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    James Wilson, plaintiff in error, v. James Campbell, defendant in error.

      ErroV to Lee.

    Á mere agreement to form a partnership does not, of itself, create a partnership. The parties must enter on the execution of the agreement before the relation of partners exists between them. While the agreement remains executory, if one of them refuses to carry it into effect, the only remedy of the other is by an action at Law for the violation of the agreement, or by a bill .in Equity to enforce specifically its performance.
    This was a suit in Chancery, commenced by James Campbell against James Wilson, in the La Salle Circuit Court, by bill filed on the 10th of July, 1840, and on the 16th of November, 1843, by agreement removed to the Lee Circuit Court.
    The bill in Chancery stated in substance, that in the spring of 1838, said Campbell and Wilson entered into an agreement wherein said parties, in Order to secure an interest in •some contract with the State of Illinois for work upon the Central Rail Road, at the letting of the same by the State, agreed each to join with some other company, and put in their bids in connection with such company, at the regular lettings of such work by the State, and in case either sueceeded. in connection with any such company, the other party was to have one half the interest so obtained; and as said parties were jointly interested in a contract for work on the Illinois and Michigan Canal, it was further agreed that' the unsuccessful applicant should superintend the work on the Canal, and the successful applicantthe work on the Rail Road; that the superintendence of each should be deemed equivalent in value, and that when said contracts were finished, each should share equally in the profit or loss upon the same, as the case might be.
    The bill further stated that at such letting, in June, 1838, said Wilson, in connection with others, to wit: N. W. Man-ville, H. L. Owens, H. C. Perry,--Weed, and Fairchild Weed procured a contract on said Rail Road, and that they proceeded with the work upon the same, said Wilson superintending the work on the Rail Road, and said Campbell that on the Canal, and that each had an equal interest therein; that subsequently to June, 1838, said Wilson sold out to said Campbell and one McFarrin, for $1100, all his interest in the Canal contract, and for which he was paid in full; at the same time, it was privately agreed that said Wilson should return one half of all the interest, being one half of the whole contract, meaning that said Wilson should have one quarter of all the profits on said contract.
    The bill then alleged, that the reason for such private agreement, was to enable said Wilson to procure from said McFarrin and Campbell, the goods and stores necessary to carry on the Rail Road contract, without exciting the jealousy of said McFarrin, and also to enable said Wilson and Campbell to obtain means to commence said work on the Rail Road, by selling to said McFarrin a portion of the Canal profits ; that in February, 1839, said Campbell sold out all of his and Wilson’s interest in the Canal contract to McFarrin for 1000 dollars, and that he, Campbell, took a sub-contract on the Rail Road with the consent of, but unconnected with said Wilson, without affecting his interest in said Rail Road contract. The bill then averred that all such bargains, sales, &c., were made in good faith, and with the consent of Wilson, and with the understanding that they were equal sharers and partners in the Rail Road and Canal contracts. Complainant then stated his readiness and desire to account and settle with Wilson, but that Wilson would not, and denied owing any thing to him. Complainant further averred, that at the time the Rail Road contract was given up on account of the stoppage of payment by the State, the amount of profits due to said complainant and Wilson on the same, was at least $8,000, and he believes $12,000, the whole of which was received by Wilson, and to one-half of which he was entitled ; that said Wilson refused to pay the same, or any of-it, and refused to account. The oath of the defendant was expressly waived, and then followed a list of interrogatories, and the usual prayer for relief, &c.
    On the 14th of November, 1840, a demurrer was filed, and afterwards, on the 28th of January, 1842, an answer was filed, of which the following is an abstract: Defendant admitted that himself, Campbell and McFarrin were interested in the Canal contract; that they had several times applied for work on the Central Rail Road, but without success; and that a short time before the letting spoken of, Wilson and Campbell had a verbal understanding that if either of them should obtain work, the other should have the privilege, if he thought proper, of becoming equally interested with him who was successful. He denied that there was any agreement that the superintendence of one on the Canal should be equivalent to that of the other on the Rail Road, but admitted that he agreed with said Campbell and McFarrin, to allow them for the time that he spent, less, upon the Canal, than said Campbell and McFarrin.
    He admitted, that in June, 1838, in connection with Man-ville and others, they entered into a contract with the State for work on the Central Rail Road, and proceeded with their work on said Rail Road. He admitted the sale of his interest in the Canal contract for $1,100 to Campbell and McFarrin, but denied the private agreement alleged in said bill. He stated, that upon entering into such sale of his interest in the Canal contract, Campbell expressed some unwillingness to pay the amount, he proposed to said Campbell that if he did not make the $1,100 and wages he would pay back the deficiency provided Campbell would agree to give him one-half the profits over and above the sum of $1,100 and Campbell’s-wages. He denied that his reasons for selling were truly, stated in said bill, denied that Campbell ever advanced a single dollar to carry on the work on the Rail Road contract, or that his, Campbell’s, name was ever used in connection with it to raise funds for its construction. He alleged,, that soon after this sale he had a settlement with McFarrin and Campbell, and it was proved that they were indebted to him in the sum of $2,800, and'that the goods and stores furnished him by said Campbell were to go in liquidation of said indebtedness, and were not an advance made to carry on the work. He believed Campbell sold out to McFarrin his interest in said Canal contract, for $1,000 in February, 1839, and took a sub-contract on the Rail Road, hut denied that he, Wilson, had at that time any interest in the same. He admitted that the work on the Rail Road stopped when the State stopped payments of estimates, but denied that his share of the profits was $8,000. He averred, that when he and others took the Rail Road contract, it was considered too low and would prove a losing operation j that during the first six months they did not receive sufficient estimates to pay expenses, and that it was necessary to raise funds out of their own private means. He averred that Campbell never advanced anything towards said contract; that soon after the sale of his Canal interest, he, Campbell, left the country for six months; that during his absence he never wrote to him, W’ilson* nor did he ever express a wish to become interested in it until one month after his return, at which time and not before, he, Wilson, and the company were receiving sufficient estimates to pay the expenses.
    He admitted, that each were to be equally interested in said Rail Road contract, with the express understanding, however, that each should contribute an equal amount to. prosecute said work. He denied that there ever was any agreement that the superintendence of one on the Canal should he an equivalent for that of the other, on the Rail Road.
    He averred that they were to share equally in said Canal •contract, and that the $1,100 were not received as profits,, but as purchase money. He denied that Campbell fulfilled his agreement, as he did not notify him that he considered himself interested in the Rail Road contract, nor did he ever advance any funds to aid in it. He denied that he ev.er received $8,000' as profits, but- only between $3,000 and $4,000 in Illinois scrip, and admitted that he has never paid any to Campbell..
    He then alleged that the matters in said bill are remediable at Law and not in Equity, and prays the same benefit of this defence as if he had demurred thereto. He-denied any. other or further knowledge.
    A replication was filed February 4, 1842.
    The following is an abstract of the depositions.

      Henry L. Owens, Complainanfs witness'. — Knows the-parties : In the spring of 1838, the defendant informed the witness that Campbell, John H. McFarr-in and Norman Mc-Farrin were bidding for contracts on Central Rail Road and also that the witness with the defendant, C. H. Perry, Henry Weed, E. F. Weed, and N. W. Manville were also bidding;: that they were bidding together, and that if either or both obtained bids, each were to be equally interested. McFarrin, complainant, and the defendant were interested in the Canal contract; the defendant told witness that he had sold out his interest in the same for ten or eleven hundred dollars to complainant and McEamm. On the day of Rail Road letting, the defendant told the witness that he and Campbell were to retain equal interests in the Canal and Rail Road contracts, if either of them got any work on the Rail Road; that the defendant was to take charge of the work on the Rail Road and complainant on the Canal, and their time was to be set off each against the other. Four sections were allotted to the defendant and others of the company;-. the name first used by them was N. W. Manville & Co.; after- • wards Perry, Wilson & Co. The defendant told witness that he had offered complainant $100 for his interest in the Rail Road contract, but complainant would not take it. This was two or three weeks after the letting aforesaid.
    In 1839, complainant sold out his interest in the Canal, and with one W. Seward took a sub-contract on one of the sections obtained by N. W. Manville & Co. and continued there until about the time Perry, Wilson & Co. suspended work on the Rail Road.

      Cross-Examination. — Does not recollect advising the complainant to bring this suit; thinks he never did. In the winter of 1839, witness had conversations with the complainant in regard to the complainant and said defendant’s business on said road, in which he informed complainant what he had heard the defendant say, witness’ interest with Campbell was got by purchasing Seward’s interest in the sub-contract under Perry, Wilson & Co.; witness sold his interest to Perry, Wilson & Co, in August or September, 1838. Estimates had been taken every month by the Engineer ; thinks no moneys were received until after he sold out, and about three months after commencing the work; witness had one-sixth part of original contract, and received of Perry, Wilson & Co. for his share, $500; the advances were made by each individual, but not in equal proportions ; debts were contracted by the company ; does not know how much each advanced ; thinks Wilson advanced 500 dollars in cash and other property; others advanced teams, wagons, &c.; does not know amount of outstanding debts of Co. but thinks they were considerable; witness and Manville advanced about $.600; Manville sold his interest to Perry, Wilson & Co. at same time Wilson did ; thinks that part of the articles advanced by witness and Manville were returned to them; they were paid $600 in cash, balance in paying outstanding debts against them. The original contract was not considered by him or the company, as an unprofitable one; the amount of the whole contract was $150,000 ; witness sold out his interest because he was told Manville would have to leave ; and he and Man-ville were getting behind in their advances, and Perry, Wilson & Co. promised to aid them in obtaining another contract the next year. Defendant had also agreed to aid witness and Manville with funds, but had failed to do so, alleging inability; took a sub-contract under the company about a year after selling out; the complainant took his sub-contract in February, 1839; understood that complainant was part of the time on Rock river, sick, after the letting, and before taking the sub-contract. In December or January, 1841, had difficulty with the defendant about a hog, but he supposes it was then settled.

