Richardson agt. Crandall. both parties were actors; the degree of dereliction it might be difficult to discriminate, and if it could, that would not help the plaintiff, for the contract being executed, the law will not relieve him from the position in which he has voluntarily placed himself. I do not deem it necessary to spend any time upon the case of Webb agt. Albertson (4 Barb. 51), which was the leading and almost the only authority quoted on the argument to sustain the position of the plaintiff's counsel. The action in that case was by the commissioners of highways of a town to recover upon a bond given to them as such by certain individuals, covenanting to open and extend a highway without expense to the town. It was held that they could not recover, for the reason that the commissioners had no authority to take such a bond, and that the general policy of the law forbid the transaction. I will not stop to inquire whether, under the principle of recent decisions, by which acts of corporations and quasi corporations have been upheld, where the only objection was that they were ultra vires, this decision would now be sustained. It is enough to say that the action was one which sought to enforce a liability upon the bond, and where the contract had not been performed, but remained executory, and coming, therefore, within the principle in which, in cases of that nature, the courts have refused to interfere. To escape the application of the principle that where the parties stand in the same delictum, the courts will not interpose, the counsel for the plaintiff claims that inasmuch as the defendant was a public officer, the parties are not for that reason in pari delicto. Only two authorities are cited to sustain this position, viz: People agt. Whaley (6 Cow. 661), and Chappel agt. Poles (2 M. & W. 867). It is enough to say of the first case, that it was an indictment against the defendant as a justice of the peace for extortion, and has of course no bearing upon the question involved here. There is no doubt that civil actions as well VOL. XXX. 10 Richardson agt. Crandall. as criminal prosecutions, may be maintained against officers who under color, and by the assumed powers of their offices, exact illegal fees, or take bribes for the performance of official duty, and they stand upon the plain grounds either of being violations of positive enactments, or as acts of oppression exercised upon victims, reluctant but incapable of resistance. The case of Chappell agt. Poles, was an action against parish officers to recover the balance of money paid to them by the putative father of an illegitimate child which had died, while but a small part had been expended in its support. The plaintiff recovered on the ground that the money was paid upon a consideration. which having to the extent of the unexpended balance, failed, that portion could be recovered back, or, to use the words of Lord ABINGER, "the death of the child left the other money in their hands, which, at all events, they oughtto have repaid the father, after the object of the payment by him had been exhausted." This is putting the case upon a very simple and obvious ground, and the decision cannot fairly be cited as authority for anything beyond this. It is not put upon the footing that the defendants were public officers, and for that reason occupied a less favorable position than the plaintiff. Nor can any such proposition, I am persuaded, be successfully maintained in this case. The counsel for the plaintiff urges that the agreement in this case is void for want of consideration, and also by the statute of frauds, as being a contract to answer for the default of a third party, and not manifested by writing. The obvious answer to these suggestions is, that this is not an action upon the agreement-if it was, there might be force in the objection. But after a party has voluntarily performed an agreement, it is too late for him to urge either that it was not attended by these formal solemnities to a perfect execution which the law requires, or was not upheld by a sufficient consideration. The party waived all these, even if he might originally have insisted upon them, by Richardson agt. Crandall. doing the thing which he had contracted to do; and his locus penitentiæ, if he ever had any, has long since passed. It was claimed that the defence which is interposed in this case, is inadmissible under the pleadings, and the facts embraced in the stipulation could only be given in evidence under an answer specially setting them forth. I do not apprehend there is any difficulty on this point. The answer is a general denial of the allegations of the complaint, and the complaint avers that the defendant became possessed of the bonds in question, and unlawfully withholds them from the plaintiff. This is a substantive allegation essential to the right of recovery, and the answer takes issue on this. The facts proved at the trial show, as I have endeavored to establish, that the defendant came rightfully by the possession of the bonds, and that he lawfully retains them. If so, his defence is perfect, and he needs no other shield than