In its

whether a writ of mandamus is the proper remedy. The removal and abatement of a public nuisance is generally effected by indictment, which affords, in most cases, an ample and a satisfactory remedy; but it does not follow that a mandamus will not be issued where an indictment may be sustained. The cases referred to in the argument show that the remedy by mandamus has been adopted to compel a corporation to do its duty to the public and to individuals. form, the writ commands the performance of some act or duty therein specified, the execution of which is consonant to right and justice. (3 Steph. Com. 681.) Although railways have become important for public travel and transportation, yet they are private corporations, enjoying large privileges, and should strictly comply with the provisions of their charters. The public is interested in their successful operation, and their usefulness should not be impaired by any unnecessary restraints; but they must not be permitted to abuse the powers granted, and should be held to a strict performance of the duties enjoined. If the nuisance be abated by a removal of the track of the road or the piles which sustain it, the public would suffer in the temporary delay in destroying the connection. Whereas, the remedy by mandamus does not destroy the road or delay its operations, but commands the company to fulfill its duty to the public by pursuing the directions prescribed by their charter for crossing rivers and water

courses.

The remedy by mandamus has been often used in England, in cases not unlike the present. The Eastern Counties Railway Company obtained an act of Parliament for making a railway from London to Norwich and Yarmouth, and it appearing doubtful if the company intended to extend their road to the points indicated, a mandamus was issued calling upon them to complete the whole line of road pursuant to the provisions of the act. (Reg. v. Eastern Counties. Railway Company, 1 vol. Railway and Canal Cases.) Lord Denman, C. J., delivering the judgment of the court, says: "This interference is occasioned by inferior courts or persons refusing to proceed in some course prescribed by law, and not in consequence of any misapprehension or error in their course, provided they have entered upon it. And accordingly, if it had appeared that the company were substantially complying with the terms of their undertaking, there would have been at once a satisfactory answer to that application." The writ, in this case, was issued at the instance of stockholders; but it has also been granted to command a railway company to increase the height of a bridge erected by them over a public carriage road, according to the provisions of their act of Parliament. (Tapp. on Man. 243.) The remedy by mandamus will embarrass the company less in the progress, completion or use of their road than an indictment to abate and remove the obstructions complained of. The result of an indictment would be the punishment of the company by fine, and this might not afford to the public the relief which is sought, to which they are entitled, and which the railroad company are required by the provisions of their charter to afford. It is no objection to this mode

of relief, that the relators have another remedy, especially when that remedy is not so convenient, complete and beneficial. (Tapp. on Man. 24.)

"It is, therefore, ordered that a writ of mandamus issue."

The defendants appealed, and moved this court to set aside the order granting the mandamus, on the ground, inter alia.

3. That if the respondents have committed a nuisance, mandamus is not the proper remedy.

The opinion of the court was delivered by

GLOVER, J. The appellants have abandoned all the grounds in support of their motion, except the third, which submits that if they have committed a nuisance mandamus is not the proper remedy.

It is not necessary for the decision of this question to trace the writ of mandamus from its first institution to the present time, and to inquire how far it has been enlarged as a remedial process to advance justice and right. Its earliest application seems to have been suggested in aid of that clause of Magna Charta, which declares that "Nulli negabimus aut differemus justiciam vel rectum" (10 Mod. 48). There never has been any disposition to abridge the use of the writ of mandamus in cases where it is applicable as a remedy either by the action of the courts or by the legislature.

The general doctrine so earnestly insisted on by the appellant's counsel, that where there is a specific legal remedy the writ will not be granted, or, if granted, will be quashed, is fully sustained by reason, and by the authorities to which the court has been referred. But this general rule has been restricted to cases where the specific legal remedy is equally convenient, complete and beneficial.

