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regulations concerning the poor, and it was enacted, for the redress of the mischiefs intended to be remedied, a work-house should be erected in Middlesex, this statute was holden to be a public statute, because it concerned the king's person and the public peace; that a stop should be put to such mischiefs : and the clause for erecting a work-house was holden to be public, because it referred to the mischiefs mentioned in the preamble ; a remedy was thereby provided for such mischiefs in the county of Middlesex.(a)
§ 807. In Jones v. A.xen,(b) in an action of debt on a bond, the defendant plead the statute 22 and 23 Car. 2, c. 20, for discharge of poor prisoners. On demurrer it was objected, that the statute should have been pleaded, as it did not extend to all poor prisoners, but to such only as were in prison at the time mentioned; but it was held a public statute, because all the people of England might be interested as creditors of the prisoners; and it was a charitable act, and ought to receive a favorable construction—and was long and difficult to be pleaded, and poor prisoners could not bear the expense of pleading it specially.
$ 808. The reason why statutes which concern the king are deemed public acts, is, as we have seen, that every subject has an interest in the king or governmental head, who is regarded, and in fact is, the head of the body politic, and consequently every one belonging to that government ought to be sensible of that which affects the crown, just as much as a member of the natural body is of what the head at any time feels or suffers. The same rule, for the same reason, applies with equal force to the government of the United States or to the government of the respective states, and has been adopt
(a) Sid. 209; Rex v. Paulding, Bacon Ab. Stat. F. (6) i Ld. Raymond, 120.
ed and thus applied in this country. A turnpike act incorporating a company, with a clause vesting the road, on a certain event, in the people, is a public act.(a) In the case last cited, Lansing, Chancellor, says: “Amongst the English legal maxims, we find that every statute that concerns the king, and every statute that relates to all the subjects of the realm, are public statutes. All highways, as contradistinguished from private ways, are common to all the people of the state, and concern them generally. A new creation of a highway, or a new modification of an ancient way, as in the case of a turnpike, does not affect the mode of using it generally. It is still a highway, in the preservation of which all citizens are interested. It contributes essentially to their convenience. The toll is merely exactable for its construction, maintenance and repair. In all other respects, the right of using it as a highway is unimpaired. The people of the state, who, in their collective capacity, have succeeded to the right of sovereignty, are also entitled to the reservation after the sums charged on the turnpike are satisfied. These considerations rather incline us to think that this statute ought to be considered as a public act.”
§ 809. In one case(b) it was urged, that there was no public law establishing an office of the Bank of Utica at Canandaigua, and that the act of 10th April, 1815, authorizing the bank to establish an office at Canandaigua, was a private act. The chancellor said: “The act incorporating the Bank of Utica is declared to be a public act, and the action is against this bank. But I am not prepared to admit that a law incorporating a bank, without declaring the law to be a public law, is a private act, which must be recited in every suit against a corpo
(a) Jenkins v. Union Turnpike Co. 1 Caines' Cas. 86. (b) The Bank of Utica v. Smeeds, 3 Cow. R. 684.
ration. These institutions are public in their nature and character, and their operations affect the whole community.” Neither the chancellor or the court did, however, in this case, decide upon the point that this was a public act. It is, however, now provided by statute 2 R. S. 374, sec. 3, in all suits brought by a corporation created by or under any statute of this state, it shall not be necessary to prove, on the trial of the cause, the existence of such corporation, unless the defendant shall have pleaded in abatement or in bar, that the plaintiffs are not a corporation. And it is also provided, in actions by or against any corporation created by or under any law of this state, it shall not be necessary to recite the act or acts of incorporation, or the proceeding by which such corporation was created, or to set forth the substance; but the same may be pleaded by the reciting the title of such act and the date of its passage.(a) In Missouri it has been held, that the act of the legislature incorporating the Bank of Missouri is a public act, and that, although not sigued by the president of the legislative council.(6) In Massachusetts, acts creating public corporations, whether sole or aggregate, are public statutes of which the courts are judicially informed.(C) The act of Virginia incorporating the Bank of Alexandria was held to be a public law.(d)
$ 810. If a private act be recognized as existing by a public statute, in unequivocal language, it thereby makes such private act a public one.(e) Thus in Rogers' case, the defendant had been convicted of uttering, as true,
(a) 2 R. S. 375, sec. 13.
(e) Rogers' case, 2 Greenl. R. 301; Samuel v. Evans, 2 D. & E. 569; Buller's N. P. 224 ; 7 Bacon Abr. Stat. F. note.
certain false and counterfeit bills of the Kennebeck Bank. A new trial was moved, on the ground that the judge allowed to be read in evidence the printed statute incorporating the bank, which, it was contended, was a private act. The court admitted the act was a private one, but said, “It was a principle of law, that if a public statute, in its language, recognizes the existence of a private statute, it thereby made such private act a public one, which courts of justice may afterwards regard as such. The statute of 1821, ch. 143, had in it, certain provisions relative to any incorporated bank within the state, imposing a penalty for not paying bills on demand, and chap. 144 imposed further duties on the several banks of this state, that, according to the principles of law before stated, the courts were bound to take notice that there were banks established and incorporated in the state, all of which, being recognized by the statutes quoted, must be considered acts by a legislature authorized to enact them,--which acts, by such recognition, had become public statutes. That it was well known and admitted, that courts of law and all persons were bound to take notice of public statutes, whether published or not. That by looking at the constitution, they learned that all laws enacted by the legislature of Massachusetts, and in force on 15th March, 1820, should remain, and be in force in this state, until altered or repealed by the legislature of Maine. That the repealing act of 1821 did not repeal any act of Massachusetts incorporating this bank, and hence the printed copy of the act was competent evidence.” § 811. In Samuel v. Evans, the action was debt upon a bail bond. The defence set up was, that the bond was void under the statute 23 Hen. 6, c. 9, because it appeared to be taken after the return of the writ as stated in the condition; and the question was, whether that act was a private one, so that it should have been pleaded. Buller, J. said: “He thought it a general law, for it alludes to all arrests, and every person who is arrested was within the provisions of it, even if the statute of Anne had never passed; but that the point was not now open to consideration; for whatever might have been the law before the statute of Anne, the case of Sarly v. Kirkus(a) removes all doubt. As the court there said, that though the 23 Hen. 6, c. 9, was a private law, yet the statute 4 and 5 Anne, having enabled the sheriff to assign such bond, the court must take notice of the law that enables him to take such bond.” This case, it will be perceived, proceeds upon the same principle above alluded to, and in a more extended sense, to wit, that any recognition of a statute of a private nature as a public act will make such private act a public one, although the public act does not in itself in terms refer to or recite the act, in all that class of cases where the act done is recognized and is of such a nature that it could not exist independent of some statute authorizing it. Such was the case in reference to a bail bond taken by the sheriff.” § 812. Statutes prescribing the limits of counties and towns are public acts. In the case of The Commonwealth v. The Inhabitants of Springfield,(b) the defendants were indicted for not repairing a highway, which it was alleged they ought to repair. On demurrer to the indictment it was objected, that the highway is not alleged either to be in the town of Springfield or in the county of Hampshire. Parsons, Ch. J., said: “The road is described as “leading from Chicopee road, in the town of Springfied, to the town of South Hadley in said county, and it is alleged, that two miles in length of the said road, within the said town of Springfield, was and yet