Wilkinson County MsArchives Court.....Carmichael, Mr 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Carmichael, Appellant, v. Trustees of School Lands.

pages 84-100

Where a plat and certificate of survey were admitted in evidence to the jury, 
when it did not appear that there was any question of boundary under the 
statute, or other proceeding to which it could properly refer: Held, the 
admission of the paper in evidence was irregular. Where the plat or survey was 
embraced in the bill of exceptions, they were held to be the same offered in 
evidence, although wanting proper words of designation and identity.

Where a corporation sues, they must prove, under the general issue, that they 
are a corporation.

The trustees of school lands, although not incorporated by a particular name, 
nevertheless, quasi corporations, and mast prove under the general issue their 
authority to sue. Like all other corporations, they possess only such powers 
as are given them by law, and must be subject to the rules governing 
corporations.

The right of the trustees of school lands to sue cannot be denied by plea in 
abatement, as it would be equivalent to nul tiel corporation, which is now 
considered bad, because it amounts to the general issue.

Where the court gave twenty days to execute an appeal bond, but the party 
executed it two days after it was granted, during the session of the court, 
and the surety was approved by the court, and it appeared in the record as a 
part of the proceedings: Held, the appeal must be sustained.

APPEAL from the circuit court of Wilkinson county.

This was an action of trespass quare clausum fregit, brought by the trustees 
of school lands, section 16, in township No. 1, range 4, against Carmichael, 
for two hundred cypress trees cut and carried away from the school lands by 
the slaves of the defendant below.

There were two counts in the declaration, one at common law, de bonis 
asportatis, and the other upon the statute of June, 1832, for the forfeiture 
of 10 dollars for each tree cut and carried away.

The plea was not guilty and issue thereon. Verdict of guilty and damages 
assessed to 1000 dollars.

On the trial, the plaintiffs offered in evidence a plat and survey and 
certificate thereto of one George Dougherty, which was objected to on the part 
of the defendant, on the ground that it was not taken in obedience to any 
regular authority, but appeared to be mere private property; which objection 
was overruled and the plat admitted in evidence to the jury.

The defendant asked the court to instruct the jury, that the trustees must 
prove their authority to sue, which instruction the court refused. Bills of 
exceptions were taken to the opinions of the Court.

It also appeared that the appeal was granted, the bond to be entered into 
twenty days after the adjournment of the court; but the bond was executed two 
days after the appeal was taken and the surety approved by the court.

Winchester, for the appellant.

1. The plat and certificate thereto, of George Dougherty, given in evidence as 
a survey, and excepted to by the defendant, was inadmissible. It was a mere 
private plat made by Dougherty, or purporting to be made by him, although, for 
any evidence to the contrary, it might never have been made by him, or if made 
by him, it may be a mere sketch of fancy.

A survey to which defendants are not parties is not evidence. 1 Strange 95; 1 
Lord Raym. 731.

2. The court erred in refusing to charge the jury, that plaintiffs must prove 
their authority to sue as trustees of school lands in township No. 1. range 5, 
and in charging the jury, that the pleadings admitted the plaintiffs to be the 
trustees authorised by the act of 15th December, 1830, to sue. 8 Johns. Rep. 
378; 14 Johns. Rep. 415.

The declaration avers, that Noland and others were in the possession and 
charge of the land from which the trees were cut and carried away, by virtue 
of their office as trustees of school lands in township No. 1, range 5.

This was a material averment, as, unless plaintiffs were in possession, either 
actual or constructive, there could be no trespass. The plea of not guilty 
means, not guilty of the trespass charged in the declaration, which is a 
denial of every material fact, which goes to constitute the charge of 
trespass. Actual force is of the very essence of a trespass vi et armis. Where 
the plaintiffs do not prove themselves to be in the actual possession of the 
land, there can be no trespass, in carrying away trees, for which they could 
sue. But at the least there must be a constructive possession. Until the 
plaintiffs proved themselves the trustees of school section in range 4, they 
failed to prove themselves in the constructive charge and possession of the 
school section in range 5.

None of Mr. Henderson’s authorities reach to a case of this kind.

