text:
    Tucker and others v. The Rector, Churchwardens, and Vestrymen of St. Clement’s Church, and E. N. Mead.
    The power “ to purchase and hold real estate, and to demise, lease, and improve the same for the ose of such church, congregation, or society, or other pious uses," conferred by the fourth section of the general act, “ To provide for the incorporation of religions societies,” must be restricted as to the pious uses for which lands may be held, to such uses as are comprehended within the general objects for which the society is incorporated.
    The support of a rector or minister oí a church, is such a pious use, and a deed to an incorporated church, in trust to apply the rents and profits to the maintenance and support of the rector of the church for the time being, is valid.
    The provisions in the revised statutes, relative to trusts and perpetuities, do not affect the povvers of religious corporations under the general act; or apply to conveyances made to such corporations which arc within the authority conferred upon them by that act.
    (Before Doer, Mason, and Campbell, J. J.)
    Sept. 24 ;
    Oct. 20, 1849.
    The hill in this cause was filed by the complainants as heirs at law of Ami Hamilton, who died intestate, praying a discovery by the defendants, in relation to an alleged gift claimed to have been made by her to the defendants, The Rector, &c. of St. Clement’s Church, of a lot of ground, formerly belonging to her, and known as No. 824, on Broadway, in the city of New York, and in relation to certain deeds and instruments in writing, purporting to convey the lot to the church, in fulfilment of such gift; and seeking to have those gifts and the deeds and instruments declared void as against the complainants, upon the ground that they were obtained by undue influence, and that the intent and object, or effect thereof, is, to create a trust not authorized by the laws of this state, and for a longer period than is authorized by such laws; and the bill alleged, that such deeds and instruments, and the estate supposed to be thereby created, are under the statutes and laws of the state of New York illegal and void. And it also sought to obtain a release of the lot of ground to the complainants from the defendants, unincumbered by any acts of theirs, or that the defendants should account to the plaintiffs for the value of the lot and the rents and income thereof. Mr. Mead was made defendant as the rector of the church.
    The answers of the defendants having fully denied the allegations in the bill, charging undue influence ; it was agreed by the parties, that the argument of the cause should proceed upon, and be confined to, the validity and construction of the deeds or instruments in writing, in relation to the lot of ground, which are mentioned in the pleadings, and the effect thereof, without reference to any question of undue influence, in obtaining the same, and upon the other facts herein stated.
    It was admitted by the parties, that the deed made by Ann Hamilton to Francis Many, and the lease made by Francis Many to Ann Hamilton, and the deed made by Francis Many to The Tector, <&c., of St. Clement’s Church, all bearing date December 6, 1843, and recorded together, (at the same time with the deed from John N. Taylor and his wife to Ann Hamilton,) were all executed and delivered at the same time, and for the sole purpose of conveying the lot of ground from Ann Hamilton, (then being the owner thereof,) to The Rector, &c., of St. Clement’s Church, as a gift, upon the terms and for the purposes expressed in the deeds or instruments; and that no part of the money consideration mentioned therein veas paid, or agreed to be paid, for either of the deeds or instruments, or for such gift, and that Ann Hamilton always continued in the actual possession of the lot of ground under the above mentioned lease until her death, without paying any rent therefor to Francis Many; and that the plaintiffs were her heirs at law; that she died intestate ; and that St. Clement’s Church had no other right or title to the lot except that derived from such deeds and instruments.
    It appeared that St. Clement’s Church was incorporated under the act for the incorporation of religious societies, on the 26th day of July, and the certificate of incorporation was recorded July 28th, 1830.
    The deeds, &c., given in evidence were as follows :■—
    A deed in fee from Ann Hamilton to L. P. Bayard and J. A. Taylor, as joint tenants, dated April 22, 1840 ; and a lease from them to Aim Hamilton for life, of the same date, reserving a nominal rent.
    A release and quit-claim in fee by John N. Taylor, survivor of Lewis !’. Bayard, deceased, and Ann, his wife, to Ann Hamilton, dated November 13,1843, reciting the conveyance of the above mentioned lot, made by Ann Hamilton to Taylor and Bayard, and that the same was intended to be for the use of a society then expected to be incorporated; that the society had not been formed, and the undertaking had been abandoned, and that Bayard had died since the making of the conveyance to them; and it then releases the lot to Ann Hamilton at her request.
    A deed of bargain and sale, executed by Ann Hamilton to Francis Many, dated December 6, 1843, acknowledged and recorded the same day.
    A lease by Francis Many to Ann Hamilton, during her natural life, dated December 6,1843, acknowledged and recorded at the same time with the last mentioned deed to him.
    A deed of conveyance by Francis Many to The Rector, Church Wardens, and Vestrymen of St. Clement’s Church, dated December 6,1843, and acknowledged and recorded in the same book and at the same time with the last mentioned deed and lease, the habendum clause of which conveyance is as follows: “To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said parties of the second part, and their successors and assigns for ever, upon condition, that the rents, issues, and profits of the premises hereby granted and conveyed, and in case the same shall be sold, the interest, income, or dividends of the money for which the same shall be sold, shall be applied, bv the said parties of the second part, to the maintenance and support of the rector or minister, for the time being, of the said church, and for no other purpose whatsoever.”
    An agreement between The Rector, &c. of St. Clement’s Church and Ann Hamilton, dated .December 15, 1843, not acknowledged, proved or recorded, reciting that Ann Hamilton was seized of and entitled during the term of her natural life to the lot of ground in question, and that St. Clement’s Church were seized of the reversion expectant upon the termination of her estate for life in the premises, and that she might thereafter desire to have the premises sold, and receive during her natural life the interest, income, or dividends of the money for which the same might be sold, instead of the rents, issues, and profits of the premises; and St. Clement’s Church thereby agreed with her, that they would unite with her, at her request, in making a good and valid conveyance, in fee simple, of the premises, to any person or persons who may desire to purchase the same, provided the premises should he sold for a full and fair price, and the whole of such price should be securely invested on mortgage of improved real estate in the city of New York, in such manner that The Rector, &c. of St. Clement’s Church should, at her death, become entitled to the principal of the money so to be invested.
    The cause was transferred from the supreme court to this court under the act of 1849.

      W. Lowerre, for the plaintiffs,
    made and argued the following points:
    I. Aim Hamilton was the owner in fee of the lot of land in question prior to the making of the deed to Francis Many, and the plaintiffs, as her heirs at law, upon her subsequent decease, intestate, became entitled to and owners of the lot, unless the gift supposed to have been made by her to St. Clement’s Church, and the instruments executed for effecting such gift, were valid and effectual to pass the title. The church claims no title except tinder those instruments.
    II. Under the act to provide for the incorporation of religious societies, St. Clement’s Church is incorporated and empowered to hold real and personal property to a limited amount of income; hut this simply constitutes the church a person, (or body corporate,) with capacity to hold real estate. Within the prescribed limits, the church is placed on the same footing with individuals, and all conveyances to the church must be governed by the same laws, and are subject to the same restrictions as conveyances to natural persons. (2 Id. L. of 1813, eh. 60, p. 213; not revised in 1(S30.)
    III. Where several instruments relating to the slime subject matter are made at the same time, they must be taken and considered as one instrument, and construed together. {Jackson r. McKinney, 3 Wend. 236; Hayes v, Kershaw, 1 Sand. Ch. Ji. 26-3.)
    IV. Every instrument must be construed according to the intent of the parties; and in the construction of an instrument creating or conveying any estate, it is the duty of the court to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is not inconsistent with the rules of law. (1 R. S. 748, title 5, § 2.)
    V. A trust is where the legal title to property is vested in one person, and the right to receive the rents and profits belongs to another. And no particular set of words or form of expression is necessary for creating a trust. (4 Kent’s Com. 2d ed. 304-5 ; Fisher v. Fields, 10 J. Id. 495; Sanders on Uses, 215-16 ; Steam v. Steeve, 5 J. Ch. R. 1.)
    ■ VI. By the revised statutes of 1830, uses and trusts, except as therein authorized and modified, are abolished. (1 R. S, 727, § 45 & 55.) And every future estate in lands is declared void in its creation, which shall, by any limitation or condition whatever, suspend the absolute power of alienation for a longer period than during the continuance of two lives in being at the creation of the trust. (1 K. S. 723, §14 & 15.)
    It is also enacted, that the absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the date of the instrument containing the limitation or condition, or in case of a will, two lives in being at the death of the testator. (1 R. S. 773, title 4, § 1.) All deeds and instruments, made in contravention of these statutory provisions, are void. {Coster v. lorillard, 14 Wendell 265; Hawley v. James, 16 Wendell 61; Hone’s Hx’rs v. Van Sehaich 20 Wendell 564 ; Home v. Gott, 24 Wendell 641.)
    YII. The interest of Ann Hamilton, Francis Many, and St. Clement's Church, was, by the instruments in evidence, dated 6th December, 1843, (which must be construed together,) conveyed, and the effect of those instruments, (if valid.) is to convey the lot of land in question to the church in fee; in trust to hold the same, or the proceeds thereof, for ever, and to apply the rents or income to the maintenance and support of the rector or minister, for the trine being, of the church. This is an attempt to create an estate and trust not allowed by law, and the instruments in question are consequently void.
    y*IIL This is not the case of an absolute conveyance of lands to St. Clement’s Church, subject to a condition subsequent, which being illegal, may be declared void, leaving the property in the absolute ownership and possession of the church, discharged of the condition. The intent of the donor, (which must govern,) was not to give the property for the benefit, in any event,, of St. Clement’s Church, but, to vest the legal title only in the church, for the use of the rector or minister, for the time being. This is a trust which is sufficiently expressed, and being contrary to law, the instrument by which it is attempted to be created is void.
    IX. The plaintiffs, as heirs of Ann Hamilton, have inherited and are entitled to the premises in question, and to have the alleged gift to St. Clement’s Church declared void, and the premises released to tliem, so as to remove the cloud which now rests upon their title.

