text:
    Mandel vs. Peet, Simms & Co.
    The defendant in a suit by attachment -will not be allowed to call in question the truth of the affidavit on which the writ of attachment issued. (Taylor vs. Mearás Hoffman, 4 Eng, Bep. 378.)
    Under the provisions of the Statute {oh. 17 Dig.,) an attachment may be issued as well against a defendant, who is a non-resident of this State, or who is about to remove out of this State, or who is about to remove his goods and effects out of this State, or who so secretes himself that the ordinary process of law cannot be served on him, as against absent or absconding debtors — the grounds specified in the third section being cumulative of those named ia the first.
    The word “ absent” in the first section of the act should not be taken or understood in its literal sense; but as intended to mean those who have absconded or are nonresidents — mere absence from the State temporarily, on business or pleasure, not being within the mischief of the act.
    It is not necessary that the affidavit for an attachment, when made by a person other than the plaintiff, should state that the affiant made it for the plaintiff.

    An affidavit that the defendant “ has been removing part of his goods and effects out of this State, and is about to remove the remainder of his goods and effects out of this State,” is sufficient under the Statute of attachment.
    A plea in abatement that “ it is not stated in the attachment bond filed in the suit, , that the Peet, Simms & Co., therein named, are Eleazer Peet, Philip Simms and John Lorathe, the plaintiffs named in the declaration,” held frivolous.

      So also, a plea that “ it does not appeal that the bond filed in the suit was ever duly approved by the clerk before the issuance of the writ of attachment” — the endorsement of approval upon the bond being merely one of the means of proving the fact, and though a duty on the part of the clerk, not essential to the legal rights of the defendant.
    So also, a plea averring “ that the bond for costs filed in the suit describes it as an action of debt;” but that it is an action of debt by attachment.

    The bond for costs required to be filed by a non-resident, before the institution of his suit, was made payable to the defendant by the given name of Hermant instead of Herman, his truéname; held that the variance was not sufficient to abate the suit— the defendant having a legal remedy upon the bond by proper averments and proof. (5 Arle 236; 14 ib. 627; 1 Eng. 70.)
    Where the affidavit in an attachment suit describes the plaintiffs as Peet, Simms Sf Co., and the writ describes them as Eleazer Peet, Philip Simms and John Lorathe, partners, etc. under the name of Peet, Simms 8¡ Co., there is no such variance as will abate the writ.
    A plea in abatement must exclude every conclusion against the pleader: and so a plea that the person who signed an attachment bond for the plaintiffs, had no competent authority from them to make it, is defective, unless it also avers that the act was not subsequently adopted and ratified by the plaintiffs. (Taylor vs. Ricards S¡ Hoffnan, 4 Eng. 378.)
    It is not necessary that the plaintiffs in an attachment suit should execute the bond required by the Statute: if a bond, good in form, for a sufficient amount, and payable to the defendant, be filed and approved by the clerk, though executed by others than the plaintiff, it is sufficient.
    The power of amendment is within the discretion of the Court. (4 Eng. 211; 16 Ark. 121.) And so, where the clerk approves and files an attachment bond, but fails to endorse upon the bond his approval before the issuance of the writ, the Court may direct him to make such endorsement: And so also, where there is an error in the bond for costs required to be filed by a non-resident before bringing his suit, in the name of the obligee, the Court may permit the obligor to amend the bond by inserting the true name of the defendant.
    It is error in the Circuit Court to proceed to render final judgment until all the issues raised or tendered in the cause are disposed of. (4 Ark. 527; 5 ib. 197; 14 ib. 621; 4 Eng. 67.)

      Writ of error to the Circuit Court of Jefferson county.

    The Hon. Theodoeic F. Soeeels, Circuit Judge.
    Bell & Caelton and Johnson, for the plaintiff.
    Cummins and Geace, for the defendants.
   Mr. Justice Hanly,

delivered the opinion of the Court.

This was debt by attachment, brought by Peet, Simms & Co., against the plaintiff in error, in the Jefferson Circuit Court, on a promissory note. The declaration is in the usual form, and is not involved in the enquiry invited by the assignment of errors. The errors assigned relate to the affidavit on which the attachment issued, the bond for cost filed in the Court below,in consequence of the defendants in error being non-residents of this State at the time of the commencement of the suit, the attachment bond and the writ itself. At the return term of the writ, Mandel, the defendant below, appeared by counsel and interposed ten several pleas in abatement to the writ, in substance as follows:

1. That, at the commencement of the suit, the defendant was neither absent nor absconding from the State, butwas a resident of the county oí Jefferson in this State.

2. That it is not stated in the affidavit filed in the suit that the person who made it “ made the same/ór the plaintiffs.”

3. That it is stated in the affidavit on which the attachment issued “ that the defendant Mandel has been removing part of his goods and effects out of this State, and is about to remove the remainder of his goods and effects out of this State,” and avers that that is not a sufficient gi-ound in law for said attachment to issue.

4- That, “ it is nowhere stated in the attachment bond” filed in said suit that the Peet, Simms & Co., therein named, are Eleazer Peet, Philip Simms and John Lorathe, the plaintiffs named in the declaration.

5. That, “ it does not appear that the attachment bond filed in said suit was ever duly approved of by the clerk of the Circuit Court of Jefferson county before the issuance of the writ of attachment in this behalf as required by law.”

6. That, “ the bond for cost filed in said suit describes said plaintiffs’ suit as an action of debt, and said defendant avers that said suit is an action of debt by attachment.”

7. That “ the bond for costs filed in said suit is conditioned to pay .all costs in a certain suit of said plaintiffs against Rermant M. Mandel, instead of Herman M. Mandel, the true name of said defendant.”

8. That “ it is nowhere stated in the affidavit filed in said suit that said defendant is justly indebted to Eleazer Peet, Philip Simms and John Lorathe, merchants and partners in trade, doing business under the firm, name and style of Peet, Simms & Co., in the plaintiff’s declaration mentioned, in any sum whatever.”

9. That there is “ a variance between the said affidavit and writ, in this: the affidavit describes the plaintiffs as Peet, Simms & Co., whereas, said plaintiffs are described in said suit as Eleazer Peet, Philip Simms and John Lorathe, merchants and partners, etc., under the name and style of Peet, Simms & Co.”

10. That the person who signed the attachment bond for the plaintiffs had no competent authority from them to make such an instrument in their behalf at the time it was executed.

These several pleas were properly verified by the affidavit of the defendant below, Mandel, and were filed on the 12th November, 1855.

On the 13th of the same month, (Nov’r, ’55,) the plaintiffs, Peet, Simms & Co., moved the Court in writing for a rule against the clerk to enter “ his approval of the attachment bond filed in the cause nunc pro tunc,” and also, for leave to the “ obligor in the cost bond to amend the same by striking the letter t from the name of Herman/ in the said cost bond.” This motion was considered and sustained by the Court, and the desired amendments made accordingly: To which ruling, the defendant Mandel, excepted, and filed his bill embodying these facts.

On the same day that the proceedings lastly stated above were had, the plaintiffs below filed their demurrer to each of the ten pleas in abatement except the eighth one, to which they filed a replication, specially traversing the said plea, and concluding with a verification.

The demurrer to the nine pleas set out special'causes for each.

This demurrer was considered and sustained by the Court as to all tbe pleas to which, it applied. The defendant, Mandel, declined to answer over upon the demurrer to his pleas being sustained, and the Court, on the plaintiff’s filing their cause of action, proceeded to render judgment in their favor for the amount thereof with interest and costs, without disposing of the replication to the 8th plea of the defendant, or the issue thereon, if there was one, of which the transcript is silent. The defendant Mandel brought error, upon which the cause is now pending in this Court. His assignment questions the ruling of the Court below as follows:

1. In sustaining the plaintiff’s demurrer to his nine pleas as above.

2. In permitting the clerk to endorse his approval upon the attachment bond.

3. And in permitting the defendants to amend their bond for cost by striking out the letter t from the word Uermant.

The demurrer of the plaintiffs below to the several pleas of the defendant, being in effect an admission of the truth of the facts therein stated, will render it unnecessary for us to state or set out the different documents to which some of them refer. We will assume, therefore, in our present enquiry, what the law intends in respect to them under the demurrer, that each plea is true in point of fact. With this explanation, we will at once proceed to consider the several errors assigned by Mandel in the order in which they are presented.

I. The first assignment questions the propriety of the ruling of the Court below upon the demurrer of the plaintiffs Peet, Simms & Co., to the nine pleas in abatement, interposed by the defendant Mandel. We will, therefore, for the sake of perspicuity, dispose of this assignment by considering the demurrer as applied to each plea separately in their order on the record, and as we have stated them above.

First. The matter of this plea may be considered in two as pects. It may be regarded as an attempt on the part of the pleader to draw in question the truth of the affidavit on which the attachment was issued: which, of course, is not allowable, either under our statutory enactments on the subject, or the practice of the Courts founded thereon: (See Taylor vs. Ricards & Hoffman, 4 Eng. R. 378;) or it may be viewed as asserting the principle that the attachment law of this State only authorizes attachments to issue in case the debtor is absent or absconding. We will consider the plea in this view. Very elaborate and extended arguments have been submitted on the part of the plaintiff in error, in support of this latter position, which we have considered with much deliberation and great care, on account of the confidence manifested by counsel that their position in this respect would be found sustained by both the reason and letter of the law. The first section of the attachment law is in these words: “ In all cases of absent or absconding debtors, who may have property, real or personal, in this State, the creditor may proceed against the same in the following manner, to wit: The second section directs that the creditor shall file in the office of the clerk of the Circuit Court of the county wherein the property may be, his declaration, etc, The third section being immediately involved in the question directly at issue, we will copy. It is as follows: “ The creditor shall, at the time of filing the declaration of his claim, also file an affidavit of himself, or some other person for him, stating that the defendant in the declaration or statement mentioned is justly indebted to such plaintiff in a sum exceeding one hundred dollars, the amount of which demand shall be stated in such affidavit, and also that the defendant is not a resident of this State, or that he is about to remove out of this State, or that he is about to remove his goods and effects out of this State, or that he so secretes himself that the ordinary process of law cannot be served on him.” See Digest sec. 1, 2, and 3, p. 172.

