BUTTLES v. CARLTON, ET AL.

JUDGES MCLEAN AND BURNETT.

1822.

The prison bounds as established by the Court of Common Pleas in pursuance of the Statute, are to be considered as an extension of the four walls of the prison and while the prisoner is within these limits, he is to every legal intent a prisoner, and as such entitled to support under 12th Sec. of the act for the relief of insolvent debtors.

The Plaintiff in Execution is not bound to furnish lodgings to the defendant while within the limits, though he makes oath that he is unable to support himself.

It was an action of debt upon a prison rules bond, and came before the court upon a case stated as follows: The defendant Carlton was in custody upon a ca. sa. at the suit of the plaintiff, and executed the bond upon which the suit was brought, for remaining in custody within the rules of the prison— and upon its being approved of by two justices, as required by law, Carlton was admittad the prison rules. Being thus within the prison rules, he made affidavit that he was unable to support himself in prison, a copy of which was served upon the plaintiff's agent. Carlton claimed that the plaintiff was bound to supply him, not only with provision, but with lodgings also. The agent proffered to furnish meat and drink; the prisoner insisted upon a bed also, which he frequently called for and was refused. Considering that the refusal of a bed was a refusal to furnish support according to the statute, Carlton went out of the prison rules? And the action is brought to charge him and his securities.

Opinion of Judge BURNET.

Two questions have been submitted in the argument of this case. First, was the defendant, Carlton, entitled to support after he was relieved from close confinement, and admitted to the privilege of the bounds? Secondly, if entitled to support, was he to be furnished with bedding at the expense of the plaintiff?

On the first question we are of opinion that the prison bounds, established by the Court of Common Pleas in pursuance of the statute, are to be consid ered as an extension of the four walls of the prison, and that while the prisoner is within these limits, he is to every legal intent a prisoner, and as such entitled to claim the support given by the 12th section of the act for the relief of insolvent debtors.

It is true that the bond is in the name of the plaintiff, but it is delivered to the Sheriff, and the condition of it is, "that the prisoner shall continue safely in the custody of the jailer, within the limits of the prison bounds." This language, we apprehend, cannot be mistaken. It represents the obligor as a prisoner, in the custody of the jailer, within the limits; and if a prisoner, he may take the oath prescribed, and thereby charge the plaintiff with his support. The language of the law is, "that when a person imprisoned for debt,

either on mesne process, or on capias ad satisfaciendum, shall be unable to support himself in prison, and having made oath to that effect" &c. "the plaintiff shall stand chargeable," &c. The only enquiry then is, was the defendant, Carlton, imprisoned for debt? If he was, he was entitled to support; and if that support was not afforded, he had a right to leave the prison bounds, or in the language of the law, "to be immediately set at liberty." We are clearly of opinion, that he was a person imprisoned for debt within the meaning of the statute, and that he had a right to take the oath. This is the only inference to be drawn from the statute, or from the bond, by which he is to continne safely a prisoner in the custody of the jailer. While he so continues, he must, ex vi termini, be imprisoned, and consequently be entitled to claim the support allowed by the statute.

It is certainly natural to suppose, that a person enjoying the privileges of the limits would, in ordinary cases, be able to provide for his own support; but this is not always the case, as where poverty is connected with sickness, or other personal disability. The construction contended for would leave such persons to perish, or procure subsistence from the hand of charity. Such could not have been the intention of the legislature: it must have been their design to provide for persons so circumstanced, whether on the limits or in close confinement.

On the second question, we are of opinion that the plaintiff was not bound to furnish the defendant with lodgings. This conclusion seems to follow from the determination of the former question. As that pre-supposes him to be a prisoner, in the custody of the jailer, he must be entitled to his lodgings within the prison. This privilege the jailer cannot deny him, as the prison is provided at the expense of the county, for the reception and accommodation of all persons committed by legal authority. As a person in custody on final process, after he has obtained the privilege of the limits, is bound to continue a true prisoner in the custody of the jailer, it would seem to follow that he does not lose the right of lodging within the jail. On the contrary, the spirit of the provision would rather require that all persons within the limits should return at night to the prison, as their common lodging place, though we do not mean to say that the practice which has heretofore prevailed in this respect should be altered. In many cases it is an indulgence of great value, to permit persons on the limits to lodge without the prison, and the feelings of humanity must sup. press every desire to deny, or curtail that indulgence. All we mean to say is, that they have a right to repair to the jail, as their common lodging place. The case in hand requires us to go no further, and we feel no disposition to do so. In the formation of these statutes, the rights of creditors have not been overlooked, nor can the court disregard them in any construction which it may be necessary for them to give. The words of the statute, subjecting the creditor to the support of his debtor, are, "he shall stand chargeable with his support." In construing these words, we are not disposed to go beyond their import, and most certainly they cannot require the plaintiff to provide that which has been already provided. The county has furnished lodgings; it was not therefore necessary for the plaintiff to provide them, and we cannot believe that the legislature intended to impose on him an unnecessary burden. In construing these words we must look to the situation of the prisoner, and to the wants and

