"" were

to pay due respect to its treaties; yet the sense of moral obligation was not sufficient to secure the result. "Power and right," says Mr. Justice Story, separated. The argument was all on one side, but the power was on the other." Story's Const., § 1838. Congress, though charged with the duty of conducting the intercourse of the country with foreign nations, including the making of treaties, could not guarantee the fulfillment of its own stipulations. This was a source alike of weakness and peril, as a very brief experience abundantly showed.

Moreover, the political system of the United States is planned upon the principle of a law-making and a law-executing power reserved to the States, which, in its sphere, operates independently of the general government. Such was the fact under the Articles of Confederation; and this fact remains under the Constitution. The system is duplicate in its character. Hence arises the necessity that treaties, if they are to be operative as sacred compacts, should be placed beyond the power of the States to nullify them.

It was at first proposed to gain this end by giving Congress the power to enforce treaties by legislative action. This was the idea of Mr. Pinckney in his plan of a Constitution, and it was incorporated in the draft made by the committee of detail, pp. 741, 1233. The idea was, however, abandoned, and, as a wiser method of attaining the result, it was provided that treaties should have the character of supreme municipal laws, and that the judges in every State should be bound thereby, "any thing in the constitution or laws of any State to the contrary notwithstanding." State constitution or law conflicts with a treaty of the United States, it is to the extent of the conflict void and of no effect; and State judges are required thus to decide in any issue involving the question.

If a

So, also, treaties, as a part of "the supreme law of the land," are placed under the cognizance of the judicial power of the United States. This enables the Federal judiciary to expound and apply them as supreme municipal laws. The remedy for any conflict between State action and the treaties of the United States is hence located in the powers and functions of the judiciary, both State and National, and ultimately in the latter. Not only are State courts bound to regard treaties as supreme laws, but their judgments and decrees affecting rights claimed under treaties, may be carried to the Supreme Court of the United States for final review.

The twenty-fifth section of the Judiciary Act of September 24, 1789, provides that a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit can be had, where is drawn in question the validity of a treaty of the United States, and the decision is against its validity, or where is drawn in question the validity of a statute of any. State on the ground of its repugnance to a treaty, and the decision is in favor of the validity of the statute, or where is drawn in question the construction of a treaty, and the decision is against the right, privilege or exemption claimed under such treaty, "may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error." 1 U. S. at Large, 73. This section, which is reproduced in section 709 of the Revised Statutes of the United States, enables the highest tribunal of the land to review the decisions of State courts in regard to treaties. Suits in law and equity, in which treaties are involved, may, in the cases specified, be transferred to this court for final settlement.

If all governmental powers had been lodged in the United States, there would have been no necessity for any constitutional provision in regard to the legal authority and effect of treaties. The National government, having the power to make them, would have equal power to carry them into effect. Such, however,

was not the fact under the Articles of Confederation; and such would not have been the fact under the Constitution, without some provision to secure treaties against infraction by State authority. The problem was a delicate and difficult one to solve, yet it was solved by giving to treaties the character of supreme laws, and requiring judges, both State and National, to regard them as such. Though not laws in the sense of being enacted by Congress, they are placed on the same footing, and precisely the same provision is made for their interpretation, application and enforcement, so far as they operate within the territory and among the people of the United States.

PLEADING IN ACTION UPON PROMISSORY NOTE.

NEW YORK COURT OF APPEALS.

ALLIS V. LEONARD ET AL., appellants.*

In an action upon a promissory note the complaint alleged that defendant made the note, that one W. indorsed it and delivered it to the payee, who before the commencement of the action, for a valuable consideration, sold and delivered it to the plaintiff, who is now the owner and holder thereof. The answer admitted "the making and delivery of said note as averred in the complaint," set up payment and denied each and every allegation except those admitted. Held, that there was a sufficient denial of the transfer of the note by the payee to the plaintiff to entitle defendant to prove payment to the payee, and that the note then belonged to such payee.

a promissory note. states the case.

