Town of Guilford v. Cornell

18 Barb. 615 | N.Y. Sup. Ct. | 1854

Crippen, P. J.

The judgment given at special term, is founded entirely upon the invalidity of the act in question; the appeal therefore presents that question for review. If the law is valid and constitutional, then it follows that the judgment appealed from should be reversed.

It is unnecessary to cite authorities to show that the demurrer admits every material allegation in the answer, to be true. Before proceeding to examine the principal question presented by the appeal, it may be useful to advert to some of the facts which stand admitted by the demurrer. Cornell and Clark allege in their answer that they were commissioners of highways, in the town of Guilford, in the year 1836; that the Butternuts and Oxford Turnpike Company took possession of a highway and bridge in said town without having the damages appraised and paid, according to law; that the electors of said town, at an annual town meeting held in the month of February, 1836, passed a resolution authorizing and directing the said commissioners of highways to prosecute the said turnpike company for the wrongful and unlawful taking of said highway and bridge; that said Cornell and Clark, in pursuance of the resolution of said town, and by virtue of their office of commissioners of highways, employed an attorney under whose advice and counsel an action was brought against said turnpike company; that said action was tried at a circuit court in Chenango county, in the month of September, 1839, and a verdict of $250 rendered in favor of said commissioners, on which a. judgment was entered against the turnpike company; an appeal was brought from the judgment, which was afterwards reversed with costs. Cornell and Clark paid said costs as they were compelled to do, and in due time made an application to the auditing board of said town to have the amount of the costs and expenses incurred and paid by them in said action allowed against the town. The auditing board, however, refused to allow said account. Clark and Cornell afterwards prosecuted the town to recover the amount of - their claim for the costs and expenses incurred by them in the action against the turnpike company. This action was referred to three referees, and a report therein made in favor of Cornell and Clark against the town, for the sum of $657.22. On the application of the town, the supreme court set aside the report, with costs; the case was then appealed or carried to the court for the correction of errors, and it was there decided in favor of the town. The foregoing recited facts are admitted by the demurrer. And it is also admitted by said demurrer, that Cornell and Clark entered upon the litigation with the turnpike company as officers and agents of the town, and in obedience to said resolution.

¡No one will attempt to deny that where a town, in its corporate capacity, enters into a litigation with individuals or corporations, and authorizes the officers and agents of the town to prosecute actions and incur expenses, such town is bound by the most sacred principles of justice and common honesty to indemnify such officers and agents against all pecuniary loss and damage properly arising out of such litigation; no matter whether the town is successful or not in the litigation, if such failure is not imputable to the negligence or want of honesty of its agents or officers ; the morality of the claim and the liability of the town is no less obligatory than it would be against an individual, in a like case. The accumulated costs of the whole litigation, emanating from the action which was instituted under the direction of a resolution of the town, has been thrown upon Cornell and Clark, and for which by the strict and rigid rules of the common law they have no redress against said town.

The legislature possesses the power to levy and apportion taxation upon all the taxable persons- and property within the state, or within any particular political district or portion of it. It must be conceded, under the facts of this case, that the money awarded to Cornell and Clark under the act of the 5th of February, 1852, should be paid, if at all, by the town of Guilford, and not by the county of Chenango or the state at large. The litigation originated with, and for the benefit of, the town; if the litigation had been successful, the money recovered of the turnpike company would have belonged to the town of Guilford. The legislature was satisfied it was just and proper that the town should remunerate Cornell and Clark for the money expended by them in the litigation with the turnpike company; otherwise the act of the 5th of February, 1852, would not haYe been passed.

It is a necessary and safe rule, and one that I deem to be well settled, that the power of taxation is exclusively vested in the legislature. In the case of The Providence Bank v. Billings, (4 Peters, 561,) the court lay down the following rule: “ That the power of legislation, and consequently of taxation, operates on all the persons and property of the body politic. This is an original principle having its foundation in society itself. It is granted by all, for the benefit of all, and resides in the government as part of itself. However absolute the right of an individual may be to his property, it is still in the nature of such right that it must bear a portion of the public burdens; and that portion must be determined and fixed by the legislature. This vital power may be abused by the legislature; but the interest, wisdom and justice of the representative body, and its relations with its constituents, furnish the only security against injustice and excessive taxation, as well as against unwise and improvident legislation.” Again, in 4th Wheaton, 428, the doctrine is clearly laid down, that the power of taxation is essential to the very existence of government, and may be exercised by the legislature on the objects to which it is applicable, to the utmost extent that the goverment may see fit to carry it. In imposing taxes the government acts upon its constituents. The people of the state give to their government a right of taxing themselves and their property; to the exercise of this power there is no limit, except it is founded in the fundamental law. It must be conceded that the power of taxation and the apportionment of taxes and the assigning to each individual his share of the burden, is vested exclusively in the legislature, unless it is restrained by some constitutional provision.

