England; and counties, towns, etc., in this state. Although quasi corporations are liable to information or indictment, for a neglect of public duty, imposed on them by law; yet it is settled in the case of Russell et al. v. Inhabitants of the County of Devon, that no private action can be maintained against them for a breach of their corporate duty, unless such action be given by statute. And the sound reason is that having no corporate fund and no legal means of obtaining one, each corporator is liable to satisfy any judgment rendered against the corporation. This burden the common law will not impose, but in cases where the statute is an authority, to which every man must be considered as assenting. But in regular corporations, which have, or are supposed to have, a corporate fund, this reason does not apply." The same doctrine is asserted by the same court in Mower v. Inhabitants of Leicester, 9 Mass. Rep. 247; and is recognized as settled law by Angell & Ames on Corporations, section 630, note. So in South Carolina, 2 Nott & McCord 537; Young v. Commissioners of the Roads; and White v. City Council, 2 Hill's Rep. 571. So in Connecticut, Ward v. The County of Hartford, 12 Conn. 404. The case of the Freeholders of Sussex County v. Strader, 3 Harr. N. J. Rep. 158, before alluded to, was an action brought by Strader against the county of Sussex, New Jersey, to recover damages for an injury to a team of the plaintiff, on account of a defect in a public bridge which the chosen freeholders of the county were bound to keep in repair. In that case the court not only sustain the doctrine and distinction laid down in the Men of Devon, and by Chief Justice Parsons in 7th Mass.; but Chief Justice Hornblower, in delivering his opinion, supposes, and remarks upon almost the very case before us. He says: "It is the duty, for instance, of the board of freeholders, to erect and keep in repair court-houses and jails; a neglect to do so may occasion great inconvenience, perhaps positive loss or injury, to some individual whose business or duty requires his attendance at court; the building, by being old and out of repair, may give way, and break a man's limbs, or occasion him an injury in some other way, but no one will pretend that in such a case an action would lie by the person injured against the county. The same doctrine was recognized and applied in Illinois, in Hedges v. The County of Madison, I Gilman's Rep. 567, by the supreme court of the United States in Fowle v. Common Council of Alexandria, 3 Peters 409, and is also applied and strongly urged and approved by the supreme court of New York in the able opinion of Selden, J., in Morey v. The Town of Newfane, 8 Barb. S. C. Rep. 645. It is undoubtedly competent for the legislature to make the people of a county liable for the official delinquencies of the county commissioners, and, if they think it wise and just, without any power in the people to control the acts of the commissioners, or to exact indemnity from them; but this has not yet been done, and we think that such liability can not be derived from the relation of the parties either on the principles or the precedents of the common law. In conclusion, and at the risk of the penalties of tautology, I repeat, that while, both upon principle and authority, we find ourselves compelled to overrule the case of The Commissioners of Brown County v. Butt, as having been erroneously decided, we do so with extreme reluctance, and with all respect for the judgment and veneration for the memory of the judges who decided it, but, with our convictions, we could not do otherwise, and, in overruling it, we are satisfied we are contributing to place the law of Ohio upon a footing of sound principle, as well as in harmony with that of other states whose jurisprudence, like our own, rests on the basis of common law. Judgment reversed. BARTLEY, C. J., and SWAN, BOWEN and SCOTT, JJ., concurred. Note. 1816, Rumford School District v. Wood, 13 Mass. 193; 1823, Todd v. Birdsall, 1 Cowen (N. Y.) 260; 1834, Andrews v. Estes, 11 Maine 267, 26 Am. Dec. 521; 1835, McLoud v. Selby, 10 Conn. 390, 27 Am. Dec. 689; 1837, Chase v. Merrimac Bank, 19 Pick. (Mass.) 564, 31 Am. Dec. 163; 1841, Connell v. Woodward, 5 How. (Miss.) 665, 37 Am. Dec. 173; 1843, Gaskill v. Dudley, 6 Met. (Mass.) 546, 39 Am. Dec. 750; 1873, Whitney v. Stow, 111 Mass. 368; 1878, Talbot Co. v. Queen Anne Co., 50 Md. 245. Joint stock companies are sometimes called private quasi corporations, i. e., they have some of the features of corporations, but not all. Morawetz Corp., § 6, and cases cited. See case cited supra, p. 110. Sec. 41. (c) Corporations in their relation to the state are: 1. Purely public. 2. Quasi-Public. THE BANK OF THE STATE OF SOUTH CAROLINA v. GIBBS, EXECUTOR. 1825. IN THE Court of Appeals of South CAROLINA. 