Steele v. Oswego Cotton Manufacturing Co.

15 Wend. 265

• Court: New York Supreme Court
• Decided: May 15, 1836
• Status: Published

Opinion

By the Court,

Nelson, J.

The first three counts are special, and are in assumpsit on a sealed instrument; the residue are the common indebitatus counts. This is probably the first time this form of action has been brought and attempted to be sustained upon such an instrument. It was said by the counsel that he could find no case adjudging that an instrument executed under the seal of a corporation is, in technical language, a deed. This might well be ; for I presume the position was never doubted. It was for a long time doubted by courts whether a corporation could do any lawful act except by their seal—or by deed, which is the same thing ;• and of consequence, as they could make no promise or simple contract, assumpsit would not lie against them at all. Angel & Ames on Corp. 109,110, 117, 126,218, 219. Chitty’s Pl. 98.7 Cranch, 297. 12 Johns. R. 227. 14 id. 118. 19 id. 60. 2 Kent’s Com. 288, 292. This ancient doctrine has been exploded in this country, as will be seen by the above cases; though in England it is still maintained, with few exceptions. Waterworks Co. v. Bailey et. al., 4 Bing.283. We have before had occasion to remark, that the legal effect of the use of a seal by a corporation does not differ from that of an individual : the one is the seal of an artificial, the other of a natKrai person. The Farmer’s Woollen Manufacturing Company v. Clark, ante, p. 256. See also 6 Johns. R. 85.

A motion in arrest of judgment is a proper mode for the defendant to avail himself of this error, it appearing upon the record. Cro. Eliz. 859. Cro.Jac. 598. Cro.Eliz. 786. Cro. Ch. 56.

Judgment arrested