

      A. Mathews, for the defendants.

      J. E. Bur rill, Jr., for the plaintiff.
   Sandford, J.,

(with the concurrence of the chief justice and Paine, J.,) said, the rule applicable to actions for the recovery of money, real property, or the possession of personal property, which were formerly strictly legal, and in which it is sufficient to state the facts constituting the cause of action, substantially, as they were formerly stated in a declaration, could not be always applied to actions where specific relief .of a different kind is demanded. Tims, where the object is to obtain an injunction, together with other relief, it will often be indispensable to set forth in the complaint, facts which need not be stated in respect of the other relief, and as much at large as was formerly done in a well-drawn bill in chancery. This necessity will be the greater, if the plaintiff seek a perpetual injunction.

Again, costs in all cases of this class, are in the discretion of the court, (Code, § 304 to 306;) and unless the facts hearing upon the decision of that question, are stated in the complaint, so as to be answered and admitted, or put in issue, evidence to prove them will not be admissible at the trial. “ The fads constituting the cause of action,” spoken of in the code, (§ 142.) are therefore not merely the tacts upon which the plaintiff’s right to ask relief ib founded, but those words include all such facts as are necessary to found the particular relief demanded, and to enable the court to give the proper judgment in the action. The evidence in support of such facts, is of course an entirely distinct thing.

Applying this construction of the code to the complaint in this case, the principal portion of the matter excepted to, must be allowed to stand. The residue, as designated on the copy furnished, will be stricken out. There is no good reason why the irrelevant part of an entire statement complained of as being redundant, should not be stricken out, although, as to the residue, the motion fail. Order accordingly.


author: Oakley, Oh. J.

text:
    Barry v. Whitney and Tucker, and seven other causes.
    The provision in the code, as to agreements between attorney and client for the compensation of the former, does not deprive courts of the superintending power they have always exercised over arrangements and dealings between attorney and client, to prevent overreaching, oppression or fraud.
    Such power will be exercised in a summary way, as formerly.

      It seems, the code in allowing contracts for the compensation of attorneys, at pleasure, has not abrogated the statute of champerty and maintenance.
    Settlements and releases between, attorney and client, set aside, and the attorneys ordered to refund or stand committed, on the ground of overreaching and fraud.
    (Jan. 18;
    and again March 22, 1851.)
    Motion against two attorneys of the court, which was heard before all the justices. The facts are collected in the opinion delivered.

      R. J. Dillon, for the plaintiff.

      J. Cochran, for the attorneys.
   By the Couet.

Oakley, Oh. J.

-In these cases the widows of several persons killed by the falling of a wall in Water street,' employed two attorneys of this court to commence actions against the defendants, Whitney & Tucker, to recover damages for the losses they had sustained, by the death of their husbands. The spits were commenced in the name of one of these attorneys, the other acting as counsel. Soon after the suits were instituted, a compromise was effected by Mr. Whitney’s paying to the attorneys $2000 on account of the respective plaintiffs, and $300 as the remuneration for their services in the suits. On receiving this money, the attorneys proceeded to settle with the plaintiffs, who appear to have been illiterate persons, unable to write their names, by paying to them the sum of $100 each, retaining besides the compensation already received from Mr. Whitney, $150 in each of the cases, or $1200 in the aggregate; so that all the plaintiffs received was $800 out of the $2300 paid by Whitney. The parties, on receiving the amount, executed to each of these attorneys, a release acknowledging the receipt of the money, in full satisfaction and discharge. This relief was duly acknowledged by each of the parties, and the officer who took the acknowledgments, testifies that the parties were informed of their tenor and effect.

Application is now made to us on behalf of these parties, to vacate the settlement, on the ground that it was made in ignorance of the real amount paid by Mr. Whitney to the attorneys, and that it is oppressive and unjust. We are also asked to strike the attorneys from the roll.

In answer to the application, it is averred by the attorneys that these claims were all assigned absolutely to one of them before the commencement of the suit, and that what was paid b.y them to the parties was a voluntary payment, and a mere gratuity, and that at the time of the assignment it was agreed that the proportion to be paid in case of success, should be left entirely to the generosity of the attorneys. That at the time of the execution of the releases, the matter was fully explained to the parties, who expressed themselves fully satisfied. Assignments were produced, executed to one of the attorneys before the suite were commenced, transferring all the right of the parties, to damages, and duly acknowledged.

Without considering the question whether claims of this character can be assigned or not; if they were in fact assigned absolutely, the actions should have been instituted in the name of the attorney who became the assignee. The circumstances attending these cases, however, show conclusively, that the claims were assigned as collateral security for the costs and services of the attorney. It is contended that under the code, arrangements may be made between attorney and client as to compensation in suits, and that with such agreements, the court has no rigid to interfere. Without considering the question whether the statutes of champerty and maintenance have been abrogated by the provisions of the code in reference to the subject of costs, which we very much doubt, we do not think that the court is deprived of the power of looking into these arrangements between attorney and client. Before the code, the court had the general power of examining into bargains of this character, to see that they were not unreasonable or oppressive, and the power has not been taken away. There are numerous cases in the books where courts have exercised this superintending power. Even where a judgment lias been confessed by a client in favor of an attorney, although resting upon a record of the court which lias received its sanction, the courts have not hesitated to open it and investigate the transaction. Many cases of this character are collected in Graham’s Practice, 28. This power results from the general superintending power of the court over its officers, and the very peculiar relations which exist between clients and attorneys. It is a power which should be exercised with caution, but which is nevertheless to be exercised firmly where a necessity for it exists.

It is a striking feature in these cases, that when making the settlement, with the attorney, the parties were not apprised of the amount actually paid by Whitney. It nowhere appears that they had any knowledge of it. The commissioner testified that the releases were fully explained to them, and that they expressed themselves aware of their contents, and fully satisfied with what they received ; but it does not appear that the amount which the attorneys liad received on account of those claims, was ever stated to them. We do not mean to decide that the amount retained by the attorneys was too great, or disproportionate to the value of the services rendered by them; although it certainly has that appearance at first blush. But we think it reasonable, that the matter should be inquired into, and for that purpose shall direct a reference, where the attorneys will be enabled to show the reasonableness of the amount charged. On receiving the report of the referee, we can make such order in the premises as shall be just.

The case came before the court March 22(1, on the report of the referee, to which exceptions were taken by the attorneys implicated. After hearing counsel, the court (all the justices being present) allowed to the attorneys, besides the three hundred dollars paid to them by the defendants when the suits were settled, and $175, which they had expended in procuring security for the plaintiffs on taking out letters of administration, and made a rule requiring them to pay the balance of the $1,200, retained by them, to the clerk for the plaintiffs, with the costs of the proceedings against them, and in default of payment, that they be committed. A doubt being suggested as to the power of this court to strike attorneys from the roll, under the judiciary act of 1847, the court omitted to pass upon that branch of the application, leaving the parties to apply to the supreme court, if so advised.