There has been no positive adjudication consistent with the position contended for by the plaintiff in error, as far as we have been able to discover after a strict and careful examination of all the volumes of our Reports: but there are a multitude of cases in which this Court has impliedly held that there are other grounds authorizing the issuance of attachments beside the two specified in the first section, which we have copied above, and that those other grounds are defined and designated in the third section, which we have also copied, and we think the question thus settled is entirely consistent with the general tenor and scope of the entire chapter, and accords with the uniform practice which has grown up throughout the State upon the subject. We would not feel ourselves authorized to disturb the practice of the Courts, for a longtime acquiesced in, without we could be convinced that the practice itself violated some positive Statute, or was antagonistic to a known principle of the law. We will, however, examine the subject a little farther, with the view of expressing ourselves with more distinctness, and with the hope that the grounds of our decision in this cause may not be misunderstood or misinterpreted.

It is true that the proceeding authorized under our attachment law is in derogation of the course of proceedings warranted by the common law, and should therefore receive a strict construction, and the statutory requirements be rigidly pursued. Yet, in the language of Walker, J., in Taylor vs. Ricards & Hoffman, 4 Eng. R. 384: “ there is a common sense view of this and all other acts, whether in derogation of the common law remedies or not, that should not be lost sight of, for it is not unfrequently the case that Courts, by adopting this familiar and well recognized rule, feel that their sphere of action is so circumscribed as to force them into refined and unmeaning technicalities, such as defeat every valuable purpose of our most important and useful statutes.” It is admitted that there seems, upon the first impression, to be a discrepancy between the provisions of the first and third sections stated above, in this, that the language of the first section would only seem to warrant the issuance of an attachment in case the debtor was either absent, having absconded, or was in the act of absconding from the State; whilst the third section provides with equal distinctness for other grounds in addition to those named in the first section, authorizing the issuance of an attachment; that is to say: 1. That the debtor is- not a resident of this State; 2. That he is about to remove out of this State; 3. That he is about to remove his goods out of this State; and 4. That he so secretes himself that the ordinary process of the law cannot be served on Mm. We have said the four grounds specified in the third section are cumulative of those named in the first, and the letter of the statute will bear us out in this view. Take, for example, the first ground in the third section — that the debtor is not a resident of this State — that is not provided for in the first section, for the reason that a person residing out of the State may yet be present in it, or in other words not absent from it, and at the same time not be absconding (or hiding) during his sojourn in the State. And so in reference to the second ground in the third section: One may be about to remove out of the State, which, ex vi termini, pre-supposes his presence in the State, and consequently not absent from it, and at the same time, not be in the act of absconding, for the reason that one about to remove may arrange and prepare to do so publicly and not in a clandestine manner, as is meant by the word abscond. The third ground in the third section is as manifestly cumulative as the two preceding; for, we hold that one “ about to remove his goods and effects out of this State'' may yet be present in, or not absent, or absconding from the State. And so, finally, in reference to the fourth and last ground in the third section; for one may not be absent or absconding irom the State, and yet “ so secrete himself that the ordinary process of the law cannot be served on him,”

We do not desire to be understood that the word “ absent ” in the first section should be taken or understood in its literal sense, for we will not presume the legislature intended any such application. What we understand by the word “ absent ” in this section is, that the debtor should not only be absent, but that he must have absconded, or else be a non-resident. Mere absence from the State temporarily, on business or pleasure, certainly would not fall within the mischief of the act, and consequently could not be intended as having been meant by the legislature. We have examined the several adjudications to wMch we have been referred by the counsel for the plaintiff in error, and do not believe they militate against the views herein expressed. We are therefore, forced to the conclusion that the demurrer to the first plea was properly sustained by the Court below.

Second. The matter of this plea we esteem as altogether frivolous. It is a matter of formal consequence whether the affidavit does or does not show whether the person who made it, made it for the plaintiffs. Whether it is or is not so stated, it will be so intended, for it is not presumed that one in no wise interested in the suit would make such an affidavit without it was done by him as the agent of the party in interest, or done for him, for accommodation. A literal compliance with the requirements of the statute is not expected or demanded. All that is expected in such case is a substantial compliance with the requirements of the statute. See Cheadle vs. Riddle, 1 Eng. R. 483. We hold, therefore, that the judgment of the Court below on the demurrer to this plea, was proper.

Third. The demurrer to this plea was also properly sustained, for the reasons we have already expressed in considering and treating of the demurrer to the first plea, and for the additional reason that we conceive the affidavit substantially states that the defendant was about to remove all his goods and effects from the State — being a ground provided for the issuance of an attachment under the third section, as before ruled. The stating that the defendant “had removed part and was proceeding, or “was about to remove the remainder of his goods and effects from this State ” we conceive is tantamount to saying that he was about to remove his goods and effects, etc. The word remainder used in the affidavit, is as comprehensive as all his goods, etc., or his goods, etc.

Fourth. This plea we also consider frivolous in matter, for the reason that it will be intended that the persons named in the attachment bond are identical with those named in the declaration and affidavit. The principle settled in Whitlock et al. vs. Kirkwood, 16 Ark. R. 490, and Ellis vs. Cossitt et al., 14 Ark. R. 222, is decisive of this case.

Fifth. The matter of this plea is considered thoroughly frivolous, for the reason that the law does not require that it should appear on the bond itself, that it was approved by the clerk before he proceeded to issue the ■writ of attachment. All that the law requires is, that it should be approved by the clerk. His endorsement of his approval is a means of evidence of that fact. But we apprehend this evidence may be furnished by other means. If the plea had denied the fact of its approval, this would have been a material fact, and the plea would have been good if properly framed. Notwithstanding we hold the attachment bond good in this instance, we must, nevertheless, be permitted to deprecate the practice on the part of clerks of omitting to endorse their approval on bonds in such case, and take the liberty of respectfully recommending to them in all such cases to make such endorsements with the view of perpetuating the evidence of the fact. In view of the foregoing considerations we hold that the Court below properly sustained the demurrer of the plaintiffs to the fifth plea of the defendant.

Sixth. The demurrer to this plea was unquestionably correctly sustained by the Court below. The objection taken to the bond for costs is a refinement upon technicality in advance of anything of the kind we have ever observed, and utterly at war with the liberal practice which is inculcated by the letter and spirit of our law, which seems to regard the substance rather than the shadow, the attainment of justice .rather than its defeat or procrastination.

Seventh. It is true, the statute requires the bond for costs to be given by the plaintiff and payable to the defendant, but the slight variance in the Christian name of the defendant, suggested by this plea, would certainly not be sufficient to abate the suit. The bond being filed with, and found among, the papers of the suit, would be intended to apply and belong to it. In case it should become necessary to sue on that bond, the defendant, by proper averments in his declaration, and proof consistent with those averments, would experience no difficulty in the Courts in obtaining judgment on the instrument. See Bower et al. vs. State Bank, 5 Ark. R. 236. Nicholay et al. vs. Kay, 1 Eng. R. 70. Allis vs. Bender, 14 Ark. R. 627.

We hold, therefore, that the Court below did not err in sus-taming the plaintiff’s demurrer to the defendant’s seventh plea.

Ninth. The question involved in the demurrer to the ninth plea has already been determined in this cause, whilst we were considering the demurrer to the fourth plea. See also Cheadle vs. Riddle, 1 Eng. R. 483, before cited. As we held in respect to the demurrer to the fourth, so we hold in respect to this— that there is no error in the judgment of the Court below, sustaining it.

Tenth. This plea is obnoxious to the demurrer on two accounts. 1. Because it might be true that Beaman, who made the attachment bond in the name of the plaintiffs, had no competent authority to do the act at the time, yet the act of Beaman may have been subsequently ratified by the plaintiffs; which would make the deed as effectually theirs in law, as though they had given authority to the agent in the first instance. The rule in such case is, that a plea in abatement must exclude every conclusion against the pleader; therefore, a plea that plaintiff’s name was signed to the attachment bond by one without authority, must negative the ratification of the act by the plaintiffs, before the writ issued. See Taylor vs. Ricards & Hoffman, 4 Eng. R. 378. 2d. Because the fifth section of our attachment law does not require the bond filed to be the bond of the plaintiffs. If it is properly conditioned, for a sufficient amount, payable to the defendant, and approved by the clerk, the law is complied with. If it was true, as the pleader seems to indicate by his plea, that Beaman had no authority to make the bond in the names of the plaintiffs, and if it were true, and the fact had been averred in addition, that the act of Beaman unauthorized in the first instance had not been ratified by the plaintiffs, yet the bond would not be rendered invalid. It would be the bond at least of Beaman and the securities, if no one else, and the law thereby complied with. See McMechan vs. Hoyt, 16 Ark. R. 306. For these reasons we hold the demurrer to this plea properly sustained.

Having thus disposed of all the questions raised by the first assignment, we will at once proceed to consider the other assignments.

