that the plaintiffs have a right to such a release upon discharge of the award. The submission was of all demands; a discharge of the award, then, was a discharge of all demands; and, therefore, 2d. Such a release was due of common right. A man has a right to demand evidence of his payment, and of the claims which are thereby satisfied. It is true he may call witnesses, but they may die. If a man pay money upon a spe cialty, he has a right to written evidence of the payment. Shep. Touch. 348. 3d. The plaintiffs had a right to make the release a condition of the tender. All things were to be done on the same day. They were concurrent conditions, to be performed at the same time. If one party is ready and willing, and offers to perform, and the other will not, the first is discharged from the performance of his part, and may maintain an action against the other. 4 Term Rep. 761, Goodison v. Nunn, Doug. 684, Jones v. Barkley. Such a release could not operate to the injury of the defendant, or of Dunlop & Co. It would not have released any right accruing under the agreement, as was decided in the case of Thorpe v. Thorpe, Lord Raym. 235. The covenants of the plaintiffs respecting the lands and the ejectment are all future and contingent, and, there326*] fore, *could not have been released by a release of all demanas. Nor was the penalty a present duty. It could only be incurred by a future breach, and, therefore, is not like a bond to pay a smaller sum at a future day. Shep. Touch. 339, 340. Buller, 160. 2 Show. 90, Carthage v. Manby. Esp. N. P. 307. Cro. Jac. 170, Hancock v. Field, Cro. Jac. 623, Porter v. Philips. Cro. Eliz. 580, Hoe v. Marshall. 5 Co. 70. b. Hoe's Case. E. J. Lee, contra. The assignment, in this case tendered, was not good, because it stated part of the consideration to be a release of all demands, which the defendant was not bound to give; and if he had accepted of the assignment in that form, it would have been an acknowledgment that he was bound to give it. Whether Auld might with safety have given such a release, is not now the question; he has not contracted to give it, and it is not for us to inquire why he did not. He was unskilled in the law, and he might have supposed that in some way or other it would embarrass the claims of Dunlop & Co. against the plaintiffs for a future performance of their covenants respecting the land. 2d. The assignment is made to the use of Colin Auld, and not to the use of Dunlop & Co. The rents and profits are to be received to his use, and not to that of his constituents. In the operative parts of the assignment he is not named as agent. 3d. The power of attorney is insufficient, because it does not give full power to act therein. as the defendant should think proper, and does not authorize him to compromise the ejectment. But the principal question is, whether the defendant was bound to give a release of all demands. The plaintiffs only tendered the papers, but did not deliver them, so that the defendant could not see whether they were correct. They were to do the first act. They were first to make and deliver the assignment before they *were [*327 entitled to the balance. The words of the agree ment plainly show this. The agreement does not require him to give such a receipt in the case of payment by the assignment of Graham's contract. It would certainly have been as easy to have covenanted to give such a release in that case, as in the event of payment by bills or cash. The not doing so, in the former case, and the express agreement for it in the latter cases, creates the strongest presumption that it was not intended by the parties to be given in the former case; and the intention of the parties constitutes the agreement. Admitting that by common right they were entitled to a receipt, it could only be a receipt for the assignment itself. There was at least a doubt whether such a release as was demanded would not have discharged the penalty annexed to the contract, or at least the covenants respecting the land. A release of all demands is certainly a release of all present duties, and it is said in Altham's Case, 8 Co. 154. a. that a release of all demands is a release of all causes of demand. As the plaintiffs have demurred to our plea, we have a right to look into their declaration; to which there are two objections. 1st. That it contains no profert of the award which is the foundation of their action; and, 2d. That it does not aver the difference between the amount of the award and the purchase-money due upon the contract tendered. The declaration only states that the arbitrators awarded the sum of 4,3791. 9s. Od. 3-4 sterling, to be due from the plaintiffs to Dunlop & Co., and that the plaintiffs having elected to assign Graham's contract in discharge of the award, tendered an assignment thereof, together with a power of attorney, according to the true intent and meaning of the agreement, in consequence whereof the plaintiffs then and there became entitled to have and receive of the said [*328 defendant the sum of 4941. 