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MISCELLANY.
A CAPITAL hit.
What follows iis a most capital satire, which we
take from the Knickerbocker foi February, ami in the
language ol that peiiouical we aay that •• it ia rich,
rare, ami a prey,” and hits to a nicety a certain style ol
roinaiico indulged iu by Piofeasor iiigiahum and a low
others of the ssme alamp. We have not seen abet
ter thing of the kind since the clever satire of Mariy-
Bit Upon the novels of the modern Italian school, where
in the hero, Absenprenstntini, •• feels his way along
the slimy walls,” and kills seven midnight antagonists
in succession—each of whom 11 expired without a
groan.” * Hut enough of comment, — lulled States
Gazette,
Tiic Phantom Clam-Sloop.
A ROMANCE IN TWO VOLUMES,
ur riior. j. n. i —**•
PREFACE.
1 have have been teiy much lauded by the public,
but not half so highly as 1 deserve. My • I.— illle,’
iny • Cspt. K-dd,’ my • Burl-n,’ are the finest things
ever written, except the following, lam willing to
stake my reputation upon the thrilling exciting, mag
nificent, sublime, glorious pages of the “ Phantom
Clam-Sloop.’
VOLUME I,
CHXPTXH I.
•Twas a honilile night; wild shrieked the storm
epiiit over the mad waves; the foam was white ; the
wild lightning lcsped from the ibyssmal vsulls of heav
en ; and the tempest howled like a tiger stung by a
spider. Heaven! is that a vessel upon tbs gloomy
waste of waters !
CHAJ-TSB 11,
Ho 1 brsee the helm there 1 Let go the main sheet !
Full up the clue buntlioss ! Ha ! ha ! we’ll yet baf
fle the storm !
These words proceeded from the mouth of one who
stood upon the main buck of the 1 Phantom Clam-
Sloop.’ Dark was hie complexion, but clear; his eye*
keen end fleshing ; his teeth white and well set; his
smile was the smile of an angel, and his glance the
glance of a fiend ! These peculiarities were revealed
by the luiid gleam of the lightning.
CHXPTi.It 111.
Far in the distance could be seen a frigate approach
ing ray idly.
■Ha! raid Eugenio de Is Ovsterelyo, think they
thus to take the Phantom Clain-Sloep ! Ho ! dip on
all sail, till the spars bend to the strain ! Hs was
obeyed !
CHxPTKR IT.
The chase now became exciting ; the frigate gained
rapidly upon the lutle vessel of Eugenio, which was
now approaching a ledge of racks. Those locks ran
entirely a toss the straits through which the vi-sels
were hurrying ; their tops could just he seen above the
black waters. Fast came the frigate; nearer drew the
Phantom Clam-Sloop to the rocks. Oysterelyo called
his crew, and in a tew words informed them of, and
prepared them fur his project. They were almost up
on the rocks, and the trigate was almost upon them.
• Now !’ sheuted the buccaneer, and at the word
the men darted from the bow to the stern : thus rais
ing her bows entirely out of the water ; at the same
moment a wave seiz'd the vessel and uplified hci.
• Now’! shouted Eugenio again; and the men sped
back to the bow ; and by this ruaneuvre, and the
stiengtli of ihe wave, the vessel leaped cleat over the
ledge of rocks.
Ah ! ha !’ said the deep voice of Oysterelyo. The
frigate struck upon the reef, and all were lost! High
above thru shriek of death pealed the exulting shout
of the buccaneers
• Vive la Vhuntom Clam Sluop /’
ean or volcmb i,
VOLUME II
CHAPTER I.
1 Sweet lolladellianna,’ said de la Oysterelyo, • 1
love thee with an overwhelming passion. The fian
tic tigress, bounding from liei fair, doth not so lovelier
cubs, The soaring eagle bears less affection for its
young !’
■ Ah !’ she murmured, - I am sad—sad, sad, Eu
genio P
• Why art thou sad, my soul!’ he asked.
• When I think of my home which thou haa luted
me ; my father—alt. Heaven !’ and she struck het
white forehead passionately. O. Oysterelyo! my
brother is a captain in the navy, If he should meet—
And she sang,
SONG.
My life is like n wiihered row,
Tlist's felt the lightning'* blast;
My sou! is like the air that blows
Around the tapering mast.
And sad, ah, sad, O very sad
This iremtding heart ot mine ;
Great Heaven ! O let mo not go mad !
Hut why should I repine 1
A gun sounded.
■ Ha!’said Eugenio, < that calls us to the ship!
tome, lollmdclliiuiiliu, let us embark !’
cuirrrn 11.
Scarce had they left the shore, when we saw a man
or war, which first fired a broadside and then gave
chase.
• I know her!’ screamed lolliadellianni ; it is the
Scorpion of the Seas ! ’tis my brother’s ship.’ W here
upon she irniru'd alely fainted,
• Ha,’ said Eugenio, ‘ hear her to the cabin run up
the black flag !’
The vessels met. In a moment they were locked
yardarm and yardarm. And face to face stood Eugenio
dc la Oyslerclyo and the brother of lolliadelianna.
• Turn thee, ravishnr ! yelled the captain,
• All ! ha!’ shouted Eugenio, and their swords met.
but in the midst of the battle, the fair gnl rushed from
the cabin, flung her arms round the neck of the buc
caneer, and exclaimed :
• Hold ! bold ! Hlantagenct ! I love him yet but
at Ifiis moment the swords of the brother pierced the
pirate's tide— und at the same moment the sailors
gained possession nf :he sloop.
• 1 will baffle ye yet ! shouted Eugenio ; end clasp
ing lolidJclliamia, be sprang upon the mam truck.
One moment the form of lliv pirate was revealed by
the lightning ; lie dashed bis mailed liuir from his fore
head, clenched his teeth, shook his fist and jumped
overboard.
ruarTER UK
The next day he was found far out at eea upon a
tali, with nothing on him hut a flannel shirt, sitting on
u tea box, playing the flute. Upon the tea box was
vviuten —• I'hantom L'lam-Sloop !’ This was all that
remained of the illlaied vessel !
From the Spirit of tht Times.
•‘floing lolled htloic a yomiK Lady.”