      Murray Hoffman, for the defendants.
    I.The trust created by the various instruments would have been before the revised statutes a perfectly valid trust, with a trustee competent to fate, and a cestui-qui trust clearly designated.
    1. A corporate body may be a trustee. (Attorney Gen. v. Whorewood, 1 Yesey Sen. 586; Green v. Ihitherfurth, Ibid. 462; Hummer v. Corporation of Chippenham, 14 Yesey 251; In the matter of Howe, 1 Paige 214.)
    2. The cestui-qui Gust was designated, viz. the minister, for the time being, of St Clement’s Church.
    3. Such a conveyance for such a trust would have been valid prior to 1830. {Montraple v. Martin, Croke Eliz. 288; the Mortmain Acts, Shelford on Mortmain; Statute of Edward 6, concerning Charities, cited 1 Hoffman Oh. Eep. 249, and cases Ibid. 254; Lyon awl Wife v. Herne, Ed. 6, cited Ibid, page 255 ; Vidal v. Girard's E-x. 2 Howard IT. S. Eep. 190.)
    II. The statute of trusts of the revised statutes of 1830, made no change in this law. It does not apply to trusts for a religious or charitable nature. (The State a. Gerard, 2 North Cari Eep 210; The State v. McGowan, Ibid. 9; Griffin v. Graham, 1 Hawks, 96; Shotwell v. Mott, 2 Sand. Oh. Eep. 54.)
   Duer, J.

We shall not <leci.de, in this case, the important questions that were so learnedly discussed upon the hearing, namely, whether the English doctrine relative to pious and charitable uses was in force in this state, as a part of its common law, prior to the adoption of the revised statutes; and if so, whether the doctrine has not been wholly abrogated by the new statutory provisions in relation to trusts and perpetuities. In giving our judgment in another cause, which has been heard by us during the present term, it will probably be necessary to state our deliberate views in relation to these grave and difficult questions : but the grounds upon which we shall rest our decision, in the present case, render it unnecessary now to consider them.

When the powers of a corporation are not defined and restricted by its charter, or by any general law, its capacity to take, hold, and dispose of real estate is precisely the same as that of a natural person, and that such a corporation may hold lands, as a trustee, can no longer be considered a doubtful question. But when the purposes for which a corporation may take and bold real estate are expressed and enumerated in its charter, the maxim, “ expressio un-ius est exclusio altering,” is invariably applied, and the enumeration is construed as a prohibition of all that it does not embrace. Such a corporation can hold lands for the purposes specified, and none other, and hence every question that can arise as to its legal capacity must be determined solely by a reference to the words of its charter. This principle of construction was adopted by our supreme court, in the early case of Jackson v. Hartwell, 18 John. 422, has since been followed in cases too numerous to be quoted, and is now placed beyond the reach of judicial discretion by an express provision in the revised statutes. (1 R. S. 602, § 1 and 4.)

The rector, wardens, and vestry of St. Clement’s Church are a religious society, incorporated under the general act providing for the incorporation of religious societies, (Laws of 1813, ch. 60; 3 R. S., 1st ed. page 292;) and the provisions of that act, so far as they are applicable to societies of the same denomination, that is, Protestant Episcopal Churches, constitute its charter. The provisions in the fourth section of the act are general, and apply to every religious society, incorporated under the law, and they confer upon each the power “ to purchase and hold real estate, and to demise, lease, and improve the same for the use of such church, congregation, or society, or other pious uses We do not doubt that the words “ for the use of such church or other pious uses,” are to be read in connexion with each of the preceding members of the sentence, and it is equally clear that they must be understood in the same sense as applied to each. Consequently, every religious society may take lands by purchase to the same uses, for which, when no special use is expressed in the conveyance, it may demise or lease them, but it also follows that it is to such uses that its capacity to hold lands in trust must be restricted. The general words, “ pious uses,” are not to be understood in their broadest sense, so as to authorize a religions society to hold lands to any use, however foreign to the purposes of its incorporation, that religion and charity may sanction. When lands are conveyed to such a corporation, without restriction, it may dedicate them, by virtue of its power of demising and leasing, to any specific use comprehended in the general objects of its incorporation ; but should its trustees apply the rents and profits, by the terms of the lease, to any use or purpose foreign to the objects of the society, and from which its members, as such, would derive no benefit, they would abuse their power and violate their trust, and a court of equity would undoubtedly grant relief by avoiding their act. Hence the power of the corporation to hold lands by purchase, as a trustee, must be subject to the same limitation. The use, specified in the conveyance, must be one of the purposes for which the society was incorporated, and to which its trustees, in the exercise of their discretion, might lawfully apply the property, if generally conveyed. It is a further proof that the words “ pious uses” were meant by the legislature to be understood in the restricted sense, that all the lands conveyed to a religious corporation, whether for the use generally of the society, or for some other pious use, are considered as a part of its whole estate, of which the income cannot exceed a limited amount; but, had the legislature intended that such a corporation might hold lands in trust for purposes entirely foreign to the objects of the society, as the land so held could not justly be considered as a part of its estate, it is reasonable to believe that the rents and profits would have been excepted from the limitation of its income.

Understanding, however, the words of the statute in the limited sense that we adopt, they still leave no room for questioning the validity of the conveyance, which has given rise to the present controversy, whether that conveyance be considered as the act of the original owner, Mrs. Hamilton, or of her immediate grantee, Francis Many. The use or trust expressed in the deed is the application of the rents and profits of the land conveyed to the maintenance and support of the rector or the minister, for the time being, of St. Clement’s Church, a purpose to which, had none been expressed in the deed, the same rents and profits might lawfully have been applied by the trustees of the church. The support of its minister, is a duty that devolves upon every religious society, and to afford him that support, may justly be regarded as one of the objects of its incorporation. It is, therefore, a pious use, within the meaning of the statute.

The only question that remains to be considered is, whether the power of a religious corporation to hold lands, upon a trust of this description, has been taken away by the revised statutes, and we have no difficulty in saying that, in our judgment, the trust is just as valid as if the new provisions in the revised statutes, which are relied upon by the plaintiffs’ counsel, had never been adopted. We cannot believe that these provisions were designed to change or affect the powers of religious corporations ; for, should they be thus construed, no grant of lands made to religious corporations, since the revised statutes have been in force, can be valid. Every such conveyance creates a perpetuity, and necessarily implies a trust, although none may be expressed, and hence those to whom the care and management of the temporalities of a religious corporation are entrusted, are, with strict propriety, denominated its trustees. The trust, however, upon which they hold its property, it is certain, cannot bo referred to any class of those cases which alone are authorized by the revised statutes. The general repealing act, which was adopted by the legislature at the close of the revision, enumerates all the acts and parts of acts that were meant to be superseded and repealed by the revised statutes. No mention of the act to provide for the incorporation of religious societies is there to be found ; and we are satisfied that there -would have been no such omission, had the repeal'of that act, or of any of its provisions, been intended. It is an historical fact, that a revision of the act was reported by the revisers, and was not adopted by the legislature, from the conviction that it was expedient, for many reasons, to retain the law exactly in its present, form. So far, therefore, from being repealed, it was virtually reenacted.

