text:
    Hutcheson v. Heirs of McNutt.

      Chancery.

    Contract in writing, executed by one party only, stipulating to convey part of certain lands, the other party “being at one-half the expense, in land or otherwise, for procuring a title to the same,” payment of the expenses held a condition precedent, and to be paid as they were incurred, or right perfected.
    The party omitting to pay the expenses according to agreement, can not, after a lapse of years, be aided in equity against the forfeiture.
    A proposition to convey, upon receiving the proportion of the expenses, not complied with by immediate payment, no waiver of the forfeiture.
   This case was decided by Judges Pease and Burnet, in Madison county,' July, 1823. The whole case is set out in the opinion by Judge Burnet. No arguments of counsel were furnished.

The complainant sets out in his bill, that in December, 1799, James McNutt, since deceased, executed an instrument of writing under his hand and seal, in the following words : “Be it remembered, that I, James McNutt, of Madison county, and State of Kentucky, do covenant and agree with John Hutcheson, of the county of Monroe, and State of Virginia, to make over and convey to the said Hutcheson, his heirs, or assigns, the one-half of the land that I shall obtain in virtue of my contract with Charles Arbuckle, heir at law of Matthias Arbuckle, deceased, on a military warrant for four thousand acres, obtained by the said Hutcheson for the representatives of Matthew Arljuckle, deceased, on the said Hutcheson being at one-half the expense, in land or otherwise, for procuring a title for the four thousand acres, to which agreement I bind myself, and heirs, firmly by these presents. Sealed with my seal, and dated this 23d day of December, 1799.” The bill also states, that in July, 1800, *the said James McNutt caused the said warrant to be located on four tracts, of one thousand acres each, on Darby creek. That afterward, to wit, in October, 1801, the said Arbuckle and McNutt made a division of the said tracts of land, in pursuance of their contract, by which the said McNutt received two tracts, containing together fifteen hundred and fifty acres, as his share. That afterward, in July, 1806,' the complainant, by his agent, called on McNutt, requested a conveyance of half the said land, and offered to pay him the one-half of any necessary expenses he had been at. That McNutt hath obtained patents for the said land, in his own name, and hath refused to convey the moiety thereof to the complainant. ‘

The bill also charges, that in July, 1801, the said James MicNutt passed his obligation to the complainant, to make him a clear and sufficient deed to two hundred acres of land, in the Northwestern Territory, in that part laid off for the officers and soldiers of the Virginia line — that the land should be of the second quality — that the title should be made as soon as grants could be obtained, but that this contract was on the express condition, that if the warrant of James Thompson for 2,666 66-100 acres, which had been assigned by the complainant to Henry Banks, should be completely put in the possession of, and secured to the said Thompson, the contract was to be binding, otherwise to be void. The bill further ■states, that the said warrant was obtained from H. Banks, and put into the possession of McNutt, and that grants had been obtained for the land. That the said James McNutt died in 1809, and that the defendants are his heirs at law. The complainant prays for a specific performance, and for general relief.

The defendants, by their answer, admit that their father James McNutt, executed the contracts of December, 1799, and July, 1801; that the lands were located, divided, and partitioned, as is stated in the bill; but they allege that under the contract of 1799, the complainant did not advance the moiety of the expenses, and that under the contract of 1801, he did not procure the warrant of Thompson, and secure the same, as he was bound to do.

It appears from the testimony and exhibits, that in October, 1801, McNutt wrote to the complainant, advising him oí what he had done — stating the amount of his expenses in procuring the title to Arbuckle’s land, and complaining that the warrant of Thompson had not been obtained. That in September, 1802, he wrote to complainant, stating an estimate of his expenses — that there would *be five hundred and fifty acres coming to complainant when he paid the half of the expenses, and urging him to send him money, as he was in need. It appears that the complainant took no notice of these communications, but suffered the matter to sleep till 1806, when he sent his son to demand a conveyance, and tender a moiety of the expenses. That McNutt, at that time refused to receive the money, or make the conveyance. That all the expenses of locating and procuring a title to the land, on Arbuckle’s warrant, had been advanced by McNutt. That he had also paid the taxes from 1800 to 1806 : and it does not appear that complainant has at any time paid to McNutt, or to any other person, a single cent on account of this land. It also appears that on the division between Arbuckle and McNutt, in October, 1801, the former gave the latter fifty acres and fifty dollars for the choice of tracts. That the complainant did not sign either of the contracts, or enter into any other obligation binding him to a performance. It also appears, that the warrant mentioned in the contract of 1801, was obtained by the exertions and at the expense of Thompson and McNutt. That the complainant refunded to Thompson the money expended by him. That McNutt in 1802 recognized the claim on this contract, soliciting a remuneration for his trouble and expense. That the warrants mentioned in this contract have been located, and the lands patented.

The claim of the complainant to a specific execution of these several contracts will be considered separately.

The first question presented on the contract of December, 1799, is whether the payment of a moiety of the expenses be not a condition precedent.

McNutt covenanted to convey to Hutcheson the one-half of the lands, “on the said Hutcheson being at one-half of the expense.” It is said that the participle, doing, performing, etc., prefixed to a covenant, renders it a mutual covenant, 2 H. Black. 1315; but when the covenant goes to the whole consideration, on both sides (as itdoes in the case before us), it is a condition precedent. 1 Fonb. 382. This contract was not signed by both parties, so as to give mutual remedies. It is the contract of McNutt alone. Should the defendants therefore execute the conveyance before the payment of the money, they are left without recourse ; but not so with the complainant, who, by paying his money in pursuance of the contract, perfects his right to call for a conveyance. Equity will always respect the intention of the parties, rather than the literal meaning of their words. The design in this case must have been, *that the complainant should pay the money, as the meritorious cause of the conveyance; otherwise, as the complainant is under no promise or contract to pay, the defendants might be required tO' part from the land without the possibility of receiving the money, 1 Stra. 571. The case of Pordage v. Cole, 1 Saund. 320, is in confirmation of this doctrine; for although the plaintiff, in that case, had judgment, itwas'on the ground that both parties had sealed •the contract, and had mutual remedies against each other ; but the court observed that it might have been otherwise, if the specialty had been the words of the defendant only, and not the words of both parties, by way of agreement. A time also had been fixed for payment, which is a circumstance entitled to weight, and is stated, in a npte to that-authority, as the principal ground of the judgment. A reference to the natural order of the transactions, as to time, which form the substance of this contract, will show that the payment must be a condition precedent. When the contract was made the warrant had not been located; the fee'of the land was in govvernment, and consequently it was necessary that an entry and a survey should be made, and a patent obtained. These preparatory steps were to be taken before the complainant could have a right to demand a deed; but these steps could not be taken without incurring the expense which the complainant was to pay. This payment, then, was necessarily to precede the conveyance, and until the complainant saw proper to meet it, he voluntarily, by his own laches, rendered it impossible for McNutt to execute a conveyance, as then McNutt could not pass a title until he obtained a patent, and .as the patent could not be obtained without the payment of the •expense, that payment was unavoidably to precede the conveyance, ■and must be a condition precedent.

In the case of Jones v. Barkley, Doug. 691, it is said by Lord Mansfield, that the dependence or independence of covenants was to be collected from the evident sense and meaning of the parties, .and that however transposed they might be in the deed, their precedence must depend on the order of time, in which the intent of the transaction requires their performance.

The application of this rule to the case in hand is manifest. The expense of procuring the title must, in the nature of things, arise, before the title is secured; and until this be done, McNutt can be under no obligation to convey.

The cases of Thorp v. Thorp, 12 Mod. 455; Duke of St. Albans v. Shore, H. Black. 270, and Goodison v. Nunn, 4 Term, 761, throw *much light on this question, and. will be found to support the principle contended for. In the last case Lord Mansfield says, the determinations in the old cases, on this subject, outrage common sense, and that he is glad to find they have been overruled ; that it would be absurd to say the purchaser might enforce a conveyance without payment, and compel the seller to have recourse to him, who perhaps might be an insolvent person.

Another question arising on this contract is, whether Hutcheson was not bound to advance his part of the expenses as they accrued, and whether, by neglecting to do so, he has not put it out of his power to perform the condition on his part. The nature of the transaction itself appears to be decisive on this point. McNutt, by his contract with Arbuckle, was to have a moiety of the land that should be obtained on a certain warrant; he was to locate the warrant, obtain the patent, and defray the half of the expense. He then entered into the contract we are now considering, by which he agreed to convey half'the land he might receive on his former contract to Hutcheson, provided he would be at half the expense oí procuring the title. No part of this expense was to go into'the pocket of McNutt. It was to be paid out to others, and it forms the whole consideration of the contract. The only benefit which McNutt could receive from this arrangement, was to be relieved from the inconvenience of raising the money that would be required to meet the expense, and for this, and this alone, he agreed to give up half the land.

