"The plaintiff would apply to these municipal or quasi corporations the close principles applicable to private corporations. But inasmuch as they are not, strictly speaking, corporations, but only municipal bodies, without pecuniary funds, it will not do to apply to them literally, and in all cases, the law of corporations.1

"The individual liability of the members of quasi corporations, though not expressly adjudged, was very distinctly recognized in the case of Russell v. The Men of Devon.2 It was alluded to as a known principle in the case of the Attorney-General v. The City of Exeter,3 applicable as well to cities as to hundreds and parishes. That the rated inhabitants of an English parish are considered as the real parties to suits against the parish is now supposed to be well settled; and so it was decided in the case of The King v. The Inhabitants of Woburn, and The King v. The Inhabitants of Hardwick.5 And in support of this principle, reference was made to the form of the proceedings; as that they are entitled 'against the inhabitants,' &c.

"In the State of Massachusetts, from whose early institutions we have borrowed many valuable specimens, the individual responsibility of the inhabitants of towns for town debts has long been established. Distinguished counsel in the case of the Merchants' Bank v. Cook, referring to municipal bodies, say: For a century past the practical construction of the bar has been that, in an action by or against a corporation, a member of the corporation is a party in the suit.' In several other cases in that State the same principle is repeated. In the case of Riddle v. The Proprietors of the Locks and Canals on Merrimack River, Parsons, Ch. J., in an allusion to this private responsibility of corporators remarks: And the sound reason is, that having no corporate fund, and no legal means of obtaining one, each corporator is liable to satisfy any judgment obtained against the corporation.' So in Brewer v. Inhabitants of New Gloucester, the court say: 'As the law provides that, when judgment is recovered against the inhabitants of a town, execution may be levied upon the property of any inhabitant, each inhabitant must be considered as a party.' In the case before referred to of the Merchants' Bank v. Cook,

Parker, Ch. J., expresses the opinion of the court upon this point thus: Towns, parishes, precincts, &c., are but a collection of individuals, with certain corporate powers for political and civil purposes, without any corporate fund, from which a judgment can be satisfied; but each member of the community is liable, in his person and estate, to the execution which may issue against the body; each individual, therefore, may be well thought to be a party to a suit brought against them by their collective name. In regard to banks, turnpikes, and other corporations, the case is different.' The counsel concerned in the case of Mower v. Leicester,1 without contradiction, speak of this practice of subjecting individuals as one of daily occurrence. The law on this subject was very much considered in the case of Chase v. The Merrimack Bank, and was applied and enforced against the members of a territorial parish. The question is,' say the court, whether, on an execution against a town or parish, the body or estate of any inhabitant may be lawfully taken to satisfy it. This question seems to have been settled in the affirmative by a series of decisions, and ought no longer to be considered as an open question.' The State of Maine, when separated from Massachusetts, retained most of its laws and usages, as they had been recognized in the parent State; and, among others, the one in question. In Adams v. Wiscasset Bank,3 Mellen, Ch. J., says: It is well known that all judgments against quasi corporations may be satisfied out of the property of any individual inhabitant.'

"The courts of this State, from a time beyond the memory of any living lawyer, have sanctioned and carried out this usage, as one of common-law obligation; and it has been applied, not to towns only, but also, by legal analogy, to territorial ecclesiastical societies and school districts. The forms of our process against these communities have always corresponded with this view of the law. The writs have issued against the inhabitants of towns, societies, and districts as parties. As early in the history of our jurisprudence as 1805, a statute was enacted authorizing communities, such as towns, societies, &c., to prosecute and defend suits, and for this purpose to appear, either by themselves, agents, or attorneys. If the inhabitants were not then considered as parties individually, and liable to the consequences of judgments against such communities as parties, there would have been a glaring

19 Mass. 247.

219 Pick. 564.

3 1 Greenl. 361.

impropriety in permitting them to appear and defend by themselves; but if parties, such a right was necessary and indispensable. Of course this privilege has been and may be exercised.1

"Our statute providing for the collection of taxes enacts that the treasurer of the State shall direct his warrant to the collectors of the State tax in the several towns. If neither this nor the further proceedings against the collectors and the selectmen authorized by the statute shall enforce the collection of the tax, the law directs that then the treasurer shall issue his execution against the inhabitants of such town. Such an execution may be levied upon the estate of the inhabitants; and this provision of the law was not considered as introducing a new principle, or enforcing a novel remedy, but as being only in conformity with the wellknown usage in other cases. The levy of an execution under this statute produced the case of Beers v. Botsford.2 There the execution, which had been issued against the town of Newtown by the treasurer of the State, had been levied upon the property of the plaintiff, an inhabitant of that town, and he had thus been compelled to pay the balance of a State tax due from the town. He sued the town of Newtown for the recovery of the money so paid by him. The most distinguished professional gentlemen in the State were engaged as counsel in that case; and it did not occur, either to them or to the court, that the plaintiff's property had been taken without right: on the contrary, the case proceeded throughout on the conceded principle of our common law, that the levy was properly made upon the estate of the plaintiff. And without this the plaintiff could not have recovered of the town, but must have resorted to his action against the officer for his illegal and void levy. In Fuller v. Hampton,3 Peters, J., remarked that, if costs are recovered against a town, the writ of execution to collect them must have been issued against the property of the inhabitants of the town; and this is the invariable practice. The case of Atwater v. Woodbridge also grew out of this ancient usage. The ecclesiastical society of Bethany had been taxed by the town of Woodbridge for its moneys at interest, and the warrant for the collection of the tax had been levied upon the property of the plaintiff, and the tax had thus been collected of him, who was an inhabitant of the located society of Bethany.

