Dodd v. Una

The opinion of the court was delivered by Mag-ie, J. Before proceeding to state the questions presented by this appeal and my conclusions, some preliminary observations may properly be made. The original petition of the Newark Savings Institution, it must be observed, did not seek relief on the ground of an admitted insolvency, nor upon any statutory or other power of the-court to intervene to distribute its assets as those of an insolvent corporation. It did not seek the winding up of the institution,, nor the immediate distribution of assets, but the plainly apparent object of the petition and the order made thereon, was to so distribute the assets as to save and not to impair what was called the usefulness and permanency of the institution. That the legislative authority which creates institutions of this • character may provide, that in cases of insolvency, some court may intervene and administer the assets, is incapable of question.. Nor do I'think it capable of doubt that legislative authority may, if constitutional guaranties are not violated, provide that such institutions, when in danger of insolvency, may, by a summary proceeding, be taken into the control of a court and mam-aged under its direction, so as not only to bring about an equitable distribution of assets, but also, if possible, to continue the-existence of the institution, with its chartered rights and privileges unimpaired. Such legislation has been resorted to in this705 state, and the act approved April 5th, 1878 (P. L. of 1878 p. 421) is designed to confer on the court of chancery such power. But this petition and order preceded this act, and the validity of the proceeding is dependent upon the inherent power of the court of chancery, not derived from any specific statute. The opinion of the learned chancellor, on which the order of December 12th, 1877, was made, is reported in 1 Stew. Eq. 553. Prom the opinion it appears that the order was made on the ground that the petitioning institution was a general or public trustee, holding the money of its depositors in trust for investment, that the assets of the institution were held as a common fund for the security of all depositors, and that the subject-matter of the petition thus came within the right of the court of chancery to administer trusts. It should further be observed that the original proceeding was-wholly ex parte. No parties other than the petitioner were before the court, unless the managers, by virtue of their consent appended to the petition, or their conduct in reference thereto, can be considered to have become parties. The right of the court to-deal with the subject-matter of the petition, in the absence of parties whose interests were thereby materially affected, was not discussed in the opinion last mentioned. With respect to the proceeding initiated by the petition of respondents, whereon the order now appealed from was made, it should be observed that the proceeding was treated by the parties and the court as one in the interest of the petitioners, whose deposits had been largely affected by the misconduct charged, prosecuted in their behalf and under their control, and not as a proceeding initiated by the court to preserve its own dignity and power, and to punish those who had insulted the one or defied the other. The issue was made up not from formal interrogatories and answers under an attachment, but from the respective allegations of the petition and answers. Upon the issue so presented the parties were permitted to take testimony in a foreign state (Una v. Dodd, 11 Stew. Eq. 460), under the provisions of the evidence act (Rev. p. 384, §§ 38, 39), and on that evidence and [706] other evidence orally presented before one of the vice-chancellors, the order was made. The question which naturally first presents itself as important on this appeal relates to the extent of the reviewing power of this court in such eases. The order alleged to have been disobeyed has never been appealed from, and stands unreversed. The court which made it has determined that it has been disobeyed, and thereby a contempt of that court has been committed worthy of punishment. In reviewing that determination, how far may the original order be examined ? It seems to me unnecessary to take up this question — at least before making a preliminary inquiry. For it is conceded by respondent’s counsel, in their very able arguments, that unless appellant is prevented by his conduct from raising the question, the jurisdiction of the court of chancery to make the original order may be reviewed. While they contend that no person is to be permitted to test the regularity or propriety of an order by disobeying it, and while they insist that a decree adjudging a party guilty of contempt for such disobedience is not reviewable, yet they admit that- if the disobeyed order was one wholly without the jurisdiction of the court which made it, so that it was, when made, coram non judice and void, such lack of jurisdiction will be fatal to the proceedings for contempt, and an order adjudging «contempt will be reviewable. This accords with the well-settled doctrine that any decree or judgment made without jurisdiction and void, may be questioned even in a collateral proceeding. Munday v. Vail, 5 Vr. 418. In proceedings for