author: King, President. —

text:
    Parrish v. Koons.
    To exempt a contract for tie sale of land from the effect of the statute of frauds, it must he in writing. No interest in land at law or equity can he contracted for hy an agent authorized otherwise than hy writing.
    A Court of Equity will not compel the specific performance of a contract made hy an agent not authorized by writing to make such contract.

      The statute of frauds, which requires a memorandum in writing relative to the sale of lands, applies as well to equitable as legal estates. The one is as much within the spirit of the Act as the other.
    While a Court of Equity will not compel the specific performance of a contract for the sale of land not in writing, still a party may recover damages at law for the breach of it.
    It is well settled in Pennsylvania, that an agent created only by parol cannot enter' into a written contract for the sale of land. His authority must be in writing, otherwise the statute of frauds will operate to defeat it.
    A subsequent parol recognition of a contract made by an agent not authorized in writing to make such contract, will not exempt it from the effect of the statute. There may be subsequent acts of the principal which would validate the contract. But such subsequent ratification must be of such a nature as would take the case out of the statute if made with the principal himself.
    A memorandum in writing of the contract for the sale of land signed by the vendor and delivered to the vendee, is not such a signing of the contract as required by the statute. There must be mutuality; and without it a specific performance will not be enforced in this state.
    Time may be of the essence of a contract in equity as well as law. Where no time is fixed in the contract for the sale of land for its final completion, it ought to be perfected in such a time as the Court, having regard to all the circumstances existing in a given case, will regard as just and reasonable.
    A Court of Equity will not exercise its power for the specific performance of a contract where a party has slept on his rights. Diligence is necessary to call the Court into action; and where it does not exist, equity will not lend its assistance.
    The duty of promptness is n'ot confined to either party, as to the time when a contract must be closed, where none is fixed by its terms. For, if any unnecessary delay is created by one, the other has the right to the limit of a reasonable time within which the contract shall be perfected.
    To constitute an adequate written agreement for the sale of lands within the statute of frauds, it is necessary that it should state the terms of the contract with reasonable certainty, so that the substance of it could be made to appear and be understood from the writing itself, without having recourse to parol proof. An agreement defective in certainty cannot be supplied by parol proof; otherwise all the mischiefs which the statute of frauds was intended to prevent would exist; nor can such a contract be partly in writing and part parol.
    If a contract be vague and uncertain, a Court of Equity will not exercise its extraordinary jurisdiction, but leave the party to his legal remedy. Nor will specific performance be enforced, unless the parties have described and identified the particular tract, or the contract furnishes the means of identifying with certainty the land to be conveyed.
    Nor will directions to draw a deed given to a scrivener, and an examination thereof by the vendee, and proof that he said he was ready to close the business, take the case out of the statute of frauds.
    It is the original contract on which the party asks and obtains his decree. If that is defective, resting only in parol, or in writing too vague and imprecise for the Court to decide upon, subsequent steps in the negotiation, such as giving instructions to the scrivener as to the drawing of the deed, examining the title papers, &c., are not sufficient to give effect to a contract originally defective and not according to the requisitions of the statute.

      May 1.
    This case came before the Court on a bill filed, by the plaintiff against the defendant, to compel the specific performance of a contract for the sale of a lot of ground, in the county, of Philadelphia.
    The bill alleged the sale to the defendant, the readiness of the plaintiff- to perform his part of the contract as set forth in the bill, and the refusal of the defendant to comply with his promise by the acceptance of the deed and payment of the purchase-money. The cause was heard on bill, answer, and proofs; but, as all the facts necessary fully to comprehend the questions decided, as well as the contract set forth in the bill, are so fully stated in the opinion of the Court, it is believed to be unnecessary to give any further statement of the pleadings or facts in the case.
    The cause ivas argued by Mr. Broom, for the plaintiff, and Mr. Kennedy, for the respondent.
    The counsel for the plaintiff contended there were two questions in controversy; and, first, as to the validity of the agreement: That there was no doubt that an agreement for the sale was made, which would be sufficient in law to affect the objects of it, unless forbidden by the statute from motives of public policy. That the case was not within the statute of frauds; that the vendor did sign the contract, and which was a compliance with the 'statute: 10 "Watts, 387 ; also the payment of ten dollars; that the bargain was concluded; that if the defendant did not intend to ratify the bargain made by his agent, when he saw the paper signed by the grantor, he was then bound to disavow it and his agency in the matter, and give notice to the grantor accordingly; that the payment of the ten dollars was a part performance of the contract.
    Second, that it was settled a Court of Equity would decree the specific performance of the sale of land by parol, when the defendant had confessed the sale, although denied in the answer: 3 Atk. 407; and that a Court of Equity had jurisdiction to decree a specific performance: Dalzell v. Crawford, 2 Penn. L. J. 17; 1 Simons & Stewart, 607.
    It was contended there was no time limited as to completion of the contract, therefore the objection that the defendant had lost the advantages of a sale must fail; for the plaintiff was then able to extinguish all encumbrances. The objection made in the answer, that the plaintiff was not in a situation to make a good title in th6 spring, when the defendant contended the deed was to be made, could not avail, no express time being designated in the contract.

      It was argued for the respondent, that Tea had' no authority to make the contract set forth in the bill, and the person was not Ms agent for that purpose, and had no authority to make the contract, either in fact or law.
    That Koons never paid the $10 as an earnest of the bargain and sale; that Koons never confirmed the bargain, as mentioned in the memorandum signed by the plaintiff; and that no contract was made by the defendant for the purchase, or by any one who had legal authority to make it; that whatever contract was made, was rescinded by the complainant’s non-compliance with its terms.
    But, supposing a contract of sale to be proved, it was not such a one as a Court of Equity would enforce between the parties, in the posture in which they were placed; for the contract could not be mutually enforced when made: 1 Watts, 556. That although the contract had been signed by the plaintiff, the defendant had never signed it, therefore it could not be enforced against the party who had not signed it: 1 Plow. 170; 1 W. & S. 555; 4 W. & S. 27; 10 Watts, 195.
    That, whatever claim the plaintiff had, he could be compensated in damages, and had actually brought a suit in a court of law, and therefore he had no claim in a Court of Equity. That the contract attempted to be enforced was not legal and binding on the parties— either party could rescind it when he chose. It was against the policy of the law, and prohibited by the statute of frauds. It never was reduced to writing, as required by the statute, and therefore he had no remedy in a Court of Equity.
   The opinion of the Court was delivered by

King, President. —

This case arises under a bill filed by the complainant for the specific execution of a contract for the purchase and sale of a lot of ground in Philadelphia county, entered into by the parties on the 14th of April, 1841. The facts established by the proof, so far as they are important for the clear understanding of the points in controversy, are these: — The complainant and defendant were proprietors as tenants in common in fee of a piece of ground in the Northern Liberties, which was subject to a joint mortgage given by them to the Pennsylvania Hospital for $8000. By subsequent arrangement between themselves they divided the land, and stipulated that the portion of it assigned to the plaintiff should be liable to the payment of the principal and interest of $3000 of the mortgage, while that pertaining to the defendant should be subject to tbe payment of the remaining $5000. The complainant, Parrish, for the better purpose of sale, divided his portion of the ground into two building lots, one of which joins that part of the land allotted in the division to the defendant. Being desirous of effecting the sale of this lot, Parrish authorized a certain Richard Tea to sell it for him. About this time, Tea, being employed as a builder by Koons the defendant, was also authorized by him to purchase the lot, provided the terms could be made satisfactory to him, Koons. The price asked by Parrish for the lot was $4000. This sum Koons refused to give, but finally authorized Tea to offer $3700, and gave him a written memorandum expressing what terms he would make the purchase upon, which memorandum was in these words: “The most is 3700 subject to 3000 mortgage. No taxes or other liens (except the mortgage) to be allowed.” Clothed with this authority, Tea commenced the negotiation, and, having obtained the assent of Parrish to his proposal, exhibited to him Koons’s written offer. Parrish, in closing with Tea, required from him the payment of $10 by way of earnest, which Tea having procured from Koons, paid him. On this payment Parrish gave Tea a receipt on the same paper on which Koons’s proposal was written, which receipt was signed by Parrish, and is in the following words. . “Received Ten Dollars on account of the purchase. The mortgage to be removed from the Fifth Street lot as soon as the title is made without delay.” Of both these papers Parrish retained a copy, which was signed by himself, and Tea “ for Isaac Koons.” The original proposal of Koons with Parrish, receipt annexed, was returned to Tea, by whom it was delivered to Koons. Immediately after, Koons directed his conveyancer, Jacob F. Hoeckley, to draw a deed for the lot from Parrish to him, which was accordingly done and executed by Parrish on the 21st day of April, 1841, one week after the contract. This deed was not delivered to Koons, but kept by Hoeckley as an escrow until the contract should be finally consummated by Parrish’s removing from the land certain encumbrances which bound it. The deed neither recites nor refers to the contract nor to the $3000 mortgage to which it was sold subject; but is a deed in absolute fee-simple for the consideration expressed of $3700. It however describes the lot by metes and bounds. The transaction stood in this way, waiting for the clearing of the title from the encumbrances by Parrish. There is no evidence before me that Koons ever in any way urged Parrish to a speedy consummation of the bargain. About the 1st of September, Parrish having effected the removal of all the liens, except that of a judgment of $500, and perhaps some small liens for taxes and curbing, proposed through his attorney, to Koons’s conveyancer, that enough of the purchase-money should remain in Koons’s hand to satisfy this judgment, and moreover, that the removal of the $3000 from the Fifth Street lot should he delayed until this lien should he fully discharged. This was declined, and Parrish immediately paid the judgment, notifying Koons of the fact, and calling on him to complete his part of the contract, hy paying the purchase-money and removing the mortgage on the Fifth Street lot. At the same time the attorney of Parrish, having obtained the deed drawn by Hoeckley, tendered it to Koons, informing him that the liens on the land were removed. No further objections to the title were urged then by Koons, but he declined fulfilling his contract, on the ground of the delay in completing it, alleging that in consequence of this delay he had lost an advantageous sale of the lot. When reminded by the attorney that he had never required an earlier completion of the title, he did not deny the fact, but gave only a vague answer.