6s. 7d. Virginia currency, which said sum the defendant, although required, had not paid, whereby action accrued to the plaintiffs to have 45,000 dollars, the penalty of the articles of agreement. C. Lee, on the same side. The protestando in the plea saves all objections to the sufficiency of the assignment; and we conceive the objections which have been stated are substantial. But the principal question is, whether any release at all could be demanded. The contract does not, in any of the cases of payment of the award, require a release; which is a technical word, and means an instrument under seal. But we do not insist upon this aistinction, as the law is full in our favor upon the other points. We might safely admit that the defendant was bound to give a receipt for the assignment; but even that is not due under the contract, nor of common right. However, such a receipt was not demanded, and, therefore, it is unnecessary to inquire whether the defendant was, or was not, bound to give it. The release required would have discharged the penalty of this agreement. Viner, tit. Release, P. pl. 18. It is not contended that a release contained in an instrument will release demands growing 1803 HEPBURN AND DUNDAS V. AULD. out of that instrument; this was the case of Thorpe and Thorpe, Hoe's Case does not apply to the present; that was a case of mere possibility of a demand. The covenant of the plaintiffs not to interfere with the ejectment, was a present duty. This is a case of construction only, and the only question is, what was the intention of the parties. If the deed of assignment was not a proper one, or the release demanded was such a one as the defendant was not bound to give, the plea is good, and the judgment must be affirmed. Mason, in reply. All the instruments are to be taken together. 2 Atk. Crop v. Norton. Through the whole it 329*] appears that what the plaintiffs are bound to do, the defendant was bound to receive. The payment by the assignment was not more for the benefit of the plaintiffs than of the defendant. If they did not on the 2d of January pay in bills or cash, they were absolutely bound to assign Graham's contract; and the defendant might then refuse the bills, or cash, and insist on the assignment; and a court of chancery would have compelled a specific assignment, if they had refused. The discharge of the award by the assignment was the same thing as the discharge by bills of exchange or cash. It would have been a complete discharge of the award, and there is no reason why he should not give a release as well in the one case as the other. It is alleged that the release would have discharged the other covenants, and the penalty of the agreement. But the case cited from Viner shows that the covenants would not have been discharged by the release, nor would it have discharged the penalty. The covenant not to interfere was not a present duty. The covenant of the plaintiffs is, that after the assignment, they would not interfere. But a release of all demands does not discharge a covenant before it is broken; until that time it is no demand. The same observation applies to the penalty; it is not a present duty until a breach of the covA bond in the penalty of 2001. to pay enant. 1001. at a future day, is a present duty. But in a bill penal, the penalty is not a duty till after the day appointed for the payment of the The difference in declaring upon smaller sum. the two instruments shows their different nature. On a bond you only declare that he bound himself in the penalty; and you take no notice of the condition. But on a bill penal you declare that the defendant having failed to pay the smaller sum, an action has accrued to recover the penalty. To support these positions he cited Esp. N. P. 307. Buller, 166. Cro. Jac. 170, Hancock v. Field. Cro. Jac. 300, Tyman v. Bridges. Cro Jac. 623, Porter v. Philips. 1 Lord Raym. 662, Thorpe v. Thorpe, and Cro. Eliz. 579, Hoe v. Marshall. The plaintiffs having offered to perform their part of the agreement, are entitled to their 330*] action. Esp. N. P. *284. Doug. 684, Jones v. Barkley. 4 Term Rep. 761, Goodison v. Nunn. As to the protestando, it is only an estoppel, Or, as Lord Coke says, it is an exclusion of a conclusion. It does not put in issue the validity of the assignment. But if it did, the objections are not well grounded. Whether the release ught to have been mentioned as part of the consideration depends upon the question wheth- In the premises a complete interest is con- To entitle themselves to the money for which The plea does not contest the sufficiency of The only cause relied on, as doing away the operation of the tender, is, that it was made on condition that a release of all the claims and demands of the said John Dunlop & Co. on the said Hepburn and Dundas, should first be signed, sealed and delivered to them by Colin Auld. The only question in the case is, whether Hepburn and Dundas