it may be said that the power to sue and be sued is, by the principles of the common law, an incident of every corpora tion.1

§ 7361. This Power to Sue Coextensive with the Power to Make Contracts. It may be laid down, as a universal proposition, that the capacity of a corporation to sue and be sued is coextensive with its capacity to make and take contracts; since the power to make a contract, whereby an obligation might accrue to it, would be nugatory, unless it could apply the ordinary legal remedies to enforce that obligation; and "it surely would be a flagrant departure from all principle to hold that such contracts could not be enforced against them." It is upon these grounds that counties are held liable in actions ex contractu, though in many States they cannot be sued ex delicto. It follows, as a necessary consequence, that where the power is conferred upon any collective body of men to make and take contracts in their aggregate capacity, they have the

1 Ante, § 1, et seq.; Libbey v. Hodgdon, 9 N. H. 394, 396, opinion by Wilcox, J.; Breene v. Merchants' &c. Bank, 11 Colo. 97; s. c. 20 Am. & Eng. Corp. Cas. 532; 17 Pac. Rep. 280: Grant County v. Lake County, 17 Or. 453; s. c. 21 Pac. Rep. 447; Planters' &c. Bank v. Andrews, 8 Port. (Ala.) 404, 425. See, also, Berford v. New York Iron Mine, 56 N. Y. Super. 236. Compare ante, § 5. It is scarcely necessary to cite precedents of cases where this power has been ascribed to railroad companies · Baltimore &c. R. Co. v. Gallahue, 12 Gratt. (Va.) 655; s. c. 65 Am. Dec. 254-to turnpike companies-Dunningtons v. North Western Turnp. Road, 6 Gratt. (Va.) 160- or indeed to any particular kind of corporation; because we shall see, from an examination of each case, that the question was whether the party suing or being sued as a corporation was indeed a body corporate.

This, for instance, was the question where an action had been brought against the State Sinking Fund of Kentucky, and where the court held that it was liable to be sued, because it was a body corporate, although in its interests and functions closely connected with the State, against which no action could be brought. Sinking Fund Commissioners v. Northern Bank, 1 Met. (Ky.) 174. Such, also, was the question where the right to bring an action for an injury resulting from negligence against the Metropolitan Fire Department of New York, was challenged, the court holding it liable to be sued as a corporation. Clarissy v. Metropolitan Fire Department, 7 Abb. Pr. (N. s.) (N. Y.)

352.

McLoud v. Selby, 10 Conn. 390; 8. c. 27 Am. Dec. 689.

Ward v. Hartford Co., 12 Conn. 404, 407.

right to sue, and are liable to be sued, in respect to such contracts in such aggregate capacity. The conferring of such a power places them in the category of what are termed quasicorporations, and it is not necessary, in order to support a right of action against them in respect of a contract which they have made when acting within their statutory powers, that such a right of action should be given by any statute in express terms.1

§ 7362. Exception as to Liability for Breach of Corporate Duties. —A class of cases mark a clear exception to this rule; and these cases are those which hold that quasi-corporations, such as counties, are not liable to be sued for a violation or neglect of a corporate duty, as they are not corporations in the full sense of the term, but are rather to be regarded as geographical subdivisions of the State. It cannot be said that they have any corporate duties to perform. At least this is the narrow ground upon which certain courts have proceeded in reaching the conclusion that counties, which are termed quasi-corporations, are not liable at common law for the mere neglect of a corporate duty."

* McLoud v. Selby, 10 Conn. 390; 8. c. 27 Am. Dec. 689; Ward v. Hartford County, 12 Conn. 404, 407. Thus, school districts in New England are regarded as quasi-corporations in respect of this capacity, and the ground on which they are so regarded was thus well stated by Bissell, J.: "That these corporations are capable of suing and being sued, would seem to be strongly inferable from the powers and privileges conferred upon them by the statute. They have power to erect school-houses, to purchase lands on which to erect them, to levy and collect taxes, to appoint treasurers and collectors, and to do all necessary acts for the purpose of sustaining and regulating schools. They may, therefore, possess property and may make contracts; and may

not these contracts be enforced? Let it once be admitted (as indeed it must be admitted) that these corporations have the power to make contracts, and there is an end of the question. For it surely would be a flagrant departure from all principle to hold that such contracts could not

be enforced against them. A mechanic builds a school-house, in pursuance of a contract entered into with the school district. Could it be endured that he might not sue on that contract because an action was not given by statute?" McLoud v. Selby, 10 Conn. 390; s. c. 27 Am. Dec. 689.

