North River Meadow Co. v. Christ Church at Shrewsbury

The Chief Justice delivered the opinion of the court. Several of the reasons assigned for a new trial in this cause relate to the validity of the law organizing the meadow company, and the regularity of the proceedings under it. Another reason relied upon is, that the record of the proceedings and judgment upon a writ of certiorari, prosecuted by the defendants in this cause in the name of the state, directed to the plaintiffs, were improperly admitted in evidence. The certiorari referred to in the reasons assigned, was prosecuted for the purpose of testing directly the validity of the proceedings under the act incorporating the meadow company. The constitutionality and validity of the law itself, the regularity of the proceedings under it, and their binding operation upon the defendants in this cause, are all put directly in issue by the proceeding. The return made by the meadow company to the certiorari sets out those proceedings at length. The reasons assigned by the Shrewsbury Church for vacating and making void the assessments concerning the church lands, embrace all the points of objection suggested upon the trial of this cause, and now urged as reasons for a new trial. The proceedings were in all things affirmed by this court, and that judgment was, upon writ of error, affirmed in the Court of Appeals. That decision necessarily involved the adjudication of all the reasons assigned for reversal. It must have proceed [427] ed upon the ground that there was no error in the proceedings. These points must be considered as authoritatively settled, and 'no longer open for litigation. The record in that cause was virtually between the same parties, in relation to the same subject matter, now sought, in a collateral way, to be inquired into. It is true that in the title of the cause the church appears both as prosecutor and as defendant. This, however, is a mere formal matter. It might have been entitled between the parties in this cause, without affecting the regularity or the substance of the proceeding. State v. Hanford, 6 Halst. 71. If it were otherwise, upon principle, the record would be competent to show that the validity of the statute, and the regularity of the proceedings under it, had been expressly adjudicated by the court in the last resort. The decision of that court upon,all the questions of law involved in the case were justly held to be conclusive upon the court and jury at the trial. It is equally binding upon this court. This disposes of the most material aud embarrassing questions involved in the controversy, and leaves but two or three points of minor importance to be disposed of here. One of the reasons relied upon for a new trial is, that the assessment set forth in the declaration is alleged to be made by three commissioners, whereas the assessment offered in evidence is signed by two commissioners only. This, it is insisted, is a fatal variance between the allegation and the proof. The declaration avers the assessment to have been made by Reuben Shreve, William Truex, and John Taylor. The assessment offered in evidence was in writing, with the following caption prefixed : “ Assessment made this twenty-first day of November, eighteen hundred and twenty, by Reuben Shreve, William Truex, and John A. Taylor, managers of the North River Meadow Company, as follows, to wit.” It is signed by two of the managers only, and hence it is insisted (hat it was made by two only. But this conclusion is not warranted. The assessment, upon its face, purports to have been made by all the commissioners. It is signed, it is true, but by two. But signing is no essential part of the making of the assessment. [428] It would have been valid though but one name had signed, or even if it were entirely without signature. The law does not require that it should be signed at all. If the law had directed that the assessment should be signed by the managers, or a majority of them, it would then have been deemed the act only of those who signed it. But the statute contains no such, direction, and the assessment must be deemed to have been made, as it purports to be, by all three managers. The case is clearly distinguishable from the case of a promissory note, an award, or the return of a road, to which it was likened upon the argument. The signing of a note, is technically and essentially the making of it; an award is usually required to be under the hands of the arbitrators ; the return of a road, is required to be signed ' by the persons making it. In either case the signing is an essential ingredient of the act done, and the (award or the return can be deemed the act of those only who sign it. The declaration does not aver that the assessment was signed by three managers, but that it was made by three, and so is the proof. In this respect there is no variance between the allegation and the proof. 2. Another ground of exception is, that the books containing the assessments of the managers, and the book of minutes of the company, were incompetent and inadmissible as evidence. The assessment is expressly declared by the act to be admissible in evidence. That it was written in a book cannot impair its validity, and the book, it is to be presumed, was offered merely for the purpose of showing the assessment. The books and minutes of a corporation, though not usually evidence against third persons, are competent evidence of the proceedings of the corporation. In the Highland Turnpike Company v. McKean (10 John. JR. 162) the court say, “the general rule is (and it is a rule of evidence essential to public convenience), that corporation books are evidence of the proceedings of the corporation.” Owings v. Speed, 5 Wheaton 420; Wood v. Jefferson County Bank, 9 Cowen 194. 3. It was not incumbent upon the plaintiffs to prove that the alteration apparent upon the face of the assessment was made before the assessment was signed. The presumption is [429] not against, but in favor of the validity of the writing. It is incumbent upon the party charging the instrument to be void by reason of an alteration subsequently made, to sustain the averment by clear proof. 4. The only remaining exception is, that the judge erred in charging the jury to allow seven per cent, interest after the 4th of July, 1824. The charge, in regard to the rate of interest, was correct. The assessment, when made, imposed a debt upon the defendants, to be sued for and recovered as such. The act of 1823, changing the rate of interest, operated only upon contracts made, and debts incurred after the law went into operation. It did not affect the rate of interest upon debts subsisting previous to the 4th of July, 1824. The statute, though in terms purporting to regulate the rate of interest upon contracts only, regulates the interest upon all debts due, whether by statute, judgment, or agreement of parties. Verree et al. v. Hughes, 6 Halst. 91. The rule to show cause must be discharged. The form of the verdict, as returned upon the postea, is erroneous. The first two counts of the plaintiff’s declaration are for the two assessments specifically, amounting together to $191.47f. The third count is for $308.53, money borrowed, being the balance of $500, the entire debt demanded. There was no evidence to support the last count. Interest, as such, cannot be recovered under it. To support a count for money lent there roust have been a loan of money. 1 Chit. PL (7th ed.) The verdict appears to have been rendered for $462.28J debt. It should have been for $191.47|- of debt, and the residue of the amount, being the interest recovered, should be in the shape of damages for the detention of the debt. 1 Saund. 201, a, note n; Osborn v. Hosier, 6 Mod. 167; Watkins v. Morgan, 6 Car. & P. 661; Sayre v. Austin, 3 Wend. 496. The postea should be amended accordingly. Revius and Carpenter, Justices, concurred. Rule refused. Cited in Hunt v. Gray, 6 Vr. 230; Cox v. Marlatt, 7 Vr. 391.