Suppose a plaintiff were to aver that he was in possession as a lessee by 
virtue of a lease; and being so in possession the defendant with force and 
arms trespassed upon his possession, by cutting and carrying away his crop of 
grain? He would have to prove his lease, and not guilty would not admit it. 
Suppose he averred he was in possession as heir by descent? He would have to 
prove his title by descent. It is not a question of the character in which the 
parties sue, but of the title by virtue of which they claim to be 
constructively in possession. It is the very gist of the plaintiff's action.

It was, therefore, undoubtedly error in the court to charge the jury, that the 
pleadings admitted the plaintiffs to be the trustees authorised, by the act of 
15th December, 1830, to sue.

Not guilty means, that defendants are not guilty with force and arms of 
trespassing upon lands in the possession of plaintiffs by virtue of their 
right to the possession as trustees, in manner and form as plaintiffs have 
alleged, and cutting and carrying away two hundred cypress trees. It is, 
therefore, not a question of the character in which they sue, but of the title 
under and by virtue of which they aver themselves to be in the constructive 
possession of the land and timber.

The act requiring a plea denying the character on oath, upon which Mr. 
Henderson relies, was passed in 1836. The exceptions were taken on the trial 
in October, 1834. An erroneous decision of the court in 1834, cannot be made a 
correct decision by an act of the legislature of 1836, even "by being 
perverted in the metaphysics of speculation." If it could, attorneys have only 
to obtain seats in the legislature, to gain a bad cause in the revisory 
courts. "Plaintiff must prove that he had either the constructive or actual 
possession at the time of this trespass committed." Saunders on Pleading, 861.

3. Court erred in refusing to charge the jury that, if Davis wilfully 
committed the trespass without the assent and direction of Carmichael, 
Carmichael is not guilty of the trespass, and in charging the jury, that 
although Carmichael was not answerable for the trespasses of Davis, he was 
answerable for the trespasses of his own slaves, though under the direction of 
Davis as overseer.

Admit that a master is answerable for a trespass committed by his slaves, to 
the same extent that he is for trespasses committed by his cattle, yet he 
cannot be liable for a trespass committed by his overseer with his slaves 
while under the overseer’s control, when such trespass is committed without 
the assent and direction of the master.

If the overseer took the cattle of such master, and drove them through the 
cotton field of a neighbor, breakiug down and destroying his fences, corn and 
cotton, without the knowledge, consent or privity of the owner, such owner 
could not be made liable because the trespass was committed by his overseer 
with his cattle.

"It must be shown that the defendant or his servant by his command committed 
the trespass." Saunders on Plead. and Ev. 863.

4. The court erred, in refusing to charge the jury generally, that they must 
find for the defendant, the plaintiff having misconceived his action. 1. An 
action of trespass for taking and carrying away trees will not lie, unless 
there is a constructive or an actual possession in the plaintiff. Actual force 
is necessary, as well as immediate injury. 2 Saunders. 863. 2. An action of 
trespass vi et armis will not lie for a forfeiture under the statute. 2 Saund. 
on Plead. and Ev. 853, 863; 3 East. 602; 5 Term Rep. 649; action on statutes 
is, 2 Saund. Plead. and Ev. 829, debt on case.

5. The court erred in refusing to charge the jury, that the damages laid down 
in the Revised Code, is not the rule of damages in this case. As only debt or 
case will lie on a statute, it follows that the statutory damages is not the 
rule, but the common law rule of damages, to wit, the real amount of damages 
proved. Wherever case will lie, trespass will not, unless where there is both 
an immediate and a consequential injury although, in some cases, where 
trespass will lie, case will also, as where plaintiff can waive the trespass.

6. The court erred in refusing to grant a new trial.

There was no evidence of actual force before the jury, and the court erred in 
refusing to charge the jury, that upon the evidence they ought to find for the 
defendant, as well as in the other charges it gave or refused to give. The 
damages also were excessive. The largest number of trees which plaintiffs' 
witnesses guessed were cut down, was 80 or 90, and the damages are a thousand 
dollars. The overseer swears positively but two were cut. The plaintiffs’ 
witnesses were themselves trespassers, and undoubtedly swore to the full 
extent of a willing conscience. The verdict then, could not, upon the 
evidence, exceed 800 or 900 dollars.

The verdict, therefore, was upon insufficient evidence, on erroneous charges 
of the court, and excessive, and a new trial ought to have been granted.