      Re-Examination in chief. — The above conversations between the defendant and witness, were caused in consequence of discovering an intimacy between the compláinant and the defendant on the day of letting, which led him to fear something was going on prejudicial to his interest, and he was then led to make inquiries of the defendant.

      John TI. McFarrin, Complainant’s witness. — Is acquainted with parties to suit; was a partner with them in the Canal contract; partnership commenced in June or July, 1838; were equal partners. Defendant sold out to the complainant and witness all his interest in the Canal contract, section 193, consisting of everything belonging to the firm. This-was about July, 1838, for the sum of $1100 over and above what he had invested. The $1,100 was to be paid on the completion of section 193. Defendant drew goods, &e. out of the store of the complainant and witness, to the amount of his investment; the whole $1,100 has been paid in full; it was all paid before the section was completed, excepting eighty-five dollars. Witness purchased out Campbell’s interest, 29th of Jan. 1839, paid him $1,000 dollars for it; in settlement with the complainant, he bore his proportion of said payment to Wilson. At the time witness purchased complainant’s interest, about $800 was unpaid of the $1,100. Defendant was not present at the time of this sale ; he knew it about a week after, and made no objection. After the Canal contract was completed,, and after the suspension of work on the Rail Road, in the fall of 1841, the defendant told me that as Campbell was sick on Rock river,, and not being
    ■ on the work, he did not consider the complainant entitled to any thing, but he had offered complainant $100, and rather •than have a suit about it, he would give $800. In the summer of 1838, a note for $500, signed by the complainant and defendant, was given to Ezra Dongan; it was paid by the defendant in--the fall of 1838. Complainant superintended the Canal contract, except when sick, three months ; there ■was no charge made of lost time; does not know that the complainant was out of the State in 1838, or 1839 ; if so, thinks he would have known it.

      Cross-Examination. — When the defendant sold to the ■ complainant and witness he had a right to draw on us to the amount invested by him in the Canal contract, and he did ■do so. The articles he drew were charged to his individual account; they were in part payment for the purchase of his .interest in the canal contract. The $1,100 witness considered a debt due from us to the defendant; do not know of complainant ever advancing any thing on the Rail Road •contract of Perry, Wilson & Co.

      Re-Examination in chief. — Complainant and witness, he -considered, had about $1,500 or $2,000 invested in the Canal contract, at the time of purchasing out the defendant.

      ■C. H. Perry, Defendant’s witness. — Knows the parties and of the Canal contract in 1838 ; the company were complainant, defendant and McFarrin ; does not know of the •company proposing for work on the Central Rail Road ; knows of the sale of the defendant’s interest in Canal contract, for $1,100, and defendant’s obtaining a contract on the Rail Road in.June, 1838, in company with Manville, H. L. Owens, H. Weed, E. F. Weed, and witness. It was his ■opinion that the contract wouldbe profitable to some extent; it was about six or seven months after commencing work, before estimates were received from the State to pay expenses.
    The money to carry on the business was advanced by the members of the firm, and on the credit of the firm; the complainant never did advance any money to carry on the work; if he had, witness would have known it; at the time of commencing work on the Road, supposed complainant to have been at La Salle, on his Canal contract-'; complainant was not present at the time of commencing the work, nor at any time after as a partner or person interested ; thinks he was not near the work for several months after it was commenced; thinks he was on Rock river sick. It was about five weeks after commencing work on the Rail Road before an estimate was received. Does not know how much defendant advanced to carry on said work, nor how much he received on final settlement; what he did receive was in State scrip of Illinois. The company took goods, -&c. of complainant and McFarrin, on account of defendant; they told witness they were owing defendant a considerable amount, and*he supposed it would be an object with them to pay in this way, as otherwise they would, in the end, have to pay cash. The company paid defendant for these things.

      Cross-Examination. — Was a member of both"firms,'N. W. Manville & Co. and Perry, Wilson & Co. We got the contract in June, 1838, in the name of N. W. Manville & Co., composed of N. W. Manville, H. L. Owens, James Wilson, H. Weed, E. F. Weed, and C. H. Perry; a short time after work commenced, defendant bought out Owens and Man-ville’s interest in the contract for the rest of the company; witness then formed under the name of Perry, Wilson & Co. which was composed of defendant, witness, H. Weed, and
    E. F. Weed, each owning an equal interest in the contract. All the books witness knows of, of the company, are in witness’ custody. Understood that complainant sold out his interest in the Canal contract to McFarrin, but do not know if defendant knew of such sale, or advised it. Don’t know the precise profits on said contract; witness’ share, one-fourth, was between $6,000 and $7,000; defendant was originally entitled to one-sixth, but he increased this by buying out E.
    F. Weed. Does not know how much he made; on 8th of March, 1839, the company let a sub-contract to complainant and E. W. Seward; six months after this the contract was abandoned because the State failed to pay ; received $6,000 of the State in Illinois scrip for stopping the work, considerable of which was divided among our sub-contractors : does not know how much defendant received as his share; complainant was not on the contract from the commencement in July, until the winter following; he was sick on Rock river some time, and he had been back several weeks before he came to our side of the river. Defendant sold out his interest in the Canal contract about time of commencing on the Rail Road. Does not know when complainant sold out his interest; he continued on the sub-contract from March 8, 1839, until the work was abandoned. Am not related or connected with defendant in any manner. After letting subcontract to complainant and Seward, defendant stated to witness that complainant had set up a claim Sgainst him in the Rail Road contract; that prior to the letting he had an understanding with complainant that they were to put in separate bids and to be mutually interested in what might thus be obtained ; defendant in connection with the company obtained work, but the complainant had forfeited all claim to any interest with him, as he had never incurred any responsibility, or advanced any money on account of the same, but had waited till he had found the job profitable, and he, defendant, did not consider that he had any recourse or claim on the complainant, had the job turned out unprofitable.

      John Wilson, Defendant’s witness.- — Knows the parties to this suit, and of a company composed of McFarrin, complainant and defendant, owning a contract on the Canal, in June, 1838. Does not know of said company proposing for work upon the Central Rail Road. Thinks they did not; knew of the sale of defendant’s interest for $1,100, to the complainant and McFarrin, and also of the defendant’s procuring work on the Rail Road in connection with Manville and others. At the time of commencing work on the Rail Road, the complainant was on the Canal in La Salle. Knew of defendant’s selling his Canal interest to the complainant and McFarrin, for $1100. Was present at the time,, and offered defendant more, but be declined, saying they were old partners and had a preference.

      Gross-Examination. Was not a member of either of the firms of N. W. Manville & Co. or Perry, Wilson & Co ; am the brother of the defendant, but have no business connection with him.

      Robert Mead, Complainant's witness. — Knows the parties to this suit, and in February, 1839, heard the defendant tell the complainant that he, complainant, had better sell out his contract on the Canal, and take a sub-contract under Perry, Wilson & Co. upon the Rail Road.

      C. H. Perry, Complainant's witness, second deposition. Knows the parties. In the winter after the Rail Road contract was procured, had a conversation with the defendant, who told witness that complainant had set up a claim in his, defendant’s, contract on the Rail Road; that they had,an understanding that both were to bid at the Rail Road letting, and each to share equally in whatever work they might obtain; defendant stated that the complainant had been absent a considerable time after contract was taken ; had furnished no capital; incurred no risk, and he, defendant, was under no obligation to give him an interest in the work. Thinks the defendant received i 6000 or 7000 as profits on the Rail Road contract; never heard the defendant say any thing on the subject.

      Cross-Examination. — Knows of the defendant being interested in one third of the Canal contract in 1838; he sold out his interest in it in the fall of 1838 to the complainant and McFarrin, for $1,100. Knows he was paid part of this ; does not know that be received all. In a conversation with the complainant at Ottawa, he stated 'to me that the defendant was still to retain an interest in the said contract. Has heard the complainant and McFarrin often urge tlie defendant to purchase goods at their store; they have often urged me to buy on witness’ account, as' they went in part payment of the amount they owed the defendant. Has understood from both McFarrin and the defendant, that the defendant received a note on Pearl & Hyatt for $500 of McFarrin, to be applied on what the complainant and McFarrin owed the defendant; and also the defendant’s part of a carriage was to be applied in the same way. Also, that defendant received a note against N. W. Manville and others from the complainant and McFarrin for $1000, which'the defendant was to take as a part of said indebtedness due him at about $600. Don’t know of defendant’s receiving any money of complainant and McFarrin on sale of his Canal interest to them. Knows the money defendant advanced on Rail Road contract was his own money; he also furnished goods and provisions procured from the complainant and McFarrin; also goods procured of witness. He also purchased a stock of goods in St. Louis on his own credit for the company. The complainant never furnished any money or thing to the Rail Road company; if he had, should have known it, as witness financiered for the company.
    On the 11th May, 1844, the Court rendered a decree, .pronouncing the complainant and defendant to be partners in the contracts on the Rail Road and Canal, as set forth in the bill of the complainant; that the defendant has received whole amount of the profits, and ordering an account. The cause was referred to S. G. Patrick, a special Commissioner, to take an account, hear evidence, examine parties and books and papers, and make report thereof. He subsequently filed his report in Court.
    The Commissioner set forth that the evidence was unsatisfactory in its character; that many of the books and papers of the Rail Road firm, have been destroyed by fire; that in the Canal contract the parties and McFarrin were equally interested, and so far they have mutually shared their respective interests; that from the evidence of Perry and others, the defendant obtained in June, 1838, a contract for work on the Central Rail Road, in company with five others, as equal partners; that subsequently two of original partners, to wit: Owens and Manville, were bought out by the company, and that the complainant and defendant, according to the interlocutory decree of the Court were equally interested in one fourth of the whole Rail Road contract; that the defendant subsequently bought out the interest of 0. Weed, thus becoming owners of one half the whole contract ; that there was no evidence to show when defendant bought said interest of Weed, or how much he paid for it, nor whose funds were used in paying Weed, and no evidence was introduced on which such an account could be stated. That the day book and ledger admitted in evidence showed that the defendant was charged with $25,286-67, and credited with $16,230-88, which leaves a balance against defendant of $9,055-99, which, assuming the books to be full and correct, the Commissioner proceeded to say would be the amount of the defendant’s individual profit on said contract ; that the hooks contained no memoranda of the distribution of damages to members, of which there is evidence that it amounted to $6000 in Illinois scrip; that the books showed no distinction in the charges and credits to the defendant at the different times he owned different amounts of interest; that the books furnished no sufficient data on which to rely, and that the bill and answer, depositions and parol evidence before the Commissioner, constituted the only reliable evidence. That from the best evidence the profits of the defendant were $6,500 on one fourth of the contract, and which came into his hands. Deduct for fourteen and three fourth months’ absence of the complainant $737-50-100 from $6,500 left balance of $5,672-50, one half of which is charged to the defendant as due to the complainant; that the last payment on the Rail Road was received 28th March, 1840, from which time add interest at six per cent, on half the amount of $5,762-50 is $768-31, which in the aggregate amounts to $3,649 53, the amount due complainant by the defendant. He further stated that there was evidence of $6,000 in Illinois scrip having been received as damages from the State, but that there was also evidence that a considerable amount of same was paid out for indebtedness, and no evidence that any of it was received by the defendant; that there is some contrariety in the evidence as to the value of the scrip, but that this value was immaterial on account of the uncertainty of the amount of same received by the defendant on final settlement.

