The opinion of the court was delivered by
Gibson, C. J.
As the cause is to go to another jury, it is necessary to determine all the points; and haply they are not attended with difficulty. The legislature evidently meant to provide for nothing that was not remediable at'the common law; and on the other hand, it was intended that every common law injury should be redressed by the statutory remedy. A corporation then must be let into the benefit of it, or be left without redress; so that taking an artificial person not to be within the letter of the act, it is clearly within the equity of it, and the statutory provision being remedial, is to be extended to cases in equal mischief. Still it has been insisted, that the corporation plaintiff was dissolved, by having omitted to continue the succession to certain offices supposed to be integral parts of its body. These, however, were supplied with officers de facto, which was undoubtedly sufficient to sustain its existence as to strangers. It is now well understood, that the loss of an integral part, works a dissolution only to certain purposes; the corporate franchise being *24suspended, but not extinguished. An entire dissolution, being the consequence of permanent incapacity to restore the deficient part, never happens where the legitimate existence of the part is not indispensible to a valid election, or other means of reproduction: and here it is perfectly clear that a new election might be had. This principle was asserted for satisfactory reasons in Phillips v. Wickham, 1 Paige, 590; and in Slee v. Bloom, 5 Johns. Ch. 366, we have the very case. There a corporation was not dissolved by an omission to elect trustees for more than' two years, the members constituting the integral parts having remained hi esse, and continued in office till others were elected ; and had the rule been otherwise, it was held that a forfeiture of the charter for abuse or neglect of its franchise, must be declared by process and judgment of law, before the corporation can be treated as defunct. Still further it was held, in First Parish, in Sutton v. Cole, 3 Pickering, 245, that the existence of a corporation plaintiff is to be brought in question only by plea in abatement; and .the same view seems to have been taken by a majority of the judges in Monumoi v. Rogers, 1 Mass. R. 159, Certainly the matter must he put in issue by such el plea, or at least one which denies the whole declaration; for pleading over specially to the merits, as was done here, clearly admits the plaintiff’s capacity to sue. On all these, grounds, then, the point of corporate existence was sufficiently established.
The principle involved in the exception, that the verdict is against law and the evidence, though perfectly plain in itself, is more doubtful in respect of its application to the facts. The defendant had-the same right to erect the dam at the particular place, that a proprietor has to erect a dam on his own land; and-if chargeable with no want of attention to its probable effect, is not answerable for consequences which it was impossible to foresee and prevent. Where a loss happens exclusively from an act of Providence, it will not be pretended that it ought-to be borne by him whose superstructure was made the immediate instrument of it. Piad the timbers of this dam been torn from its foundation by the violence of a flood, and carried with irresistible force against the bridge, the defendant could have been made liable but by proof that the timbei’s had been left exposed without proper fastening, during the season of high water, and ice, when such an event was to be expected. It will be seen, therefore, that the concurrence of negligence with the act of Providence, where the mischief is done by flood or storm, is necessary to fix the defendant with liability. I have(found no case illustrative of this principle where the loss was occasioned jby water, but it is plainly established by those in which the agent was fire. For instance, an action oh the case lies oh the custom of the realm, against the master of a house, if a fire, accidentally kindled in it, consume the house or goods of another; and this, though it be kindled without the knowledge of the master, and by a servant, guest, or any one else, who has entered by his consent. 1 Rol. 1. 1. 25. 3 Lev. 359. 1 Salk. *25319. It would be otherwise, however, if the fire were kindled by lightning. In Turbervil v. Stamp, 1 Salk. 13, the distinction is perhaps more intelligibly put. To an action on the custom of the realm, for negligently keeping fire in a close, by which the plaintiff’s grass was burnt in an adjoining close, it was objected that the custom extends only to fire in the house which is within the party’s power : but it was not allowed ; “ for the fire in his field,” it was said, “ is his fire, as well as that in his house; he made it, and must s.ee that it does no harm, p'r answer the damages if it does. Every man must use his own so as not to hurt another ; but if a sudden storm had risen which he could not stop, it was a matter of evidence, and he could have shewn it.” (S. C. Skinner, 681, and Comyn’s Rep. 32.) From motives of sympathy for the unfortunate master of a house in which a fire has originated, actions on the custom are abolished by the stat. 6 Ann, c. 31; but that there was nothing local or peculiar in the custom, is shewn by Clay’s case, (Cro. Eliz. 10,) in which it being mooted whether a man who shoots at a fowl and fires his own house, by which that of his neighbour is consumed, be liable on the custom, it was answered, that he is not, but that he is liable in an action on the case generally, for the injury is the same whether the mischance be by negligence or misadventure. The ground work of the common law principle seems to be, that some degree of negligence is imputable in every case of accidental fire, produced by human means; and it is universally just that a loss shall be borne by him whose'act contributed to it. In the case at bar then, it will be for the jury to inquire whether the defendant used all proper precaution to prevent consequential injury. It would seem the river is 'between five and six hundred, feet in breadth ; that the bridge is supported by three piers; that in the-dam placed between eighty and a hundred feet above it, a chasm was left for the passing of rafts, which directed the volume of the water against the centre pier; and that this chasm was thus left for at least six months during the season of rain and ice when high floods are expected to prevail. It will become a question depending on a due consideration of these facts, whether danger to a pier thus exposed, was not to be apprehended, and whether the agents of the defendant were not bound to inquire into the nature of its foundation, and every circumstance that might conduce to adjust estimate ojjtjjg.risk. It will be worthy of inquiry, too, whether the duration of the exposure was not unnecessary and unreasonable, and whether the construction of the body'of the dam, ought not to have immediately preceded the permanent provision, if any were intended, for the accommodation of those who should prefer to use the bed of the river. Should the defendant be found delinquent in these respects, compensation will be made in damages; the measure of which, however, ought not to be the entire cost of a new pier (the standard assumed by the jury in the present instance) unless the old one should be found altogether worthless. But the evidence is strong to shew that it may last not only many years, but as long as if its foundation had not been *26disturbed, the effect of the current being to fill up the excavation, and rather to repair the injury, than increase it. Concurring then with the judge who tried the cause, that the damages are excessive, we feel ourselves bound to direct another trial.
Judgment reversed and a new trial awarded.