of incorporation. 1. Held, a member of this society is bound by an act of the assembly, (Virginia,) varying the terms of the original act of incorporation. Such act being enacted at the instance of a legal meeting of the said society, though that individual member was not present at the meeting. 2. If an act of incorporation provides there shall be "three directors, out of whom a president shall be chosen," he may be elected at a legal meeting and when the other directors are chosen without having been previously appointed a director. The alteration was to separate the interests and risks of the inhabitants of the country from those of the towns, it being found that the risks in towns were much the greatest, also to lessen the number of directors. The assessment disputed by Currie was on the town members for half of a quota, but not on the country members. So increased his risks, as he said, without his consent. The authorities relied on in the case clearly show the decisions in it were made on English common law authorities, adopted in Virginia; so generally the principles of this case are principles existing in all our states settled under English laws. 26 Vin. 344; Burr. 1656, 1661; Stra. 314; 2 Kyd on Corp. 100, 200; 1 Bl. Com. 485; 3 Burr. 1386; 2 Stra. 1091; 1 Kyd on Corp. 312, 451; 16 Vin. 113; 4 Com. D. 153; 1 Rev. Cod. 58; 1 Kyd on Corp. 401; 1 Bl. Com. 476. The constitution of the United States as to impairing contracts, if it had any bearing, it was very remote, 4 Burr. 2120, Rex v. Dawes & al. The material principle settled in this case. was, that a legal change could be made in a corporation by its corporate consent, and an act of the legislature, without the consent of each and every individual member. It was a part of this case that each member might withdraw giving six weeks' notice, and paying existing assessments. But it is doubtful if this circumstance was of any weight, as the unequal half quota was required only twenty-seven days after the charter was altered, and within the six weeks. Comment. Though the report in this case occupies above forty pages, we have to inquire, for what purpose this half quota was assessed? Was it to make good some loss by fire which happened before the said alteration in the charter, made Jan. 29, 1805, or which happened after that was made? If before, the decision was clearly wrong. It is perfectly clear, that if rights vest in persons by the laws and contracts in force at the time, they cannot be devested and transferred from them to other by corporate votes or legislative acts, or both without such persons' consent had in some form. It is equally clear as to burdens or charges fixed on persons by the laws and contracts in force at the time; they cannot be transferred from them to others, and put upon them by such votes or acts, or СH. 22. Art. 1. CH. 22. both, without such other person's consent had in some form. There is a material distinction between property corporation, as insurance, bank, turnpike, canal, &c. and mere governmental corporations, as towns, cities, &c. These are established merely for the purposes of political and municipal government, and may be made or altered by the legislature without individual consent, as is every day's practice, and often altered without corporate consent, because they are only a mere incorporation of powers for the convenience of those immediately incorporated and of the government. They do not vary individual rights, nor are they founded on any contracts previously made by the incorporated. They may settle on the same tract of land, independently of each other, and be incorporated into a town, without entering previously into any contract whatever among themselves. The case is very different with such property corporations. In the very nature of the case the first act of the members is an express contract among themselves to create their capital stock, to manage it and to share the profits; by this they fix exactly what each one is to do and receive. In making this, each individual is an independent party, who can sue and be sued, and while few in numbers they can well, and often do execute the contract without any incorporation, and when incorporated, their incorporation is a mere corporation of powers, a grant or gift of the legislature to enable them to manage their property or stock with more convenience. But no vote of a majority, nor any corporate vote or legislative act, or these altogether, can vary the terms, and rights, and burdens fixed by such contract without the consent of each and every such independent party, expressed or implied in some form or manner. It is true they can provide in this contract, that the terms of it may be altered by a majority or by a legislative act, or by both, or in other manner, and this will be the individual consent of every one, who signs it, to the alteration. But no such consent appears in Currie's case. The case might be different if the half quota was assessed to indemnify a loss, or to satisfy some charge arising after said alteration in the corporation was made, and he was liable to pay his assessment if he might have avoided it by withdrawing. The principles and distinctions noticed in this comment are essential to be attended to in all cases of corporations. CHAPTER XXIII. Сн. 23. Art. 1. ASSUMPSIT. CARRIERS. -1 Salk. 249. ART. 1. All persons carrying goods for hire are common car- See Bailriers. $1. And if they refuse to carry goods or money, having ment, above. conveniences so to do, an action will lie against them, and all Imp. M P. carriers are bound to deliver goods to the persons to whom 290.-Owen directed. Bul. N. P. 70; 12 Mod. 3, 482. But one is not a 93.-Hob. 18. common carrier who engages, though for hire, to carry the goods of a particular individual. 57.-Allyn 144, 149. § 2. And if goods or monies be delivered to a common car- Imp. M. P. rier, he is under a contract in law to pay or carry them to the 291.-Jones person appointed; and if he do not, an action of assumpsit lies 1 Com. D. against him. And such is a master or owner of a ship, hoy- 288. man, stage coach, &c. See Clarke v. land Bank, 8 Mod. 178, 3. In this action there is in the nature of things some 1 Selw. 323.-mixture of contract and tort, or contract and neglect, or non- Gray, Ch. feasance. Nor has it ever been decided which preponderates. 175, a. 6. See There is clearly an express or implied promise to perform the Gray v. Portintended service, and the failure to perform is the neglect; Ch. 76, a. 2, and this is sometimes attended with carelessness, and even s. 11.fraud. And so may the case be circumstanced, that the injur- Harrison v. ed party may often have his election to ground his action on Green.