We published a week or two since under this head,
a m ist amusing story of one Judge Uuuglass, of Illi
nois, in which that gentlemen having acerptcd the hos
pitably ol a largo family, occupying a single room,
was okl ged to undieas slid -‘ hop into bed,” in the
presence of a young lady. Thu young lady Ihc Judge
describes at a•• Venus in linsey-wooUey—-plump as a
pigeon, and smooth as a petalmon.” Thu Judge bim
m II was •• a small man physically speaking,” and the
idea of going to bed licfure the young lady—a modest
sensible girl, who from habit, thought nuibiug of the
clicumstance—turned Ins head topaey-turvey. The
idea o ( pulling off bis hool* liefure her was death, and
aa t I dolling ins other fixms, he (ays be would sooner
have taken oil bis legs with a hand saw ! At length
•be tremendous crises approached. The Judge had
partially undressed, entrenched belaud a chair, which
oflcied no mure protection from •* the enemy, Itiun the
rounds of a ladder. Then he had a dead open apace of
ten Icel belw ecu the chair and llio bed—a aorl of
liridge ol Eo ii passage, aa he describes, which lie
was forced to make, exposed to a cruel raking fire, fore
and aft!—The Judge proceeds :
“ Body, limbs and heads, selling up business on one
hundred and aeveniy and a half pounds, all luld, ol
flesh, blood and bones, cannot, individually or collec
tively, sei tip any very ostentatious prenlion*. I believe
( h vouog lady must have been selling in her mind
aomot philosophical point on that head. Perhaps her
sense of justice wished to assuro itself of a perfectly
fair distribution of the respective motive*. Perhaps
she did not feel easy umill she knew that a kind Prov
idence had added to general poverty individual wrong,
Certain it was, she seemed lather pleased With her
speculations ; for when 1 arose from a stooping pos
ture finally, wholly disencumbered of coth, I uoliced
mischievous shadows plaving about the corners ol lief
mouth. It was the moment I hud determined to direct
her eye to some astounding circumstance out of the
the window— •• Mr. Douglass,” she observed, ‘'you
hare a mighty small chunce es tig* I litre..'”
Men seldom have any notion id their own powers.
I never made any pretension to-kill irt •* ground and
lofty tumbling*,” but it is strictly true, I clouted at one
bound, t[ie open space, planted myself on the centre ol
the bed, and was bulled in the blankets tit a twink
ling” , _. ..
This story of Judge Douglass has suggested to I icld,
of ihct. Louis •• Reveille,” the following adventure >
of a Missouti politician
The “ gentleman of Illinois” is not the only gentle
man whose legs have led him into embarrassment ! A
political friend of ours, rqually happy in his manner*,
if not in his party, among the Mis-ouri constituency,
found himself, while canvassing the State, last sum-
for Congress. in even a more peculiaily per
plexing predicament than the Illinois Judge.
There is a spot in the south-western part of thi-
Stxte, known as The Fiery Fork of Honey Run /
a delicious locality, no doubt, as the run of honey
is of course accompanied by a corresponding flow of
•■ milk,” and a mixture of milk an.l honey, or at any
rate, honey and * peach’ is the evidence of sublunary
contentment, ©very place where they have pleaching.
•• Honey Run,” further christened by the presence
of an extremi ly hospitable family whose mansion, com
prising one apartment, —neither more nor I-as- is re
nowned for being never shut against the tiavcller, and
so out fiend it during the chill morning air, at the ex
pense of a rheumatism in hi* shoulder, its tilimeious
unaffected cracks and spaces clearly showing, that
dropping the latch was a useless formality.
The venerable host and hostess, in their one apart
ment, usually enjoy the society ol two sons, four daugh
ters, sundry dogs and “ niggets,” and as ntsny lodgers •
us may deem it prudent to risk the somewhat cquivo- j
cal allotment of sleeping partners. On the night in !
question, our friend after a hearty supper of haul and
eggs, and a canvass of the Fiery Fathers , the old lady j
having pointed out Ids bed. felt very weary, and only j
looked for an oppoitunity to “ turn in, ’ though the
musquitoes were trumpeting all sorts of w rath, and no ,
net appeared to bar ihem.—The dogs flung themselves J
along the floor, and again rose, restlessly, and sought ’
the door step ; lire ** niggers” stuck their feet in the
yet wsrnt ashas ; the old malt slrip[ied unscrupulous- :
ly and sought hisshate of the one collapsed-looking
pillow, and the sons cavalierly, followed hi* example,
leaving the old woman, ‘ gals’ end ‘stranger’ to settle
any question of delicacy that might atisc.
‘J’he candidate yawned, looked at his bed, went to
the door, looked at the daughters ; finally, in down
right recklessness, sealing himself upon • the downy,’
and pulling off bis coat. Well, \tepullid ofl bis coat,
and be folded bis real—and then he yawned—and
and then he whistled—and then he called the old la
dy’s attention to the fact, that it would Merer do to
sleep in his muddy trowsers—and then he - undid'his
vest —and then he whistled again—and then suddenly,
an idea of her lodgers possible enibariassment seemed
to flash upon the old woman, and she cried
“ Gale, just turn your backs round ’till the stranger
gits into bed.”
The backs were turned, and the stranger did get
into bed in ‘ less than no lime,’ w hen the hostess again
spoke :
“Reckon sttangcr, as you aint used to us, you’d bet
ter kiter up till the gals undress, hud’nt you I”
By this time our friend’s a'eepy fit was over, and
though he did ■ Liver up,’ as desired, tome how or oth
er, the old counterpane was equally kind in hiding his
blushes, and favoring his sly glances. The nymphs
were soon stowed away, for there were neither bustles
to unhitch nor corsets to unloose, when their mamma,
evidet ilv, anxious not together Lei guest,, consider
ately reliev-d him :
“ You can unkiver now, stranger—l’m married
folks, and you aint shared o’ me, I re-ken !’’
The stranger happened to be ■ married folks,’ him
self; be unkivered, and tuinrd his hack w ith true con
nubial indifference, as lar as the ancient lady w as con
cerned, hut with regard to the •gals’ he declares that
his half raised curiosity inspited the most tormentin'’
dreams of mermaids that ever he experienced.