It appears that the whole expense was less than one hundred dollars, which bore no comparison to the value of the property; consequently McNutt stipulated for no consideration that can be considered as a price for the land. He agreed to give it to the complainant without receiving a cent for his own use. . The only possible benefit, therefore, that McNutt could receive from the arrangement, was the aid of Hutcheson, in advancing the money that would be necessary in securing the title. If, therefore, he can be left to provide the whole amount of this expense, he may lose the only advantage that could have induced him to enter into the contract; he may be left to encounter all the difficulty and inconvenience which he seems to have been desirous of getting rid of, and to be relieved from which, formed the only motive that could have induced him to make the contract. The true consideration, then, must nave been the convenience of this advance, to secure which it was necessary to furnish the money as the expenses arose; for *by leaving McNutt to make the advance, he must suffer the very evil from which the contract was intended to relieve him ; and having once suffered it, he has lost the only benefit which he intended to secure. Had it been perfectly convenient for McNutt to make the advance, he would be chargeable with gross folly for stipulating as‘he has done, and equally so if he intended nothing more than to have the expenses refunded at some future day, as it might be convenient to Hutcheson.

From this view of the subject we are driven to the conclusion, that the consideration of this engagement was, not that Hutcheson should merely be accountable for these expenses, but that he should meet them as they might arise, so as to save McNutt from the inconvenience of an advance. The time of payment, therefore, is of the essence of the contract, and can not be dispensed with ; for we have seen that the consideration does not consist principally in the amount to bo paid, which is admitted to be a mere trifle, in comparison with the value of the property, but in the tim.e of payment.

Inasmuch, therefore, as the complainant did not advance the money, as he was bound to do, in consequence of which McNutt has been compelled to make the advance, and has thereby incurred all the inconvenience from which the contract was designed to relieve him, it has become impossible, in the nature of things, for the complainant to perform the condition or render to the defendants a satisfaction.

It is also a circumstance entitled to much weight, that this contract is not mutual. It is obligatory on McNutt, but not on Hutcheson. He was under no obligation to pay the money, or accept the land, but was at liberty to claim or abandon it at his pleasure-There ought, therefore, to be some period fixed for the determination of his will, otherwise he might keep the defendants in suspense indefinitely, and prevent them from improving or disposing of the property. It would be inconvenient and unequal for one party to be thus bound, while the other was at perfect liberty; and yet this consequence results unavoidably from any other construction than that which has been given, for if the complainant were not bound to make his election by advancing the money when the expenses accrued, there is no time fixed by the contract for the payment, and he may keep the defendants in suspense during his pleasure. This is the unavoidable consequence of an admission that the condition, on the part of Hutcheson, can be performed after the expenses have been incurred and paid by McNutt. This view of the subject leads *us to the same conclusion, that the payment is a condition precedent, and must be made at the time contemplated by the parties, and that .if it be not so made, the money can not be afterward paid, so as to save the condition.

In the case of Purkhurst v. Van Corland, 1 Johns. Ch. 282, Chancellor Kent recognizes the doctrine, that a court of equity will never decree performance where the remedy is not mutual, or one party is only bound by the agreement. This distinguished judge lays down the same principle in the case case of Benedict v. Lynch, Ib. 373, and refers to 2 Vern. 415 ; 1 School and Lefroy, 13; Bunb. 111 ; 5 Esp. 240; 11 Vessey, 592, as settling the point.

Another view may be taken of this contract, calculated to strengthen the conclusion already drawn.

McNutt covenants to convey to Hutcheson, on the said Hutcheson being at half the expense.” How can he be at half the expense, unless he pays the money as the expense accrues ? Paying a particular claim is one thing, and refunding the amount to him who may have paid it, is another. Suppose McNutt had been destitute of money, and the person to whom the.expenses were to accrue, refused to give credit, in consequence of which the title could not be perfected, would the complainant, in that case, have a right to exact performance from McNutt, or recover damages for his inability to perform ? The answer must be in the negative, and only one reason can be given in support of it, viz : that Hutcheson having refused to perform the condition, on theperformance of which McNutt had covenanted to convey, and having thereby rendered a performance impossible, would have forfeited his right to the contract and released McNutt from the obligation of his covenant. If this consequence would result from the inability of McNutt to meet the expenses, and the consequent loss of the land, it must be difficult to assign a reason why Hutcheson should be saved from th’e legal consequence of his laches, because McNutt or some other person was compelled to perform the condition in his stead. If the advance of this money was so much of an object to McNutt, as to induce him to make the contract in the first instance, we may presume that the same object might induce him, or that necessity might compel him to give a similar advantage to some other person, for the purpose of securing the land. Suppose this to have been the case, on what principle of justice or equity could Hutcheson, by offering to refund, exact the remaining moiety of the land. So far as his rights are involved, it certainly makes no difference whether *the land was lost to all the parties, for want of money to secure the title, or whether necessity required McNutt, on the failure of Hutcheson, to make a similar contract with some other person, or to suffer the inconvenience of raising the money himself. In either case he must have lost the entire consideration of his contract, and must necessarily be discharged from its obligation. Admitting, then, as the fact is, that McNutt advanced the whole expense, and thereby secured the title, Hutcheson can claim no merit on that account — his right is as completely lost as it would have been had the whole land been forfeited to Arbuckle by his failure. The merits of another can not be transferred to him; his claim must be supported by his own performance or fall by his laches.

The next question that arises is, whether this be a case that will authorize a court of chancery to relieve the complainant from the forfeiture incurred by his default.

It is said that in all cases of penalty, or forfeiture, equity will relieve, if compensation can be made, and the default be only in time. The true ground of relief in such cases, is to be found in the intention of the parties. Where, from the nature of the agreement, the penalty is only intended as a security that the consideration shall be performed, a court of equity may relieve, for notwithstanding they do so, they give the party that which he stipulated to receive, and therefore no injury is done ; but where the relief would destroy the substance of the contract, as if the thing stipulated be a collateral act, relief can not be granted, for no precise value can be affixed to such an act. In the case before us, the condition was the performance of an act to third persons, and the inconvenience resulting from the non-performancc can not be determined, and of course there is no criterion for fixing a compensation. The disappointment might have forced McNutt to a sacrifice equal to the then value of the land. Many cases are found in the books, in which parties have been relieved from the consequences of not performing their covenants at the precise time stipulated ; but they are cases in which performance could be done in conformity with the undertaking, and the parties sustained no injury thereby, and even in these cases the rule on which relief is granted has been very much narrowed. Newland on Contracts, 242; 4 Bro. 494; 4 Ves. 667, 686; 5 Ves. 720, 818; 13 Ves. 224.

The true doctrine appears to be, that a person who demands a specific performance, must show that he has been in no default, unless he can account for it by special circumstances; and if through *his owu negligence he can not perform the whole on his side, he can not compel the other side to a performance, because such performance would not be mutual. And for the same reason, when a man has trifled, or shown a backwardness on his part, equity will not decree a specific performance in his favor, especially if circumstances are altered. 1 Fonb. 384. In the ease before us there has been a gross default unaccounted for,. The complainant has trifled, the condition can not now be performed, and circumstances are materially altered. The truth of this will appear by a simple reference to dates, and to the change that has taken place, in the circumstances and value of the property. The contract was made in 1799 — the expenses were incurred in 1800. The complainant took no step, but remained wholly inactive till 1806, although informed of the amount of the expenses as early as 1802; and the land has increased in value, probably tenfold.

But may we not arrive at a satisfactory solution of this question by attending to the nature and extent of the condition on the part of Hutcheson. He was to be at half the expense of procuring the title. The term expense as used in this contract, ought not to be limited to the money disbursed, but should embrace the time, attention and labor, required to accomplish the object, for as these things were necessary, and are of value, they ought to be classed under the head of expenses. The title could not be secured without them, and in point of value they no doubt exceeded the amount of money paid. Hutcheson performed none of these acts, nor did he procure any other person to perform them. It is at this time impossible for him to perform them, and it is equally impossible to assess theirvalue. How, then, can he be entitled to relief.

Having disposed of the questions that arise on the contract, we come to those that are presented by the testimony. And first, do the letters of McNutt waive the laches of the complainant, and entitle him to the prayer of his bill.

