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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.' 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.
8 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 (N. Y.) 568; ante, $ 561 ; post, 8 7647. Baptist Church, 108 U. S. 317. Cor. Thus, it has been held that the fact porations formed by the legislatures that the clerk of a corporation has of certain States, while in armed re- not been sworn and has not filed, in bellion against the United States, had the office of the register of deeds, the power, after the suppression of the certificate of his appointment rerebellion, to sue in the Federal courts, quired by law (South Bay Meadow if their acts of incorporation had no Dam Co. v. Gray, so Me. 547), or the relation to anything else than the fact that the amount of the capital domestic concerns of the State, and stock of the corporation has not were, neither in their apparent pur- been fixed pursuant to the governing pose nor in their operation, hostile to statute (City Hotel v. Dickinson, 6 the Union, nor in conflict with the Gray (Mass.), 586), - does not disable constitution, but were mere ordinary it from maintaining actions in its corlegislation, such as might have been porate name. had if there had been no war or no Ante, 09 6720, 6721; Building As8o. attempted secession, and such as is of v. Anderson, 7 Phila. (Pa.) 106. yearly occurrence in all the States. • Van Pelt v. United States MetalUnited States v. Insurance Compa- lic Spring &c. Co., 13 Abb. Pr. (N. 8.) nies, 22 Wall. (U. S.) 99.
(N. Y.) 325. • Holmes v. Gilliland, 41 Barb.
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.s
$ 7372. Sovereign States may Sue as Corporations. — A State, being a corporation, may sue to enforce a contract in
Ante, 68 7268, 7269. • Ante, 9 6718, et seq.
• Bank of United States v. McLaughlin, 2 Cranch C. O. (U. 8.) 20.
• Bank of Alexandria 0. Patton, 1 Rob. (Va.) 499. See also May v. State Bank, 2 Rob. (Va.) 56; 3. 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.
8 Bank of United States v. Planters' Bank, 9 Wheat. (U. S.) 904.
the courts of another State of the American Union.' A for. eign government may sue in the courts of one of the American States."
8 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.'
8 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 stock. holders 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
2 Mexico v.
· Indiana v. Woram, 6 Hill (N. Y.), 33; 8. c. 40 Am. Dec. 378.
Arrangois, 11 How.Pr. (N. Y.) 1, 6.
3 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 seg. " 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.
8 7375. Corporation may Maintain an Action against its Own Members. - As already seen, a corporation may contract
2 with and sue one of its own stockholders, officers, or corporators, in his individual capacity.
ARTICLE II. ACTIONS BY CORPORATIONS.
SECTION 7380. Corporations entitled to what
remedies. 7381. May maintain actions of as
sumpsit. 7382. May sue in trespass. 7383. May maintain actions sounding
in damages. 7384. May have summary remedies.
SECTION 7385. Special statutory remedies in
favor of corporations. 7386. Remedies on commercial paper. 7387. Action by corporation on prom
ise made to its officer, 7388. Demand in actions by corpo
§ 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 to individuals under like circumstances. This is seen by what follows in this article.
be necessary, under the common-law system of pleading, for the assignee to bring an action upon it in the name of the corporation to his use. The corporation would not be responsible for costs, and hence could not refuse the use of its name. The fact of the assignment would, of itself, be a consent to that use. Nor could it prevent the use of its name by a receiver (ante, 68 6979, 6980), or by its assignee for creditors.
1 Union Man. Co. 6. Pitkin, 14 Conn. 174. The power of the board of directors to authorize the institution of an action, the very nature of which is to destroy the corporation itself, -as for instance to direct the filing of a petition to have the corpo
ration adjudged a bankrupt, has been denied. Re Lady Bryan Min. Co., 2 Abb. (U. S.) 527. But, as the directors clearly have the power to direct the making of an assignment of all the assets of a corporation for the benefit of its creditors (ante, $ 6473), it is difficult to see how this holding can be maintained.
• Ante, $$ 1075, et seq.; 4462.
• Wausau Boom Co. v. Plumer, 35 Wis. 274, The trustees of schools and school lands, in Mississippi, are corporate bodies, and, as such, may maintain an action against a member of their own bodies. Connell v. Woodward, 5 How. (Miss.) 665; 8. C. 37 Am. Dec. 173.
8 7381. May Maintain Actions of Assumpsit, — The old idea was that a corporation could not maintain an action of assumpsit, because it could only contract by its common seal, and hence could sue only in covenant. But this idea is ex. ploded, and the settled law is that a corporation can sue in assumpsit whenever an individual can. Thus, an incorporated bridge company may maintain assumpsit for the use and occupation of premises held by its tenant. As already seen, assumpsit may be maintained by a corporation against a shareholder upon his express promise to pay his proportion of the legal assessments upon stock issued to him.
§ 7382. May Sue in Trespass. Although the old conception was that a corporation could only act by its seal, still it did not follow that it could not be acted upon except by its seal. It could own property, and if a trespass were committed thereon, it could maintain an action of trespass to recover damages therefor.
8 7383. May Maintain Actions Sounding in Damages. Corporations, like individuals, constantly maintain actions,
| That a corporation cannot have &c. Turnp. Co. v. Gould, 6 Mass. 40; equitable relief in behalf of its stock- 8. C. 4 Am. Dec. 80; Goshen &c. Turnp. holders, when they are without equity, Co. v. Hurtin, 9 Johns. (N. Y.) 217; see Arkansas River Land &c. Co. v. 8. C. 6 Am. Dec. 273; Dutchess CotFarmers' Loan &c. Co., 13 Colo. 587; ton Manufactory v. Davis, 14 Johns. 8. c. 22 Pac. Rep. 954. That a corpo- (N. Y.) 238; 8. C. 7 Am. Dec. 459. ration may follow its property as a
Under the common-law system of trust fund when an individual might, pleading, a corporation may maintain
see Erie R. Co. v. Vanderbilt, 5 assumpsit upon a contract to take its Hun (N. Y.), 123.
stock at a specific price, or it may ? London Gas Light &c. Co. U.
declare on a contract to take stock Nicholls, 2 Car. & P. 365; ante, agreeably to the provisions of its $ 5046.
charter; and to such a declaration • Southwark Bridge Co. v. Sills, 2 the common counts may be added. Car, & P. 371.
Beene v. Cahawba &c. R. Co., 3 Ala. * Ante, $ 1823.
660. • Worcester Turnp. Co. v. Willard, • Greenville &c. R. Co. v. Partlow, 5 Mass. 80; 8. c. 4 Am. Dec. 39; Gil- 14 Rich. (S. C.) 237; Second Cong. more v. Pope, 5 Mass. 491; Andover Soc. v. Waring, 24 Pick. (Mass.) 304.