Merrimack Bank,' and was applied and enforced against the members of a territorial parish. The question is,' say the court, 'whether, on an execution against a town or parish, the body or estate of any inhabitant may be lawfully taken to satisfy it. This question seems to have been settled in the affirmative by a series of decisions, and ought no longer to be considered as an open question.' The State of Maine, when separated from Massachusetts, retained most of its laws and usages, as they had been recognized in the parent State; and, among others, the one in question. In Adams v. Wiscasset Bank,2 Mellen, Ch. J., says: It is well known that all judgments against quasi corporations may be satisfied out of the property of any individual inhabitant.' "The courts of this State, from a time beyond the memory of any living lawyer, have sanctioned and carried out this usage, as one of common-law obligation; and it has been applied, not to towns only, but also, by legal analogy, to territorial ecclesiastical societies and school districts. The forms of our process against these communities have always corresponded with this view of the law. The writs have issued against the inhabitants of towns, societies, and districts as parties. As early in the history of our jurisprudence as 1805, a statute was enacted authorizing communities, such as towns, societies, &c., to prosecute and defend suits, and for this purpose to appear, either by themselves, agents, or attorneys. If the inhabitants were not then considered as parties individually, and liable to the consequences of judgments against such communities as parties, there would have [* 245] been a glaring * impropriety in permitting them to appear and defend by themselves; but, if parties, such a right was necessary and indispensable. Of course this privilege has been and may be exercised.3 "Our statute providing for the collection of taxes enacts that the treasurer of the State shall direct his warrant to the collectors of the State tax in the several towns. If neither this nor the further proceedings against the collectors and the selectmen authorized by the statute shall enforce the collection of the tax, the law directs that then the treasurer shall issue his execution against the inhabitants of such town. Such an execution may be levied upon the estate of the inhabitants; and this provision of the law was not considered as introducing a new principle, or 8 1 Swift's System, 227. 119 Pick. 564. 2 1 Greenl. 361. enforcing a novel remedy, but as being only in conformity with the well-known usage in other cases. The levy of an execution under this statute produced the case of Beers v. Botsford.1 There the execution, which had been issued against the town of Newtown by the treasurer of the State, had been levied upon the property of the plaintiff, an inhabitant of that town, and he had thus been compelled to pay the balance of a State tax due from the town. He sued the town of Newtown for the recovery of the money so paid by him. The most distinguished professional gentlemen in the State were engaged as counsel in that case; and it did not occur, either to them or to the court, that the plaintiff's property had been taken without right: on the contrary, the case proceeded throughout on the conceded principle of our common law, that the levy was properly made upon the estate of the plaintiff. And without this the plaintiff could not have recovered of the town, but must have resorted to his action against the officer for his illegal and void levy. In Fuller v. Hampton,2 Peters, J., remarked that, if costs are recovered against a town, the writ of execution to collect them must have been issued against the property of the inhabitants of the town; and this is the invariable practice. The case of Atwater v. Woodbridge 3 also grew out of this ancient usage. The ecclesiastical society of Bethany had been taxed by the town of Woodbridge for its moneys at interest, and the warrant for the collection of the tax had been levied upon the property of the plaintiff, and the tax had thus been collected of him, who was an inhabitant of the located society of Bethany. Brainerd, J., who * drew up the opinion of the court, referring to this pro- [* 246] ceeding, said: This practice, with regard to towns, has prevailed in New England, so far as I have been able to investigate the subject, from an early period, - from its first settlement, - a practice brought by our forefathers from England, which had there obtained in corporations similar to the towns incorporated in New England.' It will here be seen that the principle is considered as applicable to territorial societies as to towns, because the object to be obtained was the same in both, that the town or society should be brought to a sense of duty, and make provision for payment and indemnity;' a very good reason, and very applicable to the case we are considering. 1 1 3 Day, 159. 25 Conn. 417. 3 6 Conn. 223. "The law on this subject was more distinctly brought out and considered by this court in the late case of McCloud v. Selby,1 in which this well-known practice, as it had been applied to towns and ecclesiastical societies, was extended and sanctioned as to school districts; else it would be breaking in upon the analogies of the law. They are communities for different purposes, but essentially of the same character.' And no doubt can remain, since the decision of this case, but that the real principle, in all of the cases on this subject, has been, and is, that the inhabitants of quasi corporations are parties individually, as well as in their corporate capacities, to all the actions in which the corporation is a party. And to the same effect is the language of the elementary writers." 