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8 7395. Case. — An action of trespass on the case, for malfeasance, will lie against a corporation aggregate. This form of action may, for instance, be maintained by a purchaser of the shares of stock of an incorporated bank against the corporation for its refusal to transfer the shares to him on its books.

8 7396. Trover. — As a corporation may, through its agents, have the custody of personal property, and as it may sometimes have that custody wrongfully, it follows that it is liable in the common-law action of trover, where the common-law system of pleading prevails, or in an action of a similar nature under the modern codes of procedure, by the owner of goods and chattels, for the conversion of them to its own use.

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8 7397. Replevin. — For the same reason, an action of replevin will lie against a corporation, - the object of this action being to recover, if possible, the specific goods or chattels and damages for their detention, and if it is not possible to recover them, then to recover their value, and also damages for their detention.

8 7398. Ejectment. — The ancient notion that trespass could not be maintained against a corporation prevented, of course, corporations being made defendants in suits of ejectment. But this principle was early abandoned, and it has

" New York v. Bailey, 2 Denio subject of an action of replevin or (N. Y.), 433; Harlem v. Emmert, 41 other possessory action; and an inIU. 319.

stance of such an action is found in • Presbyterian Congregation v.Car- Louisiana, where it was held that an lisle Bank, 5 Pa. St. 345; ante, & 2463. alternative judgment for $40,000, in

* Yarborough v. Bank of England, case of default in obeying the order of 16 East, 6; Sherman v. Commercial the court to deliver the list, was inPrinting Co., 29 Mo. Apr. 31. That valid, the subscriptions being on credtrover lies, by a shareholder, against it and the judgment not recognizing the corporation for the conversion of or reserving defendant's right to rehis shares, see ante, 0 2455.

ceive a corresponding amount of stock. • It has been held that a stock sub- People's Brewing Co. v. Bæbinger, scription list, like a promissory note or 40 La. An. 277; 8. c. 21 Am. & Eng. other written obligation, may be the Corp. Cas. 333; 4 South. Rep. 82.

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long been regarded as the established law that the method of trying the title of land by ejectment extends to corporations of every kind, whether in the character of plaintiffs or defendants.

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§ 7399. Forcible Entry and Detainer. - The same principle will support the statutory action of forcible entry and detainer against a corporation aggregate.?

8 7400. Slander - Libel Slander of Goods. — A corporation may maintain an action for a libel;' and one corporation may maintain an action against another which slanders its business and represents its product to be of inferior quality.*

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§ 7401. Book Account. An action of “book account" may be maintained either by or against a corporation.

8 7402. Account Stated. An action may be maintained against a corporation to recover upon an account stated, in like manner as against an individual, — the same presumption existing that if the account, when rendered, is not correct, the alleged debtor will make objection to it within a reasonable time. The presumption would, no doubt, have the same

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11 Kyd on Corp. 187. See Den 0. Fen, 10 N. J. L. 237.

* It has been held that a statute declaring any person who shall “enter into or upon any lands, tenements, or other possessions, and detain or hold the same with force and strong band, or with weapons," etc., guilty of a forcible entry and detainer (Mansf. Ark. Dig., $ 3347), is applicable to the possession by a railroad company of a railroad, or part of a railroad, there being no reason in the nature of a possession of a section of a railroad line which takes it out of the language of such a statute, or out of the general principle which lies at the foundation of all actions of forcible entry and detainer. Iron Moun

tain &c. R. Co. v. Johnson, 119 U. 8. 608. This action is a species of statutory bill of peace, and proceeds on the principle that the law will not sanction the obtaining by violence of the possession of real estate, but, without entering into an inquiry as to title or right of possession, will compel the party, who has made a forcible entry, to surrender the possession, and litigate his right to possession in the courts.

Ante, 57383. • Buffalo Lubricating Oil Co. 0. Standard Oil Co., 42 Hun (N. Y.), 153; ante, $ 6316.

6 Vermont Mut. Fire Ins. Co. v. Cummings, 11 Vt. 503; Hunneman v. Fire District, 37 Vt. 40.

force in the case of a commercial corporation as in that of a commercial partnership; but in the case of other corporations, which act more slowly, it is conceived that it might be somewhat relaxed.'

8 7403. Use and Occupation. - While an action of assumpsit will lie against a corporation for the use and occupation of land, the plaintiff waiving the tort and suing upon an implied contract, yet it has been held that a statutory "action of contractfor the use of a railroad, cannot be maintained by the owner against persons who did not recognize his title, but used the railroad adversely to him, under a bona fide claim of right, by virtue of a lease from another person."

8 7404. Actions on Clauses of Charter. Where a clause in the charter of a corporation provides that any trustee or manager shall have a claim and lien upon the proceeds of the sales of the company's property, for expenses or debts incurred by him for its benefit, this gives a remedy at law against the company to recover such expenses and debts.

§ 7405. Actions on By-laws. - Where a right arises under the provisions of a by-law, an action, generally an action of debt at common law, will lie to enforce that right, a subject already considered."

