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another jurisdiction, is a disputable one.
It has been held that a court of chancery in one State has no jurisdiction to compel a domestic corporation to go into another State and specifically execute a contract to make improvements on lands, and, on its default, to enforce the decree by attachment and sequestration of its property in the home State."
§ 7408. Mode of Compelling Performance of Agreement to Arbitrate. — It is generally agreed that a court of equity will not com pel the specific performance of an agreement to arbitrate. Suppose, then, that there is a provision in the charter of a corporation requiring it to sell its property and business to the public at the expiration of a certain period, at a price and upon terms to be fixed by arbitrators, and, when the period arrives, the corporation refuses to join in the appointment of arbitrators as required by the charter, -what is the remedy? It is held that, while the duty to appoint arbi. trators will not be specifically enforced in equity, yet the corporation may be compelled to do so by mandamus; or the State may proceed in quo warranto to forfeit its charter, by reason of its willful refusal to perform one of the conditions on which it accepted it, and thus take back to itself the franchise and confer it upon the proper body for the benefit of the public.
§ 7409. Bills in Equity for Discovery.- The object of a bill of discovery in equity is to enable one party to search the conscience of his antagonist, and to compel him to make dis
' Port Royal R. Co. v. Hammond, 476; Greason v. Keteltas, 17 N. Y. 58 Ga. 523.
491; Tscheider 0. Biddle, 4 Dill. * Milnes u. Gery, 14 Ves. 400; (U. S.) 55; Hug 0. Van Burkleo, 58 Blundell v. Brettargh, 17 Ves. 232, Mo. 202; Biddle v. Ramsey, 52 Mo. 241; Street o. Rigby, 6 Ves. 815, 817; 153, 158; King v. Howard, 27 Mo. Agar v. Macklew, 2 Sim. & Stu. 418; 21, 25. Wilkes v. Davis, 3 Mer. 507; Gourlay
8 St. Louis v. St. Louis Gas Light v. Somerset, 19 Ves. 429; Tobey v. Co., 70 Mo. 69, 114; citing Union Pac. Bristol, 3 Story, 800; Norfleet 0. R. Co. v. Hall, 91 U. S. 343; People Southall, 3 Murph. (N. C.) 189, 190; v. Manhattan Gas Works, 45 Barb. Providence v. St. John's Lodge, 2
(N. Y.) 136; United States v. Union R. I. 46; Hopkins v. Gilman, 22 Wis.
Pac. R. Co., 3 Dill. (U. S.) 524.
closures upon oath, of facts necessary to the preservation of the rights of the former, which he otherwise might not be able to prove. The remedy has lost most of its efficacy since the adoption of modern statutes removing the exemption of parties from being witnesses in civil cases. Corporations could answer only under their common seal; whereas natural persons (peers excepted) are bound to answer under oath.' Therefore, in order to prevent a failure of justice arising from the circumstance that a corporation cannot take an oath and cannot be indicted for perjury for making an answer willfully false, the practice has long been settled to join the officers of the corporation, such as its secretary, book-keeper, or other officer, and even its members, as defendants in bills in chan. cery for the purpose of compelling them to make discovery for it. On the one hand, when discovery is sought of an
· Mitf. on Plead. 10.
lished in Massachusetts of making • Wych 0. Meal, 3 P. Wms. 810; one or more of its officers or members Anon., 1 Vernon, 117; Moodalay v. co-defendants, and of compelling them Morton, 1 Bro.C.C. 469; Dummer v. to make disclosure of such facts within Chippenham, 14 Vesey, 245; Brumly their knowledge as the corporation, v. Westchester Co. Man, Society, 1 if a natural person, could have been Johns. Ch. (N. Y.) 366. “It seems compelled to disclose, although their to be settled that a bill will lie against answers could not be used as evidence a corporation and its officers, to compel against the corporation. Their ana discovery from the oficers, to aid a swers enabled the plaintiff to ascerplaintiff or a defendant in maintain- tain, in advance of a trial, what the ing or defending a suit brought against facts within their knowledge were, or by the corporation alone.” Field, and to propound proper interrogatoJ., in Post v. Toledo &c. R. Co., 144 ries to them or to other persons as Mass. 341; 8. C. 59 Am. Rep. 86, 92: witnesses. Field, J., in Post v. Toleciting McComb v. Chicago &c. R. Co., do &c. R. Co., 144 Mass. 341 ; 8. C. 19 Blatchf. (U. S.) 69; Costa Rica v. 59 Am. Rep. 86, 90; citing Wright Erlanger, 1 Ch. Div. 171; Glasscott 0. Dame, 1 Met. (Mass.) 237. The v. Copper Miners' Co., 11 Sim. 305; practice of joining an officer of the Moodalay v. Morton, 1 Bro. C. O. 469.
