6 N.Y. 374 | NY | 1852
Assuming that on the 30th of April, 1845, when Newbury & Burch dissolved their copartnership at Chicago, Isaac H. Burch and Thomas Burch were joint
Admitting that the transaction at Chicago on the thirtieth of April, respecting the two 85000 notes of Newbury & Burch, and their draft and order on J. T. Smith & Co., is to be regarded as between I. H. Burch & Co. of the one part, and Newbury & Burch of the other, Isaac H. Burch is to be deémed as acting, and duly empowered to act, for himself and the plaintiff. It was, in substance, a purchase by I. II. Burch & Co. of the New-York city funds, with a view, to their future business, aud clearly within the scope of their partnership. No doubt can be entertained, that all the title and interest, both legal and equitable, of Newbury & Burch in and to the drafts mentioned in the order, or, if any of them were sold, in and to the proceeds of the sales in the' hands of Smith & Co., were, by force of the order and the concurrent acts of the parties connected with it, completely transferred to and absolutely vested in Isaac H. Burch and the plaintiff, who thereby succeeded to all the rights of Newbury & Burch to the drafts and their avails. The operation of the order was an equitable, and I think a legal, assignment to I. H. Burch and the plaintiff of the drafts specified in it, and their avails, in the hands of Smith & Co.
In case an action should become necessary against Smith & Co., to recover the drafts or their avails, or against the parties liable upon the drafts not sold to collect their amounts from such parties, Isaac H. Burch and the plaintiff would be the proper persons to make plaintiffs in such action. The order was not a bill of exchange, being drawn, not for money generally, but for the specific drafts mentioned ; or, in the alternative of the drafts or any of them having been converted into money, then for the payment of that money. A bill of exchange in its proper, legal sense, is for the payment, at all events, in money of a sum certain, and must not be in the alternative, or payable out of a particular fund; and in order to give the holder a right of action upon it, against the payee, must be accepted by the drawee. None of these characteristics appertain to the order in question. If it had been a bill of exchange, in the sense described, it would not have operated as an assignment of any funds in Smith & Go’s, hands, to I. H. Burch & Co., and the only way in which Newbury & Burch, the drawers, could have been made liable upon it would have been by a regular protest for non-acceptance or non-payment, or something equivalent thereto. I have remarked that Isaac H. Burch and the plaintiff would be the proper parties’ plaintiff in an action against Smith & Co. to recover the drafts or their proceeds. By this I do not mean that an action would lie in their favor upon the order, but that they could maintain it as purchasers and assignees of Newbury & Burch of the drafts, or the moneys received upon their sale by
The case was ably examined in the supreme court, and the decision, dismissing the bill, was placed upon several grounds. The view I have presented seems to me to be the most favorable that can be taken for the plaintiff; and if I am correct, he has shown no ground for any relief against the defendant Newbury, who alone defends; and the bill, as to him, was properly dismissed.
I think the judgment of the supreme court should be affirmed, with costs.
On the argument the counsel for the defendant insisted that the court should review the order made by the supreme court, denying the motion made in that court in November, 1849, to dismiss the appeal in that court, it being an intermediate order involving the merits and necessarily affecting the judgment.
Preliminary to the argument on the merits, that question was discussed; but a decision of it was finally reserved, and the argument, on the merits of the cause, proceeded. It is proper, therefore, in the first place, to dispose of this question.
The facts in respect to it are substantially these: The suit was commenced in 1845, before the chancellor; was put at issue and the proofs closed by an order entered on the 30th day of June, 1847. On the second Monday of December, in the same year, it was brought to argument before the supreme court at a special term, when a decree was made
On the 29th of June, 1849, notice of an appeal from the said decree so made at the special term, with the copy of an undertaking, was served on the solicitor for the defendant by the solicitor for the complainant, with a notice of argument for the then next general term appointed to be held in the fourth district on the first Monday in September then next, upon which the defendant’s solicitor gave notice of a motion to be made in the same court at the same time to dismiss the appeal. The motion was made, and at November term, 1849, was denied. (4 How. Pr. R., 145.) At January term, 1850, the cause was argued at the general term of the supreme court held in the fifth district, and at the next May term, that court made a decree affirming the decree of the special term, with costs: from that decree, the complainant appealed to this court. The supreme court was organized under the act “ in relation to the judiciary,” passed May 12, 1847 (Laws of that year, 319), and by § 16 of that act was vested with all the powers, which the late supreme court and court of chancery possessed. By § 24 of that act it was provided that a general term of the supreme court organized by that act, should be held at the capítol in the city of Albany, on the first Monday of July, 1847, and among
By § 7 of the act to facilitate the determination of existing suits in the courts of this state, passed April 12,1848, which, with the exception of § 2, took effect on that day, it was provided, among other things, that no rehearing should be had at a general term of the supreme court, of an order or decree made at a special term, unless notice of the same should be given within two days after notice of the order or decree to be reheard. This provision is continued in § 7,
It was not claimed by the counsel for the complainant that the appeal from the decree made at the special term had been taken in pursuance of any of the provisions of the judiciary act of 1847, or of the act to facilitate the determination of existing suits to which I have referred, but under the provisions of § 460 of the Code as amended by the act of the 11th of April, 1849. {Laws of that year, 703.) That section provides that “ an appeal may be taken from any final decree entered upon the direction of a single judge, in any suit in equity, pending in the supreme court on the first day of July, one thousand eight hundred and forty-seven, within ninety days from the time this act shall take efiect; but this section shall not apply to cases where a rehearing has already been had or ordered, and such appeal shall be taken in the manner provided in section three hundred and twenty-seven and three hundred and forty-eight.”
