text:
    Hood vs. The New York and New Haven Railroad Company.
    The agent of the defendants, who were a railroad corporation, running their cars from N H to P, sold the plaintiff a^ticket for the fare from N H to C, which was five miles beyond P. The plaintiff, for injuries which he received, in a stage running between P and C, brought his action, upon a special contract, to carry him safely by railroad and stage, from N H to C. For more than six months before, and at the time of such sale, the defendants, through their agents, had been and were in the daily usage of entering into and fulfilling contracts identically like that alleged in the declaration, and, during said entire period, had permitted their agents publicly to represent them as vested with the powers requisite for such purpose. The plaintiff, knowing such representations, and believing them to be true, was thereby induced to enter into and pay the consideration of said contract, which otherwise he would not have done1. But the defendants had not the power, under their charter, to enter into the alleged contract and had never, by any corporate vote, expressly authorized or sanctioned the same, nor had their directors, by any vote, directed any such contract to be made.
    Held, that the defendants were not estopped to claim, that, under their charter, they had no power to enter into the alleged contract, and that it was not obligatory upon them.
    A new trial having been granted by this court, in the case of Hood v. The New York and New Haven Railroad Company, ante p. 1, the cause came on again for trial before the jury, at the term of the superior court for New Haven county, holden in January, 1853.
    Upon the trial to the jury, the plaintiff introduced in evidence the charter of the defendants, and the charter of the New Haven and Northampton Company, a railroad corporation, incorporated by the legislature of this state, for the purpose of constructing a railroad from the city of New Haven to the village of Plainville, in 1|he town of Farmington, and of extending the same thence northerly to the north line of the state; also a lease from the latter company, of their entire road, to the defendants.
    The plaintiff offered' evidence to prove, and claimed that he had proved, the contract, as set forth in hjs declaration.

      The defendants denied' ever having made any such contract, and further claimed, that, if such contract were proved ,it was not obligatory upon them, for the reason that, under their charter, they had no power to enter into any such contract, and prayed the court so to instruct the jury.
    “ The court, upon this subject, did inform the jury, that the defendants had not, under their charter, the power to enter into any such contract, and that the same, if proved, would not be obligatory upon them, unless they were estopped from denying their power, as claimed by the plaintiff.”
    The plaintiff also offered evidence to prove, and claimed that he had proved, that the’ defendants, from the time of taking possession of the canal road, under the aforesaid lease, and for a period of more than six .months anterior to the making of the alleged contract with him, had been and were, in the daily usage of entering into, and fulfilling contracts identically like that alleged in the declaration ; that, during that entire period, they had publicly represented and held themselves out to the community, through their duly authorized agents, as vested with powers requisite to enter into and fulfill such contracts, and during that entire period, had knowingly permitted their agents to represent the said company, as vested with the aforesaid powers; that the plaintiff, knowing of such representations, and believing them'to be true, and being ignorant of the corporate powers of the defendants, was thereby induced to enter into said contract, and pay the defendants, therefor, the consideration demanded by them, which he should not have done, had he not known of such representations, and believed them to be true. The plaintiff thereupon claimed, that if the jury should find the facts to be, as claimed by him, the defendants were estopped from denying the obligation of said contract, and requested the court, so to instruct the jury.
    The defendants denied that the facts were as claimed by the plaintiff, and introduced evidence to disprove the same.
    The evidence in support of the plaintiff’s claim, consisted of certain acts and declarations of the agents of the defendants, in issuing and selling tickets, and making contracts for the transportation of passengers, similar to the one claimed to have been made with the plaintiff, and in receiving and paying over to the proper officers of said company, the moneys received from the sale of such tickets, and the transportation of such passengers, and the continuance of such acts, for so long a time, and in a manner so public and notorious, that, as the plaintiff claimed, they must have been known to the directors and stockholders of said company; and that, after such acts had become so known, the said agents were suffered to continue them, without objection from any one.
    But there was no evidence that the defendants, by any corporate vote, had ever expressly authorized or sanctioned the making of any such contract, as the plaintiff claimed had been made with him. Nor was there any evidence, that the directors of said company had, by any express vote or order, directed any such contract to be made. But it was proved, and not denied, that they had appointed the proper officers and agents of said company, and without giving them any particular instructions upon the subject, had permitted them, without objection on their part, to make the declarations and perform the acts aforesaid.
    The defendants thereupon claimed, that, even if the jury should find the facts to be as claimed by the plaintiff, they were not estopped from denying the obligation of said contract, because they could not, in any manner, be estopped from denying the validity of a contract, which, by the terms of their charter, they had no power to make. And they further claimed, that they could not be estopped, by any acts, declarations or contracts, made by any of their officers or agents, which they did not expressly authorize to be made, and which, by their charter, neither the company nor their officers or agents were authorized to make, and prayed the court so to instruct the jury. The court did not instruc the jury in the manner claimed by the defendants, but charged them in conformity with the claim of the plaintiff.
    The jury having returned their verdict in favor of the plaintiff, the defendants moved for a new trial, claiming that the court erred, in omitting to charge the jury, as requested by them; and the questions thereon arising were reserved for the consideration and advice of this court.

      Dutton and C. A. Ingersoll, in support of the motion,
    contended, 1. That the action of assumpsit will not lie, .except on a contract, under which, a promise must be proved. 1 Ci PL. 88,99.
    2. That the defendants were incapable of making the contract in question ; they had no powers which were not granted by their charter, and this was not. This court has held, that the defendants could not make the contract. Angell & Ames, sect. 256. N. Y. F. I. Co. v. Ely, 5 Conn. R., 558. The People v. U. F. I. Co., 15 Johns., 383. Hood v. N. Y. & N. H. R. R. Co., ante, p. 1.
    3. That it is absurd to say, that a person is holden, on a contract which he has no power to make, in4 consequence of his professions to have power to make it. If this were to be allowed, the extent of a person’s ability would depend entirely upon himself. 8 Gill & J., 248, 349.
    4. That the court below held, that the defendants might be estppped, by their own acts, or those of their agents. But an estoppel necessarily presupposes an ability to do the act in question. The court regards the person as having done what he professes to have done, but the law never supposes a person to have done what he could not have done. Hodges v. Buffalo, 2 Den., 110, 112. McCullough v. Moss, 5 Den., 567. 8 Gill & J., 248. 7 Eng. L. & E. R., 505.
    5. That no instance can be found where a person has been held by an estoppel, when he could not have been held by contract. A married woman can not be held on contract, by an estoppel; nor an infant as surety, nor an idiot.

      6. That, if the agents of a corporation, either willfully or negligently, make a false representation, they are personally liable, but the corporation is not bound. Angelí & Ames, sec. 309-232.

      7. That the stockholders could ’ not confer any power on the corporation, even by a unanimous assent. The power of the corporation is limited by.its charter, and can not be extended by the stockholders. N. Y. F. I. Co. v. Ely, 5 Conn. R., 560. The Phoenix Bank v. Curtiss, 14 Conn. R., 443. Welland Canal Co. v. Hathaway, 8 Wend., 484. Hayden v. Mid. T. Co., 10 Mass., 403. Soc. of Pr. Kn. v. Abbott, 2 Beavan, 559. Ruby v. Ab. Soc., 15 Maine, 306. Wheelock v. Moulton, 15 Verm., 519. Isham v. Benn. Iron Co., 19 Verm., 249, 250.
    8. That, if such a power could be conferred, it must be by the unanimous consent of the stockholders. The court know, officially, enough of a railroad corporation, to know, that all the stockholders did not know and could not have known, of the existence of the act offered in evidence. It was, therefore, improper to leave to .the jury to find a fact, which no juror could, with truth, say he believed to have existed. Albany v. Cunliff, 2 Comstock R., 165, 177.

      Baldwin, Beach, and R. I. & C. R. Ingersoll, contra,
    1. The first question presented by the motion, is, whether the defendants were estopped to deny their power, to enter into the contract of conveyance, with the plaintiff. The general doctrine, .as to estoppels in pais, has been, too frequently and recently recognized by this court, to be controverted. But the claim of the defendants, is, that it does not apply to corporations. This, however, is directly in the face of a long established principle in this state, fully recognized in the early case of Buckley v. The Derby Fishing Company, 2 Conn. R., 252 ; and re-affirmed in the recent case of Fuller and wife v. The Naugatuck Railroad Company, 21 Conn. R., 557. See also Weed v. Saratoga Railroad Company, 19 Wend., 534. Muschamp v. Lancaster Railroad Co. 8 Mee. & Weis,, 421. Watson v. Ambergate Railroad Company, 3 E. L. & E., 497.
    2. It is further claimed, by the defendants, that they could not be estopped, by any acts, declarations, or contracts, made by any of their officers or agents, which they did not expressly authorize to be made, and which, by their charter, neither the company, nor their officers or agents, were authorized to make. The doctrine here contended for, by the defendants, is, that there must have been some express authority,—a vote, or some other such corporate act, of the stockholders. But this again is directly in face of our own decisions. Buckley v. The Derby Fishing Company, 2 Conn. R. 252. New Hope Delaware Bridge Co. v. Phœnix Bank, 3 Comstock, 156: Alleghany City v. McClarkin, 14 Penn. St. R., 8. Smith v. Hull Glass Co.. 9 Eng. L. & E., 442.
    3. That the strictness of the old rules, as to implied obligations of corporations, has been very much relaxed, by the late decisions.