The complainant’s case is fully set out in his bill, and the contract he seeks to enforce is a contract by which he alleges Koons agreed to give $700 in money for the lot, and without delay to remove the $3000 mortgage from the Fifth Street lot. In his answer the defendant denies that Tea was his agent, and avers that he was the agent of the complainant, and as such offered to make him a clear title forthwith for the lot, if he, Koons, should make an offer for it acceptable to the plaintiff; that he gave Tea a written offer for it in the words heretofore set forth, and gave him $10 to bind the bargain. He denies that he ever authorized Tea to sign any paper as his agent binding him to the purchase; he admits that he made no other objection to the title except such as arose from the unsatisfied encumbrances: admits that he refused to further execute the contract, but alleges that his reason for so doing was, because from the complainant’s delays he had lost an advantageous sale of the land to one B. F. Huddy, the chance for which sale was his principal inducement in proposing for the lot, and that failing in obtaining the clear title in due season, he rescinded the contract.

The contract admitted by the answer is a materially different one from that charged in the bill. The bill asserts a contract by the defendant to purchase the property at $700 cash, and, as a part of it, that he should remove without delay, a mortgage binding as well the property sold as other land of the complainant. , This might involve the necessity of the defendant’s paying off this large encumbrance. Whereas the contract admitted in the answer is for the purchase of the property subject to the mortgage, which in general and universal parlance is understood to mean, that the mortgage is to remain in statu quo so long as the holder of it is satisfied. The admitted contract besides is one to be completed “ without delay,” while that charged omits this important stipulation. Besides, the authority of Tea to sign any contract affecting the defendant is absolutely denied. The agreement therefore admitted by the answer differing from that stated in the bill, renders it necessary for the plaintiff to prove the contract charged aliunde: Thompson v. Todd, 1 Peters, C. C. R. 380.

In the argument various objections have been interposed why the complainant should not have a decree for specific performance. I will notice them in an order which seems to me most conducive to clearness and precision, without exactly following that pursued by counsel.

In the first place it is insisted, that in point of fact, Tea was not the agent of Koons, authorized to treat for him for the purchase of the land. The testimony of Tea on this point is direct and positive, that he was expressly authorized by Koons to make the purchase. Although he was previously authorized by Parrish to obtain if he could a purchaser, this fact is not at all inconsistent with his acting as agent also for Koons. The circumstances existing in the case showing this agency — such as Koons’s written offer; the -fact that Koons afterwards recognised his acts, by further prosecuting the negotiation; causing the deeds to be prepared, &c.; and never in any part of the transaction questioning his authority — are sufficient, conjoined to the positive testimony of Tea, to outweigh the denial of his agency in the answer. But it is equally true, that Tea was not constituted the agent of Koons by any written authority, and it is true that he had no express authority from Koons to execute on his behalf any written contract.

The question then first arises, whether an agent for the 'purchase or sale of land constituted by parol, can execute an agreement in writing for such purchase or sale, binding his principal in a proceeding to compel specific execution of the contract. In England, at this time of day, there can be no doubt but that a written contract entered into by such an agent, would be so obligatory on his principal within the statute of 29 Car. 2, ch. 3, “Eor the prevention of frauds and perjuries.” As early as the case of Waller v. Henden, 5 Vin. Abr. 524, pl. 45, 10 Geo. 1, (1724), it was decided by Lord Macclesfield that tbe authority to treat for or buy an estate may be good -without writing, though the contract itself must be in writing by the statute of frauds. To the same effect is the case of Wedderburn v. Carr, decided in the Exchequer in 1775, and cited in 3 Wooddeson’s Lectures, 423. In Clenan v. Cooke, 1 Sch. and Lef. 31 (1802), Lord Redesdale denied that an authority in writing was necessary to constitute an agent for the purpose of making a contract respecting land, and asserted that the decided cases were to the contrary. In this case (Clenan v. Cooke), that of Barry v. Lord Barrymore is cited as having been decided by Lord Lifford in the Irish Chancery in 1770, in the same way; and this decision is mentioned by Lord Redesdale with approbation in pronouncing his decree. In Coles v. Trecothick, 9 Ves. Jr. 240-50 (1804), Lord Eldon says, that it is clearly settled now that an agent need not be authorized in writing.” Sir Edward Sugden, in his Treatise on Vendors and Purchasers, lays this position down as fundamental. The English rule that an auctioneer is the agent for both buyer and seller, and as such authorized to sign an agreement in writing binding on them respectively, is a natural offshoot of this doctrine. Although unquestioned since Simon v. Motiver, 3 Burr. 1921, as to goods, it has been questioned, nay, decided against by high authority as to land; although finally the rule as to sales either of lands or goods has been decided to be the same. The history of this conflict of decision and its final settlement, will be found in the case of M’Comb v. Wright, 4 John. Ch. R. 659, in which the English cases are collected and reviewed, and the final doctrine of these courts correctly exhibited by Chancellor Kent, in one of his elaborate and highly instructive opinions. But an examination of these cases will show them to have ■ been decided, not under the three first sections of the statute of frauds, which alone are in force in Pennsylvania, but on the construction of the 4th and 17th sections of that statute, which never had an existence in our jurisprudence.

The first section of the statute declares, that all leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, or out of any messuages, manors, lands, tenements, or heredita-ments made or created by livery and seisin only or by parol, and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized in writing, shall have the force and- effect of leases or estates at will only, and shall not, either at lazv or equity, be deemed or taken to have any other or force or effect.” The second section excepts from the operation of the first “all leases not exceeding the term of three years from the making thereof, ■whereupon the rent reserved to the landlord during such term shall amount unto two third parts, at least, of the full improved value of the thing demised.” The third section enacts, “that no leases, estates, or interests, either of freehold, or terms of years, or any uncertain interest therein, not being copyhold or customary interest of, in, to, or out of, any messuages, manors, lands, tenements, or hereditaments, shall at any time be assigned, granted, or surrendered, unless it be by deed or note, in writing, signed by the party so assigning, granting, or surrendering the same, or their agents thereto, lawfully authorized by writing, or by act and operation of law. Our Act of Assembly, of the 21st of March, 1772, is a precise transcript of these sections, except it omits so much of the second section as refers to the rents reserved in parol leases for three years, and so much of the third as mentions “ copyhold or customary interest.” Under these sections, there seems no room for judicial construction to hold that any interest at law or equity in land can be contracted for by an agent authorized otherwise than by writing. That any such agent must be so authorized, is not only declared in the first section, which refers to agreements for leases and estates in land, but is repeated in the third, which contemplates assignments, grants, and surrenders of subsisting leases and uncertain interests. The fourth section of the English statute provides, “ that no action shall be brought, whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, or to charge any person, upon any agreement made upon consideration of marriage, or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some MEMORANDUM or note thereof shall be in tvriting, and signed by the party to be charged therewith, or some other person thereunto by him laiofully authorized.” The 17th section directs, “that no contract for the sale of any goods, wares, or merchandises, for the price of ten pounds sterling, or upwards, shall be good, except the buyer shall accept part of the goods so sold, and actually receive, the same; or give something in earnest to bind the bargain, or in part payment, or that some note or MEMORANDUM in writing of said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.”

It is, as I have said, under these sections that the English Courts have determined that an agent to contract for the purchase of land, may be constituted by parol; holding that their legislature had taken this distinction, that where an interest is intended to be actually passed, the agent must be authorized by writing; but that where a mere agreement is entered into, the agent may be authorized to treat by parol for, or buy an estate, although the contract itself must be in writing; and that there is no difference between these two clauses of the statute in regard to the appointment and power of an agent: Sug. on Vend. 132-3, 10th ed. In no case in equity, where the point could only arise, has it been decided, that under the first three sections of the statute, independent of the 4th, would or could a Court of Chancery enforce a contract for the purchase of land, executed in writing by an agent, having no written authority to that effect from his principal. In the early decisions, such as Waller v. Henden, and Wedderburn v. Carr, vide supra, this is not so manifest, by reason of the brief notes we have of these cases. In Coles v. Trecothick, 9 Ves. Jr. 249, 50, however, Lord Elden’s opinion plainly shows that he had only in view the 4th and 17th sections of the statute. “Much perplexity,” says he, “has arisen by the cases of auctions, for in Simon v. Motiver, it was held as to goods, that the auctioneer taking down the name was a signing within the statute, and it is very singular, after, and, without disturbing it, that it was held by Lord Chief Justice Eyre, that it would not do as to land. Why not ? The form of the two clauses is not the same, but the terms as to the memorandum in writing are exactly the same.” In Clenan v. Cooke, 1 Sch. & Lefroy, 25, 27, Lord Redesdale, on noticing remarks of the defendant’s counsel, commenting on a section of the Irish statute of frauds analogous to the 4th section of 29 Car. 2, says, “ It has always been understood in England that the legislature only required such an authority under this clause as was a lawful one at the time of the passage of the Act to make contracts binding; and though at all times (as well before the statute as since) it was necessary to have an authority in writing for creating or passing an estate for another, it was otherwise as to contracts, which passed no estate.” The case of M’Comb v. Wright, 4 John. C. R. 659, is also decided on the 4th and 17th sections, and enters into a comparison of the phraseology of these two sections, relative to the effect in each of the words “ note or memorandum in writing,” which phrase is not used in the three first sections of the Act. The English cases arising under these sections, therefore, can throw no light on the question before the Court, which must he decided with reference solely to the three first sections of the statute, which declare that all interests in lands, &c., created hy livery of seisin or parol, and not put in writing and signed hy the parties so making or creating the same, or their agents lawfully authorized in writing, shall have the force and effect of leases at will only, and shall not, either at law or in equity, he deemed or taken to have any other or greater effect.” And that the statute operates alike on legal and equitable estates has been held, in Goncher v. Martin, 9 Watts, 106, where Rogers, Justice, delivering the judgment of the Court, says, “ It is a general rule that no estate or interest in land shall pass but by deed, or some instrument in writing signed by parties; and it is immaterial whether the interest be legal or equitable, as an equitable interest is an interest in land which comes within the words and spirit of the statute of frauds.” In denying the legality of a contract in writing for the purchase or sale of lands, made by an agent created by parol, I am to be understood as speaking only witfy reference to the specific execution of such a contract, either by a recovery in an equitable ejectment according to our old system, or a decree for specific performance, under our more improved one. I am not calling in question the sufficiency of such a contract to enable either party to recover damages at law for the breach of it. That is settled by the case of Bell v. Andrews, 4 Dall. 152, which has ever since been adhered to, and is undoubted law: and that such an action can be maintained on a written contract made on behalf of the vendee, by an agent created by parol, is expressly decided by Ewing v. Tee, 1 Binn. 450, the case not being within our statute of frauds.