Among the various means us attaining 6udden
wealth in this country, the discovery of a popular
••patent” medicine has often proved singularly suc
cessful. A letter from New York, published in the
Chat lesion Courier, cites various examples in p-oint;
• Dit ami it ltii , with his pills, has risen from a poor
man to lie a man of extensive fuitune. He has now
at i-ing Sing a three story factory for grinding hit med
icines. Aloes are exited into it by the lon, and whole
cargoes of the ] ills arc despatched to every part of the
Union, and down every body’s throat, lie has ex
pended thrirty-five thousand dollars in a single year
fur adveitising. Comstock began with nothing, hut,
by crowding his patent medicine*, has been übie to
purchase one--f the first houses in Union Place, and
gives magnifii ent soirees, suppers, Ac. Moffat, ad
ding hitlers to pills, has run up a handsome fortune of
liea'ly £300,000, Sukhman, taking Ihe lozenge line,
Ira© emerged from his little shop in Nassau street Into a
buyer of lots and houses hy the wholesale. I need
not mention Swum, of Philadelphia, who, hy pour
ing his panacea into people’* stomachy, can affoid to
buy a single pearl head-t-and f n his daughter worth
£20.000, to prove that we are a pill-eating and bitter
diinking people. Your literary man will starve in his
gariet, while your pill-maker will enieigc fiom bis gar
ret into a palace.”
A Bad Plam.— How many fond mothers and fiu
gnl house-wives keep their pretty daughteis and their
preserves for some extra occasion—sjroe • big bug’or
other—till both turn sour. This teems to ua marvel
lous poor economy.
Th>: Fastest Yat.— We heard last evening of a
steamboat, built hy a Yankee of course, which run so
fast that when she burst her boilers, a shoit time since,
the passengers were all preserved by her running from
under them before they could be in|ured by the sculd
ing steam ! ‘That is the •• quickest on record,’ deci
dedly.— N\ O. Tic.
First Arrival of Sugar from Ihe Vni/ed Stales. —
On Mun Jay last, Ihe American ship Franconia arrived
In this port, bringing as part of her cargo twelve hogs
head* of Louisiana sugar. This is the first arrival us
Arueiican grown sugar in thia country, but we suspect
that it is only the beginning of a trade which will, in
a few year*, become a very considerable one, if ibe
new sugar duties or Sir Robert Peel should pass in
their present form.
The sugai icceived by the Franconia must necessa
rily have been shipped before any thing was known
or suspected ol the reduction of duties now proposed,
and must thercfuie have lieen sent here for the pur
pose of iisceitaining whether they could be imported
with a profit at a duty of 36s per cwt. so that if there
was any chance whatever of their succeeding under
such a duty, they cannot fail to pay handsomely, nuw
that the duly is reduced to 24s per cwt, W’e feel no
doubt that they will pay if they areal all well selected,
for on Hatuiday last we saw samples of two other ex
pected lots of American sugar,both of which had been
examined hy a sugar broker, who stales that they will
leave* handsome profit—alleast ten per cent.— in
this country, even if the price of sugar should fall to
the full extent of llie duty repealed ; the puces there
fore are no obstacle.—Lie. ’Times.
Floi-b.—Upwards of 40,000 harrela of Flour were
sold in Lowell last year, for consumption there and til
the neighboring towns. This is the way in which
manufactories injur* Ihe agricultural interest. What
if we were-lepenJent on the caprice us foreign nations
fur a mailcl for our surplus agricultural staples !
Citron. Jr Sen.
’Jf.xas CottoH.—The ir-ert-ave us llie growth of Tpx
as Cotton is as follows: in 1835, 500,<100 pounds, in
1838,1,400,060; in 1831, 2,21)0,OKI; in ]B|o, 4,000,000;
in 1841,8,000.000; und in 1845, 10,000,000 by estimate.
This however, is but a small pari of the cotton raised
there. These amounts wero tukru from ihe returns of j
cotton inquirled into New Orleans, entitled to debenture. ;
Hut nmrli of the Texas Cotton went through the Custom
House at New Orleans, all paaaiug there as American
Cotton. A hundred thousand bales is the estimated
cotton crap raised in Texas in 184 t.—Avgusta Chran.
DOMESTIC.
Optni*n o t H WtWM < onri of
North €arollnn, tiilhc c:isc ol the
Slate of North Carolina
vs.
FRJJ\CMB E. RIVES.
DECEMBER TERM, 1841.
Ruffin U. J.—This care was treated at the bar as
depending upon the question whether the defendant
gained a right of propeity by the Sheriff's sale and con
veyance in the part of the rujd purchased, or in the ,
material, of which it whs constructed. We think that
a proper view c subject because the statutes whitji ,
make it ail ofl'edß to obstruct the load or destroy its
materials, have in view the acts ot a person who is
not the piopiietor of the road or materials, but ucts
wonloiily an I not in the exercise of a right. The sev
enth section of ihe charter, for example, provides, that
if any person shall wilfully injure the rojd, he shell
foifeillhe sum of £SOO to the Company, to he recov
ered by the company in an action of debt, ari-J shall
also l-e subject to an indirtment. So it is seen that
the indictment is given where the penalty ia incurred
to the coipniation, and that cannot accrue when one
enters under the corporate conveyance, or umlei it
sale oil execution against the corporation, provided such
sale passes the propeity and the puichaser peaieably
enters upon his right of properly.
The enquiry, then, is, whether by the law of this
Slate, the writ of fieri facias lies against the land on
which a rail road is laid out 1 It might l-e material to
distinguish between the road itself, and the materials,
such as the iron and timber, laid down on it, if the
corporation had a mere easinent or right of way over
the land ; for in that vase the law would probably, in
favor of creditors, regard those materials as mere fix
tures of an occupier of land, which might be severed
and sold hy the sheriff, if, as the property of a privileg
ed corporation, they were not altogether exempted front
execution. But the Court does nut deem it needful to
enter into that question here, for two reasons—the first
that the materials were not severed, nor were they sold
as distinct ftuin the land ; and the second, that we
think the corporation hud an estate in the land, at
least for a term exlending fir beyond the duration of
materials, and therefore that they had lost their dis
tort t character, as persons! chattels, and were sunk in
to the realty.
