
    Isaac Riddle versus The Proprietors of the Locks and Canals on Merrimack River.
    In an action against the proprietors of a canal, who were bound by their incorporation to construct their canal so deep and wide, that rafts of a certain description could pass through it when the same could pass the river with which it was connected; it was held that they were liable to the owner of a raft of such description, having received toll thereof, for all the damages he sustained in consequence of the canal not being sufficient to pass the raft, without evidence that it could have passed the river.
    An action of trespass upon the case will lie against a corporation aggregate, for neglect of a corporate duty, by which the plaintiff suffers.
    The declaration was in case, “ for that whereas on the tenth day of November last past, there was, and for a long time had been, and still is, a certain canal in Chelmsford, in said county of Middlesex, belonging to the said proprietors, leading from and out of the said Merrimack river, near the head of Patucket falls, so called, in said river, and communicating with the same river below said falls; which same canal then was, for a long time had been, and still is the right of all passengers, with their property, to pass through, paying the toll by law established therefor; and which same canal then was, and still is, the only passage by which rafts, masts, and floats of timber, could, or may, pass securely by or through the said falls ; and whereas, by a certain act or law of this commonwealth, made and passed on the twenty-seventh day of June, in the year of our Lord seventeen hundred and ninety-two, * entitled “An act to incorporate Dudley [*170] Atkins Tyng, Esq., and others, for the purpose of rendering Merrimack river passable ivith boats, rafts, and masts, from the divisional line of New Hampshire and Massachusetts, to the tide-waters of said river, by the name of the proprietors of the locks and canals on Merrimack riverf it is among other things enacted, “ that the said proprietors shall erect, make, and forever maintain, such dams, canals, and locks, and shall so clear the passages of the river aforesaid, from the northerly line of this commonwealth, to the tide waters of said river, as that masts, rafts, and floats of timber, not exceeding twenty-five feet in width, and one hundred feet in length, may pass securely down, and that boats, not drawing more than three feet of water, may pass securely up and down, at all seasons of the year, when the other parts of the said river are passable for the same;” and whereas the plaintiff, on the said tenth of November, at said Chelmsford, was possessed of a certain raft, not exceeding twenty-five feet in width, and one hundred feet in length, lying near the head of said canal, and with which he was then and there desirous to pass through the same canal, and for the passage of which he then and there paid the toll, by law due and payable to the said proprietors. And the plaintiff avers that the other parts of the river were, on the said tenth day of November last, passable for the same raft, viz. at said Chelmsford.; yet the said proprietors, in no wise ignorant of the premises, but unmindful of their duty in this behalf, on the said tenth day of November, and for a long time before, did omit to open, and dig the same canal of a depth sufficient for boats, rafts, masts, and floats of timber, to pass and float thereon as aforesaid; and did permit the same canal to remain in a ruinous and decayed state, and out of repair, and the passage thereof to become and remain choked, and filled up, and impassable, viz. at Chelmsford aforesaid, whereby the said raft of the plaintiff then and there, in passing through the same canal, became set, grounded, *and [ * 171 ] stuck fast, in the same canal, in such manner that the same could neither be moved up nor down the same canal; by reason whereof the same raft was greatly damnified and injured, and the plaintiff put to great cost, expense, and trouble, in endeavoring to force the same raft through the said canal; and was delayed and hindered for a long time, viz. for the space of twenty days, and was all that time put to great expense in the support of himself, his laborers, men, and servants; all which is to the damage of the plaintiff, as he saith, the sum of five hundred dollars.”
    The action was tried upon the general issue, at the sittings after October term, 1808, before Parker, J., who reported that the plaintiff proved at the trial, that in November, 1805, he was proceeding down Merrimack river, with a raft of lumber, not exceeding in dimensions those described in the act, by which the defendants were incorporated; that he paid to the toll-gatherer of the said proprietors the toll prescribed, by the same act, for a passage through the said canal; that the raft, having entered the canal about half its length, grounded, and could not be got through; but that the plaintiff was obliged to break up the raft, and transport by land a considerable part of it over the carrying-place. This was owing to obstructions in the canal, or want of water, because it was not dug sufficiently deep. The plaintiff left the raft in the canal, and returned home with his men, for the purpose of waiting until there should be sufficient water to remove his raft; and while he was gone, a storm happened, which occasioned the loss of a quantity of wood, which the jury were directed to estimate in the damages. Several witnesses, accustomed to rafting in that river, testified that at this time there was sufficient water below, to have carried the raft down to the tide-waters. Others swore that they believed there was not water enough to carry the raft over Hunt’s falls. The judge directed the jury that it was immaterial what the state of the falls below was; that it was the duty of the proprietors [ * 172 ] to keep their canal in proper order; and that * the receiving of toll amounted to an undertaking that the canal was passable. The judge also instructed the jury, that they should assess damages for all the loss, damage, and expense, proved to have been the consequence of this misfortune.
    The jury returned a verdict for the plaintiff, and the defendants moved for a new trial, for a misdirection of the judge in matter of law.
    The cause standing for argument, at the last October term in this county, Channing and Stearns, of counsel for the defendants, suggested that, in addition to the motion for a new trial, they should also ask to be heard in arrest of judgment; and the Court directed them first to argue their motion for a new trial.
    