contempt the jurisdiction of the court to make the order alleged to have been disobeyed may be questioned on an application for an attachment. People v. Sturtevant, 9 N. Y. 263. Or on a habeas corpus. Ex parte Fisk, 113 U. S. 713. This preliminary inquiry becomes essential in this case because appellant, by his counsel, strenuously contends that the order which he has been found to have violated was not, when made, within the jurisdiction of the court of chancery. It is not improper to state that this question has been approached [707] with a very strong sense of the propriety of upholding the jurisdiction which has been twice adjudged by the court of chancery to have been possessed by it, and on the unchallenged exercise ■of which jurisdiction large numbers of depositors have doubtless relied with confidence. A jurisdiction thus asserted and acted upon with such consequences, ought not to be now denied .unless it is very clear that it was erroneously asserted. The first question, then, is whether the order of December 12th, 1877, was within the jurisdiction of the court of chancery. As we have seen, the jurisdiction of that court was put by the learned judge who signed the order, on the right of the court of -chancery to administer trusts. When the proceeding for contempt came on before the vice-chancellor, this question of jurisdiction was raised. His opinion is reported in 12 Stew. Eq. 173. His view was that the assets of .a savings bank, when in the condition shown by the petition, were held in trust for its depositors. He held that it was a .matter of no importance whether the trust was a public trust, a .quasi charitable use, or a private trust, for the jurisdiction of the court over every trust relation was complete, and its adjudication, whether correct or erroneous, was conclusive until reversed. As to the presence of parties sufficient to justify the order, his view was that it was impossible, according to settled rules of procedure, to bring any other party before the court than those who were present, and that jurisdiction was at least acquired over the managers, whom he held to have been parties to the proceeding. In the argument addressed to this court, the counsel of respondents support the jurisdiction of the court of chancery solely upon its right to administer trusts. They insist that the relation of the institution to its depositors was one of trust, either a private trust, or one which they call quasi charitable or quasi public, and that jurisdiction was capable of being exercised in this proceeding, at least so as to be binding upon the managers -of the association. The questions suggested by these contentions respecting the .-relation between a savings bank and its depositors are these, viz.: [708] Whether the relation in all cases is that of debtor and creditor,, or that of trustee and cestui que trust; whether the relation between a solvent bank and its depositors differs from that between an insolvent bank and its depositors; and what is the relation in the condition presented by this petition. In Hannon v. Williams, 7 Stew. Eq. 255, Judge Green declared in this court that a savings bank was a quasi -charitable and purely benevolent institution, and that the depositors occupied to the corporation a double relation — one, resembling that of stockholders in other corporations, and the other, that of creditors. He said: “ In prosperity they are the stockholders, among whom profits are divided; in case of insolvency, they are the creditors, among whom the remaining assets are to be distributed.” In Chester v. Halliard, 9 Stew. Eq. 313, Chief-Justice Beasley, in his opinion in this court, declared that depositors in an insolvent savings bank, who sought to recover from directors moneys of the bank lost by their negligence, were but creditors of the corporation. In Williams v. McKay, 13 Stew. Eq. 189, it was declared in this court that the relation of managers of such an institution to depositors was a relation of trust, so that the statute of limitations would not run with respect to a claim by depositors against managers for losses occasioned by their mismanagement. Whether these cases establish the doctrine that a savings bank is, under all circumstances, or under the special circumstances shown in the petition presented in the proceeding now under discussion, a mere trustee for its depositors, need not, in my judgment, be determined. If the depositors were only creditors, and if their relation to-the institution was one of contract only, then-the claim of jurisdiction on the facts shown is admittedly erroneous. It can be sustained, if at all, only upon the ground of the relation being one of trust. I shall assume that the relation is of that nature, and so examine the question of jurisdiction. Many definitions may be found in the books declaring what jurisdiction is, but I have encountered none more concise and complete than that -given by Chief-Justice Beasley in Munday v. Vail, 5 Vr. 422, where he declares it'to be.