One objection to the validity of the act of the 5th Feb., 1852, is that it violates the first and sixth sections of article one of the constitution. Those sections declare, in substance, that no member of this state shall be disfranchised or deprived of any of the rights or privileges secured to anv citizen thereof, unless by the law of the land or the judgment of his peers. And that private property shall not be taken for public use without just compensation. The claim of Cornell 'and Clark against the town of Guilford is predicated upon a statute of the state, which is strictly the law of the land, within the meaning of the constitution. It was urged on the argument, that the act in question is local in its operation, being made applicable only to a single town, and hence it is in derogation of the constitution. It has been decided in several cases that the above sections of the constitution have no application or reference to the taxing power of the legislature. If the construction contended for by the plaintiff’s counsel should be given to the constitution, I am unable to perceive any existing authority or power conferred upon the legislature for the imposition of taxes for any purpose. The authorities clearly settle the question, that the above sections of the constitution have no application to the power of taxation conferred upon the legislature. (The People v. The Mayor of Brooklyn, 4 Comst. 427. Taylor v. Porter, 4 Hill, 146.) The words “ law of the land,” as used in the constitution, are decided to mean by due course of law ; that is by a trial in the manner prescribed by the principles and practice of the common law. It is entirely obvious that the constitution should receive this interpretation ; otherwise all taxation must be held to be in violation obits provisions, and consequently illegal and void.

There being no prohibitory constitutional restriction, the legislature possesses the undoubted power to levy taxes upon particular districts, counties, towns, or other distinct localities, as may seem just and right according to the benefits derived from the objects of such imposition. This principle is fully asserted and maintained by the court of appeals in the case of The People v. The Mayor of Brooklyn, above cited. Also see Thomas v. Leland, (24 Wend. 65.) It cannot be regarded as an open question since the decision of the court of appeals. The legislature, acting upon the principle of these cases, passed the act on the 5th of February, 1852, for the purpose of affording relief to Cornell and Clark, against the manifest injustice to which they had been subjected by a refusal of the town to comply with a plain moral obligation resting upon it, but which could not be reached by the strict rules of the common law.

My conclusion is that the act in question was eminently right and proper to reach the exigency of the case, and fully authorized by the fundamental law of the state. The legislature possessed the right to pass the law, and the merits of the claim of Cornell and Clark furnish strong and palpable reasons for the enforcement of its provisions.

I do not deem it necessary to examine the several other points raised by the plaintiff’s counsel on the argument. The principal questions relied upon to sustain the demurrer to the answer, were based upon the alleged invalidity of the act of the legislature. Upon that branch of the case IJiave given my views.

I am satisfied, however, irrespective of all other considerations, that there is m limine a fatal objection to the maintenance of this action. The town of Guilford cannot maintain the action. The corporate property of the town, if it has any, is not affected by the law in question ; neither does it affect all of the inhabitants of the town in common. It only reaches the taxable property in the town. Much of the property may belong to persons not residents of the town; and it must be conceded that a large class of persons residing there are not affected by the provisions of the law. All persons having no taxable property are of the latter class. I am fully satisfied that the act in question does not affect the town in its corporate character, so as to authorize an action to be brought in the name of the town, under the provisions of the revised statutes, (Art. 1 of chap. 11 of title 1 of part 1, §§ 1, 2. 4th ed. 1 vol. 643.)

My conclusion, therefore, is, that the judgment of the special term should be reversed, with costs of the demurrer and of the appeal.

Gray, J.