Hence we rest in the conclusion that, under the existing law, real estate may be granted to any religions corporation, in trust, for any specific use or purpose comprehended in the general objects of its incorporation. It is a necessary consequence that the bill of the heirs at law, the plaintiffs in this suit, must be dismissed with costs.


source: Caselaw Access Project

author: Sandford, J.

license: Public Domain

text:
    Rudderow and others v. Huntington and others.
    Where goods were sold by an auctioneer, without any warranty or misrepresentation, and the same turned out to he spurious, and the labels upon them counterfeit; held, that it was no defence to an action upon a note given for the purchase price ; there being no proof that the auctioneer knew the fact of the spurious nature of the goods, or that he had any better means of judging of their genuineness than the buyers possessed.
    The statute of 1845, making it a penal offence to vend merchandise, having thereon forged or counterfeited trade marks, knowing them to be such, &e.? without disclosing the fact to the purchaser, would prevent the vendor from recovering the price of the goods sold, if he were aware of their spuriousness.
    But it must appear, that the vendor kneio the marks to be forged or counterfeited, or that there was a warranty of the genuineness of the goods, or some misrepresentation on his part, to prevent a recovery.
    The original fraud in the counterfeiting of trade marks, does not attach itself to the goods in the hands of an owner ignorant of the offence, and fasten upon him the penalties of a wrong of which he is innocent.
    (Before Oakley, Cii, J., and Vanderfoel and Sandford, J J.)
    Sept. 18, 20;
    Oct. 20, 1849.
    Tins was an action against the defendant Law as the maker, and the other defendants as the indorsers of a promissory note of $176.
    The answer admitted the making and indorsement of the note, its non-payment at maturity, and notice to the indorsers. It set up as a defence, that the same was giren upon a purchase by the defendant Law, from the plaintiffs, of sixteen boxes of what was supposed to be Thompson’s Eye Water, which with the labels, trade marks, and signatures, turned out to be spurious and counterfeit, and that on the discovery of the spurious character of the article, and within three days of its purchase, tlie defendant Law had tendered the same to the plaintiffs, and demanded the note in suit, to be given up, which was refused. The reply denied all knowledge as to the spurious character of the eye water; and alleged, that the same was consigned to the plaintiffs in clue course of trade, and sold by them without any warranty or representation as to its character. That the plaintiffs were auctioneers, and as such sold articles to purchasers at the risk of the latter. And that, according to the rules of sale which were posted up in their salesroom, no allowance was to be made for any deficiencies, Ac., Ac., unless application was made the day after the sale.
    At the trial in June, 1849, it appeared in evidence on the part of the defendants, that an advertisement was published in the Journal of Commerce, of a sale by the plaintiffs of “ 16 boxes of Thompson’s Eye Water.” That the defendant Law thereupon employed a person to attend the sale, with directions to purchase, and the same was bid off by him at $178. That three days after the sale, the article was discovered to be a spurious article, and that the labels and directions which came upon the bottles were counterfeited. The genuine “ Thompson’s Eye Water ” was manufactured by a person who had purchased the secret from the original inventor at a large price, and the article was known by the labels used by the manufacturer. That the labels, upon the article sold by the plaintiffs, bore a strong resemblance to the labels used upon the genuine article. That immediately oil the discovery of the spurious character of the article purchased, the defendant Law went to the plaintiffs, and offered to deliver it back, and demanded the note which liad been given on the purchase.
    It appeared in evidence on the part of the plaintiffs, that, at the time of sale, Mr. Rudderow, the auctioneer, was asked whether tire article was genuine, and he replied, “ You know more about it than we do.” A druggist, who was present, also testified that he did not suppose it to be a genuine article from its appearance, and from what ivas remarked among the bidders, and also from the low price at which it sold, being $1,84 a gross, while the genuine was worth from six to eight dollars. It also appeared that the defendant Law, previous to his offer to deliver back the eye water, had already disposed of a portion of it to different persons. It was proved, that, after the giving of the note by the defendants, the plaintiffs supposing the sale was regular, no objections having been made to it within the time specified, had paid to the consignors of the article in question, the amount of the sale, after deducting their charges and commission.
    A verdict was taken, and judgment rendered pro forma for the plaintiffs for the amount claimed, subject to the opinion of the court, on a case to be made and an appeal by consent.

      W. II II ILoore, for the appellants.
    1. The sale of the eyewater, with counterfeit labels, trade marks, and signatures, was illegal. (Session Laws 1845, chap. 279, p. 304 ; Coats v. Holbrook, 2 Sand. Oh, R. 586 ; Taylor v. Carpenter, 11 Paige 292 ; 2 Steph. Comm. 114, 250.)
    2. The note being given in consideration of such sale, cannot be enforced. (.Hellis v. Clark, 20 Wen. 24; S. C. in Error, 4 Hill 424; 2 Kent’s Comm. 6th Ed. 466; 22 Am. Jurist, Jan. 1840; Langton v. Hughes, 1 Maulé and Sel. 593 ; Carman v. Bryce, 3 Barn, and Al. 183; Armstrong v. Toler, 11 Wheaton 258.) These were wicked in themselves, and contrary to law. Plaintiffs had no right to sell without examining; else they could sell stolen-or prohibited goods. Same principle applies to a counterfeit bill. See 22 W. 385, where the money had been paid over, yet the vendor held liable.
    3. John Rudd ero w & Co., the auctioneers, not disclosing the names of their principals, and themselves attempting to enforce the note, are to be treated in every respect as principals. {Mills v. Hunt, 20 Wend. 431; S. C. 17 Ibid. 335 ; Hoffman v. Carroño, 22 Ibid. 285.)

      A. J. Willard, for the respondents.
    I. The defendant, Law, having purchased the goods in question at a public sale, when an opportunity was offered for their inspection, he is precluded by the application of the rule, caveat
      emrptor, from affirming that the goods are worthless, or different from what he supposed himself purchasing. No fraud or misrepresentation appears to have been made ; on the contrary, all that was said and done at the sale had a tendency to put the vendee on his guard. Under such circumstances, it is no defence to an action for the purchase money, that the goods were valueless. (Welsh v. Carter, 1 Wend. 185; Johnson v. Titus, 2 Hill 606 ; Swett v. Colgate, 20 J. It. 196 ; Hart v. Wright, 17 Wend. 267; Oneida Manufacturing Co. v. Lawrence, 4 Cow. 440 ; Seims v. Wood, 2 Caines’ It. 48 ; Hyatt v. Boyle, 5 Gill & Johns. 110.) The plaintiffs have acted fairly and in good faith. There was no warranty.
    II. In the present case, however, there is no such failure of consideration as can defeat an action upon a promissory note. The defendant, Law, sold a part of the goods in question, and received the value of the same ; he cannot therefore allege a total failure of consideration.
    III. The contract of sale remains unrescinded, and must be enforced in accordance with its original terms. As the defendant had already sold a part of the property, the contract remains unrescinded.
    IV. The plaintiffs are to be regarded as bond fide holders, for a valuable consideration, without notice of any defect, of the note in question; and therefore no allegation of a failure of consideration will avail against them.
   By the Court.

Sandford, J.

There is no doubt, that the plaintiffs are to he treated as principals in this transaction ; and there is nothing in the point that they are bona fide holders of the note for value.

The defendants contend that the sale of this eye water, with counterfeit trade marks, &c., was illegal, and the note given in consideration of the sale, cannot be enforced ; and that the sale was illegal, independent of the statute of 1845.

1. As to the statute of 1845, the first section makes it a penal offence to forge or counterfeit trade marks or labels. The second section provides that every person who shall vend any merchan-clise, having thereon any forged or counterfeited trade marts or labels, knowing the same to be forged or counterfeited, without disclosing the fact to the purchaser, shall be liable to the same punishment of imprisonment as is specified in the first section, or to a fine, in the discretion of the court.

Row we have no doubt that this statute would prevent any one who has committed the offence defined in the second section, from recovering the price of goods thereby sold.

The difficulty in this case is, that the plaintiffs are not proved to have known the stamps and labels on the eye water, to be forged or counterfeited. The evidence on that point is entirely insufficient to warrant any such conclusion,

2. It is true, as the defendants allege, that before the statute, these spurious manufactures were so far unlawful, that courts of equity would restrain by injunction, their preparation and their sale. There is no decision going the length of holding that on a sale of such articles, the seller could not recover the piece because he knew the same were spurious. Whether such ought to be the rule of law, is a point foreign to this case.

Here the plaintiffs, in the usual course of trade, sold an invoice of eye water. They made no warranty; nor any representation that was untrue. So far as it appears in proof, the purchaser had as good an opportunity to judge and to ascertain whether it was genuine or spurious, as the sellers had. Surely there is nothing illegal in the transaction. The original fraud or crime in the preparation of these counterfeit trade marks, does not attach itself to the goods in the hands of owners ignorant of the offence, and fasten upon them the penalties of a wrong of which they are innocent.

If the authorities cited to us, in which parties to a sale., fraudulent as against creditors, were precluded from the aid of the courts to enforce contracts, growing out of the sale; had held also, that no subsequent owner of the property fraudulently sold, however ignorant of the wrong, could ever maintain a suit for the price on his own sale to another; they would have furnished a principle decisive of this case. We are asked to go to that extent in the application of the maxim ex turpi contractu non oritur actio; and the simple statement of the proposition, .it seems to ns, shows that it is utterly inadmissible.

The case of stolen goods is not analogous. No title passes on such a sale, however honest or remote from the transgressor.

We were also referred to the receipt of counterfeit bank notes in payment; which does not discharge the party paying them. That also is inapplicable to a sale of goods. The buyer must take care to see and know' for himself what he is purchasing. A creditor receiving in payment a forged note or spurious coin, receives nothing, and the debt remains undischarged.