“the right to adjudi709 ■cate concerning the subject-matter in a given case.” There must be, therefore, a subject-matter presented, which is within the jurisdiction, and that subject-matter must be so presented in the •case before the court as to justify action thereon. Assuming, then, a relation of trust, it was suggested below that it was a trust of a public nature, by which I understand, a charity. A charity, under all definitions of it, arises by reason of something in the nature of a gift to some general public use, and in general to be applied to an indefinite class or number of persons. £ Perry on Trusts § 697, and cases in note, particularly the opinion of Gray, J., in Jackson v. Phillips, Allen 593. But here is no gift or benefaction; there are no beneficiaries; the deposits are of the money of the depositors; they are deposited upon defined terms; and those interested are not indefinite, but known. If such institutions can properly be called charitable or benevolent I apprehend the terms are applied not in the legal sense, but as expressive of that kind of benevolence which aids others by enabling them to aid themselves, as these institutions -have been well said to do by encouraging habits of thrift, and enabling small savings to be put to use. This trust, moreover, if it be such, was to be administered according to fixed and defined terms. The charter and the bylaws made thereunder prescribe accurately on what terms the deposits are to be taken, invested and returned. It is the trust .so defined that the institution was bound to administer. The petition did not represent that the terms of the trust had been violated, or the trust abused. On the contrary, it showed that the trust had been and was being administered according to its terms, except so far as they may have been violated by the investments which had depreciated. What the institution complained of was, that a faithful performance of the terms would result in injury, and it asked not that it should be enjoined from departing from those terms, but that it should be authorized and permitted to do so ; in other words, that new terms should be impressed thereon because equitable to do so. This is not ad.ministering, but creating a trust. If it be suggested that insolvency, in the case of such an in [710] stitution, might impress on the assets a new term of trust, viz.,, for equitable distribution, the reply is, that if such a trust would come within the jurisdiction of a court of equity, without statutory authority (by which such jurisdiction has generally been conferred), the case was not presented because insolvency was not. shown. But if the subject-matter presented by the petition came clearly within the jurisdiction of the court, I am unable to perceive how it could be exercised in this case, while not a single one of those whose interests as cestuis que trustent were so largely affected, was a party so as to be heard on the subject. It is true that the order refrains from enjoining depositors from demanding their deposits, as the petition prayed, but if it had any value, it accomplished the same object by enjoining the institution from paying any depositor, although he should demand his deposit according to-the terms of the charter and by-laws. I conceive a fair test of the validity of this order exists in this restraining clause. For it is clear that it would not have protected the institution from, some legal proceeding on the part of a depositor to recover his-deposit according to its terms. If a successful prosecution of such a proceeding should compel the officers of the institution to pay such deposit, I apprehend that no proceeding against such an officer for contempt would or could have been available. This objection is not obviated even by a successful contention that this was a charitable trust. Jurisdiction to proceed upon-such trusts in a summary way is not inherent in the court of chancery, but only obtained by statute. The act called Sir Samuel Romilly’s act, being 5% Geo. III. e. 101, conferred such jurisdiction on the English court of chancery, and it was-held, under that act, that strict conformity to the procedure established by it, and the jn’esence of proper parties under its terms, was requisite. In re Dovenby Hospital, 1 Myl. & Cr. 279; Wellbeloved v. Jones, 1 Sim. & Stu. 40; Attorney-General v. Earl of Stamford, 1 Phil. 737; Ex parte Seagears, 1 Ves. & B. 496; In re Hall’s Charity, 14 Beav. 115; Attorney-General v. Green, 1 Jac. & W. 303. However broad the power of the court of chancery over such trusts in this state may be, it has711 always been exercised in conformity with its procedure and practice in other cases. Attorney-General v. Moore, 4 C. E. Gr. 503; 2 Perry on Trusts 376; Hesketh v. Murphy, 9 Stew. Eq. 304. Such a summary proceeding may doubtless be authorized, and the act of 1878 provides for such a proceeding. Legislation of this character clearly indicates the previous absence of the authority thus conferred. So far I have dealt with the order in reference to its general scope, and particularly its operation on the invested funds of depositors, who were such on December 12th, 1877. Assuming those funds to be trust funds, my conclusion has been that jurisdiction to make the order in those respects was, upon the case before the court, wanting. But if that conclusion should be deemed erroneous, it will not, in my judgment, affect the case before us. The disobedience for which appellant .has been adjudged in contempt related to that part of the original order which fixed and prescribed the securities in which future deposits with