Richard Warren versus George B. Stearns, 19 Pick. 73

Shaw C. J. The Court have been strongly inclined to support this action, if practicable ; but upon the fullest consideration we are of opinion, that it cannot be maintained. The action is founded upon certain articles of association, which, upon the admission of members into the corps of Cadets, are signed by them individually. The difficulty in the case arises from an attempt made to enable an association of individuals, frequently shifting and changing, to have the rights of succession, and other attributes of a corporation.

It is conceded that this association are recognized and properly considered as a part of the militia of the Commonwealth, and as such are subject to the laws made for governing the militia. But we think there is no doubt, that a body of men, liable to all the laws of the Commonwealth as militia men, may nevertheless enter into agreements and contracts, which, if made in due form and upon good consideration, will be effectual in law, provided they are not made in contravention of the laws binding upon them as military men, or otherwise repugnant to the laws of the Commonwealth.

Such associations are not only lawful, but in a high degree praiseworthy. But when courts of law are called upon to enforce such agreements, instead of their being carried into effect as honorary engagements, it must be done upon those principles, which govern courts in relation to all other contracts. This is an action of assumpsit, and the plaintiff must show a valid promise, made upon a good consideration, to maintain it.

In the first place, we think it very clear, that the plaintiff cannot recover for the cap, being part of the account, for the plain reason that there is no clause in the constitutional articles, authorizing an assessment for caps, or other articles of uniform, and therefore there is no promise to pay the plaintiff. The only promise relied on is the express promise contained in the 13th article, to pay the treasurer all fines and assessments, and authorizing him to sue for them.

If it be said there was evidence to show an express agreement on the defendant’s part, to pay for this cap, it is answered, that that agreement was not a promise to the plaintiff, but to the other members of the company. And if it be still insisted on, that it was paid out of the funds of the company, it is answered, that this would only give the company a right to sue, and then the plaintiff would be met by another difficulty, that the defendant himself, as one of that company, was jointly interested in those funds, and it would involve the legal absurdity of suing himself.

As to fines, considering them, as the term imports, as in the nature of punishment for some dereliction of duty, it would be extremely difficult to support the claim. Treating this as a voluntary agreement of these parties, casually associated as members of a militia corps, but entering into stipulations with each other, such a recovery and payment of fines, would by no means be a substitute for the fines imposed by law, for neg lect of military duty, or exempt them from their liability under the general law.

The most that can be said in support of them is, that they are in the nature of assessments which the members of the company mutually agree with each other to pay, for the common use and benefit of the whole, upon the happening of certain contingencies, such as absences from drills, parades, &c. An agreement to pay like sums upon any other contingencies, not involving any fault or breach of duty, would be equally obligatory, depending solely upon the effect and terms of the promise, and the sufficiency of the consideration.

But it is not necessary to pursue this distinction further, because we think that they cannot be placed upon a higher footing than assessments, and that for assessments this action will not lie. It is not easy in a short compass to state all the grounds, upon which this opinion has been formed. In the first place it is very obvious, that the original apparent intent of these articles of association, cannot legally be carried into effect, in the manner and upon the principles contemplated by the articles themselves.

It seems to have been contemplated, that the treasurer for the time being should be the trustee for the company, in relation to all their fiscal concerns, with power to collect all fines and assessments, for the use of the company, as well those which accrued before they were appointed to that office, as those which should accrue whilst they are respectively in office. In other words, that the treasurers for the time being respectively should take in succession.

But it is a well settled rule of law, that no person can take in succession, or maintain suits as successors, unless corporations or the officers of corporations, or persons specially authorized by law, as judges of probate, deacons of churches, and a few others. If therefore the promise can be considered as made to the treasurer alone, by signing the constitutional articles, it is made to him in his natural capacity, the right of action must be considered as vested in him personally, and in case of his death, must vest in his executor.

