
    Nahum Gaskill vs. Silas Dudley.
    An axecution against the inhabitants of a school district may be levied on the property of an individual member of the district 5 and may be so levied, in the first instance, even if there be corporate property of the district, which can be taken and applied towards satisfaction of such execution.
    D. recovered judgment, by default, against a school district, in an action on a contract with the district to build a school house, and levied his execution on the goods of G., a member of the district: G. sued D., in an action of trespass, for so levying on his goods: Held, that G. could not give evidence that D. had not performed his said contract, and therefore ought not to have recovered judgment against tne district.
    Teespass for taking and carrying away 100 cords of wood. Trial in the court of common pleas, before Williams, C. J., who signed a bill of exceptions which contained the following statement : The plaintiff, at the time hereinafter referred to, was an inhabitant of the second school district in Mendon, and had real and personal property taxable therein. At the April term, 1842, of the supreme judicial court in this county, the defendant recovered judgment against the inhabitants of said school district, in an action upon a contract for building them a school house, for $ 1694‘36, debt or damage, and $ 11-44, costs of suit, and took out execution thereon. There was no appearance for the defendants in that action ; and as the present plaintiff was not a party to it, but in the minority of the school district, he claimed the right to prove, and offered to prove, the contract on which the action aforesaid was brought, and the non-performance thereof by said Dudley, (the present defendant,) for the purpose of invalidating said judgment and the proceedings in executing the same. Said contract, and the vote of said district authorizing it to be made, are made part of the case. [See ante, pp. 500, 501.] But the judge ruled that neither this vote and contract, nor the evidence of the non-performance of the contract, could go to the jury.
    It was agreed that the school house was erected on the defendant’s land, and that previously to the levy of his execution above mentioned, he had tendered a deed of the site of the school house to the prudential committee of said district, which was never accepted nor recorded.
    
      The defendant’s judgment aforesaid against the inhabitants of said district was rendered by default; and he delivered the execution, which issued on that judgment, to a deputy sheriff, and directed him to levy the same upon the wood described in the plaintiff’s declaration. The wood was accordingly seized by said deputy, and was sold on said execution, on the 6th of June 1842.
    Before the commencement of the defendant’s said action against the inhabitants of said district, they had made a grant of $1700 for building a school house and for the site thereof; and said sum was assessed upon the polls and estates of said inhabitants, and a part of what had been collected, to wit, $ 250, had been paid into the hands of the building committee. And at the time of the levy of said execution upon the plaintiff’s wood, the district owned said school house, so far as such ownership results from the foregoing facts. But no levy of said execution was made upon any corporate property of the district, and the plaintiff forbade the defendant’s levying his execution upon said wood.
    The defendant put into the case a writ, sued out by Nathan George against the inhabitants of said district, for the purpose of recovering back the tax which he alleged that he had been illegally compelled to pay for the building of said school house. [See ante, pp. 497, 498.] Upon this suit, $600 were attached in the hands of the collector of taxes, as the property of said district.
    Upon these facts the plaintiff contended that the defendant had no right to cause the levy of his execution against the district to be levied on the plaintiff’s private property; and that the defendant was a trespasser for so doing. But the judge ruled otherwise; and, for the purpose of presenting all the questions of law to the court, instructed the jury that the defendant was entitled to a verdict; and the jury returned a verdict for him. The plaintiff alleged exceptions to the rulings ol the judge.
    