3 McCord (S. Car.) Reports *377. The question in this case was, whether a simple contract debt due to the Bank of the State of South Carolina was a debt due to the public, within the provisions of the executor's act (Pub. Laws, 494), and as such entitled to a preference, as a public debt. NOTT, J.-The act of the legislature, upon the construction of which the decision of this case depends, directing the order in which the debts due by a testator or intestate shall be paid, provides, "that the funeral and other expenses of the last sickness, charges of probate of the will, or of letters of administration, shall be first paid; next, debts due to the public," etc. The question now is, whether the debt in this case is in the sense of the act a debt due to the public. There is nothing on the face of the proceedings which will authorize us to view it in that light, for we must look beyond the case itself to see that the state has any interest in it. It is not then a debt due to the public; but it is due to the corporation, though the money, when received, may be for the use of the state. In the case of the United States Bank against the Planters' Bank of Georgia (9 Wheat. 907), Chief Justice Marshall, who de livered the opinion of the court, said: "The suit is against a corporation, and the judgment is to be satisfied by the property of the corporation and not by that of the corporators. The state does not, by becoming a corporator, identify itself with the corporation. The Planters' Bank of Georgia is not the state of Georgia, although the state holds an interest in it. It is," he says, "a sound principle, that when a government becomes a partner in a trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen." I can not distinguish that case from the one now under consideration. It is true, the state of Georgia held but a part of the interest in that bank, and the state of South Carolina owns the whole in this. But, nevertheless, we may, with truth, say, in the language of that opinion, the Bank of the State of South Carolina is not the state of South Carolina; it is only a corporation created for particular purposes, possessing the same powers and privileges of other corporations, and no more. The state did not transfer any portion of its sovereignty to this corporation, nor communicate to it any of its privileges or prerogatives, but has placed it on the same level with other corporate bodies, with the same privilege of suing, and liability of being sued, as an incident to such corporations. I am of opinion, therefore, that the same principle by which the case referred to was governed is applicable to this case, and that the bank is not entitled to any such preference as is contended for—and that is the opinion of the court. The motion is therefore refused. Note. See cases cited to People v. Morris, infra, pp. 229, 234. Sec. 42. Same. McKIM v. ODOM.1 1831. IN THE High Court of Chancery of Maryland. Chancery (Md.) 407-433. 3 Bland [This bill was filed on the 23d of June, 1827, by William S. Moore and John McKim, Jr., against John Odom, George Law, William G. Harrison, William F. Anderson and the president and directors of the Franklin Bank of Baltimore. The bill states that the plaintiff, Moore, and the defendant, Odom, being joint and equal owners of the schooner Beauty, sent her on a voyage from Baltimore to Montevideo, under Odom as master; that, for the better management of the concerns of their vessel, they employed the defendants, Law & Harrison, then partners in trade, as her ship's husband; that it was agreed by these owners, before their vessel sailed, that she might be sold, and she was sold accordingly, at Montevideo, for about $12,000; and there were remitted in specie, by the United States ship Cyane, as a part of the proceeds of sale, about $9,000, with a bill of lading for 1 Statement of facts abridged. Arguments omitted; much of the opinion omitted. 223 the defendant Law; that on the 10th of April, 1826, the plaintiff Moore assigned all his interest in the schooner and her earnings to the plaintiff McKim, of which Law was duly notified; that afterward and immediately on the arrival of the ship Cyane, the defendant Law, by means of his bill of lading, obtained possession of the specie remitted, had it exchanged in Philadelphia, and thence transmitted to Baltimore, where he had the greater part of it deposited in the Franklin Bank, in the name of the defendant Anderson, in trust for his, Law's, use; that the object of the defendant Law in withholding, and thus secretly depositing the proceeds of sale, was fraudulently to compel the plaintiff McKim to submit to certain unjust and improper charges, which he, Law, as ship's husband, claimed a right to have allowed and deducted from those proceeds. Upon which the plaintiffs prayed relief and an injunction to stay the money so deposited in the hands of the bank. An injunction was granted accordingly. On the 12th of December, 1828, the plaintiffs, by their petition, stated that the president and directors of the Franklin Bank of Baltimore had been regularly returned summoned, and had refused