      “ That corporations can now be bound by contracts, made by their agents, though not under seal, and also on an implied contract, to be deduced by inference from corporate acts, without either vote, or deed, or writing, is a doctrine generally established in the courts of the several states, with great clearness and solidity of argument; and the technical rule of the common law may now be considered as being, in a very great degree, done away, in the jurisprudence of the United States.” 2 Kent Com., 291. Angell & Ames, on Corporations, sec. 248, 257, 284.
   Ellsworth, J.

This case was before the court at its last

session, when we granted a new trial, for a verdict against evidence. The question now presented,' was not then adjudicated, though it was alluded to, in the arguments of counsel, and in the opinion of the court, as one of great importance. There was another ground for granting the new trial, entirely satisfactory to the majority of the judges, and this was passed by. It is now distinctly presented for our judgment, and is the only question on the record.

After the fullest consideration, with the aid derived from the learned and able arguments at the bar, a majority of the court do not hesitate to hold, there must be a new trial.

It will be noticed, that the suit is upon a special promise of the defendants to carry the plaintiff from New Haven to Collinsville ; not an action against common carriers, for an injury suffered, while passing over their road, nor as founded upon a responsibility growing out of such relations. This would not answer—for the defendants could not be common carriers, except on their own road; so, the pleader declares! upon a special undertaking of the defendants, aside from their) appropriate line of duty, and the attempt is, to subject on that undertaking, and on nothing else. *

It is found, that the defendants had no power to enter into the undertaking in question, and therefore, as a ground of claim, it must be agreed, the undertaking merely is of no avail, for the reason, that the directors, having no authority, did not, in legal estimation, make the contract for the company. The question is, are the defendants estopped setting up this in their defence ? The statement of the case carries on its very face, conviction to the mind, that it can not be so. The defendants estopped from denying that they have done, what they never could have done ! It is a question of power, under the charter; and however individuals may be liable and estopped, who untruly hold themselves out as clothed with power, the defendants can not be es-topped, on any such principle of law known to the court. The notion of an estoppel in pais, to which class, if any, this estoppel belongs, proceeds on the idea of acquiescence or consent; a consent expressly or impliedly given by the party claimed to be estopped. Of course, there must be a legal possibility, or there ^an be no real or supposed acquiescence and consent, and where consent may be given, silence may be sufficient proof, that it is given; and so, a course of known action may be sufficient proof; for the law requires no exact form. But as we say, it does require a legal possibility, and where there is none, courts can not consistently hold, there is an estoppel. The case of Buckley against The Derby Fishing Company, 2 Conn. R.,252, and that class of cases, which abound in the books, is a good illustration of the distinction above alluded to. If a corporation has the power to do a thing, and is in the habit of doing it, in a particular way, it may bind itself to third persons, though it do not pursue the exact mode prescribed in the charter; for the mode is not exclusive, but concurrent. So, too, where a provision in the charter is designed to protect the corporation, the corporation may waive this provision, and this may be proved to be done, by a repetition of acts of a like or similar character. But the question here, is, as we have said, one of power, not of form.

The plaintiff introduced circumstantial evidence on the trial, to prove, that the directors of the company made the contract, and particularly, that their subordinate agents had, for some six months previously, been in the practice of contracting with other persons, as they did with the plaintiff. Suppose this is true, and that the knowledge and consent of the directors may be properly inferred, from this continued practice of the directors ; this will not place the plaintiff’s case, in our judgment, on any higher ground, than if the directors had, by a formal vote, contracted with the plaintiff, to carry him to Collinsville. It being a question of power, silent acquiescence in the acts of subordinate agents does not make a stronger case ; for, if a formal contract is not obligatory on the company, one proved by inferior or circumstantial evidence certainly is not. The kind of evidence is quite immaterial. Should the directors of a savings bank, or of any bank, contract’ with a ship-builder, for a steamship, to navigate the ocean, would this contract bind the company? Certainly not; because the directors have no power to make it; nor would they have more, were they to make such contracts, from day to-day. The legislature has absolutely' marked the limit of their power, and they can not exceed it, under the charter; and if the directors, even with all the stockholders at their side, transcend the limits of the charter, and make contracts foreign to their business, they only act for themselves. The reason is, there can be no consent of the corporation. The consent of individual stockholders, however repeated, is not their consent, nor is it admissible proof, to establish consent; so that, if it were true, every stockholder had expressed his consent, it would make no difference in the case. If this is not so, there are no restrictions or limitations on chartered companies, and they may do anything and everything the directors please, which is not absolutely unlawful. • The exercise of power is held to proVe itself; which is absurd.

No one will say, that the first contract made by the directors, to carry to Collinsville, or Litchfield, or New Hartford, or Northampton, would be obligatory on the company; yet it must be so, if stockholders are, of course, bound by every contract of their directors. Were the charter a public one, it is agreed, the company would not be bound by such acts, however repeated ; but in truth, a private charter is not essentially different from a public one, in this respect; for, the plaintiff must have known, that the defendants were incorporated by the legislature, for the purpose of making or using only a railroad. Their very name, as well as the location and business of their road, is sufficient notice, that they are not incorporated for running stages throughout the state; and no person can assume or suppose, the defendants are to go beyond the appropriate business of a railroad. The idea of an imposition on the public, as to these stages running off from the road, to and from Litchfield and other places, as the defendants’ stages, is incredible and preposterous. The public know where the charter may be seen, and what it contains.

Many cases were read, on the argument, to prove that a-* corporation is considered for civil purposes, as a person, and subject to the same rules of law. We do not question this, but we do not see how it helps the plaintiff’s case. They hold, that a principal that can give authority, whether a corporation or person, may, when one assumes to act for him, and he does not object to it, be estopped denying his agency; but an infant is never estopped, nor a married woman, nor ought a body of- stockholders to be, united as they are, under a specific charter ; especially when the directors have disregarded it, and assumed to act according to their own pleasure. Could the, company by legal possibility, do the act, it would be otherwise.

But, it is said, the jury have found, that the stockholders, in fact, gave their consent, and it may not now be denied. We have already shown, this can make no difference; but we say further, that this notion of their consent is altogether untenable and unjust. We know, certainly, the stockholders did not, all of them, give their consent. Some were minors, married women, executors and administrators, trustees, officers of the law in possession, and some were, at the time, out of the country. So the body of stockholders was changing from day to day. Now, to hold that the entire body of stockholders gave their consent to the contract in question, and that therefore it is good, is absurd and puerile. But, suppose they did; this was not a corporate act, and has, therefore, no corporate character. W e repeat, that the directors and stockholders have no corporate powers or relations, and can give no corporate consent, but what is within the appropriate business of the charter.

Again, it is said, the defendants ought not to be permitted to call in question the acts of their agents. Why not, as much as other principals, whose agents transcend their authority, and abuse their trust ? If it is replied, the directors have suffered this course of things, for months, when they could have arrested it, at once, we ask, whose agents they were ? Certainly not of the innocent stockholders. The directors represent them only, while they act within the scope of the charter; the charter is the measure of their power; and sad would it be, if directors could trample upon this, and yet bind the stockholders as firmly, as if they were acting within it. If the directors have done wrong, let them suffer the consequences.

We have not thought it necessary to comment particularly on the numerous authorities, cited at the bar, on the several points made, for we find nothing in any of them, inconsistent with the views expressed.

Gill & Johnson is in direct accordance with what we have said. We place our judgment upon a plain principle of equity and law, viz,, that these .defendants are not bound, by a contract they had no power to make, and are not estopped setting up this matter in defence.

We advise a new trial.

In this opinion, Church, C. J., and Storrs, J. concurred. Waite, J., having tried the cause in the court below, was disqualified, and Hinman, J., dissented.

New trial to be granted.


source: Caselaw Access Project

author: Church, C. J.