In the letter of October, 1801, he states the division of the land between Arbuckle and himself, describes the quality of it, and informs complainant that he has paid the fees and taxes, amounting to nearly forty dollars. In the letter of September, 1802, he informs the complainant that he had sent the receipts for the surveying and office fees, and for one year’s tax. That there would be five hundred and fifty acres coming to the complainant, when he should pay his part of the expense ; he makes an estimate of the expense, and in the close he expresses a hope that the complainant will send him some money, as he is in want.

*From these letters it appears that in October, 1801, complainant was informed of the expense — that in September, 1802, the same information was repeated, coupled with a request to send the money, and an admission that on doing so there would be five hundred and fifty acres coming to him.

As these letters were written after the warrant had been located, and the laches of the complainant had taken place, it becomes liecessary to inquire, what impression they ought to make on the case. In the first place, it is more than probable that McNutt was ignorant of the true and legal construction of his contract, and that the admission was made under a mistake, arising from an ignorance of his right. We should be warranted in drawing this conclusion, from the tenor of the letters, and from the after conversation with the witness, J. Hutcheson. But if it were to be admitted, that the letters were written with a full knowledge of the true construction of the contract, and that it was the express intention of the writer to waive the laches, and to convey the land on receipt of the money, it would not vary the case, because the letter called for an immediate payment, and held out no offer of further credit. It was, therefore, the duty of Hutcheson to pay the money without further delay, and particularly so, as at the date of these letters it had been advanced more than two years. In 5 Ves. 720, Lord Kenyon .is represented as saying, that “ a party can not call on a court of equity for a specific performance, unless he has shown himself ready, desirous, prompt, and eager but it appears that Hutcheson took no notice of these letters till July, 1806, when he sent his son to demand the deed. This vexatious and unreasonable delay is wholly unaccounted for, and manifests a disposition to trifle with the subject, to a degree that can not be countenanced. The complainant seems to have consulted nothing but his own convenience ; he has Shown a backwardness that can not be overlooked. When these circumstances are connected with the fact, that the complainant was never bound, either by the contract or the letter, but was at liberty to claim or disclaim, at, his pleasure, it seems impossible to resist the conclusion, that he has forfeited any right that might have been set up under the letter. If he could lie still from that time till the year 1806, what limit are we to fix to his negligence? Holding in his hand the right to accept or reject the contract at his pleasure, and knowing that McNutt was in groat need of the money, he withholds his election, keeping the other party in suspense, till he finds the land had risen in value fifteen hundred ^dollars, or more, then he comes forward and demands a conveyance for the trifling consideration of thirty or forty dollars. At this time the' property, in the hands of the present holder, is estimated at many thousand dollars. The claim is certainly unreasonable, and one that no court of equity can, or ought to sustain.

The claim of the complainant to a specific performance on the contract, without the letters, or on the letter considered as a waiver of laches, and a revival of the contract, will be fully met and rebutted by the doctrine in Benedict v. Lynch, 1 Johns. Ch. 372. In that case the learned chancellor lays it down as an acknowledged rule in courts of chancery, that when the party who applies for a specific performance, has omitted to execute his part of the contract by the time appointed for that purpose, without being able to assign any sufficient justification for his delay, and when there is nothing in the acts or conduct of the other party that amounts to an acquiescence in that delay, the court will not compel a specific performance, He adds, that in the case before him the purchaser had paid nothing, but suffered defaults to accumulate from year to year, as if he had forgotten that he was under any obligation to pay, and that if the land had not risen in value, there was no reason to believe that the plaintiff would ever have attempted to raise the money. In that case the last installment was not due when the plaintiff tendered the whole purchase money, and filed his bill, yet the chancellor declared there was a gross negligence on the part of the plaintiff, that took away his claim to assistance.

In the case before this court, the default is much more striking — is wholly unaccounted for, and has not been acquiesced in; for should the letter of 1812 be considered as a waiver of the former laches, it was on the condition of immediate payment, and no inference can be drawn from it in favor of a delay, yet the plaintiff rested till 1806, and thereby incurred a greater default than had taken place before the letter was written, or than existed in the case just referred to.

Another question arising from the testimony is, whether the act of the complainant, in taking the warrant out ot the office and inclosing it to McNutt, can vary the case. It certainly can not, because in the first place it was done before the contract was made, and formed no part ot the consideration ; and secondly, because it was attended with no expense, and the labor was so inconsiderable that no pecuniary value can be affixed to it.

The next and last question which the evidence presents on this ^branch of the case, is, whether the complainant can claim anything in consequence of the payment of the, fifty dollars by Arbuckle for the privilege of his choice of tracts.

It will be recollected that this transaction took place in October, 1801, more than a year after the forfeiture of the contract, and almost a year before the letter of September, 1802, was written. A moment’s reflection, therefore, will show that it can not affect the case.

It is not necessary to notice the conversation, in January, 1806, between the witness, Isaac Hutcheson, and McNutt, as it amounts to nothing more than a proposition for a compromise, without acknowledging any right in the complainant or any obligation on McNutt. On the contrary, it denies the existence of such a right. A man may offer to buy peace on any terms, and shall not afterward be held to his proposition if it be rejected at the time.

On the whole, it appears manifestly that the complainant is not entitled to a specific performance of the contract of December, 1799/and that that contract ought to be delivered up and canceled.

Our attention will now be directed to the contract made in July, 1801. We have seen that this contract was for the conveyance of two'hundred acres of land, on this express condition, that a certain warrant therein described should be put in the possession of, and secured to James Thompson or his heirs ; but if this should not be done, that the contract should be void and of no effect. The complaint alleges in this bill, that the warrant was procured by him, and put into the possession of Thompson ; but from his own testimony it appears that the allegation is not literally true. As evidence on this point, he has relied on the letters of McNutt and Stewart, which state very clearly that the warrant was obtained by the labor, and at the expense of McNutt and Thompson, and that the complainant paid the bill of Thompson’s expenses after the warrant had been obtained. The same fact is clearly deduced from the deposition of Stewart, also relied on by the complainant. If his right, therefore, to a performance of this contract, were to depend entirely on his own performance oí the condition, he would unquestionably fail; but as McNutt and Thompson have both acquiesced in the failure, and have called on the plaintiff for the money expended by Thompson, and as in consequence of this acquiescence and demand he paid the money in 1802, and by so doing actually performed what the parties consented to receive as a substitute for a literal performance, it would seem from the doctrine in the cases above referred to, that neither McNutt nor his heirs can *now avail themselves of a technical breach. It is a circumstance oi weight, that there was neither backwardness nor delay on the part of Hutcheson after the proposition of 1802, but that he promptly paid the money which the parties had agreed to accept as a commutation for a literal performance.

The defendants have offered the deposition of Henry Banks, to whom the warrant had been assigned, by Hutcheson, and in whose hands it was when this contract was entered into. The object of this testimony was to show, that although Thompson has been put in possession of the warrant, it has not been secured to him or his heirs, agreeably to the letter of the contract. The witness states that the warrant in question was sent by him to Cuthbert Banks of Lexington, by whom it was handed over to Thompson, on an agreement that he should have it located, without prejudice to the claims oí the witness, and that whatever right, if any, the witness might have acquired, by the assignment of Hutcheson, should be secured to him. It does not appear that Hutcheson had an interest in the warrant, or an authority to sell it, and it would seem from the deposition, that Mr. Banks did not place much confidence in the goodness of his title, for one of the reasons which induced him to send the warrant to C. Banks, was to procure an assignment from Thompson, who, it appears, refused to make an assignment, and denied the power of Hutcheson to sell. But it is not necessary here to investigate, or settle the right of Henry Banks, nor would it be proper to do so. It is enough to know, that Thompson was put in possession of the warrant — that he, or his assignees, are in the peaceable enjoyment of the land, and that no claim has been set up against it, or against him or his heirs, on account of it for more than twenty years. Nothing, therefore, can be gathered from the testimony that can destroy the right of the complainant, under the contract of 1801. But as it is a rule recognized in all courts of equity, that he who asks for equity shall do equity, and as in consequence of the negligence of the complainant, McNutt has been put to trouble and cost, for which he has received no remuneration, it is both just and reasonable that the amount of this claim should be ascertained and paid before the defendants are required to execute a conveyance. As the contract calls for no particular tract of land, but for two hundred acres of second-rate land, within the tract set apart for the officers and soldiers of the Virginia line, or continental establishment, the defendants are at liberty to designate any tract, of the quality described, within that district, of which their father, James McNutt, died ^seized, and to which it is in their power to make such a conveyance as is required by the contract; but if there be no such land within their power, and assets have come to their hands sufficient for the purpose, let them procure the land, or pay to the complainant the value.