the institution should be invested. What should be done with future deposits was a subject-matter presented by the petition. With respect to that subject-matter, I think it was well remarked by the vice-chancellor that no other parties could be brought before the court than those who were parties to the petition. No other parties existed. The sole ground on which this order is sought to be sustained is the right of the court of chancery to administer trusts. But with respect to future deposits, there was neither property to be held in trust nor persons who were eestuis que trustent. No trust had yet come into existence. No relation of trust had yet been created. Furthermore, the petitioner was- an incorporated body, with powers derived from acts of the legislature, which imposed duties upon it, and particularly, in terms which were carefully specified, enacted in what securities the deposits should be invested. The power and duty of selection within the range of the securities mentioned, was devolved on the managers of the institution, and on no other persons. [712] Viewed in this aspect, the order which limited the range of securities for investment, I feel constrained to say, was an exercise of a power not accorded to any court. It restrained the power which had been granted to the institution by the legislative authority. It relieved its managers in part from the duty which had been imposed on them by like authority, and which was thereby, without authority, assumed in part by the court. The order, in its practical effect, amended the legislative enactment. That the order restrained the selection within the range of securities fixed by the acts does not alter its effect, for it plainly relieved the managers'from some part of the duty imposed on them, and limited the power granted to them. That the securities selected by the order were those which were safest and best under the circumstances, does not affect this question. The right to select at all must include the fight to select any, though less worthy or not worthy of confidence. If the order had directed investments in securities not permitted by the acts, or had directed deposits not to be invested, would any one pretend that it would have protected the officers in disobedience of the law ? If the securities permitted by the order were unobtainable, or not obtainable at prices justifying their purchase, could it be even plausibly argued that the officers would be justified in investing at a loss, or in leaving deposits uninvested ? It seems to me that these questions answer themselves, and that it is clear that neither could the managers abdicate their position of power and duty under the charter; nor could the court of chancery assume it. In the aspect of this order which directly affects the case before us, I am driven to the opinion that the court had no scintilla of power, and' its jurisdiction being wanting, its order, at least to that extent, was valueless and void. It is further insisted that the appellant was the president of the institution, and made the affidavit annexed to the petition; that he united with other managers in presenting the petition, and that he thereby aided in convincing the court that it had the jurisdiction which he now challenges. It is suggested rather [713] than argued, that he ought not now to be permitted to question the doctrine he then maintained. Appellant has presented the question of jurisdiction to this court. We are not called on to decide how far his conduct in now raising the question accords with honor, but we are bound to consider the question so presented, unless there is some legal ground for shutting our ears to his claim. I am unable to discover any ground to refuse to hear this objection, which will not violate the well-settled rule that consent will not confer jurisdiction. Where the subject-matter is within the court's jurisdiction the appearance and submission of parties may justify the assertion of the jurisdiction, and prevent their afterward questioning it. Tompkins v. Schomp, 16 Vr. 488 ; Funck v. Smith, 17 Vr. 484. But where the subject-matter is not within the jurisdiction, neither consent nor acquiescence can confer the requisite jurisdiction. What cannot be done directly cannot be done indirectly. This principle has always been maintained in our courts with rigor. In School Trustees v. Stocker, 13 Vr. 116, the supreme court, using the language of Mr: Freeman (Freeman on Judg. § 180), declared that neither the acquiescence of the parties nor their solicitations can authorize any court to determine any matter over which the law has not authorized it to act. In State v. Conover, 8 Hal. 803, a prosecutor in certiorari was permitted to question the jurisdiction of a court to make an order to appoint freeholders which was made on his motion and with his consent. Chief-Justice Kirkpatrick was of opinion that the order was without jurisdiction, and it was vacated. The opinion respecting the validity of the order has been since overruled, but the point for which the case is here cited has never been criticised. See, also, Greenway v. Dare, 1 Hal. 305; Cottrell ads. Den, 3 Gr. 344; Ryno v. Ryno, 12 C. E. Gr. 522. In the federal courts, where jurisdiction to review depends on the existence of certain specified facts, it is held