We have said that ‘.he corporation had an estate in
the land laid off for the road. Both the express pro- I
visions of the charier, and the necessity of the ease,
lead to that conclu-ion. The 3d section enacts tl-.at, |
after llie assessment and payment of the damages, the
company may enter upon the land condemned andjliold
it to tin ir use and benefit, for the purpose of preserv
ing aid keeping up the road during the continuance
of the corporate existence hy the act given to thtm,
(which isiixty years.) and declares that, in all things,
the company shall have the same power over the said
land so laid ofl during their existence as a corporation
under the laws of this Slate, as though they owned
the fee simple therein. This language rail signify
nothing less than that the corporation is the tenant of
the land, as the ow ner es the legal estate, for the term
of sixty-years, subject to the earlier determination of
Ibe corporation from any cause. Most of the Rail
Hoad charters in this State give an estate in land in fee.
Some estate, indeed, is necessary to the preservation
or protection of the road. It is true the act gives a
penalty ol £SOO for destroying any part of the road.
But that is an inadequate protection—for an evil dis
posed person might burn a valuable bridge, or do some
other injury far beyond that penally in value, or might
, intrude ori the land without actually obstructing the
the road, and in such cases the company ought to have
and no doubt lias, remedy by action of trespass or e ject
ment, as tenants. or 4 ow ners of the soil. It is true,
the act says the company shall hold the land -• for the
purpose of preserving and keeping up the road,”—and
it is contended that these w ords, at least make the es
tate conditional, arid that the condition is of sach a
nature as to defeat the estate, if not pi rformed, and
1 thence it was inferred t hut there could be no hale of it,
inasmuch as that would prevent the company fiom
j performing the condition. As fur as respects the rights
! of th< company, ot the private interest of its stockhol
; ders, those considerations, if true, could avail nothing,
j —for Ibe debtor has no interest in the question, to
whom iheptoperty shall go after a sale of it for the
payment of bis debts. That is a question which, in
this case, may arise between him and the public. An
esiate, upon condition, is not necessarily exempted
from sale by execution. But we do not regard those
words as creating a condition, in its pioper sense.
’ They only assign the reason why the law vests the
estate in the corporate n. The object in view was to
have the road, and that is stated as the justification ot
’ taking private property and vesting it iu (ho corpora
tion. After being thus taken at lha full value paid to
the former owner and vo-ted in the corporation, we
•re no reason why it should nut be considered as abso
lutely vestid in the corpoiation during its existence,
1 or in its assigns during the whole pi nod for which it
was taken. In the case of common and free highways
the public have only an easement, and therefore the
remedy fi-r obstructing the passage over it is by indict
ment merely. But the estate, the light of soil, remains
in the original proprietor, who has an aclion for an in
jury to the land as the owner of the soil, as be might
have in respect to any other part of his land. But in
the case of a rail road, it would he rnaiiilestly incon
gruous not to give to the corporation the aclion for des
troying embankments and the superstructure of the
i road, which the company erected with its funds, but to
give such action to the original owner of the lands,
From the nature of things therefore, the necessary con
struction of a dialler for such a corporation must l-e to
vest an estate ill the land in the company, unless it he
clear that the couliaiy w as intend) and.
Having ascertained that the corporation had an es
tate in the land and riot a mere easement, it seems to
follow, that such esiate is liable to execution. In ref
erence to corporations generally, it cerlsiiily is true,
that in our law their estates, real anil personal, are sub
ject to sale on fieri fucias in the same manner as those
of natural persons. By the act of 1620, the plaintiff,
in a judgement against a corporation, is entitled tori*
, ther a distringas or a fieri facias, and they may he
levied on the money, goods, chattels, lands, and tene
ments of the corporation. Rev. St.c. 26,a. s.—There
fore, it is clear, that this land is liable to execution,
unless it be exempted therefrom,either bv tbe express
provision of a statute, or tbe neciseary inference of u
legislative intention to that effect. There is no such
express enactment. If llierewss. it would be conclu
sive; for doubtless, the legislature can prescribe what
shall or shall not he tbe subjects of execution. But,
it was contended for tbe State, that such exemption
arose fiom tbe nature of tbe properly vested in the
eutnpany and its purposes, and from Ibe inteicsl of tbe
public iu the road. It was urged in reference to tbe
interests of the corporation, that the preservation of
their franchise of receiving toll, which depended on
their remaining in possession of, and keeping up the
road, snd their habilrty to penalties sm) pains for not !
keeping up the road, presented considerations of so 1
much more weight than anv which the mere satisfac
tion of t debt to *n individual does, that the law ought
; not to lake fiom it the laud to which that franchise
;is annexed, We agree that the franchise itself cannot
be sold. It is intangible snd vested in an artificial being
ol a particular organization, tuned, In view of the leg.
iidaturr, to the most proper and beneficial use of tire
franchise ; and therefore, it cannot be assigned to a
person, natural or artificial, to which tbe legislature
lias not committed Us exercise or emolument. W e
admit also, that the right of parsing,or| of transport
ing persons ot things over the land ol another for 1011,
is but an esrment united with a franchise, and it not
distinguishable in this respect from other franchises.
Yet it will not follow, that if the grantee of t franchise,
whsther a natural person or a body politic, has a ves
ted property in a tangible, personal or real thing, tint
such thing may not be taken in execution, although it
lie useful or indispensable to the m--e( vcreficiul or even
■ny enjoyment of the iranebiee ; utiles© indeed.it be
declared by the legialsluie not to be liable to distress
or sale. It may ho very unfortunate, and cause much
I®** in a pecuniary sense to aircst the exercise of a
franchise hy depriving its proprietor of an estate or
thing needful toils exercise, when, of the two, the
franchise or the tangible thing, the lormer i* much the
more valuable. W e rrgiel sincerely, that it baa hi h
erto escaped the attention of the companies, and of the
Icgi-latuie, that aome act was nerrs.ury ill Older that
such sale*, when unavoidable, might he made w itlt the
least loss to the debtors, and the greatest advantage to
the creditor* and purchasers, hy providing for th keep- j
ing of tbe franchise with the estate. Or, if it so pirate
tb* legislature, an act might provide lor putting iu©
road into the handa of a receiver, and subjecting the
income to the creditors, instead ol the estate in the
land, stripped of the franchise. But nothing of either |
kind has been done, and those are considetalions for
the legislature, u* to their future action ; and cniinol
influence the decision of the Court as to rights ol the
creditors ol these corporations under a different state
of the law. The question for us is, between the ne
cessity, on'lhe one band of subjecting the tangible
propeity of this corporation to sale for iis debts, til
t-bough at the expense of the suspension or loss ol us
franchise, or, on the other ham! of saying that the cred
itor lias no irinedy whatever, ondjlhat the corpoiation j
may keep its property and enj iv its profits in defiance j
of moral right and the process ol the law. Between
these alternatives, ncourt ul justice cantint hesitate, j
It the corporation has means to pay its debts and w ill |
not,or; if it has contracted debts which it is not able j
pay without a sale ofits property, he the consequences j
to the pecuniary interest of the corpoiation what they
may. The law is not responsible for those consequen
ce* : but they have been brought on tile corpoiation by
the want of integrity or prudence in its management.