ACTION upo

M. W. Waters, for appellants. Ballard & Warner, for respondent.

The opinion

RAPALLO, J. This action was brought upon a note made by the defendants, Leonard, Stevens and Hathaway, dated August 2d, 1866, and payable to Fid. Allis or bearer, sixty days after date. The plaintiff sued as transferee and holder, and to prove his title gave evidence that the note was received by Fid. Allis for money loaned to the defendant, Leonard, which money belonged to the plaintiff, and that the note was immediately afterward delivered by Fid. Allis to the plaintiff.

The plaintiff testified that all the claim he pretended to have to it was by virtue of his ownership of the funds which were loaned in taking it.

The defendant offered to prove, by Fid. Allis, payment of the note to him by John Leonard; also, that Fid. Allis was in fact the owner of the money loaned on taking the note.

This proof was excluded and exception taken, and a verdict directed for the plaintiff. The ground stated by the court for excluding evidence of Fid. Allis' ownership of the note was that under a simple denial in the answer the defendant could not prove that some person other than the plaintiff was the owner of the note, and that the answer raised no issue, except that of payment.

As the question seems to have been disposed of wholly on the question of pleading, it is necessary to examine the complaint and answer.

The complaint alleges that the defendant made the note, and thereupon one Wheeler indorsed it, and then and there delivered it to the payee, and before the commencement of the action, for a valuable consider

*This case was decided November 11, 1871, and is referred to in the "Memoranda of causes not reported in full." 46 N. Y. 688.

ation, sold and delivered it to the plaintiff, who is now the owner and holder thereof.

The answer specially admits "the making and delivery of said note, as averred in the complaint," and sets up payment. It denies each and every allegation, except those expressly admitted.

We think that this was a sufficient denial of the transfer of the note by the payee to the plaintiff to enable the defendant to prove, if he could, that the note belonged to the payee at the time of the alleged payment to him.

The defense was meritorious, if true, and the pleadings should have been liberally construed for the purpose of admitting it. But a strict construction would lead to the same result.

The complaint alleges two deliveries of the note in first a making and delivery to the payee, and a subsequent sale and delivery by the payee to the plaintiff.

The answer admits only the making and delivery and denies every other allegation.

This puts in issue the alleged sale and delivery. In the absence of such sale or delivery the payment to the payee was a good defense.

When the transfer and delivery of a note by the payee to the plaintiff is specifically alleged, and not denied, a mere denial that the plaintiff is the holder is a denial of a conclusion drawn from the facts stated, and not of the facts themselves, and has been held insufficient; but a denial that the note has been thus transferred is a sufficient basis for proof, controverting the plaintiff's title and establishing that the payee remained the owner and payment to him.

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

CONTRACT VOID AS AGAINST PUBLIC POLICY.

IOWA SUPREME COURT, MARCH 18, 1880.

WILLIAMSON ET AL. V. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY Co.

A railroad company, in consideration of the conveyance of certain lands to it for depot purposes in the city of D., agreed with plaintiffs, who conveyed the lands, that it would erect no depot in said city but upon such lands. It erected a depot upon the lands and also another in a different part of the city. Held, that the contract was void as against public policy, and that plaintiffs could not maintain an action for damages caused by the breach of it by the railroad company.

A

CTION for a breach of contract. From a verdict in favor of plaintiffs defendant appealed. Sufficient facts appear in the opinion.

Wright, Gatch & Wright, for appellaut.

H. W. Maxwell and P. Gad Bryan, for appellees.

DAY, J. The petition alleges that in consideration of the conveyance of the lots in question the defendant proposed to contract to “build all its depots, both passenger and freight, which it might or would build in the said city of Des Moines, on the east side of the Des Moines river, in the said East Des Moines, and on the lots so transferred and conveyed to it," and that "the plaintiffs agreed to and accepted the said proposition upon the terms offered by the defendant." The petition further alleges that the defendant, for a long time after the occupation of said lots, and the building of said temporary depot, gave out in speeches, and held out inducements and encouraged the plaintiffs to believe, that they were going to build their permanent depot on the said lots in the said East Des Moines, and that they would not build one anywhere else in the city of Des Moines," but that the defendant “does

fail and refuse to comply with the said contract, or any part thereof, by building its permanent and only depot on the said lots on the east side of the Des Moines river, as it had contracted to do," and instead thereof "proposes to and has already commenced to build its permanent and chief passenger depot on the west side of the Des Moines river, in West Des Moines."

