CASES A PLGUED AND DETERMINE ) IN THE Supreme Court of Arkansas At the Jiiii a ry Tcrm, 1857, THE STATE vR kvE TS. It is an established rule that, upon the argument of a demurrer, the Court will, notwithstanding the defect of the pleading demurred to, give judgment against the party whose pleading was first defective in substance. Where by a public law agents are appointed to enter into a contract on the part of, the State, the law, under which they act, is as much a part of the contract, when made by the agents, as if it were transcribed in the contract. An authority, by act of the legislatur'e, to an agent to enter into a contract reduce it to writing and sign it on behalf of the State, must be construed to mean merely a power to enter into a simple contract, and not a specialty or sealed contract. To bind a corporation by specialty. it is necessary that its corporate seal should be affixed to the instrument—the private seal of an agent, fully authorized to enter into a contract on the part of the corporation, would not have that effect; and so an action of covenant will not lie against the State upon a contract entered into by her agents and sealed with their private seals.
270 CASES l y TI1E SIJERIDIE COURT The State vs. Allis. [January Appeal from the Circuit Covrt of Pulaski county. The Hon, William H. Feild, Circuit Judge. This cause was argued at considerable length, upon questions not involved in the decision, before Mr. Justice Scott, and Mr. Justice Hanly, and the Hon. George Conway, Special Judge —Mr. Chief Justice English, not sitting. Mr. J. J. Clendenin, Attorney General, and Cummins, for the appellant - An action of covenant in this case is an absurdity. The lay,- authorized the Board to sign the contract, but not to seal it: There is a seal of State necessary to make d cuvenant, rodess the law required some othci seal to be affixed, which was not the case bele. Stoly oui Ag. sees. 154, 273, ir 3. 11 Sergt. & R. 120, 129. Hopkins vs_ Mehaffey. It may be said that this is technical ; and that the contrael is as binding as if it were a covenant. In response to this we only refer to the decision in Morehead vs: Grisham, 18 Ark, R, 431_ Fowler, ;Ind Watkins & Gallagher for the aivellee Alr, Justice HANEY. This was an action of covenant, brought by the appellee,: against the appelant, in the Pulaski Circuit Court, on the following instrument, towit : • "Articles of agreement and contract made and entered ju t( by and between Horace B. Allis, of the city of Little Rock, in the State of Arkansas, of the one part, and the State of Arkan-sas, of the other part, witnesseth: That, whereas, be said Hov-ace IL Allis, under and by virtue of the provisions of an act of the General Assembly of the State of Arkansas, approved Jan-uary 11th, A. P. 1851, entitled "an nct for building a safe and suitable wall around the penitentiary, work nilupt,, keeper's house, and fur the in/plo y , mint uf the penitentiary system:*
OE tHE STATE 1_11 .• AUKA),SAS. 271 Term, 1857] The State vs. Allis. was the lowest bidder for till hu ildmg, rebnildmg and repairing of said penitentiary, and for the safe 1-eeping and furnishing. tlw convicts for the term of tt ii years from the date hereof, imder awl in accordance with the pi ovisions of the said act of rthe OaTieral Assembl y of this State, approved Jan-nary 11th A. TR'vl , ahrivp votprrod tw Now, the said Horace B. Allis, party of the first part hereto covenants rend agTees to and with the said State of Arkansas, party of th P semnil part, that he will erect and build around the penitentiary house of the state of Arkansas, a wall of solid masonry, composed of square durable rock, the pait of the rock exposed to he so dressed as to present a smooth snrface, equal in quality and workmanship (except the outwork) to the basement story of the United Status Arsenal iii the eity of T,ittle Rock, which rock shall be laid witb liirahle eeinent of lime owl sarol„ and shrill enclose a space of three hundred feet one way, by three hundred and fifty feet the othei way, the foundatimi of said wall to be sunk one avera■-- depth of three feet helow the su 'lace of the ground, and shall be twi g -ay feet hie.h from the top id the foundation, shall be fiyo feet thick at the base, and gradually terminate in a thickness ,ef two feet with suitable and substantial iron gates to enter into such enclosure And the said Horace B Allis, party of the first part, further consents and agrees to and with the said State of Arkan - sas, that he will erect within the said wall before specified ary l of the same materials