had a right to insist on this previous condition; and it is admitted that this question depends entirely on the agreement of the 27th of September, 1799. That an acquittance should be signed, sealed and delivered before the act itself was performed, which entitled the party to such acquittance, is a mode of proceeding very unusual, and which certainly could only be rendered indispensable by express stipulation. There is in this case no such express stipulaor money, the release of all the claims and detion. If the payment had been made in bills mands of John Dunlop & Co. against them was upon receiving such payment. If, then, as has to have been given, not previous thereto, but been argued, the deed of assignment and power of attorney are substituted for the payment in money, or in bills, and to be made on the same articles was to have been made, yet there could conditions on which payment in either of those exist no right to demand a delivery of the receipt for the payment. If we inspect those covenants which relate to the deed of assignment of Graham's contract, we find no stipulation respecting a release of any sort. The agreement is, that he will re 125 1 ceive the said deed of assignment at 21,112 dollars, towards the discharge of the award, but he does not engage to give any release whatever. It is contended that upon the general princi ples of justice and of law, Hepburn and Dundas had a right to the evidence of the payment they had made without expressly contracting for such evidence; and this is true, so far 332*] as to entitle them to a receipt for the deed and power delivered; but neither the general principles of justice nor of law, give Hepburn and Dundas a right to insist upon any release as a previous condition. The case has been argued at bar as if the condition of the tender of the deed of assignment and power of attorney had been a release of all claims and demands to be given at one and the same time with the delivery of such deed and power, but this is not the case as presented in the pleadings. According to the plea, Hepburn and Dundas required the delivery of the release as a condition precedent to their delivery of the deed of assignment. This demand seems not to have been countenanced by the contract; and of consequence the tender was not such as it was incumbent on Hepburn and Dundas to have made, in order to entitle themselves to the money for which they have brought this suit. Judgment affirmed with costs. MARINE INSURANCE COMPANY V. JAMES YOUNG. It then alleged the property of the vessel to be in the plaintiff, and that it was of the value of 5,000 dollars, the sum insured. That the said Marine Insurance Company, in consideration of the premium to be paid by the plaintiff, "did undertake and agree, by their policy aforesaid, subscribed by their President aforesaid, with the proper hand and name of the said President thereto affixed, to assure the said vessel, &c. at the said sum of 5,000 dollars against the risks specified in the said policy." That the plaintiff had paid the premium; and that the vessel was totally lost, of which loss the company had notice; "By means of which said premises, the said Marine Insurance Company of Alexandria became liable to pay to the said plaintiff said sum of 5,000 dollars, and being so liable, the said Marine Insurance Company, afterwards, to wit, on the same day and year aforesaid, at the county aforesaid, assumed upon themselves, and to the said plaintiff then and there faithfully promised," to pay him the said sum of money when thereunto afterwards required. There was another count, stating, generally. that in consideration that the plaintiff would pay the premium of four per cent. upon the value of the vessel, the Insurance Company "undertook and agreed" to insure, &c. at the sum of 5,000 dollars, against sea risks only, at and from Anacabessa, in Jamaica, &c. to a port in the United States; that he had paid the premium, and that the vessel was stranded and lost, of which the Insurance Company had notice; by means of which said premises the said OF company became liable, &c. and so being liable, assumed upon themselves, and promised to pay, &c. Nevertheless, the said defendants, not regarding their several promises and undertakings aforesaid, but contriving, &c. refused to pay, Plea non assumpserunt and issue. to the damage of the plaintiff 10,000 dollars. Verdict for the plaintiff on the first count, and for defendant on the other count. Assumpsit will not lie upon a policy of Insurance under the corporate seal, unless a new consideration be averred. Quare, whether an aggregate corporation can make an express assumpsit, unless specially authorized by statute? Whether an action on a policy will lie against this company in their corporate name? Or whether the declaration must not be against the president alone? A verdict will not cure a mistake in the nature of the action. A judgment in assumpsit upon a policy is a bar to a subsequent action of covenant