Dale v. Redfield. the affidavit last recited in Dale v. Redfield, and further stating, that their contract with the Douglases was not in writing; and that, for want of protests, they never had any cause of action for the recovery of duties on charges and commissions, but they had and have a cause of action to recover fees. It otherwise appears, that protests were made against the exaction of the fees from the plaintiffs in these two suits; that, from and after the death of Alfred Douglas, Jr., the plaintiffs never made, until recently, as before stated, any inquiry of his estate or of any of his attorneys, as to the claims, or manifested any interest in them, or asserted any right to appoint attorneys on their own nomination. The Douglas estate claims the right to conduct these suits, if the judgments are opened. It asserts that the contract survived Douglas, and that, in any event, it must be compensated before there can be any substitution of an attorney in place of Mr. Jordan. The propositions contended for, on behalf of the plaintiffs, are, that the executors of Alfred Douglas, Jr., had no right to substitute Mr. Cromwell as attorney in place of Mr. Smith, or Mr. Jordan in place of Mr. Cromwell, after the death of Mr. Smith, he having been appointed by Mr. Douglas; that the plaintiffs are not concluded by the decision of November 20th, 1878, made on a motion of which only Mr. Jordan, and not the plaintiffs, had notice; and that the judgment of March 1st, 1881, does not bind the plaintiffs. To support these contentions, it is urged by the plaintiffs; (1) that the death of the two Douglases terminated the agency; (2) that the power given to them was not a power coupled with an interest; (3) that the power was a personal trust or a personal contract; (4) that Mr. Jordan's appearances were a nullity, and the judgments of March 1st, 1881, were, therefore, void. 1. It is apparent, from the contract between the plaintiff's and the Douglases, that the plaintiffs employed the Douglases to endeavor to establish, by legal decisions or otherwise, that the exactions were illegal, and to recover back the excess paid. The obtaining of legal decisions involved the bringing Dale v. Redfield. of suits in the names of the plaintiffs. The contract implied that attorneys at law were to be employed by the Douglases, and paid by them, with the chance, on their part, of reimbursement, if at all, only out of their half of the recovery. Such an arrangement could be carried out only by allowing the Douglases to have the control of the appointment and change of attorneys at law, the plaintiffs giving the use of their names, as having the title to the causes of action, but the Douglases agreeing to pay all costs and expenses in any event. Such was the practical construction of the contract by the parties to it. The plaintiffs, for nearly twenty years, allowed the Douglases, and the survivor of them, and his executors, to employ and change attorneys. The Douglases first employed Kaufmann, Frank and Wilcoxson. In 1866, Alfred Douglas, Jr., employed Smith. He continued to act, after 1876, when Alfred Douglas, Jr., died, until 1878, when he died himself. Then the executors of Alfred Douglas, Jr., employed Mr. Cromwell and afterwards Mr. Jordan. It matters not that the plaintiffs did not hear, for seven years, of the death of Alfred Douglas, Jr., or, for five years, of the death of Mr. Smith. The acquiescence was the same as if they had heard of such deaths when they occurred, so far as the executors and the defendants were concerned. The plaintiff's knew they had put the matter into the hands of the Douglases, and it sufficiently appears that they knew of Mr. Smith's employment. Inquiry was easy, especially as the statute has, since 1863, required that the attorney for the United States shall be the attorney for the defendant. Under such circumstances, negligence was acquiescence and consent. The very negligence serves to show that the plaintiffs regarded the whole matter as out of their own hands, until there should be a recovery, or, at least, until they should, for good cause, interpose. By the contract, the Douglases acquired a substantial and valuable interest, as between themselves and the plaintiffs, in one half of the claims, subject to the payment by themselves of all costs and expenses incurred about recovering them, even though nothing should be recovered. Dale v. Redfield. They had, with the authority given them by their contract relation, an interest, by virtue of which they and the survivor of them, and the executors of the survivor, were entitled to manage and control the claims and the suits, and appoint attorneys at law in them, at least until the plaintiffs should interpose, and then it would be for the Court to determine on what terms there should be a change of relationship, as was done in Dodge v. Schell (20 Blatchf. C. C. R., 517), in regard to one of the suits brought under the contract with the Douglases. The relation of the plaintiffs to the suits, when they do interpose, raises questions which are not necessarily the same as those raised, prior to such interposition, between the defendant and the executors of Alfred Douglas, Jr., and an attorney appointed by them. For this reason, there