The injunction in this case restraining the apportionment of the tax .under the act of February 5th, 1852, for the relief of the defendants Clark and Cornell, was granted by me, but not without much doubt as to the right of the town of Guilford to maintain this suit in its corporate capacity, even though the act in question was unconstitutional; and with no less doubt as to the unconstitutionality of the act itself: but the tax was about to be apportioned, and the expenses incident to the collection about to be incurred ; and inasmuch as the injunction could not impair the future right to apportion the tax, but would operate as a mere temporary stay of proceedings under it until the questions involved could be more deliberately considered than time would then permit, I deemed it a prudent exercise of power to grant it. The inhabitants of each toAvn, as such, necessarily have interests in common with each other, many of which are by law under the supervision an<J control of town officers acting in different capacities, and for the sole benefit of the inhabitants of their respective towns, and others which remain under the exclusive control of the toAvn in its corporate capacity. These rights or interests, as a matter of necessity, require legal protection, and for that purpose each town has the power to prosecute and defend suits; it existed at common laAV from necessity as a quasi corporate power.

The powers and rights of toAvns are now by statute clearly defined, and as clearly limited. (1 R. S. 337, §§ 1, 2.) Bach town is invested by statute, in its corporate capacity, with power to purchase and hold lands for the use of its inhabitants, to make contracts, to purchase and hold such personal property as may be necessary to the exercise of its corporate or administrative powers, and to make such orders for the use or disposition of its corporate property as may be deemed conducive to the interest of its inhabitants. (Id. § 1.) All these powers and rights, it must be borne in mind, are conferred upon the town not for the benefit of those who own the taxable property in the town, but for the benefit of the inhabitants of the town, and not for any particular class or portion of them. Bor the purpose of enforcing and protecting these rights, each town in its corporate capacity has the power to sue. (Id. § 1.) The right to exercise that power is given when the town has an existing cause of action against any other town in this state, or against any corporation or individual. (Id. 357, §§ 1, 2.) The right to sue or defend is one of the corporate powers conferred. These are the only enumerated cases in which power to sue is given: and to these the town is expressly limited, (Id. 337, § 2,) unless a suit is necessary to some of the other enumerated powers conferred. Such necessity could not by possibility exist in this case, inasmuch as all the other powers enumerated relate exclusively to the mere acquisition of property and the control of it for corporate purposes.

The only object of conferring upon a town the power to prosecute and defend suits, obviously was to preserve and enforce the rights accquired under the enumerated powers conferred by statute, and in which those for whose benefit it is given can have none other than a common interest. The right of this town to sue is placed upon the ground that the imposition of the tax in question is a special grievance common to all the inhabitants of the town. If this be so, there can be but little doubt that the town in its corporate capacity is entitled to the aid of this court to restrain its collection, if it is imposed by an unconstitutional statute. But is it so 7 Is the grievance common to all the inhabitants of the town 7 Clearly not. The tax is imposed upon the taxable property in the town, many of the owners of which may not be inhabitants of it. The property upon which it is imposed is owned by individuals, firms, or corporations. It is not upon the property of the town in which no one has a separate interest. There are in every town many inhabitants, ministers of the gospel, whose estate is not worth to exceed one thousand five hundred dollars, and those who have no property, or none but such as is exempt from taxation, who are members of the corporation, and largely benefited by its corporate and administrative powers. They clearly have no interest, either commoner separate, to be affected by this tax. Those who have property liable to be taxed, have at most but a common interest in the question ; but no one of them has any interest in the amount for which another is taxed. Their interest in the property taxed, is in no respect blended; and hence they have no common interest in the subject matter that authorizes thé town to interpose its corporate shield between them and those whose duty it is made to apportion or collect the tax. Before that can he done, a case must he made in which not only the tax-payers have a blended interest, or- common right to be affected; but the inhabitants who bear no portion of the burden of taxation, each of whom in common with the tax-payers derives a due portion of benefit from the corporate property of the town, and from its corporate and administrative powers, must also have a common interest to be impaired by the imposition of the tax. Tax-payers assume too much when they assert that a town has corporate capacity for the purpose of shielding their respective estates in the town from an illegal tax. And the town yields to a narrow view of its powers and duties when it concedes that class of its inhabitants to be the only members of its body corporate. A town has corporate powers for a more benevolent and patriotic purpose. One great object in authorizing it to purchase, hold and dispose of property, real and personal, is that under its administrative powers, the benefit of its property may be shed, as well on the poverty-stricken as the more fortunate or affluent, without regard to age or sex, each and all of whom being inhabitants, are members of the corporation and entitled to a due portion of its benefits ; and when property common to every class is invaded, the town may interfere, and not before. The act in question does not affect the towxn in its corporate capacity, but operates exclusively upon the property of the town, having separate owners, many of whom, for aught we know, are not only willing but desirous to bear their portion' of the burden necessary to reimburse the defendants, Cornell and Clark, the costs and expenses incurred by them in a litigation commenced and carried on by them in apparent good faith, and in pursuance of a resolution of the electors of the town. If the act authorizing the tax is void; the supervisors are not bound to execute it; or those that are not willing to submit to it can resist it; but such of them as are willing, have a right to submit to the law, constitutional or not, so long as a submission to it affects their respective private properties alone; and the town, as such, has no right to interfere. If every inhabitant of the town was bound to pay a portion of this tax, it would not change the case. Suppose the legislature had authorized a tax to be apportioned upon the taxable property of each stockholder in a banking corporation in no respect affecting the corporate property; clearly the bank could not restrain its collection. The fact that the act required the commissioners to give notice, to the town of the time and place of taxing the costs and expenses incurred by the defendants, Cornell and Clark, is urged as a reason for holding that the town is a proper party to this suit. That, to my mind, does not imply the right to sue ; that provision would be, and probably was complied with by serving the notice upon the supervisor of the town. If, instead of requiring notice to be given to the town, it had been required to be given to its supervisor, his right to sue in behalf of the several persons upon whom the act operated would hardly have been suggested; and yet it might have been, with equal force.