      Barton & Hallett, for the plaintiff.
    The district had corporate property, and yet no demand was made on the district or its officers to pay the execution, before it was levied on the plaintiff’s property. This alone made the levy wrongful and a trespass. In Chase v. Merrimack Bank, 19 Pick. 564, the parish had no attachable property within the Commonwealth; which circumstance distinguishes that case from this. Yet a demand was there made on the treasurer of the parish, before the execution was levied on private property. The reason why members of quasi corporations are individually liable for demands on the corporation is, that such corporation is supposed to have no corporate fund, and no legal means of obtaining one. Riddle v. Proprietors of Locks & Canals, 7 Mass. 187. When the reason ceases, the rule no longer exists.
    As the plaintiff had no notice of the defendant’s suit against the district, he should have been permitted to impeach the judgment, and to show that it was collusive. Chase v. Hathaway, 14 Mass. 222. Cushing v. Gore, 15 Mass. 74. White v. Starr, 13 Pick. 381.
    A member of a school district is not personally liable for the debts of the district. By the common law, members of corporations are not individually answerable for the corporate debts. The liability of inhabitants of towns and parishes for demands against the corporate body rests on immemorial usage. 5 Dane Ab. 158. The St. of 1799, c. 51, first gave the right to seize the property of inhabitants of a town that was “ deficient ” in assessing or paying state or county taxes. But the same statute gave a remedy to the person whose property might be so levied upon, against the town, by an action against the town, in which he was to recover the value of such property, with 12 per cent, interest thereon, and costs. Of course, such town has power to raise money, to indemnify such person. 2 App.eton, 178. Has a school district any authority to raise a tax to Reimburse a member whose property has been taken to pay its debts ? No such authority is any where conferred or alluded to in any statute. The power of school districts is anomalous and restricted. Taft v. Wood, 14 Pick. 364. Money corporations are partnerships for gain, and no one can be made a member thereof without his consent. Besides; the Rev. Sts. r. 44. § 22, give members of such corporations, who are held liable for the corporate debts, the means of reimbursing themselves. See Andrews v. Callender, 13 Pick. 484. It is otherwise, in all these respects, in regard to school districts, and the members thereof. Such districts were not recognized as corporate bodies before the St. of 1817, c. 14. But neither in that, nor in the St of 1826, c. 143, nor in the Rev. Sts. c. 23, are they placed on the footing of towns or parishes, as to powers or liabilities. Towns, and not school districts, are made responsible for the execution of the school laws.
    
      Washburn, for the defendant.
    The plaintiff cannot, in this action, try again the defendant’s action against the district. The evidence which he offered was therefore rightly ruled out. Greenl. on Ev. <§> 528. Thatcher v. Gammon, 12 Mass. 268. Homer v. Fish, 1 Pick. 435
    There is the same reason for making the members of school districts liable for the debts of the district, as for making townsmen and parishioners liable for the debts of towns and parishes. Yet the latter are so liable. 5 Dane Ab. 158. Inhabitants of Brewer v. Inhabitants of New Gloucester, 14 Mass. 216. Chase v. Merrimack Bank, 19 Pick. 564. When a new quasi corporation is created, the incidents of similar bodies attach to it. By the common law, anterior to all usage in this Commonwealth, the property of the members of such corporations is liable to be levied on to satisfy an execution against the corporation. Bussell v. Men of Devon, 2 T. R. 667. The very reason why, in that case, an action would not lie against the body, was, that a judgment must be satisfied, if at all, by sale of the property of individual members. But, by the Rev. Sts. c. 23, <§> 57, an action lies against school districts for matters relating to their property or affairs. See also Rev. Sts. c. 90, 16, 22, 42. Anc. Chart. 449. Even before St. 1817, c. 14, such districts were held competent to maintain an action on a contract made with them to build school houses. School District in Bumford v. Wood, 13 Mass. 193.
    This district, in the present case, had no property, except $250, which had been paid to its building committee The school house was not corporate property, because the deed of the land had not been accepted; and the district could not compel the defendant to regard the house as personal property, and sell it on execution. But whether the district had property or not, the defendant had a right to take the property of the individual members. If so, no previous demand of satisfaction, on the district or its officers, was necessary.
   The opinion of the court was made known at October term, 1S44.

Shaw, C. J.

Several questions arise upon these exceptions, besides the main question, to which the attention of the court has been more particularly directed. The first is, whether, in this action, the plaintiff should have been allowed to impeach the judgment rendered in favor of the present defendant, by evidence tending to show that it was erroneous and ought not to have been rendered. The court are of opinion that the judge of the court of common pleas did right in excluding such evidence. This is an action of trespass for taking certain wood, the property of the plaintiff, and the defendant seeks to justify the taking, under a judgment and execution, for the satisfaction of which he insists that the defendant was liable. If the action will lie at all, it would equally well lie against the officer, as a joint or sole trespasser. The admission of this evidence would sanction the principle, that an officer, or persons acting with or under him in the service of an execution, may be charged as trespassers, on evidence going behind the judgment, and showing that, on the merits, the judgment creditor ought not to have recovered; which would be contrary to first principles.