as said wall, three work shops. one of which shall be two handred feet in length by forty feet in width and twelve feet high in the story; the other two of said work shops shall he each one hundred feet long b y forty feet iii width, eileh to be twolvo foot high in the story ; with windows sufficient to light said work shops, the windows in each to be strongly secured with round iron grates let intn tho stone sill and stone cap of each window, each window to have twenty-four lights of ten by twelve glass, and the center of each win-Clow to be not more than ten feet apart. And th6 said Hor,T c B. Allis, party of the first part, further covenants and agrees to and with the said State of Arkansas, that he will ereet of the
CASES IT THE SUPREME eulfitr The State vs. Allis. [January same material as the said wall and workshops before specified, and agreed to be built, one two-story house and building of sufficient dimensions to accommodate the keeper and all the subordinate officers employed about said Jail and Penitentiary house, the front of which said house and building shall constitute a part of the wall befote referred to, And the said party of the first part further covenants, that he will thoroughly repair the present Penitentiary house, with good and sufficient roof extending over it, and the walls of said building shall be properly and substantially braced, either with iron rods, so as to make it perfectly secure and safe, the cells in said house to be properly ventilated and made comfortable and healthful, and one of the rooms in said building shall properly fitted up for a kitchen and for a hospital, and one for a chapel and schoolroom, and that he will provide suitable stoves and fuel to keep the cells, in which prisoners may be confined, warm in the winter: And the baid part y of the first part further covenants and agrees to, and with the State of Arkansas, that he will cover all the houses hereinbefore specified to be built, with a good and substantial roof, to be composed of slate, and that all of said work hereinbefore stipulated to be done, shall be finished in faithful and workmanlike manner, and of good and substantial materials, and that all of said work and buildings shall be finished and completed within ten years from the date of this contract. And the said party of the first part further covenani and agTees to and with the State of Arkansas, that he will well and safely keep and guard the convicts now in, or which may hereafter be put into said penitentiary, with a good and suffi cient guard of sober and responsible men, and that he will feed the said convicts with good and wholesome food in sufficient quantities, and that he will clothe the said convicts in a substantial, comfortable and uniform manner, and will furnish said convicts such medicine and medical attendance as they may from time to time, and at all times, require, free of all expense to the said State of Ar L ausas, and that he will in all things cone
OP THE STATE OF ARKANSAS. 273 Term, 1857] The State vs. Anis ply with the act of the General Assembyl of the State of Arkan-sas, in relatinn tn the said penitentiary and the convicts therein, and shall safely deliver to such person or persons as shall bp duly authorized to receive the same in behalf of the State, all of the convicts of said penitentiary, and all of the property of the State of every nature and Eind which shall remain in his custody or possession at the expiration of this contract. And the said State of Arkansas, party of the second part heretn envenants and agwes to and with the said Horace B. Allis, party of the first part, that, for and in consideration of the faithful performan c e nf hiq 9 4,T reements and covenants heieto-fore in this writing specified, she will pay to the said Horace E, Allis, his agents or assigns, the sum of fifty-eight thousand dollars, by quarterly warrants on the Treasurer of said State, in favor of the said Allis, his agents or assigns, but it is expressly stipulated and agreed that not more than six thousand dellarq shall he paid to the said Alils, his agent or assigns. in any one year during the continuance of this contract, and until the said fifty-eight thousand elnllars shall be paid to the said Allis. party of the first part. And the said party of the second part further envenants and agrees to and with Horace B. Allis, that he shall have the benefit, management and contiol of all tlit prisoners and convict, under his charge in said penitentiary, and may employ them as he thinkR best, subject to the laws of tbe State, and the goy-( rument and discipline adopted for the management of tl penitentiary, and that if the said party of the first part shall dic during the existence of this contract, the said contract maA be cairied out and completed by the executors or administrators of the said Horace E. Allis, party of the first part. It is further expressly stipulated between the parties hereto, that this contract shall extend and be in force for and durimf the period of ten years from the date hereof. TE witness whereof, the said 1 1 Torace B. Allis for himself, and the said State of Arkansas, by ber legally constituted agents,