The plaintiffs allege that, by "the willful, wrong and fraudulent representations and violations of said contract by the defendant, they are damaged in the money contributed by them, and the conveyance of said lots to the defendant, and the time and labor expended in the same, and the depreciation of the value of their property * * in the aggregate sum of $40,000." The evidence is in entire harmony with these allegations of the petition. [The evidence is considered at length.]

*

The evidence shows that the defendants erected, and that they now maintain on the lots in question, a wooden depot building, at which all the day trains stop. It is evident, both from the allegations of the petition and the evidence submitted in support of it, that the contract which the plaintiffs claim the defendant made was that it would erect a passenger depot in East Des Moines, and would erect no passenger depot in West Des Moines, and that the substantial cause of the plaintiffs' complaint is, not that the defendant has failed to construct a depot on the east side of the Des Moines river, but that it has constructed a depot on the west side of the Des Moines river. The evidence shows very clearly "that the business, commerce, trade and necessities of the city of Des Moines demand, and have demanded from the time the road crossed the river, a depot on the west side of the river. The important question in this case, and the one which we think is decisive of it, is this: Is the contract in question valid, so that damages may be recovered for a breach of it, or is it void as against public policy?

In the case of the St. L., Jacksonville & Chi. R. Co. v. Mathers, 71 Ill. 592, it was alleged that Mathers conveyed 200 lots in the town of Ashland to trustees for a railroad company, on condition that it should build no station within three miles of Ashland. Upon the breach of this condition, Mathers commenced an action to compel a reconveyance of the property. In the court below the relief asked was granted. The Supreme Court, reversing this judgment, said: "The alleged agreement or condition, on account of the non-performance of which relief is here sought, was that a railroad company, chartered by an act of the Legislature, and invested with the power of condemuing private property, upon the ground that its road is for the public use, shall not establish a depot or station within three miles of Ashland. It cannot be pretended for a moment that the board of directors had authority to make such an arrangement or condition, They were trustees both for the public and the stockholders of the company, and in the discharge of their twofold duty, were required to act with reference to the public convenience, on the one hand, and the private interests of the stockholders upon the other. The interests ** * both of the stockholders and the public forbid that there should be a positive prohibition against the establishing of stations at any points on the line of the road. Whenever the public commerce requires that a station on a railroad should be established at a particular place, and it can be done without detriment to the interests of the stockholders of the company, the law authorizes it to be established, and no contract between a board of directors and individuals can be allowed to prohibit it. *** Appellee stands in pari delicto with the board of directors, so far as this agreement or condition is concerned. He voluntarily, according to his own showing, contracted for this breach of trust toward the stockholders of the railroad company, and breach of duty to the

public at large. Their loss was to be his gain. He was willing, at whatever expense it might be to others, to purchase a monopoly whereby to enrich himself, and having failed to accomplish his purpose, now asks a court of equity to reinstate him in the condition he was in before entering into this unlawful combination. The case presents no facts or circumstances meriting the consideration of a court of equity."

In St. Joseph & Denver City R. Co. v. Rgan, 11 Kans. 602, an action was brought by a land-owner for the breach of a written contract, in which the company agreed to place a depot on land conveyed to it by the plaintiff, and not at any other time to have or use any other depot within three miles of said depot. The plaintiff recovered $6,500 damages. Reversing this judgment, the Supreme Court said: "Railroad corporations are, as we have seen, public agencies, and perform a public duty. They are agencies created by the public, with certain privileges, and subject to certain obligations. A contract that they will not discharge, or by which they cannot discharge those obligations, is a breach of that public duty, and cannot be enforced. * * * It is the duty of a railroad company to furnish reasonable depot facilities. The number and location of the depots, so as to constitute reasonable depot facilities, vary with the changes and amount of population and business. A contract to leave a certain distance along the line of the road destitute of depots is in contravention of public policy."

