The opinion of the Court mas-pronounced By

The Court have fully considered this subject, and are all perfectly agreed in tbe result, to which, we have arrived, except Me. Justice Royce, who declines saying any thing about it, on account of the situation, in which similar statutes have placed him,, and some of his friends and connexions.

It is important that we ascertain, as correctly as possible, by what rule the legislature intended we should be governed in exercising the powers given by the statute of 1831. The expressions of the statute authorizes the relief sought, if the petitioner is entitled, either legally or in analogy to the principles of law, or, according to the principles of justice and equity. There is no pre-tence of his being legally entitled to this relief. If he were thus entitled, he would bring an action instead of his petition. What is intended by his being entitled to relief by any analogy to the principles of law ? This probably means, that the court should grant the relief sought, if the petitioner makes out such a claim as would be recoverable at law, if the state were liable to an action at law. So if he makes out such a claim as would entitle him to relief in a court of chancery, if the state were liable to a suit in such court, this would entitle him to relief now, according to the principles of justice-and equity. I know not what further than this-*243she legislature could mean. They surely could not mean that we should -do that justice and equity to the petitioner, which would be doing equal injustice, and be the contrary of all equity, as regards the.state.

This claim is founded on a supposed wrongful act of the state, in their legislature’s passing a suspension act in favor of Preston, which, in its result, has occasioned a loss to the petitioner; and the case shows, that this act passed without the consent or knowledge of the petitioner. Similar statutes have, heretofore, been frequent in this state ; and they have been enacted in answer to the petition of some person confined in prison for debt.- And, usually, notice of such petition has been given to the creditors, by personal service, or by a publication in some newspaper, that is circulated among them. Usually, also, the friends of the petitioner have exercised their friendship in aiding his petition, and convincing the legislature of the propriety of granting it. In process of time, these statutes have been decided to be unconstitutional, and void. This was first decided by the circuit court of the United States; and, afterwards, by the Supreme Court of this state.

When Preston applied to the legislature .for his act of suspension, he considered himself as asking a favor. They granted his request, and'enacted the statute in question. They thought they did him a favour by passing the act. They did it without fee or reward. They were all honest, and supposed they were doing what was right. They were as honest and humane, in granting this favor, as Preston was honest and fervent, in his petition for it. He supposed it would be beneficial to him, or he would not have asked for it. The supposed benefit to him was the only motive for their granting it.

Now, we do not know that such a thing was ever heard of since the world began, as that he, who complies with the request of another, and does him a kindness, without fee or reward, was considered liable for any injurious consequences of such kindness. He heard his request; he saw his distress ; he honestly supposed the granting that request would be a kindness. He granted that request. It proved not to be that kindness that was intended and supposed. It proved an injury to him, or his friends. No system of morals, ever published, contains an jntimation that this benevolent donor is holden to make good that injury.

Look at the daily occurrences in life. A man lends his poor neighbor a horse to carry his grain to mill. He expects no reward. In going to mill the horse, for the first time in his life, falls *244under his burden. In falling, he breaks the poor man’s leg; of he becomes terrified and veers, and breaks down another man’s fence; or, while waiting for his grinding, the poor man commits a trespass, which he would not have been there to commit, if be had not borrowed the horse. Is the owner of this horse to be punished for his benevolence, by making good all these damages? No one will pretend this. The cases of cutting trees, stated by counsel, are not so stated as to form a parallel with this. In all those cases, where the counsel set his laborers at work for his benefit, and the injuries happened, which he has stated, he would be liable to make good those injuries. He would be liable, not only Upon principles of justice and equity, but upon principles of law. He set his laborers at work for his benefit. He set them about his own work. He did not tell them to go and commit a trespass ; but to go and labor for him in his ordinary business. As between him and his hired man, the latter was no trespasser. If the owner recovers against this hired man, no law to prevent a contribution among trespassers, will be in the way of this hired man’s recovering an indemnity of his employer.

We may vary this case, and make it more parallel. Take away the circumstance that the counsel set his laborers at work, and told them where to work; take away the circumstance, that he set them at work for his own benefit ; and let him be applied to by a neighbor for licence to cut a particular tree on his land : he grants the licence without expecting any compensation, and both honestly believing the tree to be on his land. The tree is cut, and carried away and used. It turns out, that this tree stood upon another man’s land : the owner sues the man who cut it, and recovers his damages. Would this counsel admit — would any one pretend — that he was liable to remunerate these damages ? Vie believe not. Had he sold the tree, supposing it to be upon his own land, that would have made a different case. So if the legislature had made a grant to Preston of some properly, which it was supposed the state owned, and the state had received from him a compensation for it. It turns out that he can have no benefit from the grant, because the stale did not own the property. In such a case, in analogy to the principles of law, as well as according to the principles of justice and equity, the state ought to refund the money he paid them, and interest upon it. Whether he would be entitled to receive any thing more, for losses connected with his purchase, would depend much upon the question how far he prudently relied upon his grant, till these losses were incur*245red. But, if this grant had been made in good faith, all believing that the state had a right to make the grant of this property, and no .compensation was made or expected for it; if it was a mere gift; no after circumstances of the loss of this property could give Preston the least possible claim against the state for remuneration,either legally, or in analogy to the principles of law, or according to the principles of justice and equity.

