Adams v. President of Wiscasset Bank , 1 Me. 361 ( 1821 )

Mellen C. J.

at the succeeding term in Cumberland delivered the opinion of the Court, as follows.

The question presented by the plea in abatement in this case does not appear to have been decided in Massachusetts ; nor is there any statute provision which in express terms embraces it. It depends on the construction of the statute which relates to the service of civil processes.

The first section of Revised Stat. ch. 93. provides “ that every “ coroner within the county for which he is appointed, shall “ serve all writs and precepts when the Sheriff or either of his “ deputies shall be a party to the same ; and shall-return ju- “ rors de talibus arcumstantibus in all causes where the sheriff “ of the county shall be interested or related to either party.” In all other cases the sheriff or either of his deputies may make legal service of processes within his county. In the case of Brewer v. New-Gloucester, 14 Mass. 216. it is decided that each inhabitant of a town is to be considered as a party to the suit, when such town sues or is sued, within the meaning of the last mentioned section, which is a transcript of a similar law now in force in Massachusetts. It is contended by the counsel for the defendants that a stockholder in a banking institution sustains the same character in respect to the corporation, as an inhabitant of a town does to the corporation of which he is a member ; and that therefore each stockholder is as much a party in a suit against the bank, as each inhabitant of a town is in a suit against such town. If this position be correct, the plea in abatement is good, and the writ must be abated.

In the case of Riddle v. The proprietors of locks, &c. on Merrimack river, 7 Mass. 169. Parsons C. J. says, “ We distinguish “ between proper aggregate corporations, and the inhabitants of “ any district, who are by statute incorporated with particular “ powers by their consent. These, in the books, are sometimes ” called quasi corporations. Of this description arc counties “ and hundreds in England, and counties, towns, &c. in this “ State.” No private action, unless given by statute, lies against quasi corporations, for a breach of corporate duty. 2 D. & E. 667. Having no corporate fund, each inhabitant would be liable to satisfy the judgment. The common law does not impose this burthen; though a statute may. In regular corporations, having a corporate fund, this reason does not exist. But an action at common law lies against a turnpike corporation by any person specially injured by neglect to repair the road. 7 Mass. 188. and Cowp. 86. there cited. If an owner of land have sustained damage by the laying out of a turnpike road, the corporation, and not the corporators, are answerable for such damage. 5 Mass. 520. It is well known that all judgments against quasi corporations may be satisfied out of the property of any individual inhabitant; but an execution against a banking company incorporated, or any other proper aggregate corporation cannot be satisfied except out of the corporate fund ; neither the person nor the private property of a stockholder or corporator can be taken. The question before us must therefore be settled upon this comparison of the powers, duties, and liabilities of corporations properly so called, with those of quasi corporations.

In the case of Brewer v. New-Gloucester, before cited, the Court assign as the reason of their opinion, that when judgment is recovered against a town,, the execution may he levied on the properly of any inhabitant, and so each inhabitant must be considered as a party. It would seem to follow from this very decision, that if a banking corporation had been defendant in that action, instead of New-Gloucester, and Nevens the deputy sheriff had been a stockholder, the writ would not have been abated ; because, not being liable to have his property seized on execution, he was not a party within the meaning of the statute. Suppose the Wiscasset bank should sue one of the stockholders;— in such case the corporation would be one party, and the stockholder the other ; and for the reasons before given, if he be a deputy sheriff, the writ must be served by a coroner. Such stockholder would be a party, in the fullest sense of the term ; because the execution which would issue on the judgment against him, would run against his person and his property.

The argument arising from inconvenience is very strong against this plea. Shares are continually changing owners; and a corporation of this kind, if disposed to be evasive, might by frequent and secret transfers, abate every process commenced against them.

We do not consider the cases cited from Cranch and Gallison as applicable to the question under consideration. In the former case of Bank of the U. S. v. Deveaux the Supreme Court sustained the action by admitting the plaintiffs to aver that they, the President, Directors and Company, were citizens of Pennsylvania, and the defendants citizens of Georgia. It was a mere question of jurisdiction ; and for the purpose of jurisdiction the individual character of the stockholders was averred, to give it. In the latter case, of Society v. Wheeler, Story J. in remarking upon the case of Bank v. Deveaux, says, “ If the Court for this “ purpose will ascertain who the corporators are, it seems to “ follow that the character of the corporators may be averred, “ not only to sustain, but to bar an action brought in the name “ of a corporation. It might therefore have been pleaded in “ this case, even if the corporation had been established in a “ neutral country, that all the members were alien enemies.” But neither of these cases has a tendency to shew who is a party to a suit within the meaning of our statute, and for the purpose of due service of legal process. And accordingly, notwithstanding the research and talent displayed in support of the plea, we are of opinion that it is bad and insufficient.

Respondeat ouster awarded.

Note. Weston J. being interested in the cause, gave no opinion.