license: Public Domain

text:
    Potter vs. Tuttle.
    When parties have deliberately, by their agreements or covenants, fixed the time for the performance of an act, a court of equity will be very cautious how it interferes in disregard of it, and will not do this, unless, by reason of mistake, or for other cause, falling within the legitimate province of such court, it shall see that essential justice demands the exercise of its jurisdiction.
    But, if a party who insists upon exact time, has been himself the cause of delay, a court of equity will proceed, notwithstanding, to decree a specific performance.
    The defendant, to a bill for the specific performance of a contract, agreed “ to convey by a good and valid deed,” certain premises, within one year, at any time after four days’ notice, on condition that the plaintiff should pay for the same in a stipulated manner, at the expiration of said year, or the notice to be given. An unrecorded deed of said premises, ¡(of which the plaintiff was ignorant at the time of said agreement,) assigning to the defendant’s grantor, a mortgage given by a former owner thereof, contained a reservation, of “ such interest as the mortgagor acquired by virtue of a certain prior mortgage of the same to him, to secure the payment of fourteen hundred dollars.” On being afterwards enquired of by the pláíntiff, respecting said reservation, and notified by him that he should not accept a quitclaim deed of said premises, the defendant made no explanation, but offered, for an additional sum, to clear up the title. Before the expiration •of the year, the plaintiff notified the defendant, that he should purchase and take the property according to their agreement, and demanded of him a warranty deed, tendering therefor, the stipulated payment. The defendant refused to execute such deed, and thereupon, tendered a quitclaim deed, and demanded payment, which the plaintiff refused. Held, 1, That such stipulated conveyance by the defendant, and payment by the plaintiff, were to be contemporaneous acts, and each party was bound to perform, on his part, at the fixed time. 2. That the plaintiff was justified in refusing to accept a quitclaim deed, and in suspending advances upon said premises, until the defendant had explained, or removed the cloud vesting upon the title. 3. That, no form of conveyance being specified, any deed which would vest in the plaintiff a clear title in fee, would be a compliance with the contract, but that, as said premises were apparently under incumbrance, it was incumbent upon the defendant, either to remove, or explain the same, or to execute a warranty deed thereof, and, therefore, that the plaintiff was entitled to the decree he sought.
    This was a bill in equity, brought by Henry J. Potter, against John Tuttle, praying for the specific performance of a written contract.
    The cause was referred to a committee, who, at the term of the superior court for New Haven county, holden in October, 1852, reported substantially the following facts :
    On the 28th day of October, 1850, said Tuttle was the owner of premises, situated in the city of New Haven, on the westerly side of Franklin street, with four buildings thereon, known as the “Lanson property,” being 135 feet front and fear, and about eighty-five feet deep, subject to the incumbrance of a mortgage, given by Laban and William Lanson, to said Potter, by their deed, dated December 19th, 1839, to secure their note for six hundred dollars, which note was then held by said Potter, and was due and unpaid,—but was subsequent to sundry other mortgages, given by the Lansons, upon the same property, to an amount far exceeding its value. Said last mentioned mortgages, together with Lanson’s equity of redemption, had been vested in said Tuttle, who thereby became the absolute owner of said premises, except the mortgage to said Potter, and except so far as his title might be affected, by the reservation mentioned in a certain deed from Lyman Ailing to Elah Gorham, the grantor of said Tuttle, which reservation was as follows: “ And I do expressly reserve to myself, such title as I have acquired to the within described premises, by virtue of a certain mortgage deed from the within named William Lanson, dated the first day of June, ] 836, to secure the payment of fourteen hundred dollars, and interest.”
    But there was, in fact, no such mortgage deed as is mentioned and referred to in said reservation. Said Tuttle preferred his bill to foreclose said Potter of his right in said premises, which was pending, on the 28th of October, 1850, and, on that day, in pursuance of an agreement then entered into, Potter released and conveyed to Tuttle all his interest in said premises, and also transferred and delivered to him said note, secured by said mortgage, and, in consideration thereof, Tuttle executed and delivered to Potter the following agreement, viz.:

      “ Know all persons by these presents, that I, John Tuttle, of the city and county of New Haven, in the state of Connecticut, for the consideration of one dollar, and other valuable considerations, received to my full satisfaction, of Henry J. Potter, of said city, do hereby covenant and agree with the said Potter, to convey to him, at any time after four days’notice, from said Potter, within one year from this date, by a good and valid deed, a certain piece of land, with all the buildings thereon, situated in said city, and bounded as follows, &c.: provided, however, that if said Potter shall neglect or refuse to pay to me the sum qf seven hundred dollars, in cash, at the expiration of said year, or said notice from said Potter, and at the time that the aforesaid deed is tó be given ; also to give me his negotiable promissory note, for the sum of seven hundred dollars more, payable in one year from its date, secured by mortgage on the aforesaid premises, prior to all other incumbrances, to be executed and delivered at the time of the delivery of the aforesaid deed from me, then this instrument shall be void.
    JOHN TUTTLE.
    Dated at New Haven, October 28th, 1850.”
    About the first of October, 1851, Potter examined the town records of New Haven, to ascertain if the release, by Lyman Ailing to Elah Gorham, of his mortgage from Lanson, was on record,—and not finding it, he applied to Tuttle, for information in relation thereto, who told him that it was recorded. A few days after, he was again at the town clerk’s office, when Tuttle came in with a deed, which he said was the release deed from Ailing to Gorham, and which he was then going to put' on record. Potter did not then examine it, but, a few days after, called at the town clerk’s office, and on reading the record, Pad knowledge, for the first time, of the reservation contained therein. He then called Tuttle’s attention to the reservation in the deed, who gave him no explanation. He then enquired what it meant, of Ailing, who made some claim that Gorham had not paid him all that was due him. Potter then communicated to Tuttle what Ailing said, and that he was not satisfied to take a quitclaim deed of the premises. Tuttle replied, that if Potter would give him twenty-five dollars more, he would get it cleared up, and give him a warranty deed. On the 23d of October, 1851, Potter, pursuant to the provisions of said agreement, notified Tuttle, that he should purchase and take the property, according to their agreement: and on the 27th and 28th days of October, 1851, he made repeated demands of Tuttle for a warranty deed of the Lanson property, and for a good and valid deed of the Lanson property in Franklin street, he had agreed to sell him, and at the same time, tendered to him seven hundred dollars in gold, and also his note for $700, payable one year from sale, with a mortgage deed of said premises, securing said note. Tuttle, upon the demands aforesaid, refused to give Potter a warranty deed of said property, but declared his readiness and willingness to give a deed, pursuant to the terms of their written agreement, and, upon said demands, tendered to Potter, a quitclaim deed of the premises described in said agreement, which deed was in the usual form; and also demanded of Potter, the sum of seven hundred dollars in money, and his note for seven hundred dollars, payable in one year from its date, and secured by mortgage, pursuant to said agreement ; but Potter refused to receive said deed, or to pay said sum of money, or to deliver said note and mortgage for the same; after which time, no tenders or demands passed between the parties.
    The case, embracing the foregoing facts and questions of law arising thereon, was reserved for the advice of this court.

      Baldwin and Terry, for the plaintiff,
    contended, 1. That the import of the agreement between the parties was, that the plaintiff should acquire a title, unincumbered upon the record, and free from doubt, and such as would be saleable, without first applying to a court of equity, to remove a cloud, that impaired its value; and that the plaintiff was not bound, either to advance his money on a doubtful title, or to rescind the contract, on the failure of the defendant to convey to him an undoubted title.
    2. That time is not ordinarily of the essence of a contract ; and where it is not, lapse will be relieved against. 2 Sto. Eq. Juris., § 776. 2 Sch. & Lef., 347, 684. Time is not of the essence of the contract, in this case. Newland on Cont., 238. Jeremy Eq., 461. Heame v. Tenant, 13 Ves., 287. Doloret v. Rothschild, 1 Cond. Eng. Ch., 302. Wynne v. Morgan, 7 Ves., 202. Newman v. Rogers, 4 Bro. Chan., 392. Brashier v. Gratz, 6 Wheat., 533.
    3. That if time were here of the essence of the contract, still, if the circumstances make it equitable, especially if the lapse was caused by the acts of the party against whom relief was sought, a court will decree performance. Savage v. Brocksopp, 18 Ves., 335.

      Bindley and Bláckman, for the defendant,
    contended, 1. That when the obligation of the defendant to execute a contract, depends upon the previous performance of some act by the plaintiff, within a limited time, and the plaintiff neglects to perform such act, within the stipulated time, he can not recover, in a suit upon such contract. The rule is the same, both in law and in equity. Time is a material part of a contract, when the subject of the contract is of such a nature as to be exposed to a daily alteration in its value ; and it may be made material, by the conduct or express agreement of the parties. 2 Sto. Eq., sec. 776 and note. 2 Sw. Dig., 26, 27. 1 Con. Eng. Ch., 100, 302, 332. Moore v. Blake, 1 Ball & Beatty, 68, 69. 5 Ves. Ch., 719. 5 Ves. Ch., 848. 13 Ves. Ch., 225. 1 Johns. Ch., Benedict v. Lynch, 1 Johns. Ch., 370. Hutcheson v. McNutt, 1 Ham., 14. Jackson v. Ligon, 3 Leigh., 161. Scott v. Fields, 7 Ham., 90.
    2. That the phrase, “ good and valid deed,” does not import a deed with covenants. A release deed is a good and valid deed, for the conveyance of real estate. Dart v. Dart, 7 Conn. R., 250. Hall v. Ashley, 9 Ham., 96. Doe v. Roe, 4 Scam., 117. Gazley v. Price, 16 Johns. R., 267. Smith and Wife v. Pendell, 19 Conn. R., 107. Hill v. Hobart, 4 Shep., 164. Dodd v. Seymour, 21 Conn. R., 476.
    3. That the plaintiff, having neglected and refused to fulfill the contract within the time, and according to the conditions specified therein, the obligation of the defendant ceased; and the plaintiff, having neglected to perform the contract, and claiming to set up another, can not, now, enforce the specific performance of the contract, the provisions of which lie has neglected to comply with. Scmidt v. Livingston, 3 Edw. Ch., 213. Goodwin v. Lyon, 4 Porter, 297. 7 Hammond, 2 part, 90.
   Church, C. J.

The defendant covenanted to convey to

the plaintiff, the premises in controversy, within one year from October 28th, 1850, at any time after four days’ notice, on the condition, that the plaintiff should pay for the same, in the manner stipulated, at the expiration of said year, or the notice to be given.

The conveyance by the defendant, and the payment by the plaintiff, were to be contemporaneous acts, and .each party was bound to perform, on his part, at the fixed time. Such was the legal import of the covenant. 14 Conn. R., 479. 1 Sw. Dig., 206.

The defendant excuses himself for a non-performance on his part, by reason, that the plaintiff did not make the stipulated payment, nor offer to do so, at the time agreed upon, but, on the contrary, refused, at that time, to perform, on his part. That the plaintiff did not pay, nor offer to pay, according to the terms of his covenant, at the time required, is true. Whether the time of payment was, in this case, so much of the essence of the contract, as that a court of. equity will refuse its aid to the plaintiff, by reason of his neglect to perform in time, it is not, perhaps, necessary for us to determine, upon the facts here disclosed. We may say, however, in reference to the principle claimed by the defendant, that, when parties have deliberately, by their agreements or covenants, fixed a time for the performance of an act, a court of equity will be very cautious how it interferes, in disregard of it, and thus, in effect, change the contract which the parties have made. It will not do this, unless, by reason of mistake, or some other cause, falling within the legitimate powers of a court of equity, it shall see that essential justice demands the exercise of its jurisdiction, irrespective of the lapse of such time. 2 Sto. Eq., § 776, note. Hepwill v. Knight, 1 Young & Collier, 1415.