But no case can be shown, in which, in an action brought by the vendor to recover the purchase-money of land contracted to be sold, or by a vendee to recover possession of such land, in an equitable ejectment, it has been held, that a contract in writing, executed by an agent for either party constituted merely by parol, was sufficient within the statute of frauds, where a part performance has not been shown to exist, sufficient in itself, to take the case out of the statute. That an agent for a seller of land, competent to make a written contract binding on his principal in a proceeding for specific execution, cannot be so constituted, is expressly ruled by the cases of Van Horne v. Fricke, 6 S. & R. 90; M’Dowell v. Simpson, 3 Watts, 129; Nicholson v. Mifflin, 2 Dall. 246, more fully reported in 2 Yeates, 38; and Meredith v. Macoss, 1 Yeates, 200. That the agent for the buyer should be similarly constituted, so as to authorize him to execute a contract in writing binding to this extent on his principal, follows, not only because the statute speaks of the “parties.or their agents thereunto lawfully authorized in writing,” but because mutuality of obligations in contracts sought to be specifically performed, is an essential requisite to authorize equitable intervention between the parties: Lawrence v. Butler, 1 Sch. & Lef. 13. If a Court of Equity should refuse to execute, against a vendor, a contract made in writing by an agent not so authorized, it should equally refuse where relief was asked against a vendee sought to be made responsible for the written contract of his agent, not constituted in writing.

But it has been argued, that, admitting Tea in this case not to have been so empowered, as to authorize him to join in a written contract for Noons, yet the defendant, by receiving and retaining the agreement made by Tea without objecting to his authority, and proceeding to make the necessary arrangements to carry it into effect, so recognised the acts of his agent as to make them his own. It is an undoubted principle that a subsequent recognition of the acts of an agent, even where he has exceeded his authority, is equivalent to a previous express authority. But it cannot be greater. And, if the previous express authority is required by positive law to be in writing, the subsequent recognition must be of a kind as unequivocal; otherwise we run into the very dangers of fraud and perjury which the statute was intended to avoid. It would be in vain for the statute to declare that the agent should originally be constituted in writing, if courts of law should hold that a subsequent parol recognition of the acts of an agent, not constituted originally in writing, would satisfy the law. This would only require the form of .the perjury to be changed to accomplish all the evils the law deprecates. I grant that there may be subsequent acts of recognition of a written contract made by a parol agent, which would bind the principal to the contract so made. As if under such a contract a vendor accepted the purchase-money, suffered the vendee, to enter into possession of the 'lands, and improve them, he would undoubtedly be compelled to perform his part of the contract, and execute a title to the vendee. These principles, I conceive, receive full support from the case of M’Dowell v. Simpson, 3 Watts, 129. And to the same effect is Vanhorne v. Fricke, 6 S. & R. 90, where the Court held, that although “ a sale of land bj an agent under a parol authority is void, yet, if the sale by the agent be subsequently affirmed by the principal, he and those claiming under him are estopped from recovering the land in ejectment.What would be a subsequent affirmance of a sale made by a parol agent, so as to make it binding on his principal, is not very distinctly said in this case; but it may be fairly inferred from it, that the subsequent affirmance must be of such a nature, as would have taken the case out of the statute if it had arisen under a parol contract, made by the principal himself. “By our Acts of Assembly,” says Chief Justice Tilghman, “an authority to sell land must be in writing; therefore, if the sale had rested solely on the parol authority, it would have been void. How then can it be good unless the principal does some act after the sale, which either directly or indirectly confirms the sale? If possession had been delivered with the assent of Friclce (the principal), it would have been sufficient. But without that, or some other act demonstrative of consent, and which might have been considered carrying the contract at least in part into effect, the sale must have remained invalidNow in the present case, what act of part performance has the vendor clone and the vendee received, which, had this been a mere parol contract, would have taken it out of the statute ? Has he given possession to the vendee ? No, he still retains it. Does the fact of the vendee’s agent paying, and the vendor receiving the $10 earnest paid at the time the contract was entered into, work this result ? From the earliest decisions under the statute, such a fact has been held to be an immaterial one: Seagood v. Meale & Leonard, 2 Equity Cases Abr. 49, pl. 20. If payment of part of the contracted price by the vendee, would operate to take a parol contract out of the statute as against the vendee so paying, then would the receipt of such part so operate against the vendor. So far from this being the law, the case of M’Kee v. Phillips, 9 Watts, 85, decides that payment of part or the whole of the purchase-money, on a parol sale of land as it admits of compensation, does not take a case out of the statute of frauds. On the ground of the insufficiency of Tea’s authority to make a contract which a Court of Equity would enforce by a decree for specific performance, the plaintiff’s case fails.

But it is said that, admitting Tea to have had no sufficient authority to contract for Koons in writing, yet, inasmuch as the Written contract in this case was signed by the vendor, and delivered to tbe vendee, tbe case is taken out of tbe statute, and tbe inadequacy of tbe authority of Tea to sign for Koons becomes unimportant, as tbe contract, without such signature, was obligatory on both parties, from being signed by Parrish only, and delivered to Koons. This position I consider distinctly negatived by the case of Wilson v. Clark, 1 W. & S. 554, in which Chief Justice Gibson reviews tbe English decisions which bold that an agreement will be enforced in equity against tbe party signing it, although not signed by tbe other party; shows these decisions to have been made under a section of the British statute, not in force here, and to be inconsistent with the fundamental doctrine of equity, “ that a Chancellor, when uncontrolled by arbitrary enactment, executes no contract which is not the source of mutual obligation and mutual remedy;” and finally decides that in Pennsylvania, a contract without such mutuality will not be enforced by a decree for specific performance. The case of Lowry v. Mehaffy, 10 Watts, 387, I consider distinguishable from Wilson v. Clark. In Lowry v. Mehaffy, besides the signing of the contract by the vendor, the agreement was partly executed by the payment of part of the purchase-money, and delivery of possession of the land to the purchaser. These latter circumstances alone would have been sufficient to have taken the case out of the statute, if the agreement had been merely by parol: Billington v. Welch, 5 Binn. 131; Miller v. Horner, 2 Rawle, 13. It is true that Judge Kennedy, in delivering the opinion of the Court, says that “ an agreement reduced to writing, and signed by the owner of the estate, specifying the terms and conditions fully upon which he has agreed to part with his right in it, and at the same time delivered to the other party, would seem to be sufficient without its being signed by the latter, to whom the owner agrees to pass the right,” yet he adds, “in the present case this was not only done, but the agreement was also partially carried into effect by the payment of nearly one-fourth of the purchase-money, and the delivery of the possession of the property sold to the vendees by the vendor,” and finally says that the vendor in such a case” (by which I understand him, the case before the Court, with all its attending facts) may, by action against the vendee, compel the payment of the residue of the purchase-money.” But if he can be understood to say (what fairly I think he cannot be) that a contract, signed by the vendor and delivered to the vendee, though never signed by the latter, is such an agreement as equity in Pennsylvania will enforce in a proceeding by the vendor against the vendee for specific performance: then his opinion is in conflict with the case of Wilson v. Clark, and that, independent of the soundness and clearness of its reasoning, being the later decision, must control my judgment. I do not, however, think that any such collision between the cases necessarily arises, as in each the direct point of decision is different.

The conclusion I have arrived at in the point last disposed of is decisive of the case against the plaintiff; yet, as other questions of interest and importance present themselves, and have been considered, I will express my views upon them.

