be subjected to an indictment? If he has been guilty of a nuisance it would seem difficult for him to defend under his commission from chancery. He was not placed above the law. But this is not a point before the court calling for a decision. It is enough to say that the facts in this case will not sustain the present prosecution.

The decision of the court below adjudging the defendants guilty must be reversed and a new trial granted, and the cause be remanded to the county court unless the State's attorney shall elect to enter a nolle prosequi.1

NOTES.

§ 1. Corporation Generally not Indictable for Crime.—The general rule is that a corporation is not indictable for crime. "Some dicta," said Lord Denman, C. J., in R. v. Great North of England Railway,3% occur in old cases that a corporation can not be guilty of treason or felony. It might be added of perjury, or offenses against the person; and nobody has sought to fix them with acts of immorality. These plainly derive their character from the corrupted mind of the person committing them, and are violations of the social duties that belong to men and subjects. A corporation which, as such, has no such duties can not be guilty in these cases."

§ 2. Not Liable for Nuisance in Obstructing Navigable River. So it has been held that a corporation is not criminally liable for a nuisance in obstructing a navigable river,'

$3.

Or Highway.-The same is held as to obstructing a highway.5

§ 4. Nor for Violation of Foreign Enlistment Act.-And in England it has been ruled that a corporation is not indictable for a violation of the Foreign Enlistment act.

§ 5. Corporation not a "Person" within Ohio Nuisance act. - In State v. Cincinnati Fertilizer Co.,' the defendant, a corporation, was indicted under a statute punishing any "person" who should commit a nuisance. It was held that it was not within the statute. "Criminal laws," said the court, "are to be construed strictly in favor of the accused. In its primary sense the word 'person' means a natural person only. I know of no criminal statute in Ohio where the word has been held to apply to a corporation; nor do I know of any

1 The State's Attorney subsequently entered a nolle prosequi.

* Sutton's Case, 12 Mad. 557 (1701); State . Great Works Milling, etc., Co., 20 Me. 41; 37 Am. Dec. 41 (1841).

19 Q. B. 315 (1846).

State v. Great West. Milling, etc., Co., 20

Me. 41; 37 Am. Dec. 41 (1841).

1 DEFENCES.

2

5 Com. v. President, etc., Swift Run Gap Turnpike Co., 2 Va. Cas. 362 (1823); State v. President, etc., Ohio & Mississippi R. Co., 23 Ind. 362 (1864).

King of the Two Sicilies v. Wilcox, 14 Jur. 751 (1850).

7 24 Ohio St. 611 (1874).

case where an attempt has before been made in this State to indict a corporation. We have no common-law crimes in Ohio, and the whole theory and machinery of our administration of criminal law seem adapted only to the prosecution and punishment of natural persons. There is no provision of law for bringing an indicted party into court by summons, or otherwise than by actual arrest of his person. Under such a state of legislation and practice, the Legislature could not have intended, in the use of the word 'person' which is found in almost every criminal law of the State, to authorize an indictment against a corporation for this particular offense, without any special or further provision as to the liability of corporations or the mode of proceeding against them."

§ 6. Nor within Indiana Statute. Nor is a corporation a "person the Indiana statute as to obstructing highways.1

" within

- Where an act incorporat

§ 7. Penalty against Officers must be Pursued. ing a turnpike company, prescribes a penalty against the individual intrusted with keeping the road in repair, the company is not liable to indictment or information.2 In this case, an information (founded on a previous presentment of the grand jury), was filed against the defendants by their corporate name for failing to keep their road in repair for the space of sixty days; it concluded against the form of the act of Assembly, etc. The defendants demurred generally to the information, and there was a joinder in demurrer. The judge of the Superior Court adjourned to this court the question, whether such a corporation as this can be prosecuted, criminaliter, as in the information is set forth. HOLMES, J., delivered the opinion of the court: "This is an information (founded on a presentment of the grand jury in Orange Superior Court), against the defendants, by the name of the President, Directors and Company of the Swift Run Gap Turnpike Company, for not keeping their artificial road in repair for the space of sixty days, and claiming the penalty of twenty dol. lars for every ten days' failure, amounting to $120, and concluding against the form of the act of Assembly, etc. To this information there is a general demurrer. The act incorporating this company contains a provision, that where the road is out of repair for the space of ten days, and information thereof shall be given to a justice of the peace, he shall issue a warrant, commanding a constable to summon three freeholders to view the defective part of the road, of which notice shall be given to the person intrusted with the repair thereof; and, if on such inquiry, the road be found to be out of repair, the tolls shall cease at the nearest gate until it be repaired; and moreover, the person intrusted with the repair shall be subject to a fine of $20, to be recovered by warrant before a justice of the peace. The remedy given here, is not against the corporate body, but against the individual whom they employ to keep the road in repair, and when a statute creates an offense, and gives a specific remedy for its prosecution, such specific remedy must be followed. Therefore, the court is of opinion, that no information will lie against the defendants on the statute of incorporation, as set forth in the information filed against them, which is to be certified to the Circuit Court of Orange County."