But if a party, who insists upon exact time, has been himself the cause of delay, a court of equity will proceed, notwithstanding, to decree a specific performance. Savage v. Brocksopp, 18 Ves., 335. We think that this case falls within this equitable principle. It appears, that there had been a mortgage upon the premises, given by Lanson, the former owner, to Lyman Ailing, which must be removed, before a good title could be given by the defendant. This mortgage had been assigned, by Ailing, to one Elah Gorham, under whom the defendant held this title; and, as the deed of assignment had not been recorded, the plaintiff was ignorant of its exact contents; and, when examined after-wards, this deed was found to contain a reservation by the assignor, in the following words, “ I hereby expressly reserve to myself, such title as I have acquired to the within described premises, by virtue of a certain mortgage deed from the within named William Lanson, dated the first day of June, 1836, to secure the payment of fourteen hundred dollars and interest, &c. . Lyman Ai/ling.”

It appeared from this, that the property was under the incumbrance of another mortgage, under which Ailing still claimed an interest. And when enquiries were made of the defendant, concerning this, he made no explanation, but answered equivocally. The plaintiff, from this manner of the defendant, was justified in hesitating and in refusing to receive a quitclaim deed, and even in suspending further advances in the purchase, until an explanation was given, and this cloud upon the title removed.

The question still remains : was the defendant bound to do more than he has done ? to tender inore than a quitclaim deed ? His covenant was, not that he would deed the land to the plaintiff, but that he would convey it.. No form of conveyance was agreed upon, and therefore, any deed, by force of which a clear title in fee would be vested in the plaintiff, would be a compliance with the agreement, whether a quitclaim, or a deed with covenants. Mead v. Johnson, 3 Conn. R., 592. Dart v. Dart, 7 ib., 250. Seymour v. Dodd, 21 ib., 476. It was the duty of the defendant to have removed the apparent incumbrance,—cleared away the cloud upon the title, or have satisfied the plaintiff, that no such incumbrance existed ; or else, he should have assumed the responsibility, by executing a warranty deed, and, in this way, at least, estopped himself from making a future claim. He refused to do this; but actually demanded an additional sum, to clear the title ; he thus, in effect, refused to convey. The contract between these parties was a fair one, and we discover nothing in the conduct of the plaintiff, by which he has forfeited his right to a specific performance of it. We advise that a specific performance be decreed.

In this opinion, Waite, Storks and Ellsworth, Js., concurred. Hinman, J., dissented.

Specific performance to be decreed.


author: Ellsworth, J.

text:
    Spencer vs. Higgins.
    Although the language of a will can not be varied, altered, or explained, by parol, yet such evidence is admissible, to designate what the testator intended to include, in a bequest of property, in general terms.
    A testator made the following bequest: “I do give and devise to my beloved wife, all the furniture, and all the property she brought with her, at the time of our intermarriage.” The legatee, at said time, had §1,000 in notes of hand, which was subsequently paid to her and deposited in her name, in a savings bank. On an appeal by her from the decrees of the court of probate, appointing distributors on the estate of the testator, and accepting their return, by which the interest accrued upon said deposits was distributed to other legatees, it was held, 1. That parol evidence was admissible, to show that such'notes were paid, and their proceeds deposited as aforesaid, with the testator’s knowledge, and that, by his acts and declarations, he treated and regarded both the principal and interest of said notes and deposits, as included in such bequest. 2. That the appellant was entitled, not merely to a sum equal in amount to what she had, at the time of her marriage, but that the legacy to her was specific, and included both the principal sum deposited in the savings bank, and the interest which had accrued thereon.
    This was an appeal from a decree of the court of probate, for the district of Haddam, appointing distributors upon, the estate of David Spencer, deceased, and the decree of said court, accepting the return of the doings of such distributors, by which the sum of $910.29, which was the interest accrued upon certain moneys deposited in the Middletown Savings Bank, in the name of the appellant, which she claimed ought to have been distributed to her, was distributed to other legatees, and wrongfully withheld from her.
    On the trial before the superior court, the following facts were found, viz. :

    On the first day of June, 1844, David Spencer made his last will and testament, containing the following clause, viz.: “ I do give and devise to my beloved wife, all the furniture, and all the property she brought with her at the time of our in termarriage and such of the household goods as she may have purchased since.” After further devising to her the use of certain real estate, so long as she should remain his widow, which was to be taken as her dower, the will proceeded to dispose of all the remainder of his estate, among the testator’s children. The testator died on the third of December, 1S50, and said will was duly proved before the court of probate.
    The deceased was married to the appellant, on the 10th of May, 1835, who had, at the time of said marriage, personal property, to the amount of $1,162.50. Said David, prior to said marriage, told the appellant, that she should retain her property, and that neither he nor his heirs should claim the same. One thousand dollars of said personal property consisted of notes of hand, which, subsequently to said marriage, were paid to the appellant, with the knowledge of said David ; and she, from time to time, deposited the money, so received by her, in her name, in the Middletown Savings Bank, to the amount of seven hundred and fifty dollars. The further sum of two hundred dollars, of the avails of said notes, was, by the request of the appellant, deposited in said savings bank, by said David, in his name, she not being authorized, by the rules of the bank, to make a deposit of the same, in her own name; one hundred and fifty dollars of which was deposited by said David Spencer, as aforesaid, July 14th, 1836, and fifty dollars of the same, April 25th, 1839. On the 25th day of April, 1840, said David transferred the said two hundred dollars to the name of the appellant, and some time in the next year, said David drew the interest on said two hundred dollars, amounting to the sum of $28.37; but whether he did the same on his own account, or for and in behalf of the appellant, the court did not find. The bank book was delivered to, and kept by her ; and said money, as well interest as principal, was put into the assessment lists of the town of Haddam, as the property, and in the name of the said appellant. Said David refused to pay the taxes on said assessment list, but referred the collectors to the appellant, as the proper person to pay said taxes, and the appellant paid the same. Said David, at various times, both before and after said will was made, spoke of the money in said savings bank, as the property of the appellant, and declared, in her presence and elsewhere, that he should have nothing to do with it, and he never did take to his own use any portion of the principal or interest, unless the said $28.37 may have been so received by him. The amount standing in the name of the appellant, on the books of said bank, amounted to the sum of $1,860.29, on the first day of November, 1850, consisting of 950 dollars principal, and the balance $910.29 interest which had accrued on the same.
    The appellees objected to the evidence on which each and all the facts found by the court were proved, and to the admissibility of those facts, as evidence to control the plain import of the words used in said will; and also to the proof offered by the appellant, of the declaration of the testator, as found by the court, on the ground, that the words used by the testator in his will, were clear, definite, and unambiguous, applying only to such property as the appellant brought with her, at the time of her marriage, and that parol evidence of the declarations of the testator was not admissible, to prove that the words used by him in his will, were intended to apply to any additions made to the property which the appellant brought with her, at the time of her marriage, whether by subsequent accumulations of interest, dividends, or otherwise, or to vary or extend the plain meaning of the words used in said will, beyond the natural import thereof. But the court admitted the evidence, and, upon such evidence, found the facts aforesaid. And the questions of the admissibility and effect of said evidence, and of the facts found by the court, were reserved for the advice of this court.

      Ingham, and Dutton, for the appellant,
    contended, 1. That the interest is incidental and appurtenant to the principal,— and passes by the bequest. Gore v. Wright, 2 Vern., 535. Cr. Dig. Tit., 38, ch. 10, § 66. Crosby v. Bradbury, 10 Maine, 61. 3 Barber Sup. C., 110. 1 Ves. jr., 47. Whatis parcel of the thing devised may be shown by parol proof. Beach v. Earl of Jersey, 3 B. & C., 870. Goodnight v. Pears, 11 E., 57. Doe v. Collins, 2 T. R., 498.
    2. That, when a word of conveyance admits of different applications, parol evidence is admissible, to show what the testator-or grantor intended to convey. The expression, “ all the property she brought with her at the time of our intermarriage,” is as general and indefinite, as “ household furniture,” “ stock,” “freight,” “ printing-presses,”—all which have been allowed to be explained. Evidence was admitted to show what was meant by “ wholesale factory prices.” Avery v. Stewart, 2 Conn. R., 69. Mowatt v. Carow, 7 Paige, 328. Cr. Dig. Tit., 38, ch. 10, sec. 52 & note. Peisch v. Dickson, 1 Mason, 10. 1 Greenl. Ev., § 288, 289. Ayres v. Weed, 16 Conn. R., 191. Doolittle v. Blakeslee, 4 Day, 265. There are several decisions, bearing a strict analogy to this. Evidence of what was intended by “ back lands,” was admitted. Ryerss v. Wheeler, 22 Wend., 148. The reputed limits of a parcel, though embracing more than the true limits, will carry the surplus. Beach v. Earl of Jersey, 3 B. & C., 870. Devise of Jane Reno, a negro woman, and her increase, named Sib, was held ambiguous, and parol evidence was admitted, to show, that increase included children born before the will was executed. Reno’s Ex. v. Davis, 4 H. & M., 283. 1 Greenl. Ev., sec. 283. Wig. on evidence in aid of the Nature of Wills, 11, 14.
    3. That facts and circumstances, known to the testator, are always admissible. Baldwin v. Carter, 17 Conn. R., 201. Brown v. State, 16 Conn. R., 192. 1 Story, 574. 18 Verm., 129. The declarations of a testator, made at the time of executing a will, and before and after, are admissible, when parol evidence is admissible. Ryerss v. Wheeler, 22 Wend., 151. Webley v. Beale, 3 Desaus, 509. Reno’s Ex. v. Davis, 4 H. & M., 283. Jeffrey v. Randall, 5 Rand., 211. Langham v. Sandford, 2 Mar., 6. Belden v. Carter, 17 Conn. R., 301. Meeker v. Meeker, 16 Conn. R., 383.
    4. That the construction, claimed by the appellant, does not contradict or defeat any of the provisions in the will. It is perfectly consistent with the language. The testator must always be considered as speaking of existing property,—the question is, what was, at the making of the will, the property which.be denominated that which she brought. No doubt can exist, as to the intent of the testator, and the law will, if possible, carry that intent into effect.