The only object in requiring the town to be notified, was that it might, in behalf of those whose property was to be affected by the imposition of the tax upon them, appear in some form and resist an unjust taxation of the costs and expenses for the reimbursement of which this tax was imposed. This being done, the object of the notice was complied with, and the powers and duties of the town under that act were ended; and those affected by the law left to adopt the same remedy, if any, which the laws had before that provided. Authority was cited on the argument to prove that a municipal corporation may prosecute a bill in equity where the injury is an immediate one to the property of the corporation ; this is not doubted; a city of village corporation, and perhaps a town, may prosecute a bill in equity, whenever a street or public square, or any other property in which its inhabitants have a common interest, is about to be encroached upon or injured; and this is the extent of the authority cited on that subject. The principle, however, has no application here. The inhabitants of this town have no common interest in the separate property of individuals upon which this tax operates, and hence the town, as their representative, has no right to sue. The more grave and important questions in this case arise upon the plaintiffs’ demand, that by the judgment of this court the statute which the defendants have been restrained from enforcing, be declared void for its repugnance to the constitution. The first objection arises upon the plaintiffs’ allegation, that it is in contravention to the 16th section of article 3d of the constitution, prohibiting the passage of any private or local bill embracing more than one subject, and requiring that subject to be expressed in its title. Conceding this bill to be both private and local, it embraces but one subject, and that subject is well expressed in its title as “An act for the relief'of Daniel Cornell and Ransom Clark.” The mere fact that another statute, exclusively upon the same subject, which had been acted upon, and had therefore ceased to be operative, was in the same act repealed, did not add another subject to the bill. The subject was the relief of Cornell and Clark; and if any number of statutes had to be repealed to relieve them, it would have been in strict adherence to the single subject of their relief in. the one particular specified in the law.

The next objection to its validity is that it destroys the vested rights of the town of Guilford, acquired under an act of the legislature of the 7th of February, 1851, by which it was submitted to the electors of that town to determine what amount of compensation, if any, should be awarded to the defendants, Cornell and Clark, for certain costs which they alleged they had sustained in their official capacity, by reason of a litigation with the Oxford and Butternuts Turnpike Company, by which act it was also provided that the decision of the electors upon their claim should be final and conclusive. Under this act the electors of that town, at their next annual town meeting, on the 4th of March following, by a large majority, decided against their claim. There does not seem to me to be much in this objection. If, instead of passing the law submitting the question to the electors of that town, they had referred the petition for relief to a committee of their body, who had reported a bill reciting that the petition had been considered, and declaring that the claimants were not entitled to relief, and that the act should be final and conclusive upon their claim, and the legislature had passed it; or if provision had been made referring the claim to commissioners not of their body, to pass upon their claim, and declaring that their report should be conclusive, and they had reported against it, it clearly could not prevent a subsequent 'legislature from again considering their claim (resting perhapá upon a stronger state of facts, or urged for stronger reasons,) and passing a bill for their relief. The cases of legislative grants to persons in their individual or corporate capacity, and of rights, acquired by either under legal proceedings had in pursuance of a statute, have no bearing upon this question. This statute acted upon the public. The public as such can have no vested rights as against the same public, derived from their own acts or that of their representatives, and aside from the principle that the acts of one legislature cannot bind a subsequent one. Each legislature, as a constituent part of the government, not only acts upon the public in the exercise of its taxing powers, but, as their representatives, may waive any objection which they could raise to its exercise of those powers. And it is no objection to the law that it operates upon a portion of the state only. (The People v. The Mayor of Brooklyn, 4 Comst. 427.) The territory taxed is not dissevered by the laws imposing taxes upon it, and made an independent district invested with power in any form to assert a right not common to the whole state, but it stands in the same attitude the state would, had the legislation complained of affected the whole of it.