II. This assignment questions the propriety of the ruling of the Court below in requiring the clerk to endorse his approval upon the attachment bond, after the interposition of the plea in abatement, averring a want of such endorsement. We have already, whilst considering the first assignment, virtually disposed of this; holding, as we have, that the endorsement of the approval of the attachment bond by the clerk was not essential; that the endorsement was only evidence of the approval, or one of the means of evidencing that fact. The order of the Court requiring the amendment, and the absolute amendment by the clerk in the manner suggested did not and could not possibly have affected the defendant below. But, outside of this view, we are of the opinion that the Circuit Court had the unquestionable power to authorize the amendment, and that that power was exercised under circumstances warranted and authorized in law, for the furtherance and attainment of justice. See Hughes vs. Stinnett’s adr., 4 Eng. R. 211. The power to amend and allow amendments is a power inherent in the Courts. The power is unlimited with one or two exceptions. Applications to amend are addressed to the sound discretion of the Judge, except in the limited instances, and his action upon those applications is final, not being subject to review by an appellate Court. See Pennington et al. vs. Ware & Miller, 16 Ark. R. 121. We hold, therefore, there is no error in respect to this assignment.

III. We have already held that the amendment, which the obligor in the cost bond was permitted to make by striking out the letter t from the name of Ilermani, was an immaterial amendment, and did not affect the defendant or his rights in the least. The amendment was permitted, to prevent, as was evidently conceived, a technical objection defeating the ends of justice. We hold in respect to this, as we didin reference to the second assignment — that the Court below did not err in permitting the amendment.

We have thus consecutively disposed of the three assignments, and have found in them no errors which are material. But by reference to our statement of the case, it will be perceived that the Court below proceeded to, and did render final judgment for the plaintiffs without disposing of the eighth plea or the issue formed thereon, if there was one, but of which the transcript is silent. After disposing of the demurrer to the nine pleas in abatement, and after the defendant had declined to answer over as to them, the Court below should have proceeded to require the parties to make up an issue on the eighth plea, and then have determined or disposed of that issue, or else have proceeded to dispose of the pleading upon that plea without an issue, by rendering judgment against the party in default by nil dicit, according to the uniform rules of practice in such cases. It was certainly irregular for the Court to have proceeded with the case to final judgment until all the issues raised or tendered, were determined. See Hicks vs. Vann, 4 Ark. R. 527. Reed et al. vs. State Bank, 5 Ark. R. 197. Hammond vs. Freeman, 4 Eng. R. 67. Yell Govr. use Conant & Co. vs. Outlaw et al., 14 Ark. R. 621.

For this error, we shall have to reverse the judgment of the Court below, and remand the cause to the Jefferson Circuit Court to be proceeded in, etc.

Absent, Hon. C. C. Scott.


source: Caselaw Access Project

author: Mr. Chief Justice English

license: Public Domain

text:
    Martin et al. vs. Foreman.
    By the service of a writ of garnishment, the plaintiffs fix a lien upon any indebtedness of the garnishee to the defendant, and no subsequent arrangement or cancellation of the indebtedness between the garnishee and defendant could destroy the lien. (1 Eng. 391; 3 Arle. 509.)
    The vendor of real estate assures the vendee, at the time of the sale, that there are no judgments against him; but there were judgments at the time constituting an incumbrance on the land — there is not such a failure of consideration as would defeat the collection of notes given for the purchase money. (7 Eng. 699; 15 Ark. 465.)
    The Circuit Court has no jurisdiction where the amount is not over ¡$100. (1 Ark. 252, 275 ; 2 ib. 158, 449; 3 ib. 494; 4 Eng. 465.)

      Writ of error to Phillips Circuit Court.

    The Hon. George W. Beazley Circuit Judge.
    Watkins & Gallagher and Palmer for the plaintiffs.
    Cummins & Garland for the defendant.
   Mr. Chief Justice English

delivered the opinion of the Court.

Martin and Bell, surviving partners of the firm of Martin, Underhill & Co., brought assumpsit, by attachment, in the Phillips Circuit Court, against Swank & Miller; and John J. Foreman was summoned as a garnishee. The writ was served on him 19th February, 1855. At the May term following, he filed the following answer to interrogatories propounded to him by the plaintiffs.

“ To the first interrogatory respondent answers that a short time before I was served with process in this case, (between the' first and middle of February, 1855), I purchased from Swank & Miller some town lots in Marianna, for which I executed my note for $100, due January 1st, 1856. I also purchased from Swank some other town lots in Marianna, for which I executed my two notes, one for $150, due January 1st, 1856, and the other for $300, due January 1st, 1857. At the time of buying I asked if there were no judgments against them, (Swank & Miller,) and Swank assured me most positively that there were none: I then purchased upon his so representing the matter to me. Afterwards Swank came to me and said he was mistaken in his representations to me as to there being no judgment against Swank & Miller. That there were judgments against them at the time he sold to me, of which he was not aware; that he would not hold the trade binding upon me, and that he had directed my notes to be delivered up to me. Which I af-terwards received.

To the second interrogatory respondent answers that the trade above referred to was made before the said garnishment, and the notes were delivered up after the garnishment. I further state that I executed another note of about $40 (the exact amount not recollected, being in the hands of J. C. Tappan,) to Swank & Miller. That I had no other moneys, goods, chattels, credits or effects in my hands or possession belonging to said Swank & Miller, or to either, of them at the time of the service of said writ of garnishment; and having fully answered I pray hence to be discharged with costs,” etc.

After judgment against the defendants in attachment, the garnishment branch of the cause was submitted to the court sitting as a jury, upon the interrogatories filed by the plaintiffs, and the answer of Foreman, the garnishee, thereto, and the court found that Foreman was indebted to Swank & Miller, the defendants in the attachment, in the sum of $40, and rendered judgment in favor of the plaintiffs for that sum against Foreman.

The plaintiffs excepted, and brought error.

The plaintiffs having filed no denial of the answer, it must be taken as true. Dig. chap. 17, sec. 33, p. 179. Did the answer show that the garnishee was indebted and liable, etc.?

By the service of the writ of garnishment, the plaintiffs in the attachment fixed a lien upon the indebtedness of the garnishee to the defendants, and no subsequent arrangement or cancellation of indebtedness between the garnishee and defendants could destroy the lien or affect the rights of the plaintiffs. Watkins vs. Field, 1 Eng. R. 391. Desha vs. Baker, 3 Ark. 509.

The notes having been executed for real estate, even if the garnishee purchased upon covenant for title, and there were at the time judgments against the vendors, (the defendants in the attachment,) constituting an incumbrance upon the lots, this would be no such total want of title as would defeat the collection of the notes for the purchase money, at law, on the grounds of failure of consideration. Wheat use. etc., vs. Dotson, 7 Eng. 699. McDaniel vs. Grace et al., 15 Ark. 465. Key et al. vs. Henson adr. 17 ib. Nor are the statements in the answer sufficient to make out a case of fraud, as insisted by the counsel for defendant in error. No fraud is alleged, etc.

The judgment, in favor of the plaintiffs for $40, must have been on the note for that sum, which the garnishee admitted he had executed to the defendants. This was an error in favor of the plaintiffs. The Court had no jurisdiction of this note; nor of the note for $100. These notes belonged to the jurisdiction of a justice of the peace. The other two notes referred to in the answer being each for more than $100, were cognizable by the Circuit Court. More v. Woodruff, 5 Ark. 215. Fisher vs. Hall & Childress, 1 Ark. 275. Heilman vs. Martin, 2 Ib. 158. Dillard vs. Noel, Ib. 449. Wilson vs. Mason, 3 Ib. 494. Berry vs. Linton, 1 Ark. 252. Collins vs. Woodruff, 4 Eng. 465.

The judgment of the court below is reversed, and the cause remanded for further proceedings.

Absent, Hon. C. C. Scott.


author: Mr. Justice Hanly,

text:
    Harvey vs. Dewoody et. al.
    The usual remedy for a public nuisance is by indictment; for a private nuisance by action on the case; though a court of chancerywill exercise jurisdiction as to both; but it seems that any person may abate a public or private nuisance.
    The mayor, councilmen and constable of the town of Ues Arc, being sued individually in an action of trespass for pulling down the plaintiff’s house, justified under an ordinance of the corporation declaring the house a nuisance, in that it was unoccupied by the plaintiff or a tenant, but used by others in such manner as to endanger the town by- fire, and also in such manner as to make it offensive to the citizens of the town and endanger their lives; and providing that if the plaintiff did not, within a specified time after notice, abate the nuisance, the constable should proceed to do so: the justification held sufficient on demurrer.

      Error to the Circuit Court of Prairie■ county.

    The Hon. John J. Clendenin, Circuit Judge.
    Williams & Williams for the plaintiff.
    The points in this case are simple and few: the special causes of demurrer point out the objections to the plea, sufficiently — although the act of incorporation gives the town council power to prevent and remove nuisances. See Acts of 1854, page 68, sec. 7. Yet, the Council is bound by the constitution and laws of the land. See Constitution of Arkansas, art. 2, see. 6, 9 and 10. The powers and privileges of corporations and corporation courts, are limited and special, and no presumptions are indulged in favor of their exercise; and the party setting up such proceedings, must show every prerequisite to the exercise of the power, and that it has been properly exercised upon a proper subject.' 18 Ohio Rep. 523; 4 Missouri 242; Sharp vs. Spier, 4 Hill 76; Sharp vs. Johnson, 4 Hill 92; 19 Johnson 33; Peacock vs. Bell, 1 Saunders 73; 8 Cowen311; 5 Cranch 173.
    A nuisance is defined by Blackston, to be anything that work-eth hurt, damage, or inconvenience. 3 Black. Com. 211.