      At the September term, 1844, the Hon. Thomas C. Browne presiding, after several motions were entered and overruled by the Court, it was ordered that the aforesaid sum of $3,649-56 be paid by the defendant below within sixty days, and that in default of such payment, an execution issue.

      0. H. Browning «TV*. Bushnell, for the plaintiff in error.
    1. The other persons interested should have been parties to the bill.
    All parties interested in an account should be made parties to the bill. 1 Story’s Eq. PI. 167, 167a and note ; Hopkirk v. Page, 2 Brock. 20.
    Where the defendant is interested in having other parties before the Court, or where without them, he might be held for more than he ought to pay, or embarrassed by their absence, he may object that they are not before the Court. Story’s Eq. PI. §§ 136, 138, 141, 164.
    Here the amount to be paid by Wilson depends upon an account between Wilson and the other parties, which alone can determine the profits received. Story’s Eq. PI. §§ 127 -9, 172-3, 177; Marr v. Meilacky, 1 Mylne & Craig, 559; Bray v. Fromont, 6 Madd. 5.
    On a bill in Chancery against the indorser of a promissory note, the defendant has a right to insist that the other indorsers be made parties. Riddle v. Mandeville, 2 Peters’ Cond. R. 268.
    The principle on which Courts of Equity require all parties before the Court is to prevent future litigation. All persons interested in the subject matter of the suit must be before the Court in order that complete justice may be done in one suit. Mandeville v. Riggs, 2 Peters, 487; Caldwell v. Taggart, 4 do. 190.
    II. As it was a bill for the winding up of a partnership, not only should all of the partners have been before the Court, but the bill should have prayed the dissolution of the partnership. Loscomb v. Russell, 4 Simons, 8.
    III. The bill shows an attempt on the part of one partner to bring a third person into the partnership — this cannot be done. Story on Partn. § 5; Gow on Partn. 4, 5. Mur

      ray v. Bogart, 11 Johns. 318; Kingman v. Speers, 7 Mass. 235. And though one partner may charge his own interest in the partnership in favor of a third person, the latter will take his interest subject to an account between the partners —the bill should have shown that the parties had accounted, for till then he can have no right to an account against Wilson. Gow on Partn. 5, 94, 96, 110; Bray v. Fromont, 6 Madd. 5; Story on Partn. §§ 307, 8, and note.
    It is in this case and under the second head in principle, like the case of the assignee of one partner or a purchaser of the interest of one partner, on execution — he takes only the surplus after payment of debts, and of course requires a previous settlement of the partnership affairs and the ascertaining of the surplus.
    IY. The bill does not show any valid agreement for a partnership — it shows no consideration for the supposed contract — the whole contract was inchoate and preliminary. Gow on Partn. 10, 11; Dowlin v. Ward, 6 Johns. 194; Wilbur v. Howe, 8 do. 444; Chitty on Contracts, 8, 9, 13, 14, 40; 2 Kent’s Com. 465; McNeil v. Read, 28 Eng. Com. Law R. 265; 3 Kent’s Com. 25; Trimble v. Green, 3 Dana, 356-7; Violet v. Patton, 5 Cranch, 142; Minturn v. Seymour, 4 Johns. Ch. R. 500.
    The terms of the contract were uncertain and indefinite. Certainty in the terms is essential, when the Courts are called on to enforce it specifically.
    V. If there was any consideration for the contract, it consisted in the agreement of Campbell to join with some other company and bid — the object of the contract was to increase their work or their chances of procuring work on the railroad. The performance, therefore, of Campbell in this particular, is of the essence of the contract — it goes to the consideration by virtue of which only can the contract be supported. He should hence have averred in his bill a performance in this respect, or a readiness to perform. This he has not done, and he must fail. Suppose Wilson had not bid, and Campbell brought an action at law to recover damages? Tharp v. Tharp, 1 Salk. 171; 2 Kent’s Com. 465; Trimble v. Green, 3 Dana, 356—7; Porter v. Rose, 12 Johns. 209; Parker v. Parmelee, 20 do. 130; Barry v. Alsbury, 6 Litt. 151; Dana v. King, 2 Pick. 155; Hunt v. Livermore, 5 do. 505; 1 U. S. Dig. 538, § 27 Bordenave v. Gregory, 5 East, 107; Kane v. Hood, 13 Pick. 281; 1 Saund. 230, note 4; Dakin v. Williams, 11 Wend. 69; and these conditions precedent are always considered strictly in favor of those for whose benefit they are made. Gray v. Gardiner, 17 Mass. 188; 6 Cowen, 669.
    And the party seeking to enforce the contract and to procure the benefit of it in Equity, must show the performance on his own part of all the matters entering into the mutual consideration of the contract. Colson v. Thompson, 4 Peters’ Cond. R. 143; Bates v. Wheeler, 1 Scam. 54; United States v. Robinson, 9 Peters, 319; Trailor v. Hill, 2 Gilm. 364; 1 Barb. & Har. Dig. 304, §.3, 4; Modistet v. Johnson, 2. Blackf. 439, 440; Morgan’s heirs v. Morgan, 4 Peters’ Cond. R. 120, 123; Fitzpatrick v. Beatty, 1 Gilm. 467-8; Harris v. Knickerbocker, 5 Wend. 638.
    The original practice was to-send parties to the Law Courts to see whether there was a valid contract.
    VI. This is an attempt to enforce the specific execution of an alleged contract for a partnership.
    A Court of Equity will never do this except under peculiar circumstances and to prevent fraud — as in cases where a party was vested under the contract, and been put in a condition in which he cannot be put in statu quo, and he seeks relief. Story on Partn. 284, § 188; Gow on Partn. 109-11, and notes (y) and (1.)
    And never where the partnership may be dissolved at any time by either of the parties. Hessy v. Birch, 9 Vesey, 357; Gow on Partn. 109rll.‘
    And where no time is fixed for the duration of the partnership, it can only exist during their mutual pleasure. Story on Partn. §§ 48, 307-8 & note; 8 Kent’s Com. 53 Featherstanaugh v. Fenwick, 17 Vesey, 307-8. In this case, the partnership could have been dissolved at any time. Crashaw v. Maule, Swanst. 521, 525.
    If it is said the partnership has been dissolved, we reply that it has never been one — that Campbell, so far as any thing, from him appears, ever denied it — he- never did any thing, under the contract. Wilson always repudiated it and him as a partner — so that even if there was- a contract of partnership, there has been no partnership ; and now Campbell seeks to force himself on Wilson as a partner.
    But even in cases where Courts of Equity will enforce contracts of partnership, they will not decree an account for the time the party ought to be admitted ; as to the time past the party will be left to his remedy at law. Gow on Partn. 11 ;■ Anon. Vesey Sen. 729.
    There is- no evidence of a legal partnership. A mutual contribution of something of value is of the essence of the contract. Story on Partn. §§ 3, 4, 5, 6, 8 3 Kent’s Com. 25 ; Collier on Partn. 2, 4.
    Where a partnership is" denied, it will not be inferred from equivocal circumstances. 2 Barb. & Har. Eq. Dig. 337? § 16-
    Nor will the Court decree on a different contract admitted by the answer — nor on proof of material matters going to the consideration of the contract not set out in the bill. The complainant must recover on the allegations of the bill and the evidence thereof, or not all. Thompson v. Todd, 1 Peters’ C. C. R. 380; 1 Johns. Ch. R. 148-9; 6 Johns. 560; 5 Wend. 949-50; 1 Johns. Ch. R. 653-5; 10 Peters, 209.
    VIII. 1. The Court erred in decreeing an account as to two partnerships, made up of different members. 2. In decreeing an account as to the canal contract, as the bill was framed only with reference to an account on the railroad contract. 3. The Court erred in decreeing an account on the the canal contract in the absence of McFarrin, who was also a partner with Wilson and Campbell on that contract.
    IX. The Court erred in confirming the Master’s report. 1. The report was heard on testimony not properly authenfloated. The Master erred in allowing Campbell one-half of one-fourth of the profits, when he was at most entitled to one-half of one-sixth of the profits.