It ts a sacred principle of justice and law, applicable
alike to all persons, natural and corporate, that the ob
ligation of contracts should be enforced, am) debtors
prevented from retaining their propeity to the disap
pointment of their criditors. And it is likewise a prin
ciple us equity and policy that all debtors should he
placed on the same looting ; and consequently, that
w hat one is compelled to yield up to his creditor, anoth
er shall not be allowed to keep to It is own use. Against
the operation us those sound and salutary maxims of
morals and law, it requires much mote to he opposed
than an argument of inconvenience, that ‘he debtor
lose* much more than the creditor get*. Still, it is to
be replied, that the creditor i* entitled to his debt at all
events, and that lie ought to have it, even at that ex
pense rather than not all. Therefore, an execution
again. t the propeity of a corporation, which the law
t-xpiess'y gives against all corporations, must be satis
fied out of its piopeitv, provided only that such prop
erty be within the description of goods, chattels, lands
or tenements. When the law awards an execution of
that kind, how tan the Court say, without a direction
from tile legislature, that it shall not be served on chat
tels or certain lands of the corporation, because it would
be a detriment to the corporation to be deprived of
them. There is no mischief in the case comparable
to that of leaving just debts unpaid : —debts necessari
y contract- and for the labor or property of tho creditor
employed in constructing the road. That would be
the view properly to be taken of the law-, if theie i
was no special provision in ihe charter of this comps- ;
ny. denoting an intcr.lion that its propeity should he
liable to execution. But there is an express provision j
of that kind. By the charter the company has the far- j
ullies of suing, and being sued, and it is to enjoy all
Ihe rights and privileges and immunities ol a body poi
j itic ; and l>y the fourth section, for the damages asses-,
i sod for entering on land and taking s'onc, earth and (
’ timber for making tbe road, the execution is exp-esslv
given against this, -• as against other corporation*.”
It is true, that the act specifies but one case, in which
it gives execution. But there is no reason why a pe
culiar preference should be given to that demand above
all others, as to the mode of obtaining satisfaction.
That case was particularly mentioned, because it was
proper to give a summary assessment of tbe damages
and speedy satisfaction of them, as a justification for
the taking of private property. But when another
debt is reduced to judgment by the regular course of
law, that ought also to he satisfied in like mannet: and
hence, the particular case mentioned in the act is not
to he looked on as one to which a peculiar remedy is
annexed; but, lather, as an example of the mode in
which payment of the debts of this corporation was to
be obtained, that is, by making its property, including,
of course, all its propeity, liable to execution for its
debts, as the prope ly of corporations generally is lia
ble on execution for their debts. In other words, it
was not intended to discriminate between rail road cor
porations and other corporations as to their duty of pay
ing debts, or the modes of coercing them to the per
formance of their duty. It was admitted by the Coun
sel for the State, that this proposition must be receiv
! ed as true, in respect to all the other property of the
company, except the land on which the line of load
’ runs, such as ihe cars, locomotives, supply of wood,
limbei and iron not laid down, and land purchased for
depots; hut it was itisisled that it was different with
respect to tbe land forming the road itself. The ex
emption of that was claimed upon the ground that, hy
the sale of it, the corporation itself ceased, so that eo
• ins/anh the laud reverted to the former owner, and,
consequently, the purchaser got nothing ; and so as
the law does nothing in vain, arid especially when at
tended with such lie.-lructivc consequences, it was in
ferred that there could he no such sale. But the po
sition ts nuv V|ue. that the corporation is dissolved hy
the sale of a part of llie roa, nor. indeed, (imtm-di
atclv upon the sale of the whole road, as it seem* to
us. It may he cause of forfeiture, if insisted on by
the State ; and without any prosecution, it may in pro
cess of time, amount to a forfeiture. Bui by the ex
press provision of the Statute, it requires a disuse of
the corporate privileges and powers for two years to
amount, of itself, to a forfeiture—Now, although it be
generally true, that upon the expiration of a corpora
tion or Us -li.solution, unless otherwise provided by
Statute, the leal estate, undisposed of, will revert to tlia
donor or original owner ; yet, that is only true as to
sueh estate as remains in the corporation at the mo
ment of its dissolution, arid does not apply to such as
had been divested out of it either by its own art or by
the act of law. In this case, therefore, the sale was
not vain, but the purchaser got the estate in the land
which belonged to the company. If that was not so
by the common law, it would, we think, necessarily
be so upon Ihe construction of our Statute, which
gives the wiit of fieri facius, against the company ;
for, instead of arguing that there should l-e no sale,
because tire purchaser gels nothing, the argument is
(lie other way, that the purchaser does get llie estate,
because the sale us it is authorized ; and therefore,
even upon a subs- queut dissolution of the corporation,
the land would not revert until by lapse of time the
charter would have expired, But, really, there is no
more ground fur exempting tile line of road than the
other property of the company ; for its operations, the
beneficial use of the road cither to the couq any or the
public, is as i flcctually su-peuded by the sale of all its
other tfli-cls ashy that of the road itself. Indeed, n
must he supposed, under our law, that its personal ef
fects have acluaily been sold, or are purposely with
held and concealed hy the company; because the Sher
iff cannot rightfully sell land while there are personal
chattels. If so, then the creditor is reduced to the last
’ resort, namely ; on the land for his debts, and for the
reasons already given, it must go rather than he should
| be defrauded ol bis debts.