A reference ought to be made to the master commissioner, to ascertain and report the value of the trouble and cost of McNutt, to be paid by the complainant, and whether the defendants can make a good title to two hundred acres of land, such as is described in the contract; and if not, and assets have come to their hands, sufficient for the purpose, what sum they ought to pay as the value thereof, and all further directions stayed till the coming in of the report.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
      Delaware County,

      May Term, 1822.
    Before Judges McLean and Burnet.
    Lessee of N. Patrick v. Gideon Oosterout.
    Lands sold upon execution must be valued, and the valuers must be sworn, or the sale is void.
    The lessee of the plaintiff claimed under a sheriff’s deed. In the year 1815, Norman Patrick obtained a judgment in the court of common pleas, against Oosterout, and took out execution, which was levied on one hundred acres of land belonging to the defendant. The sheriff returned an appraisement which did not identify the land in any other manner than by stating the same to be “ one hundred acres of land where G-. Oosterout lived.” It did not appear by the appraisement that the freeholders were sworn.
    Two questions were submitted to the court: First. Is it necessary under a sheriff’s deed to exhibit the appraisement ? Second. Is the return of the appraisement sufficient?
    L. & C. Cowles, for plaintiff:
    The judgment, execution, and sheriff’s deed are all that is necessary to establish the right of the plaintiff to a recovery. The appraisement is apart of the sheriff’s return which ought to betaken advantage of, if at all, at the return term of the execution. 1 Ld. Ray, M. 346. The court could then correct the appraisement before the money should be applied to the discharge of the execution; and place the plaintiff, defendant, and ^purchaser, in statu quo. The purchaser has no day in court to examine the eorreetness of the proceedings: the law presumes that every officer does his duty, until the contrary appears. The purchaser is to presume in favor of the jurisdiction of the court, as well as the legality of the acts of its ministerial officers.
    It is understood to be the practice of the Circuit Court of the United States, not to listen to objections to appraisements after the return term of the execution. This practice adds to the security of all parties. It should be the policy of the court to render sales under the sheriff as certain as possible ; otherwise real estate would never sell, or be sacrificed. No person would purchase at sheriff’s sale if he supposed his title depended upon a perpetuation of every ministerial slip of the officer; or if it did, it would be at a price proportioned to such hazard. This would operate equally unjust for the creditor and debtor. The desperate speculator alone would be benefited. As the statute makes it the duty of the appraisers to be sworn, or of the sheriff to have them sworn, it is a fair presumption of law that the duty was performed. In the case of Charles H. Atherton v. J. Jones, Adam’s R. M. H. 363, the court decided that the creditor himself, who was a justice of the peace, might administer the oath to the appraisers, and in the case of Porter et al. v. Bean, Sar. 362; 7 Mass. 371, it was also adjudged that the attorney
      of the creditor was competent to swear the appraisers. These were both actions of ejectment, or writs of entry in the nature of ejectment. These authorities at least show that the courts will not listen to every trifling exception to appraisements.
    Swan, for defendant.
    There can be but two ways of divesting a man of his estate: first, by his own act and consent; and second, by act and operation of law. The law which divests a man of his fee in favor of his creditor, is of modern invention,- and in many respects operates severely upon the debtor. As money appears to be only a representative of personal property, this, and many other states in the Union, in giving the creditor power over estates, have placed barriers in the way to its total sacrifice, by a sudden exposure to sale. In Massachusetts, New Hampshire, and perhaps other states in the Union, the estate of the judgment debtor is set off to the creditor by the sheriff and three reputable freeholders, under oath, subject, however, to redemption within a year. Before the creditor in this state can be divested of his fee by law, there must not only be a judgment and execution, but theofficer levying such execution *shall call an inquest of five reputable freeholders, and the inquest shall, on oath or affirmation, return to said officer, under their hands and seals, an estimate of the real value of such estate,” etc. 14 L. O. 175, sec. 11. “ Provided, that no tract of land shall be sold for less than two-thirds of the returned value of the inquest.” If the defendant has been divested of his estate, it has been by virtue of this statute.
    1. The appraisement does not identify any land.
    2. The appraisers were never sworn.
    The appraisers, from anything that appears from the return,' never made any “ actual view ” of the promises. Nor can it be ascertained whether the land appraised was the tract levied upon and sold. It would be easy, if this appraisement is sufficient, to defeat the legislature’s intention, by levying upon a tract of land and causing another to be viewed and valued which might not be worth a tenth part of the one offered for sale. This appraisement will apply equally to any cause in any other court. If good in this case it will supersede the necessity of ever having another between the same parties. The officer’s levy must be certain. If necessary he may take with him a surveyor. It is the duty of the appraisers to make actual view of the premises thus levied upon, and if there should be any difficulty in ascertaining the boundaries of the tract, they may also take to their assistance a surveyor; it is indeed their duty to do so to prevent injuries to the parties.
    But the second point is clear. Courts may as well dispense with the oath of jurors as appraisers. The law is no more plain and peremptory in the one case than the other. Dispense with the certainty of the land, and with the oath of the appraisers, and it would be us.eless to preserve the other provisions of the statute. The amount, the view, the seal, and return itself, might follow without further injury. In the case of Selden v. Goodwin, 1 Day, 312, it was held that a decree of probate, ordering a sale of lands, furnished no legal evidence that an inventory had been made.
    It has also been held by the same court that in order to make out a title to land, by the levy of an execution, it must be shown that the appraisers were disinterested freeholders, and that they were sworn according to law. 1 Day, 109.
    When a purchaser claims under a special authority, it is hia duty to show that the delegated powers have been strictly pursued. If one acting under a power of attorney, had general authority to sell the estates of his principal, provided he had them first appraised *by five freeholders under oath, and the same were sold for two-thirds of such valuation, would it not be incumbent upon a purchaser to show that the agent strictly pursued his authority? It would seem too absurd to draw a negative conclusion. Chief Justice Marshall has laid down the true rule in these cases. 4 Cranch, 403. His words are: “ It would be going too far to say that a collector selling land with or without authority, could, by his conveyance, transfer the title of the rightful proprietor.” “He must act in conformity with the law from which his power is derived, and the purchaser is bound to inquire whether he has so acted.” “It is true that full evidence'of every minute circumstance, especially at a distant day, ought not to be required.” In this case we ask not for minute circumstances: we ask for a compliance substantially w.ith the statute. We maintain that the legislature intended that an appraisement should be a solemn act under oath, and that a judgment debtor should not be divested of his estate without that preliminary solemnity.
   By the Court.

The question presented in this case is an important one, as it may involve property to a large amount; but we are not at liberty to dispense with a legislative provision, whatever may be the consequence of enforcing it. It is our duty to inquire what the law is in this, as in every other case, and having ascertained it, we can not turn to the right hand or to the left. The inconvenience or hardship of the case we can not remedy, however we may regret it. The defendant’s counsel have placed the question on its true ground, that a man can not be legally deprived of his estate unless the provisions of the law by which it is taken are substantially pursued. The objection to the plaintiff’s title is,that the appraisers were not sworn. It is contended that this was a necessary step in the proceedings, and that it ought to have been returned by the officer.

The statute puts it beyond all doubt that the “ inquest shall return on oath or affirmation to the sheriff,” etc. The officer can not-be said to have caused an appraisement to. be made unless the oath has been administered and a certificate of the fact accompanies the return. From the statute it would seem that the ministerial act of the sheriff ceases, so far as it respects the.appraisers, when he has assembled them. It does not appear to be any part of his duty, by the law under consideration, to swear or affirm the inquisitors, or to cause it to be done. It would be a- fair construction of the law, that the appraisers themselves should take an oath before some judicial ^officer, and whether the same should be certified by the person who administered it or by the appraisers, this court would deem immaterial. Such seems to have been the decision in the case of Atherton v. Jones, cited by the bar. The court there, in speaking of the mode of making return of the appraisement, as it regards the oath of the inquest, say: “It is true he may return it [the justice’s certificate], but we think he may also return it in substance.” “ That he has done in this case, and such a course is warranted here both by precedent and practice.” "We accord with the opinion expressed by the court of New Hampshire. The court ought not to require evidence of every minute circumstance, from the execution to the sheriff’s deed; but they can not dispense with the substantial requisitions of the statute. Amongst these undoubtedly the oath of the appraisers is not the least important. The duties of the appraisers are not merely ministerial; they have the stamp and character of judicial proceedings, and those too of vital importance to the community. The appraisement of real property, in a state like ours, before it can be subjected to sale for the discharge of debts, is highly beneficial, not only for the security of debtors, but of creditors also. This is not a question of policy merely: it is one, however, upon which the court may, and in some cases must, exercise a sound discretion. But in the absence of testimony we are now called upon to presume that the appraisers made their return upon oath. Might not the court, with equally legal propriety, dispense with the appraisement altogether? Might we not as well presume, on the exhibition of a sheriff’s deed, that there has been a judgment and an execution ? Under our statute a sale, without any appraisement, Would be clearly void. The authority to transfer the fee by operation of law, is a mere statutory provision. This authority, in Ohio, is limited and conditional. 1. The estate must be appraised on oath. 2. It must sell for two-thirds of the appraised value. These are conditions which must appear to the court to have been complied with before they have any authority to ratify a sale.

