Inerarity, Adm'r, vs. Curtis and Griswold, Trustees.-Opinion of Court.

As keeper of the records and papers of the Court of Appeals, the clerk is not amenable to this court in the same manner and to the same extent that he is as the keeper of our records. We cannot exercise a summary jurisdiction over him in relation thereto, nor order him to deliver up, nor make any other disposition of the matters so given him in charge by the State; and he might well refuse obedience to our mandate in respect to them, unless it should be in some proceeding instituted in and decided by the Circuit Court as a court of original jurisdiction, and brought before and decided by this court, in the exercise of its legitimate appellate authority. This is also the view taken of the statute by the Supreme Court of the United States, in Palao v. Hunt, (4 Howard's Reports, 589); indeed, it is not susceptible of any other.

The only records and papers of the Court of Appeals over which we have any control, are those of the suits pending and undetermined therein at the time of the change of government, and which were, by the section 14 of the act of Assembly of July, 1845, transferred to this court, and of which the court assumed jurisdiction and decided.

We have not the authority to give the petitioner the relief which he asks and to which he seems to be entitled, but are compelled to deny his prayer and refer him to the remedy pointed out by the section 2d of the act of Congress of February 22d, 1847, or to some other appropriate remdy, if there be any, in the Circuit Court, as a court of original jurisdiction.

Motion denied with costs.

St. Andrew's Bay Land Company vs. Mitchell.-Statement.

THE DIRECTORS AND TRUSTEES OF THE ST. ANDREW'S BAY LAND COMPANY, PLAINTIFFS IN ERROR, V. NICHOLAS MITCHELL, DEFENDANT IN ERROR.

Parties to a contract liable according to the form in which they respectively execute the contract. One party may be liable in an action of assumpsit, while the other is liable in covenant.

The form of an action against a corporation is not determined by the form in which its agent contracts, nor is it material whether an agent of a corporation is appointed by an official act under the corporate seal, or by a mere resolution of the directors.

Where a contract has been made by an agent or a committee for a corporation, it is necessary, in a declaration upon such contract by the corporation, to allege that the plaintiff made the contract by an agent or committee. But when an action is brought with the view of making a party personally linble, who pleads that he entered into the contract with plaintiff as director or agent of a corporation, it is incumbent on him, in order to exonerate himself from the claim against him in his individual capacity, to aver and prove that he had authority to make the contract.

It is,not necessary for the existence of the right, that the charter of a corporation should confer the power of contracting by an agent or committee; but where the charter prescribes any mode in which the officers or agents of a corporation must act, that mode must be strictly pursued, to render their acts or contracts obligatory on the corporation.

The plaintiffs in error brought an action of covenant against N. H. Mitchell, in the Circuit Court of Walton county, upon the following instrument, signed and sealed by said Mitchell:

TERRITORY OF FLORIDA-WASHINGTON COUNTY.

This memorandum of an agreement made and entered into between the St. Andrew's Bay Land Company on the one part, and Nicholas H. Mitchell of the other part, witnesseth: That the said company has this day leased to the said Mitchell, until the first day of January, eighteen hun

St. Andrew's Bay Land Company vs. Mitchell.-Statement of Case.

dred and forty-five, the block or square, lying on St. Andrew's Bay, the houses and premises known as the hotel. block, for and in consideration of one dollar, the receipt whereof is hereby acknowledged, and for the further consideration that the said Mitchell shall, as soon as he can, take possession of the premises, keep or cause to be kept, until the said first day of January, eighteen hundred and forty-five, an orderly and comfortable hotel, for the accommodation of such persons as may visit or move to said bay. The said company to finish the buildings, and the said Mitchell to furnish his own furniture, and provisions, and other articles convenient for such an establishment, and to make such fencing and other arrangements as he may deem necessary, the said company furnishing the plank and nails that may be required.

The said company further agrees that, at the expiration. of the term of the lease, it will purchase from said Mitchell the furniture which may be in said house, at such price as may be fixed by, two persons selected by the parties, one by each, and in case of their disagreement, an umpire selected by them.