The next question in its proper order arises upon the objection that the legislative department of the government has trenched upon the judicial department. This question arises out of the fact that the defendants, Cornell and Clark, before the passage of the act in question, sued the town of Guilford for the recovery of the same costs and expenses provided for in the act, and were beaten, upon the ground that they, as commissioners of highways of that town, had no right to prosecute the suit out of which the costs and expenses arose, even though directed by the electors of the town in town meeting assembled. (See Cornell and Clark v. The Town of Guilford, 1 Denio, 510.) I am unable to see in what respect this act comes in conflict with any power which the judiciary has exercised, or which it deems itself authorized to exercise.

The equity of the claim of Cornell and Clark was not considered by the court, and for the reason that the question presented was one of strict law, depending entirely upon whether authority to sue had been conferred upon them by statute, and the court held it was not, and here its functions ended. They had no right to go further and inquire whether, in consequence of a mutual mistake between the electors of the town and Cornell and Clark, the town ought not to pay the costs growing out of it. The judgment of the court has not been interfered with, or their jurisdiction assumed; all that has been done is to afford relief where the court, if they would, could not; besides, for reasons before stated, the territory taxed cannot raise the objection. It is entirely competent for a state to assume and provide for a debt which it is not bound in law to pay, whether decided so or not, and to apportion it upon a portion of its territory, to which it is justly chargeable. The justice who heard and denied the motion to dissolve the injunction, regarded this law as a means adopted by the legislature for appropriating the private property of each person taxed, to the private use of Cornell and Clark. The case is briefly this:

Cornell and Clark were commissioners of highways of the town of Guilford, and in pursuance of the directions of the electors of that town, they, in their official capacity, prosecuted the Butternuts and Oxford Turnpike Company, and were beaten —not upon the ground that the suit was improperly brought by them, in their capacity as commissioners of highways—but that the right remedy had not been adopted by them. (25 Wend. 365.) A suit was then brought by them against the town of Guilford, to -recover the cost and expenses incurred by them, in the prosecution of the suit against the turnpike company, and they were again beaten, upon the ground that they had no right as commissioners of highways to maintain the suit out of which the costs and expenses arose. (1 Denio, 510.) And thus by mutual mistake of the law, as well on the part of the electors of that town, as of Cornell and Clark, acting as they were directed, and as they supposed their oath of office required them, they have been compelled to pay costs and expenses to a large .amount. The court could not relieve them, because the electors acted without statute authority, and hence there was no legal obligation on the part of the town, as such, to pay.