2 So far as this rule rests upon the reason that these organizations have no common fund, and that no other mode exists by which demands against them can be enforced, it cannot be considered applicable in those States where express provision is made by law for compulsory taxation to satisfy any judgment recovered against the corporate body, — the duty of levying the tax being imposed upon some officer, who may be compelled by mandamus to perform it. Nor has any usage, so far as we are aware, grown up in any of the newer States, like that which had so [* 247] early an origin in New England. * More just, convenient, and inexpensive modes of enforcing such demands have been established by statute, and the rules concerning them. are conformed more closely to those which are established for other corporations. On the other hand, it is settled that these corporations are not liable to a private action, at the suit of a party injured by a neglect of its officers to perform a corporate duty, unless such action is given by statute. This doctrine has been frequently applied where suits have been brought against towns, or the highway officers of towns, to recover for damages sustained in consequence of defects in the public ways. 1 10 Conn. 390-395. 2 Beardsley v. Smith, 16 Conn. 375, citing 2 Kent, 221; Angell & Ames on Corp. 371; 1 Swift's Dig. 72, 794; 5 Dane's Abr. 158. And see Dillon, Mun. Corp. c. 1. It was held competent in the above case to The common law gives no such extend the same principle to incorporated cities; and an act of the legislature permitting the enforcement of city debts in the same mode was sustained. For a more recent case in Massachusetts than these cited, see Gaskill v. Dudley, 6 Met. 551. action, and it is therefore not sustainable at all, unless given by statute. A distinction is made between those corporations which are created as exceptions, and receive special grants of power for the peculiar convenience and benefit of the corporators, on the one hand, and the incorporated inhabitants of a district, who are by statute invested with particular powers, without their consent, on the other. In the latter case, the State may impose corporate duties, and compel their performance, under penalties; but the corporators, who are made such whether they will or no, cannot be considered in the light of persons who have voluntarily, and for a consideration, assumed obligations, so as to owe a duty to every person interested in the performance.2 The reason which exempts these public bodies from liability to private actions, based upon neglect to perform public obligations, does not apply to villages, boroughs, and cities, * which accept special charters from the State. The [* 248] grant of the corporate franchise, in these cases, is usually 1 This rule, however, has no application to the case of neglect to perform those obligations which are incurred by the political subdivisions of the State when special duties are imposed on them by law. Hannon v. St. Louis Co. Court, 62 Mo. 313. 2 Mower v. Leicester, 9 Mass. 250; Bartlett v. Crozier, 17 Johns. 439; Farnum v. Concord, 2 N. H. 392; Adams v. Wiscasset Bank, 1 Me. 361; Baxter v. Winooski Turnpike, 22 Vt. 123; Beardsley v. Smith, 16 Conn. 375; Chidsey v. Canton, 17 Conn. 475; Young v. Commissioners, &c., 2 N. & McC. 537; Commissioners of Highways v. Martin, 4 Mich. 557; Morey v. Newfane, 8 Barb. 645; Lorillard v. Monroe, 11 N. Y. 392: Galen v. Clyde and Rose Plank Road Co., 27 Barb. 543; Reardon v. St. Louis, 36 Mo. 555; Sherburne v. Yuba Co., 21 Cal. 113; State v. County of Hudson, 30 N. J. 137; Hedges v. Madison Co., 1 Gilm. 567; Granger v. Pulaski Co., 26 Ark. 37; Weightman v. Washington, 1 Black, 39; Ball v. Winchester, 32 N. H. 443; Eastman v. Meredith, 36 N. H. 284; Waltham v. Kemper, 55 Ill. 346; Sutton v. Board, 41 Miss. 236; Cooley v. Freeholders, 27 N. J. 415; Bigelow v. Randolph, 14 Gray, 541; Symonds v. Clay Co., 71 Ill. 355; People v. Young, 72 Ill. 411. These cases follow the leading English case of Russell v. Men of Devon, 2 T. R. 667. In the very carefully considered case of Eastman v. Meredith, 36 N. H. 284, it was decided, on the principle above stated, that if a building erected by a town for a town-house is so imperfectly constructed that the flooring gives way at the annual town-meeting, and an inhabitant and legal voter, in attendance on the meeting, receives thereby a bodily injury, he cannot maintain an action against the town to recover damages for this injury. The case is carefully distinguished from those where corporations have been held liable for the negligent use of their own property by means of which others are injured. The familiar maxim that one shall so use his own as not to injure that which belongs to another is of general application. made only at the request of the citizens to be incorporated, and it is justly assumed that it confers what to them is a valuable privilege. This privilege is a consideration for the duties which the charter imposes. Larger powers of self-government are given than are confided to towns or counties; larger privileges in the acquisition and control of corporate property; and special authority is conferred to make use of the public highways for the special and peculiar convenience of the citizens of the municipality in various modes not permissible elsewhere. The grant by the State to the municipality of a portion of its sovereign powers, and their acceptance for these beneficial purposes, is regarded as raising an implied promise, on the part of the corporation, to perform the corporate duties, and as imposing the duty of performance, not for the benefit of the State merely, but for the benefit of every individual interested in its performance.1 1 Selden, J., in Weet v. Brockport, 16 N. Y. 161, note. See also Mayor of Lyme v. Turner, Cowp. 86; Henley v. Lyme Regis, 5 Bing. 91; Same case in error, 3 B. & Adol. 77, and 1 Bing. N. C. 222; Mayor, &c. of New York v. Furze, 3 Hill, 612; Rochester White Lead Co. v. Rochester, 3 N. Y. 464; Hutson v. Mayor, &c. of New York, 9 N. Y. 163; Conrad v. Ithaca, 16 N. Y. 158; Mills v. Brooklyn, 32 N. Y. 489; Barton v. Syracuse, 36 N. Y. 54; Lee v. Sandy Hill, 40 N. Y. 442; Clark v. Washington, 12 Wheat. 40; Riddle v. Proprietors of Locks, &c., 7 Mass. 183; Bigelow v. Inhabitants of Randolph, 14 Gray, 541; Mears v. Commissioners of Wilmington, 9 Ired. 73; Browning v. Springfield, 17 Ill. 143; Bloomington v. Bay, 42 Ill. 503; Springfield v. LeClaire, 49 Ill. 476; Peru v. French, 55 Ill. 318; Pittsburg v. Grier, 22 Penn. St. 54; Jones v. New Haven, 34 Conn. 1; Stackhouse v. Lafayette, 26 Ind. 17; Brinkmeyer v. Evansville, 29 Ind. 187; Sawyer v. Corse, 17 Grat. 241; Richmond v. Long, 17 Grat. 375; Blake v. St. Louis, 40 Mo. 569; Scott v. Mayor, &c. of Manchester, 37 Eng. L. & Eq. 495; Smoot v. Wetumpka, 24 Ala. 112; Detroit v. The |
