v. THE GREAT NORTH OF ENGLAND RAILWAY the said last-mentioned highway, the level whereof was so altered by THE QUEEN means of the said railway as aforesaid, unlawfully, injuriously, and wilfully did alter, make, and leave, and did cause to be altered, made, and left, with an inclination which exceeded one foot in 20 feet, in contempt of our said lady the Queen, and her laws, against the form of the statute in such case made and provided, and against the peace of our said lady the Queen, her crown and dignity. 8th Count.-And the jurors aforesaid, upon their oath aforesaid, do further present, that before, and at the time of the committing of the offences hereafter next mentioned, there was, and from thence hitherto hath been, and still is, to wit, at the township of Hurworth aforesaid, in the said county of Durham, a certain other common and public Queen's highway, leading from the village of Hurworth, in the county of Durham, unto Croft-bridge, also in the said county, used by and for all the liege subjects of our said lady the Queen, on foot, and with their horses, coaches, carts, and carriages, to go, return, pass, repass, ride, and labour in and along the same highway, at their free will and pleasure. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Great North of England Railway Company, on the said 3rd day of July, in the year aforesaid, at the township aforesaid, in the county aforesaid, unlawfully, injuriously, and wilfully did erect, and cause to be erected, a certain bridge, for the purpose of carrying the said last-mentioned highway, being a public carriage road, over a certain railway, by a certain Act of Parliament in that behalf authorized to be made by the said company, with an ascent, which, for the purpose of the said last-mentioned highway, exceeded one foot in 20 feet, in contempt of our said lady the Queen, and her laws, against the form of the statute in such case made and provided, and against the peace of our said lady the Queen, her crown and dignity. 9th Count.-And the jurors aforesaid, upon their oath aforesaid, do further present, that before, and at the time of the committing of the offence hereafter next mentioned, there was, and from thence hitherto hath been, and still is, to wit, at the township of Hurworth aforesaid, in the said county of Durham, a certain other common and public Queen's highway, leading from the village of Hurworth, in the county of Durham, unto Croft-bridge, also in the said county, used by and for all the liege subjects of our said lady the Queen, on foot, and with their horses, coaches, and carriages, to go, return, pass, repass, ride, and labour in and along the same highway, at their free will and pleasure. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Great North of England Railway Company, on the said 3rd day of July, in the year aforesaid, at the township aforesaid, in the county aforesaid, unlawfully, injuriously, and wilfully did alter, and cause to be altered, by means of a certain railway, by a certain Act of Parliament in that behalf authorized to be made by the said company, the level of a certain part of the said last-mentioned highway, situate and being in the township aforesaid, in the county aforesaid, and lying between a certain bridge there erected by the COMPANY. v. THE GREAT NORTH OF THE QUEEN said company, for the purpose of carrying the said last-mentioned highway over the said last-mentioned railway, and Croft-bridge aforesaid, and containing in length 200 yards, and in breadth 10 yards; and the said part of the said last-mentioned highway, the level whereof was so altered as aforesaid, unlawfully, injuriously, and wilfully did alter, make, and leave, and did cause to be altered, made, and left, with an inclination which exceeded one foot in 20 feet, in contempt of our said lady the Queen, and her laws, against the form of the statute in such case made and provided, and against the peace of our said lady the Queen, her crown and dignity. The second, third, and fourth counts were substantially the same as the first, except that the third and fourth alleged an obstruction by the erection of a bridge on the highway; and the sixth was the same as the fifth. This indictment was tried before Mr. Justice Wightman, at the Durham Spring Assizes, 1845, when a verdict was found for the prosecutor. Wortley, in the following Term, obtained a rule to shew cause why that verdict should not be set aside, and a verdict entered for the defendants, or why the judgment should not be arrested. That rule was obtained upon the following grounds:-1st. That a corporation is not indictable for misfeazance, though it is for nonfeazance. 2nd. That the first four counts could not be supported, because the company, under their Acts of Parliament, had an absolute and independent power of entering upon and cutting up the road for the purpose of making a bridge: and the provision requiring the bridge to be built with a certain ascent was not a condition precedent to that right, but might be enforced by mandamus. 3rd. That there was a variance, as to certain counts; and, 4th, as to others, that they were bad in arrest of judgment, for not alleging that the bridge which caused the obstruction was erected in and upon the highway. Otter, Granger, and Bovill (on Tuesday, May 26, and Monday, June 8) shewed cause,—1. A corporation is as much indictable for misfeazance as for nonfeazance; no valid distinction can be drawn between the two cases; and R. v. The Birmingham and Gloucester Railway Company (3 Q. B. 223), in effect decides the one point as well as the other. In that case this Court held, upon demurrer, that a corporation aggregate might be indicted by their corporate name, for disobedience to an order of justices requiring such corporation to execute works pursuant to a statute. It cannot be disputed that, for a private injury, trover will lie at the suit of an individual against a corporation; and if an action can be maintained for a private injury, an indictment will lie for a public wrong. (R. v. Trafford, 1 B. & Ad. 874, 886.) [PATTESON, J.