Henderson, for the appellees.

The first exception found in the record, is made by the defendant below, to 
the admission in evidence of the plat and survey made of the premises, on 
which the trespass is charged to have been committed. It is not excepted to on 
any specific ground and all the strength of the objection must, therefore, 
consist in its applicability and pertinency as testimony to the issue joined. 
The necessity of a survey, showing the lines and boundaries of wild lands, or 
open woodlands, in connection with the title, to recover for trespass thereon, 
is as well established as in actions of ejectment; and it is presumed 
unnecessary to refer to any authority in support of so obvious a principle.

The next exception, in order of time, is found in the charges and instruction 
to the jury, prepared by the defendant, and which the court below refused to 
give, or gave with qualifications. The defendant requested the court to charge 
the jury,

1. "That the plaintiffs must prove they have authority to sue in the capacity 
of trustees of school lands, &c., and that the act of the legislature of the 
15th of December, is not evidence of that fact."

What fact? I would ask. The fact of their "authority" to "sue in the capacity 
of trustees," &c. Now this exception does not put in question the plaintiffs’ 
capacity as trustees, &c., but only their authority to bring this suit in that 
capacity. Now the truth is, the statute of the 15th of December, 1830, does 
expressly give this authority to sue in the capacity in which the plaintiff 
have sued, viz: the trustees of school section of township 1, range 4, suing 
for injuries to school section in township 1, range 5. 1 Chit. Plead, 186. The 
refusal of the court to give this instruction was, therefore, right. But the 
court proceeded further to say "that the pleadings admitted the plaintiffs to 
be the trustees authorised by the act to sue." In other words, the court 
charged that the capacity of the plaintiffs as trustees, &c., was admitted by 
the defendant’s plea to the action of not guilty. In other words, to have put 
the plaintiffs’ capacity in issue, a plea appropriate to that purpose should 
have been filed by the defendant. This charge, we contend, was right, and in 
conformity with the decision of the Supreme Court of the United States, in an 
action of trespass, by persons suing as corporators, and where the defendant 
had pleaded not guilty. 1 Peters’s Rep. 450; 8 East, 404—5; Stevens’s Plead. 
255—6. As to statutory trustees’ right of suit, 1 Chit. Plead. 15, 16. In 
actions ex delicto, exceptions against plaintiffs as parties, must be by plea 
in abatement. 1 Chit. Plead. 76, 483. As to the plea to the count or action, 
admitting the character of the plaintiff, 1 Chit. Plead. 475. That this is 
specially the case of plaintiffs suing in autre droil, 1 Chit. Plead. 487, 
525, and n.; 2 Dall. 100; 3 Doug. 303.

This rule, as decided in 1 Peters, we insist was always the law when the rule 
was rightly understood; but as settling all doubt on the subject, the statute 
of 1836, p. 63, sect. 4, has enacted, "That all pleas to the action shall be 
deemed and adjudged as admitting the parties, and the character of the parties 
suïng;" and as the statute only goes to operate on the remedy, and not the 
private and vested rights of persons, it becomes the rule of decision in this 
case, though enacted subsequent to the institution of this suit. On this 
point, see 4 Wheat. 244; 4 Cowen, 392; 16 Mass. Rep. 245.

2 The second charge asked for by the defendant below, was given substantially 
as asked for. But the judge added to his charge on this point, that the 
defendant "was answerable for the trespass of his own slaves, though under the 
direction of Davis as overseer."

I am unable to perceive the slightest objection to the legal correctness of 
the language of the court last quoted; and to my apprehension, it involves 
none of the unreasonable results supposed by this court, in their former 
examination of this case.

It does not intimate that defendant was liable for the trespass of Davis, 
under any circumstances. It does not impute liability to defendant for the 
trespass of his own slaves, if Davis, as a tort feasor, commanded and directed 
the slaves to the commission of such trespass wilfully. But according to its 
fair construction, implies only, that Carmichael is liable for his slaves’ 
trespasses, though he might have had an overseer in charge of his slaves; and 
in its most extended construction, can only mean that if the defendant’s 
slaves committed the trespass by the direction of Davis, as the defendant's 
agent in the ordinary performance of his duties as an overseer of defendants' 
plantation and slaves, then the defendant was liable for such trespass. Now if 
this construction be ascribed to the language of the charge, it would be 
exactly within the rule of law, as applied to trespasses in England, and the 
non-slaveholding states, committed by white laborers and servants under the 
direction of a steward or agent, acting in the ordinary performance of the 
duties assigned him. 1 Chit. Plead. 93.