On the part of the defendant it was contended that this section did not apply to this case, because the suit, in which the decree appealed from was made, was not pending in the supreme court on the day mentioned in the law; namely, the 1st day of July, 1847. That fact does not admit of any question, for no suit which was pending either in the late court of chancery or supreme court at the time the constitution of 1846 took eifect, was transferred to the present supreme court until the first Monday (which was the fifth day) of July, 1847. ( Const., art. 14, § 5.) It was, however, insisted that § 460 should be construed as applying to such suits, although they were not pending in the supreme court until the first Monday of July, 1847, notwithstanding the words of the act; on the ground that it was obvious that the legislature intended it to have that application. It is clear that unless it can have such application, it is wholly nugatory, for there was no suit pending in the supreme court on the day specified in the act, and of course there could not be
The general rules on this subject require that such construction ought to be put upon a statute as may best answer the intention which the makers had in view, which may sometimes be collected from the cause or necessity of making the statute, and sometimes from other circumstances; and whenever such intention can be discovered, it ought to be followed with reason and discretion, in the construction of the statute, although such construction seem contrary to the letter of the statute. Where any words are obscure or-doubtful, the intention of the legislature is to be resorted to in order to find the meaning of the words. A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of a statute, is not within the statute, unless it be within the intention of the makers ; and such construction ought to be put upon it as does not suffer it to be eluded. (Bac. Abr., tit., stat. 9, 5, 10; 2 Kent Com., 462; The Watervliet Turnpike Company v. McKean, 6 Hill, 616, and the cases there cited; Dwarris on Statutes, 690, 696, 703.)
The provision made for an appeal by § 460 is sensible if applied to decrees made in suits pending in the supreme court on the first Monday of July, 1847, but entirely senseless if applied to decrees made in suits pending on the Is? day of July in that year.
If we look into the several statutes passed by the legislature, to provide for the organization of the courts under the
It was next contended by the defendant that § 460 was void as having been passed by the legislature in violation of art. 1, § 10, subd. 1, of the constitution of the United States. The provision referred to, prohibits any state, among other things, from passing any ex post facto law, or law impairing the obligation of contracts.
The clause, “ that no state shall pass any ex post facto law, means nothing more than that the legislatures of the several states, shall not pass laws after a fact done by a person, which shall have relation to such fact, and shall punish him for having done it.
The object of the provision was not to secure persons in their private rights either of property or -contract. That provision is not applicable to civil laws, which affect private rights retrospectively, but to penal and criminal laws, which impose punishments or forfeitures, for acts indifferent in themselves when committed, by a law passed subsequently. Colder v. Bull, 3 Dallas, 386; Fletcher v. Peck, 6 Cranch, 138; Ogden v. Saunders, 12 Wheaton, 266; Satterlee v. Mathewson, 2 Peters, 380; Watson v. Mercer, 8 Peters, 110.)
The general interpretation has been, and is, as is said by the late Judge Stoby (3 Story Com. on the Const, of the U. S., § 1339), that the phrase, ex post facto laws, applies to acts of a criminal nature only; and that the prohibition reaches every law, whereby an act is declared a crime and made
If the effect of the act in question was to divest Newbury of an antecedent vested right, but not to impair the obligation of any contract, it is not void as contrary to the constitution of the United States. For it is well settled that that instrument does not prohibit the states from passing retrospective laws, divesting antecedent vested rights of property, provided such laws do not impair the obligation of contracts, or partake of the character of ex post facto laws, however repugnant they may be to the principles of sound legislation. (Charles River Bridge v. Warren Bridge, 11 Peters, 539, 540.)
Under our form of government the legislature is not omnipotent, whatever the parliament of England may be in theory. It is only one of the organs of that absolute sovereignty which resides in the whole body of the people. It has the power, subject to the qualified negative of the governor, to pass any law which it may deem necessary for the public good, not inconsistent with the first principles of government, nor contrary to the provisions of the constitution of this state or of the United States.