      Baldwin, Clark, and W. D. Shipman, for the appellee,
    contended, 1. That it is apparent from the language of the will, that the testator intended to give the appellant, only the amount which she brought with her, at the time of marriage.
    2. That parol' evidence was- inadmissible, to contradict, vary, or add to the express terms of a will. Its construction must be gathered from the will itself. Avery v. Chappel, 6 Conn. R., 270. 11 East, 441. 3 Taunt., 147. Comstock v. Hadlyme, 8 Conn. R., 254. Mann v. Mann, 14 Johns., 1. 7 Met., 97.
    3. That parol evidence can only be received, where there is an ambiguity as to the person, or as to the subject matter devised, or where words of equivocal import are used, expressive of the quantity of interest or extent of the subject matter of the devise. 7 Bac. Abr., 342, (note.) 1 Br. Ch. Rep., 472. Powell on Dev., 502. 2 Esp. Nisi Prius, 787.
    4. That the declarations of a devisor are only admissible, to show fraud. Powell on Dev., 530, 487. . Phil. Ev., 428. 8 Term Rep., 147. 2 Vernon’s Ch., 98. 6 Term Rep., 671. 8 Conn. R., 254. 1 Harrison Ch., 380. 2 Johns. Rep., 31, 34. 4 Wash., C. C. Rep., 256. 5 Bing., 435. 2 Shaw, 5. 2 Stra., 1261.
    5. That the evidence offered, does not show, that the devisor designed to give the appellant anything, beyond the amount she brought-with her, at the time of her marriage.
   Ellsworth, J.

The propriety of receiving parol testi-

mony, for the purposes for which it was offered, and the effect of that evidence when received, (the two questions made,) are not, in our judgment, attended with any serious difficulty. They grow out of the application of a well known and well settled principle of law, rather than the introduction of any new one, as is generally seen in cases of this character. We agree, most fully, that no man can make a parol will; nor can the language of a will, when made, be denied, or qualified, or even explained, by parol. The testator must speak exactly by the language he makes use of, and we can impute to him no other words than are written in the will, and what they mean of themselves. Were we to do otherwise, we should repeal the statute of wills, as well as go abreast of that great principle of the common law, that written evidence must prevail over unwritten. In other words, the rule is directed against the admission of any other evidence of the language employed by the testator, than that which is furnished by the language itself. The will may be read by the light of surrounding circumstances, in order to see how the language shall be applied, and in this collateral particular, to learn the intent and meaning of the testator; but the will is the only outward and visible expression of the testator’s meaning ; no other words are to be added or substituted. The end sought is, not to learn what the testator intended as contradistinguished from what his words express, but just as in written contracts, we receive parol evidence, to explain latent ambiguities, technical phrases, terms of art, scientific words, and the meaning óf a foreign language. We hold the rule as laid down in 1st of Jarman, 348, 349 : “ As the law requires wills, both of real and personal estate, to be in writing, it can not, consistently with this doctrine, permit parol evidence to be adduced, either to contradict, add to, or explain the contents of such will; and the principle of this rule evidently demands an inflexible adherence to it, even where the consequence is, the partial or total failure of the testator’s intended disposition ; for it would have been of little avail, to require, that a will, ah origine, should be in writing, or to fence a testator round with a guard of attesting witnesses, if, when the written instrument failed to make a full and explicit disclosure of his scheme of disposition, its deficiencies might be supplied or its inaccuracies corrected.”

The language used in this will is, “ I do give and devise to my beloved wife, all the furniture and all the property she brought with her.” It is obvious, Mrs. Spencer must resort to parol proof, to identify the property which she is to take. This is just what she is attempting, and it is in this view, we think, the evidence is clearly admissible. The words are, the property which she brought,” &c. The enquiry, therefore, is, where is that property, and of what does it consist ?

First, we will speak of the principal of the bequest. That is the chief obstacle, which has been presented by the argument of the counsel. No attempt has been made by the administrator to deprive Mrs. Spencer of this, vested as it is, in her name, in the savings bank ; and we think there could be none. The property she brought with her consisted, at the time of the marriage, almost entirely of certain notes of hand. These she has collected, and deposited, or their avails, in the bank, in her own name, and for her own use; her husband disclaiming any right to it, and never exercising any dominion over it. She has paid the taxes, kept her own bank book, and has caused this money, the avails of her specific notes, to accumulate, for her sole and exclusive enjoyment. Now, if these specific notes were in being, they would certainly pass, by the language of the will; but, suppose some of the notes had been taken up, and renewed by their endorsers, or that new loans had been made by her, of that principal, and new notes taken in her name, with Mr. Spencer’s consent, in order that the property might be kept separate and distinct from his own, would it not all pass by the description, the property she brought,” &c. ? The word property,” is one of large import, and, we think, was used, in this case, upon mature reflection, to include the avails of the specific notes, as they had been collected. None of the specific things which she had, at the time of the marriage, were remaining, at the date of the will, so far as appears from the motion, or, as has been spoken of, during the argument. What then was to pass by the will, but the avails of the notes 1 Besides, that was exactly her property; the testator meant it so ; he called it hers ; treated it as hers ; and we look to these circumstances to learn, whether this is not what he described, by the language made use of in the will. If this is not so, then this provision for his wife, can not take effect.

Were it not for the peculiar views of our courts, as expressed in Dibble v. Hutton, Griswold v. Penniman, Whittlesey v. McMahon, and The Fourth Eccl. Soc. of Middletown v. Mather, that property situated as this is, can not be considered to be hers, either at law or equity, it would be hers, independent of the will. It would certainly be so, everywhere else, and ought to be here. But our courts do not go so far as to prevent the husband from treating it as hers, and giving it to her by will.

It was claimed, by the appellee’s counsel, that this legacy was not specific, but a mere general gift, of so much in value. We do not so consider it. It is specific and exclusive, and if the property, or its substitute, having the same name, can not be found, we have no hesitation in saying, Mrs. Spencer will take nothing by this clause of the devise. So, if value were the thing given, we would ask, at what time is the value to be computed,—the time of the marriage, the date of the will, or the death of the testator ? and what is the rule of valuation ? the principal, or the principal and its interest ? It appears to us, the intention of the testator can not be accomplished, by considering the gift as one of value. On the other hand, such a construction might manifestly disappoint him, as if half the specific property had been lost, or the whole of it had greatly increased in value. All he intended was, that their marriage should not be held to transfer her property, principal or interest.

Nor do we think there is any doubt, provided the language of the will is held to describe the property of the notes' and their avails, that the interest on the avails is not excluded, by the description, but is included; for, if the notes themselves would have passed by the description, any unpaid interest would have passed, for the principal and interest together would make the notes; the interest is mere increment, and we believe that it is a sound principle of law, that, until the accruing interest on loans, or the accruing profits on stock, have become separated from the principal in one way or another, they pass with the principal itself, and have themselves no distinct name or existence, unless the language is quite explicit.

Besides, in this case, the parol proof shows, the testator treated all this property, principal and interest, alike, as her property, as the very thing he describes in the gift to her, when he gives her all of it. It is not to be reduced, by separating from it its enhanced value, whether that consists in uncollected interest, undeclared profits, or anything else which is merely accessary to the principal, and is, in common parlance, a part of it: and this, the appellee’s counsel insist, is the language of this devise, that this accruing interest or profit is separated. They dwell, with emphasis, on the last words of this clause, “and all the property she brought with her, at the time of our intermarriage.” These words, they insist, are definite, and, ex vi termini, exclude all interest and profits subsequent to the marriage, although they constitute, as yet, a part of the principal itself; and, on this ground, they say, that no parol proof can be received, to show that the testator intended this interest or profit should be included, in the language used in the will. We are satisfied, these words are not' words of exclusion, but of description, and that the testator, by the language used, gave his widow, all her property indiscriminately, whatever was its form, or its value, which she brought with her, and which he had always treated as hearing that description. The reference to the time of marriage, is one to which we attach no special importance. If we were to look at that period alone, we should find nothing for the will to operate upon. We prefer, therefore, to consider the word property, as embracing all that she brought, whether it be principal or interest, and all which bore the name, and was considered and treated by them as the property, which she brought with her.

In this opinion, the other judges concurred.

