
    John P. Foote v. The City of Cincinnati, David Griffin and John W. Mason.
    Trespass quare clausum fregit will not lie against a corporation aggregate.
    Where several are sued jointly for a tort, which in point of law and fact •could not be joint, a demurrer is good for all.
    Trespass quare clausum eregit. From Hamilton County. 'The plaintiff declares against the defendants jointly, for that they broke and entered his premises and pulled down and destroyed several building?, to his damage seven thousand dollars. To this the defendants demur generally, which is joined.
    J. 0. Wright, T. Walker, and E. Woodruee, for the defendants,
    ■insist, this is a misjoinder, as a corporation can not commit a trespass with force and arms, nor be sued in trespass. They cited 8 East. *230 ; 1 Ch. PI. 66 ; 1 Blk. Com. 503. The case of Orr v. Bk, U. S. and others, 1 Ohio, 37. expressly decides, that a corporation can ■not commit an assault and battery, nor be joined in a suit against individuals for such trespass. The authorities show the same rule, appli•cable to all personal injuries or those resulting from force, “for a corporation 'can neither beat nor be beaten in its body politic.” A trespass with force supposes a direct personal agency in the act which a ■corporation can not exert.
    B. Storer and 0. Fox, for the plaintiff,
    made two points: 1. That ■trespass, vi et armis, can be sustained against a corporation. 2. That ,a corporation may be joined in such suit with individuals. They contend there is nothing in the nature or constitution of corporations-which renders a remedy appropriate against individuals inapplicable to them. If a corporation can order and direct its servants to commit trespass with force, it should, like individuals, be answerable for the-injury of the servant so committed. Within the scope of their corporate powers the law considers corporations as individuals, and it is in accordance with the spirit of modern decisions and the policy of the law to assimilate corporations as much as possible to individuals, to-govern them by the same rules, and subject them to the same remedies. By the common law some actions of tresspass are permitted against corporations. The case of Yarboro v. Bk. of England, 6 East. 9, and the cases there cited are precisely similar to this. It is said, to be sure, a corporation could only commit trespass by writing under seal, Vin. Ab. K. 22. So it was formerly held of their power to contract, but that is now done away with, and they contract as individuals. The case of Orr v. Bk. U. S. and others, is expressly limited to the case of' assault and battery. The court say, “ it is not intended, nor is it necessary, to assume the principle, that trespass will not lie in any case against a corporation, or that individuals may not be joined in the-same suit with a corporation, for a tort which they may jointly commit.” In a late Pennsylvania case, 4 Serg. & R. 17, the court held,, that where persons employed by corporations commit injury, the corporation should “ be responsible in the same manner that an individual, is responsible for the act of his servant. The act of the agent is the act of the principal. There is no solid ground of distinction between-contracts and torts.” They cite also, 7 Cow. 484; 6 Peters, 444; Bro. Corp. 48 ; 7 Mass. 186 ; Com. Dig. Action on the case A.
    The second proposition is but a corollary of che first. The old objection to the joinder because of diversity of process, has no application here, as now the parties are brought into court by the-same, and not a different writ, and the old rule of law, ratione cessante, may be here appropriately applied. The case of Goodloe v. The City, 5 Ohio, 513, virtually decides this case for the plaintiff.
   By the Court,

Grtmke, Judge.

The plaintiff in this case declares-in trespass, against the city of Cincinnati and two individuals, charging them jointly with having broken and entered upon his premises and prostrated and destroyed several buildings, etc. To this is general-demurrer. This is the first instance, if we except- some very old cases which are alluded to in Yarboro v. The Bank of England. 16 East. 6, in which this action has been attempted to be supported against a corporation : and to be sure, if the denial of the suit would draw after it, as a necessary consequence, the denial of any effectual remedy, that circumstance would afford a powerful argument why it should be sustained. But that consequence will not follow. Another remedy more appropriate and equally effectual will lie ; and the question is, whether a form of action which presupposes the injury to have been committed with force,' can be resorted to ?

In Yarboro v. The Bank of England, it was held that trover would lie against a corporation : and certainly it is not true, as has sometimes been said, that no suit at common law can be sustained against ■a corporation for a tort. The case of Argent v. Dean, etc., of St. Paul’s, cited in 16 East. 8, note, was against a corporation for a false return to a writ of mandamus, and no objection was made that the action would not lie. Indeed instances are numerous of like suits without ebjection. Riddle v. Proprietors of the Locks, etc., on the Merrimack River, 7 Mass. 186, was trespass on the case against a corporation. There it was contended that trespass would lie against a corporation; and that 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 new case. But notwithstanding in ancient times, the action of trespass on the ease, as well as trespass proper, was laidm et armis, as well as contrapacem, it is never so laid now. No two actions are kept more separate and distinct from each other, and therefore it was determined in the Massachusetts case, that an action on the case would lie against a corporation. The case of The Chestnut Hill, etc., Turnpike Co. v. Rutter, 4 Serg. & R. 6, was also an action on the ease, and the judge who delivered the opinion, after *re viewing all the authorities, decided that the action was maintainable. Thus trover, ease, and an action for a false return, have all been decided fit remedies against a corporation: but no instance is found, since case and trespass have ceased to be confounded with each other, of trespass vi et armis against a corporation aggregate. In Orr v. Bank United States, et al, 1 Ohio, 37, this court decided that trespass for assault and battery would not lie against a corporation; and it is difficult to perceive any material distinction between the two cases. The whole reasoning proceeds upon the inconsistency of suing a corporation in a form of action which presupposes the injury to have been committed with force and arms, and is, therefore, equally applicable to trespass upon the person and upon reality. It is true the objection may be denominated a technical one; but even a technical rule, after it has become a general one, should for that reason alone be preserved, unless manifest inconvenience would be the consequence. But here none such can result. The individual members of the corporation would be liable in their personal capacity, if the circumstances of the case would warrant it.

The only remaining question is, whether, as Mason and Griffin are joined in the suit, they may take advantage of the demurrer? The rule is, that if several persons be made defendants jointly, where the tort could not in point of law be joint, they may demur. And it is only where, in point of fact and of law, several persons might have been guilty of the same offence, that the joinder of more persons than were liable, in a personal or mixed action, offers no objection to a partial recovery. 1 Ch. Pl. 99 Here the tort complained of could not in point of law be joint, and the demurrer must, therefore, be sustained in favor of all the defendants.  