The judgment at the special term must be affirmed.


author: Mason, J.

text:
    The Marine and Fire Insurance Bank of the State of Georgia v. Jauncey and others.
    The drawing of a bill of exchange upon the consignee of cotton purchased with its avails, does not operate as an equitable transfer of tire cotton to the party who discounts the bill, or give to such party an equitable Hen upon the cotton or its proceeds in the hands of the consignee and acceptor.
    A verbal understanding, at the time of discounting the bill, that it was founded on a shipment of cotton, and that the proceeds of the cotton should be applied to the payment of the bill, will not effect such an equitable transfer or lien.
    An order drawn upon a particular fund specified in the order, by which the drawer divests himself of all control over the same, is art equitable assignment of the fund ; but such an order is not a bill of exchange.
    After drawing a bill of exchange, the drawer has the same control of his funds in the hands of the drawee, as he had before : and if the same funds come to his own hands, the holder of the bill has no equitable lien upon them, (Winter v. Drury, in note at the end of the principal case.)
    (Before Doer, Mason, and Campbell, J.J.)
    Sept. 27 ;
    Oct. 20, 1849.
    This cause came before the court on pleadings and proofs, having been transferred from the supreme court. The bill was filed in the late court of chancery, in October, 1846, by the above complainants, against James W. Jauncey, Joseph Wood, and John "Wood. A demurrer to the bill was overruled at a special term of the supreme court. An answer was then put in, issue was joined, and proofs were taken. The material facts established appear in the opinion of the court.

      6. JY. Tikis, for the complainants.

      J. M. Jemp, for the defendants.
   By the Court.

Mason, J.

The bill in this cause was filed for the purpose of reaching certain funds received by the defendant, Jauneey, arising from the sale of cotton, delivered to and sold by him, under the circumstances hereinafter mentioned, on which the plaintiff claimed to have an equitable lien.

It appeared, from the pleadings and proofs, that the defendant, John Wood, having in the latter part of June, 1846, purchased at Savannah one hundred and five bales of cotton, which he intended to consign to the defendant, Joseph Wood, at Hew York, for sale; drew a bill of exchange on Joseph Wood, dated June 29, 1846, at sixty days’ sight, in favor of Thomas'J. Walsh or order, for three thousand dollars, which was discounted by the plaintiffs, and the proceeds applied by John Wood in payment for the cotton. The property was shipped and consigned to Joseph Wood shortly afterwards; John Wood accompanying it in the vessel in which it was brought. The draft was accepted on the 6th of July. Previous to this, on the 30th of June, Joseph Wood had become insolvent, and had executed an assignment of all his estate to the defendant, Jauneey, in trust for the payment of his debts. Among his assets thus transferred, was a debt due to him from John Wood, of about $2200. The cotton, upon its arrival at Hew York, was, by the consent of John Wood, placed in the hands of Jauneey, for the purpose of selling the same, and applying the proceeds in payment of the indebtedness of John to his brother Joseph. The latter also transferred the bill of lading to Jauneey. The net proceeds of the cotton received by Jauneey, amounted to $2100 and upwards, leaving a balance in the hands of Jauneey of between five and six hundred dollars beyond the amount of John’s debt to Joseph Wood.

On tlie 80t,ii of Sept. laid, tlie plaintiffs gave notice to Jaun-cey that they claimed to have an equitable lien on the cotton or its proceeds, to the extent of the amount due on the bill which they had discounted, and required him to deliver up the cotton or its proceeds to them.

The ground upon which the plaintiffs in their notice claimed this lien was, that they had discounted the bill of exchange on the faith of the consignment to Joseph Wood and that out of tlie proceeds thereof the bill would be paid : and in their bill of complaint, tliey alleged that at the time of the presentment of the bill to them for discount, it was represented to .them by John Wood, the drawer, and Thomas J. Walsh, the payee, that the bill was drawn against tlie consignment, and would be paid out of its proceeds, and that they discounted the bill on the faith of such representation. The evidence, however, does not support the allegations of the bill of complaint in this respect to their full extent.

It abundantly appears from the testimony of all the witnesses, that John Wood bad been in the habit of obtaining money from the plaintiffs by the discount of his drafts on Joseph Wood, in favor of and indorsed by Thomas J. Walsh, and that, there was a general understanding between John Wood, "Walsh, and the plaintiffs, that all bills thus drawn and indorsed, should be drawn on actual shipments of cotton, and should be paid out of the proceeds of the same. With regard to this particular draft, the only positive testimony is that of Elias Heed, tlie acting president of the bank, who states that Walsh, the indorser, at the time of offering tlie bill for discount, represented to him that it was drawn on an actual shipment of cotton; and it was understood." he adds, “that the proceeds of said shipment should be applied to the payment of the said bill.” It is not pretended that there was any express assignment of the proceeds of the shipment to the plaintiffs, or any order on the specific fund, much less an assignment of the bill of lading, which would have been the most obvious method of securing a lien in their favor. There was nothing more in this case than the understanding testified to by the president. He does not say that there was an agreement to that effect with Walsh, nor does he state that there was any understanding or agreement "between the bank and John Wood, touching this particular shipment, nor does it appear that Walsh was authorized to make any agreement on the subject. For aught that appears, it may have been, and probably was, the understanding of the witness alone, based upon the general understanding that had existed with regard to all hills drawn by John Wood on Joseph Wood, and which was nothing more than an assurance on the part of Wood, that all bills presented for discount should be based on actual transactions, and should not be accommodation bills only. So that even admitting that such verbal understanding made before the bill was discounted, would have operated as an assignment of the proceeds of the cotton, there is no evidence of such an agreement with John Wood”

It was next insisted, that the bill or draft, having been drawn against a consignment, was of itself an equitable assignment by the drawer, of the property or its proceeds.

This is certainly carrying the doctrine of equitable assignment very far, and is in our judgment entirely unsupported by authority. In the cases cited by the counsel, and in all the other cases where an order has been held to be an equitable assignment of a particular fund, the fluid has been specified in the order, and the party giving the order has thereby divested himself of all right to control the fund purporting to be assigned. The form of the assignment is immaterial, but these two ingredients first named are essential. (Yates v. Grove, 1 Ves. Jr. 280; Watson v. Duke of Wellington, 1 Russ. Mylne 602, 605; Lett v. Morris, 4 Simons 607; Burn v. Carvalho, 4 My. & Cr. 690; Malcolm, v. Scott, 3 Hare 39; Rogers v. Hosack's Executors, 18 Wend. 329; Philips v. Stagg, 2 Edw. Ch. R. 108.)

A bill of exchange however, and the instrument in question is nothing more nor less, differs essentially from such an order. It must be payable at all events, and not out of a particular fund. If its payment is contingent, either with regard to the event or the fond out of which it is to be made, it is not a bill of exchange, but an order or assignment of a fond. The converse of this is also true, that if the instrument be a bill of exchange, it is not an assignment of a fond. The plain distinction between orders to pay out of a particular fund and bills of exchange, obtains at law, as may be seen from the case of Cowperthwaite v. Sheffield, decided in this court, (1 Sand. Sup. C. R. 416.) In that case bills had been drawn by James and John Reid, of Mobile, on Wm. Kelly & Co. of Glasgow, against cotton shipped to them by the drawers; and it was contended that the bills operated as an assignment of so much of the proceeds of the cotton, in the hands of the drawees, as would be sufficient to pay the bills. The court held, that if they had been in the form of orders for the entire proceeds of the cotton in Kelly’s hands, they might after notice to the Kelly’s have operated as an assignment of such proceeds; but then they would not have possessed the characteristics of bills of exchange. It is true that the bills in that case were not accepted by the Kelly’s after they received the cotton; and that at law an action cannot be maintained on such an order against the drawer, unless lie accept the order, or in some way consent to the appropriation. But that circumstance does not affect the principle of the decision. We cannot, therefore, sustain the plaintiffs’ claim on the ground of the bill being an equitable assignment. To do so would be to disregard some of the oldest and best established principles of law on this subject.

The plaintiffs next contended, that, upon discounting the bill in question, they acquired an equitable vested interest in or lien upon the cotton or its proceeds, which constituted a trust fund in the hands of the defendant Jauncey, applicable to the payment of the bill; and the cases of Moses v. Murgatroyd, (1 J. C. R. 129;) Bank of Auburn v. Throop, (18 J. R. 505;) and Curtis v. Tyler, (9 Paige 432,) were referred to in support of this proposition. The principle on which these cases were decided is, that when a surety, or a person standing in the situation of a surety, for the payment of a debt, receives a security for his indemnity, the principal creditor is entitled to the benefit of that security. Thus, in the case of Moses v. Murgatroyd, the plaintiffs who were holders of Ogden’s notes indorsed by Mur-gatroyd, were held to be entitled to payment out of property which had been specially assigned by Ogden to Murgatroyd as an indemnity against his indorsements; and the other eases cited were decided on the same principle. Mr, Justice Harris, in overruling the demurrer to the bill in this canse, (1 Barb. Sup. C. R. 486,) held the rule to be applicable here. He remarked that the proceeds of the cotton, if received by Joseph Wood, would have constituted in his hands a trust fund applicable to the payment of the draft; that it was not denied that as between him and John Wood, the party providing the fund for a specific object, such application could have been enforced. If the fact had turned out to be that John Wood had provided the fund, or, in other words, bad consigned the cotton for the specific purpose of paying the draft, and it had come into Joseph Wood’s hands, and been received by him under an express agreement to that effect, the consequence stated by the learned judge would undoubtedly have followed. The property would then have been held by Joseph Wood in trust, and the plaintiffs, as holders of the bill, would have been entitled to the benefit of it. (Ex parte Prescott, 3 Deac. & Chitty, 218.) But the facts of the case, as they appear in the pleadings and proofs, do not warrant the application of this principle. There is no evidence that John Wood, when he consigned the cotton, made a special appropriation of the proceeds to the payment of this draft; or that Joseph Wood, when he accepted the draft, came under any engagement in regard to the proceeds. As far as these two parties are concerned, the shipment appears to have been made in the customary way, and not to have been attended with any circumstances creating any different relation between them, than that of principal and factor. It is indeed true, that Joseph Wood, by accepting the draft, acquired a right to retain the property, when it should come into his possession, or its proceeds, for his indemnity. But it by no means follows, that, on receiving the property, he became, without any agreement on his part, hound to apply the proceeds specifically to the payment of this particular draft. He had a right to apply them, to the payment of his general balance, or in any other way that John Wood and he might agree upon. (Schimmelpennich v. Bayard, 1 Peter’s R. 264 ; Cowperthwaite v. Sheffield, cited above.) In fact, the proceeds were applied in the first instance to the payment of the indebtedness of John Wood to Joseph Wood, and with his consent; and, in making this appropriation, the parties were fully justified by the well known rules of law on the subject.

