The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1860-05-02

that the contract ia between the State and
the corporators involves n legal contra
diction
The action is in form Il c0Htractto--the
declaration IS certainly very defective, but
enough appears to show that it is per-
sonal action. and not in form CT detct0 1t
seeks the recovery Of a debt which it al
leges the plaintiff in error owes to, and
unjustlv detaius from the defendant in
error. II is therefore declaration upon
u contract between the parties to this re-
cord. or no cause Of action is stated at all.
Indeed it is undeniable that if there is no
contract, either express OF implied, be-
tween these parties, then this Is "A false
clamor," and has no place, justly, in
court. But this theory Is wholly crrone-
Gus. The contract between the State and
the corpOTatOTs Is one entirely distinct
from the contract here declared on. The
contract with the State gives capacity and
ability to the corporation to erect their
road and toll gates and to contract with
the public in reference thereto, under GER
tain restrictions. Whether that contract
has been complied with, so as to entitle
them 10 their corporate existence, is a
matter between the State and the corpo-
rators. But with every individual claim
ing the right TO use the road, the corpora
ton thus created has a right to contract
| and does contract, either expressly or bv
implication of law, before any action in
this form can arise; and both public poll
| cy and private right forbid that any ex-
| ception should be engrafted upon the
doctrine of contracts, in favor of these
corporations 10y the courts, not clearly
| granted by their charters. They are Gre
ated for the public convenience: they
voluntarily assume these obligations to
the State, as well as to private individuals,
| and no sound reason of policy or Justice
| is perceived why they should not be. held
as strictly TO the observance of their con-
tracts and duties as other suitors in court.
That they may be liable to frivolous
and vexatious litigation" is only an incl
dent to the right to sue and be sued.
| which they have invoked for their benefit,
and they have the same projections against
such ills, which belong to natural persons,
among the most efficacious of which is
the observance Of good faith and Justice on
their part and without this they have no
| right to complain of its absence in others
whom they have thus wronged. The ten
| dency of contrary doctrine would be to
invite default. by holding out a premium
for bad faith and neglect of duty, when
public necessity and private convenience
both demand the most exact diligence.
The distinction between suits by a cor
| poration against persons contracting with
it, to enforce the performance Of such con-
tracts, and suits against corporations for
neglect of the duties imposed by their
charter. showing no special, peculiar dam
age sustained from the neglect or breach
Of duty complained Of, Is too obvious to
need remark
The cases cited by counsel are of this
| latter class, and have no application to
| the principle here involved.
In the view here taken the instruction
| of the court below was erroneous.
Let this judgment be reversed, cause
| remanded and a venire de noyo awarded.
HARRIS.