corporation in a bill against it for a See, on the subject of discovery, Col- discovery, where the plaintiff is entigate v. Compagnie Française, 23 Fed. tled to a discovery, is explained in Rep. 82; MacGregor v. East India Co., McComb v. Chicago R. Co., 19 Blatchf. 2 Sim. 452; Bolton v. Liverpool, 1 (U. S.) 69. The reason of the rule is Myl. & K. 88. It is said that in suits stated by Lord Chancellor Talbot in against a corporation, as it answered the leading case of Wych v. Meal, 3 under its common seal and not under P. Wms. 310, which seems to have oath, the practice was early estab- finally established the practice, to be
officer of a corporation impleaded as a defendant in equity, the officer must be made a party for that purpose, although no substantial relief is sought against him.' On the other
that the plaintiff ought to have dis- under oath. Colgate v. Compagnie covery, and though the corporation Française, 23 Fed. Rep. 82. In the might answer under its common seal, case of Costa Rica v. Erlanger, 1 Oh. it would not be responsible for perjury. Div. 171, there was a cross-bill for a It is an exception to the general rule discovery against the plaintiff and that a witness cannot be joined for the president of the plaintiff Repubpurposes of discovery. A limitation lic. The only questions were as to of the rule is that the officer cannot staying the original action till answer, be joined as a party for the discovery and as to the right to choose the of what he did not learn as an officer, officer of the plaintiff Republic who or of the facts which he knew before should make the discovery. One of he became an officer. It has also the leading cases on this subject was been held that the plaintiff may join that of a “ bill against a corporation a member of the corporation for the to discover writings. The defendants purposes of discovery, although the answered under their common seal, latter is not an officer or agent of and so, being not sworn, will answer the corporation (Wright v. Dame, 1 nothing in their own prejudice. OrMet. (Mass.) 237); and it has been dered that the clerk of the company, held in the English Court of Chancery and such member or members as the that members of the corporation may plaintiff shall think fit, answer on be joined with an officer in such a oath, and that the master settle the bill. Glasscott 0. Copper Miners' oath." Anon., 1 Vern. 117, Anno Co., 11 Sim. 305. But, outside of the 1682. So, in a case against the East rule above stated, a bill for a discov- India Company an officer of the com• ery, in aid of a defense to an action, pany was made defendant in a bill cannot be maintained against one for discovery of orders and entries in who is not a party to the record at
the books of the company, and a delaw, though he may be interested in murrer to the bill was overruled. the subject of the action,-Lord Cot. Wych o. East India Co., 3 P. Wms. tenham saying: “The cases of officers 309, Anno 1734. In like manner, a of corporations stand on principles demurrer to a bill against the East entirely peculiar to themselves, and India Company and their secretary, have obviously no application to the praying for a general examination present case.” Queen of Portugal o. of witnesses in India, and that the Glyn, 7 Clark & Fin. 466. It is scarcely defendants might discover by what necessary to add that the plaintiff authority the plaintiff was disposmay waive his right to have an officer sessed of a lease for supplying Madras of the corporation joined who can with tobacco (the plaintiffs intending answer under oath and be responsible to bring an action), was overruled. for the penalties of perjury; and that Moodalay v. Morton, 1 Bro. C. 0. ho may therefore maintain a bill for 469, Anno 1785.
discovery against the corporation i Virginia &c. Man. Co. o. Hale, 93 alone in aid of an action against it at Ala. 542; 6. C. 9 South. Rep. 256. law, although it does not answer
hand, if no substantial relief is sought against him, and if no discovery is demanded from him in the bill, he is not properly joined as a party, especially where the bill waives answer under oath.' Moreover, it is a principle that mere witnesses, who are shown to be cognizant of the alleged facts, cannot be joined for a discovery. Upon this principle, it is held that where a bill in equity is filed by a creditor against a corporation, and also against its directors and officers, but no relief is prayed except as against the corporation, and no fraud, conspiracy, or breach of trust is charged against the directors and officers, they cannot be joined as defendants for the sole purpose of discovery. It is of the essence of a discovery that it should be under oath, and a party is impleaded as defendant for the purposes of discovery in order to compel him to answer under oath. When, therefore, the bill does not require an answer under oath, the officers of the corporation are improperly joined for discovery. Even though the answers of the corporation to the demand of the bill for a discovery cannot be read as evidence against the corporation, yet they may be of use in directing the plaintiff how to draw his interrogatories for the purpose of obtaining a better discovery. The former, as well as the present, officers of a corporation can be made parties to a suit against it, for the purpose of compelling them to make discovery of facts within their official knowledge.