The said Mitchell is to have the use of the house near said premises, known as Long's house, as a stable, until a stable shall be erected by the company.

Signed, sealed and delivered duplicates, this 11th day of May, 1841, the words "the said Mitchell" being inserted in the first line.

[Signed,] The St. Andrew's Bay Land Company by

RICHARD H. LONG, [Seal.]

WM. NICKELS,

A. H. BUSH,

N. H. MITCHELL,

The defendant demurred to the declaration, on the ground

that the action did not lie, and the court below sustained the demurrer.

St. Andrew's Bay Land Company vs. Mitchell.-Argument of Counsel.

Keyes, for Plaintiff in Error.

Covenant was brought by the company against Mitchell, upon an agreement signed and sealed by Mitchell, and to which the signature of the company was made by Richard H. Long, William Nickels and Allen H. Bush, who, as a committee, signed their names, and made scrawls after them.

The objections taken upon the demurrer to the declaration were

1. That the action was misconceived. It is answered that covenant is the remedy for breach of agreement under seal. 1st Chitty's Pleadings, 115. 1st Archbold's Nisi Prius, 250.

2. That there was a want of mutuality of contract. It is answered that Mitchell might maintain assumpsit upon the agreement, and, therefore, that there is no want of mutuality. The Bank of the Metropolis v. Guttchlich, 14th Peters, 19. Bank of Columbia v. Patterson's administrator, 7th Cranch, 299. 1st Archbold's Nisi Prius, 250.

3. That there was not a reciprocity of action. It is submitted that reciprocity of action is not essential to the validity of a contract. 1st Comyn on Contracts, 3 (margin.) But on the contrary it is believed that the common law regards one remedy, when applicable, as efficacious as another.

Yonge, with whom was Woodward, for Defendant in Error.

"A contract is an agreement, upon a sufficient consideration, to do or not to do a particular thing." In this case, there is nothing to show that the St. Andrew's Bay Company made any agreement. The paper that purports to be an agreement is sgined by N. H. Mitchell, of the one part, and A. H. Bush, William Nickels and R. H. Long, as a committee, of the second part. The signature is in these terms, "St. Andrew's Bay Land Company, by A. H. Bush, William Nickels, R. H. Long, committee." They do not sign as

St. Andrew's Bay Land Company vs. Mitchell.-Opinion of Court.

agents, but as committee, and there is nothing to show what powers were conferred upon that committee, or by whom they were appointed, nor is it alleged in the agreement or the pleadings, that they were the agents or committee of the company. Had it been so alleged, of course the demurrer would have admitted the fact; but without the allegation of agency, no body is bound by the contract but the individuals themselves, to wit, Bush, Nickels and Long-certainly not the company. White v. Skinner, 13th Johnson, 307. 2d Caines' Reports, 254. 5th East, 148.

The charter of the St. Andrew's Bay Land Company confers no power to contract by committee, and still less does it confer such power on these particular persons, Bush, Nickels and Long. Not having pursued their charter, the company are not bound, and here, for want of mutuality of obligation, N. H. Mitchell is not bound. Chitty on Contracts, page 13.

It is stated in the body of the agreement, that the agreement is given under the hands and seals of the parties, which parties are stated in the body of the agreement to be N. H. Mitchell and the St. Andrew's Bay Land Company. Now, there being no seal affixed to the name of the company, but only to the names of the committee, it is not sealed by the company. Randal v. Van Vechten, 19th Johnson, page 60. The intention of the parties, then it is clear, was to make a special agreement, which was not accomplished. It is imperfect, incomplete and inchoate, and therefore, not binding.

THOMPSON, Jusaice, delivered the opinion of the court.

The plaintinfl in error, who was plaintiff in the court below, brought covenant against the defendant in error, on an agreement which was signed and sealed by Mitchell, but which was not sealed by the Company, but was sealed by the committee who represented the corporation, with their private seals.