274 CASES IN TILE SUITEME COURT Term, 1857] The State vs. Allis. have hereunto set their hands and seals, this 5th day of April, A D. 1851: HORACE B ALLIS, (seal) D B GREER, Sec'y State, (seal) C. C DAN -LEY, Auditor, (seal) H. CREASE, Treasurer (seal: ) Tlie declaration was in the osnal form, and contained several specific assignments of breaches of the covemmts sued on: : At the return term of the writ the State app■ area fiy her qualified , and authoried attorney: and craved oyer of the instrument declared on, which was granted by filing a docreanail of which (lie above is a copy: The State then interposed tier four pleas in bar ; to the first and thi ci of which issues were taken, and to the second and fourth a demurrer was filed. Ti - inurrer to these pleas was sustained: Appellant choosing rest upon the phas, di chilled to answer over upon the demur-rer being sustained thereto. Trial lty a jury -upon the issues to the first and third pleas . verdict and juidgment for the ap-pellee. Motion for a new trial made and overruled, and exceptions I T appellant The cause was brought to, and is now pending in this court by appeal: Sundry errors are assigned and ielied upon for reversiine the juil ment of the court below: Owing to the result of our opinion upon the whole case, will be unneeessatv for us to notice the exceptions taken during the trial relating to the testimony, those taken to the action of the court below in refusing to give certain instructions for, and giving certain others against appellant, and also that which pertains to the overruling, the motion for a new 'trial: 1st We think there can be no question but that when the eourt below was considering the appellee's demurrer to the appellant's second and fourth pleas, it should have : been considered in relation to the declaration itself for a party should not demur unless he be certain that his own previous pleading is substantially correct; as it is an ( stablished rule: that upon the argument of a doninrrer, the Court will, notwithstanding the defect of the pleading demurred to, give judgment against the party
OF THE STATE OF ARKANSAS. Term, 1857] The State vs. Allis. whose pleading was first defective in substance; as, if the plea which is demurred to be bad, the defendant may avail himself of a substantial defect m the declaration, unless such defect has been aided by pleading over ; and if the first fault would constitute error, the Court will decide upon it though it be not noticed; for on a demurrer the Court will COP sider the whole record, and give jud g ment for the party, who thereon iippears to be entitled to it. See 1 Chittys Plead. 668; Smith vs. Joyce, 5 Eng. R 463 ; Inglehart vs. The State, etc_ 2 Gill & Jolms 236; Allen vs_ Crofoor, 7 Cow. , 46 Hord_ vs. Diekman, E Hem & Mum 652; Smith vs. Wallier, 1 Wash: 135; Tillotson vs, Stiff, 1 Blackf. 77; Headington vs. Neff, 7 Ohio 229. Pearsall vs. Dwight, 2 Mass. 84; McGuire vs. Cook, 13 Ark R. 520 Hynson vs. Burton, ib. 492 Byers et al vs. Aiken, ib. 419. The Court below, therefore, on considerin g the demurrer ül of the appellee, should have turned to the declaration md determined whether that was good in substance; not having clone so, or having done so aml erred in its yrolginent, as it insisted, we are constrained, firam the uniform rules of practice in error sneh case, to revert to that portion of the record b'fcch-' and &ter-mine -Whether tlio declaration of the appellee is oh-noxi nu s to a demurrer tor cause not cured by the subsequent proceedings in the cause Ts the declaration of the appellee good in substance, when viewed in connection with the instin-ment given or ayer, copied above, arid the act of the General Assembly under which that instrument purports to have been made lw the parties thereto ? We will address ourself to this question, and in doing so, shall take occasion to copy so milch of the act of the 11th January, 1851, as pertains to it, oi will, in any wise, eontrillute to its solution. The sections material are as follows: "Sec: 5. That the Secretary of State. Auditor and shall, ex-officio, co -1144U te 11 hoard of inspectig )11 for the Penitin-tiary. ' " " * Tt shall be the duty of said board to direct and manage the discipline of the Penitentiary as prescribed by law, and shall every two weeks ex.amin, into the