-That decision was reversed in error.] But not as to the point for which it is now cited. In Maund v. The Monmouthshire Canal Company (4 M. & G. 452; 5 Scott, N. R. 457), it was also held that trespass as well as trover would lie against a corporation aggregate. If the act be done in the discharge of their corporate duties, by servants acting within the scope of their employment, then the corporation is liable, though the employment be not under the corporate seal (Yar v. THE GREAT NORTH OF ENGLAND borough v. The Bank of England, 16 East, 6); for a corporation THE QUEEN is just as capable of doing an act as an individual; they do the act by their servants; as in this very case, the corporation is expressly formed for the purpose of making a railway; and actions are constantly maintained against corporations for acts done by their servants, as for wrongful distresses; Smith v. The Birmingham Gas Company (1 Ad. & Ell. 526), where it was decided that a corporation is liable in tort for the tortious act of its agent, though not appointed by seal, if such act be an ordinary service; for injury occasioned by the negligence of their servants (Mathews v. The West London Waterworks Company, 3 Campb. 403; R. v. Medley, 6 Car. & P. 292); or for breaches of duty cast upon them by statute. (Parnaby v. The Lancaster Canal Company, 11 Ad. & Ell. 223.) So in Tilson v. The Warwick Gas Company (4 B. & C. 962), debt, upon a statute, for costs incurred in obtaining an Act of Parliament, was held maintainable against a corporation; and in Henley v. Lyme Regis (5 Bing. 91, and S. C. in error, 3 B. & Ad. 77), it was held that an obligation to repair sea-banks, cast upon a corporation by charter, being one which concerned the public, an indictment would lie, in case of non-repair, against the corporation for its general default; and an action on the case for a direct and particular damage sustained in consequence by an individual; in which last case, it was said, arguendo (5 Bing. 108), that though a corporation might be liable for misfeazance, they were not for nonfeazance,-the converse of the argument used in the present case. Again, in Hall v. The Mayor, &c. of Swansea (5 Q. B. 526), it was held that the proprietor of tolls wrongfully taken and withheld by a corporation aggregate may sue the corporation in assumpsit for money had and received. Formerly, the rule that corporations aggregate could speak and act only by their common seals was very strictly adhered to; the exceptions were very few; but a change in the state of society, and the creation of a large number of trading corporations, have introduced new considerations and numerous additional exceptions to that ancient rule. This change is much discussed in Beverley v. The Lincoln Gas Company (6 Ad. & Ell. 829, 837, et seq.); Church v. The Imperial Gas Company (6 Ad. & E. 846, 861), and The Mayor of Ludlow v. Charlton (6 Mee. & W.815, 820); and the principles there laid down are applicable here. In Murray v. The East India Company (5 B. & Ald. 204, 210), the Court were clearly of opinion, "that wherever an Act of Parliament authorizes a corporation to draw and accept bills, it must be taken to give the holder of those bills the same remedy against the body corporate as the law gives in other cases against any parties to a bill." This being a corporation, created by Act of Parliament, for the purpose of making a railway, they must, like individuals, confine themselves within the limit of the powers given by the Act; and if their agents exceed that limit, the ordinary rule of respondeat superior will attach to the corporation as much as it would to individuals; and inasmuch as an indictment is no more than an action by the Queen for a public injury, there is no ground for contending that such a corporation is not liable to an indictment. No difficulty can arise as to the judg ment; for the judgment may be fine or imprisonment, or both; and v. THE GREAT NORTH OF THE QUEEN the fine may be levied by distress. In R. v. The Severn and Wye Railway (2 B. & Ald. 646), a mandamus issued to compel a railway company to reinstate and lay down again their railway which had been taken up; but there an indictment would not have been an efficient remedy; and what is said in the Sutton's Hospital case (10 Rep. 32, b.), relates to cases where the animus is the gist of the offence, as treason. (a) The dictum of Holt, C. J., in Anon. (12 Mod. 559), is disposed of by the judgment of the Court in R. v. The Birmingham and Gloucester Railway Company, where the following passage occurs:-" But it was said that an indictment will not lie against a corporation. Only one direct authority was cited for this position, and it is a dictum of Lord Holt, in an Anonymous case, reported in 12 Mod. The report itself is as follows: Note, per Holt, Chief Justice.