      H. O. Merriman, for the defendant in error.
    The objection to this bill that there was a concurrent condition in the copartnership agreement, unperformed on the part of complainant, is unavailing for the reason that complainant’s right to an account depends upon the acts done under the agreement and not on the agreement itself. If the funds used in the business of the firm of Perry, Wilson & Co. put in by Wilson were the joint funds of complainant and defendant, he is entitled to an account.
    A copartnership may exist between individual members of different firms, and the firms of which they are respectively members have no interest in the accounting. 3 Kent’s Com. 51-2.
    There is nothing in the objection that the other members of the firm of Perry, Wilson & Co., and that McFarrin, a copartner with complainant and defendant in the canal contract, are not made parties, as those firms were fully dissolved before this bill was filed, and a full settlement had also taken place between the several members of the respective firms, and Campbell had received the balance due him, on sale of Canal contract, and Wilson had received the balance due him out of Rail Road contract. Hence, no further accounting or settlement is needed, except as between complainant and defendant. Whenever the object of a joint undertaking is completed, it is a dissolution of the copartnership. Story on Partn. § 280.
    By an application of these principles to this case, if the parties had a joint interest in the funds used on canal and rail road, there must be a decree for complainant. This is proved by a reference to the proof in the record.

      O. Peters, also, for the defendant in error.
    The allegations of the bill are sufficient. The bill is in-artificially drawn, but the Court will look to the substance, and see that such a case is made by the bill as will entitle the party to the relief sought.
    The agreement between the parties as set out in the commencement of the bill, is introduced only as an inducement to the partnership, and as explanatory of it. No relief is sought by virtue of this agreement, but by virtue of the partnership which resulted from the agreement. We claim a participation in the profits of the partnership, and the only effect of the agreement is to define the nature and extent of the partnership. The complainant’s bill would have been sufficient without any statement relative to the agreement. It might have been entirely omitted.
    Again, the objection that there should have been other parties to the bill, is not well taken. In determining who shall be made parties, it is not necessary to inquire whether all persons interested in the subject matter of the suit are made parties, but only whether those are made parties who are interested in the object of the suit. Story’s Eq. PI. § 72; Whiting v. Bank U, S., 13 Peters, 11.
    The object of this suit is to charge one-half of the profits of the partnership existing between C. & W. No other persons have any interest or concern in the division of these profits; so that the object of the bill is fully accomplished by a litigation between the present parties.
    The other members of the firm of Perry, Wilson & Co. cannot be called upon to execute the decree that may be rendered in this case. Story’s Eq. PI. §§ 74,76, a, b, c, 81, 153, 167 a, 189. The proof sustains the allegations in the bill. The Master’s report sustains and shows that the defendant in error is entitled to one-half of the profits of the partnership.
    It is too late to take exceptions to the Master’s report. The exception should have been made to the Master before his report was made to the Court, and objection cannot be made at the hearing, but the Master’s finding of the facts, and the conclusions drawn by him must stand. Meth. Ep. Ch. v. Jacques, 3 Johns. Ch. R. 78.
   The Opinion of the Court was delivered by

Treat, C. J.

One branch of this case — that relating to ' the canal contract — is easily decided. The bill states that Campbell & McFarrin' purchased the share of Wilson in this contract, but alleges a secret arrangement between Campbell and Wilson, by which the latter still retained an interest in the contract. The answer admits the sale, but denies the private agreement charged in the bill. There is no proof that any such agreement was made; on the contrary, it clearly appears that the sale was bona fide, and absolute in its terms. There was then no partnership between the parties in this contract to be adjusted by a Court of Equity.

The other branch of the case relates to the rail road contract. The bill does not seek the specific performance of an agreement for a partnership, but it proceeds on theground that there has been a subsisting partnership, in the settlement of which the aid of a Court of Equity is necessary. A mere agreement to form a partnership does not of itself create a partnership. The parties must enter on the execution of the agreement before the relation of partners exists between them. While the agreement remains executory, if one of them refuses to carry it into effect, the only remedy of the other is by an action at Law for the violation of the agreement, or by a bill in Equity to enforce specifically its performance.

It was probably the understanding of these parties, that each should, under certain circumstances, become equally interested in whatever contract either might obtain on the rail road. The question is, was this understanding so carried into effect as to constitute them partners in the contract procured by Wilson. We are clearly satisfied that no partnership in fact existed between them in the execution of this contract. The acts of the parties afford the strongest evidence that they did not regard themselves as jointly interested. In the prosecution of the work under the contract, Wilson performed all the services, made all the advancements, and incurred all the responsibilities. Campbell claimed no control over the contract, nor in any manner concerned himself about its performance. Wilson did not recognize him as a partner, but on all occasions denied that he was such. The offer of Wilson to give Campbell one hundred dollars for his interest in the contract — proved by the witness, Owens — was made before the work commenced ; and his subsequent statement to McFarrinno doubt referred to the same proposition. After Campbell sold out his interest in the canal contract, he took a sub-contract from Wilson and his associates for work on this very rail road contract. If a partner of Wilson, why did he not join him in prosecuting the contract to completion instead of becoming a sub-contractor under him.

The statements of the bill respecting the objects of the partnership, and the mode of conducting it deserve consideration. These statements are, that the sale of Wilson’s share in the canal contract was not real, but, as between Campbell and Wilson, an expedient only to enable them to procure means and credit at the store of Campbell & Mc-Farrin to prosecute the rail road contract, and that Wilson should superintend the work on this contract and Campbell that on the canal; in other words, they were partners in both contracts, and the services of one were to be an equivalent for those of the other, while the means for carrying on both contracts were to be obtained from the firm of Campbell & McFarrin. The proof shows conclusively that these allegations are untrue. The sale was absolute, and Wilson from that time ceased to be interested in the canal contract. The sale was made about the time the work on the rail road was commenced, and Campbell could not therefore perform any services on the eanal that would enure to the benefit of Wilson. By the terms of the sale, Campbell & McFarrin became largely indebted to Wilson, and the moneys and goods received by him were in liquidation of this indebtedness.

The evidence fails wholly to make out a case of partnership, and if Campbell has a cause of action against Wilson, it is for a violation of the agreement to form a partnership, to be enforced by "a suit at Law.

The Circuit Court erred in decreeing that a partnership existed, and consequently all of the subsequent proceedings in the case were erroneous.

The decree of the Circuit Court is reversed with costs, and the bill dismissed.

Bill dismissed.

      Caton, J. took no part in the decision of this cause, it having been removed by change of venue from the Circuit where he was formerly the presiding Justice.


source: Caselaw Access Project

author: Caton, J. Treat, Ch. J. Trumbull, J.

license: Public Domain

text:
    Bela Shaw, impleaded, &c., appellant, v. Ezekiel Dennis, appellee.

      Jippealfrom Winnebago.

    The Act of the Legislature, passed February 25, 1847, entitled0“ An Act for the maintenance of the Rockford Bridge,” is not unconstitutional.
    The Legislature has the right to impose local taxes for specified purposes, and to determine what extent of territory shall be subjected to their payment. Authority given by the Legislature to certain Commissioners to ascertain and determine the amount of a particular indebtedness, is not an exercise of judicial power by the Legislature.
    Under the 25 th section of the 89th chapter of the Revised Statutes, where a personal demand has been made for taxes by the Collector, it i^ discretionary with him whether he will make a distress before the expiration of ten days from the time of making the demand. In case a personal demand is not made, but the notice is left as is required by the 34th section, then the demand may be be considered as incomplete until the expiration of the ten days, within which, by the terms of the notice, the party has to pay the tax.
    A warrant for the collection of taxes imposed by a Board of Commissioners appointed for the purpose, may be issued by a majority of the Board.
    Trespass, in the Winnebago Circuit Court, brought by the appellee against the appellant, Hiram R. Maynard, and Ephraim Wyman, for taking and driving away certain cattle, the property of the appellee.
    The declaration contained two counts, which were -substantially alike, and in the common form. The defendants •severed in their pleas, Maynard pleading separately, and the others joining in a like plea.
    Maynard pleaded not guilty, and two special pleas of justification. His first special plea set forth, that on the 25fh day of February, 1847, the Legislature passed an Act to ■authorize the levying of a special tax upon the owners of property in Rockford precinct for the purpose of maintaining a certain bridge, which had been previously erected across Rock River, at Rockford, and constituting the other defendants, Shaw and Wyman, together with two others, a corporate body by the name of “ Bridge Commissioners, ” to carry out the provisions of the Act ; that, on the 29th day of March, 1847, said Bridge Commissioners entered upon their duties, and on the 30th day of April, 1847, made out a list of the taxable persons of Rockford precinct, together with an assessment of the taxable property of each, at the rate of fifty cents on each one hundred dollars; that on the 29th day of November, 1847, said Bridge Commissioners delivered their warrant to the defendant, Maynard, who was then Sheriff and Collector of said county of Winnebago, authorizing him to collect eight dollars and forty two and a half cents from said plaintiff, Dennis, that being the amount of tax assessed against him as owner of property in said Rockford precinct to the amount of $1685 ; and that the defendant took the property mentioned in the declaration, by virtue of the authority of said warrant, as Sheriff and Collector, for the purpose of making said tax from it.
    His second special plea is substantially like the first, except that it sets forth that the warrant was signed by three of the Bridge Commissioners.
    The other defendants pleaded jointly not guilty, and two special pleas setting forth substantially the same state of facts as in Maynard’s special pleas.
    The plaintiff joined issue on the pleas of not guilty,'and demurred specially to all the special pleas, which demurrers were sustained by the Court. The parties went to trial upon the issue joined, and judgment was rendered in favor of the plaintiff for sixty five dollars. Shaw took an appeal to this Court.
    The appellant assigns for error that the Circuit Court erred in sustaining the demurrers.
    The cause was argued ex parte by the counsel for appellant at an early day in the term, the counsel for the appellee not having been in attendance. Subsequently, on appearing, he was allowed to join in the errors assigned, and having been furnished with the authorities cited by appellant’s counsel, the argument was continued.