that where the facts do not appear, jurisdiction cannot be conferred by any agreement of parties respecting them. Mordecai v. Lindsay, 19 How. 199; Montgomery v. Anderson, 21 How. 386; Ballance v. For [714] syth, 21 How. 389; Merrill v. Petty, 16 Wall. 338. In Dudley v. Mayhew, 3 N. Y. 9, a bill was filed to restrain an infringement of a patent-right, and the defendant stipulated not to object to the jurisdiction. Upon the bill being dismissed and an appeal taken, the court of appeals permitted the jurisdiction to be questioned, notwithstanding the assent and acquiescence. For these reasons I think we are bound to hear appellant’s objection to the jurisdiction, and since I conclude that jurisdiction to make the original order was wanting, I shall vote to reverse the order now appealed from. To avoid any misapprehension, it is proper to say that I have not considered the question whether the court below, of its own motion, and to vindicate its own dignity, could have punished appellant for the violation of its unreversed order, nor whether, if such course had been taken, an appeal would have availed appellant. Nor have I designed to express any opinion on proceedings under the act of 1878, which act, it may be suggested, might have been resorted to by this institution when it took effect only a few months after the proceeding here considered. Depue, J. The proceeding for contempt is of two kinds. (1) To punish contemptuous conduct in the presence of, or with respect to the authority or dignity of the court. (2) As a method of affording relief inter partes. The first is a proceeding of a criminal nature, instituted by the court of its own motion — heard by it in a summary manner — and punishable by imprisonment until the contempt be purged, or by a fine payable to the state. The second is set on foot at the instance of parties aggrieved. Such a proceeding is remedial in its nature, and the relief afforded is by imprisonment until the party adjudged in contempt does-justice to his adversary.* [715] An adjudication of a contempt of the class first mentioned is not appealable or reviewable upon tbe merits. If the court, in its constitution, has power to punish for contempt, its decision is final and conclusive. But where the proceeding is taken in the name of, and at the instance of parties, the adjudication of a contempt is appealable. The decisions which establish this distinction are cited in the briefs of counsel, and are accurately summarized by counsel of the respondents in these propositions: 1. Where the proceeding for contempt is remedial in its nature, either party aggrieved by the order of the court may appeal. 2. Where the proceeding for contempt is remedial in its nature and also involves punitory consequences, the party aggrieved may appeal. 3. Where the proceeding for contempt is purely for the purpose of punishing the contemner, no appeal therefrom lies by either party. From the appealable character of an adjudication of contempt, it will necessarily follow that the validity of the order disobeyed is brought under review; for the party asking for this process of the court can have no right to it, unless the court had authority to make the order on the disobedience of which the proceeding is founded. Ex parte Fisk, 113 U. S. 713, is a [716] weighty precedent in point. In that case Fisk was a party to a suit commenced in a state court, and afterwards removed by him to the circuit court of the United States. While the suit was pending in the state court an order was made that Fisk appear for examination before trial. After the case had been removed to the federal court the judge of that court made an order that the examination of Fisk should be continued before a master, to whom the matter had been referred. Fisk refused to be sworn, and declined to be examined under the latter order, and thereupon the -circuit judge made a further order that Fisk personally attend before the court and submit' to an examination. Fisk appeared before the court, and, stating that he had been advised by counsel that the court had no jurisdiction to require him to answer in this manner, refused to do so. For this, on further proceedings, he was held to be in contempt, fined $500, and committed to the custody of the marshal until the fine should be paid. On an application for a writ of habeas corpus to be relieved from this imprisonment, the supreme court of the United States reviewed the proceedings' for contempt, and decided that the circuit court had no power to make an order to compel a [717] party to submit to an examination before trial, and therefore no power to punish the party for his refusal to do so. In delivering the opinion of the court, Mr. Justice Miller said that “whenever a court of the United States undertakes by its process of contempt to punish a man for refusing to comply with an order which that court had no authority to malm, the order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void.” And after discussing the powers of the circuit court, and reaching the conclusion that the court had not the power to make such orders, the learned justice adds: “ The circuit court was, therefore, without authority to make the orders for the examination of the petitioner in this case, and equally without authority to enforce these orders