      Channing.
    
    We contend that, upon this declaration and in this form of action, the evidence admitted at the trial ought not to have been received ; and that for want of evidence proper to support the action, the defendants were entitled to a verdict. All the damage or injury, that may be proved in this action, must be a direct injury, and not consequential, and must also be included in the declaration. The evidence admitted at the trial went to prove an injury altogether consequential, and that by the choice of the plaintiff himself, and to prove damages not included in the declaration.
    
      All the authorities are express, that, in case of a public nuisance, an individual can have an action only, where he suffers a direct, immediate injury, and not a consequential one; as, for instance, the loss of his horse, or some corporeal hurt to himself, in falling into a ditch in the highway. In Carthew, 194, it is expressly laid down, that where the defendant was bound to keep a ferry, and did not maintain it, and the plaintiff brought his action, it was held he could not support his action upon evidence that he was delayed in prosecuting his business, and thereby injured. Lord Cofce says, if a ditch is dug in the road, so that people cannot pass, but are obliged to go round, &c., no action lies. * And [ * 173 ] in Hubert vs. Graves,  where the plaintiff was a timber merchant, and the defendant had laid so much rubbish in the highway that the plaintiff could not get to his lumber-yard, and was obliged to go round in a circuitous and inconvenient way, Lord Kenyon decided that no action lay.
    Now, the declaration in the present case alleges nothing more than that the plaintiff was delayed in getting his raft through the canal. For it may fairly be implied, that, notwithstanding the obstacles, he did get it through. All the inconvenience and labor, which the state of the canal occasioned him, was such as was common to every one, who should attempt to pass it.
    The evidence admitted by the judge did not support any of the allegations in the declaration, but made a totally different case. The declaration states that the raft was fixed immovably, and thereby damnified. Under this allegation the plaintiff proved no immediate injury to his raft. The evidence was, that while the raft was thus fixed, the plaintiff left it; and in his absence a storm happened, which broke the raft, in consequence of which some wood was lost. It was the folly of the plaintiff thus to leave his raft, without any care for its preservation; and where a damage is incurred, by the negligence and folly of the party, he is certainly not entitled to an action for such damage.  Even if the declaration had specially stated such a loss, the jury would not be justified in assessing damages for it.
    The next allegation is, that the plaintiff was put to costs and expense in endeavoring to force the raft through the canal. Under this allegation, the plaintiff was permitted to prove his costs, expense, and labor, in carting his lumber over the carrying-place. There is no consistency between the allegata and frobata.
    
    Ths principle, on which the foregoing objections are founded, is well elucidated in the case of Hullman vs. Bennett. 
       The declaration there was, that the defendant managed anu [*174] steered his vessel with so much negligence, *that he ran foul of the plaintiff’s vessel, and occasioned the injury complained of. The evidence was, that the ships, sailing in different directions, struck each other, and, owing to the anchor of the defendant’s ship negligently hanging low over her bows, the fluke of the anchor broke through the side of the plaintiff’s ship, and occasioned the injury. Lord Ellenborough said that the evidence must correspond with the declaration; and he was of opinion that the cause, to which the declaration ascribed the damage, was not the true one, nor did the injury arise from the negligent navigation of the vessel, but the improper stowing of the anchor; and although the plaintiff might have laid the grievance in the declaration, so as to bring it within the actual cause of the injury, he thought he had not done it here. The verdict was for the defendant ; and on motion in the King’s Bench for a new trial, on the ground of misdirection in the judge, the court refused the rule.
    But we contend for a new trial, not only for the admission of improper evidence, but also for the direction of the judge to the jury, to reject the consideration of evidence that was properly admitted.
    The judge instructed the jury, that it was wholly immaterial whether the other parts of the river were passable or not, at the time the plaintiff’s raft entered the canal; and, consequently, if the jury believed the evidence of the plaintiff’s injury, they must find a verdict for him, although the other parts of the river were im passable.
    We make two objections to this direction of the judge.
    1. The plaintiff has expressly averred, in his declaration, that the other parts of the river were passable; and has thus made his right to pass the canal conditional. This right, according to his inducement, and his averments, depends on two things; the payment of toll, and the other parts of the river being passable. As these are both requisite to his right according to the declaration, we might have traversed either of them specially, and such plea would have been good. But the general issue is a special [*175] * traverse of every allegation in the declaration, which is not wholly irrelevant to the complaint. As the plaintiff has made this allegation a part of his title, he is held to prove it. 
    
