Page images
PDF
EPUB

1812.

Monday,
June 1st.

YARBOROUGH and Others against the Governor

and Company of the Bank of England.

Trover lies

corporaagainst a corporation ; and tion of the Governor and Company of the Bank of if it be essential to their conver. England, for three promissory notes of the bank of Engsion of the

land, payable on demand, each for 1001. describing them · property, (i. e.

in this instance by their dates and numbers; to which the defendants the detainer of Bank-notes by pleaded the general issue: and after a verdict for the and Company plaintiffs before Lord Ellenborough, C. J. at Guildhall, it of the Bank of

was moved in the last term to arrest the judgment, on England) that they should the ground that the action of trover, which was founded have authorized it under their

in tort, did not lie against a corporation : but it was at seal, such authority will be

the same time explained by Bosanquet, who made the presumed after motion, that the objection did not originate with the does not seem Bank, who merely lent their names upon this occasion to necessary that the act of de. protect the true owner of the notes, Mr. Sidney of Furtention, done

nivals-Inn, who had been robbed of them on the 22d of by theirservants within the June last, and had immediately given notice to the Bank scope of their employment, to stop payment of them, under his indemnity. That should be authorized under

the plaintiffs, who were bankers at Doncaster, had several their seal. months afterwards received them in the course of their

business in exchange for their own notes, from a person who gave in the name of Capt. Johnson, but whom they did not know; and consequently all means of tracing the property were lost. And the real contest in this action was between Mr. Sidney and the plaintiffs; Mr. Sidney imputing negligence to them in the transaction.

The case was argued on Saturday last by Taddy against the rule, and by Garrow and Bosanquet, in sup

port

port of it; when the Court said that they would look

1812. into the authorities before they delivered judgment;

YARBOROUGH which was now pronounced by

against The Bank of

ENGLAND. Lord ELLENBOROUGH, C. J. In this case, which was argued on Saturday, the only question was whether an action of trover is maintainable against a body corporate; in other words, whether a corporation can be guilty of a trespass or a tort. As a corporation, they can do no act, not even affix their corporate seal to a deed, but through the instrumentality and agency of others : they cannot, as a corporation, be subject to a capias or exigent, (the process in trespass,) because the remedies which attach upon living persons cannot be applied to bodies merely politic and of an impersonal nature. But wherever they can competently do or order any act to be done on their behalf, which as by their common seal they may do, they are liable to the consequences of such act, if it be of a tortious nature, and to the prejudice of others. A corporation having the return of writs, or to which any writ, or 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, in this court about the year 1781 (a), was an action for a false return to a manda

mus

(a) This case was referred to by Buller, J. in Rooke v. The Earl of Leicester. 2 Term Rep. 16., as of E. 23 Geo. 3.; and I find the following note of it cited in another case of Crookson v. Lord Lonsdale, in Hil. 29 Geo. 3., B. R. wbere the defendant had cast an essoign by attorney; which case was ultimately decided on the ground that a distringas had issued pending a judge's order to stay proceedings, which was therefore set aside for irregularity. But there Buller, J. added, that as to the question of the essoign, let us never hear that doubt again. Mr. Lowndes

bas

1812.

YARBOROUGH

against The Bank of ENGLAND,

mus respecting an election to a verger's place in that cathedral; and no objection was made that the action would not lie. Vidian's Entries, p. 1. is an action for a false return against the mayor and commonalty of the eity of Canterbury, for a false return to a writ of mandamus to restore an alderman to his precedency of place, &c. It states the mayor and corporation as attached to answer, and the return as falsely and maliciously made.

has industriously collected all the cases, and it appears clearly that no essoign lies in a personal action.

ARGENT against The Dean and chapter of St. Paul's. There is no es

LAW shewed cause against a rule for quashing the essoign cast by snign in a per. the defendants in this cause, and that they should appear and accept sonal action, nor can it be

a declaration generally. It was an action on a false return to a mandamus to cast by a corpo. restore the plaintiff to the office of verger. He contended that though ration.

in common cases a corporation cannot cast an essoigu, not being capable of making a personal appearance, but being obliged to appear by attorney, (stat. 12 Ed. 2. st. 2); yet in an action on a false return the defendants were sued as individuals, and not in their corporate capacity, and therefore in such an action were entitled to an essoign, being individually answerable for the tort. Com. Rep. 86. I Ld. Ray. 564. Carth. 171. On the other ground on which the rule had been moved, that there can be no essoign in a personal action, he admitted that it had been questioned, and that Lord Coke's opinion, 2 Inst. 125. was so; but that by late determinations it seemed to have been altered. 2 Wils. 164. That the case in Stra. 1194. was not an authority against it, but related to the capias. He cited also Booth on real actions, 14 C. 5. 1 Brown 193.

