third person, he may, it has been held, maintain a preventive action against them in their assumed corporate name.1 We have already seen that an action is not maintainable against a corporation for obligations contracted in its behalf, prior to its organization, in the absence of some act of ratification or adoption. But this does not concern the capacity of a corporation to be sued, as much as the causes for which it may or may not be sued.

§ 7369. De Facto Corporations. If, under principles already considered, the corporation exists de facto, it may exercise the power to sue, and the question of its having the right to exercise it will be deemed one which can only be raised by the State, except in those cases where it is proceeding to assert rights which, from their nature, can only exist in a corporation, e. g., to condemn land for the purposes of a railroad, under a statute granting such a power to corporations. A body which might have been properly organized as a corporation under an enabling statute, and which has attempted, though possibly without complying with the requisite formalities, so to organize itself, and which has acted as a corporation, executing deeds and releases in its corporate

1 Newton County Draining Co. v. Nofsinger, 43 Ind. 566. This case presents the incongruity of an injunction being procured against a threatened trespass by a defendant, impleaded as a corporation, on the ground that it had never been legally organized as such; and because of this absurdity, Pettit, J., dissented. Statutes exist, imposing limitations on the power of corporations to sue, until they have complied with certain formalities. For instance, section 299 of the Civil Code of California provides that every corporation must file in the office of the clerk of every county in the State in which it holds any property, except in the county where its original articles of incorporation

are filed, a certified copy of such articles, and prohibits a corporation failing to comply with this provision from maintaining or defending any action or proceeding in relation to such property, its rents, issues, or profits, until it does so comply. This, it has been held, does not prevent it from defending an action brought against it to recover for work and labor alleged to have been performed upon its property. Weeks v. Garibaldi &c. Min. Co., 73 Cal. 599; s. c. 15 Pac. Rep. 302.

1 Ante, § 480; Franklin &c. Ins. Co. v. Hart, 31 Md. 59.

• Ante, § 495, et seq.
• Post, § 7670.

5 Post, § 7660.

name, and which in that name has recovered judgment in a former action against the defendant now impleaded, will, on the principle of being a corporation de facto, if not de jure, be allowed to sustain an action for damages for a nuisance.1 As to what will be evidence of the existence of a corporation, we may recur to what has preceded, and refer to what will follow; with the statement, for our present purposes, that general reputation that the plaintiffs have been conducting business as a corporation, coupled with the fact that the obligation sued on was payable to them in their corporate name, will be sufficient to prevent a dismissal of their complaint on the ground that formal proof of their organization as a corporation has not been made."

§ 7370. Power, how Affected by Dissolution. So, after a corporation becomes dissolved, it can neither sue nor be sued, unless the faculty of suing or being sued is prolonged by statute for the purpose of winding up its affairs. But the mere insolvency of a corporation does not of itself determine this power, nor cut off any remedy which its creditors might otherwise have against it;' unless the governing statute otherwise

1 Baltimore &c. R. Co. v. Fifth Baptist Church, 108 U. S. 317. Corporations formed by the legislatures of certain States, while in armed rebellion against the United States, had power, after the suppression of the rebellion, to sue in the Federal courts, if their acts of incorporation had no relation to anything else than the domestic concerns of the State, and were, neither in their apparent purpose nor in their operation, hostile to the Union, nor in conflict with the constitution, but were mere ordinary legislation, such as might have been had if there had been no war or no attempted secession, and such as is of yearly occurrence in all the States. United States v. Insurance Companies, 22 Wall. (U. S.) 99.

'Holmes v. Gilliland, 41 Barb.

(N. Y.) 568; ante, § 561; post, § 7647. Thus, it has been held that the fact that the clerk of a corporation has not been sworn and has not filed, in the office of the register of deeds, the certificate of his appointment required by law (South Bay Meadow Dam Co. v. Gray, 30 Me. 547), or the fact that the amount of the capital stock of the corporation has not been fixed pursuant to the governing statute (City Hotel v. Dickinson, 6 Gray (Mass.), 586), — does not disable it from maintaining actions in its corporate name.

Ante, §§ 6720, 6721; Building Asso. v. Anderson, 7 Phila. (Pa.) 106.

