Barnes agt. Atlantic Mutual Life Insurance Company.

The appellate courts could make no provision except for taxable costs, which, from the proof in this case, would afford no adequate compensation for the labor performed and the disbursements incurred.

So, also, it has in the same sense passed upon the receiver's costs and disbursements, but who doubts for a moment that the court can direct payment out of the fund (if it has not already done so) of a fair and reasonable sum to the counsel for the receiver for his costs, counsel fee and disbursements in the matter. I feel not the slightest embarrassment from this objection; if I am right in the main propositions discussed I am confident the plaintiff's claim is not barred by any previous action taken by the court as to the allowance of

costs.

It follows from the views expressed that the plaintiff is entitled to the relief demanded in the complaint. The amount seems large, very large to me. I am aware of the well known and conceded ability of the plaintiff as a lawyer, and particularly in cases and proceedings of a character in which the services were rendered for which this action is brought. I can appreciate the great amount of labor and research bestowed and the large amount of money necessarily expended in printing and other expenses. Still, in view of the fact that the value of these services so rendered and charged were sworn to be fair and reasonable by disinterested witnesses offered by the plaintiff, and even $2,000 less than their actual value, and that no witness was called on the part of the defendant, or either of them, to question the same, I do not feel justified in departing from undisputed testimony to fix a different sum

or amount.

The conclusions to which I have arrived have been hastily written but were not reached until after the most careful examination and investigation of the case, and the authorities to which my attention was called and others consistent with other official duties.

As I have stated the action is somewhat novel and not

Matter of Lewis.

entirely free from embarrassment. The interesting questions raised and the large amount involved demand and will doubtless receive the most careful consideration of the highest appellate tribunal, and when a decision thereon shall have been pronounced by that tribunal important principles will be settled as to which some doubts may now exist.

Judgment is ordered for the plaintiff for the amount and interest demanded in the complaint, and in the manner claimed, together with costs.

COURT OF APPEALS.

In the Matter of the Assignment of JOHN W. LEWIS for the benefit of his creditors.

Assignee - his duty as to payment of taxes on assigned real estate.

An assignee for the benefit of creditors is not required, pending an action for the foreclosure of a mortgage made by his assignor, where the mortgagees have possession of the mortgaged lands, through a receiver, to pay taxes in arrears when the mortgaged lands are insufficient security.

June, 1880.

FINCH, J.-The assignor in this case, in 1876, executed his bond and mortgage to Upham & Tucker, as trustees, to secure a debt due to them of $25,000. In 1879 he made a general assignment to John A. Davenport, in trust, to pay certain preferred creditors in full, or ratably, and out of any surplus remaining to pay the balance of his indebtedness in full, or so far as the assigned estate would allow. The mortgage contained a provision that upon failure to pay interest or taxes the whole mortgage debt, at the option of the creditor, should become due. That emergency arising the mortgagees commenced an action for the foreclosure of their security, and through the intervention of a receiver appointed upon their

Matter of Lewis.

motion became possessed of the mortgaged lands pending the foreclosure. It appears that Lewis having failed to pay the taxes of 1877, 1878 and 1879, and a Croton water tax, the mortgagees presented their petition to the court of common pleas of the city of New York reciting the foregoing facts and asserting that the mortgaged lands were an insufficient security for the debt and asked for an order that the assignee should pay and discharge the taxes in arrear. The assignment contained no provision giving any preference to taxes, or directing their payment at all, except as embraced in the general unpreferred debts of the assignor. The prayer of the petition was denied, and the order thereupon entered was afterwards affirmed by the general term.

We think the motion was properly decided. The assignee derives all his power from the assignment, which is both the guide and measure of his duty. Beyond that, or outside of its terms, he is powerless and without authority. The control of the court over his action is limited in the same way and can only be exercised to compel his performance of the stipulated and defined trust and protect the rights which flow from it. He distributes the proceeds of the estate placed in his care according to the dictation and under the sole guidance of the assignment, and the statutory provisions merely regulate and guard his exercise of an authority derived from the will of the assignor. The courts, therefore, cannot direct him to pay a debt of the assignor, or give it preference, in violation of the terms of the assignment and the rights of creditors under it. To hold the contrary would be to put the court in the place of the assignor and assert a right to modify the terms of the assignment, after it had taken effect, against the will of its maker and to the injury of those protected by it. We agree that the assignee is merely the representative of the debtor and must be governed by the express terms of his trust (Nicholson agt. Leavitt, 6 N. Y., 519). The case is not like those to which our attention was asked of the distribution of a decedent's or a bankrupt's estate. There the law dictates

Matter of Lewis.

the distribution, because in the one case the decedent did not do it during his life, and in the other by force of direct enactment the court takes possession of the estate which the bankrupt is unable to hold. But in cases of general assignment the right to control the distribution remains as yet in the assignor.

It is claimed that taxes constitute a debt due to the state and are entitled to preference in payment from an insolvent's effects. That they constitute a debt which the insolvent owes is true, and possibly an abstract right to a preference may belong to the state. But it is not necessary to discuss or determine that question, for the state is not here asserting any such claim. It has been content to rely upon its usual and ordinary modes of collection, and neither to assert nor enforce any such preference. It may never do so; and while it does. not we fail to see how an individual can interfere in its behalf. It is not for the plaintiff to say when or how it shall drive its rights to results, or assume to vindicate an authority it chooses not to exert. Nor can the assignee, upon the petition of these mortgagees, be required to pay the taxes and water rent accrued since the assignment. If compelled to do so by state or municipal authority he might be allowed the expense. Until then his duty to those interested in his trust requires a different action. They would have a right to insist that he should not incur a needless expense which produced no benefit to the fund but lessened it without necessity. The preference of the state, if it has any, is quite as much over the claim of these petitioners as over those of the general creditors, and we do not discover the equity which would lead us to enforce it against the latter for the benefit of the former.

The order should be affirmed.

All concur.

Oregon Steamship Company agt. Otis.

SUPREME COURT.

OREGON STEAMSHIP COMPANY agt. GEORGE K. OTIS.

Power of referee to amend pleadings.

A referee has the same power to allow amendments to any pleading as the court, upon such trial, upon the same terms and with like effect, and the matter being properly at his disposal, his action will not be reviewed by a judge at chambers

At Chambers, July, 1880.

In this suit the plaintiffs alleged that defendant, as their agent, made a contract with the United States for the transportation of the mails between San Francisco, California, and Portland, Oregon, from June, 1874, to June, 1878, for $100,000, for which service he was to have $2,500, but that he collected the whole amount and failed to account for $13,456.25, for which judgment is asked. The case is now on trial before Horace Ruggles, as referee. The plaintiffs, after closing their case, asked leave to amend their complaint so as to allege that defendant made the contract for himself and then employed plaintiffs to perform the service, for which he agreed to pay them ninety-seven and one-half per cent, and that $13,456.25 was due and unpaid. The referee denied the application, holding that a referee did not possess the power under the Code to make an amendment of the character proposed, which he said was not simply conforming the pleadings to the proofs nor correction of a variance between pleading and proofs, but a substitution of a new and different cause of action for that now set forth in the complaint. While the complaint in its present form was for money had and received the amendment changed it to one for work, labor and services. A motion was then made before judge DONOHUE, in supreme court cham