276 CASES lA THE SUPREME COURT The State vs: Allis, [January condition of the convicts, and see that they are well provided with clothing and food," etc. "See: 6. That immediately after the passage of this act, it shall be the duty of the Board of Inspectors to ]rocure proper drawings and specifications of the work to be done under the provisions of this act, and to proceed to let the same out to the lowest and , most responsible and competent billeted, on the terms hereinafter specified," etc. "Sec. 7. That the Boa rd of Inspectors in making such contract: shall," etc. "Sec. 11. That after such coutraci shall be taken, it shall bu reduced to writing, with oll the proper terms, stipulations and specifications, and shill be signed by the Iloaid of Inspectors ou hehalf of the State, ond by the contractor; and the contractor shall enter into bond, payahle tu tlh State„ in the penal sun! of twenty thousand dollars, with ample security, to be approved by the Board of Inspectors conditioned fin' . the faithful peifinmance of said contract," etc We presume there can Tyr , no doubt but that the ,ict f the 11th Jan nary, 1851, from which we have made the above extract, was as much a part of the contract made by the Board of Inspectors thereunder, as if it had lean absolutely trans-cri hr d into it, for the reason that it was a publ ie law of the land, of which, not only the Inspectors , but all other persons wen' bcomd to take notice: The Tuspectors had to loo l , to that net for their authority to make the contract: It was the power under which they were to act. The public were advertised of its provisions When the act in question us, s tlie generic word contract, and empowers thi- Inspe,:tors theicin named, to make a contract, in the name and behalf of the State, in respect to the subifet matni of the act, what are we fOrei'd to conclude meant by the emplo y ment and 11 ,f' of that guri-ic word in the act in question Certainly, the cante7zt of the act will explain what extent of power, with respect to the rode of the contract, the legislature intended to confer upon the Inspectors ; . for it will be perceived, in one section of the act (so e see: 11), it is provided, nmon, otlui fh1s "that after such
(le F F41 TR (IF ARKANS iS 77 Term, 1857] The State vs. Allis. contract shall be taken, it shall be reduced to writing, with all the proper terms, stipulations and specifications, and shall be singned by the Board of Inspectors, on behalf of the State," etc: A contract simply signed, whether by a natural or artificial person, of course belongs to that Plass of p ontrapN denominated simple, parol or unsealed_ If it had been the purpose of the legislature to have conferred upon the Inspectors the power to make a sealed contract, obligatory upon the Statc as such, they should have so expressed the purpose in the act, and at the same time have provided for the affixing of the seal of the Stat,' thereto by the Governor, or some one else. The constitution nf thp State, sec. 12, art 5, ordains • "That there shall be a seal of this State, which shall be kept by the Governor, and used by him officially." It is the seal of the State, under this provision, which assumes and verifies the acts of the State, whe-there as a sovereignty or corporation: She can perform no corporate or sovereign act through her chief Executive without it is verified by this seal: and we doubt, exceedingly, whether the legislature possesses the power by act to prescribe any other mode for the authenitication nt the sovereign nr corporate acts of the State, except by means of the seal ordamed by the constitution, and required to lie kept and, consequently, affixed by the Governor: Certainly, in the case at bar, there seems to have been no intention on the part of the legislature to assume, or exercise this doubtful power. The act in question does not purport to authorize the Inspectors to seal the contract, to vow-ify or render more solemn the instrument on their part. The , argument wonld have hem rendered -111n-re specious, if the legislature had absolutely authorized the inspectors to have entered into covenant in the name of the State with regard to the subject matter confided to them by the act in question, for in that event the power might he implied, from the general grant. that if they could not procure the affixing of the great seal by application to its constitutional custodian. the Governor, they might Anpply it in some other rnnde But, discarding this view of the subject, and regarding the contract declared on as one, entire and independent, and to be