      The plea should have set up the facts that made the house a nuisance; and this they have attempted to do, but the facts set up do not show it to be such. These facts are necessary to be shown, because the powers of the council are limited, and there is no presumption in their favor, as the authorities show — and he who would justify under them, must show that they acted within the scope of their authority. A Town Council has no right to pull down a house because they may have a visionary idea thatitmay take fire; if so, no man’s property is safe, particularly when it is condemned without notice. Neither was the fact that the house was used by the “ good citizens of said town,” as a privy, any reason why they, by their Town Council, should destroy another man’s property. If anything was a nuisance, it was the dung in the house, and not the house itself; and the redoubtable Town Council should have set their constable to removing the dung, which was the real nuisance.
    A point upon which we rely also, in this case, is the fact, that the plaintiff’s property was condemned without notice. State Bank vs. Marsh, 5 Eng. 129; Iglehart vs. Moore, 16 Ark. 46; Jones vs. Mason, 7 Eng. 687. The notice in this case, which is set up in the plea, was not that the property would be declared a nuisance, but that it had been so declared: it did not require the owner to show cause against it; but merely to save the constable the trouble by doing himself what the constable after-wards did; that is to remove the house.
    The law of the land has been grossly violated, piivate rights trampled upon, and the injured party had no remedy but the one he has adopted. The question is, will such lawless proceedings justify the parties engaged in it? And here we submit the case.
    JoedaN for the appellants:
    In support of the plea referred to 3 Ch. PL 1,094 and notes; Baker vs. Boston, 12 Pick. 192, and authorities cited; Hart vs. Mayor, etc., of Albany, 9 Wend. 571; Van Warm vs. Mayor of Albany, 15 ib. 262; 14 Wend. 250; 4 N. Hamp. 527; and the act incorporating the town of Des Arc.
   Mr. Justice Hanly,

delivered the opinion of the Court.

The plaintiff in error impleaded the defendants, six in number, in trespass, in the Prairie Circuit Court. The declaration contains three counts, in substance as follows: 1st. “That the defendants, on the 1st March, 1855, and on divers other days and times, between that period and the commencement of the suit, (July 18th, 1855,) did instigate and procure one of their number, to wit: the defendant Robinson, to enter with force and arms, against the peace and dignity of the State of Arkansas, a certain lot, No. 8, in block No. 24, in the town of Des Arc, county of Prairie, and after so entering, then and there to pull down and entirely destroy, a certain house or tenement thereon situate, the lawful property of the said plaintiff, and by him then and there rightfully possessed, of great value, to wit: of the value of two hundred dollars, etc., etc.

2d. “ That the defendants, (except Robinson,) heretofore, to wit, on the 30th March, A. D. 1855, in the town of Des Arc, to wit, in the county of Prairie, composed the Town Council of the said town of Des Arc, and as such, did on that day pass an ordinance declaring a certain house and tenement situate on lot No. 8, block No. 24, of said town, according to the plan of one Israel M. Moore, and then owned by the plaintiff, a nuisance, and in and by said ordinance, so passed by them as such Council, commanded the said defendant Robinson, to remove the same in case the said plaintiff did not do so, which said ordinance was approved by the said Council, and the said defendant De Woody, who was then Mayor of said town” — averring in continuation, that plaintiff refused to remove the tenement on said lot, and that the defendant Robinson, on the first of March ■thereafter, proceeded to, and did pull down and destroy the same under and by the authority of said ordinance, and concluding in the usual form.

3d. This count is in the usual form of counts in trespass, averring the trespass set forth to have been committed by all defendants.

At the return term of the writ, all the defendants appeared, and filed their demurrer to all the counts in the declaration, assigning therein special causes pertaining to each count; but which we do not regard as necessary to be stated. The demurrer, as applicable to the whole declaration, was argued by counsel, and by the Court overruled. .

The demurrer to the declaration being overruled, the defendants again appeared and filed their two joint pleas, to wit: 1st, the general issue: and 2d, a special plea in bar, in substance as follows: “ That at, before and after the committing of the said supposed trespass, the said De Woody was mayor of the said town of Des Arc, and that the other defendants (except Robinson) composed#the Town Council of said town, and that the defendant Robinson was the town constable of the said town, duly elected and qualified according to law, and that they, the said mayor and council had in them, as such, vested by law, full power and authority to remove any nuisance from within the corporate limits of the said town of Des Arc, and the said defendants aver that the said house was situated within the corporate limits of said town, and was a nuisance in this, that said house was unoccupied by said plaintiff, or any one else, at and for a considerable time before the committing of the said supposed trespass, except by transient persons, through whose negligence said house was in great danger of taking fire, and thereby, from its proximity to other property (houses) situate in said town, causing great loss to said town, and the good citizens thereof; and further that said house was frequented and used as a privy— offensive to the inhabitants and calculated to endanger the health of the citizens of said town; and that the said town council composed of the defendants, as aforesaid, in their corporate capacity as aforesaid,to wit, on the 20th day of March, A. D. 1855, passed an ordinance whereby the said house was declared to be a nuisance, and ordering the said defendant Robinson, as constable as aforesaid, of the town aforesaid, to give to the said plaintiff, or his agent, notice of the passage of the said ordinance and its provisions, as touching the said house, and require him the said plaintiff, to remove or cause to be removed, the said house, within thirty days from and after the service of said notice, and if after the lapse of thirty days from the giving of said notice, the said house should not be removed, then, that he, the said defendant Robinson, as town constable as aforesaid, was ordered and required to cause the said house to be removed — that the said Robinson, as constable, in accordance with the provisions of said ordinance, gave to the said plaintiff notice as aforesaid, and after the lapse of thirty days, the said house still remaining, and the said plaintiff having wholly failed to remove the same, he the said defendant Robinson, as constable as aforesaid, caused the said house to be removed, as might legally be done for the causes aforesaid, which is the said supposed tresspass whereof the said plaintiff hath thereof complained against them,,and this they’ are ready to verify,” etc.

To the first plea, the general issue, the plaintiff joined issue, and to the second one he demurred, assigning sundry causes, which we will not state. The demurrer to the second plea was argued by counsel, and by the Court overruled. The plaintiff declining to answer over to the plea, and electing to rest upon his demurrer thereto, judgment final was rendered by the Court, in favor of the defendants, for the costs of the suit. Plaintiff brought error, and assigns for ground the ruling of the Couft below upon his demurrer to the defendants’ second plea as above.

In determining the questions involved in the assignment, we will regard the plea demurred to, as, in form, good. Our purpose will be, in the present enquiry, to address ourselves to the substance of the plea, rather than its form or artistic structure, with the view of determining whether its substance or matter is sufficient to bar the plaintiff from a recovery on his declaration, supposing that, too, to be sufficiently formal in its several counts, but of which, it is not our purpose to stop to enquire.

The defence, set up in the plea,'is a justification of the trespass complained of in the declaration. The facts upon which the justification is based are, in substance, that the town of Des Arc was, by an act of the Assembly of this State, approved 28th December, 1854, incorporated: that, by said act, the corporate powers of said town were vested in one Mayor and four Councilmen, to be chosen in a certain manner — that five of the defendants were elected under tbe provisions of said charter, one as mayor, and the other four as councilmen — that at the same election, the remaining defendant Robinson was elected and chosen Constable of said town: all strictly in conformity with the provisions of the act of incorporation — that all qualified in their respective offices, and entered upon the discharge of the duties thereof — that, at a certain time named, it was ascertained that a certain tenement or house situate in said town, owned by the plaintiff, had become a common or public nuisance, by endangering the property and health of many of the good citizens of said town by its exposed condition, and liability to take fire, and because of the fact of its being used by the public as a privy, etc. — that it was thought by them in their official capacity, that the public health and security to property in said town required and demanded that said house or tenement should be declared a public nuisance, and be abated as such — that with this view they aver that on a certain day and time in said plea named and stated, they met in their corporate capacity, as by law they had a right to do, and passed an ordinance declaring said house or tenement of the plaintiff a public nuisance, and providing for its abatement by requiring the constable of said town, the defendant Robinson, to notify the plaintiff of the proceedings of the defendants as mayor and council of said town, touching said house or tenement, and inform him that should he not within thirty days next thereafter abate said nuisance by removing the causes thereof, that-they in their official capacity, as mayor, council and constable, would abate the same by tearing down such house or tenement — that said defendant Robinson, as such constable, gave the required notice under said ordinance to said plaintiff — that more than thirty days elapsed after such notice was so given, and the causes of said nuisance being still unremoved or abated by said plaintiff, under the provisions of said ordinance the said defendant Robinson as constable proceeded to and did pull down and destroy said house or tenement, as the only means of abating said nuisance, and the plea avers that this is the same trespass of which the plaintiff complains in his declaration.

Under this state of facts, which are admitted on the record by the demurrer to the plea, it may not be unprofitable, by way of illustrating our views, to announce a few principles of law, which we regard as involved in this cause.

A nuisance, in its common acceptation, means, literally, annoyance. In law, its signification is more restricted. According to Blackstone, it means or signifies “ any thing that worketh hurt, inconvenience or damage.” See 3 Blacks. Com. 216.

Nuisances are of two kinds: — common or public, and private. See Bac. Abr. 146.

The first class is defined to be such an inconvenience or troublesome offence as annoys the whole community, in general, and not merely some particular person. See 1 Hawk. P. C. 197; 4 Blacks. Com. 166-7: It is said to be difficult to define what degree of annoyance is necessary to constitute a nuisance. In relation to trades, it seems that when a trade renders the enjoyment of life or property uncomfortable, it becomes a nuisance for the reason, that the neighborhood have a right to have pure and fresh air. See 1 Burr. 333. 2 Car. & P. 485. 2 Lord Raym. 1163. 1 Str. 686.

The second class, or private nuisances, is anything done to the hurt or annoyance of the lands, tenements or hereditaments of another. See 3 Blacks. Com. 215. 5 Bac. Abr. 146.

For a common or public nuisance, the usual remedy at law is by indictment. For a private nuisance the ordinary remedy at law, is case. See 3 Blacks. Com. C. 13; 10 Mass. R. 72; 7 Pick. 76; 3 Harr. &. McH. 441.