Van Pelt v. United States Metallic Spring &c. Co., 13 Abb. Pr. (N. s.) (N. Y.) 325.

provides, as is frequently the case, notably in the case of national banks,' where the policy of the statute is to have a ratable judicial administration of all its assets for the benefit of its creditors. The deplorable consequences of a corporate dissolution at common law, when not provided against by a provision of the charter or by some general statute, might be avoided by making an assignment in trust of all assets of the corporation to trustees for the purpose of winding up its affairs. This was the course pursued previous to the expiration of the charter of the bank of the United States. In one case where this course was pursued, and, pending an appeal, the charter of the corporation expired, it was held that the court might inquire as to the fact of the assignment, and, upon being satisfied of the fact, might permit the case to proceed, without noticing on the record the dissolution of the corporation.

§ 7371. What if the State is a Member.-Although an action cannot be brought against a sovereign State without its own consent, yet if it chooses so far to cast off its sovereignty as to become a member of a private corporation, in that character it may be sued. It follows that the fact that the State is a member of a corporation, otherwise liable to suit, or even that it is the sole proprietor,' does not prevent the corporation from being sued; and such a corporation may be sued in a court of the United States, where the requisite jurisdictional grounds exist.

A

$ 7372. Sovereign States may Sue as Corporations. State, being a corporation, may sue to enforce a contract in

1 Ante, §§ 7268, 7269.

1 Ante, § 6718, et seq.

'Bank of United States v. McLaughlin, 2 Cranch C. C. (U. S.) 20.

Bank of Alexandria v. Patton, 1 Rob. (Va.) 499. See also May v. State Bank, 2 Rob. (Va.) 56; 8. c. 40 Am. Dec. 726.

Bank of United States v. Planters' Bank, 9 Wheat. (U. S.) 904. • Moore v. Wabash Canal, 7 Ind. 462. Western &c. R. Co. v. Taylor, 6 Heisk. (Tenn.) 408; Hutchinson v. Taylor, 6 Heisk. (Tenn.) 634.

• Bank of United States v. Planters' Bank, 9 Wheat. (U. S.) 904.

the courts of another State of the American Union. A foreign government may sue in the courts of one of the American States.2

§ 7373. Corporation cannot Sue as a Common Informer. It has been held, under a statute, giving an action for a penalty to any person or persons, that a corporation cannot sue as a common informer.

§ 7374. Power to Sue Exercised by Directors. The power of private corporations is, under nearly all charters and schemes of incorporation which we have examined, committed to a board of directors or trustees. Where the governing statute provides that the corporate powers shall be exercised by a board of directors, the corporation can obtain redress of injuries done to it only through the action of its board of directors, and if they are unable or unwilling to act, the artificial entity is incapable of obtaining a remedy; though, on principles elsewhere considered, the refusal of the corporate officers to proceed to obtain redress of a corporate grievance, by the appropriate action, may of itself open a remedy to the stockholders in equity. But it is not necessary, in order to make it appear that an action is rightfully brought by the corporation, that a resolution of the board of directors, authorizing or directing the bringing of the action, should be produced; though it has been said that it would be otherwise if the suit were brought in the name of the corporation solely for the use of somebody else. In that case it might be necessary, if such an action could be maintained at all, to show that there was authority for permitting the third party to use the name of the corporation. On the other hand, it is not necessary to

1 Indiana v. Woram, 6 Hill (N. Y.), 33; s. c. 40 Am. Dec. 378.

2 Mexico v. Arrangois, 11 How. Pr. (N. Y.) 1, 6.

7 Geo. II., ch. 7.

• Weaver's Company v. Forrest, 2 Strange, 1241.

• Arkansas River Land &c. Co. v.

Farmers' Loan &c. Co., 13 Colo. 587; 8. c. 22 Pac. Rep. 954.

Ante, § 4479, et seq.

Kenton &c. Man. Co. v. McAlpin,

5 Fed. Rep. 737, per Swing, D. J. But this is doubtful. If, for instance, a corporation has made an assignment of a non-negotiable instrument, it would

produce a resolution of the board of directors in order to prove that the withdrawal of a suit, brought by a corporation, has been made by the proper authority; but if the act be done by its agent or attorney, no other proof of authority will be required.1

§ 7375. Corporation may Maintain an Action against its Own Members.— As already seen,2 a corporation may contract with and sue one of its own stockholders, officers, or corporators, in his individual capacity.

ARTICLE II. ACTIONS BY CORPORATIONS.

§ 7380. Corporations Entitled to What Remedies.- Generally speaking, corporations have the same remedies at com. mon law, in equity, and under statutes, which are accorded