
    Reuben Ruby vs. Abyssinian Religious Society of Portland.
    If a mortgagee enter into actual possession before breach of condition, he will be bolden to strict accountability; and cannot recover against the mortgagor in an action of assumpsit, brought after the discharge of the mortgage, for repairs not necessary for the preservation of the estate.
    A corporation is not bound by the declarations or acts of individual members thereof, made or done at a time when they were not acting as the agents of such corporation.
    The action was assurripsit for money paid, laid out and expended, in paying certain debts against the corporation, and in finishing the meeting-hoúse Belonging to the society. It was conceded by the defendants, that the plaintiff had paid debts to the amount of $217,13, and that he had a just claim for that sum¿ The plaintiff proved by witnesses, that he had employed persons to finish the inside of the meeting-house, and had paid for labor and materials $689,58. It did not appear, that the corporation had by vote authorized the plaintiff to finish the house, or by vote had appointed any committee or agents to do the work or cause it to be done. To show an acceptance of the work, and a ratification of his doings, the plaintiff offered to prove acts of members of the corporation, by occupying and enjoying the same house for public worship and other meetings. The counsel for the defendants objected to the admission of any evidence of acts to bind the corporation, other than the votes of the corporation, or acts of its authorized agents. Emery J. presiding at the trial, overruled the objection. The testimony of many witnesses, not very intelligible in some respects, jvas spread upon the report of the case, in relation to the doings of , the plaintiff and of other members of the society, which will be sufficiently understood from the opinion of the Court, as will also the proceedings of the plaintiff under a mortgage from the society to him. The verdict was for the plaintiff for the sum of $944,84, and was to be set aside, if the evidence was improperly admitted, or the charge erroneous.
    
      Daveis and Megquier argued for the defendants,
    and cited 1 Pick. 87; 2 Pick. 505; 5 Pick. 259; 10 Pick. 398; 1 Johns. Ch. R. 385.
    
      Fessenden &/■ Deilois argued for the plaintiff,
    and cited Abbott v. Alermon, 7 Greenl. 118; Hayden v. Madison, ib. 96; 2 Pick. í 145; 14 Mass. 11. 282 ; 17 Mass. R. 479 ; Wyman v. Hook, 2 (Ireenl. 337; Tinkham v. Arnold, 3 Greenl. 120; 7 Cranch, 2:99; Doug. 524; 3 Mass. R. 364 ; 5 Mass. R. 80; ib. 491; 6 .Mass. R. 40; 2 Stark. -Ev. 55; 4 B. & Cr. 575; Angelí & on Cor. 128; 12 Wheat. 64. Amies
    
   Afte'r a continuance for advisement, the opinion of the Court was dravyn up by

Emery J.

The verdict in this case as to $217,13, with inter-? est from the date of the writ, ought upon every principle, to be sustained, if no'thing more were in the case. As to the residue, it is gathered from! the report, that the defendants on the 7th of March, 1831, executed to the plaintiff, a mortgage of the property about which the conl-roversy has arisen to secure the payment of $250 in three years, '■

The plaintiff said it was private property while he had the mortgage ; that the property was his own, and he would do with it as he pleased, nearly three years after the giving of the mortgage ; that he would do .as he pleased with the house, and that the society should not have it if they paid a thousand dollars. He also said, if they would pay the mortgage, he would have nothing more to do with them. He took possession on the 7th of Sept. 1835, under his mortgage tc\ foreclose it.

The mortgage was' discharged on the 25th of November, 1835, and the society took violent possession of the house after the mortgage was discharged.

A motion is made at common law to set aside tile verdict, ay against law and e\ idencc.

It is insisted by the plaintiff, that corporations are bound by the same rules of evidence as individuals; that a corporation may be bound by acts as well as an individual; that the plaintiff went :>a and finished the house ; a dedication was made for the use of tie society; that the vote to take possession, to open and close tlu house, and to rent the pews, amount to a ratification of the doi'«J' ' of Ruby.

The case is a very peculiar one, and every honorable exertion appears to have been made by the counsel on both sides to effect: a healing and soothing cooperation of the parties litigant, andth’ Court have urged it upon the consideration of the parties to ccs i sent to an amicable adjustment, and they are informed that tú w only can bring about an accommodation. We are therefore cu-pelled to do our duty in disposing of the cause.

We can easily conceive, that it may be gratifying to the feel» of the plaintiff and to some members of the society, perhaps ,4o ail to find the house so handsomely finished ; and we cannot \vithhold commendation of the spirit of the plaintiff to improve di»; character of his friends in a religious point of view.

Perhaps the cases of Hayden v. Madison, and Abbott v. Hermon, carry the doctrine of implied responsibility of corporations as far as it should he carried. One was in relation to a school-house in which a school had been kept under the direct: on of a school agent, whoso authority tvas not questioned. The n: bor to obtain payment for building a piece of road. A part ¡vyrnent bad been made without objection, when a portion of the '■ >■'«.! had not been completed as stipulated to be done. An a coo* O’ coo and waiver of objection was deemed by the Court to residí < u fI da act.

The present case presents very strong co c lerc dons of differ-; ence from those cases.

The commencement of the improvement in the meeting-house was not with the expectation of resorting to iff; society.

We cannot admit the principle that a mo?" gagee can take such liberties with property mortgaged to him, ; - ,r.ing that the society should not have the meeting-house, if lb n, paid him a thousand dollars; and yet, after he had undertaker k deal with it as his own private property, and discharged the mortgage, attempt to charge the society upon a principle of their accepting the house thus improved. They had a right to take it. If a mortgagee enter, as he may, before breach of a condition, he is holden to the strictest accountability for the profits. And the mortgagor is not to be holden chargeable in au action of assumpsit for repairs, not necessary to the preservation of the estate. We must consider this objection open. Besides, there has been no deliberate action legally binding the society or engaging them to pay this demand.

For the proceedings oí' the colored people as reported, are not to be taken as the doings of the society, and were inadmissible as evidence for such a purpose.

The verdict must be set aside.  