Decree of probate disaffirmed.


author: Church, C. J. Ellsworth, J.

text:
    Goodspeed vs. The East Haddam Bank.
    An action on the case, for a vexatious suit, may be sustained against a corporation aggregate.
    Therefore, where the plaintiff brought such action against an incorporated bank, alleging, that the defendants, without probable cause, and with a malicious intent, unjustly to vex, harass, embarrass and trouble the plaintiff, commenced by writ of attachment, and prosecuted against him, a certain vexatious suit, and after the plaintiff, on the trial of the cause, had produced all his evidence, the defendants moved for a non-suit, which was granted by the court, on the ground, that the defendants were not liable for such cause of action ; it was held, that such non-suit must be set aside, and a new trial granted. (Two judges dissenting.)
    This was an action on the case, for a vexatious suit, brought against the East Haddam bank, described in the plaintiff’s declaration, as a “ corporation, established by the laws of the state of Connecticut, with power to sue and be sued.” The declaration alleged, that the defendants, on the 24th day of January, 1849, without probable cause, and with a malicious intent unjustly to vex, harass, embarrass and trouble the plaintiff, caused to be issued against him, a writ of attachment, in due form of law, directed to the sheriff of Middlesex county, his deputy, or either constable of the town of East Haddam, in said county, commanding them to attach, to the value of five thousand dollars, the goods or estate of the present plaintiff, and for want thereof, to attach his body; alleging in their declaration, in said suit, that the plaintiff had made certain false, deceitful and fraudulent representations, with the intention of defrauding, and whereby the plaintiffs in said suit had been defrauded, to their damage, to the amount of five thousand dollars. It then recited the writ and declaration, which were founded on certain alleged fraudulent representations, made for the purpose of procuring the discount of certain notes by said bank, the makers and endorsers of which were insolvent, at the time of such discount, and so known to be by the plaintiff; and proceeded to allege, that, before the supe rior court for the county of Middlesex, on the fourth Tuesday of February, 1850, said bank still prosecuting said suit, with the same intent as before averred, the defendant therein, upon a full trial of said cause, upon the general issue, by a verdict of the jury and the judgment of said court, was found not guilty, and wholly acquitted of the charges and pretended causes of action in said suit, and recovered a judgment therein, for his costs. The declaration contained an allegation of the want of probable cause, and concluded with the usual averment of damage to the plaintiff.
    The cause came on for trial before the jury, at Haddam, at the August term, 1852.
    The plaintiff, to prove the allegations in his declaration, introduced- in evidence the record of the court in the cause referred to in his declaration, showing the institution and prosecution of said suit, by the defendants, and the final determination thereof, in favor of the present plaintiff; and to show, that said suit was instituted and prosecuted by said bank, without probable cause, and maliciously, to the injury of the plaintiff, several witnesses were introduced, and also the record of the court in the cause referred to, in the plaintiff’s declaration. After the plaintiff had produced all his evidence, and rested his case, the defendants moved for judgment, as in case of nonsuit, and the court being of opinion, that the plaintiff had failed to make out a prima facie case, granted the motion of the defendants, and ordered a judgment, as in case of nonsuit, to be entered in said cause.
    The plaintiff moved to set aside such -nonsuit, which the court refused to grant. Whereupon, the plaintiff, by motion in error, brought the case before this court.

      Baldwin and Bulkeley, with whom were Tyler and Culver, in support of the motion,
    contended, 1. That the evidence showed, that the suit of the bank against the present plaintiff, was commenced without any cause of action, and that the plaintiffs must have known, they had-no cause of action, which is enough to sustain the present suit, if such suit can be maintained against a corporation. Ives v. Bartholomew, 9 Conn. R., 309. Whipple v. Fuller, 11 Conn. R., 582.
    2. That wherever a corporation do an act, or direct it to be done, within the scope of their corporate powers, they are liable for the consequences of such act, if it be of a (^tortious nature, and to the prejudice of others. Yarborough v. Bank of England, 16 East, 6. Beach v. Fulton Bank, 7 Cowen, 485. Foster v. Essex Bank, 17 Mass., 503. Riddle v. Proprietors Locks and Canals, 7 Mass., 187. Chesnut Hill Turnpike v. Rutter, 4 Sar. & Rawle, 15. Merrills v. Tariff. Mg. Co., 10 Conn. R., 384. Angell & Ames, 207, 218-225. Ejectment and trespass will lie against them. Angelí & Ames, 102, 103. Dater V. Troy Turnpike & R. R. Co., 2 Hill, 630. Precinct in Rehoboth v. Catholic

      Congregational Church, 23 Pick., 139. Bloodgood v. Mohawk & Hudson River R. R. Co., 18 Wend., 9. Smith v. Birmingham Gas Light Co. 1 A. & E., 526. Eastern Counties Railway Co. v. Brooks, 2 Eng. Law & Equity, 406.
    3. That a corporation is responsible for the acts of its agents, in case, or even in trespass, if the acts are directed, sanctioned, or approved by it. Angell & Ames, 132, 174, 175, 403, 404. Life & Fire Ins. Co. v. Merchants Ins. Co., 7. Wend., 31. Bank Commis. v. Bank of Buffalo, 6 Paige, 497. Ward v. Sea Insurance Company, 7 Paige, 294. Underwood v. Newport Lyceum, 5 B. Monroe, 138. Rochester White Lead Co. v. City of Rochester, 3 Comstock, 469. 1 Sandford Sup. Ct., 222. New York v. Bailey, 2 Denio, 433. Thayer v. Boston, 19 Pick., 515. Clark v. Washington, 12 Wheaton, 40. And that, too, even though the acts were malicious and illegal. Hooker v. New Haven & Northampton R. R. Co., 14 Conn. R., 146. Goodloe & Smith v. The City of Cincinnati, 4 Ham., 500. McCombs v. Town Council Akron, 15 Ohio, 476. Hall v. Conn. River Steamboat Co., 13 Conn. R., 324. Merrils v. Tariff. Mg. Co., 10 Conn. R., 384.
    4. That a corporation, having the power of suing, is responsible for the improper exercise of that power, to the prejudice of others, in an action for a vexatious suit.

      Dutton and W. D. Shipman, contra,
    contended, 1. That this action could not be sustained, without proof, not only of want of probable cause, but of malice. Both must concur. Malice is the gist of the action. 1 Sw. Dig., 492. 2 Greenl. Ev., 453. Farmer v. Darling, 4 Burr, 1971. Stone v. Crocker, 24 Pick., 81-83. Bell v. Graham, 1 Nott & McCord, 278. Arbuckle v. Taylor, 3 Dowl., 160. Turner v. Turner, Gow’s R., 20. Cohen v. Morgan, 6 D. & R., 8. Commonwealth v. Snelling, 4 Pick., 321, 350. Mitchell v. Jenkins, 5 B. & Ad., 588, 594. Ives v. Bartholomew, 9 Conn. R., 309. Stone v. Stevens, 12 Conn. R., 219.

      2. That a corporation, from its very nature, can not entertain malice. It can not commit a crime. It can not- be indicted for a crime or a misdemeanor. State v. Great Works Mill & Manuf. Co., 20 Maine, 41. McClelland v. Bank of Cumberland, 24 Maine, 566.
    3. That no case can be found, where an action has been sustained against a corporation, for the willful or malicious acts of its agents. Reference to some of the strongest cases, where actions for torts have been sustained against these artificial persons, will show, that they have not been held liable, where malice was essential to maintain the cause of action. Ángel! & Ames, sec. 311, and cases there cited.
    4. That a corporation is not liable for the unauthorized and unlawful acts of its agents or officers, though done co-lore officii. Angelí & Ames, sec. 311, and cases there cited. Vanderbilt v. Rich. Turnpike Co., 2 Comstock, 479. Thayer v. Boston, 19 Pick., 516, 517. State v. Great Works Mill & Manuf. Co., 20 Maine, 41. Salem v. Gloucester Bank, 17 Mass., 1. Mayor of Albany v. Cunliff, 2 Comstock, 105.
    5. That, from the relations of the directors of the East Haddam Bank to the corporation itself, an unfounded and malicious suit, brought by such directors, raises no presumption that it was authorized by the corporation itself; because, 1. They do not* derive their authority to bring suits, from any particular instructions of the stockholders, either expressed or implied. 2. The duties of the directors are prescribed by the charter. 3. The stockholders can not know anything about the character of the suits which the directors may bring, or the propriety of continuing or discontinuing them. They have no control over the directors, in any such matter. Fox v. Northern Lib., 3 Watts & Sergt., 103, 106.
    6. That the directors are the agents of the corporation, receiving their powers from the charter, and, if they do a willful or malicious act, they exceed their powers, lose sight of the business of the corporation, and no longer act as its agents ; and, in such case, the corporation is no more liable for their act, than is an individual principal, for the willful, malicious, and unauthorized acts of his agent. Angell, & Ames, 388, 299. Wright v. Wilcox, 19 Wendell, 343. Fox v. Northern Lib., 3 Watts & Serg., 103, 106. Croft v. Alison, 4 B. & Ald., 590. Macmanus v. Cricket, 1 East, 106.
    7. That the part of the evidence which consists of the acts and declarations of the officers of the bank, not made communicato consilio, is inadmissible, to affect the corporation. Angelí & Ames, sec. 309, and cases there cited.
    8. That the facts found upon the record, show neither want of probable cause, nor malice, in the directors, but the fair inference to be drawn from them is, that they acted in good faith.
   Church, C. J.

This action is based upon the provisions

of our statute, entitled, An act to prevent vexatious suits,” and is subject to the same general principles as are actions on the case, for malicious prosecutions, at common law.

The plaintiff alleges, that the defendants, the East Had-dam Bank, a body politic and corporate, without probable cause, and with a malicious intent, unjustly to vex, harass, embarrass, and trouble the plaintiff, commenced, by a writ of attachment, and prosecuted against him, a certain vexatious suit or action for fraudulent representations, to the injury of said bank, and which action resulted in a verdict and judgment against the bank, and in favor of the present plaintiff.