1 State v. President, etc., Ohio, etc., R. Co., 23 Ind. 362 (1864).

2 Commonwealth v. President, etc., Swift Rnn Gap Turnpike Co., 2 Va. Cas. 361 (1823).

§ 8. Carrying on Business without License. -A corporation can not be convicted of carrying on a business without a license- the superintendent or person conducting its business must be prosecuted. "There are a few cases in which indictments will lie against a corporation. But as such a body is invisible, intangible, and exists only in contemplation of law, it is the natural persons in and by whom it lives, moves and operates that the law generally holds responsible for its offenses against the public."1

§ 9. Municipal Corporation

Not Indictable for Nuisance.

A municipal corporation is not liable for not abating a nuisance when it has no power to do the acts necessary to its abatement. 2

§ 10. Railroad in Hands of Receiver not Indictable. - And while a corpora

tion is in the hands of a receiver it is not indictable.3

1 Elsberry v. State, 52 Ala. 8 (1875).

2 People v. Corporation of Albany, 11 Wend. 537 (1834).

State v. Vermont Central R. Co., 30 Vt. 108 (1858).

CHAPTER II.

HUSBAND AND WIFE.

HUSBAND NOT LIABLE FOR WIFE'S CRIMES.

PENNY V. STATE

[2 Blackf. 484.]

In the Supreme Court of Indiana, November Term, 1831.

A husband is not responsible for an indictable offense committed by his wife without his presence or coercion.

ERROR to Owen Circuit Court.

Whitcomb, for the plaintiff in error.

Brown, for the State.

MCKINNEY, J., This was an indictment for retailing spirituous liquors without a license. Plea, not guilty, and by consent the cause was submitted to the court without the intervention of a jury. The defendant was found guilty and judgment rendered against him. A bill of exceptions taken to the opinion of the court overruling a motion for a new trial, furnishes the evidence upon which the judgment of the court was founded.

Can the judg

A single question is presented for our consideration. ment be sustained on evidence that the whisky charged in the indictment to have been sold by the defendant was sold by his wife, he being absent from his house, and no authority proved to have been given? We think the evidence insufficient to establish the liability of the defendant. The presumption of agency is inadmissible. The wife committing offenses without the presence or coercion of her husband is regarded as a feme sole. She is alone responsible.1

The judgment is reversed.

11 Russ on Cr. 25; 1 Chitty Bl. 348, note 51.

LIABILITY OF HUSBAND FOR WIFE'S ACT.

ATTORNEY-GENERAL v. RIDDLE.

[2 Cr. & J. 494; 2 Tyrw. 411.]

In the English Court of Exchequer, Trinity Term, 1852.

Liability of Husband for Act of Wife -Authority. A wife, who it was proved had authority from her husband, a paper maker, to do certain acts in his trade, pledged paper which had no wrapper, label or stamp on it contrary to the revenue law. Held, that the husband was not liable, unless the pledging was done by the authority of the husband, and this was a question for the jury.

This was an information against the defendant, a paper maker, for selling, sending out, and delivering paper not tied up or labeled, and for receiving paper from his manufactory not enclosed in a wrapper so labeled, and with such impressions of a departure stamp thereon as are required by the statute.1

At the trial, before the Lord Chief Baron, at the sittings of the last Michaelmas term, it was proved, that on the day laid in the information, the defendant's wife went with her brother-in-law in a cart to the shop of Shering, a grocer at Halstead. The man went in, and in her name solicited a loan of £5 to make up £50 then due from her husband for paper duty, adding, that she would deposit with him paper worth £6, which was then in the cart. Shering came to the cart, and she repeated the same thing to him, saying if the money was not forthcoming he might keep the paper. The bundle of paper had no wrapper or label, and no departure or duty stamp on it, both of which stamps. are on the label, and put on by the officer charging the duty. Shering took the paper, and gave her a check for £5, for which she got cash, and on the same day paid £5 for paper duty then due, £45 having been paid before. The brother-in-law was in the house with her when she paid the duty. The money was not repaid, and Shering kept the paper which was seized on his premises. It was proved that the defendant was an entered paper maker, and that the course of the trade was for the surveying officer, on receiving notice from the paper maker, to attend to weigh and charge the duty, to take the stamp denoting the charge of duty in order to apply it to part of the label fixed on the top of the wrapper; and that, before sending out paper from the stock, it was the duty of the maker to tie up and affix an impression of another stamp, called a departure stamp, on that part of the label fixed to the side of the wrapper, in order to denote the time of its leaving the

11 Geo. IV., ch. 58, secs. 6 and 7.