The question has thus far been considered in refer
ence to the conflicting claims of the creditor and the
coipniation to the protection of the law. The counsel
; tor the iState, howevei, interposes, us a further at and dis
■ tinet objection to the sale of (he road, the right of the
! public lo the use of it as u highway, and the necessity
: that the cuinpuny should retain Ihe road lo enable it lo
| perform its duty to the public by keeping it up as a
i highway. This position rests on the assumption that
because the road is a highway it is ex vi termini, not
liable to execution. Now, we cannot assent lo that
proposition in the extent here laid down. It* correct
ness depends on Ihe sense in which the U-ttn “high
way” is used, snd nil Ihe Legislative intention ss to
the liability of ibe pu-peily of tail road companies for
their debts.
Tbe Court said in the case of the Raleigh & Can
ton R, R. vs. Davis, 2 Dev. A Hat. 451, that a rail road
is a highway; hut it docs not follow, and certainly it
was not tntendrd, that it should be understood lo lie a
common public highway, on which all citizens were
lice lo pans, and which, horn necessity, could not be
the subject ol execution, because there is no estate in
the public, and because the rnerment is exclusively in
the public. In that respect there is an essential Jilirr
nice between Ihe one kind us road* and (he other.—
Rail toads, ullhough puhhci juris in some-respects, aie
the subjects of private propeity, and it is in the luttei
cliuracter that they are liable lo be sold, unleis forbid
den by Ihe Legislature ; nut the franchi-e, hut the es
tate us the corporation in (ho land, which is a distinct
thing from the Iranchise, In the sense, that the land
and other things taken fur its construction aie taken
for a public use, inssmuch ns it is s mode of opening
avenues of communication between different parts us
the Hlate, and with other tSlutrs, and, theiofuie, that it
was a proper exercise of the light of eminent domain,
wo Ihmk the expression wascmrectly used. We have
no doubt, too, that it ia so in some respects as lo the
modes of enforcing its due leparatiun aid punishing
its ob.-truclion, ’The latter is expressly made an in.
dictable offence, as is ehown by the cuae now under
consideration. The State may compell the company 1 1
hy mandamus to make calls on the corporator#to the’
full amount of their subscriptions, any lay out the
whole capital and the profits in constructing the road
und keeping it in repair, if adequate and necessary to
that end. ’The case of the Severn and Wue Itailivay
Company. 2 B. it Aid. C 46. So, while llie company
is in possession and using the road, it must lie indicta
ble for non-repair, upon the settled principle, lliul they
are hound to repair hy their engagement to the public
in accepting their charlet occupying the road, But
that it is a highway in the sense that it is not thesub
! jecl of evecutinh, is quilt- a ditlerrm thing. That de
■ pends upon the Legislature—and the silence of tbe
i Legislature as to the liability of it to exerution, neces
i sarily leaves it thus liable. Roads of this kind have
| letulior properties —having a double aspect, the puli
| lie seivid© and private profit. But both must nec--asa-’
j rily yield, in lioneslv and justice, to the consequences I
I ol tho impracticability of constructing und keeping up
the road by (tie means provided hy tbe eburter, aiul
without contracting debt* for those‘purposes. Tbe
public does not obtain an absolute light to require tbe
corporators to const met the road by Ihe uccrpluiire of
tbe charter and t-ntciing on the woik. ‘The engage
ment of the company is only to lay out the capital as
signed them arid subscribed; and to that extent they
may be o mpflled to proceed. If that be not adequate,
it is simply a case ul miscalculation of estimates by
both sides, arid the public looses the use of the road on
its side, und the corporation loses its puirliase and cap
ital. unless -.here be a nuw agn emelil, granting furlhei
facilities to the coipoiaiiou. But suppose the roaJ to
be completed or kept up by contracting the debts—and
lor'such purposes only can cut potation* contract debt*
—or suppose the company to incut a liability for dam
age* to individual; it is plain, we have seen, that the
coipoi.ition ought to pay tln-se debts or damages.
Now can it be imputed to tbe legislature, that it in
tended in passing this charter, that such -I-bis should
nut be paid, and that, in order to pievent tbe payment
of them, tbe public premg.ilive to a right of way
should be as-ernd, and, under cuver of it, the road
should be presetved to the corporation as its private
propeity I We think clearly not. If such a thing
bad been asked for in tbe charier, it would Ua>e hern
thrown out of either bouse of the assembly with dis
gust and scorn. If ‘.be Legislature were making the
road on the public account alone, tbe public faith
would be llie guaranty that ail demands for laboi or
materials laid out on it, should be lairly paid. So, it
was not the intention ol the legislature, that this ro-id
should not be paid for, or that it should be built at the
I expense of any person but the corporators, ‘i he pub
lic would riot have it on any such terms; and if per
| sons, vvh-i have laid out lln-ir m iney or labor on it,cun
Ino otherwise obtain satisfaction but by a sale of the
! road, there can he no doubt, that tbe public ought to
give up and intended to give up tbe convenience ol
I llie road, rather than to do llie injustice to the cil zen
jof denying him compensation for making it. If the
public cannot have the road and the creditor of the
|company also be paid—if one must yield, there -an
bo no h- sitation in saying that the public ought and
would promptly yield, if lire public should insist up
on its lights, then it is bound to in ike compensation to
tbe creditor out of tho treasury ; for it ought not to
suffer him to remain unpaid for executing w hat is
claimed us a public work. But no such obliga'ion has
ever been supposed to lie on the slate; simply for the
reason, that the corporation was properly liable. But
that cannot he rendered efleclually I,able, unless
through the instrumentality of an execution sarved up
on its propeity. We do not know, wherefore the
company did riot pay tbe debt for which this sale was
made, But wheihei it aiose from want of inclinat on
or ability, tbe fault or misfortune is theirs; and the
state never could have intended to interpose and screen
either a solvent or insolvent company from ihe pay
ment of its debis. If the coiporution be insolvent, it
rnusi, like every other insolvent debtor, give up its
property, unless the State cithei assumes its debts, oi
by a plain and unequivocal act declares the exemption
of its propeity. Ii Ihe State chooses still to have a
rail road, it may either enable this corporation to enter
on tbe land again, making compensation for it, if it
be not alreaJy endowed with the power, or anew char
ter muy be glinted to another company, or it may be
executed by the Stale directly. Bot by constituting a
corporation to execute Ibis woik and to have property
in it; by enacting that the fieri facias shall run against
the property of corporations generally ; hy notexeoipt
ing the property of the rail road company fiom the
general liability of corpotate propeity to execution ;
and by declaring in some cases that execution should
run against it -as against other corporation*;” the
legislative intention must cl< ally be understood to have
been, that tlife public right to tbe use of tbe roadebould
be dependent upon the ability of tbe corporation to
meet tbe just demands of iis creditors without a sale
of l lie road. Raying the debit lor making the load is
the first and highest duty of the corporation. The
element ot that duly is moral, and precedent to any
mere duly of police ; mul il,e Legislature cannot l-e
supposed to have intended a violation of that fust of
duties, upon any evidence less than its explicit enact
’ i mi nis.
