People of Vermont v. Society for Propagating the Gospel.

the land granted to it in the town of Berlin, by a breach or non-performance of the conditions contained in the grant. And the only conditions drawn in question, as has already been observed, are those which relate to the payment of rent, and the cultivation and improvement to be made upon the land.

As a general answer, applicable to all the breaches alleged as ground of forfeiture, it has been urged, that the society is not embraced within the letter or spirit of the charter, which requires the payment of rent, or the improvement and cultivation of the land: That these conditions apply only to individual grantees, and not to the public rights. It is true, that so far as respects the cultivation and improvement, the charter requires, that every grantee, his heirs and assigns, shall plant and cultivate, &c. The words, heirs and assigns, are not technically applicable to a corporation; but the word grantee may be, without any very forced interpretation. And the argument, if well founded, would go to show that this society could take nothing under this grant. The grant is "to our loving subjects, inhabitants of our said province of New-Hampshire, and other governments, and to their heirs and assigns for ever, whose names are entered on this grant, to be divided to and among them into seventy equal shares." And upon the back of the grant is entered, "one whole share for the incorporated society for the propagation of the Gospel in foreign parts." And the habendum is, "to have and to hold the said tract of land, as above expressed, to them and their respective heirs and assigns for ever." This language is strictly applicable to private persons, and not incorporated bodies. But not to consider the society as a grantee capable of taking a share, would be a construction that would probably, in its consequences, take away the right of the society in every town in the state, and would be at war with the uniform interpretation heretofore given to these grants. And if the so

People of Vermont v. Society for Propagating the Gospel.

ciety is capable of taking as a grantee under this charter, no consistent construction will restrict the conditions so as to exempt the society from a performance of them. The language of the grant, with respect to the payment of rent is, "that every proprietor, settler, or inhabitant, shall pay," &c. The term proprietor may well be applied to a corporation, when it is so obviously within the intention of the grant.

No reasons of public policy are perceived to justify making any distinction between what are called the public and the individual rights, as to the performance of these conditions. The language of the grant applies equally to all.

The inquiry then is, whether the breaches of these conditions are sufficiently set out in the scire facias, to entitle the plaintiffs to a judgment on the demurrer.

The non-payment of the corn rent reserved, was not relied upon on the argument; but the breach of the condition, as alleged in the scire facias, applies as well to this as to the money rent. It is sufficient, however, to observe, that this was evidently a mere nominal rent, and at all events, only payable if lawfully demanded. The scire facias should therefore have contained an averment, that it was lawfully demanded, and the breach is not well assigned without such averment.

There is also with respect to the money rent reserved, a want of proper and necessary averments. It is, as to place, made payable in the King's Council Chamber in Portsmouth. A compliance with the condition, in this respect, has become impossible, by reason of the revolution, and by the course of events, which the Court is bound judicially to notice. There cannot, since the revolution, be any such place as the King's Council Chamber in Portsmouth. The grantor having ceased to have any such place as is appointed for the payment of the rent, a performance of the condition, in this respect, has become impracticable by the act of the grantor, and is void.

People of Vermont v. Society for Propagating the Gospel.

If the state of Vermont, as is contended, has succeeded to all the rights of the King as grantor, and had a right to substitute any other place for the payment, it should have been averred that that had been done, and due notice thereof given to the grantors before a breach of the condition can be alleged. There is, however, an alternative at the election of the grantor. The rent is made payable in the Council Chamber in Portsmouth, or to such officer or officers as shall be appointed to receive the same; but the scire facias should have contained an averment, that such officer or officers had been appointed to receive the rent and notice thereof given to the grantees, before any default for non-payment could be incurred by them.

There is, therefore, no sufficient breach of the condition for the payment of rent alleged, to entitle the plaintiffs to judgment on the demurrer, on that account.

With respect to the condition relative to the cultivation and` improvement of the land, the scire facias does contain an express averment, that the society has not within five years. from the making of the grant, nor at any time since, planted and cultivated five acres for every fifty acres of land set off to them in the said town of Berlin, nor continued to improve and settle the same by additional cultivation. The breach is here well assigned. It is in the words of the condition, and expressly denying that what is therein required to be done, has been performed. This is an allegation upon which the defendants might and ought to have taken issue, unless they are by operation of law exempted from the performance of that condition, which we think they are not. The demurrer admits, that it has not been performed. And there is no principle or rule of construction upon which the Court can say upon this demurrer, that the society does not come within the condition, or that a performance of it has been dispensed with. If it has been in any manner waived by the state,

People of Vermont v. Society for Propagating the Gospel.

that is a question to be tried upon a proper issue taken upon the assignment of the breach. The effect of the lapse of time, and the inference to be drawn from the course of legislation of the state, at various times, with respect to these rights, are inquiries to be made on such issue, and cannot be noticed by the Court upon this demurrer.

Upon these views of this case, the question arises as to what judgment is proper to be entered. The demurrer is to the writ of scire facias, but the legal effect and operation of it, must be the same as a demurrer to the declaration. The declaration upon a scire facias is no more than a copy of the writ. If there are several counts in a declaration, or if in covenant several breaches are assigned, some of which are sufficient and others not, the defendant should only demur to such as are bad. If he demurs to the whole declaration, judgment must be given against him: And this rule applies equally to a single count, part of which is good and the other not, when the matters are divisible in their nature.

These are rules of pleading well settled in the English Courts, and must govern the present case. The plaintiffs are therefore entitled to judgment, upon the breach of the condition, that has been considered well assigned, and will be barred from any benefit by reason of any other breaches which are insufficiently alleged. Leave, however, is given to the defendants to withdraw the demurrer, so far as relates to the breach well assigned, and take issue upon the allegation therein contained, if they shall elect so to do.

T. HUTCHINSON for the plaintiffs.

J. H. HUBBARD for the defendants.

a 1 Chitty Plead. 643.; 11 East Rep. 567.; 6 Dane's Ab. 203., and cases there cited.

CIRCUIT COURT OF THE UNITED STATES.

CONNECTICUT, APRIL TERM, 1824, AT NEW-HAVEN.

BEFORD Hon. SMITH THOMPSON, Associate Justice of the Supreme

Court.

Hon. PIERPOINT EDWARDS, District Judge.

THE PRESIDENT, DIRECTORS, AND COMPANY OF THE Bank OF THE UNITED STATES v. MAGILL ET al.

One gave a bond with sureties to the Bank of the United States, conditioned, that he should faithfully perform the duties of Cashier of their Office of Discount and Deposite at Middletown, during the term he should hold said office. The bank at Philadelphia hearing that he had been guilty of a gross breach of trust,-by a resolution passed on the 27th of October, 1820, suspended him from office till the further pleasure of the board, and directed the property of the bank to be taken out of his hands. This resolution was

communicated to the Cashier and carried into effect on the 30th day of the same month: Held, that the suspension did not take effect instanter on the 27th, but on the 30th, when it was made known to the Cashier; and that until then he was Cashier within the letter of the bond, and the sureties liable for his acts.

Had the resolution been to remove the Cashier from office, it would have taken effect and the sureties been discharged from their liability, from the time of its passage.

The resolution was sent by mail, and received by the President of the office at Middletown, on the morning of Sunday the 29th: Held, that its not being