principles of the law applicable thereto to hold the actual perpetrator and wrong-doer liable therefor.

The general principle is that every tort-feasor is liable for the injuries resulting from his own acts, and this, although he may have acted innocently, or bona fide as the agent of another. But this does not apply to the executive and ministerial officers of courts of justice, as will be observed in the selected cases in this and the preceding chapter. See, also, Dews v. Riley, 11 C. B., 434; 25 L. J. (C. P.), 264; Andrews v. Marris, 1 Q. B., 3; Field on Dam., § 762. And in Harman v. Tappenden, 1 East., 555, corporations were held not personally liable for an ultra vires tort, directed by them to be committed at a corporate meeting in the corporate name. See, also, Maud v. Monmouthshire, etc., Canal Co., 2 Dowl. (N. s.), 113.

It must be apparent that every tort is in one sense ultra vires, as corpora tions are not constituted to do wrong, nor is it any part of their express or incidental powers, but this is no defense to corporations if torts have been done by them or by their direction. See Ch. XII. But all parties who do a wrongful act, whether by instigation, direction or command of another, or not, must respond in damages for the injury thereby done to another. 1 Chitty on Plead., 147; 1 Hill. on Torts, 100; Burnard v. Haggis, 14 C. B. (N. s.), 45; Filliter v. Phippard, 11 A. & E. (N. s.), 347; Bullock v. Babcock, 3 Wend., 391; Hatfield v. Roper, 21 Wend., 615. And this doctrine applies even to infants and persons of unsound minds. Id. Morse v. Crawford, 17 Vt., 499; Williams v. Cameron, 23 Barb., 172; Conklin v. Thompson, 29 Barb., 218; Field on Dam., § 617 and notes. The bona fides of the act can only affect the measure of damages. Field on Dam., § 599.

CHAPTER XIV.

RETROSPECT, REVIEW, CONCLUSION.

History and growth of the doctrine.-It has been truly asserted by an eminent English author that "the doctrine of ultra vires is of modern growth." Brice's Preface to Ultra Vires. He says: "Its appearance as a distinguished fact, and as a guiding or rather misleading principle in the legal system of this country, dates from about the year 1845, being first prominently mentioned in the cases, in equity, of Coleman v. Eastern Counties Railway Company, in 1846; ante, p. 190; 10 Beav., 1; 16 L. J. (Ch.), 73; and at law, of Eastern Anglian Railways Company v. Eastern Counties Railway Company, in 1851; ante, p. 9; 11 C. B., 775; 21 L. J. (C. P.), 23.

Long before this time, however, it had been recognized in this country as a corporate doctrine, and established as a part of American jurisprudence. As early as 1804 it was discussed in the case of Head v. Providence Insurance Company, 2 Cr., 127; and the doctrine was recognized in 1817 in Buckley v. Derby Fishing Co., 2 Conn., 252; in 1818, in People v. Utica Insurance Co., 15 Johns., 352; in 1824, in Firemen Ins. Co. v. Sturgis, 2 Cow., 664; in 1827, in Bank of United States v. Dandridge, 12 Wh., 64; in 1829, in Beach v. Fulton Bank, 3 Wend., 575; in 1839, in Bank of Augusta v. Earle, 13 Pet., 519; in 1844, in Barry v. Merchants' Exchange Co., 1 Sand., Ch., 280; in 1850, in Perrine v. Chesapeake & Delaware Canal Co., 9 How., 172; and since that

time in many cases, both selected and referred to, in the foregoing chapters. Having been thus recognized and early rooted as a scion of corporate law in this country, it has become an important doctrine in our jurisprudence relating both to private and municipal corporations, although the application of the doctrine has been somewhat restrained and limited by the requirements of commercial law and the application of equitable principles in the dispensation of justice.

The doctrine has been frequently, as we have seen, characterized as odious, ungracious and unwelcome; and it is manifest that in its unqualified and rigid application, it frequently overrides the fundamental principles of equity; as for example, where the corporation is permitted to ignore an ultra vires contract, and at the same time retain the property or other consideration received under it.

The original doctrine, however, it is gratifying to notice, has been so moulded and qualified by the courts that it has lost much of its frigid and austere character, and is, year after year, being limited in its application by the requirements of the commercial law and the enforcement of the precepts of equity and the principles of common justice.

