source: Caselaw Access Project

author: Bosworth, Ch. J. Robertson, J., (dissenting.)

license: Public Domain

text:
    Joseph Burnett et al., Plaintiffs and Respondents, v. Edward and Henry L. Phalon, Defendants and Appellants.
    1. It having been found as facts by the Judge, before whom this action was tried at Special Term, that the plaintiffs in ifov., 1856, “ compounded from ' cocoanut oil and other ingredients a mixture to be used as a hair wash, for-which they devised as a trade-mark * * * the name or word‘Oocoaine;’ that they published the same very extensively, with notice that they had adopted the said name or title as their trade-mark;” and that the defendants in Uov., 1858, “ commenced the preparation and sale of a similar compound, in bottles * * *, and with labels under the name and title of‘Cocoine;’ and further, (as the fifth finding,) “that the defendants well knowing that the name, word or title of ‘ Cocoaine ’ was, and for a considerable time had been, the trade-mark of the plaintiffs, with the wrongful intention of inducing the public to believe that the compound sold by themselves under the name, word or title of ‘ Cocoine ’ was that of the plaim- ■ tiffs, and with the wrongful intention of securing to themselves the benefit of the skill, labor and expense of the plaintiffs, have so closely imitated and used the aforesaid trade-mark of the plaintiffs as tú deceive the public and to injure and damage the plaintiffs; that the word, name, title or device ‘ Gocoine ’ is a spurious and unlawful imitation by the defendants of the word, name, title or device * Coeoaine,’ the aforesaid trade-mark of the plaintiffs.”—It tucts held, that the plaintiffs were entitled to a judgment enjoining the defendants from manufacturing, using, selling or in any manner disposing of a compound or preparation with the name, word or title of “ Gocoine” printed or stamped upon the bottles, labels, wrappers, covers or packages thereof
    2. The evidence on which the facts were found is stated in the opinions delivered, Robertson, J,, dissenting from the conclusion that it was siiffi- ■ eient to sustain them.
    (Before Bosworth, Ch. J., and Moncrief and Robertson, J. J.)
    Submitted, February 11, 1862;
    decided, March 15, 1862.
    The plaintiffs, Joseph Burnett and William Otis Edmands, who were druggists and partners in business, in the year 1857, in, the Oity of Boston, commenced the manufacture and sale of au article of hair oil, compounded of various ingredients, of which the essential element was coeoanut oil. It was supposed by them to be a new article, and they alleged that they invented for it a new name, which was “ Coeoaine,” and that as soon as they commenced the sale of the article, they gave notice, through the newspapers and by their circulars, that they had adopted the word “ Coeoaine ” as their trade-mark.
    Edward Phalon, one of the defendants, had sold a similar preparation of coeoanut oil since 1840; and, in 1858, the defendants commenced the manufacture and sale of such a preparation, under the name of “ Coeoiné.”
    The plaintiffs brought this action to restrain the defend-: ants from using the word “ Gocoine ” in the sale of their article, claiming that the use of that word was an infringment of the exclusive right of the plaintiffs to the use 'of the word “ Oocoaine.” They also claimed damages for thé injuries which they alleged they had sustained by the infringment.
    The action was tried at a Special Term on the 21st day of April, 1859, before Mr. Justice Pierreport, and the plaintiffs had a judgment perpetually restraining the defendants from-using the word “ Gocoine.” •-

      The following opinion was rendered by the Judge:
    Pierrespont, J. It appeared before me, upon the trial of this cause, that the plaintiffs, in November, 1856, compounded from cocoanut oil and other ingredients, a mixture to be used upon the human hair; that they devised a name never before used, by which to mark his said compound, t@ wit: the name or word “ Cocoainethat they forthwith published in all their circulars and in all the principal newspapers in the country, and especially in the City of New York, where the defendants reside, that they had adopted the above mentioned name or title as a “ trademark,” to secure the public and the proprietors against imposition, and that all unauthorized use of this trademark would be promptly prosecuted.
    ' The plaintiffs introduced this article upon the market, and spent, between November, 1856, and November, 1858, some ten thousand dollars in advertising the same. The demand for the article rapidly increased, the sale became large, and the profits were by no means inconsiderable. Each bottle containing the mixture had upon it the following label:
    “A PERFECT HAIR-DRESSING.
    A PROMOTER OF THE GROWTH OF HAIR.
    A PREPARATION FREE FROM IRRITATING MATTER
    BURNETT’S COCOAINE.
    For preserving and beautifying the Hair, and rendering it dark and glossy.
    The Cocoaine holds, in liquid: form, .a large proportion of deodorized Cocoanut Oil, prepared expressly for this purpose.
    No' other compound possesses the peculiar properties which so exactly suit the various conditions of the human hair.
    It softens: the hair when hard and dry. It soothes the irritated scalp-skin. It affords, the'richest lustre. It remains longest in effect. It is the best and cheapest hair-dressing in the world.
    Directions,—Apply with the hand or a soft brush every other day, or as often as the case may require, rubbing it thoroughly into the roots of the hair.
    To remove Dandruff, Scurff, &c., wash the head with Burnett’s Kalliston, rub dry with a towel, and apply the Oocoaine as directed.
    Prepared only by
    JOSEPH BUBHETT & CO.,

      Boston.

    [Entered according to Act of Congress, in the year 1857, by Joseph Burnett & Co., in the Clerk’s Office of the District Court of Massachusetts.]”
    About two years after the first introduction of this article by the plaintiffs, Phalon & Son, the defendants, residents of the City of Hew York, commenced the sale of a somewhat similar preparation, put up in bottles not very unlike those of the plaintiffs, and each bottle having upon it a label as follows:
    “ [Entered according to Act of Congress, in the year 1858, by Phalon & Son, in the Clerk’s Office of the District Court of the U. S. for the Southern District of Hew York.]

      PHALON & SON’S GOGOLNE FOB THE HAIB. ■ Prepared from highly purified Cocoa Oil.
    This preparation possesses extraordinary properties for preserving and beautifying the hair, and also restoring its natural luxuriant and glossy appearance. Apply frequently, by thoroughly rubbing it with the hands into the roots of the hair. When chilled, warm in a water bath or by the fire.
    PHALOH & SOH, Perfumers,
    Hos. 197, 497 and 517 Broadway,

      New Yorlc.” ■

    This mixture has also had a very large sale, with much profit to the defendants.

      The plaintiff claims that the defendants have pirated his trade-mark, and asks that damages may be awarded, and that an injunction may issue against them.
    The defendants contend that the plaintiffs’ compound is an imposition; that their mixture is superior; that the plaintiffs can have no property in the word “ Oocoaine,” and that “ Oocoine ” is not the same, but a different name, •and not calculated to mislead the public; and furthermore, that it is correctly compounded from the French.
    There is no evidence that the plaintiffs have committed any fraud upon the public; and which is the superior of the two mixtures, the Court will not consider.
    If the plaintiff cannot acquire any property or exclusive •right in this name, word or device thus contrived and adopted as his trade-mark, then there is no ground for this action; and if the defendants have adopted a device or name so differing from that adopted by the plaintiff as in no wise to deceive the public or do injury to the plaintiff, then the defendants are not liable in this suit.
    By the statute of this State, it is a misdemeanor punishable by imprisonment “ to forge or counterfeit, or cause “ or procure to be forged or counterfeited, any representar tion, likeness, similitude, copy or imitation of the private “ stamp, wrapper or label usually affixed by any mechanic “ or manufacturer to, and used by such mechanic or man- “ ufacturer on or in the sale of any goods, wares or mer- “ chandise, with intent to deceive or. defraud the purchaser “ or manufacturer of any goods, wares or merchandise “ whatsoever.” (Laws of 1850, ch. 123, § 1; same stat. 2 R. S., 4 ed., 880, § 49.)
    Thus our Legislature has declared in strongest terms its reprobation of all infringements by one citizen upon another’s trade-mark; and, long prior to any statutes upon the subject, it was settled law that a manufacturer, by priority of appropriation of names, marks or symbols, to distinguish his manufactures, acquired a property therein as a trade-mark, for the invasion of which an action would lie, and in the exclusive use of which he might be protected by injunction. This rule of law was recognized so long ago as the case of Southern v. Sow, in Pophain’s Reports, (page 143,) and in the case of Croft v. Say, (7 Beavan Rep., 84,) Lord Laxgdale said: “No man has a “ right to dress himself in colors or adopt and bear sym- “ bols to which he has no peculiar or exclusive right, and “thereby personate another person, for the purpose of “inducing the public to suppose either that he is that “ other person, or that he is connected with and selling ‘ the manufacture of such other person, while he is really “ selling his own.”
    This was the somewhat noted case of the “Day & Martin Blacking.” The defendants made and sold the genuine blacking; their names were Day & Martin; their label had the No. 97 1-2 Holborn Hill, and their device was the Royal Arms of England—whereas the plaintiff, who was the surviving partner of the original “Day &• Martin,” had upon his label No. 97 High Holborn, and the arms of Day & Martin, quite different from the Royal Arms, and yet the Court directed an injunction to issue.
    Lord Lakgdale said, “ the defendants’ contrivances were “ calculated to mislead the bulk of the unwary public into “ the impression that the new concern was connected with “ the old manufactory; and thus to benefit the defendants “ to the injury of the plaintiff and to deceive the public.”
    In the case of Pidding v. Sow, (8 Simon’s Rep., 477,) the Vice-Chancellor said: “The defendant was not at “ liberty to make and sell a mixture of his own under “ the same designation as the plaintiff had appropriated.”
    In the case before us, the plaintiff Burnett contrived a name unknown to any language, and sold his mixture under that appropriated designation for two years; advertising during the entire time, and in nearly every important journal in the city, that he had adopted that word or name as his “ trade-marled