The bill must be dismissed with costs.

         Affirmed in the court of appeals, 3 Comst. 243.

         In the case of Winter v. Drury and Clark, decided by the same justices on the same day that the foregoing opinion was pronounced, it was contended, that a bill of exchange is an equitable assignment of the funds of the drawer in the hands of the drawee, in such a sense as to give to the payee a lien on those funds, to the amount of the draft, if the drawee have so much, or to the whole amount, if it be less than the draft. And that, if not against the drawee, yet the lien on the fund would be maintained, if the money came back into the hands of the drawer. Mason, J. delivered the opinion of the court, and referring to the preceding case, the court held, that there was no such lien effected by drawing a bill of exchange.

        E. Sandford, for the complainant.
      22. Goodman, J, T, Brady, for the defendants.


text:
    Leveridge v. The Mayor, Aldermen, and Commonalty of the City of New York.
    The corporation of the City of New York, having a large number of litigated suits, and in those suits, and in its other affairs, requiring the constant aid and attendance of counsel, the common council enacted a stated ordinance creating the office of corporation comise], requiring the incumbent to be a counsellor at law in the supreme court, and making it his duty to advise the common council, their committees, and officers, on legal questions arising in their business, and to perform all such services in the line of his profession, connected with the business of the corporation, as were not comprised in the duties of the corporation attorney. The ordinance provided him with an annual salary. The plaintiff was appointed, corporation counsel under this ordinance, and by resolution, all suits pending at that time were placed in. his hands, and he assented to the transfer by accepting the same. He was paid the annual salary provided. In a suit brought by him against the corporation,

      Held, 1. That he was entitled to recover his taxed costs as attorney and solicitor in the suits conducted by him for the corporation.

      2. That the ordinance in question embraced services rendered by the plaintiff as coun-sellor, in the trial and argument .of all causes, whether at law or in equity, in which the corporation, was interested ; also, all services rendered by him in the drawing of special contracts, memorials, Ye. ; such services being “ in the line of his profession, connected with the business of the corporation.” And that for those items he was not entitled to recover,
    3. That for services rendered by the plaintiff in the defence of suits in which the city was not interested, he could not recover ; even though such suits had been referred to him by the common council ; there being no special retainer of the plaintiff in his professional capacity, aside from his official duty as corporation counsel.
    4. That the attendance of the plaintiff before the legislature, at the request of the officers of the corporation, in reference to measures in which the city was interested, was not a part of his duty as corporation counsel ; and that for such services he was entitled to recover.
    The soliciting and opposing the passage of bills brought into the legislature, is not “ a service in the line of the profession of a counsellor at law.”
    (Before Oakley, Ce. J., and Vanderpoel and Sandford, J.J.)
    Sept. 25, 26 ;
    Oct. 20, 1849.
    This was a motion to set aside the report of referees. The action was brought to recover an amount alleged by the plaintiff to be due from the defendants to him, for professional services as an attorney and counsellor at law.
    By an order of the court, the cause was referred to Ogden Edwards, William Kent, and Alvin Cl Bradley, Esqrs., coun-sellors at law, to hear and decide the same. Upon the hearing before the referees, it was admitted by the counsel for the defendants, that the plaintiff was duly appointed corporation counsel on the 16th day of May, 1844, and that at that time he was an attorney and counsellor of the supreme court, and solicitor and counsellor in chancery. A hill of particulars was furnished, by which it appeared, that the plaintiff’s claim was for taxable costs as attorney and solicitor, in a large number of suits prosecuted or defended by him in the various courts ; also for counsel fees on the argument and trial of causes in the courts of justice ; also for counsel fees in the trial of causes to which the city was not a party, but the defence of which had been assumed by a resolution of the common council; also for the drawing of sundry contracts, conveyances, laws, and memorials, relative to the business of the city, and for attendance at Albany during the session of the legislature, in reference to certain measures pending before that body, in which the city was interested, and at the request of the corporation.
    Under the first head, the plaintiff read in evidence the several taxed bills of costs, with proof of service of notice of taxation. It was then proved that the suits mentioned in the bills of costs, were either those in which the plaintiff had been substituted in place of the former counsel of the corporation, under a resolution to that effect, adopted by the common council, or which had been commenced by or against the corporation while the plaintiff was counsel. Under the second head, the plaintiff proved services rendered by him as counsel in the trial and argument of various causes, in which the corporation was a party, in the different courts of law and equity, and the reasonableness of the charges in the bill of particulars. It also appeared that the plaintiff had rendered services as counsel in four suits, at the request of the common council, expressed by resolutions adopted by them for that purpose, in which suits the corporation was not a party, nor in any wise interested pecuniarily. The titles of these causes were Fleetwood v. Quin; Need v. Benson and others; Cahill v. Williams; Goldsmith v. Bawson. The reasonable character of the charges rendered was also established by the evidence adduced. Under the fourth head, the plaintiff proved the drawing of a large number of contracts, memorials, conveyances, «fee., and that the charges for these services as contained in the bill were fair and reasonable charges. Under the last head, the plaintiff proved that he was in attendance at Albany three weeks during the session of the legislature, at the request of some of the principal officers of the corporation, in opposing the application of the city of Brooklyn relative to the ferries, and also in reference to several bills pending before the legislature in reference to alien passengers and other matters, in which the city of New York was interested, and that the charges rendered by him for these services were reasonable. Among the counsel fees, there was one charge of $100, for a counsel fee in an arbitration in the case of Mrs. Flanders, which was tried subsequent to the expiration of the plaintiff’s term of office.
    ' The defendants’ counsel read in evidence from a printed volume of the revised Ordinances of the city, (a.d. 1839,) chap. IV., title 1 and 2, relating to the counsel and attorney of the corporation. These provisions are set forth at length in the case of Brady v. The Mayor, dec. of Mew York, 1 Sanclf. Rep. 569, and it is deemed unnecessary to incorporate them here. It is provided by these ordinances, that a suitable person, of the degree of counsellor at law of the supreme court, shall be appointed corporation counsel, whose duty it shall be to advise the common council, and their committees and officers, on such legal questions as may from time to time arise in relation to the business of the corporation; “ and to perform all such other services in the line of Ms prof 'ession, connected with the business of the corporation, as are not comprised in the duties of the corporation attorney.” The duties of the corporation attorney are prescribed as follows: — To commence and prosecute all suits arising under the charter of the city, and all actions upon the laws of this state, in cases where the penalty is given to the corporation, or to the overseers of the poor.
    The defendants’ counsel also read in evidence an ordinance of the common council, adopted Hay 29, 1844-, by which the salary of the corporation counsel was fixed at $2000 per year.
    It was contended on the part of the defendants, that the salary thus provided, was in full payment of all services performed by the plaintiff. That those services were a part of his official duties as corporation counsel. On the part of the plaintiff, it was contended, that the ordinance of the 29th May, 1844, by which a salary of $2000 was allowed, and directed to be paid to the plaintiff, did not embrace the services rendered by him as counsel on the trial or argument of causes in courts of justice. That- these services were not any part of “ the business of the corporation,” within the meaning of the ordinances. And further, that the ordinance could not be applied to services rendered in suits in equity, because the ordinance did not require a person to be either of the degree of solicitor or counsellor in chancery, to fill the office of corporation counsel. That as to the services rendered by the plaintiff in the four suits to which the city was not a party, but where the defence was voluntarily assumed by the corporation, the ordinance did not apply. And that the services rendered by the plaintiff in the drawing of special contracts, memorials, laws, &c., and in attendance upon the legislature, these not being peculiarly or properly within “ the line of his profession,” were a proper charge against the corporation.
    The referees reported that the plaintiff was entitled to recover the amount of his taxed bills as rendered, being the sum of $6,299 65; also for his services before the legislature, the sum of $500 ; his counsel fees in the suits of Fleetwood v. Quin, Reed v. Benson et ah, Cahill v. Williams, and Goldsmith v. Rawson, in all $300 ; and his counsel fee upon the arbitration in the case of Mrs. Flanders, $100, making in all $7,199 65. But that he was not entitled to recover for counsel fees in the ordinary suits and proceedings, or for any services as counsel, as claimed in his bill of particulars, with the exceptions of the four suits mentioned, and the case of Mrs. Flanders, on the ground that he was paid and compensated for all such services by the salary provided in the corporation ordinance.
    The defendants moved to set aside the report; and by consent the points which the referees ruled against the plaintiff were discussed on the motion.

