tract entered into and alleged to be ultra vires both corporations. The S. W. Co. were authorized to supply the town of Stockport with water taken from the river Mersey at a certain place, the city of Manchester was authorized to supply itself with water from another source, and the plaintiff was authorized also to supply the town of Stockport with water within certain limits. The bill alleged that the city of Manchester and the S. W. Co had entered into agreement for the purpose and were about to make a junction of their pipes in such a way that the S. W. Co. could obtain part of its supply from the city's pipes; this was alleged to be beyond the legal powers of either party; that the S. W. Co. had no right to obtain water from that source, and the city no authority to furnish water to Stockport; that the same, if carried out, would prejudice the rights of the plaintiff, and it asked to have the contract annulled and the parties enjoined. The lower court sustained a demurrer to the bill.]

LORD CHANCELLOR (WESTBURY).

(After holding that

the contract probably was ultra vires both parties.)

I can not see any private right which this incorporated Stockport Company has in this matter. I do not see how the overleaping of their limits by the Manchester corporation inflicts any amount of private injury upon the plaintiffs, so as to entitle them to seek redress in a court of justice. The legislature has in a variety of cases pointed out that which the principles of this court had already established— namely, that where an act of parliament is perverted to purposes not warranted by any person deriving rights under it, this court would restrain all excesses or transgressions of the legislative enactment. There is no difficulty, therefore, in defining the course of action for the purpose of restraining the conduct complained of, so far as that conduct is an injury to the public, or so far as the conduct affects individuals, to whom the Manchester corporation is properly responsible. But to the plaintiffs they are certainly not responsible. The plaintiffs have no interest in their action, so as to maintain a complaint against them. The plaintiffs are not qualified to represent the rights and interests of the public; and in one of these two capacities the bill of the plaintiffs, if it can be maintained, must be supported. In neither capacity do I think that the plaintiffs are entitled to call upon the court for relief. The plaintiffs, in point of fact, would, if they succeeded, have this consequence secured to them, that their own trade might possibly be benefited at the expense of their competitors. The people of Stockport might incur a very serious loss, because there would be a monopoly established in one company, which would have the power then of exacting the highest rates allowed by their acts of parliament; whereas, if the existing state of things is permitted to continue, that would not be the result. Now, supposing the plaintiffs applied to the attorney-general for the purpose of inducing him to file an information, probably that circumstance would be a very proper consideration for the attorney-general; and those are a few of the reasons which might be assigned, showing how desirable it is not to allow any private individual to usurp the right of representing the

public interest. The only arguments which I am disposed to accept from those which I have heard to-day are arguments founded upon the public interest, and the general advantage of restraining an incorporated company within its proper sphere of action. But, in the present case, the transgression of those limits inflicts no private wrong upon these plaintiffs; and although the plaintiffs, in common with the rest of the public, might be interested in the larger view of the question, yet the constitution of the country has wisely intrusted the privilege with a public officer, and has not allowed it to be usurped by a private individual. I must, therefore, allow the demurrer, confirm the order and dismiss the petition for rehearing, with costs.

Note. Accord: 1893, Southern Pacific Co. v. United States, 28 Ct. of Cl. Rep. 77; 1896, The Illinois, etc., Bank v. Pacific R. Co., 115 Cal. 287, 49 Pac. Rep. 196; 1900, Burke L. & L. S. Co. v. Wells, F. Co., - Idaho 60 Pac. Rep. 87.

TITLE IV. GENERAL DUTIES AND LIABILITIES.

CHAPTER 15.

LIABILITIES OTHER THAN UPON CONTRACTS.

ARTICLE I. TORTS.

Sec. 388. (1) Conversion.

YARBOROUGH ET AL. V. THE GOVERNOR & CO. OF THE BANK OF ENGLAND.1

1812. IN THE KING'S BENCH. 16 East's Reports 6-12.

[The plaintiffs declared in trover against the corporation of the governor and company of the Bank of England, for three promissory notes of the Bank of England, payable on demand, each for £100, describing them by their dates and numbers; to which the defendants pleaded the general issue. Verdict for plaintiff, and motion to arrest judgment.]

LORD ELLENBOROUGH, C. J. In this case, which was argued on Saturday, the only question was whether an action of trover is maintainable against a body corporate; in other words, whether a corporation can be guilty of a trespass or a tort. As a corporation they can do no act, not even affix their corporate seal to a deed, but through the instrumentality and agency of others; they can not, as a corporation, be subject to a capias or exigent (the process in trespass), because the remedies which attach upon living persons can not be applied to bodies merely politic and of an impersonal nature. But wherever they can competently do or order any act to be done on their behalf, which, as by their common seal they may do, they are liable to the consequences of such act, if it be of a tortious nature, and to the prejudice of others.

A corporation having the return of writs, or to which any writ, or a mandamus, for instance, is directed, is liable eventually to an action for a false return. The case of Argent v. The Dean and Chapter of St. Paul's, in this court, about the year 1781, was an action for a false return to a mandamus respecting an election to a verger's place in that cathedral, and no objection was made that the action would not lie. Vidian's Entries, p. 1, is an action for a false return against the mayor and commonalty of the city of Canterbury, for a false return to a writ of mandamus to restore an alderman to his precedency of place, etc. It states the mayor and corporation as attached to answer, and the return as falsely and maliciously made. The instances of actions against corporations for false returns to writs of mandamus, 1 Statement abridged.