Suing as treasurei is only as descriptio persona, and as showing the use tc which the moneys are to be appropriated, when recovered. The circumstance therefore of the resignation and reelection of the plait tiff, can make no difference in the present case. If the right of action once attached, it was not lost by a resignation. Again, it is manifestly the intent of the constitutional articles, that the treasurer, to whom the promise is made, and who is authorized to sue delinquents for fines and assessments, is to be a member of the company, and subject to the orders of the officers.

It is made the duty of the treasurer to institute suits, unless otherwise ordered by the commanding officer. The suit is to be commenced under the directions of the officers of the company, and it may be fairly inferred that it is to be prosecuted and conducted under their directions and at the expense of the company.

Yet whenever a cause of action has accrued, by incurring a fine or by non-payment of an assessment, a right of action vests in the treasurer personally, he retains it when he goes out of office and ceases to be under the orders or control of the officers ; in case of his death, it goes to his executors, who never were under their orders, and it is to be prosecuted at their own expense, because they are not keepers of the cash and funds of the company. Again, the promise is in terms to the treasurer for the time being, to pay all fines and assessments.

A breach occurs by the non-payment of a fine or assessment, and a personal right of action accrues. The action however is delayed, by order of the commanding officer or otherwise, and the treasurer goes out of office, having such cause of action, or dies, by which it vests in his personal representative. A new treasurer is chosen in his place. Who shall collect the delinquent fines or assessments ? The right of action is in the past treasurer or his executor, and yet the provision is that the treasurer for the time being has power to collect all fines, &c.

Would a voluntary payment to the new treasurer defeat the right of action vested in the past treasurer ? If it would do so before action brought, would it have the same effect, whilst the action is pending ? It is probable that the parties to this association considered it as a promise to the treasurer for the time being and his successors in that office ; but such a promise, as a promise to successors, clearly cannot be supported. But there is great difficulty in considering this as a promise by the defendant to the present plaintiff.

The present plaintiff was not the treasurer, when the present defendant signed the articles in 1827 ; on the contrary, the defendant himself was treasurer at that time or at some time afterwards, because it is found that the plaintiff succeeded to the defendant as treasurer by his election in 1831. The promise therefore when made, was not made to the plaintiff. But it was a promise to the treasurer for the time being.. If this is to be considered as ambulatory, and to be applied from time to time, to each successive treasurer when chosen, we know of no principle of law, which can give effect to such a promise.

The case of Radenhurst v. Bates, 3 Bingh. 463, cited in the argument, was a mutual promise made by several coach owners, each to the other, to pay certain penalties as liquidated damages, and it was agreed that one should sue for the benefit of the rest. But there all were parties to the agreement at the time it was executed, and the sum when recovered was to enure solely to the benefit of those who had incurred no penalty.

In this case, if the treasurer for the time being could recover the money, he would recover it not to his own use, nor to the sole use of the other members of the company, but to the use of them jointly with the defendant. It comes back therefore to a promise to pay. to the treasurer to the use of the defendant and others, and he himself has just the same interest in it as the other members of the company. And it seems equally difficult to find any good consideration to maintain this promise.

Where a promise has been made to a person or a body capable of suing, and they upon the strength of such promise, before it has been revoked, have advanced money or incurred expenses, this has been held a good consideration for a promise. Farmington Academy v. Allen, 14 Mass. R. 172. That case was decided expressly on the ground, that the defendant had become liable as upon an implied promise for money paid, the plaintiffs having expended money on the faith of his promise.

But it was held in the same case, that a declaration on the express promise contained in the subscription paper, could not be maintained, because there was no legal consideration to support it. So in Gilmore v. Pope, 5 Mass. R. 491, an express promise to one to pay to the use of a turnpike company such assessments as should be laid on the promisor’s shares, would not maintain an action in the name of the promisee and agent of the company. But it does not appear in the present case, that the treasurer or the company have incurred any expense upon the faith of this promise.

Upon these views of the case the Court are of opinion, that the action cannot be maintained, that the instructions given to the jury cannot be supported in law, and that the judgment of the Court of Common Pleas must be reversed. Judgment for the defendant.