The writ of mandamus has always been regarded as an appropriate remedy to enforce the performance of duties by artificial bodies. In the case of the King v. The Bishop of Chester (1 T. R. 396), Buller, J., says: "It is peculiarly the duty of this court to see that the powers created by the king's charter are properly exercised." How far an indictment is a specific remedy, was considered in the case of The King v. The Commissioners of Dean Inclosure, 2 M. & Sel. 8o. The commissioners had neglected to obey an order of the sessions directing them to set out a road as a public road, and it was held that indictment would not be a specific remedy, that is, such as the case demands, for it was a proceeding in panam for the past, and not a remedy for the future. It is admitted that if indictment be equally Gonvenient, beneficial and effectual, and such as the particular case demands, the court will not grant the mandamus. King v. Severn and Wye Railway Company, 2 Barn. & Al. 646. This is not the ordinary case of an obstruction placed in a highway which may be abated as a nuisance by indictment; but the obstruction of a highway by a railway, and in the free use of both, the public interest is involved. It is therefore important that in the application of a remedy, public travel and transportation should not be stopped or checked, either on the highway or railway. "It ought to be the concern of a court of justice to take care that whilst they are granting a remedy to one, they do not at

the same time expose others to great inconveniences, and likewise that the remedy be such as may prove effectual." (10 Mod. 48.) The relators do not require that the railway shall be destroyed, but that the corporation shall exercise the powers granted in the manner prescribed by their charter-not that they shall be punished by fine or otherwise, but that they shall do their duty to the public. This is a reasonable request, and can not be enforced by indictment without exposing the railway company to great inconvenience, and in the end it would not prove such a remedy as the case demands. Corporate bodies must be compelled in the performance of their duties to discharge their public obligations.

This court is of opinion that a writ of mandamus is an appropriate remedy to compel the defendants in crossing "rivers or other watercourses," to pursue the mode prescribed by their charter. The other grounds having been abandoned, the court has not considered the questions which they suggest. Since the writ of mandamus was granted an act has been passed by the general assembly, and has been brought to the notice of the court, which declares, "that the existing structure of said railway at the points of intersection of said road with the creeks known as New Market and Vardell's creeks, is hereby declared to be lawful, and the said company is hereby authorized to cross said creeks without drawbridges or other provision for the navigation of the same." This enactment necessarily supersedes the writ. It is therefore ordered, that the motion be dismissed, and that all further proceedings on the writ be restrained.

O'Neall, Wardlaw, Withers, Whitner and Munroe, JJ., con

curred.

Motion dismissed.

[See note, p. 55.

Note. The duties and liabilities of corporations will be the subject of later chapters. See infra, chs. 13-17, pp. 914-1766.

Sec. 9. Same.

(b) And of a private nature.

RIDDLE v. THE PROPRIETORS, ETC., ON MERRIMAC RIVER.' 1810. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 7 Mass. Reports 169, 5 American Dec. 35.

[Action on the case against the proprietors of a canal who were bound by their incorporation to construct their canal deep and wide enough for rafts of a specific size to pass through when the river below was navigable for craft of the same size. The proprietors negligently permitted the canal to become out of repair to such an extent that the plaintiff in attempting to transport a raft of the proper size, after paying the toll exacted, was unable to do so, and after his raft grounded he returned home for the purpose of waiting until there

1 Statement of facts condensed. Arguments and parts of the opinion omitted.

should be enough water to move the raft; while he was away a storm occurred, which occasioned the loss of a quantity of wood, a part of the raft, and the value of which the jury was directed to include in the damages.]

PARSONS, Č. J. [After a brief recital of the declaration.] The cause was tried on the general issue, and a verdict was found for the plaintiff agreeably to the judge's direction.

The defendants have moved for a new trial for the misdirection of the judge in a matter of law, and they have also moved in arrest of judgment for the insufficiency of the declaration.

[After holding that none of the objections to the verdict could prevail, the judge proceeded]:

We now come to the motion in arrest of judgment, which has been made on two grounds.