    
      2. But further, this allegation was necessary; for by the act incorporating the defendants, they are not answerable, unless the other parts of the river were passable at the time the plaintiff’s raft entered the canal; and if this averment had not been made, we should have demurred, on the ground that, without it, the plaintiff would not have shown any cause of action.
    The payment and receipt of the toll formed but one of the conditions, on which the plaintiff’s right to pass the canal rested; the other, and an equally essential one, was that the other parts of the river were passable. Our receiving the toll could amount to nothing more than an implied engagement, that the plaintiff should pass his raft when the river below was passable. Any other engagement would have been idle and useless to him, and wholly beyond the intentions and requisitions of the act of incorporation. It was his duty to wait for such a state of the river. Nothing is of more frequent occurrence, than circumstances like this. One pays for a passage in the mail stage, which is regularly to start at a precise hour. He demands his passage; the stageman waits for the mail; and by this delay the passenger arrives too late, and loses the object of his journey. One buys a ticket for the theatre, but he does not expect admission, until the doors are opened according to the bills. One pays his toll at a bridge, but the draw is raised, and he is detained an hour, by which he loses the purchase of an estate at auction. In all these, and a thousand other cases, the payment of money conveys no immediate right, but a right according to the contract. And what was the contract in the case at bar? that the raft should pass, when the other parts of the river were passable. The time will be rendered certain by the event, although at the time of the contract it is uncertain. If we * should [ * 176 j suppose, then, that the other passages of the river were passable on the first of December, the contract was that the raft should pass on that-day. Such is the language of the plaintiff’s declaration; such is the language of the law; and such, therefore, we apprehend, must be the language of the Court.
    But we contend further that the plaintiff is not entitled to any action. The persons incorporated were under no obligation to make a canal. If they neglected it for a limited period, the grant was vacated. If they did make it, as its existence is not pretended to be a nuisance, or in any way to injure the public, for which an advantage was due to the public, there is no claim of the public upon them. And as they have no right to insist on any person’s using the canal, the obligation, if there be any, is not reciprocal.
    The act of incorporation contains a proviso, that all the grants therein are to be void, unless the corporation complete the canal by a certain period, extended afterwards by an additional act to a second period, long since elapsed. The declaration states that until the 10th of November, 1805, the corporation had omitted and neglected to make, dig, and open the canal. Now, on this averment, the charter is null and void, by the plaintiff’s own showing, and the corporation was dissolved before he commenced his action.
    
      Stearns contended that judgment must be arrested.
    1. Because an action in the present form is not maintainable, against a corporation. At common law no action lies against a corporation for a tort. The distinction is between actions ex contractu and ex delicto. The former are maintainable by or against a corporation ; the latter lies for a corporation, but not against it.
    There is an important distinction between the rights and duties of natural persons and corporations ; and many actions and forms of process, to which individuals are liable, are inapplicable to corporate bodies. Trespass does not lie against them,  nor attachment.  They cannot be outlawed.  They are [ * 177 ] not liable to replevin;  nor can *they be declared against in custodia mareschalli. 
      
       If all the members join in committing a disseisin, the corporation cannot be sued ; and generally, for all wrongs they are to be proceeded against individually.  One reason why trespass does not lie is, that at common law the process was copias, and the plaintiff might proceed to outlawry. But the principal reason is, that judgment against the defendant in trespass, always concluded with a capiatur; and it would be absurd to render such a judgment against a corporation. This objection applies not only to actions of trespass vi et armis, but to all actions of trespass on the case arising ex delicto, where the plea would be, as in this case, not guilty.
    