by process for contempt.” It will be observed that in the case cited the order in question was an order for the benefit of the plaintiff in the original suit, to give him the advantage of an examination of his adversary before trial; and that it was made in a suit to which Eisk was regularly a party, and that the power of the court to make the order was decided on an application for a writ of habeas corpus to inquire into the cause of the petitioner’s restraint in his liberty — a proceeding which called the order of the court in question collaterally. In New Orleans v. Steamship Company, 20 Wall. 387, the appeal brought up an order punishing a party for contemptuous conduct towards the court — a punishment imposed for the vindication of the dignity of the court. A bill had been filed in the-United States circuit court by the steamship company against the city of New Orleans, to enjoin the city from interfering with certain premises in which the company claimed a leasehold interest. Pending this litigation the mayor applied for and obtained an injunction out of a state court restraining the company from rebuilding an inclosure on the premises, which had been destroyed. The circuit judge, regarding the application to the state court as to anything within the scope of the litigation already pending before him as disrespectful to his court, proceeded against, the-mayor as for contempt, and imposed a fine of $300. The supreme court of the United States, on an appeal, held that it had [718] not the power to review the order of the circuit court adjudging a contempt, made for the purpose of vindicating the dignity of the court, and punishing an offender for disrespectful conduct towards the court. These two cases cited from the federal courts illustrate the distinction between proceedings for contempt taken by the court itself for the punishment of persons guilty of contemptuous conduct derogatory to the dignity of the court, and the same proceedings when instituted at the instance of third persons for the disregard of orders of the court made for their benefit. In proceedings of the first class, the adjudication of the court is conclusive, and the order is not appealable. In such cases, as was said by Mr. Justice Patteson, if the court adjudicating the contempt has the power of committing for contempt, that adjudication cannot be reviewed; and if there be no objection to the form or manner of the warrant, the commitment under it cannot be interfered with. In re Crawford, 13 Jur 955—958. In proceedings of the second class, an appeal will lie, and the validity of the order adjudging the contempt will depend upon the validity of the original order, on the disobedience of which the contempt was adjudged. If the case brought up was capable of being treated as the action of the chancellor, taken with a view simply of vindicating the dignity of his court, I would vote to dismiss this appeal. But the record sent up does not admit of that construction. The proceeding, by this record, appears to have been instituted by certain parties who became depositors after the chancellor’s orders were made. It was instituted by a petition by these depositors, setting out the orders of the chancellor for the investment of the funds of the institution received on deposit after a certain date, and that the managers of the institution made investments of funds received after that date in a manner and upon securities in disregard of these orders, and that in consequence of the loss sustained thereby, the institution became' insolvent, and praying that the court would inquire into the conduct of the managers so far as the same related to acts done in violation of the said orders; and that if the same were dis [719] ■obeyed, tbe said managers, or any of them, found to have disobeyed said orders, be adjudged to be in contempt, and punished accordingly. To this petition answers were filed by the managers, as in an ordinary chancery suit. Testimony was taken in another state by commission, under section 38 of the act concerning evidence (Rev. p. 384), as if the suit was one of ordinary equity cognizance. In his opinion on the application for a -commission to take these depositions, the vice-chancellor expressly repudiated the idea that he was proceeding under the quasi criminal jurisdiction inherent in every court having power to punish for contempt, to which the power to punish for contempt is uniformly referred, and the commission was awarded that both parties might have full use of all means at the command of the court for the discovery of the truth. Una v. Dodd, 11 Stew. Eq. 460. The decree is entitled inter partes. It recites the filing and the substance of the petition; that testimony was taken as well on behalf of said petitioners as on behalf of said managers; that the court, having heard and considered the pleadings and proofs, and the arguments of the counsel of the petitioners and of all the managers, it was, on motion of the counsel of the petitioners, adjudged that the appellant had violated the said orders of the court, and that in so doing he was guilty of contempt; and it was ordered that he .appear for judgment on a certain day, and that the petition be dismissed as against the other managers, without costs. Nowhere in the record does it appear that the chancellor was the .actor, as the court always is, in proceedings to vindicate its own dignity. None of the forms of procedure — an attachment, interrogatories served, answers filed, in which the party may have opportunity to purge the contempt, reference to a master to report whether the examination is full and satisfactory or not (Dick. Ch. Pr. 124. and notes) — was observed in this case; for to justify punishment for contempt, it must appear that the disobedience was of such a nature as to indicate a design to contemn the authority of the court — an intention to disregard its process .and authority. State v. Trumbull, 1 South. 