Courts of chancery exercise jurisdiction both as to common or public, and private nuisances, by restraining persons from setting them up, by inhibiting their continuance, or compelling their abatement. See 2 Story’s Eq. sec. 924, p 260.

As we have said, both Courts of law and Courts of equity af- ■ ford ample redress, and sufficiently prompt remedies in case of nuisances. But it seems the law is not satisfied with these, as affording full protection to the public or citizen, in many cases, for it is generally conceded that any person may abate a public nuisance. See 2 Salk. 458. 5 Bac. Abr. 152. 3 Ib. 498. And it seems that this right extends as well to private as to common or public nuisances. See 5 Bac. Abr. ubi sup. 2 Bouv. Law. Dic. § 3-2, p. 18. 2 Barn. & Cress. 311. 3 Dowl. & R. 556.

A public nuisance may be abated without notice (2 Salk. 458:) and so may a private nuisance, which arises by an act of commission. And where the security of lives or property may require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it, an individual would be justified in abating a nuisance from omission without notice. 2 Barn. & Cress. 311. 3 Dowl. & R. 556, as above.

As to private nuisances, it has been held, that if a man in his own soil erect a thing which is a nuisance to another, the party injured may enter the soil of the other and abate the nuisance, and justify the trespass. See 9 Mass. R. 316. 4 Conn. 418. 5 Ib. 210. 4 N. H. R. 527.

In the case we are considering,by reference to the act incorporating the town of Des Arc recited in the plea in this behalf, it will be discovered in the seventh section thereof, that, among other powers conferred upon the mayor and councilmen of said town, the power “ to prevent and remove nuisances,” is embraced and included. This provision or grant, with the residue of the section clothes the mayor and councilmen of the town of Des Arc with unquestionable legislative powers and prerogatives to a certain extent, and among them, they are fully empowered to adopt measures of police, for the ^purpose of preserving the health and promoting the comfort, convenience and general welfare of the inhabitants within the town. And among these powers thus conferred, there is no one more important than that for the preservation of the public heulth and property. It is not only the right, but the imperative duty of the town government to watch over the health of the citizens, and to remove every nuisance, so far as they may be able, which may endanger it. And they have necessarily the power of deciding in what manner this shall be done: and their decision is conclusive, unless they transcend the powers conferred by the town charter, or violate the constitution.

It is clear, we think, from the plea, that the mayor and councilmen had the right to have the nuisance complained of, removed or abated in some one of the modes provided by law, even though in doing so it should be found necessary to destroy the house or tenement, as was the case in the instance at hand. The measure was regarded and esteemed by the corporate authorities as rather of a mixed character, partly sanitary, and partly economical — to preserve other adjacent property in the town; and as such, we hold that every citizen enjoys his property subject to such regulations. Police regulations to direct the use of private property so as to prevent its proving pernicious to the citizens at large, are not void, although they may, in some measure, interfere with private rights without providing for compensation. Wilde J., in Baker vs. Boston, 12 Pick. R. 194, a case similar to the one we are considering, said: “ This principle was settled in Vanderbilt vs. Adams, 7 Cow. 349, and in Stuyvesant vs. The Mayor etc. of N. Y., 7 Cow. 588.” In the latter case, the same judge remarked: “ the counsel for the failing party admitted that the principle was too clear to be questioned” — adding, “ that the contrary doctrine would strike at the root of all police regulations.” The order of the mayor and aldermen (in the case before him) stands on the same footing as quarantine and fire regulations, and if by such regulations an individual receives some damage, it is considered as damnum absque injuria. The law presumes he is compensated by sharing in the advantages arising from such beneficial regulations.” Citing Dove vs. Gray, 2 T. R. 358. Gov'r, etc., vs. Meredith, 4 T. R. 794.

In Hart vs. Mayor, etc., of Albany, 9 Wend. 571, Sutherland J. delivered an opinion in which the whole doctrine we are considering was reviewed, and in which it was held that “ a corporation whose duty it is to prevent obstructions in a river will be considered a party aggrieved, and may by its own act, without indictment, abate or remove a nuisance.” See also Witman vs. Tracy, 14 Wend. 254, et seqr., to the same point.

From the foregoing authorities, we may safely state the law to be, that the party aggrieved by a nuisance, whether the public or an individual, may either resort to the appropriate remedy in one of the forums hereinbefore designated, or else may avail himself or itself of the right to abate the nuisance.

In the case before us, the house or tenement of the plaintiff was an unquestionable- common or public nuisance, under the definition we have given, and as such it was perfectly competent for the mayor and councilmen of the town of Des Arc to ordain and require its removal or abatement, and having done so, all that they could be required to prove upon a trial at law for trespass, would be the existence of the nuisance, which is admitted by the demurrer we are considering.

We hold, therefore, without hesitation, that the matter set up in the plea demurred to by the plaintiff, was a sufficient bar ,to his action, and, consequently, that the ' demurrer thereto was properly overruled by the Court below. The judgment is, therefore, affirmed.

Absent, Mr. Justice Scott.


author: Mr. Justice Hanly

text:
    Fowler vs. Bender.
    The declaration alleged that the note sued on was made payableto “ D. Bender:” the note filed on oyer was made payable to “ D. Bender & Co.” (with lines across the “& Co.”): the defendant’s plea, not sworn to, alleged that the note was not made payable to “ D. Bender” as alleged in the declaration; but to D. Bender and one James A. Henry partners, ete., by the name of “D. Bender & Co.:” Held that the plea was, in legal effect, a special plea of non est factum; that under the Statute, the plea should have been verified by affidavit: that for want of an affidavit it was properly stricken from the files.

      Appeal f rom Pulaski Circuit Court.

    The Hon. John J. Clendenin, Circuit Judge.
    This cause was argued by Mr. Fowler, the appellant, and Mr. Bertrand for the appellee.
   Mr. Justice Hanly

delivered the opinion of the Court.

Appellee brought debt against the appellant, in the Pulaski Circuit Court, counting on a writing obligatory. The writing sued on is described as having been made by the appellant to the appellee, by his style and name of “ D. Bender.” Oyer was prayed, and granted by filing the writing declared on, which corresponds in every particular with its description in the declaration, except that immediately after the name of the payee “D. Bender,” the word & Co.” seem to have, at one time, existed, but which appear to have been canceled by means of lines drawn across them.

Appellant filed a plea in the words following, to wit: “ that he, the said defendant, did not, in manner and form, as in said declaration set forth, make the said writing obligatory then and there, and of that date, sealed with his seal, and thereby promise one day after date thereof to pay to the said plaintiff or order, as in said declaration alleged, the said sum of -dollars, etc., etc.; but that the said writing obligatory, in the said declaration mentioned, was by him the said defendant then and there made and delivered, and made payable to the said David Bender and one James A. Henry, who were then and there doing business together as merchants and partners, under the name, style and firm of “ D. Bender & Co.” and made payable to them by the said name, style and description of “ D. Bender & Co.,” and not to the said D. Bender alone, as is in said declaration alleged: nor did the said plaintiff then and there, nor has he, at any time since, had, nor has he now, the sole legal interest in and to the said writing obligatory: but the said James A. Henry, as such partner, was then and there, and has ever since been, and still is, a joint legal owner of the said writing obligatory with the said plaintiff, and this the said defendant is ready to verify, etc.” This plea was not “ supported by the affidavit of the party pleading” it, nor otherwise “ verified by the affidavit” of any other person. For this reason, the appellee moved to strike it from the files, in the cause, and the motion to strike out was sustained, and appellant excepted. No farther step was taken by the appellant in the Court below to defend the action. Judgment by nil elicit was rendered for the amount of the writing sued on, with damages and costs. From this judgment an appeal was taken, and the appellant here insists that the Court below erred in striking out his plea. This is the only question that we are called upon to determine.

With the view of solving the question presented for our consideration, we will proceed to determine the legal effect of the plea stricken out.

The appellant absolutely avers, in the first part of his plea, that he did not make the instrument set out in the declaration. His language is, “ that he, the said defendant, did not in manner and form as in said declaration set forth, make the said writing obligatory then and there of that date,” etc. etc. If the plea had concluded here, there could have been no doubt as to its legal effect. It would have been conceded, at once, to be a plea of general non est factum. But the pleader seems to have been unwilling that this general denial of the execution of the writing obligatory declared on, should go upon the records, and that too even without oath or affirmation of its verity and truth. He, therefore, in a subsequent part of the plea qualifies in language, and seemingly attempts to qualify the legal effect of that portion of his plea which we have quoted, hy saying “ that the said writing obligatory was by him then and there made and delivered, and made payable to the said David Bender, and one James A. Henry, who were then and there doing business together under the name and style of D. Bender & Co., and made payable to them by the said name of “ D. Bender & Co.” and not to the said David Bender alone,” etc., etc. Does this latter portion of the plea change or alter the legal effect of that which precedes it? We think most clearly not. The plea continues a virtual non est factum of the instrument. If the instrument was not made by the appellant payable to the appellee, but was, in truth, made by him payable to appellee and another person, the averment of this would be an averment of an affirmative fact, pregnant with a denial that he made the instrument shown him on oyer. The plea does not charge that the instrument, after it was made, as it avers, to “ D. Bender & Co.” and came to the hands of the appellee, was altered or changed in the slightest respect. If it had done this, and even charged the erasure of the words & Co.” to have been made by appellee, or some other person by his procurement, after the execution of ,the writing, so as to change the legal effect of the instrument, still, the character of the plea would have been the same: it would in legal effect be a plea of special non est factum. Viewing this plea in all its parts, and considering it, as we have done, in all its bearings, we are forced to regard it, in effect, as a special plea of non est factum, and as such, under our Statute, and the tenor of a series of adjudications on the subject, should have been verified by the affidavit of the party pleading. See Dig. ch. 126, sec. 103. Also, Alexander vs. Foster, 16 Ark. R. 660, and cases cited.

