(December Term, 1855.)
A justice of the peace cannot make a contract with his associate justices in their official capacity.
Where the effect of an amendment would be to reverse a judgment below, which was rightly given, and to enter a judgment here for a different party plaintiff, such amendment will be refused.
THIS was an action of ASSUMPSIT, tried before his Honor Judge SAUNDERS, at the Fall Term, 1855, of Tyrrel Superior Court.
Smith, for plaintiffs.
Hines and Winston, Jr., for defendant.
At the July Term, 1853, of Tyrrel County Court, the defendant entered into a contract with a majority of the justices of the peace of that County, then in Court, that he would do certain additional work upon a house he was then building for the County, for the sum of $150, for which he received payment in advance. The work was not done, and this suit is brought for breach of that contract. The defendant was himself one of the justices of the peace of Tyrrel County, and was also present on the bench of the County Court, when the above contract was made.
It was admitted that damages for the breach of the contract were $149.
The defendant's counsel objected to a recovery, on the ground that the defendant was one of the justices of the County, and, therefore, that the contract was void.
The action was brought in the individual names of all the justices of Tyrrel, except the defendant.
A verdict was taken for $149 damages, subject to the opinion of the Court on the question, whether the action could be maintained, with leave to set aside the verdict and enter a non-suit, in case the opinion of the Court was against the plaintiff. On considering the question reserved, the Court ordered a non-suit, from which plaintiffs appealed.
We concur in the opinion given by his Honor in the Court below, that the action cannot be maintained. If the contract were intended to be made by the defendant with the justices, in their official capacity, he was one of them, and could not enter into an engagement with them, by which to subject himself to an action at law. See Justices v. Bonner, 3 Dev. Rep. 290, and other similar cases referred to by defendant's counsel.
The counsel who appeared for the plaintiffs in this Court, feeling the force of this objection, has insisted before us, that the contract made by the defendant, for doing the additional work on the house which he was building for the use of the county, was in legal effect a contract with the county, the justices on the bench having acted but as the agents of the county; that a suit may be sustained in the name of the county; and he has moved us to be permitted to amend the record by substituting, as plaintiff, the county of Tyrrel, instead of the justices of the county of Tyrrel.
We have no doubt that a county is a corporation, (Mills v. Williams, 11 Ire. Rep. 558,) and, like any other corporation, may maintain a suit. There is as little doubt that the majority of the justices of a county, while sitting in the Court of Pleas and Quarter Sessions, may make a contract for and in behalf of the county, with an architect, to build a house for the use of the county, and that such a contract will, in legal effect, be between the county and the architect. In such a case, there will be no more objection to one of the justices becoming a party to the contract with the county, as a corporation, than there would be for a stockholder in a bank or rail-road company, making a contract with the bank or company. The individual members of the corporation, and the corporation itself, are distinct persons, and there is no incongruity, therefore, in their entering into contracts with each other.
Our conclusion, then, is, that the action in the present case might be sustained in the name of the county, and, if the judgment in the court below had been in favor of the plaintiffs, we should not have hesitated to allow the amendment, in order to support it. The cases of Grist v. Hodges, 3 Dev. Rep. 198; Weed v. Richardson, 2 Dev. and Bat. Rep. 535, and State v. Muse 4 Dev. and Bat. Rep. 319, would furnish ample authority to us for so doing. But here, the judgment, in the Court below was for the defendant, and the effect of the amendment desired, would be to reverse that judgment, which was rightly given, and to enter a judgment here, for a different party plaintiff. Such an amendment was refused by this Court in Wilcox v. Hawkins' 3 Hawks' Rep. 84. It is possible that the defendant relied so strongly upon the objection to the plaintiffs as parties to the suit, that he did not avail himself of a defense which he may have had upon the merits. If he have such a defense, he ought to have an opportunity to make it. To the real plaintiff, our refusal cannot be a matter of much consequence, because we could not have allowed the amendment, except upon the terms of paying all the costs. See cases above referred to.
PER CURIAM. Judgment affirmed.