139, 140; Fraas v. [720] Barlement, 10 C. E. Gr. 84—86; Parrot v. Quernan, Stew. Dig. 164 § 35. Throughout the whole proceeding the vice-chancellor treated, the controversy as a matter inter partes as between the petitioners on the one side and the managers on the other side, and, in the opinion sent up with this appeal he regarded the validity of these orders and their binding force as against the managers, as the substratum of his judgment. On the case presented by this record I agree that the order adjudging the contempt is appealable, and that the validity of the orders for the disobedience of which the contempt was adjudged is drawn ip question. With respect to the invalidity of these orders, on jurisdictional grounds, I agree with the opinion of Mr. Justice Magie. The relation of a savings bank to its depositiors is a trust defined by its act of incorporation. By its charter the legislature established this institution, and by the charter and supplements prescribed the range of the investments in which the managers might, in their discretion, invest its funds. The charter also prescribed that the managers should regulate the rate of interest to be allowed to depositors, so that the depositors should receive a ratable proportion of the profits, .as near as might be, after deducting all necessary expenses, and a reasonable surplus -or contingent fund, and each depositor was to • be repaid his deposit at such times and with such interest and under such regulations as the-board of managers should from time to time prescribe. By these legislative prescriptions every depositor was entitled to-share equally in the profits that might be realized by the institution while his money remained on deposit, so long as the institution continued to transact business, without regard to the time-when he became a depositor, and to withdraw his deposit subject only to such regulations as the board of managers might adopt with reference to all deposits. With respect to the management of the institution, the investment of its funds, participation in. the profits made by the institution, and the withdrawal of deposits, the charter placed all depositors, without any distinctions, on an equality. The orders in' question undeniably changed the-constitution and terms of the trust as established by the legisla [721] ture. These orders prescribed the investments in which moneys deposited thereafter should be invested, and limited the range of the investments contemplated by the legislature, forbade the repayment of the moneys of prior depositors, except under the chancellor’s orders, and directed that all moneys deposited thereafter should be treated as special deposits and invested in a designated manner; that separate accounts thereof should be kept, and that the actual interest received thereon, after deducting necessary expenses and taxes, should be paid as dividends upon such special deposits, excluding former depositors whose moneys were retained in the institution from participation in the profits realized from such investments. These orders wrought a radical change in the charter of the institution. Such a change in the constitution and terms of the trust the court had not the power to make in virtue of its general jurisdiction over trusts. A power adequate to that end could be derived only from legislative authority, from some statute conferring additional powers upon the court of chancery; and there was not, when these orders were made, any statute by which such powers were granted. However beneficial these orders may have been in the embarrassed condition of the institution at the time they were made, when they are brought under judicial cognizance we have •no discretion but to inquire into the power of the court to make -them, and to solve the problem of their validity or invalidity according to the result of that inquiry. Nor did these orders acquire validity in the fact that they were made in the form of a judicial proceeding. They were made on a summary application, and without the necessary parties to justify a judicial proceeding. The theory that the managers before the court making the application in the name of the institution, and the managers consenting.to it, was such an appearance as to make that proceeding a suit with adverse parties, is too unsubstantial to sustain the conclusiveness of a judgment or decree. On that theory any trustee might come into court ■under the pretext of obtaining directions in the execution of his trust, and have the trust moulded, perhaps changed, without [722] the cestuis que trust having opportunity to be heard, or right to appeal. In England, under acts of parliament which gave to the English chancellor extensive discretionary powers over charitable trusts, to be exercised in a summary manner — a power which is wanting in this instance — the courts hold that there is no power in the court to alter the constitution of a charity — that in proceeding under a statute of that kind the application is not to be heard ex parte — that opportunity is to be afforded to persons whose rights may be affected by an order made in the premises, to be heard either by the attorney-general or by some one who, in fact or in law, may be considered as their representative, on whom notice of hearing is required to be served— .and that an order not in conformity with the statute, or made without the presence of proper parties, is a nullity. 