privations that attend it. Food and lodging seem to be embraced in the term support, and we should have no hesitation in saying, that they were both chargeable on the plaintiff, had neither of them been provided by law; but as lodging has been provided, it would be implicating the prudence of the legisla ture, and imposing an unnecessary burden on the plaintiff to give that constructo the term. What the law has provided, the plaintiff cannot be required to provide.

It is the opinion of the court, that the plaintiff was bound only to make an arrangement with the jailer to furnish the plaintiff regularly with his food, and having done so in this instance, he provided all the support he was chargeable with by the statute; consequently, the defendant left his prison bounds in his own wrong, and the plaintiff must be entitiled to judgment.

BANK OF MOUNT PLEASANT v. POLLOCK.

JUDGES PEASE AND SHERMAN.

1823.

Special Bail are not liable, where the principal dies after the return of the ca. sa. non est, and before the return of the first sci. fa. executed, or second nihil.

The Bail are discharged by the death of the principal. The English rule, that if the principal die after the return of the ca, sa. non est, the bail are charged, has not been adopted by the legislature, and the court have no authority to insert it by interpolation.

The plaintiffs in this case had obtained a judgment against Joseph Mc Kaughey, in the common pleas of Belmont county. They sued out a capias. ad satisfaciendum, upon which the sheriff returned not found. They then sued out a scirie facias against Robert Pollock, which was returned nihil; and a second scirie facias, was sued out, and returned executed. Robert Pollock appeared at the return of the second scire facias, and pleaded, that after the return of the ca. sa. "not found," and before the return of the first sci. fa. "nihil," Joseph McKaughey departed this life. To this plea the plaintiff's demurred. Robert Pollock deceased before the demurrer was argued, and his administrators appeared and were made defendants

The cause was argued in the common pleas of Belmont by Beebe for the plaintiffs, and Hammond for the defendants. Judgment was given upon the demurer for the defendants, and the plaintiffs appealed to the supreme court. It was again argued in the Supreme Court, at October, 1823, before Judges Pease and Sherman, by the same counsel- The court was asked by Mr. Beebe, on the part of the plaintiffs, to reserve the case for decision at Columbus, but they were of opinion that it was unnecessary.

By the COURT.

Our statute declares that the bail shall be discharged by surrendering the principal upon the return of the first scire facias "executed," or the second "nihil." This is the rule of the English courts. It is however one principle of this rule, as established in England, that if the principal die after the return of the ca. sa. non est, the bail is charged. It is maintained for the plaintiffs,

that as the legislature has adopted, in substance, the English rule as to the period at which a surrender shall discharge the bail, they have adopted that rule in all its parts-so that if the principal die after the return of the ca. sa. non est, the bail cannot be exonerated. The court are of a different opinion. The statute gives to special bail the absolute right to be discharged, upon the surrender of the principal, at either of the periods specified. The death of the principal cannot prejudice this right. The bail do not undertake for the life of the principal; but for his surrender if alive. They are discharged by his death. The limitation of the English rule is not adopted by the legislature, and the court have no authority to insert it by interpretation. Judgment for the defendant.

ORR v. BANK UNITED STATES, ET AL.

BEFORE ALL THE JUDGES.

1821.

A corporation cannot be sued it an action of assault and battery, nor can a corporation be joined in such action with other defendants. In case of such joinder the defendants may demurr.

King and Atkinson, for plaintiff.

Opinion of the court by Judge BURNET, delivered Dec. term, 1822.