1 Where resolutions were adopted by the trustees of a religious society, acknowledging the justness of a claim made by the plaintiff against the corporation, fixing the amount thereof, and agreeing to pay the same in a specified time, and were duly certified by the secretary of the board of trustees, and transmitted to the plaintiff, who thereupon assented to the proposition contained in the resolutions, and agreed to accept the sum offered by the trustees, - it was held that an action would lie against the corporation, notwithstanding it had omitted

to make a record of the vote of its board of trustees upon the resolutions, and that the plaintiff could recover upon the promise contained in the resolutions, under a count upon an account stated. St. Mary's Church o. Cagger, 6 Barb. (N. Y.) 576.

* Ante, $ 7392.

• Kittredge 0. Peaslee, 3 Allen (Mass.), 235.

• Stephens v. Green Hill Cemetery Co., 1 Houst. (Del.) 26.

Ante, § 949. See Watson Clerke, Carth. 75: 8. c. Comb. 138.

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8 7406. Actions for Violations of Public Duties. spect of the right of action against corporations, a distinction must be taken and constantly borne in mind, between the violation of a duty which the corporation owes to the public distributively, and the violation of a duty which it owes to the public in its aggregate capacity, that is to say, to the State. In respect of its liability for a violation of a duty of the for. mer kind, the corporation may be sued by the person to whom it owed the duty, and who was injured and damnified by its violation. In respect of a violation of a duty of the latter kind, the corporation can only be proceeded against by the State itself. A number of decisions will be found which really rest upon this distinction and conform to it, but in which the distinction itself is not clearly expressed. When a private person brings an action against a corporation in respect of the violation of some general public duty, it is sometimes loosely said that the liability of the corporation for the violation of such a duty cannot be raised in this collateral way, and that the only exception to the rule which prohibits collateral inquiry by a private citizen into the supposed illegal acts of a corporation, is where express legislative permission is granted therefor. This language does not lead the mind

" to a clear understanding of any principle; though the result of the decisions is that where the duty is undertaken by the corporation towards the members of the public distributively, —as where a railroad company undertakes to carry a passenger safely, or where a telegraph company undertakes to transmit a message properly, or where a canal company undertakes to keep its canal in a navigable condition for the use of its patrons, or where a municipal corporation undertakes to open a highway and keep it in repair, — the corporation is liable in an action to any individual damaged by its failure to perform the particular duty assumed. But where the duty is one that

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· Martindale 2. Kansas City &c. B. Co., 60 Mo. 508, 510.

i Shewalter v. Pirner, 55 Mo. 218; Land v. Coffman, 50 Mo. 243; Cham

bers o. St. Louis, 29 Mo. 543, 576; North Missouri Pac, R. Co. v. Winkler, 33 Mo. 354; Christian University v. Jordan, 29 Mo. 68, 71.

is assumed towards the public generally, or towards a considerable portion of the public in the aggregate,—as where & railway company fails to complete its road according to its charter, establishes it on a route not permitted by its charter, or establishes a depot at a place not permitted, or prohibited by law, or abandons some portion of its route and leaves the inhabitants of that vicinity without adequate service, - the injury is of that public nature which, unless the legislature has expressly given a private action to an individual, can only be redressed by a proceeding on the part of the State. The principle here laid down is somewhat analogous to the right of action for a nuisance. If the injury flowing therefrom is one sustained by the public, or by a neighborhood generally, and is not special or peculiar to the plaintiff, he has no right of action; the injury is to the public, and it must be redressed by a public prosecution by indictment? or information, or sometimes by an information in equity brought by the Attorney-General.

8 7407. Specific Performance. - Courts of equity powers will compel the specific performance of their contracts by corporations, where they would exert the same power against individuals. The question of the power of a court of chancery, by exerting its process in personam against parties before it, to compel them to perform acts relating to real property in

168;

Kinealy v. St. Louis &c. R. Co., 69 Mo. 658; Martindale v. Kansas City &c. R. Co., 60 Mo. 508, 510; Brainard v. Railroad Co., 48 Vt. 107; Brooklyn Park Comm’rs v. Ärmstrong, 45 N. Y. 234; 8. C. 6 Am. Rep. 70; Field on Damages, $ 39; Mills on Eminent Domain, § 317.

» Holman v. Townsend, 13 Met. (Mass.) 297; Stetson v. Faxon, 19 Pick. (Mass.) 147; 8. C. 31 Am. Dec. 123; Quincy Canal v. Newcomb, 7 Met. (Mass.) 276; 8. C. 39 Am. Dec. 778; Smith v. Boston, 7 Cush. (Mass.) 254; Stone v. Fairbury R. Co., 68 III.

394; 8. c. 18 Am. Rep. 556; Proprietors v. Nashua &c. R. Co., 10 Cush. (Mass.) 385; Kinealy v. St. Louis &c. R. Co., 69 Mo. 658, 663. Compare Jackson v. Jackson, 16 Ohio St. 163,

Little Miami Co. v. Naylor, 2 Ohio St. 235; 8. C. 59 Am. Dec. 667; Railroad Company v. Compton, 2 Gill (Md.), 20; Attorney-General v. West Wisconsin R. Co., 36 Wis. 466.

Post, 68 7774, 7782.

• Montclair Township v. New York &c. R. Co., 45 N. J. Eq. 436; 8. c. 18 Atl. Rep. 242.

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