278 CASES IN THE SUPREME COURT The State vs Allis. [January construed, as to its legal affect, without reference to the act under whi,ch it purports to have been made, and we hold, leaving out of view also the state as a sovereignty, but consideting it as a corporation, that the instrument declared on is not technically the deed' of the State, and as a legal consequence, that covenant against the State, cannot be maintained on it An instrument, to which the agent of a corporation has affixed his seal. may be evidence of the contract, in an action of assumpsit against the corporation: for, the seal of the agent of a corporation, unlike that of the agent of a natural person, never can be the seal of his prineipal—the corporation. 1 Parsons on Cont: p. 94, note f. Randall vs, Van Veehten, 19 Rep_ 130, Dawson vs. Inhabitants of Granby„ 2 Pick R 3-1-5 Bank of Columbia V9. Patterson's ad , 7 Crauch, 299 Whilst we are free to concede, both from the tenor of the instrument sued on, and the act under which it was made, that the State is liable thereon, in one or more forms of action, we are forced to the conclusion, from the consideration above expressed, supported as we conceive them to be by both principle and authority, that an action of covenant will not lie against the state at the suit of the appellee, upon the instrument in question We therefore hold that the Court below erred because it did not give judgment in bar in favor of the appellant; and for this reason, the judgment of the Court below rendered herein is reversed, and this cause remanded to the Ciicuit Court ofTulaski county, with directions to that Court to consider and sustain the demurrer by relation, as if it had been interposed by the appellant, arid applied to the declaration of the appellee, and on doing so, that that Court proceed to render judgment in bar for the appellant. Let the judgment he reversed, and the cause remanded, with the above directions: Mr, Justice Scott: This eause was a good deal examined by the special judg-commissioned to sit in its trial, together with my brother Handy, towards the close of the last term ; and they arriving at the
nE TAT', STATE OF ARKANSAS. 279 TPrm, 1857] The State vs. Allis. conclusion that the judgment ought to be reversed, and consequently that the party interested would be no nearer to an application to the Legislature for satisfaction by a decision then, than now, perferred, as they announced from the Bench, to defer final aotion until there was a full fleneh And we iinw all concur In the opinion that the judgment ought to he reversed. The ground upon which it has been placed seems to me to he a sound one. Undoubtedly, the suit must proceed upon the ground that the State is a corporation—an artificial person: Nations and States are denominated by the publicists, bodies politic. They are a collective and invisible body, having affairs and interests in common, upon which they deliberate and resolve, and in ieferenoo to whioh they aot, as moral persons having an understanding and will peculiar to themselves, and are there fore susceptible of obligations and laws: In this scnse, the King of England is a corporation, and so are the United States, as well as each of the States: Angell and Ames on Corporations, p: 10, sec: 15: "To bind a corporation by specialty: it is necessary that its corporate seal should lie affixed to the instrument The corporate seal is ti l e only organ 1-iy 11,11,0h a corpm.atiori can oblige itself by de(ii and though its agents affix their privs ate seals to a contract binding upon it, yet these not being seals, as regards the corporation, it is in such case bound only by simple contract.” Tb. p. 309, see: 295;) But, -the seal of a corporation, when affixed to any deed or contract, by proper authority, is not distinguishable in its legal effects from that of an individual The one is the seal of an artifioinl, the othor nf a natural por qnu Cl ark vs Farmer's Manuf. eo., 15 Wend. H. 2 57, "There is a difference between an agent executing a scaled instrument, thereby intending to hind his principal, which principal is an individual: and the aeent of a corpoiation doing tbe same thing with the same intent: In the former casc, the seal may. by a prior authority or subsequent adoption, be the seal of the principal; and if there 11P no such authority it shall bind the agent as his own aet and deed, In the latter case, the seal can never be that of the corporation for they have but one