This is an action for an assault and battery, and false imprisonment. The declaration is filed in the common form, charging the defendants jointly with the commission of the trespass, as though they were all natural persons. The defendants have demurred generally. On the argument two principal ques. tions were raised and discussed.

1. Whether a corporation aggregate is liable to be sued by its corporate name, in an action of trespass for an assault and battery, and false imprison

ment.

2. Whether, if they be not so liable, the defendants, Creighton and Dunn, can take advantage of the joinder on this demurrer.

On the first question, Chitty has been cited (1 vol. 66) where he says, corporations may be sued in that character, in many instances, for damages arising from neglect of duty imposed on them by particular statutes, but they cannot in general, be sued in that character, in trespass, or replevin. The action must be brought against each person by name, who commits the tort. In 8 East. 230, Lawrence, justice, says, trespass docs not lie against a corporation. Thorp, justice, says, trespass does not lie against a corporation aggregate by its corporate name, for a capias and exigent do not lie against it, (22 Ass. 67.) A corporation cannot beat nor be beaten, nor commit treason, or felony, nor be outlawed, &c. (21 Edw. 4, 7, 12, 27, 67.) They cannot be assoigned, (1 Bac. ab. 507.) nor outlawed, (10 Co. 32.) nor attached, (Ray, 152.) no replevin lies against them by the name of their corporations, (Brownl. 175.) They cannot be declared against in custody. (6 Mod. 183.) They are not indictable, though the particular members are. (12 Mod. 559.) They cannot sue as a common informer. (2 Stra. 1241.) For torts they must be sued individually. (Salk. 192.) Trespass does not lie against a corporation, but against its members. (4 Com. franchise F. 19.

A corporation cannot commit a trespass but by their writing under their seal. (Vin. Ab. Cap. K. 22.) Trespass does not lie against commonalty, but shall be against the persons, by their proper names, for capias and exigent lie not against commonalty. (Ib. P. 2) Trespass does not lie against a corporation, viz. by the name of corporation, but against the persons who did it, by their proper names, for capias and exigent do not lie. (Ib. 2, 15.) As outlawry does not lie against an aggregate corporation, therefore trespass does not lie against them, for a capias and exigent do not go. (2 Sell. 149. 2 Imp. 675. Bro. Corp. 43.) A corporation can neither maintain, nor be made defendant to an action of battery, or such like personal injuries, for a corpora. tion can neither beat, nor be beaten, in its body politic. (1 Blac. Com. 503.) It appears also that the civil law ordains (in conformity with this rule) that for the misbehaviour of a body corporate, the directors only shall be answerable in their personal capacities. Wooddison, in his lecture on corporations, (1 vol. 494.) is very clear and explicit on the subject. He says, "it is incident to all bodies politic, to sue and be sued, by their name of incorporation, but it is manifest that this must be restricted to particular actions; thus corporations can neither be plaintiffs nor defendants in actions of assault and battery."

The case in 12 John. 227, cited by the plaintiff, shows that the law in relation to the liability of corporations, is so changed by the course of modern decisions, that they are now held responsible on promises, express, or implied, and that assumpsit may be maintained against them on such promises. But because the law has been changed in relation to contracts, it does not follow that it is also changed in relation to torts, so as to render a corporation liable, generally, to actions of trespass, or for other torts, by persons not belonging to the body corporate, at least without showing that they were done by an authority from them, granted in pursuance of their charter, In short, the only question decided in that case was, that a corporation may make a valid contract, not under seal; and this point being settled, there was no incongruity or falsity apparent in the declaration, and therefore the court very properly decided that they would not stop and enquire, in that stage of the proceedings, whether the contract was made in such manmer, or by such persons as to be binding on the defendants. The objection in that case was taken on the broad ground that assumpsits will not lie under any circumstances, against a corporation, but the court having shown, very clearly that the position was not tenable, overruled the demurrer without further enquiry: and it may be remarked, that the reasoning of the court is confined exclusively to matters of contract. The same observation may be made respecting the case of the Bank of Columbia v. Patterson, (cited from 7 Cran, 299.) which was an action of assumpsit for work and labor. Various questions arose in the progress of that cause; none of them; however, having a direct bearing on the case now before the court. The point most analogous was, that whenever a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts made by its authorised agents, are express promises of the corporation, and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises for the enforcement of which an action may well lie.

The case of Dunn. v. the Rector, &c. of St. Andrew's church, (14 John.