■ It is insisted that the lapse of time which intervened between the date of the contract, and when Parrish was ready to give the defendant a title clear of encumbrances, which was some five months, authorized Koons to rescind the contract, particularly as he lost by the delay an advantageous sale of the lot, and that he did so rescind it. Unquestionably, in equity as well as law, time may be of the essence of the contract, where the parties contracting think proper to make it so. But in this contract no time is fixed for the completion of the title. All that is said in it on the subject of time is with respect to the removal of the mortgage on the Fifth Street property, which, “ as soon as the title is made, is to be removed without delay.” Where, however, no time is fixed in a contract for the sale of land for its final completion, it ought to be perfected in such a time as, the Court having regard to all the circumstances existing in a given case, will regard as just and reasonable. A bill for a specific performance, being an application to the discretion, or rather to the extraordinary jurisdiction of equity, it will not be exercised in favour of a party who has slept on his rights. Due diligence is necessary to call the Court into action, and where it does not exist, a Court of Equity will not lend its assistance; it always discountenances laches and neglect: Per Lord Manners: 1 Ball and Beatty, 68 (Sug. vol. 1, 298); Benedict v. Lynch, 1 John. Ch. R. 370. But the duty of promptness of action does not only rest on the vendor, in such cases as this, where the time within which the contract must be closed is not fixed by its terms. In such a case, if any unnecessary delay is created by one party, the other has a right to limit a reasonable time within which the contract shall be perfected by the other; and where the time has been thus fairly limited, by a notice stating that within such a period that which is required must be done, or otherwise the contract will be considered at an end, the Court has very frequently supported the proceeding: Per Lord Langdale, M. R.; Taylor v. Brown, 2 Beaver, 183. Even where tbe time within which certain acts are to be done have been fixed in the contract, a party who is to be benefited by such acts will be considered as waiving them if he does not require their completion within the time fixed. Thus in Gevet v. Humfrey, 3 Ves. Jr. 818, it was ruled that- if a purchaser do not call for the abstract before the time agreed upon for its delivery, equity will consider the time as waived. So in Jones v. Price, 3 Anst. 924, it was held that even where, by the terms of an auction, the sale was to be completed on a given day, yet,' if neither party takes any step to quicken the other, till it becomes impossible to execute the agreement by the day fixed, the time is waived, and equity will interfere to prevent the purchaser taking advantage of it at law. To the same effect is Harris v. Troop, 8 Paige, 433. These latter were cases in which a. time for completion was fixed by the contract. And they apply a fortiori to a case in which the contract is silent on this subject. In the case under consideration, the purchaser, after directing his scrivener to prepare the deed, took no steps to require the removal of the encumbrances, as far as can be collected from the evidence. When the vendor, through his attorney, proposed to the defendant’s scrivener that the defendant should retain from the purchase; money enough to discharge the remaining liens, he was met only by a refusal to acquiesce in this reasonable proposal. Nothing was then said about the lapse of time. Then he, according to the evidence, for the first time noticed that the $500 judgment was removed, and then he tendered to the defendant the deed of conveyance. Then he is told that his delay had lost Mr. Koons a.n advantageous sale, and the further prosecution of the sale is.declined. Under such a state of facts, and where no notice is proved of any requisition on the vendor to remove the encumbrances in a reasonable time fixed in the notice, which, according to the case of Taylor v. Brown, 2 Beaver, 180, is the true course to be pursued by a purchaser under such circumstances. I do not regard the delay in removing the encumbrances as justifying a rescinding of the contract by the defendant. It is true that the answer alleges that the’defendant notified the complainant that unless he promptly removed the encumbrances he would rescind the contract,” yet the answer is wholly unsupported by the proofs — no such notice is in evidence. If, indeed, by the effluxion of time, the defendant had actually lost a purchaser at an advanced price, as he alleges in his answer, in consequence of tbe delay, tbe Court would be less disposed to infer an acquiescence in tbe delays attending tbe removal of tbe encumbrances. Of tbe truth of tbis important fact not a particle of testimony bas been adduced. Sucb an omission on a point so vital to tbe defence can only be rationally attributed to one cause, viz. tbe non-existence of evidence to sustain tbe allegation. The cases in which changes of circumstances affecting tbe character or justice of the contract, arising from lapse of time, have induced Courts of Equity to refuse aid to tbe vendor, are much more urgent in their circumstances than any proved in tbis case. On the whole, I am of opinion that no sucb unreasonable delay in removing tbe encumbrances has been shown, as should make tbe Court refuse to enforce the execution of this contract.

Tbe last objection raised to tbe complainant’s right to a decree for performance gives rise to another serious difficulty in the plaintiff’s case. It is insisted that tbe agreement of tbe 14th of April, 1841, is not, from its vagueness or imprecision, sucb a memorandum in writing signed by tbe parties as can be enforced by tbe Court, consistent with the statute of frauds. As tbe agreement charged is denied in tbe defendant’s answer, it was unnecessary for him to insist on tbe statute as a bar. The complainant in sucb a case must produce legal evidence of the existence of the agreement: Cozene v. Graham, 2 Paige, 181; Ontario Bank v. Root, 3 Paige, 481. We must then inquire whether tbis objection is well founded.

To constitute an adequate written agreement for tbe sale of lands within tbe statute, it is necessary that it should state tbe terms of tbe contract with reasonable certainty, so that tbe substance of it could be made to appear and be understood from tbe writing itself, without having recourse to parol proof. For, an agreement defective in certainty'cannot be supplied by parol proof, for that would at once open tbe door to perjury, and to introduce all tbe mischiefs which tbe statute was intended to prevent. A contract cannot rest partly in writing and partly in parol. Unless tbe essential terms of tbe bargain and sale can be ascertained from tbe writing itself, or by a reference contained in it to something else, tbe writing is not a compliance with tbe statute: Parkhurst v. Van Cortland, 1 John. C. R. 280. If a contract be vague and uncertain, a Court of Equity will not exercise its extraordinary jurisdiction, but leave tbe party to his legal remedy: Colson v. Thompson, 2 Wheat. 341; Abeel v. Radcliff, 13 John. R. 297. In Reed’s Heirs v. Hornback, 4 J. J. Marsh. 377, it was ruled that specific execution of a contract will not be enforced unless parties have described and identified the particular tract, or unless the contract furnishes the means of identifying with certainty the land to be conveyed. Other American cases on the doctrine will be found in Ellis v. Deadman’s Heirs, 4 Bibb, 467; Kendall v. Alney, 2 Sumner, 278; Carr v. Duval, 14 Peters, 77; Abeel v. Radcliff, 13 John. R. 297. The English cases on this subject are cited and commented upon in Sugden on Vend. vol. 1, p. 118. And whether the instrument from which the contract is sought to be deduced is a receipt for a deposit, earnest, or purchase-money, it must contain the same requisites to bring it within the statute. In Blagden v. Bradbear, 12 Ves. 471, it was held, by the master of the rolls, that although an auctioneer’s receipt for the deposit may amount to a sufficient note or memorandum of an agreement within the statute, yet for that purpose the receipt must contain in itself, or by reference to something else, what the agreement is. This doctrine had previously been strongly intimated by Lord Eldon, in Coles v. Trecothick, 9 Ves. 252, 3.

The application of these principles to the case before the Court seems decisive against the plaintiff. The only written memoranda of the original contract is found in the defendant’s proposal, and. the plaintiff’s receipt, which are considered by the plaintiff as forming one instrument. The absolute insufficiency of these documents to constitute any definite contract in themselves appears best from simply reciting them. They are as follows: “The most is 3700, subject to 3000 mortgage. No taxes or other liens (except the mortgage) will be allowed. Received Ten Dollars on account of the purchase. The mortgage to be removed from the 5th street lot as soon as the title is made, without delay. R. A. Parrish: Eor Isaac Koons, Richard Tea.” Can anything be extracted from such papers from which a Court of Chancery can advisedly decree a specific performance ? Where is the estate bargained for ? What is the quantity of land to be conveyed? What is the kind of estate to be conveyed ? Without associating these papers with the parol evidence in the cause, it is impossible to extract anything intelligible from them. This, as has been seen, is wholly inadmissible: Parkhurst v. Van Cortland, supra. Every agreement which is required to be in writing by the statute of frauds, must be certain in itself, or capable of being made so by reference to something else, whereby the terms can be ascertained with reasonable precision, or It cannot be carried into effect.

Nor does the receipt and payment of the earnest, or the subsequent acceptance of a small draft of $20 drawn by Parrish on Koons in favour of Tea, nor the direction by Koons to his scrivener to draw the deed, nor the subsequent execution of it by Parrish as as escrow, change the result that follows from the defect in the original agreement. The legal effect of the small payment, I have already considered. Rent-rolls, particulars of estates, abstracts, &c., delivered by the vendor to the purchaser, will not be considered an agreement, although signed by him and containing the particulars of the agreement: 1 Sugden on Vend. 10th ed. 177, citing Whaley v. Bagnell, 6 Bro. P. C. 5; Cooke v. Toombs, 2 Anst. 420. In Givens v. Calder, 2 Dessaussure’s Ch. Rep. 171, the vendor having entered into a parol agreement for the sale of land, gave instructions in writing to an attorney to draw the deeds of conveyance. The deeds were drawn, and the vendor took them home and wrote to the vendee that they were ready, and requested him to come and settle the business, but died before the parties met. Yet this was held not to be such an agreement as would take the case out of the statute of frauds. In Gratz v. Gratz, 4 Rawle, 433, it was held that the “ employing and giving instructions to a scrivener to draw a deed of partition or other-writings, deemed necessary for carrying a partition into effect, and going on the property with an artist, and measuring off and designating the lines of division according to the agreement, for the purpose of enabling the scrivener to draw the writings, and to describe the several allotments with precision and accuracy, could not be considered of a character sufficient to take the case out of the act against frauds.” It is the original contract on which the party is to ask and obtain his decree. If that is defective because resting only on parol, or on a writing too vague and imprecise for the Court to decree upon, such steps in the progress of the negotiation as occurred in this case are not sufficient to give effect to it.