The counsel for the petitioner urges, that Preston acted in obedience to a law of the state. This is not a happy expression to describe the true case. When statutes are made to regulate the conduct of citizens, and requiring their. obedience to rules prescribed in those statutes, those, who observe these rules, may talk of obedience to these statutes. But a man who acts for himself, in his own concerns, and governs himself by his own views of prudence, is compelled to no particular course by any statute, but acts under a mere gratuitous grant, made at his request, and for his benefit, which benefit he may try to enjoy, or let it alone, just as suits his convenience. Such a man should not use the word obedience to describe his own actions. His obedience was to his own will, not to any statute ; to a mistaken view of his own interest, not to the requisitions of the state.

What is now said may, also, serve to correct the view presented of a boy, who, in obedience to an indefinite, and, perhaps, an unwise command, commits a mere trespass, and is prosecuted for a thelt. The command and obedience form the whole of the case, thus stated. Preston acted under no command of the legislature ; he exercised no obedience to any such command.

It is urged, as a ground of equity, that the petitioner, the bail of Preston, knew nothing of Preston’s petition, till his difficulty was brought upon him. This circumstance may add to his hardship, as between him and Preston, but gives him no equity as against the state. Preston ought to have let his bail know of his petition, and of his statute, before he departed from the liberties of the prison. But the legislature were under no obligation to give him any notice of either. When he became bail for Preston, he undertook the risk of whatever voluntary act of Preston might operate to charge his bail. The procuring this statute, and acting under it, were as much the voluntary acts of Preston, as would have been the departing from the liberties without such an act. If the petitioner was ignorant of these proceedings, the blame rests alone on Preston, whose duty it was to inform him. He ought not to have departed from the liberties, till he had made.known to his bail the reasons *246why he was about to do it, and obtained the consent of bis bail; . 7 or thereby given his bail an opportunity to discharge himself by a recommitment of his principal, as he might have done by virtue of a general statute.

It is not easy to believe that a remuneration would be thought of, in this case, if an individual were substituted in place of the state. Suppose an individual, having funds in a distant bank, had felt disposed to relieve Preston, and had drawn him a regular draft upon this bank fora sufficient sum to afford him full relief, and had delivered him this as a mere gratuity. Preston receives it thankfully ; and, instead of waiting to get his money and pay up his debt, he is so sure of his money in a few days, that he ventures to depart from the liberties. The bank fails, and the draft becomes of no use ; and the money is collected of the petitioner, as it has now been collected. In the progress of these proceedings, the petitioner was as ignorant of what was doing, as he has now been. Would the petitioner pretend, or any one in his behalf, that he had any sort of claim, even in the lowest grade or kind of equity imaginable, to a remuneration from the benevolent individual who drew the draft ? We presume not. And yet, that benevolent act was, in one sense, the cause of this burden coming upon the petitioner.

Should full effect be given to the reasons, urged in behalf of this petition, the consequences would be alarming. The general assembly are treated as the state in their legislative capacity, and the courts as the state in their judicial capacity. From this view, the state are to be made responsible to every citizen for every injury he may sustain, even collaterally, from every mistake in the legislature, let them act ever so honestly, and with the utmost disinterestedness and liberality. The same argument would apply with equal force to bind the state to make good, to each individual, the loss he may sustain by a wrong decision of the Court. Indeed, this forms one horn of the dilemma in the present case. If the position is tenable, in this case, it will be so in every other, where the body applied to for relief are satisfied, that a wrong decision has been made to the injury of the applicant. But there is a sort of counterpart to this argument, interwoven in the argument itself, while the argument presents all possible equity, that can be found in the one, who is to receive the money, we are led to search for an equitable payer ; some, concerning whom, it will be just and equitable to compel them to pay this money. If the foregoing observations are correct, there is no more equity, that the *247whole state should pay this money, than, that any portion of the inhabitants should pay it; or that the petitioner should bear the burden alone. The hardship may be less, because the whole state is more able to pay. But that, is no tenable ground to ascertain, or regulate, equity. The rich and the poor must be governed by, and enjoy, the same rules of justice and equity.

Upon the whole, we discover no ground to allow this claim,either from legal obligation of the state, or from any analogy to the principles of law, nor according to the principles of justice and equity ; nor, we may add, from any principle of fair deal among men. II it is allow'ed at all, it must be allowed'from a principle of generosity merely. We have no right to allow it from that principle. The legislature could not have intended to give us power to allow claims upon that principle. They have no right to pass a law that would give such power. They have no right to pass a law that would take the money from the people and give it away. If they give at all, they must give as individuals, and that from their own purses ; and not, as legislators, give from the purse of the people.

The judgement of the county court, which disallowed the claim of the petitioner, is affirmed.