    The action of trespass on the case, in its origin, was merely an extension of the action of trespass vi et armis. The old writ of trespass being applicable only in a few instances, it was attempted to enlarge its scope, so as to adapt it to every man’s case. And the statute of Westminster, 2, authorizing writs to be framed in consimili casu, afforded a convenient opportunity for extending this remedy. But the ancient form of the writ was still followed. And, during the reign of Edward 3, it was usual to lay the special action, even in cases of negligence and nonfeasance, vi et armis and contra pacem. 
       From the cases of this description, which are numerous in the old books, it is clear that this action would lie only where trespass would, and consequently not against a corporation.
    The modern action on the case for a nuisance was derived, much in the same way, from the old assize of nuisance. And as this remedy did not lie against a corporation, because it could not commit a disseisin, it was held by analogy that the action on the case for a nuisance did not lie.  The rule of the common law seems to be, that all actions arising from torts, which are merely personal, and which would not survive against an executor, do not lie against a corporation. The same reason holds in both cases. Neither the members of a corporation,  nor executors and * administrators,  are liable to copias. And the [*178] original reason for deciding that executors should not be liable to actions of this description, was to protect the person of the executor from the process of copias, and not to prevent the testator’s property being answerable for the injuries committed by him. The maxim of the civil law, actio personalis moritur cum per soná, was adopted long since the law on this subject was established, and is not generally true.
    But if it be said that the reason executors are not liable for the torts committed by their testators is, because none but the wrongdoer is answerable for his personal wrongs and neglects, the same reason applies with equal force to our case. The corporation is made up of a succession of individuals perpetually changing. And if a wrong be committed, the existing members should be personally answerable for it, and not the individuals who happen at a future time to compose the corporation. The reasoning of Lord Mansfield, in the case of Hambly vs. Trott, 
       applies as well to corporations as to executors. “ The form of the action is decisive. The plea is, that the testator is not guilty ; and the issue is to try the guilt of the testator.” For it would be absurd and incongruous to try the guilt of a testator, in an action against his personal representative, because torts are personal, and none but the individuals committing them are liable; it is certainly not less so to try the guilt of a corporation. 
      
    
    2. The injury complained of is in the nature of a public nuisance. If the corporation is obliged to repair, it is in the same way that towns are bound to repair highways. The declaration states that the canal is a common passage; and a common passage is the same as a common highway.  For an injury occasioned by a highway being out of repair, an action of the case does not lie at common law.  Where a common way is not repaired, so that 1 mire my horse, or the like, I shall not have an action [ * 179 J against him who * ought to repair, but it shall be performed by presentment.  A highway being stopped, so that a man is delayed in his journey, and hindered in some important business — this is not a damage, for which case lies. For it must be direct, and not consequential, as, for instance, the loss of a horse, or some corporeal hurt.  Where it is ad commune nocumentum, the plaintiff must show a special and direct damage, or a particular right, or the action will not lie.  In all cases, in which this action has been maintained, there was a particular right, and the action lies without a per quad. 
      
    
    It was said by Powell, J., in Ashby vs. White, 
       that where an indictment would lie, in a case like the present, no action could be maintained; and that the reason, why the court sustained the action of Westbury vs. Powell, 
       was because there was no other remedy.
    It should be observed, that the cases, in which this action has been held to lie, were for an actual obstruction by an individual, being a mere stranger, which is entirely different from an omission of a duty, by a corporation, liable to repair, and proprietors of the way to be repaired. This being the omission of a duty in which the public are interested, the remedy is by indictment, and not by action.
    .The sense of the legislature, expressed in their acts, is often referred to, as explaining the law. All the late turnpike acts provide that the corporation shall be liable to an action, as well as an indictment, for injuries occasioned by defective roads and bridges. If this action lies at common law, the provision was unnecessary. But by making this distinction between turnpikes and canals, the legislature intended a benefit to the latter.
    2. The plaintiff has founded his action on the act of incorporation, which thereby becomes a part of the case. By the provision of the last section of the act, if the corporation shall, for a certain time, neglect to make and complete the canal, the act is to be void, and the corporation created by it dies of course. The plaintiff avers that the * corporation did so neglect. By [ * 180 ] his own showing, then, the act, on which this action is founded, is void, and the declaration is felo de se. The defendants might have alleged this non-compliance with the terms of their charter in their defence.  And as they might have pleaded it a fortiori they may avail themselves of it, when shown by the plaintiff. The acceptance of the charter could not make the defendants liable to suits, until they availed themselves of it, by making and completing their canal. And if, as the plaintiff avers, they have never made it, they are not yet liable, and the judgment must be arrested.
    The action was further continued to this term, and now
    