The moral obligation was not and could not be passed upon by the court, for the reason that the whole question turned upon the construction of a statute. An appeal was then made to the legislature, who were of opinion, upon the facts established before them, that Cornell and Clark had acted in good faith in prosecuting the suit brought by them for the benefit of the public : and because by strict legal rules no remedy could be had by thém in court, they authorized a public tax to be levied for their relief, and apportioned upon that portion of the state which instigated the litigation, and for whose benefit it was intended. A very similar case in principle has before occurred; and the legislation was upheld. ( Thomas v. Leland, 24 Wend. 65.) In that case the legislature authorized a tax, and apportioned it upon the city of Utica; the effect of which was to appropriate the tax paid by each owner of property therein, to the use of certain individuals and in discharge of their private debt. It is true that the object for which that debt' was incurred, benefited that city; but it was not incurred at the instance of the city or of its inhabitants; nor did any obligation exist on its part to pay it, that could have been enforced at law. Had the debtors to whose use in effect that tax was appropriated, paid their debt and then sued the city, the result would have been as disastrous to them as was the suit by Cornell and Clark, against the town of Guilford, to them. The fact that the city of Utica derived a benefit from the enterprise of the persons for whose use the tax was appropriated, made it none the less the appropriation of private property to the private use of those whose debt was discharged by it. If the legislature had erred in judgment as to whether the enterprise of the persons for whose use the tax was imposed had been beneficial to the city of Utica, I do not perceive how it could have changed the question. The objection to the appropriation of private property to private use, rests upon the same principle as the objection to the appropriation of private property to public use without just compensation. None claim that the constitution is violated by imposing a public tax to pay a public debt, or repair the capítol of the state, or for any similar purpose. Such a tax, instead of being apportioned upon the property of the state at large, may be apportioned upon any district or territory of the state principally benefited by the object for which the tax is imposed, and which ought in preference to other portions of the state, to bear the burden. ( Thomas v. Leland, 24 Wend. 65. The People v. The Mayor of Brooklyn, 4 Comst. 427.) It has been said that legislation in such cases proceeds upon the idea that the constitution is satisfied by the compensation which each citizen has received or will receive out of the purpose to which the tax is applied. Concede it to be so, and that the legislature have been entirely mistaken; that those taxed are in reality injured beyond the amount assessed, by the object to which the tax is applied. The idea cannot be entertained for a moment that each tax-payer can resist the apportionment of the tax, upon the ground that it is proposed to apply his private property to public use without compensation. Let such a proposition be once' seriously entertained by courts, and the embarrassment produced by it in the assessment and collection of taxes would be disastrous. I have never heard it doubted that whenever a moral obligation exists on the part of the government to relieve one of its citizens, sufficient to support a promise, if the same state of things existed between individuals, the legislature has the right to recognize the obligation and discharge it, by the imposition of a tax. The legislature being the only department of the government that can provide the relief, and being unrestricted in the exercise of their taxing power, except as to the mere manner of passing bills for that purpose,-must of necessity be the exclusive judges when the interest or' the honor of the government justify a tax, and of what portion of the state ought in justice to pay it. The legislature clearly have no right to impose a tax and apportion it upon the property of an individual, and appropriate it to the use of another,- Such a case bears no analogy to a public tax apportioned upon a particular territory, and which operates upon the public, although the territory and the public are comparatively small. It was claimed on the argument that this statute is in conflict with § 1, of art. 1, of the constitution of this state, which declares that “ no member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any other citizen thereof, unless by the law of the land or the judgment of his peers.” Reference was also made to the case of Taylor v. Porter, (4 Hill, 146,) in which it was determined both upon principle and the authorities cited, that the requirements of the constitution are not complied with by a statute law passed for the purpose of depriving a cit- , izen of the rights thus secured, but that the true meaning of those words “ law of the land,” is by “ due course and process of law,” or in other words by a trial had according to the due course of the common law. This case proves too much for the plaintiff’s safety. Every law imposing taxes is a statute law, and if this provision of the constitution is applicable to taxes, then all laws imposing them are in derogation of the constitution, and the government from its foundation, has subsisted upon unconstitutional exactions. Ho citizen ever had the exclusive right to the property of which, in common parlance, he is called the owner; but it is held now, as it always has been, for the use of the state, to the extent of such exactions as it may deem just and prudent to make from it, for taxes, and for this reason the taxing power of the legislature should not be regarded as a means of acquiring a new right or property in a statute authorizing a tax operating exclusively upon property held by each tax-payer for the use of the state, and which, as against taxes imposed by law, was never secured to any citizen to be held until divested of it by trial at law. The property upon which the tax is apportioned is, to the extent of the amount of the tax imposed, public property held for that use; hence, property sold, or money paid, for taxes and applied to private use cannot be regarded as an appropriation of private property to that use. But the word property, as used in the constitution, does not include in its meaning money exacted for taxes. (The People v. The Mayor of Brooklyn, 4 Comst. 424.) I am therefore of opinion that the judgment of the special term should be reversed. " '

[Chenango General Term, January 10, 1854.

Shankland, J., concurred.

Judgment reversed.

Crippen, Shankland and Gray, Justices.]