    The “ Coeoaine,” as he called it, had a great sale, and after its reputation was established through the energy, skill, and money of the plaintiffs, the defendants then commenced the sale of their mixture, under the designation of Phalon & Son’s “Cocoine.”
    Was “this contrivance calculated to mislead the bulk “ of the unwary purchasers; and thus to benefit the defend- “ ants, to injure the plaintiff, and to deceive the public?”
    I have no doubt that an honest answer from the defendants would be affirmative. If Burnett’s “Cocoaine” had proved destructive to the human hair, Phalon’s “ Cocoine” would not have been introduced under that designation. It was the success of the former that introduced the latter; and where one intentionally (as in this case) so closely imitates the trade-mark of another, the law presumes it to have been done for the purpose of inducing the public to believe that the article is that of him whose trade-mark is imitated, and for the purpose of supplanting him in the good-will of his trade or business. (Taylor v. Carpenter, 2 Sandf. Ch. R., 603, affirmed in the Court of Errors.)
    ■ Every man has a right to the reward of his skill, his energy, and his honest enterprise; and when he has appropriated, as his trade-mark, letters combined into a wurd, before unknown, and has used that word, and has long published it to the world as his adopted “ trade-marh,” he has acquired rights in it which the Courts will protect.
    The proof is clear that the plaintiff had for nearly two years advertised his mixture in nearly every newspaper in this city, and had published in the same papers that he had adopted the word “ Cocoaine” as his trade-mark. The defendant was himself a witness, and he did not suggest that these notices had not been brought home to ■’his knowledge; the conclusion is irresistible, that he was ■aware of their publication, and that he intentionally ■adopted “ Cocoi'ne” as a close imitation of “ Cocoaine,” and for the purpose of deriving profit from the simulated trade-mark
    Ho one can appropriate a word in general use as his trade-mark, and restrain others from using that word. Burnett cannot acquire property in the word Gin, Wine, Brandy,, or Ale, or in any other word known to the language and in common use to designate things, or the qualities of things. But the word appropriated by the plaintiffs is not of- that character, and it is no hardship to the defendants to be restrained from its use as a trademark ; he can adopt another designation for Ms mixture; there is no necessity whatever for this close imitation of the plaintiffs’ mark, and the defendants can scarcely have any other motive than by this similitude to derive advantage from the plaintiffs’ toil. To this they have no right.
    There are some features of novelty in this case, but the general principles which govern it are well settled. (Gout v. Aleploglu, 6 Beav. R., 69; Perry v. Trueffitt, 6 Beav. R., 66 ; Goats v. Holbrook, 2 Sandf. Ch: R., 596; Partridge v. Menck, 2 Sandf. Ch. R., 622; Howard v. Henrigues, S Sandf. S. C. R., 725, [Case of the Irving House;] Stokes v. Landgraff, 17 Barb., 608; Clark v. Clark, 25 Barb., 76; Brooklyn White Lead Co., v. Masury, 25 Barb., 416; Taylor v. Carpenter, 11 Paige, 292.)
    The plaintiffs are entitled to judgment, and an injunction must issue. The order to be settled on notice.
    Upon the usual reference to ascertain plaintiffs’ damages, they were assessed at a nominal sum by reason of Ms refusal to disclose the ingredients of his preparation. The proceedings on this matter are reported in 11 Abbott’s Pr., 157 and 12 Id., 186.
    The defendants moved at Special Term for a new trial, wMch was denied, the decision of which motion is réported in 4 Bosworth, 622. Pinal judgment having now been entered against the defendants, they .appealed both from the judgment and from the order denying a new trial.

      Eusebius W. Dodge, for defendants; (appellants.)
    I. Plaintiffs’ judgment rests solely on the ground that he contrived a name unknown to any language, and appropriated it as a trade-mark. But in truth, the word ,is a properly compounded word, and the legitimate name for preparation of cocoanut oil, being compounded of the well known words “cocoa” and “olein.” II. The word “ Cocoaine,” when applied to an article of perfumery, fairly imports that it is a preparation of cocoanut oil, and thus, when used as the name of a cosmetic, indicates the nature of the compound, so that it cannot be urged that “ Cocoaine” is a mere fancy term, having none of the attributes of words or names in common use.
    In support of the doctrine that no person can have property in any word used to indicate the name or quality of goods, see the leading cases of The Amoskeag Manufacturing Company v. Spear, (2 Sandf. S. C. R., 599,) Fetridge v. Wells, (4 Abbott’s Pr. R., 144; S. C., 13 How.Pr. R., 385,) Stokes v. Landgraff, (17 Barb., 608,) Williams v. Johnson, (2 Bosw., 1,) Wolfe v. Goulard, (18 How. Pr. R., 64,) Corwin et al. v. Daly et al., (7 Bosw., 222,) Upton’s TradeMarks, 187.
    The name of a factory, hotel, store or saloon, when employed as a trade-mark, will be protected by injunction for the reason that such names serve to guide the public to a person’s place of business; and in that respect they indicate the owner or whoever may be entitled to the good will of the establishment. (See Howard v. Henriques et al., 3 Sandf. S. C. R., 725; Knott v. Morgan, 2 Keen’s R., 213;, Stone et al. v. Carlan et al., 3 Code R., 67; Marsh v. Billings, 7 Cushing’s R., 322; Genin v. Chadsey, 12 Abbott’s R., 69.)
    It will be seen that this distinction has heretofore been observed in applying the law in this class of cases, and it should still be followed.
    III. If the Court shall be of the opinion that the mere contrivance or invention of a word, gives to the inventor an exclusive right to its use as the name of an article of his manufacture, then it is submitted that the defendants should have a new trial upon their newly discovered evidence.

      John Sherwood, for plaintiffs, (respondents.)
    I. The fact that plaintiffs had acquired a right to the word Cocoaine, has been decided by the Judge, and is supported by clear evidence.
    The colorable evasion, in leaving out a single letter, only adds to the probability of an intention to defraud plaintiffs and the public. (Taylor v. Carpenter, 2 Sandf. Ch., 613, and cases.)
    II. The word does indicate the origin of the article, but it does not follow that there could be no property in it. The word is not in use in the English language, or as far as appears, in any language;, and the cases which declare that the name of a thing cannot be taken as a trade-mark, apply to such names as are generally used and known.
    The leading case of Gout v. Aleploglu, (6 Beavan, 69,) is directly in point; here the use of the word “Passendede” as a trade-mark was protected. So is Wolfe v. Goulard, (18 How. Pr., 64.) And see Stokes v. Landgraff, (17 Barb., 608.)
    The rule laid down in Amoskeag Mfg. Co. v. Spear, is against the defendant, for he could not with equal truth, use the word “Cocoaine,” for it had no meaning, (besides suggesting its origin from cocoa,) and the word was a novel and original one, and having no signification in any language.
    The distinction raised by defendants’ counsel, between signs of places of business and other trade-marks, is not supported by the cases cited.
    Nor is this distinction well founded in, principle, for the word Cocoaine, after its adoption and publication by the plaintiffs, directed the public to them as the manufacturers of the article.
    There is no decision that the word or device adopted to indicate ownership, or origin, shall not also convey the idea or name of the article to which, for the first time, it is applied. Nor could there be any reason for any such position.
    The word Cocoaine is not, in fact, descriptive, nor does it indicate quality. It is merely suggestive. No one could tell, from seeing the word alone, what the compound is, or its object, quality, or nature.

      It is not a scientific ov technical term, and is not descriptive as denoting the quality or nature of the material.
    Common examples, such as “ oxyhydrogen- blow-pipe,” and similar names, do not apply, because they actually define, describe, designate and explain their subject.
    III. A new word may be adopted as a trade-mark. (See eases above cited.)
    Could not the plaintiffs adopt any peculiar and original arrangement of letters. How if, instead of using letters merely- as a symbol, the plaintiff coins from them a symbolic word which is new, and at the same time conveys an idea of the ingredients of which the preparation is composed, while it also designates it as of his manufacture, is not that word a device or symbol which he can appropriate, as well as any other arrangement of the same letters ?
    IV. The word Cocoaine never before existed in our language. It never existed as a substantive designating-any preparation. When used by defendants to designate a hair-wash, it derived that meaning solely from Burnett’s use.
    V. The criticism of the opinion in this case, in Upton’s Law of Trade-Marks, written during the pendency of the case, is no more authority than the brief of the defendants’ counsel, and the course of argument as to the use of a novel word, is certainly unsupported by any authorities.
    The conclusion of the writer, however, that the judgment ought to be sustained, but upon different grounds than those set forth in the opinion of Justice Pierreeost, is well founded, (pages 180, 182.)
    This case does present another ground, viz.:
    That the word “ Cocoaine,” by its appropriation, use for a long time, and known connection with the name of Burnett, had, by relation to his ownership, acquired a distinct recognized meaning, as the word which his compound was known by.
    VI. But the law does not favor those who, by imitations, appropriate to themselves the fruits of the ingenuity, labor, and enterprise of others; and the great majority of cases are decided upon the broad ground that there was a palpable attempt to imitate what others had invented and brought to the notice of the public. The actions of the inventor of the trade-mark are not the subject of investigation so much as those of the imitator. (Croft v. Day, 7 Beav., 84; Howard v. Henriques, 3 Sandf., 725; Sykes v. Sykes, 3 B. & C., 541; Rodgers v. Nowill, 5 Man., Gr. & Scott, 109; Morrison v. Salmon, 2 Man. & Gr., 385; Day v. Binning, 1 Coop. Ch. R., 489; Ransome v. Bentall, 3 Law Jour. R., N. S., 161; see also cases cited in Upton on Trade-Marks, page 122; see also Clark v. Clark, 25 Barb., 76; Brooklyn White Lead Co., v. Masury, 25 Id., 416; Williams v. Johnson, 2 Bosw., 1; Coffeen v. Brunton, 4 McLean, 516; Hine v. Lart, 10 Lond. Jur. R., 106.)
    VII. The motion for new trial on the ground of newly discovered evidence, was properly denied.
    VIII. It cannot be denied that in truth the defendants did intend to obtain the benefit and advantage of the skill and labor of, and the money expended by the plaintiffs, and that they knew that the word “ Cocoaine ” was meant to be the trade-mark of the plaintiffs, and that they deliberately invaded their rights in that respect, intending to defraud the plaintiffs, and to deceive the public.
   Bosworth, Ch. J.

