GAYETTY vs. BETHUNE.

should not burden another with a way over his land, for his convenience.

The idea of necessity in this case seems to be referred altogether to the ancient barn, which formerly stood upon the land, now owned by the plaintiff, in the rear of the house. But that barn has not been standing for sixteen years, and there is no reason to suppose that it had been used as such within the last thirty years. Now, if it could be maintained that a barn was necessary within a town or city, still the plaintiff cannot be supposed to have purchased with a view to the enjoyment of one which had disappeared long before he purchased; and he cannot now found a claim upon a necessity, which arises from a desire to erect a new barn upon the same site. We think the plaintiff not entitled to recover upon either of the grounds, upon which his counsel has endeavored to support his action. According to his agreement, therefore, he must be called. Plaintiff nonsuit.

[* 57]

* JOHN KENDRICK versus PHILIP WENTWORTH.

Where a judgment creditor has extended his execution upon land not belonging to the judgment debtor, he may not sue out a scire facias, under the Stat. 1785, c. 6, without a previous application to the court from whence the execution

issued.

THIS was a scire facias, brought to obtain an alias execution upon a judgment heretofore recovered by the plaintiff against the defendant, upon a suggestion that the original execution had been levied upon real estate, which did not belong to the debtor; pursuant to the provisions of the statute of 1785, c. 6.

There were several pleas to the scire facias, which resulted in demurrers. When the cause came on for argument upon the demurrers, it was suggested by the defendant's counsel, that the writ had been sued out by the plaintiff, without application to the Court, and that the defendant had some equitable ground, which he could have addressed to the discretion of the Court, had such application been made. And upon consideration it was decided by the Court that a scire facias under this statute was not a writ of right, which the party may take from the clerk's office at his pleasure; but he must first make application to the Court as the statute has prescribed; and the Court will, if they see cause, order notice to the judgment debtor, before the writ shall issue; or they will refuse the

KENDRICK vs. WENTWORTH.

writ, if it does not appear that substantial justice requires that it should issue.

The writ was dismissed, as having issued improvidently.

T. Williams for the plaintiff.

Prescott and Aylwin for the defendant.

[*58]

* OLIVER C. WYMAN versus THE PRESIDENT, DIRECTORS, AND COMPANY OF THE HALLOWELL AND BANK.

AUGUSTA

A banking company being incorporated by the same name with a former one, and having appointed the same president and cashier, received and issued the notes of the former company, the officers of the new company frequently declaring that there was no difference between these notes and those issued by the new company it was holden that the new company were not thereby liable for the notes of the former company. (1)

THE plaintiff declared in assumpsit, "for that the said corporation at Boston, on the 1st of January, 1814, by sundry promissory notes. or bank bills, made in the name of the said corporation, and subscribed by Benjamin J. Porter, their president, among other things, for value received, promised sundry persons to pay them, or bearer, sundry sums of money, a schedule whereof is hereto annexed, amounting in the whole to the sum of 2000 dollars; and the said corporation, by their officers and agents, did issue and put the said bills in circulation, and the same bills afterwards lawfully came to the hands and possession of the plaintiff, who thereby became, and still continues to be, the lawful bearer thereof, and being so possessed of said bills, afterwards, on the 8th of July, 1815, demanded payment of said bills at the office of said bank in said Hallowell, at the usual hours of business, of the cashier of said corporation, who then and there wholly refused to pay the same; whereby the said corporation became liable, and in consideration thereof then and there promised the plaintiff, to pay him the amount of said bills: yet, though requested," &c.

The action came on for trial upon the general issue, at the last November term, before Parker, C. J., when the plaintiff, in support of his declaration, offered in evidence sundry bills or notes of the Hallowell and Augusta Bank, which bore date prior to June, 1812,

(1) Salem Bank vs. Gloucester Bank, 17 Mass. Rep. 29.

WYMAN US. HALLOWELL AND AUGUSTA Bank.

and were signed by Benj. J. Porter, as president, and Jeremiah Dummer, as cashier, and payment of which had been de [ * 59 ] manded and refused at the banking-house of * the defendants. As the corporation, which was made defendant in the present action, was created by a statute, which passed on the 23d day of said June, and was not in existence at the time the notes produced appeared on the face of them to have been issued; and as, at the times of their respective dates, there existed another corporation with the same name, created by a statute which passed on the 6th of March, 1804, and having for its president and cashier the persons whose names appeared in those capacities on the notes offered in evidence; and it being admitted that there was no evidence that the notes produced were, in fact, issued by the bank last incorporated, the notes so offered were rejected by the judge.

Sundry depositions were then read, tending to prove that the new corporation had received and passed, or issued, bills of the old corporation, paying them out on checks and loans; that the cashier and some of the directors of the new corporation had frequently declared that there was no distinction between the notes which were issued before, and those which were issued after, the incorporation of the new bank; and that it was upon the faith of those declarations, and of the conduct and transactions of the new corporation, that many notes of the old bank, and probably those of which payment was demanded in this action, were current and received as good.