      Sandford, for the plaintiff.

      F. B. Cutting, for the defendants.
   By the Court.

Sandford, J.

We will first examine the plaintiff’s objections to the report of the referees.

1. He claims that the ordinance did not embrace the services rendered by him as counsel, in the trying or in the argument of causes in which the corporation of the city was interested in the courts of justice.

The language of the ordinance is too plain to admit of any doubt on this point. Tt makes it the duty of the counsel to perform all such services (other than those previously enumerated) in the line of his profession, connected with the business of the corporation, as are not comprised in the business of the attorney. The trial and argument of the lawsuits of the corporation, are connected with their business; those duties are in the line of the profession of a counsellor at law, and they are no part of the business of the corporation attorney. It seems to us that no reasoning, however ingenious, can impair the force of this plain statement. As to the argument sought to be drawn from the feet, that, the duty of arguing causes often required the counsel to attend courts held at a distance from the city of New York, and from the expenses consequent- upon such attendances ; we answer, that his time being paid for by his salary, it is indifferent to him whether he performs his duty in one place or in another. He voluntarily assumed the duty, and must discharge it, wherever, in its regular course, it may happen to call him. His expenses on such attendances are a proper charge against the city.

The ordinance was in force when the plaintiff was appointed. There is therefore no room for argument on the score of the inadequacy of the compensation.

In respect of the great mass of litigated suits transferred to him from his predecessor, after he entered upon the discharge of his duties, it suffices to say that if that were business which he did not undertake or contemplate when he accepted the office, he should have, either refused to receive the transfer, or resigned. Those suits were a part of the business of the corporation, and Ills acceptance of the transfer evinced his assent that they were within the duty he had assumed as corporation counsel. It is quite probable, from the testimony in the case relative to the taxed costs, that the plaintiff’s cheerful discharge of his duty in receiving these transferred causes, received a fit and reasonable reward in that shape.

2. The plaintiff’s next point asserts his right to recover counsel fees in the suits in equity, because the ordinance did not require the corporation counsel to be a solicitor or a counsellor in chancery.

The ordinance provides that “ a suitable person of the degree of counsellor at law in the supreme court, shall be appointed as counsel to the corporation.” Tin's simply prescribed a qualification for the office; it did not define or limit its duties. The defence of a suit in equity, is as much the business of the corporation, as is the defence of a suit at law; and the counsel to the corporation, in arguing a chancery suit, is performing a duty directly imposed upon, him by the ordinance. If he were incapable of arguing in chancery, by reason of his never having been admitted as a counsellor in that court, it might have rendered it necessary for the corporation to employ another counsellor for that specific purpose, or to remedy the difficulty by removing the incumbent altogether. If the plaintiff were qualified to practise as counsel in that court, his arguments there for the corporation, were in their business, in the line of his profession. When the ordinance was adopted, there were four or five courts of record in this city, besides the supreme court, in each of which an admission to practise as counsel was necessary, in order regularly to try or argue causes in such courts respectively. The city was exposed to be sued in all of those courts, and the argument for the allowance of counsel fees in suits in this court, in the common pleas, and in the United States courts, is as strong as it is in favor of allowing such fees in the suits in chancery. The qualification of “ counsellor at law in the supreme court,” was inserted in the ordinance as prescribing that degree of professional standing which entitled a lawyer to practise, if he chose so to do, in all the courts in the state. The business which he was to transact as counsel for the corporation, was to be in the line of Ids profession as a lawyer of the degree of counsellor; not merely the business of the city in the supreme court.

3. The plaintiff’ claims to recover compensation for drawing various special contracts, conveyances, laws, and memorials, on the ground that these were services which others could perform, who were not lawyers, and therefore they were not “ in the line of his profession.” The answer to this is, that these services are generally performed by lawyers; they are appropriate to that profession, and not to any other; they were rendered by the plaintiff as corporation counsel, and they were “ connected with the business of the corporation.”

We now come to the objections taken to the report by the defendants.

1. The point as to the taxable costs, we decided against the corporation, in Brady v. The City of New York, 1 Sand. R. 569.

2. The referees allowed to the plaintiff three hundred dollars for attending at Albany, and opposing, in behalf of the city of New York, the application of the city of Brooklyn for legislation adverse to the ferry rights of the former city ; and two hundred dollars for like attendance upon the legislature relative to several laws applied for by the city of New York.

The defendants contend that these duties were connected with the business of the corporation ; and if they were not, then the-city is not liable at all, there being no special retainer pretended, nor any contract other than the plaintiff’s general employment-under the ordinance.

Although we agree that these matters were the business of the corporation, we think they were not within the line of the plaintiff’s profession. The soliciting and opposing the passage of bills brought into the legislature, do not form a part of the business of counsel, and generally those services are performed by persons who are not lawyers. In many instances, no doubt, lawyers are properly and advantageously employed, because of their superior practical mental training, and their professional facility in investigating, collating, and presenting facts and arguments, bearing upon important subjects connected with legislation. Still, this is not a professional duty, and the calls for its discharge by members of the bar are not usual nor frequent. Ye therefore are clear that the services in question were not a part of the plaintiff’s duty as corporation counsel. The referees have decided that they were not gratuitous, and ove think the evidence fully sustains that conclusion. He attended at Albany, on the request of the leading corporation officers, charged with the important interests involved; and the city had the benefit of his services. It is said he ovas called on because he was corporation counsel, and as such counsel only. This is true in the sense that he was selected for this duty, in preference to any other lawyer, or individual equally capable ; because at the time he filled the office of counsel to the corporation. We do not think it is true in the sense that he ooras employed to perform the service as a part of his duty as corporation counsel, for which he was paid by the salary stipulated in the ordinance. The report of the referees as to these items is sustained.

3. Among the counsel fees allowed, which were objected to, is one on an arbitration with Mrs. Flanders. This item occurred after the plaintiff ceased to hold the office of corporation counsel, and it is unquestionably a proper charge.

4. The counsel fees allowed by the referees in the four suits against Quin, Benson and others, Williams, and Rawson, remain to be considered.

The city was not a party in either of these suits, nor under any legal obligation or duty to defend them. The omission to defend them could not involve the city in any loss ; nor could an adverse result, upon a defence interposed. We agree, therefore, with the plaintiff’s counsel, that the defence of these suits was not “ the business of the corporation,” prior to the respective resolutions on that subject; and the plaintiff was not obliged to defend them as a part of his duty as corporation counsel.

Did the resolutions, referring Quin’s suit to him with power, authorizing him to defend the suits of Williams and Rawson, asid requesting him to defend that of Benson and others, alter the state of the case in respect of the plaintiff’s obligation, or that of the corporation ?

If it were proper for the city to defend those suits, their defence, upon the adoption of the resolution, became the business of the corporation, which the plaintiff was bound to undertake bv virtue of his official station. If it were not the proper business of the city to defend them, the plaintiff, as their legal adviser, must be presumed to have known it, and he should have so advised them, and declined to act, unless on a representation of his opinion and views, the corporation had expressly undertaken to pay him the expenses of the defence.

It is questionable whether it was competent for the corporation, even by sucha resolution, to make itself liable for expenses incurred in defending lawsuits in which it had no interest. We refer to Hodges v. The City of Buffalo, 2 Denio 110; Brown v. The City of Utica, 2 Barb. R. Sup. Court, 109; Halstead v. The City of New York, in the supreme court in this district, November, 1848, reported in 7 N. Y. Legal Observer 74; and Cornell v. The Town of Guilford, 1 Denio 510; as illustrating the limits to municipal authority in this respect.

We need not, however, decide the question of power. The resolutions adopted, evidently referred these defences to the plaintiff, as being the proper business of the corporation. There was no special retainer of the plaintiff in his professional capacity, aside from his official duty. All this he knew, or was bound to know, from the resolutions, and the ordinance which defined his functions; and his act in proceeding to defend the suits without objection, and without requiring a special retainer, was an assent to receive and treat them as a part of the business of the corporation, within his line and duty as an officer, which he cannot now recall.

In our opinion, these four items were improperly allowed by the referees, and they must be deducted from the sum reported to be due to the plaintiff. On his consenting to such deduction, the defendants’ motion to set aside the report will be denied.