It is insisted that the party injured is not without remedy. It is said he may sue the sheriff and recover all that has been lost by the officer’s negligence or misfeasance. With this question we have no concern in the present case, but admitting an action would lie against the sheriff because the appraisers did not make their return on oath, the remedy would be frequently inadequate. The court, however, are of opinion that the sheriff has no control over the appraisers. He appoints them, indeed, but it is not his duty to *swear them or cause it to be done, nor does there appear to be any authority given him bylaw to coerce them into a performance of duty. But be this as it may, a power limited and conditional must be carefully pursued. Some things may be presumed in favor of a purchaser; but he must see that the authority under which he purchases has been substantially pursued. The vendor must have authority to sell, or the purchaser takes nothing.

It is not necessary in this particular case to decide whether this defect in the return of the appraisement might be supplied by parol evidence. The counsel for the plaintiff suggested at last term, that he would endeavor to procure such testimony. None such has been offered, and we are informed that none exists. Hard as the case may appear on the part of the purchaser who has paid •his money, the law constrains us to say he can take nothing by his purchase. We are of opinion that the appraisement constitutes •an essential part of the proceedings in the sale of lands under an ■execution, and unless the appraisers are sworn, the appraisement ás void.

Let the judgment be entered upon the verdict.


author: Judge Burnet.

text:
      Clark County,

      April Term, 1822.
    Before Judges McLean and Burnet.
    Buttles v. Carlton and others.
    Defendant in custody within the prison limits makes oath that he is unable to support himself. Plaintiff not bound to furnish lodgings.
    It was an action of debt upon a prison rules bond, and came before the court upon a case stated as follows : The defendant, Carlton, was in custody upon a ca. sa. at the suit of the plaintiff, and executed the bond upon which the suit was brought, for remaining in custody within the rules of the prison — and upon its being approved of by two justices, as required by law, Carlton was admitted the prison rules. Being thus within the prison rules, he made affidavit that he was unable to support himself in prison, a copy of which was served upon the plaintiff’s agent. Carlton claimed that the plaintiff was bound to supply him, not only with provision, but with lodgings +also. The agent proffered to furnish meat and drink; the prisoner insisted upon a bed also, which he frequently called for and was refused. Considering that the refusal of a bed was a refusal to furnish support according to the statute, Carlton went out of the prison rules ? And the action is brought to charge him and his securities.
   Opinion by

Judge Burnet.

Two questions have been submitted in the argument of this case. First, was the defendant, Carlton, entitled to support after he was relieved from close confinement, and admitted to the privilege of the bounds? Secondly, if entitled to support, was be to be furnished with bedding at the expense of the plaintiff?

On the first question we are of opinion that the prison bounds, established by the court of common pleas in pursuance of the statute, are to be considered as an extension of the four walls of the prison, and that while the prisoner is within these limits, he is to every legal intent a prisoner, and as such entitled to claim the support given by the 12th section of the act for the relief of insolvent debtors. It is true that the bond is in the name of the plaintiff, but it is delivered to the sheriff, and the condition of it is, “ that the prisoner shall continue safely in the custody of the jailer, within the limits of the prison bounds.” This language, we apprehend, can not be mistaken. It represents the obligor as a prisoner, in the custody of the jailer, within the limits; and if a prisoner, he ■may take the oath prescribed, and thereby charge the'plaintiff with his support. The language of the law is, “ that when a per.son imprisoned for debt, either on mesne process, or on capias ad ■satisfaciendum, shall be unable to support himself in prison, and having made oath to that effect,” etc., “the plaintiff shall stand chargeable,” etc. The only inquiry then is, was the defendant, Carlton, imprisoned for debt ? If he was, he was entitled to support ; and if that support was not afforded, he had a right to leave the prison bounds, or in the language of the law, “ to be immediately set at liberty.” We are clearly of opinion, that he was a person imprisoned for debt within the meaning of the statute, and that he had a right to take the oath. This is the only inference to be drawn from the statute, or from the bond, by which he is to ■continue safely a prisoner in the custody of the jailer. While he so continues, he must, ex vi termini, be imprisoned, and consequently be entitled to claim the support allowed by the statute.

*It is certainly natural to suppose, that a person enjoying the privileges of the limits would, in ordinary cases, be able to provide for his own support; but this is not always the case, as where poverty is connected with sickness, or other personal disability. The 'construction contended for would leave such persons to perish, or procure subsistence from the hand of charity. Such could not have been the intention of the legislature: it must have been their design to provide for persons so circumstanced, whether on the limits or in close confinement.

On the second question, we are of opinion that the plaintiff was not bound to furnish the defendant with lodgings. This conclusion seems to follow from the determination of the former question. As that pre-supposes him to be a prisoner, in the custody of the jailer, he must be entitled to his lodgings within the prison. This privilege the jailer can not deny him, as the prison is provided at the expense of the county, for the reception and accommodation-of all persons committed by legal althority. As a person in custody on final process, after he has obtained the privilege of the limits, is bound to continue a true prisoner in the custody of the-jailer, it would seem to follow that he does not lose the right of lodging within the jail. On the contrary, the spirit of the provision would rather require that all persons within the limits-should return at night to the prison, as their common lodging-place, though we do not mean to say that the practice which has heretofore prevailed in this respect should be altered. In many cases it is an indulgence of great value, to permit persons on the-limits to lodge without the prison, and the feelings of humanity must suppress every desire to deny, or curtail that indulgence. All we mean to say is, that they have a right to repair to the jail as their common lodging-place. The case in hand requires us to-go no further, and we feel no disposition to do so.

In the formation of these statutes, the rights of creditors have not been overlooked, nor can the court disregard them in any construction which it may be necessary for them to give. The words of the statute, subjecting the creditor to the support of his debtor, are, “he shall stand chargeable with his support.” In construing-these words, we are not disposed to go beyond their import, and most, certainly they can not require the plaintiff to provide that, which has been already provided. ' The county has furnished lodgings; it was not therefore necessary for the plaintiff to provide them, and we can not believe that the legislature intended to-impose on him an ^unnecessary burden. In construing these words, we must look to the situation of the prisoner, and to the wants and privations that attend it. Food and lodging seem to be embraced in the term support, and we should have no hesitation-in saying, that they were both chargeable on the plaintiff, had neither of them been provided by law; but as lodging has been provided, it would be implicating the prudence of the legislature, and imposing an unnecessary burden on the plaintiff to give that ■construction to the term. What the law has provided, the plaintiff •can not be required to provide.

It is the opinion of the court, that the plaintiff was bound only to make an arrangement with the jailer to furnish the plaintiff regularly with his food, and having done so in this instance, he provided all the support he was chargeable with by the statute; consequently, the defendant left the prison bounds in his own wrong, and the plaintiff must be entitled to judgment.


text:
    Bank of Mount Pleasant v. Administrators of Robert Pollock, who was special bail of Joseph McKaughey.
    Special bail not liable where principal dies after'the return of the ca. sa. non est, and before the return of first sai. fa. executed, or second nihil.

