Singleton

V

Charleston warehouse, which he had held for many years.

Commission- The charges against him, as appeared by the minutes en

ers of Tobac

so inspection. tered in their book, were three:

1. Drunkenness, so as to be incapable of performing his duty.

2. Passing unmerchantable tobacco.

3. Keeping money in his hands for tobacco sold by him, and not accounting for it.

The two first charges were denied, but the third was partly admitted to be true by the plaintiff, to wit: that he had sold tobacco and kept the money in his hands, which he was ready to account for, when called upon for that purpose, by the persons entitled to it.

The commissioners justified their proceedings under the act of the legislature, for regulating the inspection of tobacco in 1785, which authorizes them to "appoint inspect

ors, and in cases of neglect of duty, in not giving proper "attendance, or any malpractice, to remove them at plea"sure, and appoint other fit and proper persons in their "room and stead." In pursuance of the powers given them by this act, they alleged, that they had proceeded to call the plaintiff to an account, and to examine witnesses as to the different charges against him, all of which they said had been proved to their satisfaction; and therefore it was, that they had removed him from his office, and appointed another in his place.

The plaintiff, in reply, alleged he had been illegally displaced by the commissioners, inasmuch as the charges were not furnished him in writing; he did not know them till he was called upon to answer them; there was no time or place mentioned, when and where the supposed malpractices were committed, and that the witnesses on whose testimony he was removed, were not sworn to tell the truth against him. As to the third and last charge against him, he insisted the commissioners had no authority to call him

Singleton

V.

ers of Tobac

co luspectɔn.

to an account about it; for by the act, the inspector is authorized to give small notes, for small parcels of good to- Commissionbacco sold after the bad is picked out; which notes he is authorized to pay to the holders, when produced after the same is sold and disposed of, and that he has always been ready and willing to account to the holders of such notes, whenever they should be produced.

After hearing arguments for and against this motion, the court held that wherever a statute created an office unknown to the common law, and appointed commissioners to superintend such office, with certain specified powers; they were bound in the exercise of such powers, to pursue them strictly, and to conform to common law rules, as nearly as possible; particularly in summary convictions, without the intervention of a jury. That the officer whose conduct was to be Inquired into, should have certain specific charges exhibited in writing against him, and a reasonable time allowed him, in every such case to prepare for his defence. All witnesses for and against him, ought to be on oat, to declare the truth; and the substance of such examinaions should be taken down in writing, in order that the court might be enabled to judge, whether (in case of their proceedings being called in question) they were justifiable or not, in their proceedings. In the case now under consideration, as far as respects the two first charges, these rules were not observed; but the inquiry and examination into the inspector's conduct, appears to have been precipitate, and none of the witnesses against him were on oath, nor was the substance of their testimony minuted down or taken notice of in their proceedings, that the court might judge whether there were reasonable grounds for his removal or not and as to the third and last charge, that of not paying over moneys in his hands, arising from the sales of tobacco, he cannot be said to have committed any offence, unless he had refused to pay off some one or other of the small notes

See the case

of Geter v.

The Commis

sioners of the Campbelltorn Tobacco In

spection wure

house, where all these principles are very fully laid down, in Bay's Rep. vol. 1. p. 354. Riley's edit.

Singleton

to the holders, on demand by them, or their lawful agents Commission made for that purpose.

V.

ers of Tobac

co Inspection.

The rule for the mandamus to issue to the commissioners, to restore the plaintiff, was made absolute.

Present, BURKE, GRIMKE and BAY.

Charleston District, Feb. 1797.

A bond in the penalty of 76

ALEXANDER ROSE against WILLIAM MACLEOD.