The judge, being of opinion that nothing short of proof that the notes sued, or some of them, were issued by the new bank, as their own notes, and with an intent to have them considered as evidence of promises on their part, would entitle the plaintiff to recover, directed a nonsuit, without hearing any evidence on the part of the defendants.

If the whole Court should be of opinion that the jury might legally have inferred from the evidence in the case, that the notes so offered in evidence were issued by the defendants after their incorporation, and that upon such fact being found, or upon other facts proved by the evidence aforesaid, the plaintiff would be entitled [ * 60 ] to recover on any declaration in assumpsit, the nonsuit was to be set aside, and the cause to proceed to trial. The cause was argued by Prescott and Bigelow for the plaintiff, and Sullivan and Gorham for the defendants.

**

For the plaintiff, it was contended that the defendants had, by their acts in re-issuing the notes of the old corporation, adopted their promises; that the delivery of a contract does, in effect, constitute its date; that these notes, having been paid out by the

WYMAN US. HALLOWELL AND AUGUSTA BANK.

present corporation, promiscuously with their own, they were to be considered as good evidence of a promise by the defendants, as if they had never been issued by the old corporation. The plaintiff furnished the best evidence the nature of the case admitted, that these notes had been re-issued by the new corporation; especially as the old bank had ceased to transact any business whatever for more than two years previous to the plaintiff's presenting these notes for payment.

The defendants voluntarily assumed the name of the former corporation, and they elected the same officers, who repeatedly declared that the old notes were as binding on the new as on the old corporation. They issued the old bills as their own, and received them in payment in the same manner. They pursued this course for two years. Surely, upon these facts, the jury would have a right to consider these notes as evidence of an undertaking on the part of the new corporation to pay all the notes of the old one.

For the defendants, it was said that they had received and paid out the notes of the old corporation, as they did those of all other banks in general credit. There was no evidence, nor any ground of presumption, that the individual notes in the plaintiff's possession were ever received and issued by the defendants. Then, if they were held liable for these, they must be equally so for all the notes issued by the old bank. The opinions and declarations of the officers could have no effect to bind the corporation. They were intrusted with certain powers, and while [* 61 ] within their legitimate authority, their acts and undertakings were binding upon their constituents; but beyond that they could have no such effect.

PARKER, C. J., delivered the opinion of the Court. This case is to be considered without reference to any particular form of action, so that if a declaration in assumpsit could be formed, which could be supported by the evidence offered by the plaintiff at the trial, giving it its utmost weight, and without regard to any evidence of a contrary tendency, which the defendants might be in possession of, a new trial is to be had, with leave to form a declaration accordingly.

We have considered the case in this liberal and extensive view, and are satisfied that no action can be maintained against the present defendants, upon the notes which were offered at the trial, without proof that they were issued by the new corporation, as their own notes, and with a view to adopt them as such, instead of issuing notes of their own. Indeed, we are not clear that, with such proof, the defendants would be answerable, unless it were likewise

WYMAN US. HALLOWELL AND AUGUSTA BANK.

proved that the company, by some vote or other legal act, had authorized the directors or officers of the corporation to bind them in this unusual way. Such a state of facts, without the last-mentioned evidence, would prove that the officers, who had so undertaken to pledge the credit of the bank, had acted unwarrantably, and wholly beyond the authority resulting from their trusts and offices; and in so doing they could not implicate the stockholders or company, who are supposed to rely upon the faithful and correct discharge of duty by their agents and servants.

The numerous stockholders in a bank, scattered as they often are over all parts of the commonwealth, would be in an extremely unsafe situation, if their property was bound by the irregular transactions, or by the declarations or confessions, of their officers, beyond

the legal sphere of their action. It is true that it is not [*62] required that corporations should act altogether by * seal; but their powers and their liabilities are still limited by the usual principles of such institutions, and their officers are restricted to such modes of binding the company as result from the nature of their duty, and the powers vested in them by their offices.

The two banks, which have the same name, are necessarily two distinct corporate persons, both having legal existence together, but neither being answerable for the notes, promises, or obligations, of the other. They, unfortunately, had the same persons for president and cashier- a circumstance which has caused much confusion, and no little mischief. The one last incorporated could, however, be under no obligation to pay the debts of the other, unless by some corporate act they had adopted such debts. The confessions of their officers, or any conversation of theirs, tending to create a belief, that the bills of the old bank would be paid by the new, could not be admitted as evidence against the corporation.

There may have been great fraud practised by the persons who had the management of the affairs of these banks, mixed up, as they were, with the same officers, and a confusion of property. But fraud cannot be imputed to the company. It is individuals alone, who by their conduct have led people into a belief, that the new bank was responsible for the notes of the old; and it is these individuals who are liable civilly to the party injured by their conduct; or criminally, if, with a fraudulent view, and with purposes of speculation for their own profit, they have done any thing which amounts to a cheat upon the public.

The ground upon which the counsel for the plaintiff suppose that the action can be maintained, is by showing that the notes which are sued in this action. were in fact issued by the new bank as their