On the trial of this cause, by the superior court, the defendants moved for a nonsuit, on the ground that the plaintiff, by his evidence, had failed to make out a prima facie case ; which motion the court granted, and judgment of nonsuit was entered against the plaintiff, which he now moves to set aside.

The judgment of the superior court, in granting the non-suit, as we understand, was founded solely upon the ground, that a corporation aggregate was not, bylaw, liable for such a cause of action as was set up by the plaintiff, in his declaration : at least, no other ground of nonsuit or objection to the plaintiff’s action has been argued before us. And, therefore, irrespective of the evidence detailed in the motion, we confine ourselves to what we suppose to be the sole question in the case.

We assume, that the plaintiff has sustained the damage he claims, by reason of the prosecution of the vexatious suit, and the question is, has he a legal remedy against the bank ?

The claim of the defendants is, that the remedy for this injury, is to be sought against the directors of the bank, or the individuals, whoever they might have been, by whose agency the vexatious suit was prosecuted, and not against the corporation. We think, that, to turn the plaintiff round, to pursue the proposed remedy, would be trifling with him and with his just rights, and would be equivalent to declaring him remediless ; and, in this case, at least, that there was a wrong where there is no remedy. It is notorious that, ordinarily, the action of bank directors is private,—that their records do not disclose the names of the individuals supporting or opposing any resolution or vote, and if they do, that the offending persons may be irresponsible and insolvent. The language of Tilghman, C. J., in a case very similar to the present, in which it was urged, that a corporation was not liable for a suit, but only the individuals committing it, is applicable here. “ This doctrine,” he said, “ was fallacious in principle, and mischievous in its consequences, as it tends to introduce actual wrongs and ideal remedies ; for a turnpike company might do great injury, by means of laborers having no property to answer damages,” &c. 4 Sarg. & Rawle, 16. To the same effect is the language of Shaw, C. J., in the case of Thayer v. Boston, 19 Pick., 511. He says, “The court are of opinion, that this argument, if pressed to all its consequences, and made the foundation of an inflexible, practical rule, would often lead to very unjust results.”

Still more explicit is the opinion of the court, in the case of The Life and Fire Insurance Company v. Mechanics’ Fire Insurance Company, 7 Wend., 31. There, as here, it was contended, that the act was unauthorized, and must therefore be considered as the act of the officers’of the company, and not of the company itself. And the court says, “ This would be a most convenient distinction for corporations to establish : that every violation of their charter or assumption of unauthorized power, on the part of their officers, although' with the full knowledge and approbation of the directors, is to be considered the individual act of the officers, and is not to prejudice the corporation itself. There would be no possibility of ever convicting a corporation of exceeding its powers, and thereby forfeiting its charter, or incurring any other penalty, if this principle could be established.”

The real nature, as well as the law, of corporations, within the last half century, has been in a progress of development, so that it has grown up, from a few rules and maxims, into a code.. In the days of Blackstone, the whole subject of corporations, and the laws affecting them, were discussed within the compass of a few pages; now, volumes are required for this purpose. These institutions have so multiplied and extended within a few years, that they are connected with, and in a great degree influence, all the business transactions of this country, and give tone and character, to some extent, to society itself. We do not complain this ; but we say, that, as new relations, from this cause, are formed and new interests created, legal principles of a prac-' tical rather than of a technical or theoretical character] must be applied.

And so, in the course of this progress, it has been. It was said by Lord Coke, “ that corporations had neither souls nor bodies;” arid by somebody else, “that they had no moral sense;” and from thence, or for some other equally insufficient reason, it was inferred, and so repeatedly adjudged, that they could not be subjected in actions of trover, trespass, or disseisin, and indeed, that they could' not commit wrongs, nor be liable for torts, with a few exceptions, as we shall see.

Had Lord Coke lived in this age and country, he would have seen, that corporations, instead of being the soulless and unconscious beings he supposed, are the great motive powers of society, governing and regulating its chief business affairs; that they act, not only upon pecuniary concerns ; but, as having conscience and motives, to an almost unlimited extent, they are entrusted with the benevolent and religious agencies of the day, and are constituted trustees and managers of large funds promotive of such objects.

The views of the old lawyers, regarding the real nature, power, and responsibilities of corporations, to. a great extent, are exploded in modern times, and it is believed, that now, these bodies are brought to the same civil liabilities as natural persons, so far as this can be done practically, and consistently with their respective charters. And no good reason is discovered, why this should not be so ; nor why it can not be done, in a case like this, without violating any sensible or useful principle.

And although it was truly said, and for obvious reasons, that corporations could not be punished corporally, as traitors or felons, yet they may be, and have often been, subjected to fines and forfeitures, for malfeasance, and even to the loss of corporate life, by the revocation of their charters. And 'now it seems to be generally admitted, that they are civilly responsible, in their corporate capacities, for all torts which work injury to others, whether acts of omission or commission ; for negligence merely, and for direct violence. Yarborough v. Bank of Eng., 16 East, 6. Beach v. Fulton Bank, 7 Cowen, 436. Foster v. Essex Bank, 17 Mass., 503. Riddle v. Proprietors of Locks and Canals, 7 id., 187. Chesnut Hill Turnpike v. Rutter, 4 Sarg. & Rawle, 16. 4 Hammond, 500, 514. 10 Ohio Rep., 159. Dater v. Troy Turnpike Co., 2 Hill, 630. 23 Pick,, 139. 2 Bl. Com., 476. Ang. & Ames, 392. 2 Kent Com., 290. 1 Sw. Dig., 75. 15 Ohio Rep., 476. 18 id., 229. And indeed, no actions are now more frequent, in our courts, than such as are brought against corporations, for torts, either in case or trespass. Hooker v. New Haven & Northampton Canal Co., 14 Conn., 146, and the cases there cited, and many others since reported. In a late case in England, it has been adjudged, adversely to former opinions, that an action of assault and battery, may be sustained against a corporation. Eastern Counties Railway Co. v. Brooks, 2 Eng. Law & Equity, 406. And it was decided long ago, that a corporation was liable to an action, for a false return to a writ of mandamus, alleged to have been made falsely and maliciously. 16 East, 8. 14 Eng. Com. Law, 159. 3 Mees. & Wels. 244. Ang. & Ames, ch. 10, sec. 9.

In all the cases, wherein it has been holden,that corporations may be subjected to civil liabilities for torts, the acts charged as such, have been the acts of their constituted authorities, either the directors, or agents, or servants, employed by them. We do not intend here to discuss or decide the frequently suggested questimi, how far, or when a principal, whether an individual person, or a corporation, becomes responsible for the wilful or malicious act of his servant or agent, as distinguished from his mere negligence, although it has been brought into the argument of this case, because we do not admit, that the present case falls within the operation of the rule of law on this subject, even as the defendants claim it.

The truth is,' the action complained of, as vexatious, was instituted by the bank, in the name of the bank, and, as should be presumed, in just the same way and by the same agencies and means, as all other suits by these institutions are commenced and prosecuted, and nothing appears here, showing any different procedure than is usual, in actions by corporations. The actión was brought, for the sole benefit of the bank, for the recovery of money to which the bank was entitled, if anybody, and for an injury sustained by the bank, in its corporate capacity. The bank, by its charter, and the general laws, had power to sue for such a cause of action ; and what seems to us yet more conclusive, is, that if this suit was originated by the misconduct of directors, or any officer of the company, it has never been repudiated, and may, by the acquiescence of the bank, be considered as sanctioned by it. Ang. & Ames, ch. 10, sec. 9. No act of agency appears here, which does not appear in all suits brought by corporations, and nothing to show, that any individuals are, or ought to be, made responsible for the institution and prosecution of the groundless suit, as distinct /rom the corporation itself.

The doctrine, that principals are not responsible for the wilful misconduct of their agents, as seems to have been sanctioned in the cases of McManus v. Cricket, 1 East, 106 ; Wright v. Wilcox, 19 Wend., 343; Vanderbilt v. Richmond Turnpike Co., 2 Comstock, 470; but denied by Chief Justice Reeve, in his Domestic Relations, 357, we think has never been applied to such a case as this, but only to the acts of agents or servants, properly so called ; or such as act under instructions and a delegated authority,—persons whose duty it is to obey, not to control; as attorneys, cashiers, or others employed by the corporation. The president and directors of a bank, instead of being mere servants, are really the controlling power of the corporation,—the representatives, standing and acting in the place of the interested parties. Indeed, they are the mind and soul of the body politic and corporate, and constitute its thinking and acting capacity. In the case of Burrell v. The Nahant Bank, 2 Met., 163, Shaw, C. J., expresses and defines the true rule of appreciating the character and powers of bank directors. He says : “We think the exception takes much too limited and strict a view of the powers of bank directors. A board of directors is a body recognized by law. By the laws of these corporations, and by the usage, so general and uniform, as to be regarded as a part of the law of the land, they have the general superintendence and active management of all the concerns of the bank, and constitute, to all purposes of dealing with others, the corporation. We think they do not exercise a delegated authority, in the sense to which the rule applies to agents and attorneys,” &c. The same principle is very distinctly recognized, in the cases of Bank Commissioners v. Bank of Buffalo, 6 Paige’s Ch., 502, and Life and Fire Ins. Co. v. Mechanics' Fire Ins. Co., 7 Wend., 31. It has been said, that the stockholders constitute the corporation. It may be so, to the extent to which they have the power to act,—and this is only in the choice of directors, and no more. Beyond this, they can only be considered, as the persons for whose ultimate individual interests the corporation acts. The directors derive all their power and authority from the charter and laws, and none from the stockholders.