We will now proceed to inquire into the mode by which a party may avail himself of the defect of a want of affidavit to a plea of general or special non est factum. This subject has frequently been before this Court and it has uniformly been held that the proper mode of taking advantage of such a defect is by motion to strike the plea from the files. See Wilson & Turner vs. Shannon & wife. 1 Eng. R. 198; Hardwick et al. vs. Campbell & Co., 2 Eng. R. 118; Mayor & Ald. vs. State Bank, 3 Eng. R. 227; State Bank vs. Wood, Ib. 506; Williams vs. Williams, 13 Ark. R. 421; Allis vs. Bender, 14 Ark. R. 625; Alexander vs. Foster, ubi sup.

The plea in question being in legal effect and in fact a special non est factum, and the law requiring such pleas to be verified by the affidavit of the party pleading them, and the record showing, as it does in the case before us, that the plea under consideration was not so verified, we are irresistibly forced to the conclusion that the Court below did not err, on the motion of the appellee to strike from the files the plea in question.

The judgment of the Pulaski Circuit Court is therefore affirmed.-

Absent, lion. C. C. Scott.


text:
    Cornish vs. Sargent.
    The defendant has until the calling of a cause in its regular order on the docket to file pleas to the merits, and the Court cannot abridge the time by a rule of practice. (2 Eng. Rep. 117; 4 ib. 137; 5 ib. 443 ; 7 ib. 718.)

      Appeal from Union Circuit Court.

    The Hon. Abner A. Stith, Circuit Judge.
    Carleton, for the appellant.
    Lyon, for the appellee.
   Mr. Justice Hanly

delivered the opinion of the Court.

This was debt, brought by the defendant in error, against the plaintiff, in the Union Circuit Court, to the fall term, 1855.

It appears from the bill of exceptions taken in the Court below, that there was a rule of the Court requiring the pleading-in all causes pending therein to be made up by the fourth day of the term.

It further appears that on the morning of the fourth day of the return term of the writ in this cause, during rule hours, and whilst the Court was proceeding with the roll of attorney’s, and hearing and disposing of motions made by them, and before this cause was regularly reached upon the docket, the attorney for Sargent, the plaintiff below, moved the Court for judgment by default against the defendant Cornish, for want of a plea; upon which the counsel for Cornish proposed and offered to file then two pleas in bar, to wit, the general issue, and set off, and asked the Court to be permitted to file said pleas, which the Court refused to permit him to do, in consequence of the rule of practice above stated, and thereupon gave judgment by default against Cornish for the amount of the note declared on, with damages and costs. Cornish excepted, and brought error. He assigns for error:

1st. The refusal of the Court below to allow him to file his two pleas at the time proposed.

2d. And the rendering of judgment by default against him.

The question presented by the assignment in this case, has been so repeatedly adjudicated by this Court, that we shall content ourselves with disposing of the cause before us, by simply citing those adjudications. See Norris vs. Kellogg & Co., 2 Eng. R. 117. Hixon vs. Weaver as adr. use, 4 Eng. R. 137. North vs. Davis, same 138. State vs. Jennings use of Bettison, 5 Eng. R. 443. State Bank vs. Minnikin, 7 Eng. R. 718.

We hold, therefore, that the Court below erred in refusing to permit the plaintiff in error to file his two pleas in bar, under the circumstances shown in this case, as stated.

The judgment is reversed and the cause remanded with directions to the Court below to permit the plaintiff in error to file his two pleas in bar, at any time before the cause is reached in its order on the docket, and peremptorily called by the Court.

Absent, Hon. C. C. Scott.


text:
    Aaron vs. Anderson.
    (The same principle decided as in Cornish vs. Sargent, ante.)

      Appeal from Union Circuit Court.

    Hon. Abner A. Stith, Circuit Judge.
    Carleton, for appellant.
    Lee, for appellee!
   Mr. Justice Hanly

delivered the opinion of the Court.

The facts of this case are identical with those in Cornish vs. Sargent, just determined, except that the form of action in this was assumpsit, and the defendant below only offered to file one plea — the general issue.

We hold, in this case, as we did in Cornish vs. Sargent, that the defendant below should have been permitted to file his plea of the general issue notwithstanding the rule of practice of the Court requiring the pleadings to be made up in all causes by the fourth day of the return term; and having been denied this light, the judgment of the Union Circuit Court in this behalf is reversed, and the cause remanded with directions that the defendant below be allowed to file his plea on or before the calling of the cause in its order on the docket.

Absent, Hon. C. C. Scott.


author: Mr. Justice Hanly. Mr. Justice Scott: Hon. Geouge Conway, Special Judge.

text:
    The State vs. Allis.
    It is an established rule that, upon the argument of a demurrer, the Court will, notwithstanding the defect of the pleading demurred to, give judgment against the party whose pleading was first defective in substance.
    Where by a public law agents are appointed to enter into a contract on the part of the State, the law, under which they act, is as much a part of the contract, when made by the agents, as if it were transcribed in the contract.
    An authority, by act of the legislature, to an agent to enter into a contract, reduce it to writing and sign it on behalf of the State, must be construed to mean merely a power to enter into a simple contract, and not a specialty or sealed contract.
    To bind a corporation by specialty, it is necessary that its corporate seal should be affixed to the instrument — the private seal of an agent, fully authorized to enter into a contract on the part of the corporation, would not have that effect; and so an action of covenant will not lie against the State npon a contract entered into by her agents and sealed with their private seals.

      Appeal from the Circuit Court of Pulaski county.

    The Hon. William H. Feild, Circuit Judge.
    This cause was argued at considerable length, upon questions not involved in the decision, before Mr. Justice Scott, and Mr. Justice Hanly, and the Hon. George Conway, Special Judge — Mr. Chief Justice English, not sitting.
    Mr. J. J. Clendenin, Attorney General, and Cummins, for the appellant.
    An action of covenant in this case is an absurdity. The law authorized the Board to sign the contract, but not to seal it. There is a seal of State necessary to make a covenant, unless the law required some other seal to be affixed, which was not the case here. Story on Ag. secs. 154, 273, n. 3. 11 Sergt. & R. 120, 129, Hopkins vs. Mehajfey.

    It may be said that this is technical; and that the contract is as binding as if it were a covenant. In response to this we only refer to the decision in Morehead vs. Grisham, 13 Ark. R. 431.
    Fowler, and Watkins & Gallagher for the appellee.
   Mr. Justice Hanly.

This was an action of covenant, brought by the appellee, against the appellant, in the Pulaski Circuit Court, on the following instrument, to wit:

“ Articles of agreement and contract made and entered into by and between Horace B. Allis, of the eity of Little Rock, in the State of Arkansas, of the one part, and the State of Arkansas, of the other part, witnesseth: That, whereas, the said Horace B. Allis, under and by virtue of the provisions of an act of the General Assembly of the State of Arkansas, approved January 11th, A. D. 1851, entitled “ an act for building a safe and suitable wall around the Penitentiary, work shops, keeper’s house, and for the improvement of the Penitentiary system,” was the lowest bidder for the building, rebuilding and repairing of said Penitentiary, and for the safe keeping and furnishing the convicts for the term of ten years from the date hereof, under and in accordance with the provisions of the said act of the General Assembly of this State, approved January 11th A. D. 1851, above referred to: Now, the said Horace B. Allis, party of the first part hereto, covenants and agrees to and with the said State of Arkansas, party of the second part, that he will erect and build around the Penitentiary house of the State of Arkansas, a wall of solid masonry, composed of square durable rock, the part of the rock exposed to be so dressed as to present a smooth surface, equal in quality and workmanship (except the out-work) to the basement story of the United States Arsenal in the city of Little Rock, which rock shall be laid with durable cement of lime and sand, and shall enclose a space of three hundred feet one way, by three hundred and fifty feet the other way, the foundation of said wall to be sunk one average depth of three feet below the surface of the ground, and shall be twenty feet high from the top of the foundation, shall be five feet thick at the base, and gradually terminate in a thickness of two feet, with suitable and substantial iron gates to enter into such enclosure.

And the said Horace B. Allis, party of the first part, further consents and agrees to and with the said State of Arkansas, that he will erect within the said wall before specified, and of the same materials as said wall, three work shops, one of which shall be two hundred feet in length by forty feet in width, and twelve feet high in the story; the other two of said work shops shall be each one hundred feet long by forty feet in width, each to be twelve feet high in the story; with windows sufficient to fight said work shops, the windows in each to be strongly secured with round iron grates let into the stone sill and stone cap of each window, each window to have twenty-four lights of ten by twelve glass, and the center of each window to be not more than ten feet apart. And the said Horace B. Allis, party of the first part, further covenants and agrees to and with the said State of Arkansas, that he will erect of the same material as the said wall and work shops before specified, and agreed to be built, one two story house and building of sufficient dimensions to accommodate the keeper and all the subordinate officers employed about said Jail and Penitentiary house, the front of which said house and building shall constitute a part of the wall before referred to.

And the said party of the first part further covenants, that he will thoroughly repair the present Penitentiary house, with .good and sufficient roof extending over it, and the walls of said building shall be properly and substantially braced, either with iron rods, so as to make it perfectly secure and safe, the cells in said house to be properly ventilated and made comfortable and healthful, and one of the rooms in said building shall be properly fitted up for a kitchen and for a hospital, and one for .a chapel and schoolroom, and that he will provide suitable •stoves and fuel to keep the cells, in which prisoners may be •confined, warm in the winter.