It is a familiar principle in jurisprudence, that a statute shall not have a retrospective effect so as to destroy a vested right. (Mann v. Eckford’s Executors, 15 Wend., 519.)
The late Chancellor Kent says (1 Kent Com. 455, § 20), that a retrospective statute, affecting and changing vested rights, is very generally considered, in this country, as founded on unconstitutional principles and consequently inoperative and void. This doctrine, however, is not understood to apply to remedial statutes, which may be of a retrospective nature provided they do not impair contracts or disturb absolute vested rights, and only go to confirm rights already existing, and in furtherance of the remedy by
In Dash v. Van Kleek (7 Johns., 477), Mr. Justice Spencer says, in reference to the power of the legislature, that he should undoubtedly deny that it could annul an existing judgment, because then there immediately arises a contract against the party adjudged to pay a sum of money in favor of him to whom it is awarded.
Previous to the passage of the act (§ 460) the defendant Newbury had obtained a complete and final decree against the complainant Burch, for the payment of a specific sum of money, and although there had existed, at the time of making the decree, a right in the complainant, for a time limited by law, to have the cause or matter in controversy between the parties, upon which the decree was made, reheard before the judges of the supreme court at general term, and an appeal from the decree that should be made by that court on such rehearing to the court of last resort — and a remedy full and complete to enforce such right—he allowed the time prescribed for pursuing his remedy to elapse without taking any steps to procure a rehearing; and thereby, as the law then stood, the decree obtained became indefeasible, completely vesting Newbury with the right to the money decreed to him which had been paid or collected of Burch, pursuant to the terms of the decree.
The misfortune of having vested rights, under judgments and decrees of our courts, thus disturbed is far from being trivial, if we consider that on this principle no judgment whatever in a court of law can be rested upon as final.
But it was said by the learned judge on denying the application to dismiss the appeal brought under § 460, that the act was not unconstitutional; that it was merely a pro vision to extend the time for bringing an appeal; that it affected the remedy only, and did not impair the obligation of contracts or take away a vested right. Several cases were cited, and among them the case of Calder v. Bull (3 Dallas, 386), as being an express authority in affirmance of the constitutionality of the section referred to. I do not understand such to be the effect of the decision in that case. It was this: On the 21st of March, 1793, the court of probates for Hartford county disapproved of the will of N. Morrison, and refused to record it. No appeal was made from that decree in eighteen months, and by that neglect and a statute of Connecticut all right of appeal was barred. In May, 1795, the legislature of Connecticut passed a resolution or law, setting aside the decree, and granted a new hearing by the same court of probates, with a right of appeal
observed, that the legislature of Connecticut acted in a double capacity, as a house of legislation with undefined authority, and also as a court of judicature in certain exigencies; and he came to the conclusion that the legislature in that instance acted in its accustomed judicial capacity.
The act assumes to create the means by which the complainant may open the decree for a reconsideration and adjudication upon the merits in controversy in the suit between the parties, irrespective of the present decree substantially, by another court having power to alter, modify or reverse the decree and to make a new decree adjudging money to be paid by the defendant to the complainant. In such an event, the money adjudged to and obtained by the defendant under the existing decree, would be taken from him and returned to the complainant, and the means provided by which—upon the contingency, that the appellate court shall come to a contrary conclusion upon the merits óf the controversy from that which the court, pronouncing the decree, came — it might and would be done.
It is in effect doing more than merely annulling a complete and final decree, by which property has been acquired and possessed. Contingently, it not only deprives such person of the property thus acquired, but compels him to pay to his adversary such sum of money as the appellate court may determine he ought to pay.
That the money adjudged to be paid by the decree and received by the defendant under it, was his property in a legal sense, at the time of the passing of the act, cannot
It is true the act does not absolutely deprive the defendant of the money decreed to him, but it does contingently in effect. I think the provision contained in the constitution referred to, secures a person against being deprived of his property, either contingently or absolutely. If the appeal authorized to be taken by the act may result in depriving the defendant of his property, it is in my opinion contrary to the constitution.
It cannot be pretended that the words “ without due process of law,” used in the constitutional provision, mean a statute passed for the purpose of working the wrong. They cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for determining the title to property. (Taylor v. Porter, 4 Hill, 146, 147.) My opinion therefore is, that the order denying the motion to dismiss the appeal should be reversed, as also the decree appealed from, and the appeal be dismissed with costs. But if I am mistaken in the conclusions to which I have come, as above stated, I think the decree appealed from should be affirmed substantially for the reasons given by the learned judges who ordered the decree at the special term and affirmed it at the general term. (1 Bari., 648.)
All the judges concurred in the opinion of Welles, J., except Gardiner, J., who disssented.
Decree affirmed.