‘lhe court is, therefore, of opinion that tliia laud
was liable to lie sold oil the execution, and that the
purchaser w ould have obtained a good title, bud the
sale been duly made. It was not, however, duly made.
By the statute, Rev. Slat. c. 45, see. 10. it ia enacted
that all sales of land and slaves shall be made si the
court-h-vuse, on Monday us the county court, or the
corresponding Monday in every month. ‘J’he sale in
ttiis case, was on tb* premises, and on a different day
us llie week. We have more than once said, that this
ia a substantial part of a sheriff’s sale, because the
regulation ts fur a sale of all the property atone place
and at the same time, which may be tillered foi sale in
the county in any one month, under Ihe expectation
that there will be numerous bidders and fair prices had.
Os such a regulation every one must be cognizint,
and therefore we have held, that the purchaser gels no
title by a sale at an improper time and place. Mnrde
cai vs. Speight , 3 Dev. 428. Avery vs. Ruse, 4 Dev.
554. For this lust leason the judgment must be af
firrm'd. W e regret that result, as we ha v ejust been
informed that there is a private act regulating sales in
Northampton county, and Ihut tbe sbeiiff observed its
provisions in this sale. If so, it is unfortunate that
the act was not stated in this esse; for being a private
act. we cannot judicially notice it, and, indeed, we
have not seen it.
Judgment to be affirmed.
Meeting ol the Stockholders of the
Cciitrul Ituil A Itsinkiii^
Company.
’i'HuiianxT, Apjil 10th, 1845.
The Stockholders of the Central Kail Road and
Banking Company, met in Annual Convention this
day, at 10 o’clock, A. M , at the Exchange in Savun
nah.
On motion of Cspt. Joseph Jones, Dr. Richaud
Wrisi, Mayor nf Savannah, was railed to Ihe Cl air;
William H. Bulloch was requested to act as Secre
tary.
10,724 shares, a majority of the slock, were repre
sented in the person ol their holders, or hy attorney.
The annual Report of the Tresident was read by R.
Iv. Cuy ler, Esq., i’restdcnt of the Company.
The Report ol the Engineer, L. O. Reynolds, Esq.,
was then read by Mr. Cuy ler.
On motion of Dr. Collins, the Reports of the Pres
i-lent and Engineer were accepted.
C*| t. Jones moved that 600 copies he published in
pamphlet foiin for the benefit of the Stockholders,
which motion was agreed to.
Ou motion of Capt. Jotiea, the second Wednesday
in December next, was designated us the day for the
next meeting of the Stockholders.
On motion of Hun, hi. (aruntland, the following res
olution was passed:
Resolved, ‘That ■ Committee be, and they are here
by appointed to examine and report upon the policy of
extending ibe Central Kail Road to the Flint and
Chattahoochee rivers.
Committee named. R. R. Cuylcr, 8. (Jrantland, M.
If. McAllister, Koh’l Collins, and Joseph Jones, Esqrs,
The following communication fiom tbe President of
the Monroe Ka I Road Company, wa* euhrnittcd by
Mr. Cuylcr to tho meeting :
Sitaxhah, (ja., April 10, 1845.
K. 11. Cutlkh, President Central Rail Road and
Bunking Company
Hear S,r—l take leave lo submit to you the follow
ing brief statement ol the progress and condition of
the Monroe Kail Koud, hoping the same may be made
known to your meeting -duy, in o-der that rucli ac
tion may bo had in the premises as may be deemed
advisable.
I he Road is completed for eighty miles above Ma
con, and although at this time in a state of had /ej sir.
such steps have been, and are being made, as will, it
is believed, tender till* distance safe and certain fur t|,
transportation of the travel and freight us another
season.
Os the remaining distance, tbe entile superstructure
has hern laid to the Stale woik, save four miles, for
wln-h half the timber i* ready, and a complete and
entire ronnecton, from Savannah to Ihe Stale work,
could be made in a single month, if we had mean©
wlierew it lx to procure non lor the last fifteen miles of
Road. Tbe whole 101 miles would then be laid with
a good pl.ur bar, exc- pi seveiitren miles, which would
r-quite to be renewed with heavier tails within a short
time.
Tbe condition of the finances of the Company is
such —her debt being £835,000, while her assets, un
der the most favorable aspect, will not exceed £340,
000—that it is impo-sible for tier to make the small
expenditure necessary to complete Ibe wink, winch, if
done in any reasonable lime, must be eflectrd by oilier
means thuti her own. Kt-speniullv, Ac.,
L. N. W HTITLE, i'rrsidenl
Monroe R K. & Banking Company.
Mr. McAllister then offered tbe following resolution,
which was adopted:
Resulvd, That the communication from the Presi
dent of the Monroe Hull Road Company be ielerie-1 to
tbe l’icsideiit ami Directors ot this Company, with the
request that they lake tbe subject under consider slion.
Oil motion of Cupl. Cutter —
Retaind, Thai the I’ipsii'cnt and Directors of tbe
Central Rail Road -and Banking Company be, and
they are hereby autlloiised to issue scrip for rid-s to
ibe Stockholders, to such an extent as, in their judg
ment muy be prudent, mil to exceed one dollar per
.-bate, Tbe scrip not to be tiansferalde, and nut In
extend the privilege beyond the pies nl year. No
second set ip tor ride* shall be issued within the year
upon the same slock.
On motion of Mr. McAllister, the Hireling adjourn
ed to incut at 8 o’clock, I*. M„ to rveeive the report us
tile Committee a| punned under Mr. Crantlund’s reso
lution.
(Signed) R. WAYNE, Chairman.
\V, li. Bulloch, Secretary,
All Jlt-ciius:.
The Stockholder, met, pursuant to adjournment, at
8 o’clock, P. M.
