
    * John Tippets versus Edward Walker, Amos Whittemore, and William Whittemore, Jun.
    When a committee appointed by the directors of a turnpike corporation covenant, under their hands and seals, to pay money to one who contracts to make part of the turnpike, they are personally liable on such covenant
    This action was covenant broken. Upon oyer prayed of the deed declared on, it appeared to be an agreement made between the defendants, a committee appointed by the direction of the Middlesex Turnpike Corporation, to contract for making the turnpike road, or any part of it, on the one part, and the plaintiff on the other part. The plaintiff agrees with the said committee to make a part of the said turnpike there defined, and in the manner there described. And the said committee agree to make the several payments to their plaintiff there mentioned while the work is in execution, and when the same is finished to the acceptance of the directors aforesaid, the committee are to make the remaining payments in such manner, and by such instalments, as are there specified. In witness whereof, the parties interchangeably set their hands and seals. And the names of the defendants are subscribed, and their seals affixed on the one part, and the plaintiff sets his name and seal on the other part.
    The breach assigned was the failure of the defendants in making the payments stipulated to be made to the plaintiff on his finishing that part of the turnpike which he had agreed to make.
    Two issues were joined, which were tried before the Chief Justice at the sittings after the last November term in this county. The first was non est factum, which was found for the plaintiff. On the second issue, the question was whether the plaintiff had finished the turnpike to the acceptance of the directors, which was also found for the plaintiff.
    After the verdicts were returned, the defendants moved in arrest of judgment, on the ground that they are not personally answerable on the covenants in the said deed declared on, because the same was made by them in behalf of the Middlesex Turnpike Corporation, and not for their own account, or with an intent to charge themselves in their own private * capacity. The cause [ * 596 ] stood continued to this term, for the decision of the said motion. And now,
    
      Dana, in support of the motion,
    argued that the defendants are to be considered as public agents, and as acting in a public capacity, and not as individuals.  The intention of the maker must deter mine the construction of a deed. If the defendants did not intend to bind themselves, it is not their deed; and if it is not the deed of the corporation, it is mqrely void. 
    
    
      Bigelow, e contra,
    
    cited and relied upon the case of Appleton vs. Binks, 
       and the cases therein cited, as establishing the principle that where one covenants under his own hand and seal, for the act of another, he is personally bound by his covenant, notwithstanding lie describes himself, in the deed, as covenanting in the character of in agent, or for and in behalf of such other person. And he commented particularly on the concluding sentence of the deed, in which the defendants had described themselves as party to the agreement in the following words: “ In witness whereof, the aforesaid parties have hereunto set their hands and seals,” &c.
    
      
       1 Morgan’s Essays, 143. — 10 Co. 92, 93. — Macbeath vs. Haldimand, 1 Term Rep. 172.— Unwin vs. Wolseley, Ibid. 674. — Brown vs. Austin, in Error, 1 Mass Rep. 208.
    
    
      
      
        Bac. Abr. tit. Leases and Terms for Years. — Frontin vs. Small, 1 Str. 705. — 2 L. Raym. 1419. — 8 Mod. 116. — 9 Co. 77. —2 Caines’s N. Y. Rep. 66. —6 Term Rep. 176.—2 East’s Rep. 142.— 3 Caines’s Rep. 69.— Selwin’s Nisi Prius, 259, 260.— 1 Brown’s Ch. Rep. 101. — 1 Wash. Rep. 199.
    
    
      
       5 East's Rep. 148
    
   The opinion of the Court was delivered by

Parsons, C. J.

When a turnpike corporation is created, it has power to make a road over the land of others, paying the owners for the easement; or they may purchase the soil with the consent of the owners, which, however, is not frequently done. When the road is made, the corporation is entitled to demand and receive a toll of travellers for the use of it, in trust for the members of the corporation, in proportion to their respective shares. The property of every member is a right to receive a proportional part of the toll, which is considered as personal estate, is alienable, and may be seised and sold on execution against him, as his private property.

The right of the corporation seems to be a franchise, a mere incorporeal hereditament; and as no provision is made in [ * 597 J the * act creating it, by which it may be aliened, or taken in execution, it may hereafter, perhaps, require consideration, whether, on a judgment against such a corporation, this franchise can, in any manner, be taken in execution. But if it may, it. will sometimes happen that the right to take toll is not of sufficient value to reimburse the expense of making the turnpike; and the remedy the corporation possess of assessing the shares may be inadequate, their value, on a sale, not being equal to the amount of the assessments ; and as the bodies or private property of the individual members cannot be taken in execution to satisfy a judgment against the corporation, it certainly is a prudent measure, in those who contract to do the labor, to insist on the responsibility of individuals, and not to trust to the corporation for payment. And if any individuals, who are agents for the corporation, or of any officers of it, will voluntarily stipulate with the workmen for their payment, it is certainly reasonable that they should be holden to their contract.

A case of this kind is not like a contract made by an agent for the public, and in the character of an agent, although it may contain an engagement to pay in behalf of the government. For the faith and ability of the state in discharging all contracts made by its agents in its behalf, cannot, in a court of law, be drawn into question.

The decision of this cause must, therefore, depend upon the construction of the deed. If the defendants have, by their deed, personally undertaken to pay, they must be holden. To the agreement the defendants have not (if they had legal authority) put the seal of the directors, or the seal of the corporation; but have put their own seals. It is, therefore, their deed ; and if it be not their cove nant, it is not the covenant of any person or corporation; and the apparent intent of the plaintiff to have his payments secured by a covenant will be defeated.

The defendants do not describe themselves as a committee of the corporation, but of the directors appointed to contract. The cor poration are, therefore, not bound by this contract, unless it gave the directors, its immediate agents, a power to substitute agents under them, by whose contracts it should be bound. But this does not appear; and we cannot presume it without some evi1 * 598 ] dence. The directors are not * a corporation, but the agents of one; and if answerable, are answerable for heir personal contracts as private persons. The contract before us is a contract of some individual persons for others; and if they have bound themselves, they must look to their principals for indemnity.

But they have expressly bound themselves. The agreement is between the plaintiff and Edward Walker and the others, who are described as a committee ; and this committee stipulate that they will make the payments agreed on to the plaintiff, in behalf, not of the corporation, but of the president and directors, who are officers and agents of it.

As they have covenanted to pay in behalf of others, and have not made the payments agreeably to their covenants, their own covenants have been broken ; and they must be answerable to the plaintiff for the damages he has sustained by the breach of them, which the jury have assessed; and judgment must be entered on the verdict, 
      
      
         [Ante, 522. — Ed.]
     