on the same policy. After verdict every assumpsit in the declaration is to be taken as an express assumpsit. HIS was an action brought in the circuit Tourt of the District of Columbia, by James Young against the Marine Insurance Company of Alexandria, upon a policy of insurance on the brigantine Liberty at and from Anacabessa, in Jamaica, to a port in the United States. The declaration stated, that "James Young complained of the Marine Insurance Company of Alexandria in custody, &c. of a plea, for that whereas," &c. setting forth the policy in the usual form. "In witness whereof the President and directors of the said Marine Insurance 333] Company of Alexandria, by William Hartshorne, their President, subscribed the sum assured, and caused the common seal, and the attestation of their Secretary, to be affixed to the said presents." Motion in arrest of judgment; "because the first count is in assumpsit upon a sealed instrument set forth in the said count, as containing the contract whereupon the action [*334 aforesaid is brought." Judgment for the plaintiff; to reverse which judgment the Insurance Company obtained the present writ of error; and the errors assigned were, 1. "That assumpsit is brought upon a sealed contract." 2. "That the Marine Insurance Company of Alexandria, being an aggregate corporation, is sued upon assumpsit instead of upon cove nant." 3. "That the judgment upon the verdict aforesaid ought to have been arrested." 4. "That according to the act of incorporation, the action aforesaid, if maintainable at all, should have been commenced and prosecuted against William Hartshorne, President of the Marine Insurance Company." E. J. Lee and C. Lee, for the plaintiffs in error. Simms and Swann, for the defendant. For the plaintiffs in error, it was said, 1st. That the declaration states the policy to be under the common seal, and the law is clear that assumpsit will not lie upon a sealed instrument. The action ought to have been covenant and not case. The difference is, that when the specialty is only inducement to the promise, and a new consideration intervenes, assumpsit will lie; but where the only contract, which is stated as the cause of liability of the defendant, is fully and entirely contained in the specialty. and no circumstance is added but such as is provided for by the specialty, there it will not maintain a general indebitatus assumpsit, which is the present form of action. produced, and adjustment thereof made. This is only one of the facts necessary to produce a liability under the covenant itself, and not any new consideration, nor is it stated as such in the declaration. The declaration does not say, "in consideration whereof," but, simply, "so being liable," assumed to pay; so that the assumpsit alleged, is nothing more than the very agreement contained in the policy. 2d. An action of assumpsit upon an express contract, will not lie against an aggregate corporation. They can do no valid act but by their common seal, by which alone the union of the wills of the several members can be testified; and the affixing of the seal makes it a covenant. Perhaps an exception to this rule might be made by the act which creates such an aggregate body politic; but here is no such exception made as will apply to the present case. Marshall on In The declaration states that the Insurance Company, by their policy, under the common seal, insured 5,000 dollars on the brig, and that the vessel was lost, whereby the company became liable, and, being so liable, assumed to 335*] pay. *This is the whole substance of the declaration. No new consideration is alleged. The whole ground of liability of the plaintiffs in error is their policy under their common seal. And in such a case the action must be covenant or debt. Marshall on Insu-surance, 596. rance, 596. Park, 396. "The act of Parliament, 6 Geo. I. c. 18, by which the two Insurance Companies" (of England) "were erected, ordered that they should have a common seal, by affixing which all corporate bodies ratify and confirm their contracts. Hence, a policy made by either of those companies is a contract under seal; and if the contract is broken, the action must be debt or covenant." 2 Term Rep. 479, Foster v. Allanson, and the cases there cited. In that case there was a new cause of action, and a separate, independent consideration. 