Some courts have gone much beyond the doctrine of these cases, and have held that an agreement between an individual and a railroad company for the location of a depot at a particular place, in consideration of money or property, is against public policy, and void. See P. R. Co. v. Seely, 45 Mo, 212; Marsh v. Firbury, P. & U.W. Ry. Co., 64 Ill. 414; Bestor v. Wathen, 60 id. 138; Fuller v. Dame, 18 Pick. 472; Halladay v. Patterson, 5 Oregon, 177. Whilst we might not feel like going to the extent of this doctrine (First National Bank of Cedar Rapids v. Hendric, October term, 1878), still we feel quite clear that where the contract is coupled with the condition that no depot shall be constructed at a particular place, or within a specified distance, the contract is void as against public policy, and a breach of it cannot be made the foundation of an action. We have found no case in which such a contract has been held to be valid.

In Southard v. Central R. Co., 2 Dutcher, 13, relied on by the appellees, the plaintiff conveyed to the defendant certain real estate, to be occupied by the defendant for the sole use of depots and other necessary buildings for the accommodation of said company, upon the condition that if it was used for any other purpose, or if the defendant should use any other building within one mile of said premises, for such purposes, the defendant should forfeit the real estate. The question of the validity of the contract was not raised, but it was held there had been no breach of the condition. In C. B. R. Co. v. Baab, 9 Watts, 458, it was held simply that "an agreement to pay an incorporated railway company a certain sum to induce the location of their route at a particular place is valid and binding, and may be enforced by action." Jewett v. L. & U. M. R. R. Co., 10 Ind. 539, is simply the case of a subscription to a railroad company in land, upon a condition of a location of the road within twenty rods of St. Omer. The defendant built its road more than a mile from St. Omer, and it was held that the value of the land subscribed could be recovered. It is evident that these cases fall very far short of sustaining the validity of the contract in question. The other cases cited by appellees are not more directly in point.

That no relief will be granted in a contract which is illegal or against public policy, to a party who is in puri delicto, is abundantly and uniformly sustained by

authority. In Bestor v. Wathen, 60 Ill. 138, it is said: The defendants in the court below filed a cross-bill asking the court to cancel this contract as a cloud upon their title, and this was done. In the view we have taken of the case the contract should be regarded as so far against public policy that neither party is entitled to the aid of the court. The defendants have entered into a contract, the effect, or at least the tendency, of which was to induce the complainants to commit a breach of duty. The refusal to enforce the contract practically puts an end to it, yet the court should not have granted affirmative relief on the crossbill. To this extent the decree is modified. Both bills are dismissed, and the costs of this court equally divided."

In Tyler v. Smith, 18 B. Monroe, 793, the Court of Appeals held that if an individual pay money under an illegal contract, or a contract against public policy, he will not be aided by law to recover it; that the maxim in pari delicto potior est conditio defendentis applies, and that the law in such cases leaves the parties as it finds them, and extends no help to either. In Spaulding v. Bank, 12 Ohio, 544, which was an action to recover money paid to the bank under an illegal contract, the court say: "It is an act malum prohibitum, and if the bank was seeking to recover it, it would not receive the aid of this court. It is, however, a part of the agreed statement that the money being in the hands of the bank, the plaintiff, when from time to time he presented his checks, consented to this deduction of 5 per cent. This being so, and the consideration being illegal, the plaintiff appears to us to be particeps criminis. He is in pari delicto with the bank, and while the law will not enforce an executory contract, but leave the parties as it finds them in such case, so neither will it aid the party who has performed such contract, by enabling him to recover back the amount he has paid, but the maxim volenti non fit injuria applies in all its force. There is, perhaps, no principle on which there is less conflict of authority, from the earliest to the most modern reports. Roll v. Raguet, 4 Ohio, 418; Ruguet v. Roll, 7 id. 78; Stone v. Hooker, 9 Cow. 154; Moore v. Adams, 8 Ohio, 372."