That the judgment is just, on the facts found, I regard as free from serious doubt. I think the evidence warrants the findings. The only finding of fact, in respect to which there can be any doubt of the sufficiency of the evidence to justify it, is the fifth.

That finding states, that the defendants well knew that the plaintiff used the word “Cocoaire” as their trademark, and to indicate that the compound on which it was impressed, was their manufacture, and that the defendants fraudulently used the word “ Coedine” to induce the public to believe that the compound of their preparation, was in fact that of the plaintiffs, and that in this regard their attempt to deceive the public and defraud the plaintiffs has been successful.

Edward Phalon, one of the defendants, testified that he had been in the business of hair dressing 24 or 25 years; that he commenced manufacturing perfumery in June, 1852, and selling at wholesale and retail every kind of perfumery; that he has sold “a preparation of coeoanut oil,” as “a preparation of hair oil” at different times since 1840. He called it “a preparation of coeoanut oil” and sold it to customers, but not by wholesale, until 1858,' when he commenced selling it under the name “ Cocoike,” and with labels on the bottles, having that word impressed thereon.

Ho one can readily believe, that an enterprising manufacturer of, and dealer in perfumery, and who had been selling at wholesale and at retail since June, 1852, every kind of perfumery, had failed to observe the advertisements of “ Burnett''s COCOAIHE” which were extensively published in the summer of 1857, in the City of Hew York, the defendant’s place of business, in the Herald, Tribune, Times, Evening Post, Express, Sun, Harper’s and Leslie’s Weekly, as well as in other papers, or that he was ignorant of the existence in the market, of an article thus advertised, and sold in New York, by A. D. & C. Sands, Lazell, Marsh & Hand, Hegeman & Co., Barnes & Park, E. C. Hell & Co., Carey, Howard & Sanger, I or T. Maxwell, Schieffelin Brothers, and many others, and the sales of which had increased from 500 dozen bottles in the six months commencing July 1, 1857, to 1,500 dozen in the second six months, and in the next six months to 300 dozen more.

Even if he had denied on oath that he had heard of the article; or, if having heard of it, that he was aware that this article of the plaintiffs’ manufacture was, or had become known to the public, by the word “Cocoaene,” it would require some credulity to credit it. But he makes no such denial, and there is no evidence opposed to deducing such inferences as would be naturally drawn from the testimony to which I have referred.

But this is not all. The defendants, according to their own testimony, had been selling, since 1840, substantially the same article as they, in 1858, denominated Cocoine; and had been selling it as “A preparation of cocoanut oil." Why, after transacting this item of their business, in this manner, for some eighteen years, do they resort to the means employed in 1858 to bring it before the public under the designation of “ Cocoine'’? The answer is found in the reputation, and extensive and largely increasing sales of Cocoaine.

And there cannot reasonably be assigned any other motive than the one stated in the fifth finding of facts.

The fact that Leopold Simon, (the defendants’ chemist, who entered into their employment about the first of March, 1858, and who, prior to that time, had followed the business of a chemist in Paris,) had never heard of the word Cocoaine until after he “composed” the name Cocoine, does not, in my view, tend to show the absence of a fraudulent intent in the defendants.

The defendants had been “frequently experimenting “with cocoanut oil, and selling” it since 1840, and selling it as a preparation of hair oil. , It was a simple matter to get up a label, and impress on it, and on the bottles containing their compound, the word “ Cocoaine,” omitting one letter only. But no plausible or rational explanation, except an intent to defraud, could be given of a transaction as bold as that would be. It was, undoubtedly, deemed wiser to instruct the chemist to compose a name, somewhat indicative of the substantial ingredient of the compound, without informing him of the fact that Burnett was manufacturing and selling largely a similar article, which was known as “Oocoaine.”

The reputation of the defendants may, justly, be assumed to be extended, creditable and valuable. They had used it, and had experienced all the benefit that eighteen years’ employment of it, in connection with their preparation and sale of cocoanut hair oil, could give to their compound.

Burnett, by great outlay and effort, had succeeded in creating an extensive demand for his own manufacture, known as “ Cocoaine.” The defendants, in 1858, with the intent and for the purpose stated in the fifth finding of facts, impressed on the bottles and labels containing and covering their compound the close imitation, “ Coeo'ine."

It seems to me, therefore, that the judgment cannot be reversed on the ground that this finding is contrary to evidence.

That the plaintiffs are entitled to the relief of an injunction against such a use of their trade-mark, on the facts found, I do not understand to be disputed. The cases cited, on the points of either counsel, establish that they are. (See Upton’s Trade-Marks, 180-185.)

That the plaintiffs recovered only nominal damages, considering the circumstances under which they were so assessed, I regard as of but little moment.

I think the judgment should be affirmed.

Moecriee, Justice, concurred in this opinion.

Robertson, J., (dissenting.)

The principle adopted by the learned Judge at Special Term, in deciding this case, was one of which I had occasion to approve in the case of Corwin v. Daily, recently decided in this Court, (7 Bosw., 222,) and is fully sustained by all the cases. It is that a manufacturer of, or dealer in, any article, has a right to designate them as being made or sold by him, by a mark, or device, formed of a combination of letters, (such as Cocoaine,) not constituting a word in any language, and that no other person has a right to use the same mark, or device, by an immaterial change, such as omitting a single letter, (as in Cocome,) so as to induce the unwary public to believe that the articles made or sold by the counterfeiters are the same as those of the original inventor of the mark.

If, however, it should appear, as is contended in this case on the part of the defendants, that the device used by them to indicate their. manufactures, is a word either actually in use to express the nature,- component parts, quality, or use of the article, or capable of being formed, according to the analogy of language, from other words, as a different part of speech, (such as Coco'ine,) and the plaintiffs have only adopted the same word, inserting a letter therein, in inventing his mark, so as to deprive it of its character as a word, the question would arise whether the defendant could be deprived of the right to use the combination of letters forming such word because it might resemble the device so adopted. The only remaining questions, therefore, in this case, are questions of fact, whether the term Cocome, with the diaeresis over the “i,” was a word in the French language, indicating the nature, ingredients, quality, or use of the liquid compound made by the defendants, and, if not, whether the defendants used’such word, or combination of letters, to mislead the public and make them believe that the commodities sold by them were the same as those sold by the plaintiffs.

It is somewhat remarkable, in this case, that the result of the report of the Keferee, is that the plaintiffs have sustained no damage, and the defendants made no profits, hitherto, by their' invasion of the plaintiffs* mark, and, to that extent, the basis of any equitable jurisdiction is taken away. I had occasion, in the case already adverted to, to trace the origin of the doctrine of trade-marks to the common liability of every one who palmed off upon the public his commodities as those of another man, to the deceived customer, and, indirectly, the supplanted competitor,. Equity seized on jurisdiction to prevent repetitions of the wrong, and, with its customary eagerness to amplify such jurisdiction and model the relief granted by it to every phase of such wrong, created the doctrine of what are called trade-marks. In doing so it has nearly established a common law copyright, of perpetual duration, permitting an injunction without a trial at law, calling upon the defendant for an account of his profits, and even attempting to reach what are claimed to be instruments prepared for future, fraud. This may be a very healthful jurisdiction, but, without great pare, its searching character may be made an instrument of wrong. Much is said of the injustice of allowing one man to. avail himself of the skill and expenditure of another by false representations, which is well founded; but where, instead of using the name of the owner, or vendor, strange devices and insignia are employed to indicate such ownership, or source, which do so but ambiguously, and require considerable familiarity and experience with them to connect them therewith, no great sympathy is created for those using such devices. Were they the subjects of copyright, or other modes of warning mankind against trespassing on a settled right, there would be greater justice in punishing the trespasser; but the most innocent may be caught unwarily in a litigation where a word is employed as a device, originating, in some measure, from the materials used in forming a composition, as in this case, where one of the plaintiffs admits that he framed Cocoaine as a word, and that it was suggested by the cocoanut oil employed in the manufacture of the article, while the discoverer of the word Cocoine claims that it is a word, framed according to the genius of the French language, to express the extract of that oil.