Had the court below charged the jury, the defendant was liable for these 
trespasses of his slaves, which the overseer, departing from the business of 
his employer, wilfully directed them to commit; then the charge would have 
been erroneous, and the case would have presented, in the judge's charge, 
those oppressive and unreasonable features, which this court, in its former 
opinion, had imagined to belong to it.

But when scrutinised, the charge referred to is believed to be fully within 
the rule of law even applicable to white free servants. 1 Chit. Plead. 92; 2 
Call. Rep. 231 or 274. And the knowledge of the principal in respect to such 
trespass—or the interest which he derived—or whether it was committed by his 
approbation or assent, are immaterial inquiries, provided that the trespass 
was committed by the "negligence or unskillfulness of his servant or agent in 
the course of his employ." 1 Chit. Plead. 92, 93; 4 Campbell, 72.

The charge, in its utmost latitude, cannot be extended so far, but this rule 
of law will amply cover it, even were the defendant's servants white free men, 
instead of slaves. We think, therefore, this charge of error is not sustained 
even by the English common law rule.

We believe, however, there must be a wide distinction founded in the nature of 
our institutions, as to the liability of a master for the trespasses of his 
slaves in this state, and the liability of an employer for the trespasses of 
his free laborers, in England or New York. In the latter instances, the 
employer is responsible as a principal for those trespasses committed by his 
laborers, hirelings, agents or sub—agents in the ordinary course of his 
employ. Now if his employ was that of cutting timber, to build his gins, 
houses and fences; and his directions to his laborers, were to cut the timber 
only from the forests of the employer; and if the employer, though frequently 
visiting the ground where the timber was being delivered by his own teams, and 
daily appropriated to his own use, should never trouble himself to show his 
laborers the boundaries of his forest lands; and through their ignorance of 
these boundaries, or their negligence in tracing out the lines, they should 
cut over on the adjoining lands of another, is there any common law lawyer who 
would doubt, but the employer in England or New York, under such 
circumstances, would be liable for the trespass.

But the decisions in these countries proceed to say, that if these laborers, 
agents or servants, without the assent of the employer, "wilfully" commit a 
trespass, though at the time engaged in the business of their employer, in 
such case the employer is not liable for the trespass, but the servant only. 
Because, say the books, in such case the servant has departed from his 
master’s employ.

Now it must be obvious that this latter rule cannot be applied in its reasons 
or consequences, to the wilful trespass of a slave.

1. Because in legal contemplation, a slave cannot depart of his own will, from 
the service, possession or employment of his master; and 2. Because the slave 
cannot be made liable for any trespass.

A slave has no will, as recognised by our law, in respect to civil rights and 
liabilities. Yet he is a being, who can, in fact, will and perpetrate all 
kinds of torts and malicious mischief. But who shall be responsible, 
civiliter, for his acts in these respects? I entertain no doubt the master is 
responsible. And by the master, I mean him who is entitled, or assumes to 
control the services of the slave for the time being. Such master, for all 
civil responsibilities, must be considered to will for the slave. Because the 
law not only concedes him the right, but imposes on him the duty, to wil1 the 
slave’s control, and protect others from his wrongs and violence.

To purse this contrast in another particular. By the common law, (where 
slavery is not recognised,) it is a general rule that the agent, manager or 
overseer, is not liable for the damage done by the negligence of those 
employed by him in the service of his principal. And it was decided by Lord 
Kenyon, that "the action must in these cases be brought against the hand 
committing the injury, or against the owner for whom the act was done." 1 
Chit. Plead. 97.

But in this state, and under our laws, if the hand committing the injury be 
that of a slave, no redress can be had against him; and according to the 
English common law rule, if this hand did the wrong "wilfully," and without 
the assent of the employer, the principal, or master, would not be liable. 
Ergo, The citizen of Mississippi would be without redress, where the common 
law afforded relief, and provided protection for the Englishman.