(1236)

which are so often directed to them, must be numberless, though I have not found many of them in the books of entries. Bro. Corporations, pl. 48. A corporation can not be aiding to a trespass, nor give a warrant to do a trespass without writing, and cites 4 Hen. 7,9; and certainly it appears by that case, and by the sequel of it in 4 Hen. 7, 16, that a corporation can not give a command to enter into land, without a deed, nor do a thing which vests or divests a freehold, nor accept a disseizin made to their use, without deed. But many little things, it is said, require no command, by which must be meant no special commanding, as a command to servants to chase cattle out of their lands, or to make hay; being things which it is incident to e servant to do, and which he is bound to do without command: and if he do it, it is good, and the command is not material, for he may do it without command.

A corporation can not do a tort but by their writing under their common seal: per Fitzjames, Justice; Bro. Corporations, pl. 34, cites 14 Hen. 8, 2, 29, which imports that by their writing they may. A corporation may be defendants in an action of quaere impedit, and the hindrance is an act of tort. Butler v. The Bishop of Hereford and the University of Cambridge, Barnes C. P., 350; to which a multitude of other instances may be added: Rast., 497; Ast., 378; 2 Mod. Enc., 291; Winch. 625, 700, 721, 733; 2 Lut. 1100; 3 Lev. 332. The statute, 9 H. 4, c. 5, recites the practice, in assizes of novel "disseizin in other pleas of land, of naming the mayor and bailiffs and commonalty of a franchise, as disseizors, in order to oust them of holding plea thereof; and directs the inquiry before the judges of assize, whether they be disseizors or tenants, or be named by fraud;" which plainly proves that they may he considered as disseizors; and there are instances of trespass against corporations. In 44 Ed. 3, 2, pl. 5, which was after 22 Ass., pl. 67, cited in the argument. Trespass was brought against the mayor and commonalty of Hull and another person; and the objection made was not that trespass would not lie against the corporation, but that as a natural person was joined with them, there must be different processes; a distress against the former and a capias against the latter: But the objection does not appear to have prevailed.

In 8 H. 6, 1, 14, trespass was brought against the mayor, bailiff and commonalty, and one of the commonalty; and the objection was not that trespass would not lie against the corporation, but that it could not be supported against them and an individual of their body, and Bro. Corporations, pl. 24, says the better opinion was that the writ was good, and 14 Hen. 8, 2, says it was so awarded, and that in that case all the justices agreed to it. Brook also puts the case, "if mayor and commonalty disseize me, and I release to twenty or 200 of the commonalty; this will not serve the mayor and commonalty;" and the reason is because the disseizen is in their corporate character, and the release is to the individuals. And the case is put "that if mayor and commonalty disseize one of their own body, he shall have assize against them," which clearly imports that the corporation, as

2 WIL. CAS.-5

such, might be disseizors. Also, in 4 Hen. 7, 13, trespass was brought against the mayor and commonalty of York; they justified under a right in the inhabitants to have common: but this was adjudged no plea, because the right in natural persons gave no right to the corporation, and the trespass was alleged in the corporation. They then pleaded as bailiff's in aydant: but it was adjudged they could not be bailiffs aiding to a trespass, "nor could they give warrant without writing to commit a trespass;" which implies that by proper writing, namely, by deed under their common seal, they might. In the present case, which is after verdict, it must be presumed that a competent conversion was proved, and if it be essential to such conversion that there should have been an authority from the company under seal to detain the notes on their behalf, that such authority was proved. The fact, by reference to my notes, is that it was admitted that the bank detained the notes in question under an indemnity, and as no objection was taken to the terms of the admission, a competent detention, i. e., through the means of servants properly authorized to detain on their behalf, was thereby admitted; and, therefore, the presumption of due proof, after verdict, is in effect warranted by the facts of the case, if it had been material, which it by no means is, to resort to them. In the case of The King v. John Bigg, 3 P. Will. 419, it was made a question upon a special verdict in a case of capital felony, for erasing an indorsement upon a bank note, whether a person intrusted and employed by the governor and company of the Bank of England to sign notes on their behalf, was competently authorized for that purpose, not having been, as the special verdict expressly found, so intrusted and employed under their common seal. There is a long and learned argument of the reporter, Mr. Peere Williams, in which the authorities as to what acts a corporation may do by their servant without an authority under their common seal, are drawn together. The majority of the judges who sustained the conviction, must have been of opinion that an authority under their common seal was not essentially necessary for such a purpose; indeed, according to the report in 1 Stra. 18, of the same case, the doubt of the judges must have turned upon another point, namely, upon the import of the word indorsement (i e., the writing alleged to be erased); and whether it could be satisfied by an erasure of what was written on the face of the note. As to which Sir John Strange in his report says: "That it was held by all the judges that the defendant was guilty; for the writing on the face of the note was of the same effect as an indorsement, and being introduced by the company instead of writing on the back, and always accepted and taken to be an indorsement, was within the words of the indictment." The objection of the want of authority under the common seal is not even noticed in the report of this case by Sir John Strange. However, if there would have been anything in the objection in this case, if made at the trial, there is nothing in it after verdict, when it must be presumed, as I have already stated, that all the competent proof which could be made in support of the action was made, and of course that an authority under