    The plaintiffs in this case had obtained a judgment against Joseph MeKaughey, in the common pleas of Belmont county. They sued out a capias ad satisfaciendum, upon which the sheriff returned not found. They then sued out a scire facias against Robert Pollock, which was returned nihil; and a second scire facias was sued out, and returned executed. Robert Pollock appeared .at the return of the second scire facias, and pleaded, that after the .return of the ca. sa. “ not found,” and before the return of the first sci. fa. “nihil,” Joseph MeKaughey departed this life. To this plea the plaintiffs demurred. Robert Pollock deceased before the •demurrer was argued, and his administrators appeared and were made defendants.
    The cause was argued in the common pleas of Belmont by Beebe for the plaintiffs, and Hammond for the defendants. Judgment was given upon the demurrer for the defendants, and the plaintiffs ■appealed to the Supreme Court.
    *It was again argued in the Supreme Court, at October, 1823, before Judges Pease and Sherman, by the same counsel. The court was asked by Mr. Beebe, on the part of the plaintiffs, to reserve the case for decision at Columbus, but they were of opinion 4hat it was unnecessary.
   By the Court.

Our statute declares that the bail shall be discharged by surrendering the principal upon the return of the first scire facias executed,” or the second “nihil.” This is the rule of the English courts. It is, however, one principle of this rule, as established in-. England, that if the principal die after the return of the ca. sa. non-est, the bail is charged. It is maintained for the plaintiffs, that as the legislature has adopted, in substance, the English rule as to-the period at which a surrender shall discharge the bail, they have adopted that rule in all its parts — so that if' the principal die after the return of the ca. sa. non est, the bail can not be exonerated. The court are of a different opinion. The statute gives to special bail the absolute right to be discharged, upon the surrender of the principal, at either of the periods specified. The death of the principal can not prejudice this right. The bail do not undertake for the life of the principal; but for his surrender if alive. They are discharged by his death. The limitation of the English ruléis not adopted by the legislature, and the court have no authority to insert it by interpretation.

Judgment for the defendant.


author: Judge Burnet,

text:
    Thomas Orr v. Bank of the United States, William Creighton, and Walter Dunn.
    Corporation not liable to be sued in an action of assault and battery; can not. be joined in such action with other defendants. When so joined, writ is abatable as to all.
    This cause was argued before all the judges in Ross county, at December term, 1821, by King and Atkinson for the plaintiff, and-. W. K. Bond for the defendants. The case is fully stated in the-opinion of the court by Judge Burnet.
    King and Atkinson for plaintiff:
    Two questions grow out of the demurrers in these cases. 1. Whether, if a corporation and individuals be joined together in. trespass, the individuals can take ^advantage of such joinder, admitting the corporation is not liable in trespass. 2. Whether a corporation is liable to be sued in trespass. The1 law is clearly settled as to the first question, however it may stand as to the last. The law read by the opposite counsel on the trial, from 1 Chit. 75, to wit, “that if several persons be made defendants jointly, where the tort could not in point of law be joint, that they may demur,” etc., is not denied. It is good law, but does not apply to this case. It applies only to torts, which, from their nature, can.only be committed by one person, and can not be committed by several jointly, as verbal slander. This is the case put in 2 Saunders, 117, C. n., cited by Chit. The reason of this law is obvious. One of several defendants only can be guilty in such case, and it can not appear from the declaration which it is.
    The tort that we complain of is one where several persons, in point of law, may be jointly guilty; and the joinder of more or less persons than may be guilty or liable, constitutes no objection. 1 Chit. 75.
    There are, however, three cases cited in 16 East, 10, precisely in point, whe're the objection was taken and overruled.
    If in England, as in New York, where they have adopted the English practice, any objection could be raised on account of the different processes requisite to compel an appearance, that objection can not be taken here in the State of Ohio. See 18 Jud. Acts, 364, sec. 14. The English and New York practice of entering an appearance is unknown to us. We have the same process to bring both into court. The judgment is the same, and final process against both the same, except that a capias and a ca. sa. here, as well as in England, could not issue against a corporation to any effect. It would be a singular kind of logic that would authorize the conclusion, that because a party could not make use of one as well as the other of the two kinds of mesne process provided by law, he has no right to any one of them.
    The first question, then, it is believed, must be with the plaintiff, and the demurrer overruled as to Creighton and Dunn.
    On the second question, it may be observed, in the first place, that from the nature of it we could not reasonably expect to find many decisions precisely in point. Corporations are few in number compared with individuals. We ought rather to be surprised that we find so much law on the subject. If similar injuries have been committed in England by corporations, the remedy against any and all the members being so clear, and the obstacles arising from their ^process so great, it could hardly be expected that a single case of trespass against a corporation could be found in their books.
    The fundamental principles and .settled maxims of the law ought always to be kept in view and applied in settling legal questions, and this especially when but few direct adjudications on the subject are to be found.
    Every right is said to have a remedy, and every injury should be redressed by those who occasion it.
    These rules are applicable to all natural persons, and if artificial persons come not within their reach in every case, the exception, ought to be clearly shown, as well as the reason upon which the exception is founded. .
    If a master bid his servant do a trespass, and he does it, the master, as well as the servant, is liable, upon the maxim of law, that he who does a thing by another, does it himself. There is also another reason why the law holds him liable, namely, that the person actually committing the injury, may not be a responsible person, and adequate redress can not be obtained from him alone.
    So great a regard has the law for the preservation of the “ rights of persons,” that it considers every one a principal, who has, in any way, been concerned in bringing about an injury to them. The anxiety of the law to redress such injuries, is manifest, also, in giving a remedy which is not subject to the embarrassments incident to pleadings in other eases; for whether less or more than are liable, are joined in the suit, no advantage, to delay the redress sought, can be taken on that account.
    With these preliminary observations, I will proceed, first, to examine very briefly the authorities relied on by defendant’s counsel.
    Mr. Chitty, 1 Chit. 66, says: “ Corporations may be sued in that character in many instances for damages arising from neglect of a duty imposed on them by particular statutes, but they can not in general be sued in that character in trespass or replevin, and the action must be brought against each person who committed the tort by name;” and cites 8 East, 229, 230, which was an action of ejectment against two persons as bailiffs of a corporation. It was said by Lawrence, Judge, that “ trespass does not lie against a corporation.” On this case it may be observed :
    1. That no such question arose in the case, or was decided by it. What the judge said, therefore, was a mere casual dictum, and not •at all called for by the case.
    2. The court did decide, that the action could not be maintained ^against the bailiffs as such, because their possession as such was the possession of the corporation, which was virtually deciding that the action should have been brought against the corporation.
    3. It was contended by defendant’s counsel in that case, that the action should have been against the corporation.
    The two authorities next cited by Chitty, I have not been abiete find, and can therefore make no comments on them.
    He next cites Vin. Ab. Corp. K. pl. 22, which says: “A corporation •can not commit a trespass but by their writing under their seal.” Broke, 34, is cited, and Ib. P. pl. 2. “ Per Throp. — Trespass does not lie against commonalty, but shall be brought against the persons by their proper names; for capias nor exigent lies against commonalty.” Cited from Broke. Ib. 2, 15. “ Trespass does not lie against a •corporation, viz: by the name of corporation, but against the persons who did it, by their proper names; for capias nor exigent does not lie against commonalty.” Cited from Broke, 43. Bacon Ab. is also cited, but nothing material can be found in it. The last authority cited by Chitty is 1 East, 555, which was an action on the case by a member of a corporation against the other members, for depriving him of a corporate privilege. The corporation had authority to hold a court, called a water court, and at one of its sittings disfranchised the plaintiff. The King’s Bench decided that the water court had erred in their judgment, and to maintain the action against the members, it was necessary to prove malice. The decision was a correct one, for the injury complained of arose from a judicial error. The marginal note of this case does not present the case decided. The ease has no bearing on the ease under, consideration, as the quo animo is of no consequence in trespass. 1 Chit. 129, 130; 6 Bac. Ab. G, 589, last ed.
    It is also said in Comyn’s>Digest, Franchise F. 19, that “ process of outlawry does not lie against a corporation aggregate, and therefore trespass does not lie against a corporation, but against the particular persons only ; for a capias and exigent do not go against a corporation.” Broke, 43, is cited.
    I have been thus particular in quoting at length the authorities referred to by Chitty because the reason upon which the law laid down in them is founded, is also stated. It should be particularly remarked, that all the authorities above referred to, which have' any bearing on the ease, ground the law laid down in them upon two reasons only. 1. Because a capias and exigent do not lie against a corporation. 2. Because a corporation can only commit a trespass by their writing under their common seal.
    *In considering the first question in this case, we have shown that the first reason arising from process has ceased to exist, at least in the State of Ohio. When the reason of the law ceases, the law itself ceases.
    As to the second reason, if it is a good one at this day, it would be enough to show, on the trial, that the defendants did, by their writing, etc., commit the trespass. And it does not properly become a question in the present stage of the case, because it certainly could not be necessary so to allege the fact in the declaration, if it were necessary to .prove it on the trial. But if such ever were the law in England, modern decisions show that such is not the law now, either there or in this country.
    It is a notorious fact, without referring to any decisions, that corporations now-a-days make little or no use of their seals, unless it be in such cases where the law requires it of individuals. Formerly a corporation was held liable in no case of contract, unless their seal could be shown against it. It seems, however, to be the policy of the law latterly and the inclination of courts, to consider them as possessing almost the same capacities and the same facilities in the transaction of their business that any natural person exercises. 12 Johns. 227; 14 Johns. 119 ; 7 Cranch, 297. The case in 12 Johns. is an important one throughout.
    Corporations are treated in equity as natural persons are, and subject to the same rules. Ejectment lies for and against them, which supposes that they may be trespassed upon, and that they may trespass upon others. And that a corporation is answerable, in their corporate capacity, for a trespass, is not only reasonable, but well supported by the cases in 16 East, 6; 7 Mass. 169, and the principles decided in the cases above cited.
    Every reason to be drawn from analogy, and the fundamental rules and maxims of law and' equity, bear equally hard, in principle, against a corporation as against an individual; and there is no> reason, rule, or maxim, either in law or equity, which claims for them an exemption. The objection arising from process does not apply here in this state, if it does anywhere, at this day; and that arising from the necessity of a corporation doing a tort under, etc., has become obsolete. 1 Bac. 11; Abatement in Torts, 36, 12, 621 ; Eliz. 143; 1 Bac. 30.
    The argument on the other side was not furnished to the reporter.
   *Opinion of the court by