In Perkins v. Savage, 15 Wend. 412, it is said: "It is supposed, however, by the counsel for the plaintiff, that if the contract is conceded to be illegal as against the policy of the act of incorporation, still the only consequence is to avoid it, and that the money placed in the hands of the defendant in pursuance thereof may be recovered back. He has referred to a number of cases for the purpose of supporting this proposition. * * *This proposition is laid down by Mr. Selwyn, vol. 1, p. 74, and is fully supported by authority, viz.: Where money is paid by one of two parties to an illegal contract to the other, in a case where both parties may be considered as particeps criminis, an action cannot be maintained after the contract is executed to recover the money back again, for in pari delicto potior est conditio defendentis. 2 T. R. 777; Doug. 467, 697; Cowp. 792. The same general proposition may be found in 2 Comyn on Contracts, 108, and also in Sanders on Pleading and Evidence, 677. This author says. "If the illegal contract be executed, and both parties are in pari delicto, no action lies to recover money paid under it. The same principle has been recognized and applied on the recent cases in the English courts, as it also has been by the chief justice in this court. Taunt. 492; 1 Maule & Selw. 500, 751; 6 Cow. 432." See, also, Spence v. Harvey, 22 Cal. 337; Halladay v. Patterson, 5 Oregon, 177; Bolt v. Rogers, 3 Paige, 154. 2. It is claimed, however, by appellees, that if it should be conceded that the contract in question is against public policy, still, the plaintiffs have a right to recover exactly what they were allowed in this case. It is claimed that the defendants procured the contract by fraud, and that therefore the plaintiff may recover.

8

and is entitled to institute and prosecute the action. Is his claim valid? We think not.

The authority of an attorney retained to prosecute or defend an action extends only to the recovery of final judgment and to its enforcement by execution or other subsidiary proceedings. He cannot institute a new action to revive or enforce the judgment without a new warrant or authority from his client. Kellogg v. Gilbert, 10 Johns. 220; Walradt v. Maynard, 3 Barb. 584; Lusk v. Hastings, 1 Hill, 658; Macbeath v. Cooke, 1 Moore & Payne, 513; 4 Bing. 578; Richardson v. Talbott, 2 Bibb, 382; Hinkley v. St. Anthony Falls Co., 9 Minn. 55; Egan v. Rooney, 38 How. Pr. 121; Day v. Welles, 31 Conn. 344.

The attorney, in support of his right to sue the judgment by virtue of his lien, cites Woods v. Berry, 4 Gray, 357; Stratton v. Hussey, 62 Me. 283; Currier v. Boston & Maine R. R., 37 N. H. 223; Marshall v. Meech, 51 N. Y. 140. The first two cases, those from Massachusetts and Maine, hold that the attorney has the right to sue the judgment, by virtue of his lien for fees and disbursements, which in those States is given by statute, no lien at common law having ever been recognized. The cases are therefore not very strong authority for a State where no such statute exists. The other two cases emphatically assert the lien, but do not expressly decide that it authorizes the attorney to sue the judgment. The New York case, however, does hold that the attorney is to the amount of his lien to be deemed an equitable assignee of the judgment, which is perhaps equivalent to holding that he has a right to sue it. But in our opinion it is going too far to hold that the attorney has the same control of the judgment as if it were assigned to him, for if he had, his client could not settle with the adverse party, and it has been repeatedly decided that he can settle with him, unless they collude to cheat the attorney. Graves v. Eades, 5 Taunt. 429; also 1 Marsh. C. P. 113; Marr v. Smith, 4 B. & A. 466; Welsh v. Hole, 1 Doug. 238. And even when the parties collude, the remedy is not in the hands of the attorney; but the judgment being released and the sheriff notified not to proceed, the sheriff will be liable as a trespasser if he does proceed, though he proceeds under the order of the attorney for the costs. Barker v. St. Quintin, 12 M. & W. 441. The proper course for the attorney in such a case is to ask the intervention of the court. Id.; also Rooney v. Second Avenue R. R. Co., 18 N. Y. 368.