      F. Bitmap, for the appellee.
    The appellee makes the following points in this case :
    1. The Act of the Legislature, which the plaintiffs pleaded in justification of the alleged trespass in the Court below, is unconstitutional and void, because it amounts to a judicial determination that there is a-debt due to some person. Acts of 1847, p. 14. It declares a debt and orders an an execution for it. Ib. §§ 1,2; 1 U. S. Dig. 565, § 227: Lane v. Borman, 3 Scam. 240; Edwards v. Pope, Ibid. 470; Hampshire v. Franklin, 16 Mass. 84; State v. Fry, 4 Missouri, 144-5, 189, 191.
    2. The proposed tax was for two different objects. If one of these objects was unlawful, it vitiates the whole. There can be no separating the part which is legal, if any be legal, from that which is illegal. Torrey v. Milbury, 21 Pick. 70; 3 U. S. Dig. 507, §§ 106, 107; Libby v. Burnham, 15 Mass. 147; Stetson v. Kempton, 13 Mass. 282; Bangs v. Snow, 1 do. 188, 189; Drew v. Davis, 10 Verm. 506.
    3. The pleas of the defendants Shaw and Wyman do not state what year they took the assessment of in making out their list. But it must be inferred from the dates, and reference to the statutes respecting the levy of taxes, that they took the assessment of T846. The Act under which they justify, was passed Feb. 27, 1847. Monday March 1, 1847, two days after, the County Commissioners’ Court held a term, and were at that term required to make the assessment. Rev. Stat. ch. 89, 438, §§ 8, 11, first part, §§ 16, 21, 22, 23, 26 and 30.- These sections show the process of assessing and collecting a regular tax. The alleged Commissioners declared their tax March 30th, 1847, made their list and assessment April 30th, and delivered their warrant to the Sheriff, Nov. 29th, 1847. If the assessment of 1846 was taken, the plea is bad, for if the Act meant the assessment of that year, it was void as a violation of the Old Constitution. Art. VIII, § 20. If the Act intended the assessment of 1847, the plea is bad because it does notfollow the Act. See Sawyer v. City of Alton, 3 Scam. 129.
    4. The pleas are bad for not showing clearly what year the Commissioners took the assessment of, and if doubtful, must be taken most strongly against them, and the assessment assumed to be’ that of 1846.
    6. The Bridge Commissioners mentioned in the Act, have evidently mistaken the intention of the Act in giving any valuation or assessment to the Sheriff. They were to make a list of names and a warrant, and to deliver them-to the Collector’, and he was to collect fifty cents on $100, according to the assessment of 1847, at the same time when he collected the regular taxes of that year.
    6. The question may occur whether the Act in question be-public or private. But taken either way, the pleas are bad in not showing by what means Shaw, Wyman, McKenny and Crawford continued to be “Bridge Commissioners” till Nov. 29th, 1847, when they gave their warrant to the Collector. If the Act be public, they must show that they were in by election. Act, § 3. If the Act be private, they must show by quotations from it, or otherwise by allegations of facts constituting their continuance, to enable the Court to judge whether they continued to be Commissioners.
    7. If the Act is a private one, it should provide all the means necessary to carry into effect the power it grants; if it do not, that power must fail of execution.

      8. The pleas do not show to whom the bridge belonged. Alleging that it was a ‘certain bridge of the town of Rockford,3 is mere matter of description; and the statement that the public were liable to keep it in repair, contradicts the idea that it was owned by the town; for if the town owned the bridge, it would follow that the town, and not the public, were liable to maintain it. The pleas, however, contradict the common intendment that all bridges belong to the county. Rev. Stat. 482, § 14. It must, therefore, have been built by private individuals who had expended their money in building it, and now seek to be reimbursed, which is the indebtedness declared by the Act.
    9. The pleas of the Collector should have shown that the distress was a reasonable'one. This is the Common Law doctrine. See Rev. Stat. 442, § 37. It should show why there was such a disparity between the amount of the tax and the property taken.
    10. The pleas of the Collector ought to show how the property was disposed of after the distress was made. If the defendant intends to allege a distress at Common Law, he ought to state that he has the beast on hand, ready to to be re- delivered when the tax should be paid, for at Common Law a distress could not be sold. 2 Leigh, 809. The pleas do not refer to any statute, and the intendment, therefore, is that a Common Law distress is meant. But if the pleas intend a distress under the general revenue Act, they must show a compliance with it. Rev. Stat. 442, §§ 35, 36, 37.
    A short review of the plaintiff’s cases will show that they do not make against the defendant. The most semblable of these is Thomas v. Leland, 24 Wend. 65; see N. Y. Const. of 1821, Art. I, § 1; Art. Ill, § 1. The Courts are organized, but nothing is said about their powers. No restriction is imposed upon the exercise1 of judicial power by the Legislature. Ibid, Art. VII, § 7, latter part.
    The case of Norwich v. Hampshire, 13 Pick, is not applicable, nor is that of Campbell v. Mississippi Union Bank, How. (Miss.) R. 672. In -regard to Kibby v. Chitwood’s Adm’rs, 4 Monroe, 94, and Trustees of Paris v. Berry, 2 J. J. Marsh. 483; see 3 Scam. 243, 244, 245.

      0. Peters, upon the same side.
    1. The plaintiff below (Dennis) is not shown by the pleas to have been in default. It does not appear that ten days had elapsed after'demand made for the tax. Rev. Stat. 442, ■ §§ 34, 35. It.is not sufficient to allege that there was a demand and refusal. To allege that the demand was legally made, does not show that ten days had elapsed.
    2. The warrant or authority from the ¡Commissioners is ■not sufficiently set out in any of these pleas. The Commissioners are limited in their authority, and of a very special jurisdiction. To justify the trespass, they must show the authority under which they acted, and that they acted within
    .their charter of authority. Pierce v. Benjamin, 14 Pick. 359; Toof v. Bentley, 5 Wend. 276; Brewster v. Hyde, 7 New Hamp. 206; 1 Chitty’s Pl. 539-40; Phil. Ev. Cowen & Hill’s notes, pp. 964, 1013, 1021, 1104, 1288; Caldwell v. Eaton, 5 Mass. 403; Sharp v. Speir, 4 Hill’s(N. Y.) R. 81, 86.
    3. The Act’ gives no power to make distress for the tax. It confers no power to execute its provisions. It makes no reference to the general revenue law, nor in any way directs how the payment of the tax is to be enforced. Toof v. Bentley, 5 Wend. 276.
    4. The pleas show that three only of the commissioners signed and issued the warrant. The act of declaring the tax was judicial; that of making and issuing the warrant was ministerial. The distinction is, that where th-é act is judicial, a majority may act; but where it is ministerial, it must be the act of all. Bac. Abr. tit. “.Authority

    5. The pleas should show what property was assessed, whether real or personal, and how much of each, and what. Otherwise, the tax payers co.uld have no means of making an issue, whether they were properly taxed or not. By this Act, they have no power to appeal from the 'Commissioners, no remedy for the irregularity of the tax, but in a suit of this kind.
    6. The pleas nowhere allege- or show that Dennis was the owner of the property taxed at the time of the passage @f the Act, or the declaration of the Commissioners for the tax was made. If the property had been alienated or destroyed before the right to levy the tax was created by the Act, he (Dennis) was not liable to be taxed for it, and when the defendants set up the justification, they must show that Dennis was liable to be taxed.
    7. The Act violates § 20, Art. 8, of the old Constitution. That section manifestly intends that each tax shall be based on a valuation. It does -not authorize past valuations. The valuation of 1840 will not answer for the basis of tax in 1847, or any other year. Taxes are not to be made on valuation only, but they have ^regard to ownership also; so that the property may be taxed against the owner, and this can be done only by making a valuation for each assessment. If the Legislature can go back a year, they may twenty years.
    8. The term of offic'e of the Commissioners expired in August, 1847, and there is no allegation that they had been re-elected, according to the provisions of the Act. The allegation that they continued Commissioners is insufficient. In the case above cited from N. Hampshire Reports, the Court required that it should be shown that the town meeting voting the tax was regularly called and legally holden.

      J. Marsh & J. M. Wight, for the appellant, in conclusion.
    The questions presented in this case by the special demurrers, to wit: 1st, that the Act under which the defendant below justified is a private Act, and is not sufficiently set forth in their pleas; 2d, that the pleas do not aver whether the defendants Shaw and Wyman were acting as Bridge Commissioners by virtue of their original appointment or election ; 3d, that it does not appear by the pleas who owned or was bound to keep said bridge in repair j and 4th, that the pleas do not show from what year the assessment was taken, are not only entirely unimportant; but, a very slight attention to the case, as presented by the record, will furnish full answers to them.
    There is surely enough of the Act set forth in the pleas to show a sufficient power under which the defendants below were acting; and a demurrer is not a very efficient mode of bringing the other parts of the Act before the Court, so as to enable them to judge whether it is a public or private Act. However, the plaintiffs in error contend that it is to all intents and purposes a public A.ct; not a general Act, to be sure ; but still, none the less a public Act, because it operates upon all persons and property alike, within the particular limits. But this point is clearly and definitely settled in 1 Kent’s Com. 459, and in Bank of Utica v. Smedes, 3 Cowen, 662, (684.)
    The second and fourth objections to the pleas are not well taken, because the pleas directly aver every necessary fact in those respects, and whether the bridge was owned by and was to have been kept in repair by the people of Rockford precinct, or Winnebago county, or neither of them, has nothing to do with the effect of the law.
    We come now to the only question really involved in the case, to wit: Is the Act under which the defendants below justified constitutional.
    It is insisted that it is unconstitutional, because the Legislature assumed that there “was an indebtedness,” and that the tax should, in part, be appropriated to discharge it. If, indeed, it were true that this particular provision is unconstitutional for any reason, non constat, that the other provisions are also void. And more especially might this view be urged when it is considered that no where in the record is it intimated that the Bridge Commissioners have ever assumed to appropriate the first cent to any other purpose than “repairing and maintaining the bridge.” Campbell v. Miss. U. Bank, 6 How. (Miss.) R. 625, Opinion of the Court, and authorities cited on pages 672, and 677; Edwards v. Pope, 3 Scam. 470.