to answer the amended bill, whereupon the plaintiffs prayed that a distringas might be issued against that corporation.] BLAND, Chancellor. The mode of proceeding against contumacious natural persons, who neglect or refuse to answer, is well established and sufficiently energetic, but the course of proceeding for that purpose against artificial bodies or corporations is different, more feeble and much more tardy, there being no legislative provision for enforcing an appearance or answer from such defendants. So far as I have been able to ascertain, this is the first instance of an application to this court for coercive process against a body politic. Corporations have latterly become very numerous, and new ones are created at almost every session of the legislature; the matter now submitted for determination, therefore, has an importance much above the interests of the case out of which it arises, and requires to be carefully considered with a view to the course of proceeding in future. Under the provincial government corporations were framed and called into existence, as in England, either directly by or with the immediate sanction of the lord proprietary or the monarch. But, however they may have been originated formerly or elsewhere, it is certain that they can now only be established here by the authority of the legislature. The multitude of bodies politic that have been created either by the government of the province or of the republic, most of which still subsist, may be considered, in reference to their objects, as belonging to one or other of three distinct classes. [Public.] The first kind are such as relate merely to the public police, which, by assuming upon themselves some of the duties of the state, in a partial or detailed form, and having neither power nor property for the purposes of personal aggrandizement, can be considered in no other light than as the auxiliaries of the government of the Republic; and consequently, as the secondary and deputy trustees and servants. of the people. The right to establish, alter or abolish such corpora tions seems to be a principle evidently inherent in the very nature of the institutions themselves, since all mere municipal regulations must, from the nature of things, be subject to the absolute control of the government. These institutions, being, in their nature, the auxil iaries of the government in the great business of municipal rule, can not have the least pretention to sustain their privileges, or their existence, upon any thing like a contract between them and the government, because there can be no reciprocity of stipulation, and because their objects and duties are incompatible with everything of the nature of such a compact. The power of acquiring and holding property, although almost always given, is by no means a necessary incident to corporations of this class; they may be established without any such capacity; as in the instance of the commissioners for emitting bills of credit.1 The preservation of morals, and the administration of justice are the chief ends for which government has been instituted; and infancy, insanity, infirmity and helpless poverty have an undoubted claim upon the protecting care of the republic. Bodies politic of this class, having these objects in view, are city corporations; levy courts; county schools for the provincial or state government; public colleges; hospitals; trustees of the poor of several counties, etc. 8 [Private.] The second class of corporations are such as have no concern whatever with the duties of the republic; nor in any manner bound to perform any acts for its benefit; but whose only object is the personal emolument of its members. The corporators in such institution may also, in some sense, be considered as trustees; but then, even in that character, they are the mere factors of individuals; and, therefore, their resignation or removal can not divest or alter any of the rights of the individuals they represented. Each member of such an aggregation either was a proprietor at the commencement, or became so during the existence of its incorporation; and consequently, unless he has aliened his right, must continue to be so after its dissolution. A corporation not being, like a natural person, one of the elements of society, of which government is formed, can only be considered as a creature of the law. It is the law alone which gives to it a personality distinct from that of each of its members, and confers on it the right to act by its president, directors, or agents, in a manner analogous to that in which the government itself acts by its regularly constituted functionaries. This individuality of character, and the right so to act is, then, nothing more than a portion of the power of the government with which it has been invested. It is this power which is given by the creation of a body politic, and which, by its extinguishment, is resumed, and nothing more; the rights of property vested in its |