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.
*308A 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 *309private 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.