The plaintiff has, however, endeavoured to supply the defects in the written contract by the admissions in the defendant’s answer. But if the plaintiff use? these admissions, he must take them in all their connexions: for a Court of Equity will not allow a plaintiff to read a passage from a defendant’s answer for the purpose of fixing the defendant with an admission, without reading the explanations and qualifications by which the admissions may be accompanied, even tbougb sucb explanations and qualifications be contained, in a distinct, part of tbe bill. But even a contract admitted by an answer must not essentially vary from the contract set forth in the bill: unless they correspond, a specific performance will not be decreed: Harris v. Knickerbocker, 5 Wend. 638. The contract admitted is a contract for the purchase of the lot for the price of $3700, of which $700 was to be paid in cash, and $3000 to remain charged on the lot purchased, the title to be completed forthwith. The contract charged is a purchase by the defendant of the lot at $3700, of which $700 was to be cash, and $3000 to remain on mortgage, by which this lot and other property of the seller was bound, the purchaser contracting to remove the lien of the mortgage from such other property. This last is a most important variance between the contracts, and introduces a new term into the agreement, which the defendant denies he ever acquiesced in. In another important feature, the contracts differ. The defendant asserts that his contract required the title to be made to him forthwith. In the plaintiff’s view of it, no such feature exists. The plaintiff’s case cannot, therefore, consistent with principles, be extracted from the defendant’s answer. It must be proved aliunde. This he has attempted, but has failed to do, by the kind of evidence required by the statute of frauds. But if a defendant, in his answer, even admits a parol contract, as charged in the plaintiff’s bill, still he may rely on the statute as a complete bar: 2 Story, Eq. 59, 60. It is immaterial what admissions are made by a defendant, says Sir William Grant in Blagden v. Bradbear, who insists upon the benefit of the statute, for he throws it upon the plaintiff to show a complete written agreement; and it can be no more thrown upon the defendant to supply the defects in the agreement than to supply the want of an agreement.

But this is not the case of a contract as charged in the bill, and admitted in the answer. But where another and a different one is set up, under such circumstances, the plaintiff must establish his case by legal proofs, showing himself entitled to the relief prayed for: Payne v. Blackburne, 3 Ves. Jr. 39, 890; 1 Fonb. 167, 89. This he has failed in doing, and his bill must be dismissed; but without prejudice to his right to proceed at law for the recovery of damages, if he thinks fit to pursue that remedy.


source: Caselaw Access Project

author: KING, President. —

license: Public Domain

text:
    Thomas et al. v. Ellmaker et al.
    where the answer of a defendant has not been excepted to, and the ease is set down by the plaintiff on bill and answer, the answer is to be taken as true in all points.
    A voluntary association of individuals who have contributed funds for a public purpose, will be regarded as a charity, and a Court of Equity in this state has jurisdiction over the parties. Funds supplied by the gift of the Crown, or from the legislature, or from private gift, for legal, general, or public purposes, are charitable funds, to be administered by a Court of Equity.
    Money given for a fire-engine, or hose company, either by will or the gift and contribution of individuals, is a charity, over which a Court of Equity can exercise control.
    The statute of 43 Elizabeth, in relation to charities, is notin force in Pennsylvania; yet a common law, analogous in its results to those of the statute, exists in this state, by which such subjects are placed under legal control and protection. So cases constructively within the statute are of a public nature, tending to the relief of the public at large: and even when they are not corporations; for equity supports the uses without them; and although they are not incorporated bodies in the proper sense of the term, but resemble them in this, that their trusts are of a public character, and are specially recognised and provided for by the laws of the Commonwealth.
    A fire association, formed for general and public usefulness, where there is no individual emolument or advantage, is a charity over which a Court of Equity can exercise its jurisdiction, under the 13th section of the Act of 1836, which gives the Supreme Court and the Court of Common Pleas of Philadelphia, sitting in equity, jurisdiction over an association of individuals formed for a public purpose, who received money from the public as by gift, although an unincorporated association or society.
    Such an unincorporated association is not a partnership as between themselves, whatever may be its relation as to third persons.
    Where the association is for private and individual profit or pleasure, with no public object, it is treated as a copartnership. So, where the association is for private emolument, or for benevolence, confined exclusively to the associates, and in which none others participate, as between themselves, they are partners.
    But a private unincorporated association for general purposes of public utility, a Court of Equity will not treat as a partnership, nor declare its dissolution and divide its assets among the members composing it; especially on the application of a minority.
    Property given to such an association is pledged to the objects for which it was intended to be applied by the successive contributors, and cannot be diverted from them while those remain who are ready and willing to execute the public trust with which it has been clothed. In such private associations the majority cannot bind the minority unless by special agreement. Nor will a Court of Equity suffer its funds to be diverted to other uses than the donors intended.
    If an individual is unjustly, and without reasonable cause, deprived of his membership in an unincorporated association, regarded as a charity, he is not without his remedy in a Court of Equity. And his only relief is by application to that tribunal, for he has none in a Court of Law. He should apply specifically for his restoration. Where such relief is not specially asked for in a bill, it will not be granted under the general prayer.

      The rule on the subject is' this: that although, where the prayer does not extend to embrace all the relief to which the plaintiff may at the hearing show a right, the deficient relief may be supplied under the general prayer; yet such relief must be consistent with that specifically prayed, as well as with the case made by the bill. A specific prayer for the dissolution of an association, and an account and division of its assets, is not consistent with a decree for a restoration to membership.

      May 6.
    This case arose on a bill in equity filed by Samuel B. Thomas and twenty-four others, against Peter C. Ellmaker and ten others, specially named, and referring to a certain schedule containing the names of nearly one hundred other individuals, embraced in said schedule attached to the bill, which it was prayed the Court would make parties to the bill, in case it should be thought fit; alleging that all were associated together as members of an unincorporated association, under the name and title of “The Phoenix Hose Company,” and that the complainants, in connexion with the defendants and those mentioned in the schedule, signed an article of association in the following words: — “ We, the undersigned, being well convinced of the great utility to be derived from well regulated hose companies in times of fire, and being desirous to render our assistance in order to preserve the property of our fellow citizens from the ravages of that destructive element, have formed ourselves into an association under the name and title of ‘ The Phoenix Hose' Company,’ and for the good government thereof have adopted a constitution and by-laws, for the support of which we mutually pledge ourselvesand the bill averred, that, in conformity with said article of association, a constitution and by-laws were adopted, a copy of which was attached to the bill, and a prayer that they should be considered a part thereof.
    The complainants then set forth, that, for many years previous, they, in connexion with the defendants, and those mentioned in the schedule, had been members of said association, and enjoyed all the rights and privileges of membership, and as such became possessed of a large amount of real and personal property, a description whereof was given in a schedule attached to the bill, and to be considered a part of the same, besides contributing large sums of money for the support and enriching said association; also averring, that the complainants, at all times, had properly conducted and demeaned themselves as members of said association, and never committed any act to render themselves liable to be justly expelled under the constitution and by-laws thereof.
    The complainants then complained that the defendants, with other persons unknown to the plaintiffs, did unjustly and illegally enter into a combination to expel them from tbeir membership in said association, and to deprive them of all their rights and property therein, without any just cause or legal proceeding, and the said defendants, in pursuance and execution of said combination, did secretly and unlawfully eonspire and agree, that they, the said Ellmaker and the other defendants, as members of the said association, to vote with, and assist in the expulsion of the complainants from said association, and that in pursuance of the said combination and agreement, the aforesaid persons, parties defendants in said bill, were nominated before an electing committee of the said association held in an unusual manner, and without legal or timely notice having been given to all the members of the convening thereof, but. that due and timely notice and knowledge of the convening of the said committee was purposely delayed and withheld from Wallace Fassitt, one of the complainants, and a member of said committee.
    The bill further stated, that, in pursuance of said combination and agreement, a special meeting of the said association was called, under the direction of the President, Peter 0. Ellmaker, one of the defendants, and at the request of the others, naming them, and the time when called, of which due and legal notice was not given to the complainants, of the convening thereof, according to the by-laws of the association.
    The complainants also averred, that, at the meeting thus illegally held at the time mentioned, the said defendants and others, in further pursuance of the said combination and agreement, and notwithstanding the protest of said Eassitt, one of the members of the electing committee, stating that he had not received due and timely notice of the meeting of said committee, and was thereby prevented from attending and exercising his right as a member of the same, did proceed to the election of said other ten defendants named in the hill, and did elect them members of said association; and that, after the election of the persons so illegally made, and at the meeting so illegally held without due notice having been given, in pursuance of the said illegal combination and agreement, Peter C. Ellmaker, president of the said association, and one of the said defendants, without having given any notice or intimation to the complainants, read and proposed a certain preamble and resolutions, a copy of which was annexed to the bill, illegally and unjustly expelling the said complainants from their membership in said association, which said preamble and resolutions, with the assistance of the aforesaid illegally elected members, were passed. And that the said resolutions were so cunningly devised and framed, that they include the names of all the complainants, and were passed upon one and the same vote, and thereby, the complainants were deprived of their right of voting thereon, and protecting each other in the legal enjoyment of their rights and property.
    The bill then averred that the defendants pretended that the electing committee were not irregularly convened, and that said meeting was not illegal, and that the said complainants were not illegally expelled from being members of said association, but that they were legally expelled from said association, and that they will not permit the complainants to act and enjoy their rights and property as members of said association, and that the defendants threaten and intend to apply the property of the association as they see fit, without consulting or permitting the complainants to exercise their just rights or control over the same. And that the defendants pretend and allege that they, with certain others named, are exclusively members of said association, and have refused the complainants their rights as members thereof, and their property therein, and threatened to elect divers other members of said association, and do refuse the complainants their right to participate in said election, and deny them the right of voting thereon, and on all matters relating to the interests of said association.
    The bill then prayed that the defendants might be required to answer twenty-four interrogatories specially put; and concluded with a prayer that an account be taken of all the property of the association, and of all money paid out or received since the pretended expulsion. Also for the appointment of a receiver, and a decree of the dissolution of the association, and that the property might be distributed among the persons legally entitled thereto. There was also a prayer for an injunction, and' one of general relief.
    There was an answer filed, denying the combination charged in the bill, and asserting that due notice was given of the time of the meeting of the association to the plaintiffs and other members thereof; alleging the legality of their election, and admitting the expulsion of the complainants; and asserting that it was by a vote of two-thirds of the members present; that the complainants were present at the meeting, and had an opportunity of defending themselves, &e. Other matters were stated in the answer, which are not deemed material to understand the opinion of the Court.