280 CASES IN THE SUPREME COURT The State vs: Alhs, [January coinnion seal, and that can never be changed except lay authority emanating from the power which created the corporation; and it can be put to an instrument only in pursuance of a vote or the corporation, or by the officer who may be the keeper, and ciatrusted with the use of it, Their agent, therefore, who contracts for their use under his own seal, does not hind the corporation in a deed; though, if he had authority to make the contract, it shall be binding upon them as evidence of such contract The eases of Randall vs. Van Vechten, 19 John: R. 65, and Bank of Columbia vs. Patterson ad'r, 7 Cranch 305, are satisfactory authorities -upon this point." Per Parker C. J: delivering the opinion of the Court in the ease of Damon vs. Granby, 2 Pick: H. p. 352-3. To the same effect is the case of Randall vs Veehten, where the Court say "It is important to remak the difference between a corporation and an individual person acting by agent. In the one case, there is a corporate seal, which is the only organ by which the body politic can covenant. Thu s ea1s of these defendants are not, in dny suubt . , the seals of the corporation; but the seal of an agent for an individual person as his princi-pa y , is, in law, the seal of his principal; and therefore it is, that the form of action against the principal, in the one case, (that of the corporation) is not determined by the form in which the agent contracts ; while in the other case (that of an individual) the action against the principal must correspond with the form by which the agent contracts, whether by seal, or b y simple contract: Nor will it make any difference whether the agents for the corporation were appointed under the sorporate seal, or by a resolution in the minutes. It may be legally done in either mode: and whether it be in the one mode or the other, cannot vary the form of the action against the corporation. "When the real party to a contract has affixed his seal, the specialty implies a merger, and the opposite party cannot waive the ci.venant, and resort to the assumpist. Eut this ride has no application here; because the corporation have not affixed their eals, to this contract The seals of the agent are not seals as regards the corporation The old doctrine, that assumpist will
OF TIIE STATE OF AItnANSAS. 281 Term, 1857] The State vs, Allis: not lie against a corporation, is now exploded." (19 John R p. 65.) The case before the Court is to be distinguished from some cases to be found in the books—where, in the absence of every thing in the ease to show whether or not the corporation ever had a common seal, and what it was, the Court would presume, -vcrl-wil the mmtraet was wari p m the pomp nf thP onrporatinn and purported to be sealed in its name, that the impression upon the paper of the scroll affixed, had been adopted as the common seal of such corporation. Because we jndicially know that the State of Arkansas has a great seal, and there is no room to presume that any mere scroll could be her seal. Nur pan the State TIP enrisrdered estopped from setting up this defence upon the ground that she may have received some benefit from the contract sued upon; because the question of execution stands upon different ground from that of authority: "for, while a corporation is generally estopped from denying that a contract or an instrument was made by its authority, if it receives and holds the beneficial result of the eontract, nr the instrument, as the price for property sold, or the like, it may, or its creditors may deny that the instrument was legally executed, even if the authority were certainly possessed. Thus, if a conve y ance purporting to be the conve yance of a corporation, made by one authorized to make it for them, be in fact. executed by the attorney as his own deed, it is not the deed of the corporation, although it was intended to be so, and the attorney had fully authority to make it so. And if the deed be written throughout as the deed of the corporation, and the attorney when executing it declares that he executes it on behalf of the company, but says: "In witness whereof I set my hand and seal," this j_s his deed only. and does not pass the hand of the corporation." ( 1 Parsons on Cont. eh. 10, 2d ed. top p. 118, 119 ; citing Brinly vs. Mann, 2 Cushing's R. 337.) In addition to this legal reasoning contained in these authors, there is a ease reported in the 4th vol. Florida Rep. p. 200, which seems to me to be strongly in point. It was an action of covenant bv Mitchell against the St. Andrew's Bay Land n o., a
