20 S.C.L. 571 | S.C. Ct. App. | 1835
That in some instances an action of trespass may be maintained against a corporation, I do not question, though many authors have expressed a contrary opinion. So far as I have been able to examine, this opinion in every instance has been derived from what is said in Brooke, Ab. tit. Corporation, pl. 43, referring to 22 Ass. pl. 67, that an action of trespass will not lie against a corporation aggregate, because capias and exigent, which are the proper process in an action of trespass, do not lie against a corporation. This process is directed only against the person. The leading modern, cases on the subject, in all of which it is very fully examined, are those of Yarborough v. The Bank of England, 16 East, 6; Chesnut Hill Turnpike Company v. -; 4 Serg. & Rawle, 6, and Kiddell v. Proprietors of locks and canals on Merrimack river, 9 Mass. 169. With respect to all of these, it may be observed that they were actions of trespass on the case, and they might, therefore, seem inapplicable to actions of trespass vi et armis. By the ancient common law, there was no process against the person, but only against the property, for all injuries unaccompanied with force. For injuries committed with force, the capias against the person was given, and the exigent process preparatory to outlawry. 3 Black. Com. 281. By various statutes, the same process was allowed
The reason given by Kyd for his opinion, that the action supposes a personal act of which the corporation is incapable in its collective capacity, seems to be rather a verbid one. It is true that a corporation has no hands to commit a trespass; but undoubtedly it may, as a corporation, command a trespass, and he who commands a trespass is deemed in law to be a principal in committing it.
But a distinction has been made with respect to a private corporation, exercising its corporate functions for the benefit of its members, and public corporations, or those instituted for the purposes of government. In Kiddell v. Proprietors of locks and canals on the Merrimack river, before referred to, it is said by Chief Justice Parsons, “ We distinguish between proper aggregate corporations, and the inhabitants of any district, who are, by statute, invested with particular powers without their consent.” These are in the books sometimes called quasi corporations; of this description are counties and hundreds in England. Although quasi corporations are liable to information or indictment, for neglect of a public duty imposed on them
The motion is dismissed.
Not reported.