      The cause was heard on bill and answer, and was argued by Mr. Thomas and Mr. Meredith for plaintiffs, and Mr. Page and Mr. Pallas for defendants.
    Mr. Page contended that the Court of Common Pleas had no jurisdiction under the Act of 1836, nor by the Act of 1840. That an unincorporated company was no partnership. That no account was prayed for in the bill.
    2. That all the parties interested were not introduced into the bill, which ought to have deen done: cited Calvert on Parties, 117, 118, 150.
    3. It cannot be regarded as a trust. That a trust was a confidence reposed in another by the act of the party or the act of the law. That the only ground on which a Court of Equity could claim cognisance of the parties would be, that it was a partnership. But it was not such, and did not come within the definition of a partnership : cited 5 Watts, 350, 360; Cary on Part. 80; 4 Yesey, 756; 5 Id. 322; 1 Yesey & B. 154; 2 Atk. 296; 6 Watts, 306.
    4. That there was an ample remedy at law; that a Court of Equity would not interfere with the concerns of a partnership like this, if it was one.
    That upon the facts set forth in the bill, the expulsion of the members was in accordance with the by-laws, rules, and regulations of the company, and was perfectly legal and proper. That notice was given to those expelled of the action of the committee.
    Mr. Thomas, for plaintiffs,
    contended that the Court had jurisdiction under the A.cts giving equity jurisdiction, even although it should not be regarded as a partnership : cited 3 Yesey & Beames, 180; Berry v. Dix, 1 Con. 213; 2 Yesey & Beames, Waters u. Taylor, 3 Yesey, 74; 15 lb. 10; 1 Swanston, 48; 1 Story’s Eq. 622; 5 Whart. 520.
    If the act complained of is illegal, the Court have the right to grant an injunction, and there were sufficient parties for that: 16 Yesey, 326; Mayor v. Malachi, 1 Maline & Craig, 529.
    3. The manner in which the expulsion was effected was illegal; the plaintiffs had no notice of the charges against them: 1 Black. 485 ; 1 Salk. 174. On the question of jurisdiction was also cited 8 P. W. 511; 1 Yesey, Jr., 130; 4 Madd. 143; 2 Jacob & Walker, 503; 9 Wend. 400; 5 Wharton, 506; 3 Atkins, 385; 2 Yesey, 629, 630; 1 Simons, 8; 14 Yesey, 245; 2 Simons, 386; 1 Keene, 24; 4 Johnson C. R. 373; 1 Jacob, 537.

      Mr. Meredith, on the same side,
    contended, that it was clear the Court had jurisdiction. It was an unincorporated company — a partnership — a combination of individuals for a joint purpose, and was embraced within the law of partnerships. Such companies were within the view of the legislature when the equity authority was conferred upon this Court.
    The agreement was a mere private one. This was a case for the specific aetion of a Court of Equity, and here equity interposes. Whenever one partner is unjustly excluded from his rights, equity restores him. An injunction will be granted, when necessary, to restrain others from illegal and improper action, and the Court will give full and perfect relief.
    He contended the Court had a clear right to restore the members that were expelled; and also the right to dissolve the association, and require an account and distribution of the assets of the company.
    Further, as they had a right, the remedy was a decree to restore them to what they had been deprived of by the illegal acts of the majority, who had excluded them.
    Mr. Dallas, in reply,
    contended that an injunction could not issue, and it was wrong; that his clients should not be enjoined from proceeding in the exercise of their rights and functions.
    1. The Court had no jurisdiction for the purposes ashed for in this bill. That the facts ascertained from the bill and answer did not make a case that would warrant the interference of the Court.
    The source from whence the Court derived their jurisdiction was from the Act of 1836. That the character of the defendants, and relations in which they stood to the plaintiffs, did not give jurisdiction. The Court could not dissolve the association; such a power could not be claimed from the Act of 1836.
    He further contended that there was a remedy at law, if members were ejected, arising from the nature and character of the association.
    It was also argued these were not proper parties before the Court: all had not been introduced into the bill. It was also contended that the expulsion of the plaintiffs was legal, and in accordance with the articles of association.
   The opinion of the Court was delivered by

KING, President. —

This case, as disclosed by the bill, exhibits, and answers, is in substance as follows : The plaintiffs, ten, and the defendants, eighteen in number, and others, were members of a “fire hose association in Philadelphia,” known since the year 1817 as the “Phoenix Hose Company.” This association was never incorporated, but existed under a constitution and by-laws framed for their better government, and subscribed by each person becoming a member. The preamble to the constitution and by-laws declares that the associates, “ being well convinced of the great utility to be derived from well regulated hose companies in time of fire, and being desirous to render assistance in order to preserve the property of their fellow-citizens from the ravages of that destructive element, had formed themselves into an association under the name and title of the ‘Phoenix Hose Company,’ and for the good government thereof, had adopted a constitution and by-laws; for the support of which they mutually pledged themselves.” This association has continued in harmonious action until the controversy which has given rise to these proceedings. During this time, a large fund has accumulated from the voluntary subscriptions of the members, which has been invested in a house and lot for the reception of their apparatus and hose, and other appliances required for the objects of the association. For the better understanding of the case, it becomes necessary here to recur to a portion of the constitution and by-laws, which are alleged by the complainants to have been in-fracted by the defendants, and which infraction forms the basis of the relief asked by complainants in their bill. By the fourth section of the constitution it is declared, that “no member shall be elected or expelled without the concurrence of two-thirds of those present,” and that “ no member shall be expelled without having an opportunity to defend himself.” By the fourth section of the fourth by-law, it is made the duty of the secretary to “ have notices served on all the members, at least twelve hours previous to every meeting, designating those at which amendments to the constitution or by-laws are to be determined upon.” Among the officials contemplated by the constitution, is an electing committee of five members, chosen semiannually. By the first section of the first by-law, “ any person wishing to become a member, shall be proposed in writing to the electing committee, who, should they deem him eligible, shall report him at the next meeting of the company, when he may he elected.” The stated meetings of the society are to be held the first Thursday of every month ; but special meetings may be called at any time at the request of six members, by direction of the president.

The bill proceeds to charge that the defendants entered into a combination to expel the complainants from membership in the association, and to deprive them of all rights therein; and that, in pursuance of this combination, the first ten named defendants did secretly conspire and agree that they would procure the election of the other eight defendants as members of the association, to vote and assist them in the expulsion of the complainants. That in pursuance of such combination, the last-mentioned eight defendants were nominated before an electing committee át a meeting held in an unusual and sudden manner, and without due notice given to all the members thereof; but that such notice was purposely delayed and held from Wallace Fassitt, one of the members of said committee. The bill proceeds to charge that afterwards and in pursuance of the combination, a special meeting was called under the direction of Peter C. Ellmaker, the president of the association, at the request of six of the defendants, for the evening of the 14th of April, 1843, at 8 o’clock, of which meeting due notice twelve hours previous to the convening thereof was not given to the plaintiffs; that, at the special meeting so held, the first ten named defendants and others, members of the association, in further pursuance of the combination charged, and against the protest of Fassitt, that he had not received due notice of the meeting of the electing committee, proceeded to the election of, and did elect, the said last-mentioned defendants members of the association. That then P. C. Ellmaker, without any previous notice or intimation to the plaintiffs, proposed a preamble and resolutions, illegally and unjustly expelling the plaintiffs from the association; which preamble and resolutions, with the assistance of the eight illegally elected members, were passed, being so- cunningly devised and framed, that they included the names of all the plaintiffs, and were adopted by one and the same vote; thereby depriving the plaintiffs of their right of voting, and protecting each other in the enjoyment of their rights. The preamble and resolution are annexed as an exhibit to the bill, and are in these words: “ Whereas it is necessary for the well-being and prosperity of associated bodies, that union and harmony should exist among the members on all subjects relating to the general good; and whereas, it has been ascertained that a combination now exists among a number of the members of this company, whose object is ultimately to create a dissolution; to effect which, they oppose the election of every person, regardless of character or qualification, who may be recommended for membership, unless they believe tbe candidate will assist in the accomplishment of their object: And whereas, the company deeming the privilege which belongs to all bodies constituted in like manner, of presenting those of their members who have been guilty of acts which are prejudicial to the interests of the constitution, do

Resolve, That S. J. Christian, S. B. Thomas, Joseph Walker, F. C. Thomas, William C. Conrad, F. A. Eberman, A. V. Gibbs, Pennington Jones, F. R. M’Clure, F. J. Ott, Wallace Fassitt, and Elias G. Cope, having entered into a conspiracy to prevent the election of members, and ultimately effect a dissolution of this company, are now no longer worthy of membership.
Resolved, That the said S. J. Christian, &c., be and are hereby expelled from this company.”