-A corporation is not indictable, but the particular members of it are.' What the nature of the offence was, to which the observation was intended to apply, does not appear; and, as a general proposition, it is opposed to a number of cases, which shew that a corporation may be indicted for breach of a duty imposed on it by law, though not for a felony or for crimes involving personal violence, as for riots or assaults. (Hawk. P. C. B. 1, c. 66, s. 13.)" All difficulty as to process was met and overcome in Chancery, in the case of Salmon v. The Hamborough Company (1 Ch. C. 204). Secondly, it is argued that the common counts cannot be maintained, because the Act of Parliament justified the obstruction. Now, the Act of Parliament (6 & 7 Wm. 4, c. 105), by section 11, gives a general authority to cut the road and to erect the bridge; but by section 73 it is enacted that, "where any bridge shall be erected, for carrying any public carriage-road over the said railway, the road over such bridge shall be formed, and shall at all times be continued of such width as to leave a clear and open space between the fences of such road of not less than fifteen feet, and the ascent of every such bridge, for the purpose of such public carriage-road (if a turnpike-road), shall not be more than one foot in thirty feet; and with respect to any public carriage-road (not being a turnpike-road), shall not be more than one foot in twenty." That clause, therefore, limits the general power previously given; and according to the principles laid down in R. v. Scott (3 Q.B. 543), the statute gives no protection unless its provisions are complied with. A mandamus might, perhaps, be obtained to compel the erection of a proper bridge, but that affords no answer to this indictment which it would not have afforded to that in R. v. Scott. Lastly, the eighth count is good; for, first, it follows the words of the seventy-third section of the Act; and, secondly, it does sufficiently allege that the bridge was made over the railway, and along and upon the highway. Knowles, Bliss, and Addison, contrà.-Although an action may (a) The following is the passage referred to:-"A corporation aggregate of many is invisible, immortal, and rests only in intendment and consideration of the law; and, therefore, in 39 H. 6, 13 14 B., a dean and chapter can't have predecessor nor successor. (21 E. 4, 27 (a), and 30 E. 3, 15 (b).) They can't commit treason, nor be outlawed, nor excommunicate, for they have no souls; neither can they appear in person but by attorney (33 H. 8, Br. Ab. Fealty, pl. 15.) A corporation aggregate of many can't do fealty; for an invisible body can neither be in person, nor swear (Plo. Com. 213, and the Lord Barkley's case, 245); it is not subject to imbecilities or death of the natural body, and divers other cases." V. THE GREAT NORTH OF ENGLAND RAILWAY COMPANY. lie against a corporation for the acts of its servants, if done under THE QUEEN the authority of the corporate seal, or if expressly directed to be done, and although an indictment for nonfeazance may lie against a corporation, yet for misfeazance it will not; and the authority of R. v. The Birmingham and Gloucester Railway Company (3 Q. B. 223, 232) was expressly limited to cases of nonfeazance, to the omission to perform some duty imposed by law. For an indictment against a corporation, charging the positive commission of a wrongful act with violence, as here, there is no precedent; and the distinction between the two classes of cases is founded in reason. If a corporation is bound to do a particular act, as to repair a road by prescription, the neglect to do it could not be made the subject of an indictment against any individual member; but with regard to the commission of a wrongful act, the law can always be put in force against him who does the act; and if the corporation employ a beggar, still the liability may be traced back to the individual who gave the order. A corporation has no visible existence, and cannot be guilty of felony or treason, as is admitted even by the other side; and it is laid down in Hawk. P. C. (lib. i. c. 66, s. 13), that a corporation cannot be indicted for crimes involving personal violence, as for riots or assaults. The dictum of Lord Holt (Anon. 12 Mod. 559), quoted by Patteson, J. in R. v. The Birmingham and Gloucester Railway Company, though meagre, is also an express authority in support of the same view. A corporation might have no property, and then no fine could operate; and certainly no former conviction or acquittal of the corporation could be pleaded to an indictment against an individual member for the same offence. A corporation cannot use force; it cannot beat or be beaten, or do any corporal wrong. (See 4 Man. & G. 453, Note of Cases from the Year-Books; and Viner's Ab. Corporations, Z. 2.) But force is a necessary part of this indictment. Again, "In all actions quare vi et armis, as rescues, trespass, vi et armis, &c., if judgment be given against the defendant, he shall be fined and imprisoned, for to every fine imprisonment is incident; and always when the judgment is quod defendens capiatur, it is as much as to say, quod capiatur quousque finem fecerit. So in an assize, if the disseisin be found with force, the defendant shall be fined and imprisoned; otherwise it is if the disseisin be found without force; for there he shall only be amerced, for the writ of assize doth not mention vi et armis, but injustè et sine judicio disseisivit." Beecher's case (8 Rep. 59); whence it appears that judgment quod capiatur in trespass would not apply to a corporation; and that in actions for nonfeazance, the judgment would be in misericordiá, that is, by amercement. In Bac, Abr. Corp. E. 2, it is said, "A corporation aggregate cannot distrain in their own persons, but by their bailiff, and therefore no replevin lies against them ;" and in the same volume (Disseisin, B.), "If a corporation aggregate disseise to the use of another, they are disseisors in their natural capacity, and the persons who committed the wrong shall be charged therewith, and not the corporation, which consists of a constant succession of various persons, and, as a corporation, can do no act without writing." It is argued that if an action will lie, the injury |