      W. M. Richardson argued for the plaintiff, in support of the action.
    It was said by the defendants, that trespass on the case does not lie against a corporation, because formerly this action was laid m et armis and contra pacem, and a capiatur was awarded, which could not be against a corporation. But however this might have been in ancient times, the action is never so laid now, nor such a judgment entered.
    As early as the reign of Elizabeth, there was an action on the case against an officer of the Qneen’s Bench for a misfeasance, which was not so laid, and in which judgment was given for the plaintiff, and the defendant in misericordia. 
       It is singular, that case for nonfeasance should ever have been laid m et armis. In Fitzherbert 
       there is the form of a writ of trespass on the case, but no mention of vi et armis or contra pacem. The statute of 5 and 6 W. M., has taken away the fine in all cases, and no notice is ever taken of it in the judgment,  and the objection no longer exists.
    It is no sufficient objection to an action, that no such action was ever brought before.  The reason why no action against a corporation is to be found in the English books, in which the plea was not guilty, unless given by statute, probably is, that corporations were anciently not common, and the necessity did not exist. As they are *now multiplying among us beyond [ * 181 ] all former examples, and as individuals may frequently sustain injuries from their neglect to do what the law has made it their duty to do, there is good reason why this form of action should be maintainable against them, and there is no good reason why it should not.
    It was objected that the plaintiff has sustained no injury, for which an action will lie. It is laid down by Lord Coke, 
       “If any man be disturbed to go in a common way, or if a ditch be made overthwart such way, so as he cannot go, yet he shall not have an action upon the case.” The reason assigned is, “ for avoiding multiplicity of suits.” But if he receive any special damage, not common to others, he may have an action.  The only difficulty seems to be, to determine what amounts to such special damages as will maintain the action. The case of Iveson vs. Moore 
       was for stopping a way, so that customers could not come to the plaintiff’s colliery. The Court of King’s Bench were divided, but it was afterwards settled, by all the justices of the Common Pleas and barons of the Exchequer, that the action well lay. In Hubert vs. Groves, cited for the defendants, the plaintiff was nonsuit, because it appeared, on the face of his declaration, that he had sustained no particular damage. The case of Paine vs. Partridge, cited from Carihew, was decided on the same ground. The case of Hart vs. Basset 
       is strongly in favor of the plaintiff. Indeed, in all the authorities on this subject, there seems to have been little or no diversity of opinion among the judges, as to the general rule which ought to govern in these cases; the only doubt has been, whether, in some of the cases, there was particular damage or not. In the case at bar, the plaintiff has alleged that his raft was injured in consequence of the neglect of the defendants. If the damage done to this raft were not a particular injury to the plaintiff, it would be difficult to imagine a case in which he could sustain a particular injury.
    [ * 182 ] * Another and very singular exception was urged for arresting the judgment in this case. It was said that the corporation no longer exists. It is not easy to reply seriously to this exception.' If they have ceased to exist, it may be inquired, Who demands and receives toll for passing the canal ? Who have authorized the learned counsel to appear in this action, to plead, to argue, and to move in arrest of judgment? If the corporation, there is an end at once to the exception. However the neglect of this corporation to make a canal might be the ground of an informatian to dissolve it, it certainly lies not in the mouths of its members to say it is thereby dissolved, and thus take advantage of their own wrong. It was gravely said, that if this corporation had never made a canal at all, the plaintiff could have had no action. This is true; but it is equally true, that in such a case the plaintiff’s raft could never have been injured. The true construction of the statute is, that in case of neglect the corporation shall cease to derive any advantage from certain parts of the act; not that it is dissolved.
    
      
      
        Co. Lit. 56, a.
      
    
    
      
       1 Esp. Rep. 148.
    
    
      
      
        2 Lev. 196, Virtue vs Bird
      
    
    
      
       5 Esp. Rep. 227.
    
    
      
       Doug. 664, Bristow vs. Wright & Al. — 2 W. Black. 1101, Savage, qui tam) vs Smith.
      