Conflict in the decisions.-The limitation, in the application of the doctrine to corporate commercial paper, has, in this country, become very well settled by the decisions of both federal and State courts; but there has been, and still is great uncertainty in its application in a variety of other cases. The reports abound with inconsistencies and irreconcilable conflicts in the application of the doctrine. This uncertainty is referred to by Mr. BRICE, in his preface to the first edition of his valuable work on Ultra Vires. He says: "It is ultra vires of the great Eastern Railway Company to run steam packets from Harwich (Coleman v. Eastern Counties Railway Company, 10 Beav., 1; ante, p. 190); but not of the South Wales Railway Company to run them from Milford Haven. (South Wales Railway Company, 10 C. B. (N. s.), 675.) It is ultra vires of a steamship company to sell the whole of its vessels except two (Gregory v. Patchett, 33 Beav., 597); but perfectly legal thus to dispose at one swoop of every one

of them. (Wilson v. Miers, 10 C. B. (N. s.), 348.) It is ultra vires of railway companies to enter into partnership (Charlton v. Newcastle and Carlisle Railway Company, 5 Jur. (N. s.), 1097), but not ultra vires to make arrangements for dividing the whole of the joint profits among themselves in fixed proportions. (Hare v. London and Northwestern Railway Company, 2 J. & H., 80.) It is ultra vires of the town of Southampton (Attorney-General v. Andrews, 2 Mac. & G., 225), or Sheffield (Reg. v. Mayor, etc., of Sheffield, L. R., 6 Q. B., 652), to incur expenses in order to obtain a proper supply of water for their respective inhabitants, but not so for Ashton-under-Lyne (Bateman v. Mayor, etc., of Ashtonunder-Lyne, 3 H. & N., 323, or Wigan, Attorney-General v. Mayor, etc., of Wigan, 5 DeG., M. & G., 52), to do exactly the same thing."

The decisions of the American courts have furnished some irreconcilable conflicts in the application of the doctrine, as will be noticed in the cases selected for this volume. Conspicuous among these are those that relate to the contracts and torts of corporate carriers, beyond their chartered lines. See ante, Ch. III, and notes. The doctrine applicable to such cases is now, however, very well settled by a great preponderance of authority, if not quite uniform decisions, and the plea . of ultra vires is no longer tolerated to enable corporate carriers to avoid their contracts, or defeat a recovery of damages for their tortious acts in such cases.

Municipal ultra vires torts.-There is another class of cases, as will be noticed, ante, Ch. XII, and notes, where there is a distinction drawn that would appear exceedingly fine and technical.

In Horn v. The City of Baltimore, ante, page 508, the suit was brought to recover damages done to a certain lot by reason of the grading of a certain avenue, which it was averred the city had no authority to grade. It was held in a former case against the city that the city had no right to grade the avenue (Porter's Case, 18 Md., 284), and it was stipulated that the record in said ease might be used in this. It appeared in that case that the mayor and city council of Baltimore were author

ized to have the avenue graded and paved on the application of a "majority of the front feet owners" of the land on both sides of said street, "if in their opinion consistent with the public good." The city commissioners, acting for the mayor and city council, on the application of a majority of front feet of the owners, proceeded to have the avenue graded; and this action, if not previously directed, was subsequently approved by an ordinance which also declared that the work was consistent with the public good. The complainant filed a bill to restrain the defendants from selling his land for the payment of the taxes levied to pay for the grading, and an injunction granted therefor was made perpetual. Although that case was for an injunction to restrain sale of land, the court in this case, although for a tort of the city through its agents, or officers, done colore officcii, and which, if not positively directed, was subsequently approved and adopted, held that the city was not responsible therefor.

In the case of Lee v. Sandy Hill, ante, page 513, the charter of the defendant provided that the village of Sandy Hill, the defendant, should have five trustees as officers, and that they should be commissioners of highways; and they, by virtue of their office, had authority to " lay out or alter any street or highway, through or upon any garden, orchard, yard or other lands in the village." Under a written resolution and order of such trustees the overseers of highways wrongfully entered upon the land of the plaintiff and moved back a fence erected by him in front of his lot, the trustees erroneously supposing the plaintiff's fence was an encroachment upon the street. In a suit by the owner against the village to recover damages therefor, it was held that he could recover. The distinction between this case and Hone v. The City of Baltimore, ante, consists in the fact that the court in the latter case held the city had not, by its mayor and council, previous to the grading caused to be done by its commissioners of streets, determined by any resolution entered upon its minutes at any of its meetings, that such action was consistent with the public good, as provided by the statute, although they did by such resolution afterwards so declare, and approve of the grading. In Thayer v. City of Boston, ante, 525, Chief Justice SHAW