3d. If any action is maintainable upon this policy, it ought to have been brought and prosecuted against the president of the company, and not against the body politic.1 The words of the act, which incorporates the company (Acts of Assembly of Virginia, 1797, c. 20, s. 9 and 11) are, "That all policies shall be signed by the president, or in case of his inability to attend, by the president pro tempore, and countersigned by the secretary." S. 11. "That in case any action shall be prosecuted upon any policy so subscribed, the same shall be brought against the president sub- [*337 scribing the same, or his successor in office; and all recoveries had in such action or actions shall be conclusive on the company, so far as to render the stock of the company liable, and no further." Cro. Car. 343, Brett v. Read. 1 Bac. Abr. 164. In the case of Baird and Brigs v. Blaigrove, in the court of appeals of Virginia, 1 Wash. Rep. 170, there was a subsequent new consideration and parol agreement expressly proved, and upon that ground the court decided that assumpsit would lie. See 2 Call's Rep. 258, Although the sixth section of the same act enTaliaferro v. Robb. The case of Pelly v. Gov-ables the company to sue and be sued by their ernor and Company of the Royal Exchange Assurance, 1 Burr. 341, is an action of covenant upon a policy; so is the case of Worsley v. Wood, 6 Term Rep. 710, and Tarleton v. Stainforth, 5 Term Rep. 695. Assumpsit will not lie upon a specialty. 1 Esp. N. P. 95. Doug. 6, Walker v. Witter. Cro. Jac. 213. Buckingham v. Costendine. 2 Strange, 1027, 1028, Bulstrode v. Gilburn. Cro. Jac. 505, Bennus v. Guyldley. Cro. Jac. 598, Dartnal v. Morgan. Cro. Car. 6, Holme v. Lucas. Cro. Car. 31, Foster v. Smith. Cro. Eliz. 242, Reade v. Johnson. 1 Roll. Abr. 8. Hutt. 34, Green v. Harrington. Cro. Eliz. 283, Pyers v. Turner. If this action is sustainable in law, then the rule requiring a plaintiff to state in his declaration his cause of action will be useless. The reason of that rule is, to ascertain whether the contract is under seal or not. Bull. N. P. 128. And if the judgment of the court below is 336*] *correct, an action of assumpsit may be maintained upon a bond, or any other sealed instrument. The notice stated in the declaration is what the plaintiff below was bound to give, because the company were not liable, by their covenant, to pay until proof of the loss was 1. By the 11 Geo. I. c. 30, 8. 43, which recites the inconveniences resulting from the necessity of the policies of these two companies being under seal, by reason of their being corporate bodies, they are authorized to plead generally nil debent, and to give the special matter in evidence, &c. corporate name, yet, as the subsequent sections prescribe the manner of making policies, and the mode of proceeding in actions upon them, the latter sections must be considered as so far restricting the general expressions of the former. General words in one clause of a statute may be restrained by particular words in a subsequent clause of the same statute, and the whole ought to be so construed, that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant. 4 Bac. Abr. 645. The declaration is bad in stating the body politic to be in custody of the marshal. 1 Bac. Abr. 507. 4th. If it should be said, that this declaration is good after verdict; the answer is, that the verdict will not cure a declaration which shows that the plaintiff is entitled only to an action of a different nature. The title is not defectively set forth, because every fact is stated which 1. The capias ad resp. in this case was against william Hartshorne, President of the Marine Insurance Company of Alexandria. The declaration was against the company in their corporate name. This form of proceeding, by the better opinion, seemed to be correct. By the form of proceedings in Virginia, which are in some respects similar to those in the king's bench in England, the capias is not considered as any part of the record of the action, which is supposed to commence upon the filing of the bill, or declaration. 'shows that the plaintiff is entitled to an action of covenant. A mistake in the nature of the action is not cured by the statute of jeofails. In all the cases before cited, the question as to the form of action came on upon motion in arrest of judgment, and it is not even hinted that the error was cured by verdict. 2 Term Rep. 479, | Foster v. Allanson. 1 Wash. Rep. 170, Baird v. Blaigrove. No assumpsit can be presumed, after verdict, to have been proved on the trial, but that which is alleged in the declaration. 1 Term Rep. 141, Spieres v. Parker. A verdict will not aid a case where the gist of the action is omitted. Cowp. 825, Avery v. Hoole. Nor does the clause of the Virginia statute of jeofails, which states that a verdict shall cure the omission of the averment of any matter without proving which the jury ought not to have given such a verdict, extend to a case where the declaration omits to state the 338*] ground of the assumpsit. 2 Wash. *Rep. 187, Winston v. Francisco. 1 Call's Rep. 98, 101, 102, Chichester v. Vas. 4 Burr. 2455, Doug. 654 (679,) Rushton v. Aspinal. A recovery in this action would be no bar to a recovery in an action of covenant for the same loss. 1 Call. 102, Chichester v. Vass. 4 Bac. Abr. 14, Cro. Car. 6, Holme v. Lucas. For the defendant in error it was contended, 1st. That this policy is not a specialty. 2d. If it is a specialty, yet there was a subsequent assumpsit upon a new consideration. 