    
    
      
      
        Bro. Corp. 63.-22 Ass 67.
    
    
      
      
        Raym. 152.
    
    
      
       10 Co. 32.
    
    
      
      
        Broionl. 175.
    
    
      
       6 Mod. 183.
    
    
      
      
        Salk. 192
    
    
      
       22 Ass. 41. —42 Edto. 3, 13. — 46 Edw. 3,19, &c
    
    
      
       1 Reeves, Hist. C. L. 345.
    
    
      
      
        Bro. Corp. 43.
    
    
      
      
        Yelv. 53_
    
    
      
      
        Cowp. 377.
    
    
      
      _ (17) See the argument of Sir G. Treby, in the case of Rex vs. The City if London St. Trials, 570.
    
    
      
       4 Mod. 294.
    
    
      
      
        Co. Lit. 56, a. — 1 Esp. Rep. 148.—1 Mall. Mod. Ent. 400, 402.
    
    
      
      
        Per Haydon, J., Bro. Act. sur le case, cites 5 Edw. 4, 3.
    
    
      
      
        Carth. 194. — 3 Mod. Ent. 289, 294. — 1 Salic. 12. — 1 Morgan's Vade Mee-im, "79.
    
    
      
      
        Cro. Eliz. 664. — Com. Rep. 58. — L. Raym. 486, S. C.
    
    
      
      
        Per Holt, C. J., 1 Salk. 16.
    
    
      
       Cited in Cro. Eliz. 654.
    
    
      
       6 Mod. 50
    
    
      
       3 Bro. P. C. 465, Harrison vs. Evans. — 2 Stra. 1155, Bower vs. Hampton. — Uoup. 736, Lowe vs. Walker. — 5 Mass. Rep. 286, Bayley & Al. vs. Taber & Al.
      
    
    
      
      
        Co. Ent. 15, pi. 13. — See, also, Ibid. 9, pi. 8. —11, pi. 8, 9. — 8 Co. Rep. 596.
    
    
      
       N. B. 92.
    
    
      
       1 Salk. 54. — 3 Black. Comm. 399.
    
    
      
      
        Cro.Jac. 478.
    
    
      
      
        Co. Lit. 56. b.
      
    
    
      
       5 Co. Rep. 72, Williams’s case. — Cro. Jac. 446, 491. -.-9 Co. 113.
    
    
      
       1 L. Raym. 486. — 1 Salk. 15. S. C.
    
    
      
      
        T. Jon. 157. — Carth. 85. S. C
    
   The action was continued nisi, and at the November term in Suffolk, the opinion of the Court was delivered by

Parsons, C. J.

(after a brief recital of the declaration.) The cause was tried on the general issue, and a verdict was found for the plaintiff agreeably to the judge’s direction.

The defendants have moved for a new trial for the misdirection of the judge in a matter of law; and they have also moved in arrest of judgment for the insufficiency of the declaration.

It appearing from the judge’s report, that while the raft remained stuck fast in the canal, a storm came, by which some wood, forming part of the raft, was lost, and some witnesses swore that there was water enough in the river for the raft to pass to the tide waters, but others swore that there was not water enough for the raft to pass over Hunt’s falls, — the judge directed the jury that they should give *in damages the value of the [ * 183 ] wood lost, and that the receipt of the toll was sufficient evidence against the proprietors, that the water was sufficient for the raft to pass.

The defendants have urged, that the wood lost ought not to be estimated in assessing the damages, for two reasons.

1. That the loss of the wood is not alleged as any part of the damages. This objection, we think, ought not to prevail. The allegation is, that by the sticking fast of the raft it was greatly damaged and injured. But a raft may be injured, not only by being broken, but also by a loss of a part of the materials of which it is composed. The allegation is therefore sufficient.

2. That the loss of the wood was owing to the plaintiff’s own neglect. If this were true, he certainly ought not to have recovered damages for that loss. The defendants have cited the case of Virtue vs. Bird, as supporting this objection. There the plaintiff had contracted with the defendant to haul a load of wood to T. and there deliver it at some convenient place, which the defendant should appoint. The plaintiff complained that through the neglect of the defendant to appoint a place, bis cattle remained so long as to be greatly injured. But the action did not lie, because the defendant might have unharnessed his cattle, or might have laid the timber m any convenient place he thought proper. But, in the present case, what relief was in the plaintiff’s power, which he improperly neglected ? Ought he, when his raft was aground, to have taken his lumber on shore, and have abandoned his attempt to pass the canal ? Or might he not have prudently waited for more water to enable him to pass ? In our opinion, his conduct was prudent, not only as it regarded his own interest, but also the interest of the proprietors ; as the expense of transporting the whole contents of the raft by land to the bottom of the falls must have been considerable. However, while prudently waiting, a storm came, by which the wood was lost. This misfortune must fall on the defendants; as it did not arise from the imprudent neglect of the plaintiff.