The statute, Rev. Code, p. 381—2, sect. 56 and 57, seems also to my mind an 
exposition of what our legislature have considered the liability of the master 
for the trespasses of his slave. By that statute, if the slave commit his 
trespass in such manner that it would be a felony at common law, the master, 
in such cases, is held liable for the damages.

It would be difficult to assign a reason why he should be held responsible for 
the damages resulting from the more flagrant and criminal outrage of his 
slave, and yet not liable for those damages resulting from the lesser violence 
and wickedness of the slave. Shall he be bound at the peril of his purse, to 
restrain the slave in his greater enormities, but not liable for his lesser 
trespasses? If my neighbor’s slaves cut my corn from the field, I have no 
redress; if taken from my crib clandestinely, the master is liable. And yet, 
infants, idiots and lunatics are liable in trespass. 3 Com. Dig. 586; 4 Mass. 
Rep. 376; 1 Chit. Plead. 51; 3 Bac. Abr. 536; 6 Bac. Abr. 589; 2 East, 104; 1 
Chit. Plead. 52.

I do not believe such is the result of our system.

At common law, the husband is liable for the torts of his wife. 10 Johns. Rep. 
247; 1 Chit. Plead. lO5, 106; 2 Com. Dig. tit. Baron and Feme, letter Y, p. 
251. Now the liability, civiliter, of the husband with his wife, for her 
torts, though committed unimo furandi, can only be placed on the ground that, 
being charged by the law with the control of her will and actions, he is made 
responsible therefor. In other words, her actions resulting from a tortious 
will, are, for purposes of civil compensation, imputed to him, because the 
government of her will and action is committed to his control.

The third and fourth instructions asked for by the defendant below, do not 
deserve the slightest notice. But in respect for the counsel who advocate 
them, I respond; and first, to the third ground;

That the court should have charged, "that they must find for the defendant, 
the plaintiff having misconceived his action."

Such could not have been the duty of the court below, unless upon facts 
ascertained, on which the authority of the court so to instruct could be 
based. In the condition in which the case was then before the court, there 
were no other ascertained facts, than the pleadings in the cause, on which the 
court could not rest their decision that the action was, or was not 
misconceived. If the pleadings show the action to be misconceived, in this 
state it can only be taken advantage of by demurrer; 1 Chit. Plead. 226—7; 
Stevens’s Pleading, 181, 182; in connection with statute, Rev. Code, p. 124, 
sect. 91; which provides that "no judgment, after the verdict of twe1ve men, 
shall be stayed, or reversed, for any mispleading;" or for any mistake or 
misconception of the form of action, or for any other defect in the pleadings 
of form or substance, which might have been taken advantage of on demurrer, &c 
&c. 

Now, but for this statute, besides the objection by demurrer, the error could 
be reached by a motion in arrest, or on writ of error. But it could not be 
made available by way of nonsuit; 3 Johns Rep. 430; 1 Chit. Plead. 227; and 
the objection could not be made on motion for a new trial. 3 Johns. Rep. 105; 
5 Conn. Rep. 114.

When the misconception of action appears only by the evidence on trial, it is 
then made available as a ground of nonsuit, on which the court might be called 
on to instruct, in connection with the evidence, but cannot so judge of the 
evidence as to give a peremptory order for a verdict. 1 Serg. & Rawle, 360; 4 
Johns. Rep. 402.

The court, therefore, was right in refusing the third instruction asked for.

The fourth instruction asked for, is similar in the illegality of its 
pretensions. The second count in the plaintiffs' declaration is a special 
count upon the statute in the Rev. Code, of 15 June, 1822, and avers the 
measure of the plaintiffs’ damages as provided for by that statute. No 
exception being taken by the plea of the defendant to the form of the count, 
the court could not correct the error, if such existed, by a peremptory order 
to the jury.

It is one of the first, and most simple rules of law, that the plaintiff not 
only may prove his averments on which the defendant has joined issue to the 
country, but he must prove all that are substantial. 5 Amer. Dig. 394. sect. 5.

If the form of the action was wrong, this was not the proper mode for its 
correction, and it is useless to discuss how the question, attempted to be 
thus raised, might have been presented, as the record shows no ground on which 
the question could be revised even if the error existed, which we deny, either 
upon the face of, or dehors the record.

