a case in the Supreme Court of Pennsylvania, the question arose upon a special verdict, whether an action of indebitatus assumpsit, upon an implied promise, could be maintained. against an incorporated turnpike company, as a corporation could only contract by deed under the corporate seal; and the court held, that, on the ground stated, the company was not liable to be sued in that form of action.1 But it having since become well settled, by the more recent decisions of the courts of the United States, that corporations may act by parol, it has resulted, as a matter of course, that assumpsit will lie against a corporation; and such is now the established doctrine in this country. The Supreme Court of Massachusetts, a number of years since, decided that assumpsit would lie against a corporation, where there is an express promise by an agent of the corporation, or a duty arising from some act or request of such agent, within the authority of the corporation." And in a very late case in the same State, it was held, that either an action of debt or of assumpsit may be maintained upon an implied promise, for labor done and materials found, under a special contract, which has not been performed on the part of a corporation. In a case in the Supreme Court of the United States, an attempt was made to distinguish between express and implied promises, as to the liability of corporations to be sued in assumpsit. But the distinction was disregarded, and the court went the whole length, of giving the same remedies against incorporated companies, in matters of contract, as against individuals. The old cases are there reviewed, showing that the law has been progressively altering, with respect to the validity of acts done by corporations not under their seal. The court observe, upon the English authorities referred to, that, as soon as it was settled that a regularly

'Breckbill v. Turnpike Co. 3 Dallas (Penn.) R. 496; and see Marine Ins. Co. v. Young, 1 Cranch, 332.

See ante, Chap. VII. and VIII. as to power and mode of contracting. 3 Hayden v. Middlesex Turn. Co. 10 Mass. R. 39; and see ante, Ch. IX. Smith v. Congregational Meeting-house, 8 Pick. (Mass.) R. 178. • Bank of Columbia v. Patterson, 7 Cranch (U. S.) R. 299.

appointed agent of a corporation could contract in its name, without a seal, it was impossible to maintain any longer that a corporation was not liable upon promises; otherwise there would be no remedy against the corporation; and the court concluded by saying, that it is a sound rule of law, that whenever a corporation is acting within the scope of the legitimate purposes of the corporation, all parol contracts made by its authorized agents are express promises of the corporation, and all duties imposed upon them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which an action will lie. In the Supreme Court of New York, also, Mr. Chief Justice Thompson held expressly that assumpsit will lie against a corporation on an implied promise. In this case, a turnpike company covenanted to pay money, and a part had been paid; assumpsit, the court held, would lie on the implied promise to pay the balance.' And in another case in New York it was held, that assumpsit would lie against the corporation on the implied promise to pay the amount of damages, assessed by a jury, for the land of the plaintiff taken by the corporation. The same is the general rule in Pennsylvania, and in New Jersey, and, we believe, throughout the country. And in an action of assumpsit

1 Danforth v. President, &c. of S. & D. Turnpike Road, 12 Johns. (N. Y) R. 227.

Stafford v. Corporation of Albany, 6 Johns. (N. Y.) R. 1; S. C. 7 Johns. (N. Y.) R. 541.

Chestnut Hill Turnpike Co. v. Rutter 4 S. & Rawle (Penn.) R. 16; Overseers of N. Whitehall v. Overseers of S. Whitehall, 3 S. & Rawle (Penn.) R. 117.

Baptist Church v. Mulford, 3 Halstead, (N. J.) R. 182.

See also Worcester Turnp. Corporation v. Willard, 5 Mass. R. 80; Gilmore v. Pope, 5 Mass. R. 491; Andover and Medford Turnp. Co. v. Gould, 6 Mass. R. 40; Dun v. Rector, &c. of St. Andrew's Church, 14 Johns. (N. Y.) R. 118; Randal v. Van Vechten, 19 Johns. (N. Y.) R. 60; Quin v. Harford, 1 Hill (N. Y.) R. 82. In Vermont, Essex Bridge Co. v. . Tuttle, Vt. R. 293; Procton v. Webber, 1 D. Chip. (Vt.) R. 371; Stone v. Congregational Soc. 14 Vt. R. 86; Mutual Ins. Co. v. Cummings, 11 Vt. R.

against a corporation, it makes no difference whether the agent who makes the contract in behalf of the corporation was appointed under seal or by vote.1

$ 6. It has been held, even in England, that a special action on the case will lie against a corporation, to compel a transfer of stock; and a special action of assumpsit was afterwards brought against the bank. In a case in New York, where a motion was made for a mandamus, to be directed to the president, directors, and company of the Mechanics Bank, commanding them to permit M. S. to transfer eight shares of the capital stock of the bank standing on the books of the bank; the court refused to allow that remedy, and said there was an adequate remedy by a special action on the case, to recover the value of the stock, if the bank unduly refused to transfer it. So, in Gray v. The Portland Bank, it was held by the Supreme Court of Massachusetts, that a special action on the case lies against an incorporated bank, for refusing to permit an original stockholder to subscribe and hold the new stock created by the corporation. So, too, in an action of assumpsit against the Franklin Insurance Company, it was held that the company was liable in damages, to persons to whom shares had been conveyed by a stockholder, for refusing to enter upon the books the transfer which the stockholder had made."

