Stevenson v. Simmons.

is not competent. Hudson v. Revitt, 5 Bing. 368; Owens v. Collinson, 3 Gill. and John. 25, and the numerous cases brought together by Cowan and Hill's notes-note 108, page 116, part 1st. Here, the effect of Mr. Hoyt's testimony was directly to increase the funds of the bank of Washington, by the amount sought to be recovered by his testimony. He was then increasing a fund in which he was entitled to participate.

To this proposition it is replied, that a corporator ex necessitate must be admitted, or the bank would often be defrauded of its rights.

General laws are made for the 'community at large, and not for particular individuals or bodies of men, and they are not to be turned aside to suit any private interests.

The common law has established on this subject, a wide difference between a public and a private corporation. Of the former, are towns, counties, villages and others, formed for municipal purposes. The State itself is a municipal corporation. The individuals constituting such corporations, have always been admitted as witnesses for the corporation, (the witnesses having no individual interest and from absolute necessity). Refuse to admit them, and the wheels of government must stop. The State could collect no debt due to it where the debtor refused to pay; for the same interest which sets aside the witness, would disqualify him as a juror; for every citizen is a corporator. The doctrine is summed up by the Supreme Court of Ohio, in The Methodist Episcopal Church of Cincinnati v. Wood, 5 Ham. 583. But if the corporation be for private purposes, as a bank, or turnpike company, one corporator is incompetent as a witness for his brother corporators. Eustice v. Pinkham, 1 New-Hampshire Rep. 275; Union Bank v. Rigeley, 1 Har. and Gill 324, 408. The whole doctrine was learnedly discussed in the case above referred to, (Meth. Epis. Church, &c., v. Wood,) and the Court concluded as follows: "Where corporations of a private nature, instituted for special purposes, and private emolument, such as banks, &c., bring suit, the interest of the

Coffield v. McLean.

corporators is direct, and they are incompetent to testify in support of their claim."

There is no error, and judgment of nonsuit affirmed.

PER CURIAM.

Judgment affirmed.

WILLIAM H. COFFIELD vs. HECTOR MCLEAN.

Before the land of an infant can be sold for debt, under the petition of his guardian, there must be a judgment of Court, that there was a debt against the estate of the ward.

It must also be alleged in a petition, for selling an infant's land, that the debt to be satisfied, was one against the ancestor, and not simply a debt contracted by the ward or his guardian.

ACTION of EJECTMENT, tried before his Honor, Judge PERSON, at the Fall Term, 1856, of Cumberland Superior Court. William II. Coffield, the plaintiff, was the owner of the land in question in 1841; he was then a minor, and was such at the time of bringing this suit; his guardian, one Bennett, filed the following petition: "The petition of Furney Bennett, guardian of William H. Coffield, minor, under the age

of 21 years, * * * showeth that his ward, William H.

Coffield, is indebted to the amount of $216 and upwards; that he has no assets in hand to pay off and discharge this debt, and that there is not personal property enough in his hands to discharge the same." Upon this petition, a sale was ordered and duly made in pursuance thereof, and the defendant became a purchaser at the sale of the same, and took a deed for the premises. The question was as to the sufficiency of the proceedings and the validity of the sale under these cir

cumstances.

His Honor, upon the foregoing case, which was agreed by the counsel, was of opinion that the plaintiff was entitled to recover. From which judgment, the defendant appealed to the Supreme Court.

Coffield v. McLean.

Moore and Strange for plaintiff.

W. A. Wright and Bryan, for defendant.

PEARSON, J. The sale was void, because it does not appear that the County Court passed on and ascertained the fact, that there was a debt or demand against the estate of the ward. Spruill Spruill v. Davenport, 3 Jones' Rep. 42; Pendleton v. Trueblood, Ibid. 96.

But there is another fatal objection. The petition does not allege that there was a debt or demand against the estate of the ward. The allegation is, that the ward is indebted to the amount of $216, and the guardian has no assets, and there is no personal property out of which the debt can be paid. There is a material difference between a personal debt of the ward and a debt against the estate of the ward; i. e., a debt of the ancestor, for which the land of the ward is liable. It is manifest, by a perusal of it, that the statute under which this proceeding was had (Rev. Stat. ch. 63) is, as its title shows, "A mode of subjecting the land of deceased debtors to the payment of their debts," and consequently does not extend to personal debts contracted by, or on account of, infants. At common law, an heir sued for the debt of his ancestor, might pray the parol to demur until he arrived at full age. The statute changes this by substituting a provision, that no execution shall issue against the land of heirs, who are under age, until after the expiration of one year, during which time, it is the duty of guardians, under the 11th section of the Act, to apply for an order of sale.