The learned Judge who refused a new trial in this case upon the newly discovered evidence, was undoubtedly correct in considering such evidence as merely cumulative, if the fact that Cocoine was a word known and in use before the adoption of the word Cocoaine by the plaintiffs, was a subject of conflicting evidence before the Court at Special Term, and material, on the original trial of the issues in this action. But, in reality, there was no conflicting evidence, and either the testimony on the first trial failed to make out the prior or proper use of Cocoine, as indicating something connected with cocoanut oil, or the learned Judge on such trial must have held that such use and connection was immaterial, and that no one had a right to use any word as a device for his commodities which resembled a combination of letters which formed no word, adopted by another, if he did it with intent to have them mistaken for each other; and that there was evidence of such intent in this case. That learned Judge, who does not agree with the plaintiffs in the view that Oocoaine is a word, but holds it to be merely a combination of letters, has not, either in his findings of fact or opinion, passed upon the question whether, upon the evidence, Cocoine was a word in the French language, but places his decision purely upon the ground that, after the plaintiffs had adopted Cocoaine, which was no word, the defendants could not employ the word Coeoine, even if it was a word, because it so nearly resembled the former as to be mistaken for it; and although we have a right to supply, as a fact found, that Cocoine was not a known word when the plaintiffs adopted Cocomne, if necessary to sustain the judgment, and the testimony warrants it, I think in this case the testimony of Simon, which was uncontradicted, does not warrant it. A word composed of the letters O-o-c-o-i-n-e was found in a scientific French dictionary, but with an accent over the final “e,” which renders the pronunciation different from what it would be without it. That word was, however, an adjective, and meant that which had the form of a cocoanut tree. In that form it was a botanical word. But the French language, as appeared, admits also of the formation of words to express a chemical result, and the termination “ine,” added to the name of a substance, expresses the "finest part or essence of it when reached by a chemical experiment and discovery, and there were two hundred words, with such termination, meaning extracts. The witness testified that by such rule Cocoine is a proper term in chemistry, and would mean the finest part of the cocoanut oil. Such testimony seems satisfactory to show that the term Cocoine could be very well adopted to signify an ex-tfactof cocoanut oil, find would be recognized as a French word expressing it by all who understood the French language and the rules of forming words in it. The question, therefore, comes back to the same point—whether the plaintiffs, by adopting the letters O-o-c-o-a-i-n-e in the order in which they did, precluded all the world from using the word Cocoine to designate an extract of cocoanut oil, if the intent were thereby to sell the commodity to which it was attached as the plaintiffs’, and such were the result.

It is plain that the plaintiffs could not prevent the honest application by the public of the term Oocoine to an extract of cocoanut oil, or anything of which it was the principal ingredient, or the sale of such commodity by that name. The question therefore arises whether the defendants could anticipate the innocent application of such name to such commodity by the public, and employ it with intent to divert the plaintiffs’ custom. After such name became honestly public property, and publicly known, the plaintiffs would certainly no longer rely upon a word so near it as Oocoaine to protect themselves against the danger of confusion of the two articles; but until some honest motive made the. application proper, they had a right to rely on protection against the dishonest adoption of the term merely to injure them.

I am, however, by no means satisfied that the evidence in this case warranted the finding, that the defendants adopted the term Oocoine with intent to have the public believe that it was the same article as the plaintiffs’. The cause of reasoning by which the learned Judge, before whom the issues were tried, arrived at that conclusion, was simply this :• that the plaintiffs had advertised extensively their adoption of the term Oocoaine; that the defendant must have known such advertisements, because he did not deny knowledge of them on his examination as a witness; and that, knowing them, his adoption of a word so nearly alike must be held to be in bad faith. The chemist employed by the defendants swears that, being employed by the latter, he invented the name spontaneously; that he consulted many authorities before he did. so, and had not heard of Oocoaine as the plaintiffs’’ trade-mark, and his testimony is uncontradicted. It»,was- the- business of the plaintiffs to make out bad faith affirmatively. Nothing can be inferred from a party, when on the stand as a witness, not volunteering, to deny knowledge of a notice. It was the duty of the plaintiffs to-have brought such know- • ledge home to him in some way. I do not think that the testimony bears out the inference of the learned Judge, that the plaintiffs had for nearly two years advertised their mixture in nearly every paper in Hew York. One of them testified merely that he advertised in some of the principal or leading papers; this being the only advertising, it was not prima facie evidence that the defendants had seen such notices, as it can hardly be presumed that every man reads all the newspapers. Without this presumption of knowledge by the defendants of the advertisements, there is no evidence to sustain bad faith on their part, and the evidence of one witness tends to show good faith.

For this reason alone I think there ought to be a new trial, as the question of good faith is vital to the plaintiffs’ right to interfere, particularly in a case of this kind where the word used by the defendants was appropriate to the article sold, was formed by a French chemist according to the analogies of the French language, and without knowledge of the plaintiffs’ trade-mark.

There appears, besides, to be an addition to the use of the word Coeoine in the defendants’ labels, besides the diaeresis over the “ i,” which should protect them either altogether or else in some degree from the charge of bad faith; the labels exhibited, and it is so charged in the complaint, have the name of the defendants’ firm prefixed to that title, thus showing the origin of the article sold, and this, in several cases, cited in Corwin v. Daly, (ubi supra,) has been held sufficient, unless some device is used to prevent its being noticed by the public. The value of such an addition in notifying the public as to the real manufacturer of the article sold, can be better determined on a new trial, by inspection. Ho notice seems to have been taken of it on the former one.

The judgment should therefore be reversed, and a new trial had, with costs, to abide the event.

Judgment affirmed.


author: Bosworth, Ch. J. • Robertson, J. Moncrief, J.

text:
    Moses Chamberlain, Plaintiff and Respondent, v. Jane R. Dempsey (who was impleaded with William D. Salisbury et al.), Defendant and Appellant.
    1. Where an action is tried before the Court without a Jury, the only autho- . rity for entering judgment is the decision of the Judge who tried the cause. A reference to compute the amount of the recovery, if not authorized by the decision, is irregular.
    '2. Where, on a trial by the Court without a' Jury, of an action for the foreclosure of a mortgage, the" Judge omits to determine the amount due to the .plaintiff, or to direct that- there be a reference to ascertain it, and a reference for that purpose is ordered on an application to another Judge, a judgment entered on the report of the Referee so appointed is not only irregular, but , erroneous; there is virtually a mistrial, and, on appeal from the judgment, . it will be reversed.
    ■3. The contracting party, in an action at law upon a mortgage of real estate, or, in an equitable action-to foreclose the mortgage, a defendant who is the owner of the property, or has a valid lien upon it by mortgage or execution, is entitled to interpose the defense of usury as^a matter of strict right.
    4. In "a foreclosure suit, where the defense of usury is interposed by a grantee of the mortgagor, an admission at the trial, and the- finding by the Court . as a fact, that such grantee -is the owner in fee of the premises, imports that the conveyance by which the grantee acquired title, was in hostility to the mortgage, and such a grantee may allege and prove by way of defense, that the mortgage is usurious. '•
    (Before Bosworth; Ch. J., and Moncrief and Robertson, J. J.)
    Heard, February 11, 1862;
    decided, March 15, 1862.
    \This action was brought for the foreclosure of a mortgage on real property, given by the defendant William D. Salisbury to the plaintiff, to secure payment of a joint indebtedness of Salisbury and the defendant Arrowsmith. Besides these defendants, Jane Dempsey, Isaac 0. Delaplaine, George W. Platt and twenty-two other persons were made defendants, upon the usual allegation that they liad or claimed some interest or lien which was subsequent to the mortgage.
    ' The defendant Jane R. Dempsey, put in an answer which stated “ that she is the owner in fee of the premises,” &c., and proceeded to set up usury in the debt to secure which the mortgage was given; and also stated other defenses not material to the present decision. The defendants, Platt and Delaplaine also answered, each claiming to be prior incumbrancers.
    The defendants Salisbury and Arrowsmith had put in an answer, but withdrew it, upon the plaintiff’s stipulating that he released all personal claim against them, and that no personal judgment should be taken against them.
    The action came on for trial at a Special Term of the Court, before Mr. Justice Hoffman, on the 11th day of October, 1861.
    After the counsel for the plaintiff rested his case, the counsel for the defendant offered to prove, (the defendant, Dempsey, being admitted to be the owner of the mortgaged premises,) that the indebtedness mentioned in the complaint rvas usurious, as set forth in the answer of the defendant, Dempsey.
    The counsel for the plaintiff objected, and the Court excluded the evidence, to which ruling the counsel for the. defendant excepted.
    The Court reserved its decision, and after consideration, directed judgment for the plaintiff*, and among the findings of fact and conclusions of law, stated, as matter of fact, that the defendant, Dempsey, was, at the time of filing her answer, and still was, the owner of* the premises.
    The Judge stated, in the opinion which he delivered, that he decided the point as to usury upon the controlling authority of Sands v. Church, (2 Seld., 347.)
    The facts as to the regularity of* the reference and final-judgment, are stated in the opinions. From that judgment the defendant, Dempsey, took the present appeal.

      George R. Thompson, for the appellant.
    I. It is well settled that if a borrower, at a usurious rate, made an unqualified sale of property pledged to secure the usurious loan, the purchaser may plead the statute; and the purchaser of land may show usury in- a mortgage exist-, ing at the time of his purchase, to defeat a foreclosure. (Post v. Dart, 8 Paige, 639; Shufelt v. Shufelt, 9. Id., 137
      ; Vroom v. Ditmas, 4 Id., 526; De Wolf v. Johnson, 10 Wheat., 393; Lloyd v. Scott, 4 Pet., 205; Berry v. Thompson, 17 Johns., 436 ; Green v. Kemp, 13 Mass. R., 515; Trumbo v. Blizzard, 6 Gill. & Johns., 18; Blydenburgh on Usury, 106-108.)
    II. The case of Sands v. Church, (6 N. Y. R., 347,) does not conflict with this principle. There the mortgagor sold subject to the mortgage, which does not appear in the case at bar.
    III. The admission made at the trial, that “ the defendant is owner of the mortgaged premises,” means that she is the owner in fee.

