The North-Carolina standard., 1845-04-09

provided by the charter, and without contracting
debts for those purposes The public docs not
obtain an absolute right 10 require the corpora
tors 70 construct the road, ty the acceptance OF
the charter and entering the work he en-
oa0ement of the company is only to lay out lne
canitaI assigned them and subscribed; and to that
extent they may be compelled to proceed II
that be not adequate, it is simply case OF ulfscai'
cuIation of estimates by both soes, and the pub
lie loses the use of the road on its side, and the
corporation loses its purchase and capital, unless
there bea new agreement. granting further facill.
ties to the corporation. But suppose the road to
he compIeted or kept up by contracting d. bis
and for such purposes only can the corporation
contract drbts-or suppose the company TO lncHr
a liability for damages to an indivduai is plain
we have seen, that the corporation ought to pay
these debts or damages.
Now, can it be imputed to the Legislature, that
II intended in passing this charter that such debts
should not b. paid, and that, in order to prevent
the payment Of them, the public prerogative to
right of way should be asserted, and under cover
of it, the road should be preserved 10 the corpora
ton as its private propcrty2 We think, clearly
not If such Il thing had been asked for in the
charter, it would have been thrown out OF either
house of the assembly, with disgust and scorn
IF the Legislature were making the road on the
pubic account alone, the public faith would be
ais laid out on it, should be fairly paid So, it
was not the intention of the legislature, that this
road should not be paid for, or that it should be
built at the expense Of any person but the
corporators The public would not have 1t
on any such terms; and If persons, who have
laid out their money or labor on it, can no
otherwise obtain satisfaction but by sale OF the
road, there can be doubt, that the public ought
to give up and intended to give up the convent
noct tbo thort n jDI;. n
citizen OF denying Inn compensation fer making
it. If the public canuot have the road and the
creditor Of the company also be paid if one
must yield, there be no hesitation in s1yIng
that the public ought and would promptly yield
IF the public should insist upon its rights theH 1t
is bound to make compensation 10 the creditor out
of the treasury: for it ought not to suffer him 10
remain unpaid for executing what is claimed as
4 pnbYc work But no such obligation has ever
been supposed TO lie on the Stale; simply for the
reason that the corporation was properly liable.
But that cannot be rendered effectualy liable un-
less through the instrumentality of an execution
served upon its property We do not know,
wherefore the company did not pay the debt for
which this sale was made. But whether it arose
from want of inclination or ability, the fault or
misfortune is theirs; and the State nhver could
have intended to interpose and screen either
solvent o. insolvent company from the payment
must, like every other nSovrnt debtor, give up IT'S
property, unless the State either assumes its debts
or by plain and unquivocal act declares the ex-
emption of its property. If the State chooses !
still % have rail road it may either enable this
corporation to enter on the land again, making |
compensation for it, IF 1t be not already endowed !
with the power, or new charter may be granted !
TO another company, or may be executed by the |
State directly But by constituting a corporation !
n nd fo hay init
by enacting that the feri facias shall run against
the property Of corporations generally; by not
exempting the property OF the rail road company !
from the general liability of corporate property to
execution and bydeclaring in some cases that
execution should run gainst it ' as against other
corporation" " the Legislative intention must clear
Iy be understood to have been, that the public /
right to the use of the road should be dependent
upon the ability of the corporation to meet the
Just demands of its creditors without sale Of the
road. Paying the debts for making the road is
the first, and highest duty Of the corporation
The element ofthaI dutv is moral. and precedent
10 any mere duty Of police; and the Legislature
cannot be supposed to have ntendrd violation
Of that first of duties upon any evidence less than
its explicit enactments.
The court r. therefore of opinion that this land
was liable to be sold on the execution, and that
the purchaser would have obtained a good title,
ndo Ine SaIe Oeen unIy mace. Ii was mol, now
ever duly made. By the statute, Rev. Stat c. 45,
sec. 10, is enacted that all sales of land and
slaves shall be made at the courthouse on Mon
day Of the county court, or the corresponding :
Monday in every month. The sale in this case :
was the premises and on different day of the
week We have more than once said, that this f
is substantial part of sherif's sale, because the
regulation is for sale of all property at one place
and at the same time, which may be offered for S
sale in the county in any one month, under the ,
expectation, that there will be numerous bidders !
and fair prices had Of such a regulation, every u
one must be cognizant; and therefore we have F
held that the purchaser gets title by sale at o
an improper time and place. Mordecai vs. Speight, [
3 Dew 428. @Arery VS.. Rose Dev. 554. For o
this last reason the judgement must be affirmed 4
We regret that result, rs we have just been in
formed that there is private act regulating sales
in Northampton county and that the sheriff obser- LILA
we'd its provisions in this sale If so, it is unfor q
innate that the act not stated in the case; for
being private act, cannot judcially notice it. ~
md, indeed, we have not seen it. .-
q Judgment 10 be affirmed. .., ....... :,
~ 1t is we'll to note, as we have been in "
mod A.