The last point, or bill of exception, which complains of the court because 
they refused to correct the form of action by granting a new trial, is rather 
too much out of character, to demand further notice than to show its 
unimportance had not escaped notice.

The last question is that of the defendant’s application for a new trial. We 
insist it should not be granted, and the court below were right in refusing it,

1. Because there is no distinct motion in the record assigning may cause or 
causes for a new trial, in the overruling of which the court could have erred. 
5 Amer. Dig. p. 396, sect. 26.

2. This court should not order a new trial on the statement of testimony 
incorporated in the bill of exceptions, as now on record, because it appears 
from the same bill of exceptions that the plaintiffs below read the 
depositions of four several witnesses, viz: the deposition of Thomas Porter, 
Paraly Fogle, John D. Washburn, and Joshua Scurlock, whose testimony is not 
incorporated in the bill of exceptions, or otherwise before this court. And, 
therefore, this court should not convict the court below of error, unless the 
facts, on which the decision below overruling the application for a new trial 
was made, were now before this court.

3. Even without the presence of the four depositions aforesaid in behalf of 
the plaintiff below, there is sufficient testimony in favor of the plaintiff’s 
right of recovery, and the measure of his damages, to show the verdict, being 
a second verdict, ought not to be disturbed.

The conflict of testimony between the witness Scarborough, for the plaintiff, 
and the witness Davis, for the defendant, as exhibited of record, is wide, and 
obviously apparent. On this state of conflicting testimony the jury have twice 
decided for the plaintiffs. As it is their peculiar province to decide on 
doubtful and conflicting testimony, this court should not now interpose its 
opinion on the weight of testimony, adverse to the two verdicts heretofore had 
in the cause. But to review the evidence.

If there were any trees cut on the school lands by defendant's slaves, it is 
certain, from the evidence, that the timber went to the plantation and use of 
the defendant. And though it is not shown the defendant was cognizant to the 
fact, or assented to the trespass, yet, all the proof shows he got the benefit 
of it: and the defendant's witness and overseer, proves that 
defendant "visited his plantation occasionally while the gin and improvements 
were going on," though he never went to see where his slaves and overseers 
were getting the timber.

All the testimony concurs, that so far as Davis was active in the trespass, he 
acted as the overseer of defendant, using his teams and slaves in the ordinary 
course of his business, in building his employer's gin, quarters, &c. 

But the testimony chiefly shows the trespass to have been by the slaves and 
teams of the defendant, though Davis was frequently with them. Therefore all 
the argument that this was Davis’s trespass is gratuitous, and all the proof 
concurs that there was some trespass on the plaintiffs’ land, committed by 
defendant’s overseer and slaves, for use of defendant, and as defendant's 
witness asserts, unintentionally.

But in the extent of the trespass the proof is very contradictory, and the 
jury have settled these contradictions in the plaintiffs’ favor, and hence the 
court should not interfere, and particularly in case of tort. 10 Johns. Rep. 
443.

As then a trespass in some extent, (and for which the defendant even on the 
common law rule is unquestionably liable,) has been proved, and the jury twice 
determined its extent, why should this court now order another trial?

In a case of two verdicts upon doubtful testimony, why should this court 
indulge its doubts upon the same testimony, and, exhaust its powers in 
granting a new trial, to refer doubtful evidence a third time to a jury?

The record shows the appeal to have been prayed for and granted, from the 
decision of the court in overruling a motion for a new trial, and from 
the "verdict of the jury." The statute allows no such appeal. Rev. Code, 138; 
sect. 148, 150, 151; Ibid. 148; last clause of sect. 5.

"That no appeal shall be granted, &c., till final judgment," &c. 

Mr. Chief Justice SHARKEY delivered the opinion of the court.

This action of trespass quare clausum fregil was instituted in the circut 
court of Wilkinson county, by the defendants in error against the p1aintiff 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 applicabiliry 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 tesfify 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 hy 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 John. Rep. 
415. The decision of the court in the case cited by counsel for defendants in 
error, from 15 Johns. Rep. 208, is in opposition to the authorities before 
cited. The decision, however, seems to be in part founded on 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 Cowen, 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 profound 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 Angell 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 to be a 
quasi corporation, and so they are classified 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 tiel 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, and it 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 22nd 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.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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