8 7410. Mode of Procedure to Compel Discovery in Equity.—The practice is where the complainant desires a discovery in a suit in equity against a corporation, to join with the
i Colonial &c. Mort. Co. v. Hutch- 398. Compare Zelnicker v. Brigham inson Mort. Co., 44 Fed. Rep. 219. &c. Co., 74 Ala. 598; Watts v. Eufaula
• Howe v. Best, 5 Madd. 19; Story Nat. Bank, 76 Ala. 474. For a bill Eq. Plead., $ 235, note 2; Norwood not alleging facts entitling the plainv. Memphis &c. R. Co., 72 Ala. 563. tiff to a discovery from the directors,
• Norwood v. Memphis &c. R. Co., see Camp v. Taylor (N. J.), 19 Atl. 72 Ala. 563; Tutweiler v. Tuscaloosa Rep. 968. Coal &c. Co., 89 Ala. 391; 8. C. 7 • Wych v. Meal, 3 P. Wms. 310. South. Rep. 398.
• Fulton Bank v. Sharon Canal * Tutweiler v. Tuscaloosa &c. Coal Co., 1 Paige (N. Y.), 219. Co., 89 Ala. 391 ; 8. c. 7 South. Rep.
corporation as defendant, any director, officer, agent, or individual member from whom he seeks such discovery. This is regarded as an exception to the general rule of chancery practice that one who
be a witness cannot be made a defendant to a bill for discovery. The officers of a corporation will, in many cases, be made parties for the mere purpose of compel. ling them to make discovery of doings of the corporation, where no relief is sought against them as individuals.3 Although no relief is sought against the officers or agents, but merely a discovery, yet this discovery cannot be had from them unless they be joined with the corporation as defendants in the action; but the answer in such a case will be under the seal of the corporation, according to the knowledge and information and belief of its officers, ascertained from all proper sources of information."
8 7411. Further of This Subject. - Where the officers of a a corporation are thus joined for the purpose of discovery, the
, discovery is limited to matters coming to their knowledge in
i Wych v. Meal, 3 P. Wms. 310; Man. Soc., 1 Johns. Ch. (N. Y.) 366. Dummer v. Chippenham, 14 Ves. 245; Also it has been said that a bill for a Moodalay v. Morton, 1 Bro. C. C. 469; discovery will lie against the memLo Texier v. Anspach, 15 Ves. 159, bers of a corporation without joining 164; Gibbons v. Waterloo Bridge Co. the corporation where the members 5 Price, 491, 493; Glasscott v. Copper are personally liable for its debts. Miners' Co., 11 Sim. 305; Many v. Middletown Bank v. Russ, 3 Conn. Beekman Iron Co., 9 Paige (N. Y.), 135, 139; 8. c. 8 Am. Dec. 164. Where 188; Bronson v. La Crosse &c. R. Co., the officers or members of the corpo2 Wall. (U.S.) 283, 303, per Nelson, J.; ration are joined with the corporation Fulton Bank v. New York &c. Canal for purposes of discovery only, and Co., 1 Paige (N. Y.), 311, per Wal- the complainant, by mistake, inserts worth, Ch.
a prayer for relief against such officers, · Le Texier 0. Anspach, 15 Ves. as well as against the company, the 159, 164; Gibbons v. Waterloo Bridge officers can not demur to the discovCo., 5 Price, 491, 493; Many v. Beek- ery and relief generally. They should man Iron Co., 9 Paige (N. Y.), 188; make the discovery sought, and demur Story Eq. Pl., § 234,
to the relief; or should answer the bill • Dummer o. Chippen ham, 14 Ves. generally, and then object, at the 245, 252.
hearing, that they have been improp• French v. First Nat. Bank, 7 Ben. erly made parties to the suit, for re(U. S.) 488; 8. c. 11 Nat. Bank. Reg. lief as well as for discovery. Many v. 189; Brumley u. Westchester Co. Beekman Iron Co., 9 Paige (N.Y.), 188