After the usual allegations of pretences, interrogatories to be answered, and other formal parts, the bill proceeds, first, to pray answers from the defendants; second, that an account may be taken of all and every part of the property and effects of the association at the time of the pretended expulsion of the defendants, and an account of all moneys received and paid since; third, that a receiver be appointed to take possession and charge of all property and effects of said association, and protect the same from injury and waste; fourth, that the Court decree a dissolution of the association, and a distribution of the property between such persons as may be legally entitled thereunto; fifth, that an injunction ad interim be granted, restraining the defendants from intermeddling with the property, from electing new members, or doing any act or thing affecting the association, or the rights of the plaintiffs; and finally, for general relief.

The answers of the defendants admit the existence of the association as charged in the bill, the membership of the plaintiffs previous to the 14th of April, 1843; that the association was held under the constitution and by-laws stated in the bill, and that the associates held, owned, and possessed, the real and personal estates alleged by the plaintiffs. But the answer distinctly denies the combinations charged, and asserts that due notice was given of the time of the meeting of the association to the plaintiffs and others, members thereof, which resulted in the largest meeting of the association ever assembled; 'that due notice of the meeting of the electing committee was served at the residence of Wallace Fassitt, the dissenting member; that such meeting was not held in a sudden and unusual manner, but called according to the usual mode of convening the committee; that tbe committee in the established form reported in favour of admitting as members, the parties alleged by the bill to have been irregularly introduced; and that, although Wallace Eassitt did object to the reception of the report of the committee in favour of admitting the disputed members, on the ground of a want of due notice to him, yet that such objection was overruled, and the persons reported favourably upon, were duly elected members of the association, and thereupon entered upon the duties thereof. The answer then proceeds to admit the expulsion of the plaintiffs in the manner and for the causes set forth in the bill; and avers that such expulsion was determined upon by the votes of two-thirds of the members present; that the plaintiffs were present, and had the constitutional opportunity of defending themselves; that they demanded no further opportunity than was then given to them to make their defence; but, on the contrary, acquiesced in the sufficiency and legality of said opportunity. It is then admitted that the question of expulsion was taken on all the plaintiffs together, and this course is justified from the nature of the accusation, and that the plaintiffs did not deny or dispute the charge. It is further admitted, that neither of the defendants were permitted to vote on the question of the adoption of the resolution for their expulsion; which' course is further justified on the ground of parliamentary usage; and the decision of the chair is said to have been acquiesced in and assented to by the plaintiffs.

The answers of the several defendants have not been excepted to, and the case having been set down by the plaintiffs on bill and answers, the answers are to be be taken as true in all points. Brinckenhoff v. Brinckenhoff, 7 Chancery Rep. 217.

The questions raised in the argument, and which we are now called upon to decide, are, first, has this court sitting in equity any jurisdiction over these parties ? Second, can we grant the relief prayed for by the complainants under the special prayer ? And, if we are of opinion in the negative, have they shown any equity entitling them to aid from us, under their prayer for general relief, according to the settled principles of equity practice and pleading?

After the fullest consideration of the ease, I can see no reason to question our jurisdiction over these parties. In England no doubt can exist that such an association would be regarded as a charity over which equity would exercise control. In the Attorney-general v. Heelis, 2 Simons & Stewart, 67, the Vice-Chancellor says, that “ funds supplied from the gift of the Crown, or from the legislature, or from private gift, for legal, general, or public purposes, are charitable funds to be administered by Courts of Equity. It is not material that the particular, public, or general purpose, is not expressed in the statute of Elizabeth; all other legal, general, or public purposes being equally within the equity of the statute.” In the case of M’Grill v. Brown, C. C. U. S., which arose under the will of Sarah Zane, one of the disputed bequests was of a sum of money given by the testatrix to the citizens of Winchester, Yirginia, for a fire engine and hose. Speaking of this bequest, Judge Baldwin, in his learned and elaborate opinion (page 66 of Report), says, “ There appears no adjudication as to a bequest for a fire engine or hose; but there needs no argument to prove it as much an object of utility as a sessions house, a town house, &c. We should administer the law of charities in this state with little regard to its principles, in excluding from its protection so laudable an object as this.” The authorities to sustain this position might be multiplied, but I regard it as unnecessary, and simply refer the inquirer to the opinion in M’Gill v. Brown, where all the learning on this subject is collated with remarkable industry and accuracy.

Although it has been held in our Supreme Courts that the statute of 43 Elizabeth, under which the English Courts of Chancery in general regulate and control such charities, is not in force in Pennsylvania; yet a common law, analogous in its results to those of the statute, exists in this state, by which such subjects are placed under legal control and protection. “We consider,” says Chief Justice Gribson, in Witman v. Lex, “the principles which chancery has adopted in the application of its principles to particular cases, as obtaining here, not indeed by the force of the statute, but as part of our common law; and where the object is defined, and we are not restrained by the inadequacy of the instrument which we are compelled to employ, we give relief nearly, if not altogether to that extent which chancery does in England. And this part of our system has been produced by causes which worked as powerfully here as did those which produced the system of relief that sprang from the statute of charitable uses.” “ The cases constructively within the statute,” says Rogers, Justice, in Babb v. Read, 5 Rawle, 151, “are of a public nature, tending to the relief of the public at large, and even where these are not corporations, for equity supports the uses without them.” But, remarks the learned Judge, commenting on the case before him, which was that of a society of Odd Fellows, “ this is not a charity within the statute of Elizabeth, or the common law of Pennsylvania, the benevolence being confined to its own membersand most correctly, for it wanted the feature of legal, public, and general usefulness, which Sir John Leech, in the Attorney General v. Heelis, describes as the peculiar characteristic of those charities which are administered by Courts of Equity. The same doctrine is advanced by Sergeant, Justice, in Unangst v. Shortz, 5 Wharton, 519. “ The articles' of agreement,” he observes, “ form the fundamental rules and regulations, and are in the nature of a constitution, under which the congregations jointly and - severally enjoy certain temporal and religious rights. This mode of holding real estate in'trust for religious societies, and others of a charitable nature, was frequently adopted in Pennsylvania instead of a charter of incorporation. They are not incorporated bodies in the proper sense of the term, but resemble them in this, that their trusts are of a public character, and are specially recognised and provided for by the laws of the Commonwealth.” Again, in the Methodist Church v. Remington, 1 Watts, 218, the Chief Justice, delivering the opinion of the Court, says, “ The decision in Witman v. Lex, 17 S. & R. 388, is full to the point, that a trust in favour of an unincorporated religious or charitable society, is an available one.” In the same judgment it is remarked by the Court, that “ equitable powers in support of charitable uses, seem to be founded rather in necessity and the constitution of the Court, than in the provisions of the statute of Elizabeth.” If it were necessary for the decision of this case, that I should hold this association to be one of those charities,-which are recognised and sustained by the common law of the state, I should not hesitate in doing so. It possesses all those attributes of general public usefulness, that total absence of all motives of individual emolument and advantage, which are the true indices of distinction between such associations, and those which Courts of Equity, despite of every effort of their originators, have regarded and treated as mere copartnerships. I am aware that the Supreme Court have, under the Act of 1791, authorizing that tribunal to incorporate literary, charitable, or religious associations, decided that such associations as the present are not within the purview of the legislature. Yet this was quite a different question from whether such associations were charities within the common-law jurisdiction exercised in British equity under the statute of 43 Elizabeth. That was a question of legislative intention as expressed in a written law, conferring wbat bad heretofore been legislative powers on a judicial tribunal. The present is a question of mere judicial authority, to be decided from the nature of the jurisdiction possessed by the tribunals, to be ascertained from direct judicial precedents or necessary analogy to them.

If, however, any doubt could exist as to our jurisdiction over this controversy, as arising from our unlimited authority over trusts and trustees, there can be none under the provisions of the Act of 1836. The 13th section of that Act declares that the Supreme Court and the several Courts of Common Pleas shall have the jurisdiction and powers of a Court of Equity, so far as relates inter alia to “ the supervision and control of all corporations, except those of a municipal character, and unincorporated societies or associations, or partnerships.” The section then proceeds to declare, that, “besides the powers and jurisdictions aforesaid,” the Supreme Court sitting in banc in this district, and this Court, shall have certain other enumerated powers, embracing' nearly the whole range of equity jurisdiction. It is argued, that, because this part of the section, which so enlarges our jurisdiction, reiterates some of the previously granted powers, and omits others, that it was intended to deny to the Courts of this district the powers conferred on the other Courts of Common Pleas in such omitted cases. There is no sort of reason why this exception should have been made in this district, but, on the contrary, manifest reasons why it should not. It is here that the authority of the Supreme Court and of this Court over unincorporated associations and societies is most required; and simply because it is here that they are most numerous. To give the Supreme Court and Courts of Common Pleas a peculiar jurisdiction where it is least, and to exclude them where it is most wanted, is an intent which never should be assigned to the legislature, unless inevitable from express enactment. Is this the case Here ? Assuredly not. The section gives jurisdiction over unincorporated associations and societies, to “ The Supreme Court and the several Courts of Common Pleas” without exception; and that part of the section which is supposed to qualify this general grant, purports to enlarge and not qualify the jurisdiction of the Supreme Court sitting in this district, and of the Court of Common Pleas of this county. The supplemental,grant of powers to these tribunals is given, “ besides the powers and jurisdiction aforesaid.” The limitation also, if it exists, would extend to the Supreme Court as well as to ourselves, for both are embraced in the same sentence enlarging our powers; and which, according to the defendants’ argument, has an effect so different from enlarging, that it actually qualifies those previously granted. If this construction is adopted, we have the curious anomaly, that the Courts of Common Pleas of all the other counties of the state have a jurisdiction, and that one of the most delicate and difficult characters in equity, which is not possessed by the Supreme Court sitting in banc in Philadelphia. And this, although the Supreme Court has given to it, in the beginning of the section, express jurisdiction over the subject throughout the state; and although that part of the section, charged with producing this incongruous result, purports to give powers “besides” those previously granted. Of the jurisdiction of this Court over “unincorporated associations and societies,” I entertain no doubt.