The origin and extent of the lien at common law is obscure. Baron Parke said, in Barker v. St. Quintin, supra, "the lien which an attorney is said to have on a judgment, which is perhaps an incorrect expression, is merely a claim to the equitable interference of the court to have the judgment held as a security for the debt." This view of the lien was approved in Hough v. Edwards, 1 H. & N. 171, Baron Martin adding, by way of further explication, that "the right of the attorney is merely this, * that if he gets the fruits of the judgment into his hands, the court will not deprive him of them until his costs are paid." Accordingly, in Hough v. Edwards, the court held that an attachment of the judgment was paramount to the lien.

* *

In our opinion, the two remarks of Baron Parke and Baron Martin, together, pretty exactly define the lien. Primarily, without doubt, the lien originates in the control which the attorney has by his retainer over the judgment, and the processes for its enforcement. This enables him to collect the judgment, and reimburse himself out of the proceeds. It gives him no right, however, to exceed the authority conferred by his retainer. But inasmuch as the attorney has the right, or at least is induced, to rely on his retainer to secure him in this way for his fees and disbursements, he thereby acquires a sort of equity, to the extent of his fees and disbursements, to control the judgment

and its incidental processes, against his client and the adverse party colluding with his client, which the court will, in the exercise of a reasonable discretion, protect and enforce. And on the same ground the court will, when it can, protect the attorney in matters of equitable set-off. We think this is the full scope of the lien, if lien it can be called. It does not authorize the attorney to sue the judgment, without the consent or direction of the client. See Jordan v. Hunt, 3 Dowl. P. C. 666; Francis v. Webb, 7 C. B. 731; Jones v. Bonner, 2 Exch. 229; Clark v. Smith, 6 M. & G. 1051.

The attorney contends that the judgment being in favor of his client as defendant, only for his costs, belongs absolutely to the attorney. If this be so, the right of the attorney to sue the judgment can hardly be questioned. We are not prepared to say that it is not so in some States by statute. We do not find any statute which convinces us that it is so in this State, and prima facie, the judgment belongs to the party in whose favor it is rendered. In People v. Hardenbergh, 8 Johns. 209, it was decided that a settlement of the costs by the defendant in a suit, in whose favor they are awarded, with the plaintiff, is valid, if made without notice from the defendant's attorney of any claim or lien, and without any collusion to deprive the attorney of his costs. This decision is inconsistent with the idea of absolute ownership by the attorney. See, also, Quested v. Callis, 10 M. & W. 19. We have no doubt that attorneys are accustomed to treat the costs as their perquisites, and the custom is not wholly without warrant, inasmuch as the costs do more specifically represent their disbursements and services than the debt or damages. But so far as we know, the custom has never been held to authorize the attorney to sue the judgment for his own benefit, or to do more than enforce it by the usual processes, and having collected it, pocket the costs without accounting for them to his client.

The judgment if sued would be liable to statutory set-off; and thus the attorney, if allowed to sue it without the consent of the client, might involve him in an unwished-for controversy, with the possible result of a judgment against him instead of one in his favor. Nicoll v. Nicoll, 16 Wend. 446; Brooks v. Hanford, 15 Abb. Pr. 342; Benjamin v. Benjamin, 17 Conn.

110.

Our conclusion is that the attorney instituted and is prosecuting the action without authority, and that it must therefore be dismissed; for though the court will presume that an attorney who brings an action has authority to bring it, until the contrary appears, yet it will not knowingly permit him to abuse his privilege; but when the contrary appears, will for its own protection as well as for the protection of the parties, order the action dismissed. Frye v. County of Calhoun, 14 Ill. 132; Crichfield v. Porter, 3 Ohio, 518; Campbell v. Bristol, 19 Wend. 101; Dobbins v. Dupree, 39 Ga. 394. Of course, however, we cannot enter any judgment against the plaintiff for costs; for the dismissal is ordered on the ground that the plaintiff is not legally in court.