# Alexandria Canal Company v. Swann

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United States Supreme Court
46 U.S. 83
Alexandria Canal Company v. Swann
THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, in and for the county of Washington. It originated in the county of Alexandria, and was removed to the county of Washington under an act of Congress providing for such removals.
The circumstances of the case are so fully set forth in the opinion of the court, that it is unnecessary to do more than refer to it for a statement of the facts.
The cause was argued at December term, 1845, by Mr. Bledsoe and Mr. Coxe, for the plaintiff in error, and by Mr. William T. Swann and Mr. Jones, for the defendant in error. At the present term the court gave its opinion.
Mr. Bledsoe, for the plaintiff in error, contended,--
1. That there was no legal or valid reference.
2. That there was no legal or valid award.
3. That there was no legal or valid judgment.
1. The president and directors had no power under their charter to submit a case to arbitration. The rule is well settled that they have no power except under the charter. 5 Conn., 568; 2 Cranch, 158; Angell & A. Corp., 200, 201, 229, 242; 7 Cranch, 299; 14 Johns. (N. Y.), 118; 12 Id., 241; 15 Wend. (N. Y.), 256; 7 Cow. (N. Y.), 462; 1 Id., 513; 12 Wheat., 58.
The charter (Davis's Laws, 558) says, that where land is to be taken, the company may agree as to the price. But if no agreement can be made, they are to apply to justices of the peace, who are to call a jury. But in that case the whole twelve must agree.
The thirteenth section of the act thus pointing out the mode of condemning land, none other was justifiable. The seventeenth section gives the company the right to enter upon land, and therefore they cannot be guilty of a trespass.
One party cannot bind another by agreeing to arbitrate. Wat., Part., 445; 3 Bing., 101; 11 Eng. Com. L., 52; Story, Part., 169; 1 Pet., 222, 228.
The attorney here has undertaken to make the president and directors do things which are not justified by law.
In England, where property is taken for public use, the party has no remedy; and in this case the remedy given by the charter is exclusive. 11 Mass., 364, 365, 368; 20 Johns. (N. Y.), 735; 4 Wend. (N. Y.), 347, 367, 370; 4 N. H., 547; 2 Johns. (N. Y.), 283; 7 Johns. (N. Y.) Ch., 315; 1 N. H., 339.
Mr. Bledsoe then examined the terms and mode of arbitration.
Mr. William T. Swann, for the defendant in error, made the following points:--
1. It will be necessary to consider any part of the record prior to the submission of the case to arbitration; as the submission in such a case, under a rule of the court, operates as a waiver of all exceptions (if any could be conceived), or as a release of all errors anterior to the rule.
2. No exceptions having been taken in the court below to the award, the grounds of the appeal are unknown; nor can any, by the counsel in this case, be conceived. But if any objections could be presented, it is now too late; they should have been presented either by motion or exception in the court below.
3. In this case the award is supported by a recital of various matters of procedure under the arbitration in the award itself, by the certificate of two of the arbitrators, and by affidavits proving such matters of procedure in the case. This is a support far beyond what the law requires. A simple award of a sum of money under the submission, without any recital of such facts in the award, and without any proof of them, is sufficient; any omission or irregularity in regard to such extrinsic matters being brought forward by motion in the court below to set aside the award.
Mr. Swann then examined the record, and contended that the arbitration was according to law. The other matters of defence, he said, cannot be alleged here. There is no special plea in Washington county, and we do not admit the facts upon which the argument rests. The charter does not give the remedy spoken of to the party aggrieved, because he cannot originate the process of summoning a jury, &c. 4 Gill & J. (Md.), 147; 4 Wend. (N. Y.), 667, 672.
If the company have power to enter land without condemnation, it ought to have been specially pleaded.
A submission of a cause to arbitration disembarrasses it of legal questions. 1 Wash., 320; 10 Mass., 215; 8 Serg. & R. (Pa.), 3; 4 Hen. & M. (Pa.), 216; 5 Binn. (Pa.), 177. The statute of Maryland, passed in 1778, ch. 21, §§ 8, 9, points out the mode of proceeding by arbitration. It is a common law process, too. The power to refer is a necessary incident to the power to be sued. If the company are sued they can defend themselves in any manner known to the laws. The submission in this case was by the company itself, and not by the president and directors only. The attorney in court represented the whole company.
Mr. Jones, on the same side.
If they object to the award they should have moved, in the court below, to set it aside. Otherwise it is presumed to be right. It is too late to urge the objections in an appellate court, because, as the court below never passed a judgment upon the point, it would make this a court of original jurisdiction. 2 Sch. and L., 712. When the cause was removed, it was to be tried by lex fori, of which arbitration is a part. It is denied that the president and directors had any power to submit the case. But how does it appear that the president and directors did it, and not the company? A corporation can only appear by its corporate name. This suit was so brought and they appeared to it. So the power of the attorney is denied. But will the court presume that he acted without authority? A corporation is liable for a tort. 16 East, 5; Ang. & A. Corp., 328, 329; 8 Pet., 117.
Mr. Coxe, for plaintiff in error, in reply and conclusion, examined the history of the law of arbitration, and the statutes of Virginia and Maryland; and then contended that an action of trespass quare clausum fregit would not lie against a corporation. He then examined the authorities cited by Mr. Jones. If the corporation kept within their charter they were not suable, of course. If they went beyond it, and appointed agents to do things not justified by law, the agents are responsible. A suit only lies against the employer when the agent is acting within the scope of his authority. This suit was brought in Alexandria, where the corporation appeared by attorney and filed pleas. When it was removed to Washington an amended declaration was filed, but it was not a substitute for the old one, because the old one remained in court, and so did the former pleas.
Mr. Coxe then contended that the reference was improper and illegal, and cited Kyd, Corp., 45, and commented on the charter of the company.
Mr. Chief Justice TANEY delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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