— the assumpsit or on the tort. A carrier may plead non as- Hob. 17, 18. sumpsit, or according to many cases, not guilty. This action is founded on some particular parts of the common law, often called the custom of the realm. But every thing pecular in this action against carriers has resulted from the nature and necessity of the case, and a great object has ever been to prevent fraud. Company. 4. In this action of Garside against the proprietors of the 4 T. R. 582, Trent and Mersey Navigation, the defts. were charged as Garside v. Proprietors common carriers of hops from Stourport to Manchester, of the Trent thence forwarded to Stockport, on their undertaking for the plt. and Mersey Neglect in not sending them from Manchester to Stockport. Navigation The hops were directed to the plt. at Stockport, and delivered to the defts. to be carried from Stockport to Manchester, where they arrived safe, and there were put into the deft's. warehouse, and there were burnt by accident, the first night after put there, and before any carrier came from Stockport to whom they could be delivered. The defts. in the course of their business charged nothing for thus lodging goods in their warehouse. Judgment for the defts., who in CH. 23. 2 Ld. Raym. See Bail ment, Jones 144.-Doct. & Stud. 1 Inst. 89.Jones 145, 146. 89.-8 Co. this matter were viewed as mere warehouse men. 5. By the common rules in bailment a carrier for hire ought to be responsible only for ordinary neglect, and in the time of Henry VIII. it was generally so holden. And the rule seems to have been, "that a common carrier was chargeable in case of a loss by robbery, only when he had travelled by ways dangerous for robbing, or driven by night, or at any inconvenient hour;" that is, had been guilty of some ordinary neglect at least. 6. But as early as the time of Elizabeth the law was settled as it now is, and if the carrier was robbed it was held, he was answerable for the value of the goods. And as the law Bul. N. P. 70. now is, "nothing will excuse him except the act of God or of 71.-4 Burr. the king's enemies." Not as Lord Coke says, because of his 2301-Co. L. hire; for that, as before stated, only makes him answerable 84-5 T. R. for his ordinary neglect. But on principles of sound policy, 389, Hyde v. lest being allowed the excuse of robbery &c., he might conNavigation federate secretly with robbers and desperate villains. The act Company from Treat to of God is better expressed by inevitable accident; and the king's enemies are his public enemies, not rebels. See post, art. 4. This case is consistent with that of Garside. In this case the defts. were not carriers between Manchester and Stockport, but their transportation as carriers terminated at Manchester; and if they engaged any further, it was only to see the hops delivered to another carrier between Manchester and Stockport. Mersey. 6 T. R. 369, 282.-3 Wilson 429, 7. In this case the court held, carriers were liable on conBiddle v. Wil- tract, and must be joined when the action is on their underson.-1 Wils. taking. It is ex contractu; and the declarations are generally on the undertaking and assumpsit. There can be no doubt but that this action against carriers may often be assumpsit, when all the carriers must be joined, and the plea is non-assumpsit, as if a carrier for a valuable consideration undertake to carry my goods to Boston, and refuse to receive or carry them, I may have assumpsit against him. Salk. 282. Govitt v. 8. But also this action against a carrier may be founded on tort, and the undertaking of the carrier be considered as matter of inducement in the action, and the negligence as the gist of it, then the plea is, not guilty; and if brought against two defts. one may be acquitted, and judgment against the other. As in 3 East 62 to 70; the declaration stated the defts. Radnidge & loaded the plt's. hogshead of treacle on their cart for a certain al. CH. 23. Art. 2. reasonable reward, to be paid by the plt. to two of them, and other such reward to be paid by the plt. to the third deft. ; yet they so carelessly, negligently, &c. conducted themselves in the loading of it &c., that in loading it the same was let fall, broke, and damaged, and lost. Plea, not guilty. Verdict against Rodnidge with damages, and the other two defts. were acquitted, and judgment accordingly, after a motion in arrest of judgment, on the ground the gist of the action was tort. In this action most of the cases on this point were cited and considered, as 2 Wilson 319, in which case a like count was Duhon v. joined with one in trover, and held well, being ex delicto, and Clifton, not ex contractu, though arising out of a contract. Raym. 909, respecting the hogshead of brandy, which see, Coggs v. Barpost. On the other side in favour of the actions being on nard. contract were cited Buddle v. Wilson, and Dale v. Hall, 1 Wils. 282, in which case the declaration was in assumpsit, and the plea non assumpsit. Lord Ellenborough C. J. said, there is no inconvenience in allowing the plt. to allege his gravamen if he pleases, as consisting in a breach of duty arising out of an employment for hire, and to consider that breach of duty as tortious negligence, instead of considering the same circumstances as forming a breach of promise implied from the same consideration of hire. So 2 Ld "By allowing it to be considered either way, according as the neglect of duty or breach of promise is relied upon as the injury, a multiplicity of actions is avoided; and the plt., according as the convenience of his case requires, frames his principal count in such a manner, as either to join a count in trover therewith, if he have another cause of action for the consideration of the court, other than the action of assumpsit, or to join with the assumpsit the common counts, if he have another cause of action to which they are applicable," as for money had and received &c. Salk. 735, Coggs v. Barnard.-2 Show, 478.2 Ld. Raym. 909. ART. 2. In what cases assumpsit lies against carriers or not. 1. This was a declaration in tort against a carrier, alleging that he undertook (without saying for hire or reward) safely to take up certain hogsheads of brandy out of a cellar and deposit them in another, but that he so negligently &c. put them down, that one of them was staved. Plea, not guilty, and verdict for the plt. And on a motion in arrest of judgment, the declaration was held to be good; for the gist of the complaint was misfeasance. And Gould J. said, the declaration was good either way in assumpsit or tort. See the declaration at large in 2 Show. 478, in Boson v. Sanford. § 2. The declaration was, that the deft. at the plt's. request 1 Wils. 281, undertook to carry certain goods from such a port to such a Hall. port, and in consideration thereof the plt. promised to pay him 282, Dale v. |