      Wm. M. Allen, for the respondent.
    I. The mere allegation of ownership in fee, without any proof as to the circumstances under which the defendant acquired such ownership, notwithstanding the admission at the trial, will not entitle the defendant to prove usury. That admission means that she is the owner subject to the mortgage. (Sands v. Church, 6 N. Y. R., 347; De Wolf v. Johnson, 10 Wheat., 393, and cases cited.)
    II. Bo one but a party to the contract can avoid it on the ground of usury. (Post v. Bank of Utica, 7 Hill, 391, 406; Green v. Morse, 4 Barb., 332.)
   Bosworth, Ch. J.

The defendant Dempsey alone appeals from the judgment. In her answer she expressly admits the “execution of the notes and mortgage" described in the complaint. Taking her answer to be true, she admits the notes to be unpaid.

There is therefore sufficient evidence to sustain tlje findings of fact as to the making and delivery of the notes, and the making and delivery of the mortgage, and the non-payment of the notes at maturity.

The decision of the Judge is dated Bovember 30, 1861, and contains his findings of fact and conclusions of law. The latter are two in number: First, “that the plaintiff is entitled to judgment of foreclosure and sale of such mortgaged premises, for the purpose of discharging the amount of principal and interest due upon such mortgage, together with costs of suit;” and second, “that the plaintiff is not entitled to a judgment for any deficiency which may appear upon the sale of such mortgaged premises.” The defendant excepts to the first conclusion of law only.

The record does not show that any judgment has been rendered on this decision. The Code does not contain any authority to enter a judgment otherwise than upon and according to the decision. (Code, § 267.) The cause was tried before Judge Hoffman, without a Jury. If he intended a reference to compute the amount due on the notes, it should have been directed as a part of his decision.

But the record states that on the 26th of November, 1861 (four days prior to Judge Hoffman’s decision), Judge Moncrief made an order of reference to compute the amount due. The Referee’s report, under this order of reference, is dated November 27,-1861. The minutes of the proceedings before the Referee form part of the case, and show that these proceedings were commenced before him on the 26th of November. They also purport to state which of the parties appeared before him. Mrs. Dempsey is not one of them. She could not have had notice of them for the full time required by established practice. The judgment entered bears date the 7th of December, and is ordered by Mr. Justice White, and not only does not, in its recitals, contain any direct allusion to the trial before Judge Hoffman, but purports to be made on proof of personal service of the summons on all the defendants, the aforesaid order of reference, and the report of said Referee.

There could be no authorized judgment except one entered upon the decision of the Judge who tried the cause; that decision is the authority for it, and there can be no other. If that had directed a reference to compute the amount due, the report of a Referee ascertaining it would determine that question on becoming absolute. But it would not of itself constitute any authority to enter a "judgment of foreclosure and sale. At most, it would determine the amount the plaintiff was to be paid out of the proceeds of a sale made by virtue of a judgment entered on Judge Hoffman’s decision.

I regard all these proceedings as irregular and unauthorized. The defendant, Dempsey, should have moved to set them aside as irregular, if she did not assent to them. Instead-of that, she appeals in terms from the judgment- “ entered herein on the 7th of December, 1861.”' That judgment recites the order of reference, and the order of reference recites that “ the -issue joined by the answer of said Dempsey having been disposed of, and the facts set up in the answers of Delaplaine and Platt being admitted by plaintiff,” &c.

The decision of the Judge who tried the cause does not dispose of the issues made by the answers of Delaplaine and Platt, by anything contained in the terms of the findings of fact. If they are incumbrancers prior to the plaintiff, the Judge who tried the cause should have so found, and directed a sale subject to their mortgages; or that they be first paid.

'. That another Judge has power, at another or the same term of the Court, to make a decision declaring the priority of the liens of the parties to the action, differently from the decision of the Judge who tried the cause, no one will pretend. And if the Judge who tried the action, has not in terms, or by necessary implication, decided the question, then there is a mistrial.

The decision, that the plaintiff is entitled to a judgment of foreclosure and sale, for the purpose of discharging the amount due on his mortgage, together with costs, imports a finding, that the liens or interests of all the defendants, accrued ' subsequently to the plaintiff’s mortgage.' > The complaint avers that such is the fact.

The judgment entered on the order of Justice White, conflicts in this respect with the import of the decision of Justice Hoffman.

- But, if my brethren shall be of the opinion that these questions in regard to the regularity of the proceedings' can be raised only by a motion to vacate them, and not by appeal, that the fact that the defendant Dempsey has not even on this appeal raised any question of regularity, is satisfactory evidence that she had notice of the application for the order of reference, and assented to it, and admitted service of notice of hearing before the Beferee, and had notice of the settlement of the judgment by Justice White, and that such judgment, in the intent of the parties, is entered as well on the decision of Judge Hoeemah as upon the subsequent proceedings, then nothing will be left except the defendant’s exception to the decision, excluding evidence “that the promissory notes “ mentioned in the complaint were usurious, as set forth “in the answer of the defendant, Dempsey,” and her exception to the first conclusion of law contained in the decision of Judge Hoeemah.

With reference to the first exception, it is to be observed that the only foundation laid for giving the evidence which «the Judge excluded, is first, the allegation in Dempsey’s answer “that she is the owner in fee of the premises” in question, and the admission at the trial, to wit, “the “ defendant, Dempsey, being admitted to be the owner of “ the mortgaged premises.” What this admission was understood by Judge Hoefmah to mean, is shown, to some extent, by the seventh finding of fact, viz.: “ That “ at the time of filing such answer, the defendant, Jane “ B. Dempsey was, and now is the owner of such premises.” When or how she became such owner is not alleged in the answer, nor stated in the admission, or in the findings of fact. But it is quite evident, that her ownership accrued subsequent to the giving of the mortgage held by the plaintiff, and is subordinate to it, except in so far as the fact of usury exempts it from such subordination. The answer does not deny that Mrs. Dempsey’s ownership was acquired with actual knowledge of the plaintiff’s mortgage, nor does it affirm that it is created by a deed containing any covenants of warranty.

Unless it be law that a Court of Equity, on a given state of facts, will permit proof of usury as a defense and fiat bar, when it could not grant any relief to the same party, on a bill filed by him, to obtain relief from the same usurious transaction, (a question which will be considered hereafter;) then, it seems to me, that Post v. The President of the Bank of Utica, (7 Hill, 391,) is an authority in support of the decision at Special Term. The respondents, the Bank of Utica, had become owners of the mortgaged premises by a purchase of them at a Sheriff’s sale, on a judgment and execution against the mortgagor. They, thereby, acquired all the title which any deed from the mortgagor could have conferred. Whether a conveyance by the mortgagor, with a warrantee of title, (Cole v. Savage, 10 Paige, 583-592,) would confer rights to contest the mortgage, which a quit-claim deed, or a purchase “of the mere equity of redemption” would not confer, may, possibly, be a material question. But it is quite clear that in Post v. The Bank of Utica, the decision of the Chancellor w$ts reversed, and his decision in Cole v. Savage, (supra,) was» disapproved.

In Green v. Kemp, (13 Mass. R., 515,) the defense of usury vas excluded. The defendant was the mortgagor’s grantee of “ all the right in equity of redeeming, which he (the mortgagor) had in the premises.” In Sands v. Church, (2 Seld., 347,) the defense was excluded, on the ground that the defense of usury had been waived, by those having a right to waive it, before the title of Daily, one of the appellants, had accrued; Church, the other appellant, was one of the parties waiving it.

Hence, unless the admission made at the trial, that the defendant Dempsey “is the owner of the premises” in question, imports more than that she has succeeded to the title, which the mortgagor had, subject to the mortgage, then it does not appear that she has any conveyance given in hostility to the mortgage. It, of course, does not mean that she has a title free from all incumbrances. It could not have been understood by Dempsey, the plaintiff, or the Court, as admitting that her title was paramount to that of Platt and Delaplaine,.as mortgagees.

In my view the important question upon the merits is resolved into the consideration whether the fact as admitted, or found, in regard to Dempsey’s ownership, imports that her title is in hostility to the mortgage? If it imports that, then I think the decision erroneous; otherwise, not.

A party sued at law on a usurious security, if able to prove usury, succeeds in his defense. The contract and securities being declared void by statute, it would seem to, follow that whether the action was at law, upon the contract, or in equity, to enforce the security, the contracting party, in the former, or, in the latter case, the party owning the encumbered property, or having a valid lien upon it, by mortgage or execution, is entitled to the defense as a matter of strict right, if possessed of evidence" to establish it. In this view, the decisions do not present the actual conflict imputed to them. Jackson v. Dominick, (14 J. R., 435,) Dix v. Van Wyck, (2 Hill, 522,) and Post v. Dart, (8 Paige, 639,) are not in conflict with Post v. The Bank of Utica, (7 Hill, 391.) Prior to the Revised Statutes, if a borrower was obliged to resort to a Court of Chancery to obtain a discovery of evidence to establish the usury, he was obliged to offer to pay the sum lent, and interest, and could only obtain relief from the usurious excess. Those statutes did not relieve him from the necessity of offering to pay the principal. (Livingston v. Harris, 11 Wend., 329.) In Post v. The Bank of Utica, (7 Hill, 391,) the question was whether the respondent was one of the persons authorized by statute to seek relief by bill in equity.

Holding that he was not, does not necessarily decide that if a party defendant, and able to prove the usury, he might not allege and prove it as a defense, although not within the statute specially authorizing a bill for relief. In this view there is no necessary conflict between Post v. Dart, (8 Paige, 639,) and Post v. The Bank of Utica, (7 Hill, 391.) In the former case, the usury was set up. as a defense, and the party had a strict legal right to allege and prove it.