THIS was an action on a bond dated November 10th, 1785, negroes, con- given by defendant to plaintiff, in the penalty of seventy-six new negroes, conditioned "to pay and deliver thirty-eight ne

ditioned for

delivery of 38 on a certain day, amounts to a covenant in law, to de

66

แ

groes, on the second day's sale of any cargo defendant might choose, which he should import between that time and January 1, 1787, and if none should come by that time, a farther indulgence was to be given till January 1, if defendant "1788, with interest of 7 per cent. to be paid annually."

liver the 38 the day ap pointed; and

negroes on

fails to deliver

them, he is li- Upon this bond, the plaintiff had brought an action of average value covenant, taking the penalty and condition together, as

able for the

of them. And

legislature

pass an act to

although the amounting to a covenant to deliver thirty-eight negroes, &c. To this suit the defendant pleaded that the legislature of prohibit the this state, in March, 1787, passed a law prohibiting the imimportation of slaves, so as portation of slaves from Africa, or other parts beyond sea, to prevent the specific deli- &c. under very severe penalties, which act put it out of the very of them, the defendant defendant's power to deliver negroes, according to the conis still liable dition of the bond, and this special matter he pleads in bar

for the real

amount of of this action. To this plea the plaintiff demurred.

their value in

money.

Mr. Ford, for the plaintiff; Mr. Pringle and Mr. Ward, for the defendant.

After hearing the defendant's counsel, the court without hearing the counsel for the plaintiff, sustained the demurrer,

overruled the plea in bar, and determined that this action of covenant would well lie. That although the intervening act of the legislature prevented the specific delivery of the thirty-eight new negroes, and the law so far dispensed with the specific performance, yet that the contract was not thereby rescinded, or the defendant absolved from all obligatory effect under it.

That it was competent to the plaintiff, under the averments in his declaration, (of the covenant to deliver thirtyeight negroes, and that they were of the value of 521. sterling,) to go into evidence before a jury, who would fix the value of the contract and give a verdict accordingly. That the bond might be given in evidence to support the action of covenant, the essence of which is, to deliver thirty-eight negroes, and pay interest at the rate of 7 per cent.

Present, BURKE, GRIMKE, WATIES and BAY.

The cause afterwards went to a jury, when after offering this bond in evidence, to substantiate the agreement as stated in the declaration, and proving the breach and value of the negroes, the jury gave a verdict for the plaintiff for the average value at 521. sterling, round.

Rose

V.

Macleod.

BENJAMIN WARING against THE CATAWBA COMPANY.

Charleston District,1797.

ASSUMPSIT for goods sold, and for work and la- A member of

bour, &c.

Plea in abatement.

a corporation may maintain an action against such

This case came before the court upon a plea in abate- corporate body for any ment, which pleaded that plaintiff was himself a member of just demand

the company, and therefore could not maintain any action against it. against it in his individual capacity.

Waring

V.

pany.

Mr. Trezevant, for the plaintiff, argued, that there was a Catawba Com- wide difference between a copartnership in trade, and a corporation. Copartners, he admitted, must sue and be sued jointly; that they were jointly and severally liable, &c. But a corporation (as in the present case) must be sued in its corporate name; that the private property of its members were not liable, only the corporate property; so that there was a wide difference between a corporation and a copartnership, both as to the mode of bringing an action, and as to the effect of any judgment or decree against them.

That by an act of the legislature, passed in the year 1792, corporate bodies are expressly authorized to recover and receive from their members all fines, forfeitures, and other debts, dues and demands, arising in any manner howsoever. Surely then, he argued, if corporate bodies have a right to recover from their members, in their private capacities, any debt or demand, such members, in like manner, must have an equal right to recover from such corporate body any debt or demand due or owing to any individual of that body; or they might set off in discount any such demand against the corporation, in a suit against them. Justice must be reciprocal in its nature, or it ceases to exist; for to say that one man, or body of men, shall have a power to pursue a right against another, and that other should not have a right to prosecute his claim or remedy in his turn against the body corporate, would be a perversion of principles.

But, he said, he conceived that this point had been settled by a number of adjudications in our own courts, at different times. The Mount Zion Society, the Library Society, the City Council, all corporate bodies, had been in the habits of recovering moneys from their members, and members in their turn had recovered money from them. The cases of Bourdeaux and Stephen Drayton against The Santee Canal Company were cases in point; in both which cases they were allowed to maintain actions, and to recover their salaries from the company, upon the foregoing principles, although they were both of them members.