Female Orphan Asylum v. Johnson

Cutting J. The plaintiffs, on February 18, 1828, by a special act of the Legislature, chap. 534, were constituted a body politic and corporate by the name of the “ Female Orphan Asylum of Portland,” with power to prosecute and [183] defend suits at law; to have and use a common seal; to make and establish any by-laws for the management of their affairs, not repugnant to the laws of the state; to take and hold any estate, .real or personal, for the purpose of supporting, instructing and employing female children, the first attention to be given to orphans; and with all the powers and privileges usually granted to other societies instituted for purposes of charity and beneficence. And on February 27, 1841, by an additional act, chap. 105, they were authorized to put and place out at service any of the children under their care and management, at such age as may be deemed advisable, with any suitable master or mistress, and on such terms and conditions as may be deemed reasonable, until such child shall arrive at eighteen years of age, or be married; that the master or mistress, with whom any such child has been or may be placed, in manner aforesaid, shall have reasonable control and power over her, agreeably to the terms and conditions prescribed and agreed upon, in writing, interchanged, or to he interchanged by and between the said Female Orphan Asylum, by their managers, and said master or mistress. Upon an inspection of the records, which were produced at the trial and received as evidence, it appears that the society was duly organized and went into operation under the original act; that the society consisted of such ladies “ as had subscribed and paid a sum of not less than two dollars annually,” who were to meet “ annually on the second Tuesday of October, for the purpose of electing by ballot a treasurer and a board to consist of fifteen managers, which board shall choose from among themselves a first and second directress, a secretary and an assistant secretary, if necessary; and they shall have power to fill their own vacancies. Not less than five shall constitute a quorum for transacting business.” Under this organization the society was authorized to sup-poi't, instruct and employ female children, but not to bind them out at service; hence the necessity of obtaining the [184] additional act for that purpose. And it was in pursuance of this subsequent act, that the bond now in suit was given, the execution of which having been admitted, it was offered in evidence, objected to by counsel for defendant, and excluded by the court; as to the correctness of which ruling, the principal question arises; for if correct, inasmuch as the bond was the foundation of the plaintiffs’ claim, the nonsuit was subsequently properly ordered. It therefore becomes our duty to examine the bond, to see whether it be in accordance with the provisions of the foregoing statute, for by that act alone it must stand or fall, since it is an instrument unknown to the common law. That portion of the bond or indenture, material for our consideration, is as follows: — “ This indenture witnesseth, that we, the managers of the Female Orphan Asylum of Portland, in the State of Maine, have put and placed,” &c. “ In testimony whereof, we the said parties have hereunto interchangeably set our hands and seals,” &c. Signed by the defendant and “ Mary B. Btorer, in behalf of the managers of the Female Orphan Asylum of Portland,” to whose signatures are affixed their individual seals. In the first place it will be noticed, that “ we the managers,” (and not the society by their managers) have, &c., and that the instrument bears not the corporate seal; consequently at common law, had the parties been reversed, no action for covenant broken could have been maintained against these plaintiffs. Stinchfield v. Little, 1 Maine R., 231; Cram v. Bangor House Proprietory, 12 Maine R., 354; Tippets v. Walker, 4 Mass., 595; Bank of Columbia v. Patterson, 7 Cranch, 299; Randall v. Van Vechten, 19 Johns., 60. How far the R. S., chap. 91, sec. 14, may change the law as settled by these decisions, it is unnecessary now to consider. Those cases, or many of them, while they decide that no action for a breach of covenant will lie, also decide that assumpsit may, and that the deed is receivable in evidence under that issue. Now in this case, inasmuch as the instrument declared on has the signature of the defendant with his seal affixed, and consequent [185] ly is his deed, it is difficult to perceive, by parity of reason, why covenant broken, instead of assumpsit, may not be maintained. But the defense presents another point, which, notwithstanding the remarks of the plaintiffs’ counsel, very justly eulogistic of their clients’ acts and intentions, we feel compelled to sustain; which is, that the managers had no power under the act to delegate to another the trust conferred only upon themselves, or in other words, that “ delegated power cannot be delegated.” In Stoughton v. Baker, 4 Mass., 530, the court say, that “ the authority given to the committee is, by the terms of the resolve, to be exercised by them or a major part of them. The exercise of this authority is personal, and cannot be delegated.” The same doctrine has been reiterated in Kupper v. Augusta, 12 Mass., 185; Tippets v. Walker, 4 Mass., 595; Emerson v. Prov. Hat Manuf. Co., 12 Mass., 237; Shankland v. Corp. of Washington, 5 Pet., 390; Brewster v. Robert, 15 Pick, 306; Lyon v. Jerome, 26 Wend, 485. It is contended by the plaintiff’s counsel that by force of the following by-law, viz: “ All bonds or indentures given on receiving children into or placing them out from the Asylum, shall be executed in behalf of the board by their secretary,” gave Mary B. Storer, their secretary, legal authority to execute the deed in the manner it was executed. It appears from the records introduced, that the foregoing vote or bylaw, (immaterial perhaps which,) was adopted by the managers and not by the corporation, who only are authorized to make and establish by-laws; but, if established by either, it would be repugnant to the act, which become a law of the state. By the additional act it was only a contract in writing and signed by the managers, which gave the master the control over the child. Any contract executed in any other manner than that prescribed by statute, would not be binding and could not confer any authority upon the master. Exceptions overruled, nonsuit confirmed.