Mr. Cuvier, from the Committee appointed, submit
ted tile follow mg It- port, w hit'll, on motion, was receiv
ed and or. Vied to be referrid to tire Piesideut and
rector* us the Coin; any :
The Committee appointed to consider and report
upon the p I icy ol u Rail Road communication be
twe n the Ccntial R -.l Road and the Flint and Chat
lahunchee Rivers, respectfully I-poll, as tbe result of
their deliberations, Ibe following r>solution :
Risulvtd, That this Committee do recommend la
the Stockholders in ibis Company, the iinpuitance of
making an early move to ctfi-rt ■communication by
Rail Road b-tween tbe Central Rail Ko.-id and the city
of Columbus, or some other point on Ihe Chattahoo
chee Kivei ; ami that the President ami Directors of
Ibis Company do take the necessary steps to enable
them to repotl as to the best tin tins ol eflecling the
dtair-d object; and that when they aie prepaied lo
report, the Piesideut be autlroriz and to call a special
meeting us tbe Stockholder© to receive and consid-r
their leport.
(Signed) R. R. CUTLER,
Jos. JONES,
S. ORAN PL AND,
ROUT. COLLINS.
M. h. mcaluster;
On motion of Capt. Joseph Jo,", the Convention
then adjourned sine die.
R. WAYNE, Chairman
vYm. 11, Bulloch, Secretary.
AN EXTRAORDINARY CASE.
A case was tried before Judge Caldwell wcik li>-
foic last, a! Hillsborough, says the Fayetteville • North
Carohniun,’ which is pci haps as singular in its details
as any that has e-tr been rcco.dtd ; in fact, we aie
inloiiiud by gentlemen of the bar, tliut in an extensive
starch through their musty books ul the law, tiny
coulJ find no precedent, by which unv light could bo
thrown on the practice in such case*.
A little girl, exactly twelve years of age, and de
scribe-! as really b-aut.ful in featbrea, form and figuie
Was arraigned lor the muid-r oi lier father. There
was no one present at the time the deed was dene exj
cept l-vo small children, no compel-lit evidence, und
cunsiqucntiy tireac was no evidence against her but
her own confession*, and the fact of her father bring
lound dead in bis own l ouse, und no one there but
herscl! : and it could not be proved, although exertion
was made to do so, that any person et-e bud he- n there
oil the night of the murder. The father was a diuuk- n
wretch, and (tie mother was known to buve u pura
mou-.to whom suspicion alia-bid, but be ptov> and ch-aia
ly, that he became so intoxicated that the keejer of
1.,e grog shop b-d to | ut him on u horse and send
i bun home. Ou the morning after the u-uider, the
owner ut the house happened to pass near the door,
and discovered the corpse laying there. ‘The man was
laving on the pullet before the fire, with one arm un
der his is-ail, in a sleeping position. ‘The hc-s-1 was sev
ered ns wi ll one hi w with an axe, and the sevend
part had rolled down, exposing the brains and whole
inleiior of the skull, the axe having gone through the
head—through three thicknesses ol the quilt and half
an inch into the fliui ! The owner of the house above
mentioned, immediately summoned the neighbors and
held an inquest over Ihe htuly. The gii| and two
childien being ilu-rc all the tunc. The mother of iho
giil and a son Hi yeara old, had left home Iho evening
before, and staid ull night ut u neighbor* house.
‘The girl iiiimedialeiy confessed tliut she bad killed
him. Her first confession w as, that brr futhei came
home drunk, and beat her wilh a slitk, and told her to
get a knife, be was going to kill himself; but she could
not find u knife. On being usked lo ©how the ©lick
with which he heal hes, after looking about she pick
ed up one that one ot the neighbors had brought; and
on examining her body no bruises weie found, which
showed that that pail us the story was unliue. Bhe
then said that he came home and lay down and (old her
to kill him,and on hei lefusing, he swore he would
kill her if she did not ; that she west and got the axe,
he lay down, hut she still refused to kill him, and ho
swore he woujd kill her, at the same time raising him
self up, as if to get on his feel, and as he raised up
.he said she struck him but Ihe evidence piotes
that the blow u-u.t have hern given when the head
was on Ihe flour, thus provug inoie untruth ori her
part. The variations in her evidence are singular and
excited iruch speculation. They arc the ellecl of a
disturbed and excited stale of mind, produced either
hy f iglit, or an over an inly possibly lo excuse tlia
real murderer, if sin did uot commit the deed herself.
Slie iurihei staled, that having committed the act,
the right made her sick, slid Iu avoid fainting, she
threw u part ol the quilt over the corpse, and went to
bed, tiiai howevei, telling hei younger sister that *ha
hud killed her daddy ; mid the child started up and
went und luy in her lather's arms all night I ‘The mur
deiess slept !
The evidence of medieal gentlemen was, that a
girl of her age and size had nut strength lo strike such
a blow. Tin* leads many to the conclusion* that tbe
1 real murderer is yet undiscovered.
While one can scarcely realize that a child would or
could commil such u Jeod, it is seen on the other hand
that she confessed from the first moment that she did
it, and no entreaties could male Iter alter her statement;
not even Iho loathsome solitude of a dungeon through
night arid tlnough day ; ur the persuasions of her
counsel to disclose Ihe truth if she hud done it; and
their solemn admonitions that Ihe gibbet awaited her
unices die recanted. Nothing could move her.
The Jury reiiied but a few minutes and returned*
verdict of- Not Uuilty.” ‘I lia case has produced
much excitement und s|n-culations. Bhe was released
immediately. ’The heailless mother Irfl town and went
home oft- r the trial was over, and before alto heard tb*
verdict of ilia veidict of the Jury !
Dxxtu of Dh. Milkiim. —The New York paper*
announce tbe dcutb in that city of the Rev. Dr. Nil
nor. Rector of St. (ieorge s Church. Di M. wss fix*
rncrly a member us the Philadelphia bar, and M-pre
rented that city in Congress in 1812. He was m es
teemed divine, a man ol great learning and piety- U°
died suddenly of tin afleetion of the heart, having re
ined to his bed only a low minutes before, in Lie usual
hrullh. We notice that the Doctoi’s lady and daughter
had left New York lor Savannah only a lew days pre
vious to hia demise, on a visit for tho health of the
latter.— Savannah Republican,