Before proceeding to the inquiry whether the plaintiffs are entitled to the relief prayed for, or any other relief arising from the facts disclosed, it becomes necessary to notice the argument which sought to place this case on the footing of copartnerships: claiming for the members of this association the ordinary remedies administered between partners in Courts of Equity, as to dissolution, account, and division of funds, after payment of debts. From the course of reasoning already adopted, in which our jurisdiction over these parties is asserted on the ground of the association being a charity or an unincorporated association, within the contemplation of the 13th section of the Act of 1836, it follows that I do not regard these parties, as between themselves, as partners. I say as between themselves, for their relation to third persons is a different affair, one not before the Court, and upon which it is not requisite to pass judgment by anticipation. The English Chancery reports are indeed full of cases in which associations for private and individual profit or pleasure, have been looked upon in no other light than as copartnerships. Thus, in Cullen v. The Duke of Queensbury, 1 Bro. Ch. Ca. 103, a committee of a private association, consisting of sixty persons, were held responsible for goods furnished the club. Lord Thurlow, according to the case as stated by Lord Eldon, 6 Ves. p. 777, declares, “that he would convince these individuals they had no constitution or by-laws.” Lloyd v. Loaring, 6 Ves. 773, was a bill filed by three individuals styling themselves chief officers and secretary of a Freemasons’ club, setting out part of their constitution and by-laws, by virtue of which the property was vested in the plaintiffs. The society had agreed to dissolve and join another, and the defendant, a member, being dissatisfied with the arrangement, carried off the property, books, &c., of the club. The relief asked was a redelivery of the abstracted property. On an objection to the bill'for want of parties, leave was given to amend, by striking out all that portion of the bill which assumed a corporate character, and to continue the suit as one brought by the plaintiffs on behalf of themselves and others, partners. Throughout his whole judgment, Lord Eldon regards the parties only as partners, refusing in any way to recognise them in a corporate capacity; declaring it to be the bounden duty of courts of justice not to permit persons not incorporated, to affect to treat themselves as a corporation on the record. Pearce v. Piper, 17 Ves. 1, was the case of a voluntary association for granting annuities to widows; Cockburn v. Thompson, 16 Ves. 321, that of a philanthropic annuity association; Beaumont v. Meredith, 2 Ves. & Beames, 180, that of a society for the relief of its members in sickness. All these were treated and regarded by Lord Eldon as partners. It was the same principles that produced the decision of the Supreme Court in Babb v. Read, 5 Rawle, 151, where the members of a lodge of Odd Fellows were treated as partners, and a debt due by the society to one of its members postponed to that of third persons chiming on the same fund. But all these are cases of private associations for private emolument; or for benevolence confined exclusively to the associates, and in which none other had any participation. They possessed no general object, but were as much private concerns as any other union of individual capital for the exclusive advantage of the contributors. But the “ Phoenix Hose Company” is not an association for the purpose of trade. There is no community of profit or loss; no termination of its existence by the death or withdrawal of any of its members; no taking of profits in severalty: Schuter v. Rapp, 5 Watts, 360. In short, as between the parties to it, it presents no feature in common with a partnership. It is then a private unincorporated association, for general purposes of public utility, and to be governed by the principles of law and equity applicable to such bodies: Livingston v. Lynch, 4 Johns. Ch. Rep. 578.

We are thus brought to the remaining inquiries in the cause, viz. whether the relief prayed for can be accorded to the plaintiffs, or whether on the hearing they have exhibited such an equity as calls for our interposition under their prayer for general relief.

That the special relief asked, cannot be accorded, follows from the ascertainment of the true character of the association. We are asked to .treat it as a partnership, to pronounce for its dissolution — ■ divide its assets among the members composing it at the time of the ejection of the plaintiffs — and in the interim, to place its property and funds in the hands of a receiver, and to prevent the introduction of new members into the association. Such an authority exists nowhere, on the application of a minority or even a majority of such an association. Its property is pledged to the objects for which it was intended and directed to be applied by the successive contributors, and cannot be diverted from them while those remain who are ready and willing to execute the public trust with which it has been clothed. Thus in Brownly v. Smith, 1 Simons, 8, it was held that a few of a. large number of persons may institute a suit in behalf of themselves and the rest, for relief against acts injurious to their common right, although the majority approve of those acts and disapprove of the institution of the suit. “ The general principle of law,” says Chancellor Kent in Livingston v. Lynch, 4 John, C. R. 594, “is, that, in such private associations, the majority cannot bind the minority unless by special agreement.” But, regarding this association in the aspect of a charity, nothing can be clearer than that a Court of Equity will not suffer its funds to be diverted to other uses than the donors intended (see 1 Bacon Abr. 588, tit. Charitable Uses, E.); and most certainly, they would not aid a minority in the' diversion of the funds from the prescribed object, against the wishes of a majority of those charged with its execution. And this is precisely what we are required to do in this bill; for the complainants ask us to dissolve the association and apportion the funds among those charged to employ them for the general public good. The most sceptical as to the nature and extent of our equity jurisdiction in the premises, will hardly, we think, be disposed to doubt the accuracy of my conclusions, when I refuse to assist the complainants in the furtherance of such an object.

The argument before me has been chiefly directed against the regularity of the expulsion of the complainants, assigning such expulsion as a reason why the association should be dissolved, and its affairs wound up. If this association had been a partnership for a period not yet expressed by the terms of the articles, the exclusion of the plaintiffs as copartners would have undoubtedly formed a sufficient ground for a decree for dissolution and an account. This subject I had occasion to consider in the case of Gowen v. Jeffries, 2 Ashmead, 296. In that case the exclusion of a partner from all interference in the affairs of the firm, and the withholding .of the books from his inspection, were held adequate reasons for a dissolution of a partnership, long before' the period limited by the articles for its continuance. The principles and authorities on which this decision was predicated, will be found on referring to the report. Not regarding this association as in any way analogous in its constitution to that of a partnership, the principles springing from that relation, which have been invoked, I do not regard as relevant. I do not, however, mean to say, that if- an individual is unjustly and without reasonable cause deprived of his membership in such an association, he is without relief in a Court of Equity. If he has no relief there, he has it nowhere; for all that he could get in a Court of Law, if he could maintain an action, would be damages. Such a tribunal could not give him relief by reinstating him in his membership, and sustaining him in the enjoyment of the functions of which he had been deprived by the unjust acts of his co-associates. By mandamus I think he could get no assistance. That is a writ commanding execution of an act where otherwise justice would be obstructed or a charter neglected; issuing regularly only in cases relating to the public and the government, and is therefore termed a prerogative writ: 4 Bacon, tit. Mandamus, A. 498; Ib. C. 500; Comyn’s Dig. vol. 5, tit. Mandamus, B. In The King v. The Marquis of Strafford, 3 T. R. 646, it was held that in cases of mere equitable right, the King’s Bench could not interfere by mandamus, the remedy being in equity. Buller, in his opinion in this case, says, “ It appears to me on the affidavits, that this is a trust, and therefore that the remedy is in equity. A party applying for a mandamus must make out a legal right; though, if he show such legal right, and there be also a remedy in equity, that is no answer to an application for a mandamus; for, when the court refuse to grant a mandamus because there is another specific remedy, they mean only a specific remedy at law.” Com. v. Murray, 11 S. & R. 73, is full to the question that a mandamus will not lie.

If any doubt could exist as to our power to give relief to such a suitor by specifically compelling his restoration to the functions of a trustee, under general principles of equity, that must be greatly modified, if not entirely removed, when we have regard to the express power of “ supervision and control of unincorporated associations and societies” given to this Court by the Act of 1836. These are words of broad extent, and some day will give rise to most interesting and extensive inquiries. I will not, however, now express any absolute opinion either on the extent of our powers under tbe Act of .1836, or whether, under the circumstances of this case, enough has been disclosed to require us to decree the restoration of the plaintiffs to their functions 'as members. This relief has not been asked in -the special relief prayed for in the bill, and is not such as should be granted under the general prayer. The .rule on the subject is, that although, where the prayer does not extend to embrace all the relief to which the plaintiff may at the hearing show a right, the deficient relief may be supplied under the general prayer; yet such relief must be consistent with that specifically prayed, as well as with the case made by the bill; for the Court will not suffer a defendant to be taken by surprise, and permit a plaintiff to neglect and pass over the prayer he has made, and take another decree, even- though it be according to the case made out by his bill: 1 Daniels, 489-90. Now, a specific prayer for the dissolution of an association, and an account and division of its assets, is hardly consistent with a decree for the restoration of the complainants to their functions as members, with the view that they should be assistants in the future execution of the trust. I will not, however, by a direct dismissal of the bill, deprive the plaintiffs of an opportunity of amending so as to ask the relief they may be entitled to. The case may therefore stand over, for the purpose of enabling them to amend, as well as respects the prayer for relief as by the introduction of new parties, if the objection on that ground which was suggested in the argument, is thought to possess any weight. The special injunction granted on the filing of the bill, must be dissolved.