[ * 184 ] *It is also objected, that the plaintiff ought to have been holden strictly to prove, that the other parts of the river were passable for his raft, notwithstanding the defendants had received the toll. But we are of opinion that, when the defendants received a toll, which they could not lawfully receive unless the other parts of the river had been passable for this raft, they shall not be admitted to allege any illegality of their own in their own defence.

Notwithstanding the general duty of the proprietors to render the river navigable for these rafts, and for boats from the northerly line of the state, to the head of the tide over Patucket and Wickasic falls, and also over Hunt’s. Varnum’s, and other falls; yet it also appears, that if the proprietors neglected for a certain time to make the locks and canals over Patucket and Wickasic falls, their powers as to these falls were vacated; while their powers as to those other falls remained. So if the other falls were not made navigable at a certain time, their powers respecting them failed, and their other powers remained.

Now, we cannot presume that any of these powers had become void without evidence. The objection, therefore, that Hunt’s falls were not passable, is immaterial; for it was the duty of the proprietors to keep Hunt’s falls navigable. Neither of the objections to the verdict can therefore prevail.

We now come to the motion in arrest of judgment, which has been made on two grounds.

The first is, that it is not the duty of the defendants to keep the canal in repair, sufficient for the passage of rafts and boats of the description mentioned in the declaration. This ground is endeavored to be maintained on the supposition that the powers granted to the corporation were a privilege, which might be waived or exercised at its discretion. But we think this supposition is not correct. When the act of incorporation first passed, it was optional with the proprietors, whether they would or would not take the benefit of it; but after they had made their * election, [ * 185 J by executing the powers granted and claiming the toll, then the duties imposed by the tenth section, to make the canals, &c., attached ; from which they cannot be discharged, but by a seizure of the franchise into the hands of the government, or by a repeal of the act with their assent.

But further to maintain this ground, the defendants have argued that, from the plaintiff’s own showing, it is not the duty of the corporation to keep this canal in repair. By the statutes relating to this subject, if the corporation did not open this canal in seven years, for the passage of rafts and boats, then their powers as to this canal ceased. Now, the plaintiff alleges, say the defendants, that when the injury complained of happened, which was more than seven years from the passing of the statutes, the proprietors had then, and for a long time before, neglected to open and dig this canal.

If we were obliged to adopt the construction of the plaintiff’s allegation, on which the defendants insist, the objection ought to prevail. But attending to other parts of the declaration, we find it averred that this canal belonged to the proprietors, and that they, unmindful of their duty, neglected to open and dig the same of a sufficient depth, and permitted it to remain in a decayed state, and out of repair, and the passage to become and remain choked and filled up. We are now considering the declaration after a verdict; and the fair construction of this allegation is, not that they never opened and dug the canal sufficiently, but that they neglected to open it by digging and removing the collection of matters, which choked it and obstructed the passage. We are, therefore, satisfied that the motion in arrest cannot prevail on the ground we have been considering.

The other ground is, that no action lies against a corporation for a breach of its duty, by any person specially injured by the breach ; and that the only remedy is by information or indictment. This point has been argued by the * defendants’ counsel [ * 186 ] with much ability; and has had all the attention we could give it, in the short time the constitution of this Court has allowed us.

The argument, when compressed, is, that corporations having only a legal, and not a natural body, no capiatur lies against them ; that in all actions of trespass and trespass on the case, where the general issue is not guilty, if judgment be against the defendant, a part of the judgment at common law is an entry of a capiatur ; that, therefore, no such actions lie against a corporation at common law ; and the statute, taking away the necessity of the entry of a capiatur, does not authorize an action which did not lie before.

That a process to take the body of a corporation does not lie, is certainly true ; but the defendants must show that in all actions of trespass, a capiatur against the defendant may, from the nature of the action, be entered. In 21 Edw. 4, 7, 12, 27, 67, it is holden that a corporation cannot be beaten, nor beat, nor commit treason or felony, nor be imprisoned for a disseisin with force, nor be outlawed, nor a copias in debt be awarded against them. These principles result from the nature of an aggregate corporation.