The first is, that it is not the duty of the defendants to keep the canal in repair, sufficient for the passage of rafts and boats of the description mentioned in the declaration. This ground is endeavored to be maintained on the supposition that the powers granted to the corporation were a privilege, which might be waived or exercised at its discretion. But we think this supposition is not correct. When the act of incorporation first passed, it was optional with the proprietors whether they would or would not take the benefit of it, but after they had made their election by executing the powers granted, and claiming the toll, then the duties imposed by the tenth section, to make the canals, etc., attached, from which they can not be discharged, but by a seizure of the franchise into the hands of the government, or by a repeal of the act with their assent.

But further to maintain this ground, the defendants have argued that, from the plaintiff's own showing, it is not the duty of the corporation to keep this canal in repair. By the statutes relating to this subject, if the corporation did not open this canal in seven years, for the passage of rafts and boats, then their powers as to this canal ceased. Now the plaintiff alleges, say the defendants, that when the injury complained of happened, which was more than seven years from the passing of the statutes, the proprietors had then, and for a long time before, neglected to open and dig this canal.

If we were obliged to adopt the construction of the plaintiff's allegation, on which the defendants insist, the objection ought to prevail. But attending to other parts of the declaration, we find it averred that this canal belonged to the proprietors, and that they, unmindful of their duty, neglected to open and dig the same of a sufficient depth, and permitted it to remain in a decayed state, and out of repair, and the passage to become and remain choked and filled up. We are now considering the declaration after a verdict, and the fair construction of this allegation is not that they never opened and dug the canal sufficiently, but that they neglected to open it by digging and removing the collection of matters which choked it and ob

structed the passage. We are, therefore, satisfied that the motion in arrest can not prevail on the ground we have been considering.

The other ground is that no action lies against a corporation for a breach of its duty by any person specially injured by the breach, and that the only remedy is by information or indictment. This point has been argued by the defendant's counsel with much ability, and has had all the attention we could give it in the short time the constitution of this court has allowed us.

The argument, when compressed, is that corporations, having only a legal and not a natural body, no capiatur lies against them; that in all actions of trespass and trespass on the case, where the general issue is not guilty, if judgment be against the defendant, a part of the judgment at common law is an entry of a capiatur; that, therefore, no such actions lie against a corporation at common law; and the statute, taking away the necessity of the entry of a capiatur, does not authorize an action which did not lie before.

That a process to take the body of a corporation does not lie is certainly true, but the defendants must show that in all actions of trespass a capiatur against the defendant may, from the nature of the action, be entered. In 21 Edw. 4, 7, 12, 27, 67, it is holden that a corporation can not be beaten, nor beat, nor commit treason or felony, nor be imprisoned for a disseizin with force, nor be outlawed, nor a capias in debt be awarded against them. These principles result from the nature of an aggregate corporation.

cor

But the defendants have relied on an opinion of Thorp, J., in 22 Ass. pl. 67. He there says that trespass does not lie against a corporation aggregate by its corporate name, for a capias and exigent do not lie against it. That a capias and exigent do not lie against poration is evident; but that no action of trespass lies is questionable. For it is agreed that a corporation may be fined on indictment, and the fine levied by distress; and why may not a corporation be amerced, and the amercement collected in the same manner? This has led us to look into the ancient law on this subject and we find Thorp's opinion overruled as to certain trespassess. In 31 Ass. pl. 19 a corporation is holden answerable in assize as a disseizor with force. In 8 H. 6, 1, 14, 6, an aggregate corporation was holden answerable in trespass for distraining the plaintiff's cattle until he paid a toll, which he was not bound to pay. Several other cases are mentioned in Theloal's Dig. lib. 4, c. 13, as trespass against a corporation for disturbing the plaintiff in the profits of his liberties; or for disturbing him in holding a leet. It is therefore very clear, from the examination of the old books, that some actions of trespass might, at common law, be maintained against aggregate corporations. And, as in these actions no capiatur could be entered, the omission of this entry can be no objection to actions of trespass on the case. The foundation of the defendants' argument seems to fail them.

Let us now leave the ancient cases and resort to the maxims of the common law, which are founded in good sense and substantial justice.

4-WIL. CASES.