Judge Burnet,

delivered Decernber term, 1822. ,

This is an action for an assault and battery, and false imprisonment. The declaration is filed in the common form, charging the-defendants jointly with the commission of the trespass, as though they were all natural persons. The defendants have demurred generally. On the argument two principal questions were raised' and discussed.

1. Whether a corporation aggregate is liable to be sued by its-corporate name, in an action of trespass for an assault and battery, and false imprisonment.

2. Whether, if they be not so liable, the defendants, Creighton and Dunn, can take advantage of the joinder on this demurrer.

On the first question, Chitty has been cited, 1 vol. 66, where he-says, corporations may be sued in that character, in many instances, for damages arising from neglect of duty imposed on them by particular statutes, but they can not, in general, be sued in that character, in trespass, or replevin. The action must be brought against-each person by name, who commits the tort.

In 8 East, 230, Lawrence, Justice, says, trespass does not lie-against a corporation. Thorp, Justice, says, trespass does not lie-against a corporation aggregate by its corporate name, for a capias and exigent do not lie against it. 22 Ass. 67. A corporation cannot beat nor be beaten, nor commit treason, or felony, nor be outlawed, etc. 21 Edw. 4, 7, 12, 27, 67. They can not be assigned,. 1 Bac. Ab. 507; nor outlawed, 10 Co. 32; nor attached, Ray. 152. No replevin lies against them by the name of their corporations, Brownl. 175. They can not be declared against in custody. 6 Mod. 183. They are not indictable, though the particular members are. 12 Mod. 559. They can not sue as a common informer. 2 Stra. 1241. Eor torts they must be sued individually. Salk. 192. Trespass does not lie against a corporation, but against its members. 4 Com. Franchise F. 19.

A corporation can not commit a trespass but by their writing under their seal. Vin. Ab. Cap. K. 22. Trespass does not lie .against commonalty, but shall be against the persons, by their proper names, for capias and exigent lie not against commonalty. Ib. P. 2. Trespass does not lie against a corporation, viz: by the name of corporation, but against the persons who did it, by their proper names, for capias and exigent do not lie. Ib. 2, 15. As outlawry does not lie against an aggregate corporation, therefore trespass does not lie against them, for a capias and exigent do not go. 2 Sell. 149; *2 Imp. 675 ; Bro. Corp. 43. A corporation •can neither maintain, nor be made defendant to an action of battery, or such like personal injuries, for a corporation can neither beat,mor be beaten, in a body politic. 1 Blac. Com. 503. It appears also that the civil law ordains (in conformity with this rule) •that for the misbehavior of a body corporate, the directors only ¡shall be answerable in their personal capacities. Wooddison, in his lecture on corporations, 1 vol. 494, is very clear and explicit on the subject. He says, “It is incident to all bodies politic, to sue :and be sued, by their name of incorporation, but it is manifest that this must be restricted to particular actions ; thus corporations can neither be plaintiffs nor defendants in actions of assault and bat-tery.”

The case in 12 Johns. 227, cited by the plaintiff, shows that the law in relation to the liability of corporations, is so changed by the •course of modern decisions, that they are now held responsible on promises, express or implied, and that assumpsit may be maintained against them on such promises. But because the law has been changed in relation to contracts, it does not follow that it is .also changed in relation to torts, so as to render a corporation liable, generally, to actions of trespass, or for other torts, by persons not belonging to the body corporate, at least without showing that they were done by an authority from them, granted in pursuance ■oí their charter. In short, the only question decided in that case was, that a corporation may make a valid contract, not under seal; and this point being settled, there was no incongruity or falsity .apparent in the declaration, and therefore the court very properly decided that they would not stop and inquire, in that stage of the pi'oceedings, whether the contract was made in such manner, or by .such persons as to be binding on the defendants. The objection ;in that case was taken on the broad ground that assumpsits will not lie, under any circumstances, against a corporation, but the-court, having shown very clearly that the position was not tenable? overruled the demurrer without further inquiry; and it may be remarked, that the reasoning of the court is confined exclusively to matters of contract. The same observation may be made respecting the case of the Bank of Columbia v. Patterson, cited from 7 Cran. 299, which was an action of assumpsit for work and labor. Yarious questions arose in the progress of that cause; none of them, however, having a direct bearing on the case now before the-court. The point most analogous was, that whenever a corporation is acting within the scope of the legitimate purposes of its-^institution, all parol contracts made by its authorized agents are express promises of the corporation, and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which an action may well lie.

The case of Dunn v. The Rector, etc., of St. Andrews’ Church, 14 Johns. 118, was also assumpsit for work and labor. The only question agitated was, whether an action of assumpsit on an implied, promise can be maintained against a corporation, which was decided affirmatively, on the authority of the two cases just considered.

Much reliance has been placed, by the plaintiff, on the case of Riddle v. The Proprietors of the Locks and Canals on Merrimac river, 7 Mass. 169. This was an action on the case, for not sufficiently opening and keeping in repair a certain canal, by reason of which the raft of the plaintiff grounded, in attempting to pass it, and was damaged. A verdict was rendered for the plaintiff, and a motion for a new trial having been overruled, a motion was mads in arrest of judgment, on the ground that at common law no action lies against a corporation for a tort, because, among other reasons?. judgment in such an action is entered with a capiatur, which would be absurd against a corporation. The court, in giving their opinion on»this point, seem to admit the doctrine in 21 Edw. 4, 12, 27, 67, that a corporation can not be beaten, nor beat, nor commit treason, or felony, nor be imprisoned for a disseisin with force, nor be outlawed, and they add that these principles result from the nature-of an aggregate corporation. But in remarking on the| opinion of Thorp, Justice, in 22 Ass. pl. 67, in which he says that trespass does not lie against a corporation aggregate by its corporate name, they express doubts. Thorp’s opinion, they say, has • been overruled, as to certain trespasses, and referring to some of the authorities in 16 East, from which they say it is very clear that «orne actions of trespass might at common law be maintained .against aggregate corporations, they conclude that as in these cases no capiatur could be entered, the omission of this entry could be no objection to actions on the case. This concise statement is sufficient to show that the question now in hand did not necessarily ;arise. The point determined was, that trespass on the case would lie, and that judgment in such an action might be entered without a capiatur, and for this purpose only, the authorities relating to trespass and other torts were referred to. But it can not escape the most careless observer that neither the case decided, nor those referred to, support the position *now contended for, that assault and battery can be sustained against a corporation aggregate. Thorp’s opinion was questioned only as to certain trespasses, and the court went no farther than to say, that some actions of trespass might be maintained, from which the conclusion naturally follows that, generally, that action can not be maintained, and they admit that a corporation aggregate, from its nature, can neither beat nor be beaten, which seems to be decisive of the question we are considering. It was urged by the plaintiff that the reason on which the law, under consideration, was originally founded, had ceased to exist, and that therefore the law itself has ceased, in conformity with the maxim, eessat ratio, cessat etiam lex. But however true this maxim may be, in the general, it is subject to exceptions. There are many principles of common law, settled on reasons that have ceased, and many more on reasons that have not only ceased, but are now forgotten, that are still in full force; as for example, it is law at the present day that debt and trespass can not be joined, although the reason of this law no longer exists, which was, that in debt the process was summons, on which a fine was paid to the king, in proportion to the sum demanded, but in trespass the process was a capias, and the court set a fine in proportion to the offense.