In the latter case, the respondent sought relief in equity under a particular statute, and he was held not to be within its provisions. Such a view does not involve the consequence which a learned Senator in the latter case, (7 Hill, 413,) denounced as “ discreditable to the law,” that “ the success of the lender, in recovering the money loaned, would depend upon the Court in which the litigation was carried on, rather than upon the law of the land;” for in this view, usury as a defense is equally available, as a matter of strict right, in equity as at law. It is only when the borrower, or his grantee of mortgaged premises, goes into a Court of Equity for affirmative relief as a plaintiff, that the question arises whether the latter is one of "the persons authorized to die a bill.

■ On the whole, my mind is led to the conclusion, that the effect of the admission made at the trial is, that the defendant, Dempsey, has all the ownership and right which the mortgagor was competent to grant. He could convey, subject to the mortgage, and thus waive the usury, and withhold from his grantee all right to avail herself of it. But he could also convey in hostility to it, in which cas.e she could plead and prove it. By the terms of the admission made, it must be intended to mean, that Dempsey’s ownership is as perfect and absolute as it was competent for the grantor to make it, and in this view the decision of the Judge is erroneous, and the judgment should be reversed and a new trial granted.

When the defendant is put to proof of her title, all the doubts which now beset this branch of the case, may be removed. .

The j udgment should be reversed and anew trial granted, ' with costs to abide the event.

• Robertson, J.

I entirely concur with the Chief Justiee

in the view that the admission of an ownership in fee, in Mrs. Dempsey, without any qualification, gave her the same right to set up the defense of usury against the mortgage sought to be foreclosed, as was in her grantor.

The proceedings in the cause seem to be quite irregular. The trial of the issues of fact, in the cause, took place before one Justice of the Court, who decided on the pleadings and evidence, “That the plaintiff was entitled to judgment of foreclosure and sale ” of the premises, to pay the amount due on the mortgage, but was “not entitled to a judgment for any deficiency.” This decision being in writing, was filed, but no judgment was entered upon it. (Code, § 267.) A judgment was, however, entered upon the order of a different Justice, which does not refer to the first trial of the issues, but is made merely upon proof of service of the summons personally on all the parties, and the report of a Referee, made before the decision upon the first trial, and under a previous order by still a third Justice, to compute the amount due on the mortgage. Such order, on its face, seems to have been made without notice of the application for it to, or appearance at the making of it, by the defendant, Mrs. Dempsey, and the Referee’s report does not recite her as appearing.

As these proceedings stand, the plaintiff first obtained a computation of the amount due against the defendants, then tried the action and obtained a decision against her on questions of law, but without any order of reference to compute the amount due as against her, and finally entered a judgment against her, for a sale, to discharge the amount reported due by the Referee against others.

The power of a Court to order a reference is found in the 271st section of the Code, which, in its second subdivision, provides that it may be done, either before judgment or afterwards, for carrying the judgment or order into effect, where the taking" of an account shall be necessary for the information of the Court. It is very plain in this case that the order of reference actually made was as void as against Mr. Dempsey as though damages-were assessed in an action for assault and battery before the issues were tried, since the plaintiff proceeded to try the issues as against her afterwards. I do not see how, under the decision of Lawrence v. Farmers' Loan and Trust Co., (15 How., 57,) any judgment could have been rendered on the decision at the trial at all, because there was no order of reference directed by it to compute, as, even with that, there could be no judgment, until the computation was made and all questions upon it disposed of. Section 280 of the Code provides that ‘ the judgment" shall be entered in the judgment book, and shall specify clearly the relief granted or other determination of the action. Until every thing is done required by the decision of a single Judge, to furnish materials for a judgment, any entry upon such decision must be a mere order. The act, therefore, of the Justice who made the final order for judgment was not a mere formal matter, but was the giving of judgment upon the decision of the Judge who tried the cause, and a report of a Eeferee not made upon an order included in the decision on the trial.

As the appeal is from the judgment, I think this was not only an irregularity but an error. It would be an irregularity in so far as it was made without the presence of, or notice to the attorney of Mrs. Dempsey. But it is error to pronounce judgment, upon an incomplete decision, upon a trial without any evidence of the amount due, and upon a report which, as to Mrs. Dempsey, was an absolute nullity.

Even if it were possible that the order of reference to compute had been made after the trial, I do not think the matter would be mended. I do not see how any Judge, but the one who tried the issues, could issue an order for computation. He was bound to furnish all the means of determining the relief to be granted, by his decision, otherwise it would be impossible to ascertain how far the making of such an order would have modified his decision.

I think the practice of ordering a computation after the decision of a case ought not to be encouraged, and, indeed, it may be very doubtful if it can be done, unless an account is to be taken; a mere computation might as well be made at the trial as after.

I think, therefore, the decision of the Judge who tried the action was too incomplete to allow a judgment to be entered upon it, by himself or any other Judge; that no order of reference to compute the amount due could therefore be made as regarded Mrs. Dempsey, before or after such trial, by any other Judge; that the judgment was entered without a trial and decision that would warrant it > and that the judgment should be reversed as regards Mrs. Dempsey.

Whether the decision of the Judge who tried the cause can now be amended, so as to add to it an order to compute, and a new judgment be entered therein, is not a matter now to be decided. But I think if that can be done, and the amendment be considered as made, then the error on the trial, as to the merits before referred to, is sufficient to reverse the judgment.

The judgment should therefore be reversed, and a new trial granted, the costs to abide the event.

Moncrief, J.

The defendant, Jane R. Dempsey, alleged in her answer as a defense to the action, that she was the owner in fee of the mortgaged premises, and that the note, to secure the payment of which the mortgage was executed and delivered to the plaintiff, was usurious. This, if proven, was a good defense. (Green v. Kemp, 13 Mass. R., 515.) Dix v. Van Wyck, (2 Hill, 526,) cites this case, and states that it was admitted that if Kemp had purchased the land and not the equity of redeeming, though with notice of the mortgage he might have set up the usury. Kemp was not permitted to set up usury in the riiortgage, for the reason that he had no title to the land.

In 7 Hill, 406, (on appeal from 8 Paige, Ch. R., 640,) the question discussed is whether a purchaser at a Sheriff’s sale, under an execution, is a “ borrower,'” within the meaning of the statute, áhd it is held he is not.

Samds v. Churrch, (2 Seld., 447,) affirmed the judgment below, on the ground that the appellants could riot, on the facts presented in that case, avail themselves of the defense relied upon, and it appeared that the defendant (appellant) purchased subject to the mortgage. He was, therefore, the owner of the equity of redemption only. (Belmont v. Goman, 22 N. Y. R., 438.) De Wolf v. Johnson, (10 Wheaton, 393,) presents the case of a third person, the assignee of an equity of redemption, setting up the defense. The learned Judge at Special Term erred in excluding the defense interposed by Mrs. Dempsey, it being admitted upon the trial that she was the owner of the premises; she had title, and could set up the usury. •

The judgment ■ should be reversed and a new trial ordered, with costs to abide the event. Judgment reversed.


author: By the Court—Bosworth, Ch. J.

text:
    James Scott, Plaintiff and Respondent, v. Christian Lilienthal, Defendant and Appellant.
    1. In an action to recover compensation for services, alleged in the complaint to have been performed, upon a promise to pay therefor at an agreed rate of compensation, if the proof is that they were performed on a promise to ' pay what they were reasonably worth, the variance is immaterial, and the . defendant not being misled thereby, the Court may allow an-immediate amendment, without costs.
    2. The testimony of a witness, that he is somewhat familiar with bookkeeping and accounting, and showing a somewhat intimate familiarity with, the bookkeeper’s services which are the subject of the action, establishes his "competency to testify to the value of those services.
    3. It is error to permit a witness who knows- nothing of the services in question, except as instructed by the evidence he has heard at the trial, to . testify what, upon the evidence, the services are worth. .. ’ « .
    4. Where, on reqúest of defendant’s counsel, the Court directed that all the evidence of certain witnesses relating to the value of services (and which evidence consisted of their opinions based on.the testimony they ' had heard at the trial) should be subject to exceptions taken in the exami- ■ nation of preceding witnesses; but the exceptions thus referred to related solely to proof of the .“ ability of the pontiff, as a bookkeeper,” or to the objection that such witnesses did not possess the special knowledge essential to make their opinion admissible as evidence; Held that this vs as not equivalent to a specific objection that such-latter witnesses did not know what were the particular services, of the value of which they were permitted to express an -opinion; but it might be considered in deciding whether the exceptant should be allowed a new trial on terms.
    $. Where it appeared that a verdict was rendered upon incompetent evidence necessarily calculated to affect the result, that there was much reason to suppose injustice had been done; and the defendant, though personally liable, was acting in a representative capacity, — Held, that although there was no suEcient exception to the incompetent evidence, a new trial should lie granted on terms, unless plaintiff would stipulate to reduce the verdict
    (Before Bosworth, Ch J., and Moncrief and Robertson, JJ)
    Heard, February 13, 1862;
    decided, March 15, 1862.
    This action was brought to recover for services which the plaintiff had rendered to the defendant, the executor, &e., of James Pollock as bookkeeper and accountant in the business of the testator’s estate. The complaint alleged that the defendant, upon employing the plaintiff, agreed to pay Mm at the rate -of one thousand dollars per ’ annum, so long as the employment should continue. Before the trial, the plaintiff’s attorney gave written notice to the defendant’s attorney, that if, on the trial, he encountered any serious difficulty in proving a contract, fixing the rate of plaintiff’s.compensation, he-should offer -evidence to prove the value of the services rendered.
    "Upon the trial, the plaintiff moved to amend his complaint in this respect, to which the defendant’s counsel -objected, on the ground that a failure to prove the special contract was not a variance, but a failure of proof; and that this was not a case for the exercise ,of the power of amendment during trial.
    The Court decided that the plaintiff should be permitted to amend Ms complaint, by adding a general allegation of the value of the services, and to give evidence of the value; to which the defendant’s counsel duly excepted.
    The portions of the testimony, material to an understanding of the Questions determined, appear in the opinion of the Court.