the general issue. But if it were otherwise, there would be no difficulty in allowing the defendant's pleading to be conformed to the facts proved, and this may be done now or at any time before judgment. Having arrived at these conclusions, there is nothing to add but to direct that a judgment dismissing the complaint, with costs, and ordering a restitution of the bonds, be entered; but as the amount involved is large, and the plaintiff will doubtless desire to review the case on appeal, I grant an order staying all proceedings for twenty days, to enable the plaintiff to prepare a case with exceptions, and if prepared and served within that time, staying all further proceedings until the argument and decision of the exceptions. People agt. The New York Central Railroad Company. SUPREME COURT. THE PEOPLE OF THE STATE OF NEW YORK agt. THE NEW YORK CENTRAL RAILROAD COMPANY. An order for an extra allowance, under section 309 of the Code, is appealable—to the general term and to the court of appeals. The amount of the recovery or claim mentioned in this section under which the allowance is granted, is not the measure but rather the limit of the allowance. Where in a case which is a proper one for an extra allowance, a large amount is claimed, the claim in the action being large, the court should require some specific facts to be stated, such as moneys actually expended, or liabilities actually incurred, or time and labor consumed by the counsel or the party in the preparation and trial of the cause-how much time was occupied in the trial, whether there was more than one trial at the circuit, how often it was postponed, whether it was argued more than once at the general term, or long accounts taken upon a reference, &c. There is no authority for enlarging the sum granted so as to cover expenses and services which may or may not be incurred and rendered by the respondent in the court of appeals-especially where there has been no new trial, and there has been but one appeal. It is clear from the provisions of the Code, that the allowance is no part of the costs in the court of appeals, but exclusively a part of the costs in the court below. The motion for it is usually made at the close of the trial, and always before the entry of the judgment, and when granted, the sum allowed is included in the bill of costs and inserted in the, judgment roll as a part of the judgment. Brooklyn General Term, December, 1865. Before BROWN, SCRUGHAM and BARNARD, Justices. JOHN H. REYNOLDS, for the plaintiffs. A. C. PAIGE and LYMAN TREMAIN, for defendants. BROWN, J. The court of appeals has determined that this court committed an error in refusing to entertain the plaintiffs' appeal from the order of the 14th July, 1863, awarding an extra allowance to the defendants under section 309 of the Code. The court in substance say, that the Code in terms makes this matter of extra allowance discretionary, but it is not the discretion alone of the single judge who makes the order, nor does that expression affect at all the jurisdiction of the several branches of the People agt. The New York Central Railroad Company. supreme court. The opinion also declares that an order which peremptorily and finally charges a party with the payment of a sum of money great or small, which he ought. not to pay, or with a greater amount than he ought to pay, affects his rights not in form but in substance. Such being the nature of the order appealed from, it was examinable at the general term, and it was error in this court to dismiss the defendants' appeal, and refuse to take cognizance of and examine it upon its merits. This we are now required to do, and an examination upon the merits can mean nothing else but an examination of the motion papers, with a view to ascertain whether they furnish sufficient grounds for the allowance given. We have no hesitation in finding that the case was extraordinary and difficult, and, therefore, a proper one for an extra allowance. This is apparent from an examination of the papers, as it is also conceded by the attorney general's stipulation of the 20th July, 1861. The principal question arises upon the sum awarded, $20,000, which is thought to be excessive, and without any precedent to justify it. The dignity, wealth and power of the litigants has nothing to do with the subject. Whatever measure of justice would be meted out to others must also be meted to them. It would be reasonable and eminently just, to require a party seeking such a sum in addition to the usual costs of the litigation, to furnish to the court some specific facts, such as moneys actually expended, or liabilities actually incurred, or time and labor consumed by the counsel or the servants of the company in the preparation and trial of the action. We see that the question involved was the constitutional power of the legislature to relieve the railroad company from the payment of certain tolls, which was disposed of by the judge at the circuit at the close of the plaintiff's evidence, but how much time was occupied in the trial, whether there was more than one trial at the circuit, how often it was postponed, whether it 1 |