But the fear is expressed, that, by thus considering and treating the character and acts of the directors of a bank or other corporation, the stockholders are subject to loss, without fault of their own. This may to some extent, be true ; but the protection of the-law in this matter, is not to be confined to stockholders; the public and strangers have rights also. The stockholders are volunteers, and they have consented to assume the risk of the faithful or unfaithful management of the corporation. If, in this case, one of two innocent persons or classes is to suffer, which should it be,—that one which is brought in to suffer loss, without its consent or power to prevent it, or the one which has created the power and selected the persons to enforce it ?

But, after all, the objection to the remedy of this plaintiff against the bank, in its corporate capacity, is not so much, that, as a corporation, it can not be made responsible for torts committed by its directors, as that it can not be subjected for that species of tort, which essentially consists in motive and intention. The claim is, that, as a corporation is ideal only, it can not act from malice, and therefore, cannot commence and prosecute a malicious or vexatious suit. This syllogism, or reasoning, might have been very satisfactory to the school-men of former days ; more so, we think, than to the jurist ■who seeks to discover a reasonable and appropriate remedy for every wrong. To say that a corporation can not have motives, and act from motives, is to deny the evidence of our senses, when we see them thus acting, and effecting thereby results of the greatest importance, every day. And if they can have any motive,'they can have a bad one,—they can intend to do evil, as well as to do good. If the act done is a corporate one, so must the motive and intention be. In the present case, to say, that the vexatious suit, as it is called, was instituted, prosecuted, and subsequently sanctioned, by the bank, in the usual modes' of its action; and still to claim, that, although the acts were those of the bank, the intention was only that of the individual directors, is a distinction too refined, we think, for practical application.

It is asked, how can the malice of a corporation be proved ? It must be proved, it is said, as well as alleged, in an action for a malicious prosecution,- as a distinct and essential fact; and the declarations and admissions of individual members', whether directors or others, are not admissible to prove it. True, malice must be proved, and, as we suppose, very much in the same manner as it is proved in other cases, of a similar nature, against individual persons. The want of probable cause of action is proof of malice, and for aught we know, also, the records of the bank may show it. It is enough to say, in this, as in all other cases, that if the plaintiff can not, in some legitimate way, prove the malice he has alleged, he can not recover; but we have no right to assume it as a legal principle, that it can not be proved. We do not know that it has ever been adjudged, that a corporation is civilly responsible for a libel. But,.among the great variety and objects of these institutions, it is probable that the newspaper press has come in for its share of the privileges supposed to be enjoyed under corporate powers. Proof of the falsehood of slanderous charges, is evidence of malice, and which must, as in this case, be proved. But, would it be endured, that an association, incorporated for the purpose suggested, could, with impunity, assail the character and break down the peace and happiness of the good and virtuous, and the law afford no remedy, except by a resort to insolvent and irresponsible type-setters, and for no better reason, than that a corporation is only an ideal something, of which malice or intention can not be predicated ? And if, as we have sug- ' gested, the directors are, for all practical purposes, the corporation itself," acting, at least, as its representatives, we can see no greater difficulty in proving their motives good or bad, than in thus proving the motivéis of other associated or conspiring bodies. We are sure, that this objection of the defendants, was not discovered, or was not regarded as sufcient, nor the difficulty of proving malice upon a corporation, felt, when the case of Merills v. The Tariff Manufacturing Co., 10 Conn. R., 384, was tried at the circuit, and discussed arid decided by this court. That was an action against a corporation, for a malicious injury, and the sole question in this court was, whether, by reason of the malicious intent, the company was liable, for aggravated or vindictive damages ; and it was holden to be thus liable, in a very elaborate opinion, drawn up, and strongly expressed, by Huntington, J.

The interests of the community, and the policy of the law demand, that corporations should be divested of every feature of a fictitious character, which shall exempt them from the ordinary liabilities of natural persons, for acts and injuries committed by them and for them. Their immunities for wrongs are no greater than can be claimed by others, and they are entitled to an equal protection, for all their rights and privileges, and no more.

For the reasons suggested, a majority of the court is of opinion, that the nonsuit granted by the superior court, should be set aside, and a new trial granted.

In this opinion, Waite, L, concurred.

Ellsworth, J.

I do not feel quite satisfied, that the plaintiff can recover against the defendants, for a malicious suit brought, in fact, by the directors of the bank. Certainly, no such action has been found in the books, though I admit there are analogous cases which show, that courts have gone very far in subjecting corporations for wrongs, by their agents, but I think there are none, going to the extent now claimed.

An indispensable requisite, in an action for a malicious suit, is, malice,—malice in fact,—a wicked criminal purpose. An unsuccessful suit is not sufficient. It must have originated in malice ; and this idea of actual, as contradistinguished from legal, malice, is, in my judgment, deserving of the highest consideration. It gives character to the action. The language of Greenleaf, 2 Greenl. Ev., 367, is, “ To sustain this averment, (malice,) the charge must be shown to have been wilfully false.” Now I ask, in view of this essential requisite, if any such malicious intent can be said to belong to a body of stockholders, (the corporation,) whose affairs are conducted by their agents, under the provisions of the charter of the company, and who, themselves, are in no way or manner really implicated in the supposed malicious intent ? Again I ask, whose malice is the ground of the action ? not the malice of the president and cashier,—not that of the directors ; this is not even admissible in proof against the company. Whose malice then ? certainly not that of the ideal corporation; for this is a mere fictitious entity, and can not entertain malice. It must never be forgotten, that malice, as already said, is the very ground and gist of the action, and no case has been read to us, of a recovery against a corporation, where there was not a perfect cause of action, independent of any malicious intention. Doubtless the directors may be guilty of malice, and of a malicious injury ; but to proceed further, and subject stockholders, for their malice, is quite another question.

It is likewise to be kept in mind, that this action does not belong to that class of actions against corporations, or other principals, for injuries sustained, through a false confidence reposed by strangers in the supposed authority of agents. This action is for an original unauthorized wrong of the directors, and is in no way the result of any false confidence. It is a mere malicious contest between the directors themselves. The stockholders may well say : We can not be involved in this malicious contest. We entertain no malice against Mr. Goodspeed, and no one can entertain it for us.

I think it has been incorrectly assumed, by counsel, that the malicious suit was brought by the East Haddam Bank. It was, in fact, brought by the major vote of the directors. They made use of the company name, for their own malicious purpose, while they were only intrusted with the powers delegated, for a lawful and laudable purpose. The company do not at all admit, that they are represented in this instance,—no more than they would, had the directors voted that the cashier should inflict personal chastisement upon Mr. Goodspeed, wherever he could find him.

But if this objection is unsound and capable of being surmounted, there is still another, by no means to be overlooked. The act of the defendants is conceded to be willful and designed ; indeed, this is the very ground of the action—a malicious wrong. But no principle of law is better settled, than that the principal is not liable for the intentional torts of the agent. For his negligence he is liable, but nothing more. To go beyond this, and make him liable for criminal conduct, though in a civil form, would jeopardize the safety of all employers, whether corporations or others, or would prevent the employment of all agents, because of the great responsibility. It may be politic, to hold principals to greater carefulness on the part of their agents, or servants, but this is all that has hitherto been found expedient or necessary. If now this admitted rule of law, as a general rule, is to be applied to this case, it puts an end to the controversy at once ; for a more palpable or willful wrong, or tortious act, can not be imagined, than the officers of a bank maliciously and without cause, using the corporate name to oppress and destroy a fellow-director. Of course, I do not say this is so, in this instance; but the plaintiff makes this assumption, in order to recover on this declaration. That the above principle of law is applicable to corporations, as well as to other principals, who employ agents, is most learnedly argued and' fully decided in the court of appeals of the state of New York. Vanderbilt v. The Richmond Turnpike Co., 2 Com., 481, which was the case of an intentional collision of steamboats in the harbor of New York.

Suppose, in the late catastrophe at Norwalk, the engineer had designedly run the train into the creek, to sink a steam-, boat, passing underneath ; would the company have been liable to the owners of the steamboat ? True, they would have been liable to the passengers in the cars, because they undertook to carry them safely to the end of the route ; but there is no such undertaking, as to strangers. Suppose the engineer had intentionally run over a man on the road, to break his bones ; would the company be liable ? Suppose the president and directors had themselves conducted the engine with the same intention, and had done the same injury, would the .company be liable ? Is a town liable for a malicious suit by its selectmen ? or a savings banlc, for the malicious conduct of its trustees ? I answer, in all these cases, no.

It is asked, will you not hold corporations to the same rule of justice and law, as you do all others ? I answer, yes, where the cases are parallel. Now, this interrogatory assumes two things, which are not entirely clear or conceded, viz., that you can pass by the only actual malice in the case, and assume malice in the stockholders, or corporation, who are avowedly ignorant and innocent; and further, that the principal is liable for the willful wrongs perpetrated by his agent. Now, I go for the same rule to all, and therefore, I hold, that those who, in fact, do the wrong, must answer for it. If a different view of the case is taken, and corpora-} tions are held liable for the malicious acts of the directors, and other inferior agents, I insist, that a different rule is made to apply to them from others, and that the property oí stockholders, vested under the exact limits and provisions of the charter, will be subjected to very great and alarming hazards.

These are, briefly, my views, expressed with no little distrust, since some of ray brethren feel well satisfied the plaintiff is entitled to recover.

In this opinion, Hinman, J., concurred. Storks, J., having tried the cause in the court below, was disqualified.

Nonsuit set aside, and new trial to be granted.