       S. C. in the court of appeals, 3 Comst. 430.


author: Campbell, J.

text:
    Woodward v. Harris and Aspinwall.
    It is not a valid objection to the specific performance of a written agreement, that it is not signed by the party seeking to enforce it.
    In general, it suffices if the agreement be certain, fair, and just in all its parts, and that it be signed by the party sought to he charged.
    Semi). — That a suit may be maintained to compel the specific performance of a contract to assign an agreement made between the defendant and a stranger, for services to be performed on a stipulated compensation ; e. g. a mail contract.
    But where H., having contracted with the government under an act of Congress, to carry the United States mails, in steamships, from Panama to California and Oregon, and, pursuant to the act, the contract provided, that the Navy Department should at all times exercise control over such steamships, and could, at any time, take them for the exclusive use and service of the United States ; and H., after making an agreement to assign his contract to W., executed an assignment of the same to A., one of whose partners became the surety of H. to the government for the performance of his contract; on a bill filed by W. against H. and A., to enforce a specific performance of H.’s agreement with W., ft was held,

    I. That inasmuch as the sanction of the government to the agreement with W. had not been previously obtained, the court would not enforce it specifically ; and

      2. That the partner of A. who was the surety of H., was a necessary party to a suit to compel such performance.
    Sept. 17 ;
    Oct. 20, 1849.
    Tire bill in this canse was filed in the supreme court in equity, by Jabez M. Woodward against Arnold Harris and William It. AspinwaU, to compel the specific performance of an agreement, by which, as it was alleged, Harris bound himself to assign to Woodward a contract with the general government for the conveyance of the mails on the Pacific Ocean. The facts will be found in the opinion of the court.
    The defendants separately demurred to the bill, for want of equity, for want of parties, and various other causes. The demurrers were overruled at the special term of the supreme court, and an appeal was taken from that decision by the defendants. The cause was then transferred to this court.

      li.B, Kimball, for the complainant

      B. /•'. Butler, for the defendants.
   By the Court.

Campbell, J.

In March, 1847, Congress passed an act, by which certain, proposals which bad been previously made for carrying the United States mail between New York and Liverpool, and New York and New Orleans, by way of Havanna, were accepted, and contracts were authorized to be made to carry into effect the purposes of the government. We shall have occasion to allude hereafter, in the course of this opinion, to the various provisions of this act, and to what was manifestly the intention of Congress in its passage. By the fifth section of this act, the secretary of the navy was directed to make a contract for carrying the mail between Panama and some port in the territory of Oregon. In the performance of that duty, the navy department advertised for proposals, and among the persons offering to make a contract for this service, was the defendant, Harris. On the 4th of July, 1847, Harris entered into an' agreement at the city of Washington, with the complainant, which, after reciting that it was understood that the proposal of Harris would be accepted, provides that upon certain conditions and for certain considerations therein expressed, Harris should assign the contract, when executed, to Woodward, the complainant. This agreement of the 4th of .July, was signed by Harris alone. The bill in this cause was filed to enforce a specific performance of this agreement. After setting forth the agreement and the proposals of the navy department, it charges that the defendant Harris, after entering into the contract with the government, assigned such contract to the other defendant, Aspin-wall, in violation of the previous agreement with the complainant, and that the defendant, Aspinwall, received such assignment with the knowledge of such previous agreement.

To this bill, separate demurrers were interposed by the defendants, and several grounds of demurrer were stated, which we shall proceed to consider. They may, however, we think, be arranged under three heads. 1st. The agreement having been signed by Harris alone, cannot be enforced, ns there is no mutuality ; and 2d, if there was mutuality, yet this contract with the government, even though its assignment may not be contrary to public policy, is of such a character, that a specific performance of an agreement for its assignment cannot be enforced, unless a previous express assent of the government to such assignment had been first obtained ; and that the bill does not charge, nor is it pretended that the government had agreed or expressed in any way their willingness to give such assent; and lastly, that at the time of filing the bill, the contract had been assigned to the defendant Aspinwall, with the assent of the government, and that other persons who are not parties in this suit, had become interested, either as sureties or otherwise, and whose rights would be prejudiced, if a specific performance should now be enforced.

This cause was twice argued before us, with great ability, and we have given to the questions which we were called upon to consider, that careful reflection which is due alike to their interesting character, and to the magnitude of the interests involved in their final decision.

At common law, every contract for the sale of an article, where there was no actual transfer, was treated as a personal contract or covenant, and there was no redress for its breach, save in damages; thus allowing the party sought to be charged, the alternative of withholding the specific article bargained for, or compensating in damages at his own election. Courts of equity, deeming such a course inadequate for the purpose of justice, have interfered and required the offending party to perform strictly his covenants, and yield up specifically the article which he could not withhold, without injury- or fraud. (2 Story’s Eq. Jur. § 714.) “Specific performances were early enforced, especially of contracts relating to land, though, from time to time, doubts were expressed as to those relating alone to personal estate. But notwithstanding this distinction between personal contracts for goods and contracts for lands, is to be found laid down in the books as a general rule, yet there are many- cases to be found, where specific performance of contracts relating to personalty-, have been enforced in chancery, and courts will only weigh with greater nicety contracts of this description, than such as relate to lands. (Mechanics' Bank of Alexandria v. Seaton, 1 Peters 299.) It was objected, however, that even if courts would decree the specific performance of contracts relating to personal estate, that power of the court could not be invoked in this case, because the agreement was not mutual, being signed only by the defendant Harris.

It is true, that in Benedict v. Lynch, 1 John. Ch. R. 376, Chancellor Kent remarked, “That it had been ruled in several cases, that a bill for a specific performance will not he sustained, if the remedy be not mutual, or where one party only is bound by the agreementand he quoted the doctrine of Lord Redesdale, so often referred to in Lawrenson v. Butler, 1 Schoales & Lefroy 13. It is to be remarked, however, that the chancellor observed in Benedict v. Lynch, that the decision could he placed with more satisfaction upon the intrinsic merits of the case, and indeed it appears to have been so placed. That decision was made in 1815. The question afterwards arose in 1817, in the court of errors, in the case of Clason v. Bailey, 14 John. Rep. 484, and was there discussed by- the same learned chancellor at length, and with his usual distinguished ability and learning, and he referred to and commented upon the various cases which had been decided in the English courts of law and equity. Though still entertaining his original opinion, and remarking that the weight, of argument was in favor of the construction, that the agreement to be enforced in equity, should be mutually binding, he says, there is nothing to disturb the strong and united current of authority on the other side, except the observation of Lord Redesdale, in Lawrenson v. Butler, and he concluded his remarks upon this branch of the case, by saying, “The remedy, therefore, in such cases is not mutual. But notwithstanding this objection, it appears from the review of the cases, that the point is too well settled to be now' questioned.” The language of the vice-chancellor, In the matter of Hunter, 1 Edward Ch. R. 1, is also explicit. “ The court may, therefore, in a proper case, where there is a covenant on one side and no mutuality, decree a performance.” This doctrine was again affirmed in the case of McCrea v. Purmart, 16 Wendell 460, and several of the decisions heretofore referred to are quoted and approved.

In the case of Flight v. Bolland, 4 Russell 298, a bill was filed by an infant for a specific performance, and it was dismissed by the master of the rolls for want of mutuality ; that is, that a specific performance could not be enforced against an infant, and hence should not be enforced in Ids favor. But be adds, “The plaintiff’s counsel principally rely upon a supposed analogy afforded by cases under the statute of frauds, where the plaintiff may obtain a decree for specific performance of a contract signed by the defendant, although not signed by the plaintiff. It must be admitted that such now is the settled rule of the court, although seriously questioned by Lord Redesdale, upon the ground of want of mutualityand he adds, “ to at these eases are supported, because the statute of frauds only requires the agreement to be signed by the party to be charged, and that the filing of the bill renders the agreement mutual.” In Adderley v. Dixon, 1 Sim. and Stu. 607, a bill was tiled by the vendor of certain debts due to a bankrupt’s estate, and the vice chancellor says, “ Courts of equity decree the specific performance of contracts, not upon any distinction between realty and personalty, but because damages at law may not in the particular case afford a complete remedy,” and in the same case he adds, “ It is true, that the present bill is not filed by the purchaser, but by the vendor, who seeks not the uncertain dividends, but the certain sum to be paid for them. It Las, however, been settled by repeated decisions, that the remedy in equity must be mutual, and that where a bill will lie for the purchaser, it will also lie for the vendor.” In other words, when a contract is executed hy both parties, if one party could file a bill for specific performance, the court will also allow the other party to file his bill, and will not put him to his action at law. There must be something to be done by each party. The agreement must be made bv parties competent to contract. It must be mutual in its general scope and objects. In the language of Lord Hardwicke, in Buxton v. Linter, 3 Atkyns, 383, the agreement should be certain, fair, and just, in all its parts, and it should also be signed by the party sought to be charged. Courts of equity have not hesitated to enforce specific performance of agreements possessing these attributes, whether relating to lands or personal estate, and the decisions in England and our own country, from the time of the decision in Buxton v. Lister in 1746, to the present time, have flowed in one almost uniform and strong current. The objections in this case, that this contract is not signed by the complainant, Woodward, and cannot, therefore, be enforced, because it is not in that respect mutual, we consider not well taken; and if that was the only objection, we might, and perhaps ought, to decree a specific performance.