3d. That if it be a specialty, and no new promise sufficient to support an action of assumpsit, yet the declaration is a good declaration in covenant, especially after verdict. yet the saying that a thing shall be done in one manner is an implied negative of all others. The President and three of the directors are empow ered by the act to make insurance, but the policies must be certified in a certain manner. They have no right to bind the company by a policy under seal. They have no right to use the common seal for any purpose, unless particularly empowered by the constitution or bylaws of the company. If the company have improperly put a seal to the instrument, which the act of incorporation intended should be s simple contract, and not a specialty, it is their own act, and they have no right to complain. But shall it be permitted for the Marine Insu rance Company to say, that by their own act contrary to law, they have deceived the plaintiff below, and, therefore, he shall not recover in this form of action? After having defeated him in this action, and driven him to bring an ae tion of covenant, what will prevent their turning round, and saying that this policy is not a specialty? The company had no power to make a policy under seal, or if they had, the seal has been affixed by persons having no authority from the company, or perhaps by mistake. The objection does not go to the merits of the cause. If there was an error it was beneficial to the company, inasmuch as it was a relinquishment of strict right on the part of the plaintiff below, and enabled the company to make their deferse with much less risk, as it enabled them to give in evidence, on the plea of non assumpsit these facts which must have been specially pleaded to an action of covenant. The intention of the legislature in prescribing the mode of making policies evidently was, that they should not be specialties, but only simple contracts, so as to avoid the necessity of special pleading. If the principle be correct, that the company cannot make a policy but under seal, the consequence will be extremely mischievous to their interests. They will be always involved in the intricacies of special pleading, and the merits of the case will be often lost in the subtlety of legal dis tinctions. 1st. The declaration does not declare on this policy as upon a deed. It does not say that the company covenanted by their deed; but only that Young did, by a policy of insurance, subscribed and attested as hereinafter mentioned, make insurance, and cause himself to be insured, lost or not lost, &c. upon the body, &c. of the brigantine Liberty, &c. And so they, the assurers, were contented, and did thereby promise and bind themselves to the assured for the Who has the power of using the com01 true performance of the premises, confessing scal? Not the President alone, nor any number themselves paid the consideration, &c. In wit- of the directors, but the company only. [*340 ness whereof the President and directors of the But the declaration does not state this to be the said Marine Insurance Company of Alexandria, | seal of the company, but the scal of the Secreby William Hartshorne, their President, sub-tary; the words are, "have caused the common scribed the sum assured, and caused the common seal and attestation of the Secretary to be af seal and the attestation of their Secretary to be fixed." affixed to the said presents, in the town of Alexandria, on the said 17th day of December, 1800. The plaintiff then avers, that in consideration of the premium, &c. they did undertake and agree by their policy aforesaid, subscribed by their President aforesaid, with the proper hand and name of the said President thereto affixed, to assure the said vessel, at the sum of 5.000 dollars, &c. There is no profert of the policy, as of a deed. In fact, it is not a deed. To make it a deed, it must be sealed with the intent to make a deed, which would be contrary to their act of incorporation. The company had no power to make a policy under seal. The act prescribes the mode by which they shall make 339*] policies; which is only by the signing of the President and countersigning by the Secretary. Although there are not negative words by which other modes are expressly prohibited, 2d. But if the policy is a specialty, yet there is a sufficient assumpsit alleged in the declara tion to support this action. The action does not depend only upon the facts set forth in the policy. The declaration states other facts, such as the notice to the com pany, the proof of the loss, and an express as sumpsit to pay. These are considerations abun dantly sufficient to support the action. If the plaintiff has two remedies, he may take which he pleases. A judgment in this case would be a bar to an action upon the covenant.' It is a strange position that assumpsit will not lie in any case against an aggregate body politic, upon an express contract. Such a cor poration cannot act in any case but by the in 1. The court said there could be no doubt of chat, if the declaration sufficiently showed it to be the same cause of action. |