.It was stated at the bar, that the debt for which the land was sold, was contracted in prosecuting or in defending a suit for or against the infant. So, it was not a debt of the ancestor, but was a personal debt of the ward; and the defendant's title is bad, not for a mere omission of the proper entries by the Court, but upon the merits, because upon the facts, the County Court had no power to order a sale. There is no error.

PER CURIAM.

Judgment affirmed.

Underwood v. McLaurin.

THOMAS R. UNDERWOOD vs. DUNCAN MCLAURIN.

It is error in a Court to rescind an entry made on a previous day of the same term, which truly states a fact that did occur.

APPEAL from the Superior Court of Cumberland, his Honor, Judge PERSON, presiding.

The case was agreed as to the facts, and was as follows: The defendant, Duncan McLaurin, was the bail of one McDuffie, and a sci. fa. issued against him as such, returnable to the County Court of Cumberland. At the return term of the sci. fa., the defendant put in pleas to the same, which accordingly stood over to the next term. On Monday of the next term the defendant brought in his principal and surrendered him in discharge of himself as bail, and this record was then made. "The principal, N. K. McDuffie, is surrendered in open Court by Duncan McLaurin, his bail, in discharge of himself on Monday of this term ;" whereupon, the said McDuffie was permitted go without day on the payment of costs. Afterwards, on the same day, the plaintiff's counsel gave notice, that he would move, during the term, to set aside the proceeding aforesaid, because the plaintiff had not been notified that the surrender would be made. The motion was accordingly made on Friday of the term, and on considering the same, the said County Court adjudged, "that the order accepting the surrender of N. K. McDuffie, in the case of T. R. Underwood v. Duncan McLaurin, bail of said McDuffie, in discharge of his bail, be rescinded, and the case stand on the trial docket as before, without prejudice to the defendant." The ground upon which this order was made, was as follows: The defendant's counsel had told the plaintiff's counsel, that his client would surrender McDuffie, in open Court, as soon as the Court was through with the business in hand. While the business still occupied the Court, the plaintiff's counsel enquired of the Court, whether any other business would be taken up before dinner than that in which they were engaged, and he was informed that none other would be taken up be

Underwood v. McLaurin.

fore dinner. Whereupon the plaintiff's counsel retired from the Court to his chamber, and had no cognizance of the proceeding complained of. The surrender was made in open Court before dinner, and the principal, McDuffie, on being discharged, immediately went out of reach of his bail, and was beyond his reach when this motion was made.

From this order of the County Court to rescind the previous proceeding, &c., an appeal was taken to the Superior Court, where, on consideration of the case agreed, his Honor, Judge Person, reversed the order of the County Court; from which the plaintiff appealed to the Supreme Court.

Shepherd and J. Winslow, for plaintiff.
McKay, for defendant.

BATTLE, J. When the defendant surrendered his principal in open Court in discharge of himself as bail, he was acting in the clear exercise of an undoubted legal right. 1 Rev. Stat. ch. 10, sec. 4; Rev. Code ch. 11, sec. 5; Moody v. Stockton, 3 Dev. Rep. 431. The entry of the fact made upon the records of the Court was therefore proper, and the Court could not, by their subsequent action, deprive the defendant of the benefit of it. Their attempt to do so by rescinding the entry, was an error, which he had a right to have corrected in the Superior Court, upon his appeal to that Court. Williams v. Beasley, 13 Ire. Rep. 112; Murphrey v. Wood, 2 Jones' Rep. 63.

There is nothing in the case of Williams v. Floyd, 5 Ire. Rep. 649, relied upon by the plaintiff's counsel, which militates, in the least, against these positions. In that case the only question was whether, under the circumstances therein stated, the plaintiff was entitled to a judgment against the defendant and the sureties to his appeal bond. It seemed to be admitted on all hands, that the sureties for the defendant's appearance had been discharged by their surrender of him in the County Court.