And the said party of the first part further covenants and agrees to, and with the State of Arkansas, that he will cover all the houses hereinbefore specified to be built, with a good and substantial roof, to be composed of slate, and that all of said work hereinbefore stipulated to be done, shall be finished in a faithful and workmanlike manner, and of good and substantial materials, and that all of said work and buildings shall be finished and completed within ten years from the date of this contract. And the said party of the first part further covenants and agrees to and with the State of Arkansas, that he will well and safely keep and guard the cpnvicts now in, or which may hereafter be put into said penitentiary, with a good and sufficient .guard of sober and responsible men, and that he will feed the said convicts with good and wholesome food in sufficient quantities, and that he will clothe the said convicts in a substantial, comfortable and uniform manner, and will furnish said convicts .such medicine and medical attendance as they may from time to time, and at all times, require, free of all expense to the said ■State of Arkansas, and that he will in all things comply with the act of the General Assembly of the State of Arkansas, in relation to the said penitentiary and the convicts therein, and shall safely deliver to such person or persons as shall be duly authorized to receive the same in behalf of the State, all of the convicts of said penitentiary, and all of the property of the State of every nature and kind which shall remain in his custody or possession at the expiration of this contract.

And the said State of Arkansas, party of the second part hereto, covenants and agrees to and with the said Horace B. Allis, party of the first part, that, for and in consideration of the faithful performance of his agreements and covenants heretofore in this writing specified, she will pay to the said Horace B. Allis, his agents or assigns, the sum of fifty-eight thousand dollars, by quarterly warrants on the Treasurer of said State, in favor of the said Allis, his agents or assigns, but it is expressly stipulated and agreed that not more than six thousand dollars shall be paid to the said Allis, his agent or assigns, in any one year during the continuance of this contract, and until the said fifty-eight thousand dollars shall be paid to the said Allis, party of the first part.

And the said party of the second part further covenants and agrees to and with Horace B. Allis, that he shall have the benefit, management and control of all the prisoners and convicts under his charge in said penitentiary, and may employ them as he thinks best, subject to the laws of the State, and the govern* ment and discipline adopted for the management of the penitentiary, and that if the said party of the first part shall die during the existence of this contract, the said contract may be carried out and completed by the executors or administrators of the said Horace B. Allis, party of the first part.

It is further expressly stipulated between the parties hereto, that this contract shall extend and be in force for and during the period of ten years from the date hereof.

In witness whereof, the said Horace B. Allis for himself, and the said State of Arkansas, by her legally constituted agents, have hereunto set their hands and seals, this 5th day of April, A. D. 1851.

HORACE B. ALLIS, [seal.]

D. B. GREER, Sechj State, [seal.]

C. C. DANLEY, Auditor, [seal.]

J. H. CREASE, Treasurer, [seal.]

The declaration was in the usual form, and contained several specific assignments of breaches of the covenants sued on.

At the return term of the writ, the State appeared by her qualified and authorized attorney, and craved oyer of the instrument declared on, which was granted by filing a document of which the above is a copy. The State then interposed her four pleas in bar; to the first and third of which issues were taken, and to the second and fourth a demurrer was filed. De. murrer to these pleas was sustained. Appellant choosing to rest upon the pleas, declined to answer over upon the demurrer being sustained thereto. Trial by a jury upon the issues to the first and third pleas; verdict and judgment for the ap-pellee. Motion for a new trial made and overruled, and exceptions by appellant. The cause was brought to, and is now pending in this court by appeal.

Sundry errors are assigned and relied upon for reversing the judgment of the court below.

. Owing to the result of our opinion upon the whole case, it will be unnecessary for us to notice the exceptions taken during the trial relating to the testimony, those taken to the action of the court below in refusing to give certain instructions for, and giving certain others against appellant, and also that which pertains to the overruling the motion for a new trial.

1st. W'e think there can be no question but that when the court below was considering the appellee’s demurrer to the appellant’s second and fourth pleas, it should have been considered in relation to the declaration itself: for a party should not demur unless he be certain that his own previous pleading is substantially correct; as it is an established rule, that upon the argument of a demurrer, the Court will, notwithstanding the defect of the pleading demurred to, give judgment against the party whose pleading was first defective in substance; as, if the plea which is demurred to be bad, the defendant may avail himself of a substantial defect in the declaration, unless such defect has been aided by pleading over; and if the first fault would constitute error, the Court will decide upon it though it be not noticed; for on a demurrer the Court will consider the whole record, and give judgment for the party, who thereon appears to be entitled to it. See 1 Chittys Plead. 668; Smith vs. Joyce, 5 Eng. R. 463; Inglehart vs. The State, etc., 2 Gill & Johns. 236; Allen vs. Crofoot, 7 Cow. 46; Hord vs. Dickman, 2 Hen. & Mun. 652; Smith vs. Walker, 1 Wash. 135; Tillotson vs. Stiff, 1 Blackf. 77; Headington vs. Neff, 7 Ohio 229; Pearsall vs. Dwight, 2 Mass. 84; McGuire vs. Cook, 13 Ark. R. 520; Hynson vs. Burton, ib. 492; Byers et al. vs. Aiken, ib. 419.

The Court below, therefore, on considering the demurrer of the appellee, should have turned to the declaration and determined whether that was good in substance; not having done so, or having done so and erred in its judgment, as it is insisted, we are constrained, from the uniform rules of practice in error in such case, to revert to that portion of the record before us, and determine whether the declaration of the appellee is obnoxious to a demurrer for cause not cured by the subsequent proceedings in the cause. Is the declaration of the appellee good in substance, when viewed in connection with the instrument given on oyer, copied above, and the act of the General Assembly under which that instrument purports to have been made by the parties thereto? We will address ourself to this question, and in doing so, shall take occasion to copy so much of the act of the 11th January, 1851, as pertains to it, or will, in any wise, contribute to its solution. The sections material are as follows:

“ Sec. 5. That the Secretary of State, Auditor and Treasurer shall, ex-officio, constitute a board of inspection for the Penitentiary. *' * * * * It shall be the duty of said board to direct and manage the discipline of the Penitentiary as prescribed by law, and shall every two weeks examine into the condition of the convicts, and see that they are well provided with clothing and food,” etc. * * * * *

“ Sec. t>. That immediately after the passage of this act, it shall be the duty of the Board of Inspectors to procure proper drawings and specifications of the work to be done under the provisions of this act, and to proceed to let the same out to the lowest and most responsible and competent bidder, on the terms hereinafter specified,” etc. * * * * *

Seo. 7. That the Board of Inspectors in making such contract, shall,” etc. * * * * * * *

Sec. 11. That after such contract shall be taken, it shall be reduced to writing, with all the proper terms, stipulations and specifications, and shall be signed by the Board of Inspectors on behalf of the State, and by the contractor; and the contractor shall enter into bond, payable to the State, in the penal sum of twenty thousand dollars, with ample security, to be approved by the Board of Inspectors, conditioned for the faithful performance of said contract,” etc. * * * *

We presume there can be no doubt but that the act of the 11th January, 1851, from which we have made the above extract, was as much a part of the contract made by the Board of Inspectors thereunder, as if it had been absolutely trans- • cribed into it, for the reason that it was a public law of the land, of which, not only the Inspectors, but all other persons were bound to take notice. The Inspectors had to look to that act for their authority to make the contract. It was the power under which they were to act. The public were advertised of its provisions. When the act in question uses the generic word contract, and empowers the Inspectors therein named, to make a contract, in the name and behalf of the State, in respect to the subject matter of the act, what are we forced to conclude the legislature meant by the employment and use of that generic word in the act in question? Certainly, the context of the act will explain what extent of power, with respect to the grade of the contract, the legislature intended to confer upon the Inspectors; for it will be perceived in one section of the act (see sec. 11), it is provided, among other things, “ that after such contract shall be taken, it shall be reduced to writing, with all the proper terms, stipulations and specifications, and shall be signed by the Board of Inspectors, on behalf of the State,” etc. A contract simply signed, whether by a natural or artificial person, of course belongs to that class of contracts denominated simple, parol or unsealed. If it had been the purpose of the legislature to have conferred upon the Inspectors the power to make a sealed contract, obligatory upon the State as such, they should have so expressed the purpose in the act, and at the same time have provided for the affixing of the seal of the State thereto by the Governor, or some one else. The constitution of the State, sec. 12, art. 5, ordains: “ That there shall be a seal of this State, which shall be kept by the Governor, and used by him officially.” It is the seal of the State, under this provision, which assumes and verifies the acts of the State, whether as a sovereignty or corporation. She can-perform no corporate or sovereign act through her chief Executive without it is verified by this seal; and we doubt, exceedingly, whether the legislature possesses the power by act to prescribe any other mode for the authentication of the sovereign or corporate acts of the State, except by means of the seal ordained by the constitution, and required to be kept and, consequently, affixed by the Governor. Certainly, in the case at bar, there seems to have been no intention on the part of the legislature to assume or exercise this doubtful power. The act in question does not purport to authorize the Inspectors to seal the contract, to verify or render more solemn the instrument on their part. The argument would have been rendered more specious, if the legislature had absolutely authorized the Inspectors to have entered into a covenant in the name of the State with regard to the subject matter confided to them by the act in question, for in that event the power might be implied, from the general grant, that if they could not procure the affixing of the great seal by application to its constitutional custodian, the Governor, they might supply it in some other mode.

But, discarding this view of the subject, and regarding the contract declared on as one, entire and independent, and to be construed, as to its legal effect, without reference to the act under which it purports to have been made, and we hold, leaving out of view also the state as a sovereignty, but considering it as a corporation, that the instrument declared on is not technically the deed of the State, and as a legal consequence, that covenant against the State, cannot be maintained on it. An instrument, to which the agent of a corporation has affixed his seal, may be evidence of the contract, in an action of assumpsit against the corporation: for, the seal of the agent of a corporation, unlike that of the agent of a natural person, never can be the seal of his principal — the corporation. 1 Parsons on Cont. p. 94, note f. Randall vs. Van Vechten, 19 T. Rep. 60. Dawson vs. Inhabitants of Granby, 2 Pick. R. 345. Bank of Columbia vs. Patterson's ad., 7 Cranch, 299.