      William, Fullerton, for defendant, (appellant.)
    I. The distinct denial in the answer of the special contract set up in the complaint, made it necessary for the plaintiff either to withdraw or prove his allegation; and having failed to do' either, it is not a case of variance, but a failure of proof, and cannot be cured by amendment.
    .' II. The amendment made at the trial cannot be sustained under § 167 of the Code.
    - The allegation added was not material to the ease, because, where there is a special contract, value of the services need not be alleged.
    Nor was it necessary to conform the complaint , to the facts proved, because the, only evidence in, at the time it was made, tended to sustain the complaint, and the original allegation was hot changed.
    No other subdivisions of the section are applicable.
    III. If the complaint had been originally framed as it now stands, the plaintiff, on motion, would have been required to elect whether he. should proceed on the special contract or on a quantum, meruit. It is error to permit an amendment which has this effect.
    IV., The whole of the testimony as to value of services should be stricken out, because it was not shown that the witnesses were acquainted with the usual compensation for such services, or in other words, the market value.
    V. The verdict is against evidence.
    VI. The damages are excessive.

      Samuel J. Glassey, for plaintiff, (respondent.)
    . I. It is the duty of the Court to allow an amendment, unless it. changes the nature' of the action, and the original cause of action is left unproved in its whole scope and meaning. (Code, 169,170,171.)
    The amendment made in this case, did not in any respect change the nature of the action.
    It did not surprise, mislead or prejudice the defendant.
    The power of amending was properly exercised by the Court. (See Catlin v. Gunter, 10 How., 315, and 1 Kernan, 368; Hawkins v. Appleby, 2 Sandf. S. C. R., 422; Fort v. Gooding, 9 Barb., 371; Carter v. Hope, 10 Barb., 180; Fay v. Grimsteed, 10 Barb., 321; Daunchy v. Tyler, 15 How., 399; Miller v. Garling, 12 How., 203.)
    It is in the discretion of the Court to grant or refuse an amendment, and its decision is not subject to review on appeal.' (N. Y. Marbled Iron Works v. Smith, 4 Duer, 362.)
    II. The ruling of the Court, allowing the witness, Robert M. Brown, to state what he considered the plaintiff’s services to be worth, was correct. Opinions of witnesses are admissible and competent to prove the value of the services rendered or of things, provided the witnesses have a professional knowledge of the business to which the services relate, or a personal knowledge of the particular services or the particular thing in question. (See Brill v. Flagler, 23 Wend., 354; Lamoure v. Caryl, 4 Denio, 370; Bearss v. Copley, 10 N. Y. R., 93; Pullman v. Corning, 9 N. Y. R., 93.)
    IH. The verdict is fully sustained by the evidence.
   By the Court—Bosworth, Ch. J.

This is an appeal by the defendant from an order denying a motion made by him for a new trial, and also from the judgment.

The exception to the decision allowing the complaint to be amended, is untenable. The fact that the defendant employed the plaintiff is admitted by the answer. The questions, how- long the plaintiff was in the employment of the defendant, and whether he was employed at an agreed rate of compensation, were put at issue by the pleadings. The defendant averred in his answer that he never “ made any agreement whatever in respect to compensation, except that implied by law.” If he did not, the plaintiff was entitled to recover such sum as his services were reasonably worth. The amendment allowed consists of an .allegation that they “ were reasonably worth the sum of $2,388.87, and the defendant ought to pay such sum therefor.”

The variance between'an allegation of an agreed price, and proof of a promise to pay what the services were reasonably worth, is immaterial under section 169 of the Code; the defendant not alleging that he is misled thereby to his prejudice in maintaining his defense upon the merits. By § 170, the Court was authorized to order an immediate amendment without costs.

The exception to the decision allowing R. M. Brown to state what, in his judgment, the plaintiff’s services were worth is not well taken. The evidence was- objected to, “ on the ground that the qualification of the witness to testify on the point has not been shown.” The witness had testified thus : “I am somewhat familiar with bookkeeping and accounting; I understand bookkeeping tolerably well.” He had also testified to a somewhat intimate knowledge of what the plaintiff had done. This evidence established his competency to testify. The value of his opinion was a question for the Jury. If it be admitted that his subsequent testimony tends to show him less qualified to testify on the point, than his direct testimony, still the accuracy of the decision is not thereby affected. That is to be tested by considering the testimony that had been given at the time the decision was made, and not by testimony given subsequently.

Testimony was given by A- B. Stewart, GL M. Seymour and David Rait, which I consider clearly incompetent. Whether the case shows that an objection and exception were taken to its admission, and if not, whether a new trial should be granted on terms, will be considered. -Stewart, in his testimony as to the value of the plaintiff’s ■services, says: “I have heard the testimony as to these services, * * should think the work worth all the plaintiff claims, * * I have not looked at the books, I speak from the evidence I have heard here." A witness, in thus testifying, is drawing inferences and conclusions which fall within the exclusive province of a Jury, and such evidence is clearly incompetent. (Clark v. Baird, 5 Seld., 183, and cases there cited; Page v. Hazard, 5 Hill, 603; Lamoure v. Caryl, 4 Denio, 370; Harris v. The Panama R. R. Co., 3 Bosw., 7.) A witness, in order to be ‘permitted to give Ms opinion of the value of any subject, as an item of evidence, must be personally acquainted with it, and possess a knowledge in respect to the value of it, which it cannot be presumed is possessed by people generally; or if, though possessing that knowledge, he is not personally acquainted with the subject, the particulars of it, which, it is assumed, a Jury may, upon the evidence, find to exist, must be stated by way of hypothesis, and the opinion be confined to the hypothetical case stated. Where, as in this case, the value of the plaintiff’s services is to be determined, and that value depends upon the time occupied and the amount of labor performed, and any question arises upon the evidence, in regard to the extent of the services, it is for the Jury alone to determine what was done. By permitting a witness, who knows nothing of the services, except as instructed by the evidence, to testify what, upon the evidence, the services are worth, it is left to Mm first to determine questions of fact, and then give an opinion based upon the facts as he may have determined them. And a Jury, in following his opinion of value, may give a verdict for services, which, in their view of the evidence, have not been performed.

G. M. Seymour and David Rait, severally gave testimony as to the value of the plaintiff’s services, based upon “ the testimony as to the work done by Mr. Scott.”

To determine whether this evidence must be deemed to have been admitted against the objection and exception of the defendant, it is necessary to recur to the testimony of George Miln and other witnesses, and to the exceptions taken on their examination. Miln stated that the plaintiff had “served him as a bookkeeper four or five years.”

He was then asked this question, viz.: “ Do you know, “ and if so, state his ability as a bookkeeper ? The defend- “ ant’s counsel objects to the evidence as incompetent and “ irrelevant. The objection is overruled, and the defend- “ ant’s counsel excepts.” The answer of the witness is given, and the case then states that “the defendant’s coun“sel here asked the Court to consider all the evidence, “relating to this branch of the case, as subject to the" “ exceptions taken in the examination of the preceding wifc- ■“ nesses, and the Court so ordered.” Then follows the testimony of Stewart, Seymour and Rait. The exception taken in the testimony of Miln, was to evidence of the plaintiff’s “ ability as a bookkeeper.” That taken in the testimony of Brown, was that he had not been proved to possess the qualification essential to entitle him to testify “ on the point,” “ what were the services of Mr. Scott, (the plaintiff,) worth.” In the testimony of the plaintiff, objection was made to any evidence as to what his services were worth, “on the ground that-the plaintiff was held to the special contract set up in the complaint.”

neither Stewart, Seymour, nor Rait, was asked if he knew . the ability of the plaintiff as a bookkeeper. They were examined as to the value of his services. The only exceptions taken in the testimony of other witnesses, which can have any application to theirs, relate to proof of the fact of the value of his services, unless indeed they relate to the qualification of these persons to speak to the question of value. But they severally testified that they understood the business of bookkeeping, and had acted in that capacity.

I think, therefore, that the agreement between defendant’s counsel and the Court cannot operate with like effect as a specific objection to the testimony now under consideration, and a decision of the Judge admitting it, and an exception, by the defendant to the decision.

But perhaps it should not be overlooked, in deciding the question, whether the defendant should have a new trial, on terms. He may, perhaps, be regarded as having done what, at the time, was considered sufficient to enable him to get relief, if improper testimony .was received on the question of the value of the plaintiff’s services...

The plaintiff and Mr. Brown (excluding the testimony of Stewart, Seymour and Rait) are the only witnesses on behalf of the plaintiff who. speak to the value of his services, except S. B. White, who testifies that “Mr. Scott is a very competent bookkeeper, and receives $1,000 a year.”

The Jury have allowed him at-the rate of $1,000 a year from the 11th of December, 1857, to May 1,1860. In his verified complaint he states an agreement to pay him at and after the rate of $1,000 per annum. It is clear that from the 1st of -February, 1859, to the 1st of May, 1860, he had regular and fixed occupation: first, as Secretary of the N. Y. & Tennessee Zinc Company; and next, as bookkeeper and discount clerk in the Grocers’ Bank. From the 19th of June, 1859, to the 1st of May, 1860, he was in the Grocers’ Bank from 9| a. m. to between 3 and 4 p. m., and received $1,000 a year. In the Zinc Company he was occupied about an equal part of his time. He did, during this latter period, relatively but little for the defendant, as compared with his services prior to February 1,-1859.