Brainerd, J., who drew up the

-

This

opinion of the court, referring to this proceeding, said: practice, with regard to towns, has prevailed in New England, so far as I have been able to investigate the subject, from an early period, from its first settlement, a practice brought by our forefathers from England, which had there obtained in corporations similar to the towns incorporated in New England.' It will here be seen that the principle is considered as applicable to territorial societies as to towns, because the object to be obtained was the same in both, that the town or society should be brought to a sense of duty, and make provision for payment and indemnity'; a very good reason, and very applicable to the case we are considering.

6

6

"The law on this subject was more distinctly brought out and considered by this court in the late case of McCloud v. Selby,1 in which this well-known practice, as it had been applied to towns and ecclesiastical societies, was extended and sanctioned as to school districts; else it would be breaking in upon the analogies of the law.' They are communities for different purposes, but essentially of the same character.' And no doubt can remain, since the decision of this case, but that the real principle, in all of the cases on this subject, has been, and is, that the inhabitants of quasi corporations are parties individually, as well as in their corporate capacities, to all the actions in which the corporation is a party. And to the same effect is the language of the elementary writers."

"2

So far as this rule rests upon the reason that these organizations have no common fund, and that no other mode exists by which demands against them can be enforced, it cannot be considered applicable in those States where express provision is made by law for compulsory taxation to satisfy any judgment recovered against the corporate body,-the duty being imposed upon some officer, who may be compelled by mandamus to perform it. Nor has any usage, so far as we are aware, grown up in any of the newer States, like that which had so early an origin in New Eng

2

110 Conn. 390 - 395.

Beardsley v. Smith, 16 Conn. 375, citing 2 Kent, 221; Angell and Ames on Corp. 374; 1 Swift's Dig. 72, 794; 5 Dane's Abr. 158. It was held constitutional in this case to extend the same principle to incorporated cities; and an act of the legislature permitting the enforcement of city debts in the same mode was sustained. For a more recent case in Massachusetts than these cited, see Gaskill v. Dudley, 6 Met. 551.

land. More just, convenient, and inexpensive modes of enforcing such demands have been established by statute, and the rules concerning them are conformed more closely to those which are established for other corporations.

On the other hand, it is settled that these corporations are not liable to a private action, at the suit of a party injured by a neglect of its officers to perform a corporate duty, unless such action is given by statute. This doctrine has been frequently applied where suits have been brought against towns, or the highway officers of towns, to recover for damages sustained in consequence of defects in the public ways. The common law gives no such action, and it is therefore not sustainable at all, unless given by statute. A distinction is made between those corporations which are created for their own benefit, or receive special grants of power for the private convenience and benefit of the corporators, and the incorporated inhabitants of a district, who are by statute invested with particular powers, without their consent. In the latter case, the State may impose corporate duties, and compel their performance, under penalties; but the corporators, who are made such whether they will or no, cannot be considered in the light of persons who have voluntarily, and for a consideration, assumed obligations, so as to owe a duty to every person interested in the performance.1

The reason which exempts these public bodies from liability to private actions, based upon neglect to perform public duty, does not apply to villages, boroughs, and cities, which accept special

1 Mower v. Leicester, 9 Mass. 250; Bartlett v. Crozier, 17 Johns. 439; Farnum v. Concord, 2 N. H. 392; Adams v. Wiscasset Bank, 1 Greenl. 361; Baxter v. Winooski Turnpike, 22 Vt. 123; Chidsey v. Canton, 17 Conn. 475; Commissioners of Highways v. Martin, 4 Mich. 557; Morey v. Newfane, 8 Barb. 645; Lorillard v. Monroe, 11 N. Y. 392; Galen v. Clyde and Rose Plank Road Co., 27 Barb. 543. These cases follow the leading English case of Russell v. Men of Devon, 2 T. R. 667. In the very carefully considered case of Eastman v. Meredith, 36 N. H. 284, it was decided, on the principle above stated, that if a building erected by a town for a town-house is so imperfectly constructed that the flooring gives way at the annual town-meeting, and an inhabitant and legal voter, in attendance on the meeting, receives thereby a bodily injury, he cannot maintain an action against the town to recover damages for this injury. The case is carefully distinguished from those where corporations have been held liable for the negligent use of their own property by means of which others are injured. The familiar maxim that one shall so use his own as not to injure that which belongs to another is of general application.