Russell v. Men of Devon, 2 T. R. 667; 8. c. 1 Thomp. Neg. 575. This distinction is recognized in Riddle v. Proprietors, 7 Mass. 169; s. c. 5 Am. Dec. 35. It appears to be recognized

§ 7363. This Power Conferred by Statute and Constitutional Provisions. The power to "sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in courts of record, or any other place whatsoever," if not an incident to a corporation, is conferred in every incorporating act,'-as, for instance, by the act of Congress incorporating the Union Pacific Railroad Company. Constitutional provisions exist in many States, providing, in distinct terms, that all corporations may sue or be sued in all courts, in like manner as natural persons."

§ 7364. By What Statutes. Under a grant of "all such rights, privileges, and immunities as by law are incident or

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necessary to corporations, and what may be necessary to the corporations herein constituted," it is held that the right to sue exists.1 As elsewhere seen, statutes relating to actions and to jurisdiction, which use such general words as per," "debtor," "creditor," and even "citizen,"" are held to include corporations."

son,'

§ 7365. By What Statutes not Conferred.-A statute incorporating the members of a voluntary association, to whom moneys were due, and conferring upon the corporation the power to receive all those moneys to its use, and to give receipts to the debtors which would be evidence in any action to recover such moneys, was held not to empower the corporation to maintain an action at law in its own name to collect the same,—though it might give effectual discharges to the debtors on receiving payment. The decision seems unsound. Since the body became incorporated with power to receive the moneys, the right of action accrued to it by implication of law, under the principles above considered. A statute providing for an appeal from an award of arbitrators, upon the defendants entering into a recognizance with one or more sureties in the nature of special bail to make certain payments, or in default thereof to surrender the defendant or defendants to the jail of the proper county, has no application to corporations; since these bodies, being political, can neither be surrendered nor imprisoned. A corporation, therefore, might have its appeal without entering into a recognizance.

§ 7366. Corporations Deemed "Persons" for Remedial Purposes. The word "person" in a statute is interpreted

as including corporations aggregate, when the circumstances in which such corporations are placed are identical with those of natural persons who are expressly included in the statute, unless there is something in the statute showing a legislative intention to restrict its application to natural persons."

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§ 7367. Suable in What Manner. A private corporation is a creature of the State, and must be sued in such manner as the legislature provides; but if there is no statute prescribing the mode, the ordinary legal remedies applicable in the case of natural persons will be equally applicable in the case of corporations, except in so far as the differences which exist between artificial and natural bodies prevent them from being applied.

§ 7368. Power how Affected by Want of Organization. In strictness, a body of adventurers, not having a valid charter, or not duly organized as a corporation, cannot maintain an action in that character; though, as elsewhere seen," the defendant may be estopped by his conduct from setting up that they are not a corporation. On the other hand, if a body of adventurers, assuming to act as a corporation, but who have not been legally organized as such, threaten an injury to a

1 Ante, §§ 11, 5689, 7366; post, §§ 7790, 7804, 8059; Gaskell v. Beard, 33 N. Y. St. Rep. 852; s. c. 11 N. Y. Supp. 399.

Crafford v. Warwick Co., 87 Va. 110; s. c. 12 S. E. Rep. 147; 10 L. R. A. 129. See also Jeffries Neck Pasture v. Ipswich, 153 Mass. 42; s. c. 26 N. E. Rep. 239. Therefore, by statute in Massachusetts (Pub. Stats. Mass., ch. 3, cl. 16), a corporation may in that State maintain a petition to quiet title to lands. Jeffries Neck Pasture v. Ipswich, supra. Lord Coke in commenting upon the statute of 31 Elizabeth, chapter 7, respecting the erection of cottages, where the language is "no person shall," etc., says:

"This extends as well to persons, politicke and incorporate, as to naturall persons whatsoever." 2 Co. Inst. 736. See also Bank v. Merchants' Bank, 1 Rob. (Va.) 573. A corporation has been held to be an "inhabitant" under a statute providing for the reparation of bridges (2 Co. Inst. 703), and an "inhabitant and occupier," and therefore liable as such to pay poor rates. Rex v. Gardner, Cowp. 79, 83.

Holgate v. Oregon &c. R. Co., 16 Or. 123; s. c. 17 Pac. Rep. 859.

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Doboy &c. Tel. Co. v. De Magathias, 25 Fed. Rep. 697; Workingmen's Accommodation Bank v. Converse, 29 La. An. 369.

Ante, 1853; post, § 7647, et seq.