Lord MANSFIELD, C. J. There are two objections to the essoign, and either is decisive. 1st, The return is made under the seal of the corporation, and the action is against the body, and a corporation can have no essoign. 2dly, The law is now established that an essoigo lies not in a personal action.

BULLER, J. The case in Wilson is against the essoign in a personal action. It appears that the practice did once prevail by 2 Inst, and then it was thought wrong. It has since been altered or grown obsolete; and it has now neither practice nor right in favour of it.

The

The instances of actions against corporations for false 1812. returns to writs of mandamus, which are so often

YARBOROUGH directed to them, must be numberless, though I have

against

The Bank of not found many of them in the books of entries. Bro.

ENGLAND. Corporations, pl. 48. A corporation cannot be aiding to a trespass, nor give a warrant to do a trespass without writing ; and cites 4 Hen. 7. 9. : and certainly it appears by that case, and by the sequel of it in 4 Hen. 7. 16., that a corporation cannot give a command to enter into land, without deed, nor do a thing which vests or devests a freehold, nor accept a disseisin made to their

use, without deed. But many little things, it is said, require no command: by which must be meant no special commanding, as a command to servants to chase cattle out of their lands, or to make hay ; being things which it is incident to a servant to do, and which he is bound to do without command: and if he do it, it is good, and the command is not material, for he may do it without command. A corporation cannot do a tort but by their writing under their common seal: per Fitzjames' Justice ; Bro. Corporations, pl. 34., cites 14 Hen. 8. 2. 29.; which imports that by their writing they may. A corporation may be defendants in an action of quare impedit, and the hindrance is an act of tort. Butler v. The Bishop of Hereford and the University of Cambridge. Barnes C. P. 350. To which a multitude of other instances may be added. Rast. 497. Ast. 378. 2 Mod. En. 291. Winch. 625. 700. 721. 733. 2 Lut. 1100. 3 Lev. 332. The stat. 9 H. 4. c. 5. recites the practice, in assizes of novel “ disseisin and other pleas of land, of naming the mayor “ and bailiffs and commonalty of a franchise, as dissei

sors, in order to oust them of holding plea thereof; " and directs the inquiry before the judges of assize,

“whether

1812.

“ whether they be disseisors or tenants, or be named

“ by fraud ;” which plainly proves that they may be YARBOROUGH against

considered as disseisors; and there are instances of The Bank of ENGLAND.

trespass against corporations. In 44 Ed. 3. 2. pl. 5., which was after 22 Ass. pl. 67., cited in the argument, trespass was brought against the mayor and commonalty of Hull and another person; and the objection made was not that' trespass would not lie against the corporation, but that as a natural person was joined with them, there must be different processes; a distress against the former, and a capias against the latter. But the objection does not appear to have prevailed. In 8 H. 6. 1. 14., trespass was brought against the mayor, bailiff, and commonalty, and one of the commonalty; and the objection was not that trespass would not lie against the corporation, but that it could not be supported against them and an individual of their body; and Bro. Corporations, pl. 24. says, the better opinion was that the writ was good; and 14 Hen. 8. 2. says it was so awarded, and that in that case all the justices agreed to it. Brook also puts the case, “ if mayor and “commonalty disseise me, and I release to 20 or 200 of “ the commonalty; this will not serve the mayor and “commonalty;" and the reason is because the disseisin is in their corporate character, and the release is to the individuals. And the case is put “ that if mayor and “commonalty disseise one of their own body, he shall “have assize against them;" which clearly imports that the corporation, as such, might be disseisors. Also, in 4 Hen. 7. 13. trespass was brought against the mayor and commonalty of York: they justified under a right in the inhabitants to have common; but this was adjudged no plea, because the right in natural persons gave no

right

« PreviousContinue »