But the defendants have relied on an opinion of Thorp, J., in 22 Ass. pl. 67. He there says that trespass does not lie against a cor poration aggregate by its corporate name, for a copias and exigent do not lie against it. That a copias and exigent do not lie against a corporation, is evident; but that no action of trespass lies, is questionable. For it is agreed that a corporation may be fined on indictment, and the fine levied by distress ; and why may not a corporation be amerced, and the amercement collected in the same manner ? This has led us to look into the ancient law on this subject ; and we find Thorp’s opinion overruled as to certain trespasses. In 31 Ass.pl. 19, a corporation are holden answerable in assize as a disseisor with force. In 8 H. 6, 1, 14,6, an aggregate [ * 187 ] corporation was holden answerable * in trespass for dis-training the plaintiff’s cattle, until he paid a toll which he was not bound to pay. Several other cases are mentioned in Theloal’s Dig. lib. 4, c. 13, as trespass against a corporation for disturbing the plaintiff in the profits of his liberties ; or for disturbing him in holding a leet. It is therefore very clear, from the examination of the old books, that some actions of trespass might, at common law, be maintained against aggregate corporations. And, as in these actions no capiatur could be entered, the omission of this entry can be no objection to actions of trespass on the case. The foundation of the defendants’ argument seems to fail them.

Let us now leave the ancient cases, and resort to the maxims of the common law, which are founded in good sense and substantial justice. It is one of these maxims, that a man specially injured by the breach of duty in another, shall have his remedy by action. If the breach of duty be by an individual, there is no question ; and why should a corporation, receiving its corporate powers and obliged by its corporate duties with its own consent, be an exception, when it has, or must be supposed to have, an equivalent for its consent'

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 some times called quasi corporations. Of this description are counties and hundreds, in England; and counties, towns, &c., in this state. Although quasi corporations are liable to information or indictment, for a neglect of a public duty imposed on them by law: yet it is settled in the case of Russel Al. vs. Inhabitants of the County of Devon, that no private action can be maintained against them for a breach of their corporate duty, unless such action be given by statute. 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 rendered against the corporation.

This burden *the common law will not impose, but in [ * 188 J cases where the statute is an authority, to which every man must be considered as assenting. But in regular corporations, which have, or are supposed to have, a corporate fund, this reason does not apply.

Among the modern cases, there is one which seems in its principles to apply directly to the case before us. It is the case of The Mayor of Lynn, in error, vs. Turner. Turner sued the corporation of Lynn Regis for not repairing and cleansing a certain creek, in which the tide ebbed and flowed, as from time imrnemo rial they had been used, by which he lost the use of his navigation. The declaration contained a number of counts, in one of which the special damage alleged was that the plaintiff was obliged to carry his corn round about. At the Common Pleas, judgment on nil dicit was rendered on all the counts. For the plaintiff in error it was argued, that the creek, as described, was a highway; and as in one of the counts no special damage was alleged, the action did not lie. But Lord Mansfield and the court said that a creek, in which the tide ebbed and flowed, was not necessarily a highway; that the corporation were bound by prescription, and it might be the very condition or terms of -their charter. And the judgment was affirmed. By this decision it is settled that case will lie against a corporation for neglect of a corporate duty, by which the plaintiff suffers. How far a special damage must be alleged, we need not now decide.

For the proprietors, in support of their motion, a reference was made to the several statutes creating our turnpike corporations, in which an action is given to any person specially injured by a neglect in repairing the road. This provision was cumulative, and introduced ex majori cautela by the framers of the bills, and is no objection to our present construction of the law.

There appears to us, upon the whole, no sufficient ground to sta> judgment; and, as the exceptions to the verdict cannot prevail, the plaintiff must have judgment,

Judgment on the verdict. 
      
       2 D. & E. 667.
     
      
      
        Cowp. 86.
     
      
      
         [Vide Yarborough & Al. vs. The Gov. and Comp. of Bank of England, 16 East, 6 — Chestnut Hill Corp. vs. Rutter, A Searj. & R. 6. — Townsend vs. Susquehannah Turnpike Corp., 6 Johns. 90. — Angell & Ames, 220. — Sed vide Glover, 96. — Brownlow, 175. —Ed
     