The testimony of the plaintiff and Brown, if - unaided by that of Stewart, Seymour and Bait, in connection with that given by the defendant, James Pollock, Jr., McKay, J. I). Douglas and E. Jj. H. Gardiner, might have resulted in a verdict for a less amount than was given. The testimony of Stewart, Seymour and Bait, if received, and regarded by the Jury as competent to influence their conclusions, was calculated to affect the amount of the verdict. The Court not only cannot say that it did not, but must believe that it did. • The Court is not able to see that substantial justice has clearly been done. According to the evidence, the plaintiff gave but little time to the defendant’s business after the 1st of February, 1859. He may have given all that it required, but that is no reason why he should be paid more than his services, during that period, are worth. Taking his own testimony to be accurate, that he told the defendant at the time of being employed that “this work would be worth * * at the rate of $1,000 a year,” it is clear that up to February 1, 1859, he did not expect more, and must have-considered that the defendant did not expect to pay more. Subsequent to that time, I think it quite clear that his compensation should be less.

I think, therefore, that it is a case, in which a verdict has been rendered upon incompetent evidence necessarily-calculated to affect the result j that there is much reason to suppose injustice has been done, and that the defendant, though personally liable to the plaintiff, is acting in a representative capacity, and that a new trial should be granted on the terms of paying the costs of the trial and all subsequent costs, except the costs of the appeal, and that they should be costs in the cause and abide the event; unless the plaintiff stipulates within ten days to remit from the judgment the sum of $34r¡>o, an error in the computation, and the further sum of $375, and interest thereon from May 1,1860, in which event the judgment should be affirmed for the residue. Each party to bear his own costs of the appeal.

The other Judges concurring, it is ordered accordingly.


author: Moncrief, J.

text:
    Benjamin Poultney, Guardian of Maria Poultney, &c., Plaintiff, v. John Randall, Defendant.
    1. An agreement between the guardian of an infant and the person becoming X surety in his official bond, that the latter shall hol'd the property of which
    the guardian is custodian, for Ms own indemnity is void, because subversive of the objects of the appointment and security, and contrary to public policy. The guardian cannot pledge the property of Ms ward as security to his own surety.
    2. Hence it is no defense, in an action by the guardian, against one who has collected moneys of the estate and refuses to pay them over, to show that the defendant became the guardian’s surety upon such an agreement, and that the guardian is insolvent, and to offer to pay the money into Court.
    (Before Bosworth, Ch. J., and Moncrief and Robertson, J. J.)
    Submitted, February 13, 1862;
    decided, March 15, 1862.
    This is an action by the plaintiff as the general guardian of an infant and her estate, to recover moneys admitted by the defendant to have been collected by him, to the us© of the plaintiff as such guardian. The defendant, admitting the sum of $1,132.47 to be in his hands, belonging to said infant, set up in his answer, and claims by way of defense, that he became surety for such guardian upon condition that he, this defendant, should receive and collect the rents and income belonging to the infant, so that the defendant might hold himself safe and harmless in case of the default of the guardian to fulfill the condition of his bond. That the guardian executed a power of attorney to the defendant to collect, &c. That said guardian is insolvent, and if the defendant is compelled to pay over the moneys he has collected, the guardian could not pay the said bond, and that such payment would fall wholly upon the defendant.
    Upon the trial, which was before Mr. Justice White and a Jury, on November 22d, 1861, the plaintiff having proven his appointment by the Supreme Court, as general guardian, &c., rested his case; the defendant thereupon offered to prove the several matters alleged in his answer; the counsel for the plaintiff objected to the evidence, and it was excluded and the defendant duly excepted. The Judge thereupon directed the Jury to find a verdict for the plaintiff, for the sum of $1,196.93, which was accordingly found; and directed the exceptions to be heard in the first instance at the General Term of this Court, and judgment to be stayed until the decision of the General Term.

      Alexander W. Bradford, for defendant, submitted the following points:
    I. The distinction between legal and equitable remedies no longer continues. (Voorhies’ Code, 217, § 150.)
    II. Consequently the answer may set up new matter of an equitable nature constituting a defense to the action. (Code, 214, § 149, notes e, /.)
    III. The plaintiff became general guardian under an agreement with his sureties for their indemnity, and for the security of the fund. He now seeks to repudiate the agreement, and, by action at law, obtain possession of the fund. This breach of contract should not be made the basis of pecuniary injury to the defendant, unless there be some insuperable barrier to granting relief.
    IV. If, as general guardian, the plaintiff can bring an action in any Court, in respect to the proceeds of the sale of real estate, under special proceedings, then the defendant can avail himself of his equitable defense before the tribunal so selected.
    V. Though the action is instituted by the plaintiff, as general guardian, yet it is not brought for the property of the ward, but for money collected by the defendant, and mixed with his funds. It was not necessary, therefore, for the plaintiff to declare in his representative character. (1 Chitty’s Plead., 23.)
    VI. As soon as the surety’s obligation to pay is absolute, he is entitled in equity to require the debtor to exonerate him, and he may file a bill to compel an exoneration, although the creditor has not demanded payment, of him. (Theobald, Principal and Surety, 169.) A surety, generally speaking, may come into a Court of Equity and apply, for the purpose of compelling the principal debtor, for whom he is surety, to pay in the money and deliver him from his obligation. (Nisbet v. Smith, 2 Bro. C. C., 579.)
    VII. In this case the principal is endeavoring to deprive the surety of the counter-security, on the faith of which he became surety. His insolvency alone would justify equitable relief on an original bill by the surety. Certainly the Court cannot .place this fund in his hands when apprised by the answer of its unsafety.
    VIII. If it be said that the defendant cannot avail himself of the defense in this Court, then the plaintiff cannot bring his aetion in this Court.
    This objection is, of course, based on the idea that the subject of the action is the proceeds of a fund derived from the sale of real estate by order of the Supreme Court.
    If the minor is to be considered as a ward of the Supreme Court, that Court has sole and exclusive jurisdiction over the defendant, who was the “ person intrusted with the disposition of the income, &c.” And, if not a ward of that Court, then there is no bar to giving the proper equitable relief in this Court.
    » In the former case, the complaint should have been dismissed; in the latter, the judgment should have been for the defendant, on payment of the money into Court.

      Charles H. Sunt, for plaintiff,.submitted the following points:
    I. The alleged agreement is not inter partes. The trust estate is not. bound by the strictly personal undertakings of the trustee, whether entered into before or after his appointment.
    II. The agreement set up by the defendant is illegal and void. 1. It was an agreement to do what the law will not permit to be done, namely, the private abdication of the office of trustee. (Hill on Trus., 266; 1 Pars, on Cont., 116.*) 2. It was immoral; an agreement to deceive the Supreme Court, and trifle with the estate of the infant cestui que trust.

    III. The kind of relief which the defendant pretends to claim cannot be granted by this Court. As a part of the Chancery jiirisdiction, now lodged by the Constitution in the Supreme Court, the latter has judicial control over the persons and estates of infants, including the appointment and removal of guardians, and has exercised that jurisdiction here, satisfying itself in the way pointed out by law. (As to jurisdiction in. removal of trustees see 1 R. S., 730, § 70.)
    IV. Ho Court, having jurisdiction of the subject, would remove the plaintiff on the suggestion of a mere meddler, like the defendant. The application should be made on behalf of the infant, and by a person showing some kind of right to represent her. (Same statute.)
    V. Finally, no Court having the jurisdiction would exercise it, under any idea of protecting a man who says that he assisted in procuring a bad appointment by committing a fraud upon the Supreme Court.
   Moncrief, J.

An agreement between the guardian of an infant and his surety, that the surety shall hold all the property of which the guardian is the legal custodian, for his own indemnity, is subversive of the objects of the appointment, and of the purposes of requiring the guardiap to give security.

If effect be given to such an agreenient, it would be ' beyond the power of the guardian to perform his duty. He could not compel the surety to pay him the money belonging to the infant; and failing to perform his duty, the infant’s remedy would be against the surety. And that he would be compelled to seek through a substituted guardian, if the facts stated in the answer constitute a defense.

Upholding such a defense would lead to great abuse. Sureties for guardians would be persons who, as a condition of becoming sureties, would stipulate for the custody of the estate. Its proper use and safety would not depend in any degree upon the capacity or fidelity of the guardian. Whether it would be applied as the duty of the guardian required, would depend on the will of the surety, not on that of the guardian.

The guardian, if he has individual property, may pledge or mortgage it to indemnify his surety. But he may not pledge the property of his ward as security to his own surety, that he will do what the surety contracts he will do, viz., duly perform his duties as guardian.

Any agreement between the guardian and his surety, in respect to the property of the ward, which interferes with the guardian’s power to perform all the duties in respect to it, devolved upon him by his appointment, should be treated as void, upon considerations of public policy, and a fraud upon the statute requiring security for the due performance, by the guardian, of his duties as such.

It is not suggested that this Court has power to remove the guardian and should do so as a part of the relief to which the defendant is entitled in this action. If, within the knowledge of the surety, the guardian is unfit to be continued, the surety cannot keep the infant’s money and act as guardian de facto. The facts 'stated in the answer constitute no defense to the action, and judgment should be entered for the plaintiff in accordance with the verdict.

Bosworth, Ch. J., and Robertson, J., concurred in this opinion.