2 Dan. Ch. Pr. 1533-1557; Ex parte Bolton School, 2 Bro. C. C. 662; Ex parte Seagears, 1 Ves. & B. 496; Ex parte Rees, 3 Id. 10—12; Attorney-General v. Green, 1 Jac. & W. 303, 305, 307; Hall’s Charity, 14. Beav. 115—120, note; Wellbeloved v. Jones,1 Sim. & Stu. 40. With regard to jurisdiction by consent, that subject has been disposed of by Mr. Justice Magie in his opinion. I need add nothing. An essential quality of estoppels by the record is that they shall be mutual; and where a suit is so imperfect that there can be no mutuality, the judgment or decree in it is binding on no one. 1 Smith’s Lead. Cas. (8th ed.) 1108; Briscoe v. Stephens, 2 Bing. 213. If the investments complained of were made in violation of the act of 1878 (P. L. of 1878 p. 393), as modified by the act of 1881 (P. L. of 1881 p. 286), or funds of the institution were lost by the mismanagement of the managers, the remedy is by a suit in the name of the receiver, and not by individual depositors. For the reasons I have assigned, I concur in the judgment of reversal. Justices Reed and Van Syckel concurred in this opinion. For dismissal — Dixon—1. [723] Eor affirmance — Clement—1. For reversal — The Chief-Justice, Depue, Mague, Reed, Yan Sycicel, Beown, Cole, Pateeson — 8. Footnotes [*] Note. — In a late case, People v. Oyer and Terminer, decided in New York court of appeals, January 19th, 1886, and reported in 3 East. Rep. 563, 1 Cent. Rep. 812, Mr. Justice Pinch says: “Tlie occasion and results of proceedings for contempt furnish a clear and well-defined line of division, separating, them into two classes, which have become somewhat mingled and confused by [715] the use of a fixed, but ambiguous nomenclature. * * * In one class are grouped cases, whose occasion is an injury or wrong done to a party who is a suitor before the court, and has established a claim upon its protection, and which result in a money indemnity to the litigant, or a compulsory act or omission enforced for his benefit. In these cases the authority of the court is indeed vindicated, but it is after a manner lent to the suitor for his safety, and vindicated for his sole benefit. The authority is exerted in his behalf as a private individual, and the fine imposed is measured by his loss, and goes to him as indemnity ; and imprisonment, if ordered, is awarded, not as a punishment, but as a means to an end, and that end the benefit of the suitorfin some act or omission compelled which are essential to his particular rights of person or of property. * * * If in this class of cases there exist traces of a vindication of public authority, they are but faint and utterly iost in the characteristic, which is strongly predominant, of protection to private rights imperiled or indemnity for such rights defeated. * * * If we describe this first class of contempts as private contempts, because their occasion and result is, primarily and in the main, the vindication of private rights, we shall avoid confusion or misapprehension. The second class of contempts are those whose cause and result are a violation of the rights of the public as represented by [716] their constituted legal tribunals, and a punishment for the wrong in the interest of public justice, and not in the interest of an individual litigant, fn these ■cases if a fine is imposed, its maximum is limited by a fixed general law, and not at all by the needs of individuals, and its proceeds, when collected, go into the public treasury, and not into the purse of an individual suitor. The fine ■is punishment rather than indemnity, and if imprisonment is added it is in the ■interest of public justice and purely as a penalty, and not at all as a means of securing indemnity to an individual. Necessarily these contempts, in their origin and punishment, partake of the nature of crimes, which are violations of the public law and end in the vindication of public justice, and hence are named criminal contempts. * * * We have, then, two distinct classes— private contempts and public contempts. Both were known to and recognized by the common law, and the courts were held to possess an inherent power of punishing by process of contempt any disregard of their authority, both for the benefit of their suitors and for the protection of their own order and dignity. Necessarily, the common law power was very broad and vested large discretion in the courts. These became, in some instances, both accuser and judge, and this was especially so where the contempt was of a public nature, and no private person stood as complainant and sufferer.”