      But we insist that it is clearly within the legitimate sphere of the legislative power to provide a fund by levying taxes, for any object or purpose in any part of the State. And it is not an argument against the exercise of this power that the Legislature may not always act wisely ; or even that it may sometimes be exercised corruptly. Who ever heard it intimated that the Legislature has not the power to levy taxes specifically to pay off claims in favor of particular individuals ? If this may be done where the whole State is concerned, why not where a county, a city, or precinct ?
    Distinct communities, as counties, cities or towns, often have local interests peculiar to themselves, and dependent upon such circumstances, that no general laws can reach, or be adapted to them, and yet it may be of vital importance to them, as in this instance, to have the legislative aid precisely suited to their condition.
    Of that character is the Act now in question, and if we had no other guide to a correct conclusion, the constant and uniform practice of the Legislatures of all the States, in all time past, so that “the memory of man runneth not to the contrary,” in passing just such laws, might well be regarded as a strong reason in favor of their constitutionality.
    While, however, the constitutionality of such laws has been often questioned, the Courts of different States have uniformly, in a great variety of cases, and without a single exception maintained their constitutionality, Thomas v. Leland, 24 Wend 65; Norwich v. Co. Comr’s. 13 Pick. 60; Sawyer v. City of Alton, 3 Scam. 127; Vanderbilt v. Adams, 7 Cowen, 349; Trustees of Paris v. Berry, 2 J. J. Marsh. 483.
    It is insisted against the constitutionality of this law that the Legislature assumed to act judicially in determining the existence of an indebtedness. This objection is more specious than sound. Where no liability is fixed in favor of any person against another — where no amount is defined, no person designated to, or from, whom it is due — and no time or manner of payment determined — it would require a nicety of perception possessed by very few to discover in such a case the usual requisites of a- judicial determination.
    Although this point must depend upon the particular provisions of this Act, yet as the cases of Lane v. Dorman, 3 Scam. 238, and of Edwards v. Pope, ib. 465, very clearly indicate what Acts of the Legislature the Supreme Court of this State have heretofore regarded as judicial, or otherwise, we insist that those cases settle this question beyond' controversy.
    It is- also gravely contended by defendant in error that this: Act is in violation of section 20, of the 8th Article of the Constitution, because forsooth that the Act provides that the Commissioners shall take their tax list from “ the then last assessment. ”
    Such an argument might do very well in the political arena, in support of the peóplish doctrine that it is the peculiar birthright of every American freeman, not only to discuss, but intuitively to understand the constitutionality of every Act of our Legislatures.
    We apprehend, however, that such an argument, based upon such trivial reasoning, will hardly find much favor in this Court.
    On the contrary, not only because a question of constitutionality is involved in this case, but because very important interests in every part of our State depend upon the validity of these local and special laws, the sound conservative doctrine may well be urged at this time, that “ Courts are very reluctant to pronounce an Act of the Legislature void or unconstitutional ; and they will not do so, but in cases of clear necessity, and where the Act is in plain and obvious conflict with some express provision of the Constitution; and that too where the Act is so palpably unconstitutional that there can be no chance for a reasonable doubt, or difference of opinion. ” Adm'rs. of Byrne v. Adm'rs of Stewart, 3 Dessua. Eq. R 466, 476—7; Campbell v. Miss. U. Bank, 6 How. (Miss.), R. 672-7; Lane v. Dorman, 3 Scam. 240; Edwards
      v. Pope, ib. 465; Cochran v. Van Surley, 20 Wend. 360; (382); Sawyer v. City of Alton, 3 Scam. 127.
    Again, it is objected that the pleas are defective because they do not aver with sufficient certainty that the levy was not made until the expiration of ten days after the tax was demanded by the Collector.
    There is no force in this objection,, because, first, the pleas do aver in general terms that the tax was demanded as the law required ; second, the defendants below having severed in their pleas, and this objection being only available (if at all) against Maynard alone, it cannot be taken advantage of here to sustain this judgment, which is entire against all the defendants upon their demurrers. It only, however, requires a plain, common sense construction of the section of the- statute under which it is presumed the Collector-acted (Rev.. Stat. 442, § 35,). to meet the whole objection. The plea states that the Collector demanded the tax of Dennis, and that he refused to pay, &c. If he had not refused, then,, perhaps, the Collector should have waited ten days before making a levy, and perhaps, also, it might have been necessary to make such averment, but we insist that the statute does not require the Collector to wait at all after a refusal; and surely this Court will not so construe-this section as to' involve the palpable absurdity of requiring the Collector to fold his arms and quietly wait ten days after the tax payer has refused to pay his tax.
   The Opinion of the Court was delivered by

Caton, J.

The first section of the Act of the 25th of February, 1847, under which all the defendants in the Court below justified, authorized the levy of a special tax upon all the taxable property in Rockford precinct, “for the purpose of repairing and maintaining the bridge across Rock River, at Rockford, and to defray the debt incurred in its erection, and repair; said tax not to exceed fifty cents on one hundred dollars of taxable property.” In the second section, two-of the defendants, Shaw and Wyman, and two other persons, are appointed “Bridge 'Commissioners of the Rockford Bridge,” and they and they and their successors are made a body corporate and politic, and are vested with the power to declare the amount of tax to be levied, and are required to make out and deliver to the Collector of Winnebago county, a list of all persons liable to taxation under the Act; such list, together with the amount and valuation of taxable property “to be taken from the last assessment of taxable property in said county,” and the commissioners were required to deliver to the Collector a warrant for the collection of the tax. This second section also authorized the Commissioners, with the proceeds of the tax, to keep the bridge in repair, and to discharge past indebtedness, if they thought proper; previous to the payment of such debts, however, the Commissioners are required to settle and state all the accounts in relation to said bridge. These two first sections only are set out in the pleas, nor is it material to notice the balance of the Act.

First, it is objected that this Act is unconstitutional, because it imposes a tax upon Rockford precinct to pay the private debts of individuals, incurred in the erection of this bridge. The particular portion of the Constitution supposed to be violated, is not pointed out, even admitting that the tax was to be assessed as supposed. But it does not appear, either from the Act itself or from this record, whether the “past indebtedness” referred to in the Act was due from individuals or from the public. But admitting the fact to be as stated upon the argument, that individuals had become personally responsible for debts incurred in the construction of this bridge, we have no doubt that the Legislature had a right to impose a tax upon the precinct to provide for the payment: It will hardly be denied that the Legislature has the right to impose a local tax upon a town or city, a precinct or county, for some local improvement, as the erection of a bridge, or the repair of a road. In doing this, to be sure, it cannot say that one man shall pay all and the others none, or that one shall pay one dollar, and another ten, for the tax must still be uniform, and upon the value of the property which each one has, so that the burthen presses alike upon the whole community. But the Legislature must necessarily have the right to say how large that community thus subject to the tax shall be, whether a city or only one of its wards, or a precinct, a county, or the whole State. If the Legislature had the right to impose this tax to build a bridge, it would be equally lawful to purchase one, or to pay for one already constructed for the public accommodation. But this not a case of first impression. Thomas v. Leland, 24 Wend. 65, is, in fact, a much stronger case than this, and fully answers the objection now made. There certain citizens of the city of Utica had'executed their bond to the State to pay into the treasury $38,615, to defray the extra expense of terminating the Chenango canal at that place. Subsequently, the Legislature passed a law imposing a tax upon the owners of real estate in Utica for the purpose of paying that bond. This law the Supreme Court held to be constitutional, upon the ground that the money had been already expended in the construction of a public work, by which the owners of such real estate had been especially benefited. Even admitting, as counsel suppose, that the Constitution of New York does not prohibit the Legislature from exercising judicial powers, it in no wise weakens the authority of this case, for the imposition of a tax for a specified purpose is in no sense the exercise of a judicial power, but it is purely and strictly legislative.

But ^is said that in the Act before us the Legislature has found and determined the existence of a debt, and thus trenched upon the powers exclusively conferred upon the Judiciary. This Act bears no analogy to those upon which the decisions referred to were made. The most that can be said of this Act is, that it assumes that there may be debts unpaid which were incurred in the erection or repair of this bridge, but it does not undertake to determine their nature or amount, or to whom due, or from whom. All of this is referred to the Commissioners, to ascertain and determine; nor even then, does the Act make it imperative upon them to pay such debts.out of the proceeds of such tax. Whatever there is involved in this Act of judicial power, or even of discretion, is vested in the Commissioners, and is not attempted to be exercised by the Legislature. Indeed, in no part of this Act can we discover the remotest attempt on the part of the Legislature to exercise judicial powers.

There is another objection urged to the validity of this law. The Act directs the Commissioners, in determining who is liable to pay said tax and the amount each shall pay, to be governed by <£ the last assessment of taxable property in said county. ” It is insisted that this is an unjust criterion, for a man might have disposed of all the t axable property assessed to him in the last assessment before this tax was actually declared by the Commissioners. This objection is more refined than practical, and if allowed, would at once annihilate the power of taxation. The assessment of the tax and the valuation of the property, are never simultaneous acts. The county tax is assessed, as declared by the County Commissioners’ Court at their March term, and the assessment of the valuation, and owners of the taxable property need not be completed till September following. Under this system the same injustice may be committed, for a man may be compelled to pay a tax for a whole year on property which he has. only owned for a single day. Indeed, the same horse may be assessed to two different individuals for the same year, for each might own him at the time the assessor takes the list of his property, and yet a third person may have owned him at the time thé Sx was actually imposed. In the same way other property might go unassessed altogether. In the imposition of taxes, exact and critical justice and equality are absolutely unattainable. If we attempt it, we might have to divide a single year’s tax upon a given article of property among a dozen individuals who owned it at different times during the year, and then be almost as far from the desired end as when we started. The proposition is Utopian. The Legislature must adopt some practical system, and there is no more danger of oppression or injustice in taking a former valuation,- than in relying upon one to be made subsequently. We have no doubt but this Act is clearly within legislative power and must be enforced.

