Carmichael v. Trustees of School Lands , 4 Miss. 84 ( 1838 )

Mr. Chief Justice Sharkey

delivered the opinion of the court.

This action of trespass quare clausum fregit was instituted in the circuit court of Wilkinson county, by the defendants in error against the plaintiff in error-, for a trespass committed by the slaves of plaintiff under the direction of an overseer, in cutting and carrying off timber from the school lands. The grounds on which a reversal of the judgment of the circuit court is sought, are placed upon the record by bills of exceptions, the first of which was taken to the opinion of the court'in admitting as evidence a plat or diagram of the land on which the trespass was alleged to have been committed, with the certificate of George Dougherty, the surveyor, annexed thereto.

The materiality of this instrument of evidence is not readily-perceived, as it was not explained to the jury; and the witnesses who testified in the case established, without it, the commission of a trespass on the school land. It was doubtless introduced to establish boundary, but no question of that kind arose in the trial, was, however, permitted to go to the jury, and was deemed worthy of a place in a bill of exceptions, and is made a point in the argument, and as we cannot know what influence it had in the cause, its admissibility will be briefly noticed.

Admitting that the plat was truly and correctly made, it is in no way connected with this case: at least it does not show any such connection on its face, nor is its applicability made to appear by other evidence.

Dougherty certifies that the plat “represents fractional township No. 1 in range west, in the land district west of Pearl River,” but whether the representation is known" by actual survey does not appear, and if it was, it could give no importance to it as a matter of evidence. The survey does not appear either from the certificate or any thing in the record to have been taken by order of the court, or according to the provisions of the statute for establishing boundary. Nor do we know that it was an official act performed by Mr. Dougherty in the discharge of a duty required by law, and, therefore, entitled to credit.

He might have been a witness and used the diagram in explanation, but in no other way could it be proper testimony. The survey, if made, was a mere private one, and Mr. Dougherty’s certificate was no better than it would be to establish any other fact to which he was competent to testify as a witness.

It was urged in argument, that it does not appear that the survey and certificate in the bill of exceptions are the same that was used on the trial. Finding them as we do in the bill of exceptions contained in the record, we must infer that they are the same, although proper words of designation or identity be wanting.

Only one other point made in the argument at bar will be noticed. The plaintiffs below sued as “ trustees of the school section in township No. 1, range 4, west, and by virtue of their offices aforesaid, and by the statute in this and like cases specially provided, having charge and possession of the school lands in fractional township No. 1, range 5, west of the basis meridian;” and for the defendants below it was insisted, that they should prove the character or capacity in which they sued, under the general issue pleaded.

To this it was answered, and the court so decided, that the plea of the general issue admitted the character in which the plaintiffs sued. In this the court erred. The general issue is a denial of all the material allegations in the declaration, and puts the plaintiff on proof of every thing necessary to maintain his action. Was the character in which the plaintiffs below sued essential to their right of recovery? It was only in virtue of that character that they had a right of action; individually they had no such right. The possession of the land and' the control over it, was vested in the trustees, and unless they could attach to themselves the character of trustees, they had no power over it whatever. They assumed to sue in an artificial character, to which was attached by law a right of action, and which might or might not be true in point of fact, and which, if untrue, deprived them of their right of recovery; it was therefore necessary, that by proof they should sustain the allegation in the declaration. It was not an immaterial averment, but a material one, and therefore denied, or at least not admitted, by the general issue.

Authorities are abundant in support of this position. The trustees of school lands, although not incorporated by a particular name, are nevertheless quasi corporations, and fall within the rule established by adjudicated cases, in regard to corporations. By the first authority cited at bar by the plaintiffs’ counsel, 8 Johns. Rep. 378, the rule is laid down without qualification, that when a corporation sues, they must prove their corporate capacity, and this was the only point raised in the case. In support of the position, several English authorities are cited by the court, and the reporter in a note has added several American authorities. • The same point is decided in 14 Johns. Rep. 415. The decision of the court in the case cited by counsel for defendants in error, from 15 Johns. Rep. 20S, is in opposition to the authorities before cited. The decision, however, seems to be in part founded oh the admission of counsel in the court below; Opposed to this decision, and in support of those first cited, there are several subsequent decisions made by the same court. The question was again directly decided in the case of The Trustees of Vernon v. Hills, reported in 6 Co wen, 28, that when a corporation sues, they must prove under the general issue, that they are a corporation.

The last case we find in the New York Reports, is in Williams v. The Bank of Michigan, 7 Wendell, 539; which was decided in the court for the correction of errors, where every point doubtless received the most profpund consideration.

The chancellor commenced his opinion by saying, “ There is no doubt that, by the common law of England, and the settled law of this state, if a suit is brought by a corporation, they must, on the general issue pleaded, show that they are a corporation.” In support of this position, the chancellor cited numerous authorities, both English and American, which shows that the point was well considered, and decided, not as a rule peculiar to New York, but as having its origin in the common law. It is further settled, that even contracting with them by a corporate name, does not supersede the necessity of such proof. An additional authority will be found in Angelí and Ames on Corporations, 377, where the same rule is laid down in-terms equally broad and unequivocal, and sustained by reference to many adjudicated cases, both in England and in this country. These numerous authorities place the rule beyond question in regard to corporations, and I can perceive nothing which will exempt the defendants in error from its operation. It is true they have never been incorporated by a particular name, and in that name authorised to sue and be sued; but, like all other corporations,'they possess only such powers as are given them by law, with succession. They were admitted in argument tobe a quasi corporation, and so they are classed by law writers, as will be seen by reference to the work last cited, p. 16. Being regarded in all respects as corporations, they must be subject to the same rules.

Why is it that a corporation must prove its authority, or character in which it sues? Not because the cause of action depends on that character, but because the remedy depends upon it, and can only be enforced by persons competent to sue. In the case before us, the cause of action accrued by the commission of the trespass, but to whom did it accrue? To the trustees; but it only accrued to them in virtue of their fiduciary or trust character, and in order to sustain it, that character must be proved. It was insisted in argument, that if the defendant below did not mean to admit the plaintiffs’ right to sue, he should have pleaded in abatement; but certainly there is no need of making the denial by plea in abatement. If the defendant had denied by plea that they were trustees, it would have been in bar and not in abatement, because, without the character which they assumed they had no right of action. Such a plea would be equivalent to the plea of nul del corporation, which is now considered to be bad, because it amounts to the general issue, being a denial of what the plaintiff on the general issue would be bound to prove, and as such, would have been demurrable.

Although the counsel for the plaintiff requested the opinion of the court on all the points raised in-argument, we forbear-giving it, as those already noticed are sufficient to reverse the judgment, audit only remains to notice one question made by the counsel for the appellees. It was insisted, that the appeal was irregular, and should be dismissed, because the party had twenty days from the adjournment of court, to enter into bond. The record does not clearly show whether the bond was executed in term time or vacation. By reference to dates, it is presumable that it was in term time. On the 22d day of November, the court overruled the motion for a new trial, from which decision, the appeal was prayed and granted, and on the 24th, only two days afterwards, the bond was executed, with the surety approved by the court, and it appears in the record as a part of the proceedings of the court. Even if it was improper for the court to give twenty days after the adjournment to execute the bond, if the party came forward and complied with the law by executing it in term time, his appeal must be sustained.

Let the judgment be reversed, the cause remanded, and a venire de novo awarded.