may be in each case special circumstances, as to the services rendered by the Douglases or by the attorneys employed by them, or the survivor of them, or his executors, and as to the position of the claim and the suit, at the time of such interposition, which may require consideration. The cases cited and relied on by the plaintiffs have no relevancy. In Shelton v. Tiffin (6 Пow., 163), the person whom it was sought to bind by the judgment, through an appearance for him by an attorney, had not been served with process in the suit or had any notice of it, and had not authorized any appearance for him. But here the plaintiffs set the suits in motion by their contracts with the Douglases, and do not attempt to question anything done prior to Mr. Smith's death. The provision cited from the New York statute in regard to notice to a party, on the death of his attorney, to appoint a new one, has no application to a case where, as here, a new attorney is otherwise duly appointed. 2. It is apparent, that the sole object, now, of reinstating these two suits, is to obtain in them a recovery for the fees referred to. The judgments of March 1st, 1881, were entered for want of prosecution of the suits, because of the failure to serve bills of particulars, and on the view, entertained in good VOL. XXIII.-2 Dale v. Redfield. faith, at the time, by all parties, that there was no cause of action, there being no claim in them for duties paid on charges and commissions, and it not being supposed that moneys paid for fees were recoverable. Everything goes to show that, until April, 1881, though the suits had been pending fifteen and eighteen years respectively, no one had supposed there could be a recovery in them for fees. Under such circumstances, the estates of the collectors, both of whom are dead, and the United States, who respond to the claims, have rights which are entitled to consideration. The attorney for the defendants, by due proceedings, obtained the judgments. Having put an end to the suits, after so long a lapse of time, and so much more time having elapsed thereafter, before the plaintiffs attempted to interpose, the defendants and the Government have a right to hold the plaintiffs to their responsibility for the laches, there being no actual fraud or bad faith shown. In Bronson v. Schulten (104 U. S., 410), the negligence or inattention of the plaintiffs, or their attorney, was held to be a bar to the correction of an erroneous judgment after the term at which it was rendered. The first recovery for fees, in April, 1881, was, as the statute shows, at a term subsequent to that at which these judgments were rendered. The motion to quash the writ in Strang v. Schell is granted, and the motions of the plaintiffs in that suit and in Dule v. Redfield, are denied. Lewis Sanders and George N. Sanders, for the plaintiffs. Elihu Root (District Attorney), Thomas Greenwood (Assistant District Attorney), and Ladislas Kargé (Assistant District Attorney), for the defendants. William Nelson Cromwell, for the executors of Douglas. Rensens v. The Mexican National Construction Company. GUILLAUME RENSENS vs. THE MEXICAN NATIONAL CONSTRUCTION COMPANY. R. subscribed to a loan to the M. company, under a contract by which the company agreed to deposit securities with a trustee, to repay the loan by a day named. R. paid his subscription, and received instalment receipts, not transferable without the consent of the company, but, by the contract, exchangeable for certificates made by the trustee, of the interest in the loan. Before R. had paid in full, the company transferred the securities to the trus tee, under a trust deed which provided for the giving of certificates under it, and for a sale of the securities if the holders of 25 per cent. in amount of the certificates authorized it, and that a majority might waive a default in payment and extend the time of payment, and postpone the sale of the securities, R. did not know of the trust deed, when he paid. He was refused a certificate under the contract, and was offered one under the trust deed. In a suit by him against the company, to recover his money: Held, that R. was not bound by the trust deed, and could recover back the money without tendering the receipts, and was not obliged to sue merely for a breach of the contract. Where money is advanced upon an executory contract, which the contracting party fails to perform, the other party may elect either to sue for damages for a breach, or treat the contract as rescinded, and recover back the money as paid on a consideration which has failed. (Before WALLACE, J., Southern District of New York, December 13th, 1884.) WALLACE, J. The demurrer to the complaint raises the question, whether the plaintiff can recover as for money had and received, upon the following facts: In May, 1883, the defendant sought subscriptions to a loan to be made to it of $2,000,000, to aid in constructing the railroad of the Mexican National Railway Company; and, on May 30th, 1883, the plaintiff became a subscriber, to the extent of $25,000, upon the terms of a contract of subscription. By this contract, the defendant agreed to deposit in trust, with a trustee named, certain securities, aggregating, in nominal value, $20,000,000, |