- It is further objected, that these pleas do not show that ■ ten days intervened between the time when the demand was made for the payment of the tax, and the time of the levy or distress. This objection assumes that the Collect- or in the execution of the warrant for the collection of this tax must be governed by the provisions of the general revenue law. But there is as much propriety in saying that he should be governed by the provisions of section 8, chapter 25, Rev. Stat., which provides for the collection of taxes in incorporated towns where a demand previous to the levy does not seem to be required. The case of the tax before us assimilates much nearer to- these local corporation taxes than to the general revenue of the State, But admitting the applicability of the provisions of the general revenue law, and we do not think the objection well taken. By section 32, chapter 89, Rev. Stat., the Collector, on receiving the assessment list, is required to proceed to collect the taxes charged in said list, by calling upon each person residing in said county at his or her usual place of residence, and requiring payment thereof. Sec. 34 provides that the Collector^ in case of the absence from home of the tax-payer, shall leave a written or printed notice with some member of the family^ requiring payment of the tax within ten days of th® date of the notice, and that said notice shall be deemed a sufficient demand for the taxes of such person. And the 25th section is as follows : “In case any person shall refuse or neglect to pay his or her taxes when demanded, or within ten days thereafter, it shall be the duty of the Collector to levy the same together with the costs and charges that may accrue by distress and sale of the personal property of sucli person as ought to pay the same wherever the same may be found in the county. No real estate of any person shall be sold for taxes, while personal property of such person can he found by the Collector. ” We are of opinion that this section does not inhibit the Collector from making the distress till after the expiration of ten days from the demand, where the demand is personal as required by section 32, but leaves it discretionary with him to make the distress or not within that time. Were we to adopt any other construction, the demand made by the Collector would but afford facilities to the tax-payer to defraud the revenue, and the Collector might be compelled to stand by powerless, and see the party remove his property without the State with the avowed purpose of avoiding the payment of the tax. Such an intention ought not to be imputed to the Legislature, unless it is clearly indicated by the language used. Here the statute makes it imperative upon the Collector to make levy at all events, if the tax is not paid v/ithin ten days after the demand, but contains no intimation that he may not make the levy before that time. The language is so imperative, that if he does not make the levy as soon practicable after the ten days have expired, he would be responsible for any loss which might accrue by reason of such neglect, and the County Commissioners would be authorized to withhold a credit for such delinquent tax, where it might have been been made by a prompt levy. In case a personal demand is not made, but the notice is left as is required in section 34, then the demand may be considered as incomplete till the expiration of the ten days within which, by the terms of the notice, the party has to pay the tax.

It was also objected on the argument, that the warrant as stated in some of the pleas, was not issued by all the Commissioners. A careful examination of the record will show that the demurrers do not raise this question. A joint demurrer is filed to the second and third pleas in each set of pleas, and as the second pleas are not obnoxious to the objection taken, we cannot say, in the language of the demurrers, “ that the said second and third pleas are not sufficient, ” &c. As the question is not raised, we do not choose to decide it. Although, as the Commissioners are by the Act made a corporate body, which may act by a majority of the corporators, and as the issuing of the warrant was a corporate act, it would seem to follow that the warrant was well issued by the majority.

Note by the Reporter. — After the decision in this case ' was pronounced, the counsel for the defendant moved the Court for an order directing the Circuit Court to grant leave to withdraw the demurrer, and to plead to the declaration.

The judgment of the Circuit Court is reversed with costs and the cause remanded.

Judgment reversed.

Treat, Ch. J.

said that such an order was unnecessary; that, upon the case being remanded to the Circuit Court, the case would stand as if it had not been in this Court, and the pleadings would be subject to the order of that Court.

Trumbull, J.

said that the judgment of the Circuit Court was reversed because the demurrer had been improperly sustained; that upon the case going back to that Court, the party would of course be entitled to withdraw his demurrer and plead over. It is for this purpose that the cause is remanded.


author: Per Curiam.

text:
    In the matter of John McIntyre.

      On Habeas Corpus.

    'The case of a person accused of the crime of murder was duly examined before a justice of the peace, and the accused admitte'd'to bail to answer to a charge of manslaughter. He was again arrested on the same charge, and the justice before whom he was brought, on being advised of the prior proceedings, discharged him from arrest. On a third arrest and examination for the same cause, he was committed to jail to answer to a charge of murder. A writ of habeas ■corpus was sued out: Held, that the last magistrate had jurisdiction of the case, and that the testimony should be heard upon habeas corpus.

    The application for the writ in this ease set forth, in substance, that the applicant, on the 16th of May., 1849, was brought before Warren Brown, Esq., a justice of the peace of the county of La Salle, for examination on a charge of murder, for having caused the death of one Thomas Cunningham on the previous day at the town of La Salle in said county ; that the examination was had at the office of the said justice at Peru in said county, within two miles of the place where the offence was alleged to have been committed ; that the homicide occurred in open day in the presence of many persons, eight of whom were present at said examination, three of whom were examined on behalf of the People, and four on behalf of the accused, the other not being examined by either party ; that another witness on the part of the People, and two on the part of the accused were examined touching the charge ; that the People had experienced counsel on such examination, and that the said hearing “ was a full, fair, thorough, elaborate and impartial hearing, .and examination of all the material testimony then or now existing” against the accused in respect to the charge.
    The application further set forth that the said Brown was “ a magistrate of well known and undoubted intelligence and integrity, ” and had had “ ample experience of many years in the discharge of the duties of his office ; ” that, upon the conclusion of the examination aforesaid, the said magistrate caused the accused to enter into recognizance for his appearance before the Circuit Court “ to answer for the crime of manslaughter, ” &c., and that the accused complied with the said determination by entering into recognizance for such appearance with two responsible securities in the sum of $600, when he was discharged from arrest on said charge.
    Subsequently, as appeared by said application, the accused was again arrested on a warrant issued by M. E. Hollister, Esq., another justice of the peace of said county, to answer to the same charge, and the case being removed from said justice to be heard "before Joseph H. Morrill, Esq., the next nearest justice, the accused exhibited to the latter the proceedings before the said Brown, when he was immediately discharged from arrest.
    A third arrest was made upon a warrant issued by Nicholas Keating, founded upon the same charge, and the accused was brought before him for examination, when, before any testimony was heard, the accused stated the proceedings before the said Brown and the said Morrill, and offered to prove the same, if required. The said Keating, however, refused to allow any proof of such prior proceedings, and proceeded to hear a part of the testimony heard before the said Brown and the testimony of the People’s witness present at the examination before said Brown, who was not then examined, but heard no further evidence. The application set forth that the last mentioned witness testified to nothing more than the other witnesses had, in substance, stated on the examination before said Brown.
    It further appeared from the application that the said Brown, after the examination of the witnesses, asked the witness last referred to, whether he was present at the commission of the homicide, and on his replying in the affirmative, the said Brown further inquired of him whether the facts had been fully and truly stated by the other witnesses, to which he replied that they had so far as he knew, and that he had heard their testimony.

      Note by the Reporter — The witnesses were subsequently examined before the Justices of the Supreme Court, and the accused was ordered to give bail in the sum of three thousand dollars with good and sufficient securities for his appearance at the Circuit Court to answer to an indictment for murder or manslaughter in killing the said Thomas Cunningham, and in default of giving such bail, to stand committed, &c. The accused failed to procure the bail required.
    On the conclusion of the testimony before the said Keating, the accused was ordered to be committed to the jail of La Salle county “ to answer the charge of murder, in killing the aforesaid Thomas Cunningham, ” and he was committed accordingly.
    Minutes of the testimony given before the said Brown, and sundry affidavits were filed with the application.
    On the presentation of the application to this Court, a writ of habeas corpus was issued.

      J. C. Champlin, for the applicant,
    on the' return of the writ, submitted to the Court whether, under the circumstances set forth in the application, the said Keating had jurisdiction of the case, and whether the applicant ought not to be forthwith discharged from arrest without a further examination of the case by this Court.

      B. C. Cook, Circuit Attorney,
    objected to the discharge, and insisted that the testimony ought to be heard.
   Per Curiam.

We are inclined to hold that the justice had jurisdiction, and that it is our duty to hear the witnesses, and then determine whether the prisoner be remanded, held to bail, or discharged from custody.


author: Treat, C. J.

text:
    Peter Johnson, impleaded, &c., plaintiff in error, v. Newman Barber, defendant in error.

      Error to Kane.

