
    The Washington and Pittsburg Turnpike Company against Cullen & Crane.
    22Jj£;£$¡of 1817, «reiábought by or a£alnst c°rP°rations/ is not confined corporations. 0f a corpora/¡"heípi-esident, chief officer, cashjel.; treasurer, nor secretary, is not authorised to pealfroman award of arbitrators*
    In Error.
    AN amicable action of covenant, in which .the defendants in error were plaintiffs, and the plaintiffs in error defendants, was entered in the Court of Common Pleas of Aliegheriy county. It was referred under the Act of 20th March, ° J J • 1810, to arbitrators, who made an award in favour of ■ the plaintiffs, on the 1st October, 1821, for eight thousand six bundred and twenty-three dollars fifty-seven cents. On the 13th of the same month, William Lea, as agent of the defendants, entered an appeal, .and Moses Coulter, became bound as surety, in a recognisance,, conditioned “ that the defendants J ’ . . 6 , „ „ prosecute their appeal with effect."
    A motion was made in the Court of Common Pleas to set aside the appeal,for the following reasons : '
    • 1. That the appeal was not entered, nor the oath taken by any of the persons designated by the Act of Assembly, of 22d March, 1817.
    2. That the recognisance was in the usual forth of a recognisance of special bail, and not conditioned for 'the absolute payment of the debt, interest and costs, on the affirmance of the judgment.
    On the argument of the motion to quash the appeal, it appeared that at the' time it was entered, The Washington and Pittsburg Turnpike Road Company had a president, a secretary, and a treasurer duly elected, and performing their functions, and that William Lea held neither of these offices: That William Lea and Moses Coulter, on behalf of the corporation, had made the contract on which this suit was brought: That they,■ together with other members of the board of managers residing in Allegheny county, had the management, control, and superintendánce of that part of the road to which this contract referred: That they had attended t0j ancj con¿ucted the defence of the. corporation before the arbitrators, and that by a resolution of the board of managers, dated 1st October, 1821, they were authorised and instructed to attend to an appeal which the board directed to be entered.
    The president of the corporation, after the expiration of twenty days from the time the award was filed, made the affidavit required by law, which he offered to file at the first .Term after the entry of the appeal. The Court however refused to permit the affidavit to be filed, and quashed the appeal. - • '
    Denny, Forward and Campbell, for the plaintiffs in error,
    argued, that although the 4th section of the Act of 22d March, 1817, Purd. Dig. 98, speaks of appeals by corporationsvgenerally, the whole scope of the law shews, that it was intended to operate on banking institutions alone, which are the only species of corporations expressly mentioned, and which were then, to a great degree, objects of Legislative displeasure, and not on Turnpike Companies, which were highly popular, and in which the State had a deep interest. The Act of Assembly trenches very closely on the limits of the constitution, and should therefore receive a liberal construction in furtherance of justice and trial by jury. The letter of a Statute is often departed, from, in order to avoid great inconveniences, which would result from a strict adherence to.it.- The Act for registering slaves directed an oath to be made before the clerk of the peace, but it was decided, that it might be made before a justice of the peace. Jack v. Eales, 3 Binn. 101. So where - bail wás directed tobe entered before the Prothonotary, the Court held that it might be done before a" commissioner of bail. Jones v. Badger, 5 Binn. 461. On these principles, the general words, all corporations, should be restricted to Banking Companies, which the Legislature had exclusively in view when the Act was passed.
    The recognisance was noted briefly <c for prosecuting the appeal with effect,” which is the usual form. Itm.ust be understood as referring to the absolute payment of the money, and not to the obligations of special bail, which cannot be entered in the case of a corporation. This short mode of noting recognisances, is fully supported by the decisions of this Court; and if it is incorrect, it may bé amended and made what ir was intended to be. Welch et al. v. Vanbebber et al. 4 Yeates. 559.
    The Act of Assembly it is true declares, that the oath for the purpose of instituting an appeal, shall be made by the president or other chief officer of the corporation, and in his absence by the cashier, treasurer or secretary ; but a rigid criticism ought not to be exercised, when it deprives a party of trial by jury. -In this case, the oath was made by a person of all others the most proper ; by an officer of the corporation, specially deputed by the board'of managers to superintend this business, and who was therefore more capable than any one else, of swearing that injustice had been done by the arbitrators. This agent was therefore the principal officer quoad hoc ; and may be regarded in the light of a president pro tempore. Besides, the oath of the president was made and tendered, though not within the twenty days limited by the law, and after the appeal was entered. It ought however to have been received nunc pro tunc. There is quite enough to satisfy the Court that the appeal was not for the purpose of delay, and that is all the law requires.-
    