Whilst we are free to concede, both from the tenor of the instrument sued on, and the act under which it was made, that the State is liable thereon, in one or more forms of action, we are forced to the conclusion, from the considerations above expressed, supported as we conceive them to be by both principle and authority, that an action of covenant will not lie against the state at the suit of the appellee, upon the inst.pnmp.nt in question. We therefore hold that the Court below erred because it did not give judgment in bar in favor of the appellant; and for this reason, the judgment of the Court below rendered herein is reversed, and this cause remanded to the Circuit Court of Pulaski county, with directions to that Court to consider and sustain the demurrer by relation, as if it had been interposed by the appellant, and applied to the declaration of the appellee, and on doing so, that that Court proceed to render judgment in bar for the appellant.

Let the judgment be reversed, and the cause remanded, with the above directions.

Mr. Justice Scott:

This cause was a good deal examined by the special judge commissioned to sit in its trial, together with my brother Hanly, towards the close of the last term; and they arriving at the conclusion that the judgment ought to be reversed, and consequently that the party interested would be no nearer to an application to the Legislature for satisfaction by a decision then, than now, preferred, as they announced from the Bench, to defer final action until there was a full Bench. And we now all concur in the opinion that the judgment ought to be reversed. The ground upon which it has been placed seems to me to be a sound one. Undoubtedly, the suit must proceed upon the ground that the State is a corporation — an artificial person. Nations and States are denominated by publicists, bodies politic. They are a collective and invisible body, having affairs and interests in common, upon which they deliberate and resolve, and in reference to which they act, as moral persons, having an understanding and will peculiar to themselves, and are therefore susceptible of obligations and laws. In this sense, the King of England is a corporation, and so are the United States, as well as eachofthe States. Angelland Ames on Corporations, p. 10, sec. 15.

“ To bind a corporation by specialty, it is necessary that its corporate seal should be affixed to the instrument. * * * * * * The corporate seal is the only organ by which a corporation can oblige itself by deed: and though its agents affix their private seals to a contract binding upon it, yet these not being seals, as regards the corporation, it is in such case bound only by simple contract.” (Ib. p. 309, sec. 295.)

But, “the seal of a corporation, when affixed to any deed or contract, by proper authority, is not distinguishable in its legal effects from that of an individual. The one is the seal of an artificial, the other of a natural person.” Clark vs. Farmer’s Manuf. Co. 15 Wend. R. 257.

“There is a difference between an agent executing a sealed instrument, thereby intending to bind his principal, which principal is an individual, and the agent of a corporation doing the same thing with the same intent. In the former case, the seal may, by a prior authority or subsequent adoption, be the seal of the principal; and if there be no such authority it shall bind the agent as his own act and deed. In the latter case, the seal can never be that of the corporation: for they have but one common seal, and that can never be changed except by authority emanating from the power which created the corporation; and it can be put to an instrument only in pursuance of a vote of the corporation, or by the officer who may be the keeper, and entrusted with the use of it. Their agent, therefore, who contracts for their use under his own seal, does not bind the corporation in a deed; though, if he had authority to make the contract, it shall be binding upon them as evidence of such con-, tract. The cases of Randall vs. Van Vechten, 19 John. R. 65, and Bank of Columbia vs. Patterson ad’r, 7 Cranch 305, are satisfactory authorities upon this point.” Per Parker C. J. delivering the opinion of the Court in the case of Damon vs. Granby, 2 Pick. R. p. 352-3.

To the same effect is the case of Randall vs. Vechten, where the Court say: “ It is important to remark the difference between a corporation and an individual person acting by agent. In the one case, there is a corporate seal, which is the only organ by which the body politic can covenant. The seals of these defendants are not, in any sense, the seals of the corporation; but the seal of an agent for an individual person as his principal, is, in law, the seal of his principal; and therefore it is, that the form of action against the principal, in the one case, (that of the corporation) is not determined by the form in which the agent contracts; while in the other case (that of an individual) the action against the principal must correspond with the form by which the agent contracts, whether by seal, or by simple contract. Nor will it make any difference whether the agents for the corporation were appointed under the corporate seal, or by a resolution in the minutes. It may be legally done in either mode: and whether it be in the one mode or the other, cannot vary the form of the action against the corporation.

“ When the real party to a contract has affixed his seal, the specialty implies a merger, and the opposite party cannot waive the covenant, and resort to the assumpsit. But this rule has no application here; because the corporation have not affixed their seals to this contract. The seals of the agents are not seals as regards the corporation. The old doctrine, that assumpsit will not lie against a corporation, is now exploded.” (19 John. R. p. 65.)

The case before the Court is to be distinguished from some cases to be found in the books- — -where, in the absence of every thing in the case to show whether or not the corporation ever had a common seal, and what it was, the Court would presume, when the contract was made in the name of the corporation and purported to be sealed in its name, that the impression upon the paper of the sa-oll affixed, had been adopted as the common seal of such corporation. Because we judicially know that the State of Arkansas has a great seal, and there is no room to presume that any mere scroll could be her seal.

Nor can the State be considered as estopped from setting up this defence upon the ground that she may have received some benefit from the contract sued upon; because the question of execution stands upon different ground from that of authority: “ for, while a corporation is generally estopped from denying that a contract or an instrument was made by its authority, if it receives and holds the beneficial result of the contract, or the instrument, as the price for property sold, or the like, it may, or its creditors may deny that the instrument was legally executed, even if the authority were certainly possessed. Thus, if a conveyance purporting to be the conveyance of a corporation, made by one authorized to make it for them, be in fact, executed by the attorney as his own deed, it is not the deed of the corporation, although it was intended to be so, and the attorney had full authority to make it so. And if the deed be written throughout as the deed of the corporation, and the attorney when executing it declares that he executes it on behalf of the company, but says: “ In witness whereof I set my hand and seal,” this is his deed only, and does not pass the hand of the corporation.” (1 Parsons on Cont. ch. 10, 2d ed. top p. 118, 119; citing Brinly vs. Mann, 2 Cushing’s R. 337.)

In addition to this legal reasoning contained in these authors, there is a case reported in the 4th vol. Florida Rep. p. 200, which seems to me to be strongly in point. It was an action of covenant by Mitchell against the St. Andrew’s Bay Land Co., a corporation, upon an instrument of writing commencing: “ This memorandum of an agreement made and entered into between the St. Andrew’s Bay Land Company, on the one part, and N. H. Mitchell on the other part, witnesseth: that said company has this day,” etc.: (proceeding to set out the contract:) and concluding as follows, to wit: “ signed, sealed and delivered duplicates, this 11th day of May 1841.” Signed:

“ The St. Andrew’s Bay Land Company, by

RICHARD H. LONG, [seal.]

WM. NICKELS, [seal.]

A. II. BUCK, [seal.]

Committee.

N. II. MITCHELL, [seal.]

The defendant pleaded that said persons named in the declaration were not authorized, under the seal of said company, to execute the writing named in the declaration. To which plea there was a replication, that said persons were authorized; and further that their acts or execution of said writing under seal was ratified by the President, Directors and Trustees of said company. Demurrer to the replication for duplicity. Going back to the declaration, the Court, by Anderson, C. J., say: The question is, can an action of covenant be sustained against the St. Andrews Bay Land Company, on the indenture here described. * * * * * The defendants certainly did not execute the indenture described, by themselves, and the only inquiry is, whether they executed the deed under seal, by some other person? The declaratian says the indenture was sealed with the respective seals of Long, Nickels and Buck; and though it is alleged these persons were duly authorized by the Land Company, such allegation can only mean they were authorized to make the agreement, not to affix the seal of the company; and what is still more material, there is no allegation that the seal of the company was affixed, and no such seal is in fact affixed to the agreement, which is appended to the declaration. The committee might have been fully empowered to make the agreement, and having made it, the company xvould be fully responsible, for a breach of it, to the plaintiff, in some form of action: but surely not in an action of covenant, which cannot be maintained except against a person who has executed a deed under seal. The private seals of the company are not the seals of the corporation, and consequently the plaintiff is here suing a defendant in covenant, who according to his own showing, has not executed a deed under seal.

We refer in support of these familiar positions, to White vs. Skinner 13 John. R. 307. Randall vs. Van Vechten et al. 19 John. R. 60 and Taft vs. Brewster et al. 9 John. R. 334.”

Hon. Geouge Conway, Special Judge.

Prior to the adjournment of the July term, the subject of this cause was considered by brother Hanly and myself, in the absence of brother Scott. We determined upon the result, which has been expressed in the opinion already delivered, but considering the magnitude of the cause, and the importance of the principles involved in it, upon consultation it was determined that our opinions should not be expressed until the bench should be filled by our senior brother. The preparation and delivery of the opinion oí the Court was very kindly confided by brother Hanly to myself. I had proceeded in discharge of the duty confided to me so far as to prepare the statement of the case, intending to have prepared the opinion of the Court, to be delivered at the present term, in the vacation of the Court, but a few days after the adjournment, and before I could reach my home, I was stricken down by disease, from which I have not yet entirely recovered. At my request, brother Hanly undertook to prepare and write the opinion of the Court. I have examined that opinion, and most heartily concur, not only in its result, but its reasoning and argument. The opinion of brother Scott, the result of which is the same as that of brother Hanly, arrived at possibly by different reasoning, I also concur in, regarding it as I do, as an elaboration of the main point in the cause, to an extent which places it upon such ground as to render it perfectly clear and impregnable.

The judgment should be reversed, and the cause remanded, to be proceeded in as directed in the opinion of brother Hanly.