282 CASES IN THE SUPREME COURT The State vs, Allis, [January corpolation, upon an instrument of writing cithimencing: "Thi memorandum of an agreement made and entered into between the St. Andrew's Bay Land Company, on the one part and N. H. Mitchell on the other part, witnesseth: that said company has this day," etc.: ( proceeding to .set out the contract:) and concluding as follows, to wit : "signed, sealed and delivered duplicates, this 11th day of Ma y , 1841." Signed: "The St. Andrew's Bay Land Company, by RICHARD H. LONG, (Seal) WM. NICKELS, (Seal ) A. H. BITCK, (Seal) Committee. N. H. MITCHELL, (Seal) The defendant pleaded that said persons named in the declaration were not authorized, under the seal of said company to execute the writing named in the declaration. To which plea there was a replication, that said persons were authorized and further that their acts or execution of said writing under seal was ratified b y the President, Directors and Trustees of said company. Demurrer to the replication for duplicity. Going back to the declaration, the Court, by Anderson, C. J., say "The question is, can an action of covenant be sustoined against the St. Andrews Bay Land Company. on the indenture here described. The defendants certainly did not execute the indenture described, by themselves, and the only inquiry is, whether they executed the deed imdr seal, by some other person ? The declaration says the indenture was sealed with the respective seals of Long, Nickels and Buck ; and though it is alleged these persons were duly authorized by the Land Company, such allegation can only mean they were authorized to make the agreement, not to affix the seal of the company ; and what is still more material, there is no allegatiOn that the seal Of the company was affixed, and no such seal is in fact affixed to the agreement, which is appended to the declaration. The committee might have been fully empowered to make the agreement, and having made it, the company would be fully respon-
OF THE STATE OF ARKANSAS. 283 Term, 1857] The State vs: Allis. sible, for a breach of it, to the plaintiff, in some form of action: but surely not in an action of covenant, which cannot be maintained except against a person who has executed a deed under seal. The private seals of the company are not the seals Of the corporation, and consequently the plaintiff is here suing a defendant in covenant, who according to his own showin g, has not executed a deed under seal. We refer in support of these familiar positions, to White vs. Skinner 13 John. R. 107. Randall vs. Van Vechten et al.. 19 John R. 60 arid Taft es. Brewster i -t at 9 John R. 134 Hon. George Conway, Special Judge. Prior to the adjournment of the Jnly term, the subject of this cause was considered by brother Hanly and myself, in the absence of brother Scott. We determined upon the result, which has been expressed in the opinion already delivered, but considering the magnitude of the cause, and the importance of the principles involved in it, upon consultation it was determined that our opinions should not be expressed until the breach should be filled by our senior brother. The preparation and delivery of the opinion of the Court was very kindly confided by brother Hailly to myself. I had proceeded in discharge of the duty confided to me so far as to prepare the statom put of thP onse, -tending to have prepared the opinion of the Court, to be delivered at the present term, in the vacation of the Court, but a few days after the adjournment, and before T could reach my home, I was stricken down by disease, from which I have not yet en-tireily recovered At: my request, brother Hanly undertook to prepare and write the opinion of the Court. I hav e PYrilililled ihat opinion, and most heartily concur, not only in its result, but its reasoning and argument. The opinion of brother Scott, the result of which is the same as that of brother Hanty, arrived at possibly by different reasoning. T also concur in, regarding it as I do, as an elaboration of the main point in the cause, to an extent which pl aces it upon sneb ground as to render it perfects ly clear and impregnable. The judgment should be reversed, and the cause remanded, -to be proceeded in as directed in the opinion of brother Hanly.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.