      Hopkins and D. S. Walker, for the defendants in error.
    The words of the Act of Assembly upon which the questions under consideration depend, embrace all corporations, and the reasons of the Act apply to all. Although Banking Companies are named, they are not referred to exclusively, but always in conjunction with other corporations.; And there are none to which the provisions of the law are more applicable than to Turnpike Companies, because none are more liable to disputes.
    The Act of Assembly having described the classes of persons on whose oath an appeal might be instituted by a corporatjon, they must avail themselves of this privilege in the manner the law directs, or forfeit it. In the case of Thompson v. White, 4 Serg. & Rawle. 137, the mere omission of the word fiimty, was held to vitiate an affidavit on which an appeal was founded, because the law required the appellant to swear that he firmly believed injustice had been done. There is great reason for requiring the oath to be made by the known officers of the corporation. They are responsible who would not perjure themselves; but the same security does not always exist in the case of an agent.
    The President of the Court of Common Pleas was of opinion, that the form of the recognisance taken on this appeal, was usual 'only in cases in the nature of special bail, which decides the question so far as it depends on practice. It must have been intended to be in the nature of a recognisance of special bail only, because, wherever the absolute payment of the money is intended to be the condition, as in the case of security for a stay of execution, it is always so expressed. On this recognisance no recovery could be had.
   The opinion of the Court was delivered by

Tilghman C. J. —

This action was brought by Cullen Es? Crane, the plaintiffs below, against The Washington and Pitts-burg Turnpike Company, who are plaintiffs in error) The cause was submitted to arbitrators, who made an award in favour of the plaintiffs. The defendants appealed from the award, and the Court of Common Pleas quashed the appeal, because not entered according to law. The entry of the appeal was alleged to be defective in two respects — 1st. The recognisance entered into by the defendants and their sureties, for prosecuting the appeal with effect, &c. was not such as the law required. 2d. The oath, that the appeal was not for the purpose of delay, &c. was not made by the proper person. The case depends upon the Act “ relative to suits brought by or against corporations,” passed the 22d March, 181?,” by the 4th section of which it is enacted, “ that in case of appeal, certiorari, or writ of error by any corporation, the oath or affirmation required by law, shall be made by the president or other chief ojjicer of the corporation, or in his absence, by the cashier, treasurer, or secretary, aud when any corporation shall be sued, and shall appeal or take a writ of error, the bail requisite in that case shall be taken absolute for the payment of the debt, interest and costs, on affirmance of the judgment.” The defendants contend, that this Act, although general in its terms, is to be restricted to Banking institutions. But I can see no colour for this restriction. The Act in its title, and all its provisions, extends to all corporations, except in some parts where Banks are particularly mentioned. This circumstance of particular provision as to Banks, is a proof that the Act is not to be restricted to Banks throughout; because there could be no occasion to provide for Banks in particular, if the whole Act had been made for Banks alone. But the inconvenience intended to be remedied by this Act, was common to all corporations. A corporation, being a body which has no actual existence, there was a difficulty in serving process on it. You cannot arrest an imaginary being, you cannot serve a notice on it, you cannot summon it. Hence the necessity of prescribing by positive law, some mode of conducting the proceedings against corporations in general. . It cannot be said, that there was no probability of suits being brought against any corporations but Banks. We have a great number of incorporated Road and Bridge Companies, besides charitable and literary socie* ties without end. Indeed corporations are multiplied and multiplying among us, to a degree which thréatens serious evil. They all contract debts, and of course, there may be occasion to sue them. The difficulty of serving process is common to all, and therefore it was necessary that the remedy should extend to all. And such seems to have been the opinion of the Legislature ; for ón a careful perusal of the Act in question, it appears to me to be general in all its provisions, except those which relate to Banks in particular. I am clearly of opinion, therefore, that all corporations are included.

Let us next consider the manner in which this appeal was entered. The appeal appears to have been entered, and the oath made, by William Lea, agent for the Company. He was neither president, nor chief officer, neither.cashier, treasurer, nor secretary. But he, with some others, had been authorised by a resolution of the board of directors, to superintend that part of the road, respecting which, the contract which is the subject of this suit, was made, and to enter an appeal from the award of the arbitrators. The question seems to be then, whether the will of the Legislature, or the board of directors shall govern. The Act says, that the oath, shall be made by one of certain officers of the corporation. The directors say, that it shall be made by an agent. It is riot one of those cases, in-which there is a necessity for departing from the words of the law, and in-which it may be presumed that a departure is within the meaning- of the law. Nothing can be r , . ., -- i - - ° . more plain than the expressions. . Nothing more easy than a compliance with them. If the president, or other chief officer whatever be his name, be on the spot, let him make the oath ; and in case of his absence, it may be made by the cashier, treasurer, or secretary. It may be supposed, that in these officers the law contemplated some responsibility- — some character, which rendered their oaths worthy of credit. But that might not be the case with an agent. My great objection however to departing from the words of the law, is, that they are extremely clear, no manner of doubt hangs over their construction, and therefore neither the company, nor this Court has á right to alter them. In abiding by them, we have certainty, without inconvenience. In departing from them, we introduce uncertainty, than which there can be no •greater inconvenience. I am of opinion, therefore, that this appeal was not well entered, the oath not having been made by the person prescribed by law. That being the case, it is unnecessary to decide on the form of the recognisance. I am of opinion, that the judgment should be affirmed.

Judgment affirmed.  