Besides ; every member of a corporation is so far privy in interest in a suit against the corporation, that he is bound by a judgment against it. Brewer v. New Gloucester, 14 Mass. 216 What is the extent of his personal liability under it, is a very different question, depending on rules applicable to the different kinds of corporations.

Another ground of defence taken was, that the school dis tnct had corporate property, on which the execution might have been satisfied, and if the present plaintiff’s property were liable at all, it could not be taken, if there was corporate property, which might be taken, until such corporate property had fiist been taken and applied.

It is very questionable, upon the facts stated, whether there was any corporate property, on which the execution might have been levied; but the decisive answer, we think, is, that if the original defendant (the present plaintiff) was liable at all, it is because all the members of the quasi corporation were sued by their aggregate name, all were liable as parties and original debtors, and the judgment creditor had his election, in the first instance, to levy upon the corporate property, or on the property of one or more of the members of the corporation, as in the case of towns.

This leads to the principal question, whether a judgment creditor, having an execution against a school district, as now constituted by the laws of the Commonwealth, can take the property of the individual inhabitants of such district, to satisfy his execution.

This is an important question, and one, we believe, which has not been directly decided. Indeed, it is comparatively but a few years since school districts have been invested with the functions of corporations, to the extent to which they are now carried by law. This is probably the reason why the question has not arisen before.

The general rule undoubtedly is, that members of corporations are not personally responsible for the satisfaction of judgments recovered against the corporate body. But it has long been held in this Commonwealth, that where the inhabitants of towns are charged by law with the performance of duties, and made liable to a suit therefor, the individual members are liable to the satisfaction of the judgment. The suit seems to have been regarded as an action against the individual persons, sued by a collective name, as a corporation, rather than as a suit against a corporation, strictly so considered. This rule is supposed, by Mr. Dane, to be founded on immemorial usage. 5 Dane Ab 158 This rule was affirmed, and the authorities on which it rests, were fully stated, and the same rule held to apply to parishes, in a recent case. Chase v. Merrimack Bank, 19 Pick. 564.

Taking the rule, then, to be well settled by authority, as it applies to towns and parishes, the question now is, whether it applies to school districts. The cases are strictly analogous. Originally, towns might, and in many instances did, exercise the functions of parishes, by providing for the support and maintenance of public worship, and the erection of houses therefor. If, in that state, a judgment had been rendered against a town, for a debt due from such town, in its parochial capacity, each inhabitant would have been liable for its payment. This consideration, no doubt, was one strong reason why, when the parochial functions of towns were transferred to a distinct body, organized as a parish, the inhabitants and members of such parish should be liable to the same responsibility for its debts as if the organization had remained unchanged. And it appears to us, that the case of inhabitants of school districts is strictly analogous. They are quasi corporations of the same kind, constituted in the same manner, and charged with the same duties, and invested with like powers. It is optional with towns to divide their territory into school districts, or not. They may, if they choose, provide school houses for the town, at its own expense, and contract debts therefor, which, upon judgment and execution obtained against the town, each individual inhabitant would be bound to satisfy. Rev. Sts. c. 23, $ 24. But if, as a matter of convenience, and in pursuance of a power given to towns therefor, they prefer to divide the town into school districts, and the inhabitants of each district are charged with the same duties, in regard to the building, purchase, or hiring of a school house for the district, which would otherwise have devolved on the whole town, why should they not be in like manner liable for the debts oí the district, to the same extent to which they would have been liable, as inhabitants of the town, for a similar debt incurred by the town ? The effect of this provision of law, we think, was simply to make the inhabitants of each district a quasi corporation for a limited and specific purpose, to exercise the same powers as towns, and to the same extent to be liable to the same duties and obligations, as the inhabitants of towns are liable to, in like cases. School districts, so far as they are corporations, are corporations of the same kind as towns, organized for the same purposes, charged with the same duties, and therefore the court are of opinion, that when judgment is recovered against them, the individual inhabitants are liable for the satisfaction of the execution on such judgment, in the same manner as the inhabitants would be for a similar judgment and execution against the town.

Exceptions overruled.  