It is not, however, admitted that all the reasons, or that the most weighty reasons of the law in question, have ceased, for although the distinction of process is done away by our statute, yet it remains a truth that a corporation aggregate, as such, can not.'commit the act charged in this declaration, as they have no personal existence, and can neither beat nor be beaten. An action for an assault and battery, committed on a corporation aggregate, in their corporate character, would be a novelty in judicial proceedings; and yet it appears to be as contrary to reason and common sense, that they should be the agents in such a trespass, as it is that they •should be the objects of it. It is a fact entitled to some weight, that among the multitude of adjudged cases relating to corporations, from the Year Books to the present day, not one can be found that decides the principle as it is contended for by the plaintiff. Although it forms no objection to an action that such an one has -never before been brought, yet the fact affords strong presumptive evidence that the law is against it.

On the whole, whatever exceptions may exist to the rule, that actions of trespass generally do not lie against corporations, it is evident that the action now under consideration can not be one of * those exceptions, and therefore that it can not be sustained against the bank.

The second question is, whether the defendants, Creighton and Dunn, can avail themselves of the demurrer, admitting that the corporation could not have joined in the tort, and that the action can not be sustained against them.

The law as laid down in 1 Chitty, 74, seems to be well established, that if several persons be made defendants jointly, where the tort could not in point of law be joint, they may demur, and if a verdict be taken against all, the judgment may be arrested or reversed on error. In other cases, says Chitty, where in point of law several persons may be jointly guilty of the same offense, the joinder of more persons than were liable, etc., constitutes no objection ; one of them may be acquitted, and a verdict taken against the others. It was alleged in argument, that the concluding part •of this authority limits the application of the preceding part, to torts of which only one person can be guilty, but there does not appear to be any necessity for such a limitation. On the contrary, to- give effect to the whole passage, the concluding part must be taken with the qualification evidently imposed by the preceding part of it, and naturally implied by the terms used in it. The meaning of the passage seems to be, that in eases where in point of law all the defendants named in the writ may bo jointly guilty of the offense charged, it is no objection that some of them are not guilty, for these may be acquitted, and a verdict taken against the ■others. This construction will give to the whole passage its proper’ effect, and remove the apparent discrepancy produced by the-opposite interpretation. It appears also to be required by other authorities applicable to the subject. For example, whatever-proves the writ false, at the time of suing it out, shall abate it entirely, and if the falsity appear on the record, advantage may be taken of it by motion, or on demurrer. 1 Bac. Abr. 11, n. As-if the writ issue against two persons, and one of them be dead before it be taken out, or if there be no such person as one of them, in rerum natura, or if in a precipe quod reddat, against two, one of them have the whole tenancy in himself, the writ shall abate at-common law, though in the last case it is now saved by St. 25 Ed. 3. The question, then, occurs in the case before us: Was not the writ false at the time it was taken out, and does not this appear from the declaration ? It charges an assault and battery to have been jointly committed by a corporation and individuals, when, in point of law, a corporation can not commit a *battery, either separately or jointly with others. It therefore charges the defendants with the commission of a joint act, which, in contemplation of law, they could not have jointly committed, and must, of course, be false.

It appears to be immaterial whether the objection to the joinder arise from the nature of the act, or from the character of the-agent. Yerbal slander can not be jointly committed by two, or-more, therefore two defendants can not be joined in that writ. A corporation can not commit an assault and battery; that tort, therefore, can not be jointly committed by a corporation and others, consequently a writ that charges two or more persons with verbal slander, or that charges individuals with a battery, committed jointly with a corporation, can not be good, and for the same reason, because it presents a case in either instance in which the tort, complained of can not be jointly committed by the defendants-who are jointly charged. The writ would be false by the doctrine-cited from Bacon, and the joinder would be bad on the authority of Chi tty.

By what course of reasoning, or by what analogy, are we justified in limiting the operation of the principle to the nature of the tort, excluding the character of the agent? The reason of the law unquestionably is, that the declaration charges an act impossible in itself — it is false, and certainly it is not the less false because the impossibility of the joinder arises from the physical inability of one of the defendants to participate in the act. The rule is, that several persons can not be made defendants jointly, when the tort can not in point of law be joint. In the ease before us, it is impossible that all the defendants have joined in the tort; as to them, therefore, it can not be joint, and this impossibility is as striking and as operative as if it had arisen from the nature of the tort. It was admitted in argument, that a declaration charging two persons with verbal slander, is bad, on demurrer. There can be but one reason for this, which is, that the defendants could not, under any circumstances, jointly commit the act charged. And may it not be confidently asserted, that in the case under consideration, the defendants could not, under any circumstances, jointly commit the injury charged against them? On what foundation, then, can we maintain the distinction that has been contended for ?

It is true that the case in 2 Saund. 117, cited by Chitty in support of his doctrine, was a ease of slander, but it is believed if that case had been the one now before the court, instead of the case of slander, it might have been argued with equal plausibility, that the doctrine in Chitty would not embrace the case of slander.

*On this branch of the subject, the plaintiff has relied on the cases cited in Yarborough v. The Bank of England, 6 East, 10. These, however, go no further than to show that there have been instances of trespass against corporations, in which individuals were joined; but it does not appear that the question was raised in either of them, whether the action could be supported. In one of them, the objection was to the process; in the other, to the joinder, and in neither was the objection sustained. Broke, 34, is introduced as saying, “ the better opinion was, that the writ was good.” Yet the same author, pi. 43, tolls us that trespass does not lie against corporations. It may also be observed, that if the defendants ad'mitted (as it appears they did, without putting the question to the court) that trespass could be sustained against a corporation, they waived the principal objection to the joinder, to wit, the falsity of the writ, depending on the fact that one of the defendants could not, in point of law, commit the act, and therefore that the others could not have committed it jointly with him.

But in deciding'the case before the court, it is not intended, nor is it necessary to assume the principle, that trespass will not lie in any case against a corporation, or that individuals may not be joined in the same writ with a corporation, for a tort which they may jointly commit. The doctrine is intended to be carried no farther than to actions of assault and battery. The ease of Yarborough was trover, and Lord Ellenborough, in giving his opinion, says, that the defendants, as a corporation, can do no act but through the instrumentality of others, and that they can not, as a corporation, be subject to the process in trespass, because the remedies which attach on living persons, can not be applied to bodies merely politic and of an impersonal nature, but that wherever they may competently do or order an act by their common seal, they are liable to the consequences of such act; and to support his position and illustrate his meaning, he cites several actions against corporations for false returns. It may be added, that we should not naturally expect, in a case like this, to find a decision of the question on which the case in hand depends, and it may be safely assumed, that the question is not settled, either by the principal case or by the authorities cited. The plaintiff has also contended that the fundamental principles and settled maxims of the law ought always to be kept in view, one of which is, that every right must have a remedy, and every injury ought to be redressed. This is admitted, but it does not follow that the party complaining must have a choice of remedies, nor does the doctrine now advanced interfere with this acknowledged maxim; *for although it be alleged that a corporation, as such, can not be made a defendant in an action of assault and battery, it is admitted that every individual who counseled, procured, or aided in the commission of the trespass, is liable. It is true in this case, as in every othe^ that the individuals held responsible may be insolvent, but the law is not chargeable with this evil, nor should it be condemned because it does not multiply remedies for the purpose of guarding against it. It was also urged that this demurrer can not be supported, unless the case be made an exception to this general rule or maxim, and that before this be done it ought to be shown clearly that it is an exception, and that it comes within the reason on which exceptions are founded. The ease, however, is not considered as forming an exception, for the sustaining of the demurrer does not deprive the plaintiff of a remedy, but merely decides that he has sought one which the law does not give him. The rule requires nothing more than that each right should have a remedy, or one remedy. It can not, then, be violated by a decisión that the plaintiff has had recourse to an improper remedy, unless it be also a fact that the law has provided no other. But this is not the case. A remedy exists, which has been pointed out, and to which the party injured may have recourse.

The plaintiff might have entered a nolle prosequi as to the bank, and proceeded against the other defendants, but he has thought proper to insist on his right to sustain the action against all the defendants, and must now submit to the consequences of the demurrer, which must be sustained.