    In an action of trespass upon the case for setting fire to a prairie, &c., the Court was asked by the defendant to instruct the jury “ that they must be satisfied from the evidence that John Johnson was the agent of Peter Johnson, employed in and about his business, and that he, John, was and did act within the scope of his employment at the time he set fire to the prairie, or he, Peter Johnson, is not liable, and they will acquit him.” The instruction was given with this qualification: “ This is the law so far as Peter Johnson is sought to be made liable as master, or principal, for the acts of John Johnson : ” Held, that assuming the relation of master and servant to exist, the qualification was proper.
    The Court was further asked to instruct the jury that “if John Johnson transcended his authority given him by said Peter Johnson, then he, said Peter, is not liable, and they, the jury, should acquit him. ” The instruction was given with this qualification: “ This is the law so far as Peter Johnson is sought to be made liable as master or principal, for the acts of John Johnson : ” Held, that the qualification was proper.
    The Court was also asked to instruct the jury that it was “ for the plaintiff to prove that the agent acted with the assent, or under the directions of the principal, when he commits the tortious acts, and that it cannot be presumed, although he is in the employ of the principal, and unless it is proved, they must acquit the principal. ” The instruction was given with the following qualification: “ This must be understood so far as it is sought to recover for a tortious act of servant or agent acting in relation to the principal or mas- • ter. ” Held, that the qualification was proper.
    A principal is liable to third persons for the frauds, torts, and negligences of the agent, even though the conduct of the agent is without his participation or consent, provided the act is done in the course oi the employment, and is not a wilful departure from it.
    If one of two defendants in an action of trespass on the case, while engaged in the prosecution of the business of the other, carelessly or negligently set fire to the prairie, or even purposely with a view to benefit or protect the interests of the employer, the latter would be liable for the consequences y hut if he set . out the fire from motives of malice or wantonness, the principal would not be liable, for it would be an abandonment of the business of the agency.
    If one person commit an unlawful act under the direction of another, that fact will not shield him from responsibility, but both are equally liable to the injured party.
    If a person be authorized, under the 158th section of the Criminal Code, to set fire to the prairie, he is bound to use every reasonable precaution to prevent injurious results to others. In a suit for an injury resulting from the setting of such fire, the plaintiff'is only required to prove that the defendant set out the fire that occasioned it. If the latter have any excuse or justification for the act, he must prove its existence.
    Grass severed from the freehold becomes personal property, and in an action for its destruction by a fire set upon-the prairie, the plaintiff is not required to show title to the land on which it was cut.
    Trespass upon the Case, in the Kane Circuit Court, brought by the defendant in error against the plaintiff in error and one John Johnson, for firing a prairie, &c., and heard before the Hon. John D. Catón and a jury, at the April term, 1847. The defendants pleaded the general issue.
    During the progress of the trial, the counsel for the defendants asked the Court to give several instructions to the jury, some of which were refused and others given with a qualification. The following is the bill of exceptions taken in the case:
    “Be it remembered that, on the trial of this cause, the counsel for the defendants asked the Court to instruct the jury as follows:
    1. The Court will please instruct the jury, that they must be satisfied from the evidence that John Johnson was .the agent of Peter Johnson, employed in and about his business, and that he, John, was and did act within the scope of
    his employment at the time he set fire to the prairie, or he, Peter Johnson, is not liable, and they will acquit him, which instruction was given by the Court, with the following qualification : “This is the law so far as Peter Johnson is sought to be made liable as master or principal for the acts of John Johnson.”
    2. If John Johnson transcended his authority given by said Peter Johnson, then he, said Peter, is not liable, and they, the jury, shall acquit him. This instruction was given by the Court with the same qualification as above.
    3. The principal is not liable for the tortious acts of the agent, although, at the time such tortious acts were committed by the agent, he was engaged and employed in and about the business of the principal, unless he, the agent, in so doing is carrying out the instructions of the principal, or he, the principal, subsequently assents to it. This instruction was given by the Court with the following qualification : “Yet the principal may be liable for the acts of the servant or agent, while doing the work of the principal or master without the instruction of the principal to do the particular tortious act.”
    4. The plaintiff is not entitled to recover of the defend- • ants unless he proves all the material averments in his declaration, and the loss he, the plaintiff, has sustained, occasioned in -.consequence of the negligence of the defendants in manner and form as in the said plaintiff’s declaration mentioned. This instruction was given by the Court.
    5. If the injury is the effect of negligence in both parties, without any intentional wrong or gross negligence on the part of the defendants, then he, the plaintiff, cannot recover or maintain his action, and the jury should find for the defendants. This instruction was given by the Court.
    6. It is for the plaintiff to prove that the agent acted with the assent or under the directions of the principal when he commits the tortious acts, and that it cannot be presumed, although he is in the employ of the principal, and unless it is proved, they must acquit the principal. This instruction was given with the following qualification: “This must be understood so far as it is sought to recover for a tortious act of servant or agent acting in relation to the principal or master.”
    7. The plaintiff cannot recover against both of the defendants, for if John Johnson acted under the instructions and directions of Peter Johnson, then he, Peter, is alone liable. If John Johnson acted contrary to the direction of Peter Johnson, then he, Peter, is not liable, and they must acquit him. This instruction was refused by the Court, f

    8. The defendant Peter Johnson had a right to set fire to the prairie, or direct his agent to on his own lands. If any damage was done to the plaintiff in consequence of so setting fire to the prairie, the defendants, under the-plaintiff’s declaration, are only liable if the damage was done in consequence of the negligence of the defendants after the fire was set to the prairie, and this must be proved by the plaintiff, or they, the jury, must acquit the defendants. This instruction was refused by the Court, The Court at the same time stated in answer to an interrogatory of the defendants’ counsel, that although at the Common Law it might be lawful for the defendants to burn the prairie on his own premises, yet it is made unlawful by the 158th section of the Criminal Code to intentionally set on fire, the prairie in the inhabited part of the State at any time without giving to his neighbors two days’ notice of his intention so to do, although, he might be the owner of such prairie.
    9. The Court will please instruct the jury that unless the plaintiff proves the title in the plaintiff where the grass or hay was cut was in the plaintiff, and where it stood at the time it was destroyed by fire, he cannot recover its value of the defendants. This instruction was refused by the Court.
    To the refusal of the Court to give said instructions, and in giving the said qualifications to the instructions given, and'in the statement made by the Court as inserted after the eighth instruction, the defendants excepted and prayed the Court to “sign and seal,” &c., &e.
    The jury returned a verdict against the defendants and assessed the plaintiff’s damages at the sum of $489. The defendants then entered a motion for a new trial,, which the Court overruled and rendered a judgment upon the verdict of the jury.
    jG. W. Tracy, for the plaintiff in error.
    The Court erred in not instructing the jury that the plaintiff, to entitle him to recover, should show title to the premises on which the injury was done. It is an important fact to be proved.
    The other instructions asked by the defendants should have been given. The alleged torts were the acts of the agent, and not of the principal or employer. The principal was not in any way liable.

      W. D. Barry, for the defendant in error»
    1. Every person who does an unlawful act is responsible for all the consequences resulting from it. If the injury is occasioned by unavoidable accident, the party is not liable; but if any blame is imputable to-him, though he had no intention to injure another, he is still liable for the damages sustained. Clark v. Lake, 1 Scam. 229; Stout v. McAdams, 2 do. 67; Dygert v. Bradley, 8 Wend. 469; Bullock v. Babcock, 3 do. 391.
    2. None of the evidence is contained in the bill of exceptions, and the Court cannot see the applicability of the instructions refused, and will not reverse a judgment for a refusal to give abstract propositions of law to the jury. Samuel v. Withers, 9 Missouri, 166; Maston v. Fanning, Ibid. 305; Palmer v. Hunter, 8 do. 512; Cawthorne v. Muldrow, Ibid. 617.

      O. Peters, on the same side.
    The instructions asked for, assumed the existence of a ■state of facts not shown by the bill of exceptions to have been proved. There is nothing to show whether one of the Johnsons was principal and the other agent or not.
    The qualifications to the instructions were rightly given. In torts all are principals. Though the principal may be liable for the acts of the agent, yet this will not relieve the agent from liability. One cannot justify a tortious act by showing that he acted by the command or direction of another. The case of Burton v. McClellan, 2 Scam. 434, fully establishes the doctrine that if a person sets out a fire he is responsible for all the consequences — and that, to justify himself, he must prove that the fire was set out lawfully, and that he used all possible means to prevent injury.
    As to the last instruction asked for, it is couched in such ambiguous terms, that the Court might well have refused to give it on that account only; ( Baxter v. The People, 3 Gilm. 368;) but if the instruction was intended to assert that it was incumbent upon the plaintiff to prove that he was the owner of the land where the stacks were, which were destroyed, it was incorrect and ought to have been refused. The cause of damage charged in the declaration, is the destruction of personal property; and it is not easy to see how the title to the land where the property was? can be inquired into. Whether the plaintiff below was the owner of the land or not makes no difference as to the amount of his loss, or the liability of the defendant, t

   The Opinion of the Court' was delivered by

Treat, C. J.

The Court properly qualified the first, second, and sixth instructions. The instructions, as demanded, assumed that the relation of master and servant existed between the defendants. The modification confined the instructions to such a state of case.

No error was committed in adding the qualification to the third instruction. The principal is- liable to third persons for the frauds, forts, and negligences of the agent, even though the conduct of the agent is without his participation or consent, provided the act is dóne in the course of the employment, and is not a wilful departure from it. Story on Agency, § 452 et seq; Bush v. Steinman, 1 Bosanquet & Puller, 404; Wright v. Wilcox, 19 Wend. 343; Foster v. Bank, 17 Mass. 479. If one of the defendants, while engaged in' the prosecution of the business of the other, carelessly or negligently set fire to the prairie, or even purposely, with a view to benefit or protect the interests of the employer, the latter would be liable for the consequences; but if he set out the fire from motives of malice or wantonness, the principal would not be liable, for that would be an abandonment of the business of the agency.- The instruction, as modified by the Court, stated the law correctly.

The seventh instruction was clearly wrong. If the act complained of was illegal, the fact that one of the defendants committed it under the direction of the other, did not shield him from responsibility, but both were equally liable te the party injured, as well the one who did the act as the one who procured it to be done.- All concerned in the commission of an unlawful act are responsible for the conseqnonces. Admit the principle asserted by this instruction, and every person charged with the commission of an act prohibited by law could excuse himself by showing that he acted in obedience to .the command or under the direction of another. Such a doctrine would be subversive of private rights, and detrimental to the public interests.

The eighth íhs'trtíctiori was erroneous. It asserts an unqualified right on the part of the defendants to set fire to the prairie on their own land. This position is not correct. The 158th sebtion of the Criminal Code prohibits a person from setting, fire to the woods, prairies or other grounds in the inhabited parts of the State between the first of December and March, and during the rest of the year, except for the necessary preservation of his farm or inclosure- from accident by fire,- and then only upon giving his neighbors two days’ notice of his intention- to do so. If the defendants claimed to be within the exception, the instruction should have been based on the hypothesis that such a state of facts appeared in the evidence. The instruction was1 erroneous in another respect. Assuming that the defendants had the right-to-set fire to-the prairie, the instruction would relieve them from all liability for the consequences unless the plaintiff should show that the injury was occasioned by their subsequent negligence. The law is otherwise. If the defendants were authorised by the provisions of the Statute to set out the fire, they were still bound to use every reasonable precaution to prevent injurious results to others. The plaintiff was only required to prove that the defendants set out the fire that caused the injury. It rested with the defendants to show the excuse and justification if any existed. Burton v. Mc Clellan, 2 Scam. 434.

The ninth instruction was properly refused. The grass was severed from the freehold, and became personal property 5 and the plaintiff, to recover damages for- its destruction, was not bound to show title to the land on which it was cut.

The judgment of the Circuit Court is' affirmed with costs-

Judgment affirmed,

       Trumbull, J. did not sit in this case.