We come now to the consideration of the act of Congress of March, 1847. Its provisions are various, though one object is apparent throughout, and for its attainment the act was passed. That object was the formation and building up a more extensive and powerful navy, especially in steam vessels of war, and in steam vessels capable of being easily converted into vessels of war. Its first section provides for the building by the government of four steam vessels of war. In other sections, contracts are authorized, which would insure-the building, by private persons, of eight more steam vessels, each of which were to carry a certain number of midshipmen of the navy of the United States, and a portion of which were to be commanded by officers of the same navy. The 5th and 6th sections are as follows:

“Sec. 5. And be it further enacted, that it shall be the duty of the secretary of the navy to contract, on behalf of the government of the United States, for the transportation of the mail from Panama, to such port as he may select in the territory of Oregon, once a month each way, so as to connect with the mail from Havana to Chagres, across the isthmus, said mail to be transported in either steam or sailing vessels, as shall be deemed most practicable and expedient.”
“ Sec. 6. And be it further enacted, that it shall be the duty of the secretary of the navy, to provide in the contracts authorized by this act, that the navy department shall at all times exercise control over said steamships, and at any time have the light to take them for the exclusive use and service of the United States, and to direct such changes in their machinery and internal arrangements as the secretary of the navy may require; due provisions being made in the said contracts for the mode of ascertaining the proper compensation to the contractors thereof.”

It was under section 5 of this act, that the contract was made with the defendant, Harris. The bill charges that the contract made with Harris, was assigned by him to the defendant, Aspinwall; and as it is notorious that the steamships of the latter are now running from Panama to California and Oregon, carrying the mail of the United States, we must infer that the proposals made by Harris, were for carrying the mail in steamships, and not in sailing vessels; and, indeed, it appears by the agreement, that such was the proposal, though the vessels are called in such agreement, steamboats.

The. 6th section of the act would then apply to these steamships. The navy department, by toe terms of the contract, must be authorized at all times to exercise control over such steamships, and to have the right to take them for the use of the United States, and to direct changes in their machinery and internal arrangements, &c. The business of the contractor, as was well observed on the argument, is quasi official. It is not a mere mail contract, in which the only question which might arise, would be, whether the mail should be carried on horseback, or in a four horse coach. But it was a contract, whereby the contractor, for a large consideration, paid, or to be paid, by the government, was not only to transport the mail upon distant seas, but was also to furnish the government with the ready means of organizing an efficient steam navy for the protection of the commerce of the republic, and of her citizens settled on the shores of the Pacific. Hence, in the advertisement of the secretary of the navy, he reserves to himself the right to select the proposals which lie may prefer. He would not agree to accept the lowest bid. He might wish to look to the man who made the proposals, to the sureties which he offered, and judge from their character and condition whether he had the requisite skill and ability to carry out the project; in short, whether he would be likely to prove a useful and efficient auxiliary to the government, in executing a new and expensive enterprise. Looking at the provisions of this act, and to the objects sought to be attained, and to the advertisement of the navy department, we do not think that the agreement for the assignment of the contract, is such an agreement as this court, in the exercise of a prudent and careful discretion, could be called upon to enforce specifically, unless it appeared that the sanction of the government to such assignment had been previously obtained. This is not alleged or pretended ; nor is it alleged that it would have been given, had not the assignment been made to Aspinwall. The bill shows that the assignment was made to Aspinwall, and, as may be fairly inferred from the allegations contained in the bill, with the knowledge and approbation of the navy department.

There remains one other objection, which was urged against a decree for a specific performance, and that is. that the parties in interest have changed since the agreement was made between Woodward and Harris, and other persons have become interested who were known to the complainant at the time of filing his bill, and who were not made parties thereto. The bill alleges, that Edgar Howland, the partner of Aspinwall, became, with Aspin-wall, one of the sureties for Harris to the government, immediately preceding the assignment of the contract by Harris to Aspinwall. We must, infer that Mr. Howland became such surety because it was agreed and understood that the contract was to be assigned to his partner, and relying upon the skill and ability of that partner to protect him as surety from loss. The amount of the bond appears to have been one hundred thousand dollars, and as the expenditures would necessarily amount to many hundreds of thousands of dollars, and the contract was to continue for several years, it may well be assumed that Mr. Howland would not enter into the obligations of a surety, without, the most ample protection in his own judgment, either in the ability and integrity or superior skill of the principal. The bill now seeks to compel Aspinwall to assign to the complainant, the contract assigned to him by Harris, and contains a general offer to indemnify Mr. Howland against his liability as surety. We are clearly of opinion that Mr. Howland would not be thus compelled to remain as surety under circumstances entirely different from those which existed, when lie signed the bond. There is no allegation in the bill that Howland had any knowledge or information, when he signed the bond, that there was any such agreement as is set up in the complainant’s bill.

We must allow the demurrers; and as we are of opinion that a specific performance of the agreement set up, ought not to be enforced without, the direct sanction of the government, and no such sanction being shown or pretended, we cannot retain the bill for the purpose of allowing the complainants to seek through these proceedings compensation in damages.

The demurrers must be allowed with costs.


author: Oakley, Ch. J.

text:
    Howard v. Lee.
    The court will re-strain by injunction, the carrying on in a city, or dense population, of trades which are offensive to the senses, and render the enjoyment of life ami property uncomfortable, or are injurious to the health of those residing in their vicinity.
    Whore such a trade has long been established in the place where its continuance is sought to be enjoined, it must nevertheless give way, and recede with the advance of population.
    A soap factory, in the compact part of a city, where it had been carried on for a long period, was held to be a nuisance, and restrained by injunction.
    (Before Oakley, Ch. J., and Vanderpoel and Sandford, J. J.)
    Oct. 11 ;
    Oct. 20, 1849.
    MotioN to dissolve an injunction. Most of the facts appear in the judgment of the court. In addition to those, it may be Stated, that the plaintiff is the proprietor of the Irving House, a very large hotel, situate on Broadway, in the city of New York, and extending from Chambers street to Reade street. The defendant had for many years, and long before the Irving House was built, carried on the business of making soap, on two lots in Reade street, within less than a hundred feet of the rear of the now Irving House. The defendant’s establishment had, for some years, been the subject of complaint in the neighborhood, which was closely built up, and densely populated, but there had been no legal proceedings taken against it. During the prevalence of the cholera, in the summer of 1849, the soap factory was very offensive to the plaintiff’s guests, and many left his house in consequence of it. The affidavits on his part, were very numerous, and were direct and pointed in respect of the offensive character of the establishment, the great stench and effluvia, and consequent annoyance it occasioned, and its deleterious influence upon the health of strangers and others, not accustomed to it, and the injury it was producing to his hotel. An injunction, was granted against its further continuance. The defendant moved to dissolve it, on affidavits almost as numerous as the plaintiff’s, most of which alleged that the soap factory was not offensive or injurious to health.

      J. T. Brady, for the defendant.

      J. E. Burrill, Jr., for the plaintiff.
   By the Court.

Oakley, Ch. J.

This was a motion to dissolve an injunction, restraining the defendant from carrying on the business of soap boiling, on the ground, that it was a nuisance, and should be discontinued. The defendant owns an establishment of this sort, situated on the south side of Reade street, near the Irving House, which extends bach so far from Broadway, that its rear comes close to the soap factory. The defendant has carried on this business there for a long period, in truth for many years before the Irving House was established; but latterly it, bad been more or less the subject of complaint on tbe part of the neighbors ; and, during the cholera, last summer, an injunction was granted to prevent its continuance, on the application of the plaintiff, Howard. It was granted on a large number of affidavits of residents in the plaintiff’s hotel and in the neighborhood, physicians, &c., &c., making out a very strong ease of nuisance, as well as of pecuniary damage to the plaintiff. On the motion to dissolve the injunction, the defendant produced and read numerous affidavits, also made by neighbors, and some by physicians, denying that the soap factory was offensive, or mitigating its character in that respect. The plaintiff met these affidavits by others, from new deponents, strengthening his original case.

It is not necessary for the court to enter into a detailed examination of these affidavits. It is sufficient to remark, that the weight of evidence, upon the whole, is very strong to show, that the carrying on of this business is not only noisome and offensive to the neighborhood, making the enjoyment of life and property uncomfortable; but is also injurious to health. This is to be taken as established by the affidavits before us.

The jurisdiction of the court of chancery, to the powers of which in general this court has succeeded, has long been esta-blishecl, in tins state, to restrain the continuance of nuisances. The court can prohibit trades of this character from being carried on in a great city, or in a dense population, on the broad principle, that all trades which render the enjoyment of life and property uncomfortable, must recede with the advance of population, and be conducted in the outskirts of the city or in the country. This is on the principle of the law, that every man must so use his own property as not to injure the rights of his neighbors.

The idea was urged on us, that the business might be carried on in the winter season. It does certainly' appear by the affidavits, that the factory was less offensive in the winter than in the summer ; but they fall short of showing that the trade is not such as to make life uncomfortable, even in winter. Besides, it is not safe to apply' the rule that a trade may not be carried on dining one part of the year, and may' be at another when it is less offensive. Such a rule seems to depend upon no principle, and to enforce it, would call upon the court for its constant interposition.

It is well settled, in cases of this kind, that it is not necessary a trade should be so injurious to health as to constitute a public nuisance, in order to have it restrained. Although not injurious to health, and merely offensive to the senses, making the enjoyment of life uncomfortable, it might destroy a vast amount of property in its neighborhood. JSo man can exercise his own rights of property, to the injury of others. We have no hesitation in saying that the injunction must be sustained.

Motion denied.