4

$ 7. Though it has been supposed, that a corporation cannot be sued in that character for torts, and that the action must be

'Bank of the Metropolis v. Guttschlieck, 14 Peters (U. S.) Co. R. 19; and see ante, Chapters VIII. and IX.

Rex v. Bank of England, Doug. R. 424, cited in Danforth v. President, &c. of S. & D. Turnp. Co. (supra.)

3 Shipley, &c. v. Mechanics Bank, 10 Johns. (N. Y.) R. 484.

3 Mass. R. 364.

Sargent et al. v. Franklin Ins. Co. 8 Pick. (Mass.) R.; and see, also, Bates v. New York Ins. Co. 3 Johns. Cases, 238, and the authorities cited in Chapter XVI. relating to the transfer of shares.

brought against each person who committed the tort by name; yet it is clear that incorporated companies may at least be sued in their corporate character for damages arising from neglect of duty, and for trover. The Supreme Court of Pennsylvania considered that if any injury was done by the agents of corporations in the course of their employment, the corporation should be responsible, in the same manner that an individual is responsible for the actions of his servants, touching his business; that the act of the agent was the act of the principal; and that there was no solid ground for a distinction between contracts and torts. Indeed, say the court, with respect to torts, the opinion of the courts seems to have been more uniform than with respect to contracts; for it might be shown, that, from the earliest times to the present day, corporations have been liable for torts. And it seems clearly that Lord Ellenborough entertained the same opinion.* And it has been held, in England, that a corporation is liable in tort for the tortious act of its agent, though the appointment of the agent be not under seal, if the act be done in the ordinary service; and that a jury may infer the agency from an adoption of the act by the corporation.'

3

An action on the case will lie against a corporation for a neglect of a corporate duty, as for not repairing a creek which they were bound to do. So, in an action against the Susquehannah Turnpike Company, for the value of a horse killed by the fall of a bridge on the road, it was held, that the defendants were liable in an action on the case, as they had not used ordinary care and diligence in the construction of their

11 Kyd, 225; Bac. Abr. Corpor. E. 2, 5.

21 Chitty on Plead. 68.

Chestnut Hill, &c. Turnp. Co. in error, v. Rutter, 4 S. & Rawle (Penn.) R. 6. In this case much learning will be found on the subject, and many references to the Year Books, and other ancient as well as modern authorities.

4 Yarborough v. Bank of England, 16 East, 6.

Smith v. Birmingham Gas Light Co. 1 Adol. & Ell. R. 526.

6 Mayor of Lynn v. Turner, Cowp. 86.

bridges.' So also an action was maintained in Massachusetts against a canal company for damage suffered by the plaintiff, in consequence of the locks not being kept in repair. So also in Pennsylvania, in an action of trespass on the case for stopping a watercourse, where the defendants were incorporated as a turnpike company, and who caused the water of a rivulet to overflow the plaintiff's tanyard; it was held that the action would lie, and that the defendants were guilty of a wrong. In this action it was strongly objected, that a corporation could not be guilty of a tort; but Tilghman, C. J., said that this doctrine was fallacious in principle and mischievous in its consequences, as it tends to introduce actual wrongs and ideal remedies; for a turnpike company might do great injury, by means of laborers having no property to answer the damages recovered against them.*

It was fully established, in the case where the Bank of

1 Townsend v. Susquehannah Turnp. Co. 6 Johns. (N. Y.) R. 90. But it must be a clear case of negligence; and if it is only for a breach of public duty, an indictment is the proper remedy. Harris v. Baker, 4 Maul & S. 27. And an action on the case will not lie against the inspectors of an election, for refusing the vote of a person legally qualified to vote, without proving malice express or implied. Jenkins v. Waldron, 11 Johns. (N. Y.) R. 114

Riddle v. the Proprietors of Locks, &c. 7 Mass. R. 169.

• Chestnut Hill, &c. Turnp. Co. v. Rutter, in error, 4 S. & Rawle (Penn.) R. 6.

A corporation having the return of writs, or to which any writ, on a mandamus, for instance, is directed, is liable eventually to an action for a false return. The case of Argent v. The Dean and Chapter of St. Paul's, (the case was referred to by Buller, J., in 2 T. R. 16,) was an action for a false return to a mandamus respecting an election to a verger's place in that cathedral; and no objection was made that the action would not lie. See also the cases cited in Yarborough v. Bank of England, 16 East, 6; and that actions on the case lie against corporations for nonfeasance and misfeasance, see Burdick v. Champlain Glass Co. 11 Vermont R. 19; Hamilton County v. Cincinnati, &c. Turnp. Co. 6 Wright (Ohio) R. 603; Fletcher v. Auburn Railroad Co. 25 Wend. (N. Y.) R. 482; Savage Man. Co. v. Armstrong, 17 Maine R. 34; Rector of, &c. v. Buckhart, 3 Hill (N. Y.) R. 193; Rhodes v. Cleveland, 10 Ohio R. 159.