is assumed towards the public generally, or towards a considerable portion of the public in the aggregate,—as where a 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.' § 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 1 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. Ármstrong, 45 N. Y. 234; s. 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; s. c. 31 Am. Dec. 123; Quincy Canal v. Newcomb, 7 Met. (Mass.) 276; s. c. 39 Am. Dec. 778; Smith v. Boston, 7 Cush. (Mass.) 254; Stone v. Fairbury R. Co., 68 Ill. 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, 168; Little Miami Co. v. Naylor, 2 Ohio St. 235; 8. c. 59 Am. Dec. 667; Railroad Company . Compton, 2 Gill (Md.), 20; Attorney-General v. West Wisconsin R. Co., 36 Wis. 466. • Post, §§ 7774, 7782. • Montclair Township v. New York &c. R. Co., 45 N. J. Eq. 436; 8. c. 18 Atl. Rep. 242. 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.1 § 7408. Mode of Compelling Performance of Agreement to Arbitrate.—It is generally agreed that a court of equity will not compel 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 arbitrators 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 1 Port Royal R. Co. v. Hammond, 476; Greason v. Keteltas, 17 N. Y. 58 Ga. 523. 2 Milnes v. Gery, 14 Ves. 400; Blundell v. Brettargh, 17 Ves. 232, 241; Street v. Rigby, 6 Ves. 815, 817; Agar v. Macklew, 2 Sim. & Stu. 418; Wilkes v. Davis, 3 Mer. 507; Gourlay v. Somerset, 19 Ves. 429; Tobey v. Bristol, 3 Story, 800; Norfleet v. Southall, 3 Murph. (N. C.) 189, 190; Providence v. St. John's Lodge, 2 R. I. 46; Hopkins v. Gilman, 22 Wis. 491; Tscheider v. Biddle, 4 Dill. (U. S.) 55; Hug v. Van Burkleo, 58 Mo. 202; Biddle v. Ramsey, 52 Mo. 153, 158; King v. Howard, 27 Mo. 21, 25. St. Louis v. St. Louis Gas Light Co., 70 Mo. 69, 114; citing Union Pac. R. Co. v. Hall, 91 U. S. 343; People v. Manhattan Gas Works, 45 Barb. (N. Y.) 136; United States v. Union 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 chancery for the purpose of compelling them to make discovery for it. On the one hand, when discovery is sought of an 1 Mitf. on Plead. 10. 8 Wych v. Meal, 3 P. Wms. 310; Anon., 1 Vernon, 117; Moodalay v. Morton, 1 Bro. C. C. 469; Dummer v. Chippenham, 14 Vesey, 245; Brumly v. Westchester Co. Man. Society, 1 Johns. Ch. (N. Y.) 366. "It seems to be settled that a bill will lie against a corporation and its officers, to compel a discovery from the officers, to aid a plaintiff or a defendant in maintaining or defending a suit brought against or by the corporation alone." Field, J., in Post v. Toledo &c. R. Co., 144 Mass. 341; 8. c. 59 Am. Rep. 86, 92; citing McComb v. Chicago &c. R. Co., 19 Blatchf. (U. S.) 69; Costa Rica v. Erlanger, 1 Ch. Div. 171; Glasscott v. Copper Miners' Co., 11 Sim. 305; Moodalay v. Morton, 1 Bro. C. C. 469. See, on the subject of discovery, Colgate v. Compagnie Française, 23 Fed. Rep. 82; MacGregor v. East India Co., 2 Sim. 452; Bolton v. Liverpool, 1 Myl. & K. 88. It is said that in suits against a corporation, as it answered under its common seal and not under oath, the practice was early estab lished in Massachusetts of making one or more of its officers or members co-defendants, and of compelling them to make disclosure of such facts within their knowledge as the corporation, if a natural person, could have been compelled to disclose, although their answers could not be used as evidence against the corporation. Their answers enabled the plaintiff to ascertain, in advance of a trial, what the facts within their knowledge were, and to propound proper interrogatories to them or to other persons as witnesses. Field, J., in Post v. Toledo &c. R. Co., 144 Mass. 341; s. c. 59 Am. Rep. 86, 90; citing Wright v. Dame, 1 Met. (Mass.) 237. The practice of joining an officer of the corporation in a bill against it for a discovery, where the plaintiff is entitled to a discovery, is explained in McComb v. Chicago R. Co., 19 Blatchf. (U. S.) 69. The reason of the rule is stated by Lord Chancellor Talbot in the leading case of Wych v. Meal, 3 P. Wms. 310, which seems to have 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 discovery, and though the corporation might answer under its common seal, it would not be responsible for perjury. It is an exception to the general rule that a witness cannot be joined for purposes of discovery. A limitation of the rule is that the officer cannot be joined as a party for the discovery of what he did not learn as an officer, or of the facts which he knew before he became an officer. It has also been held that the plaintiff may join a member of the corporation for the purposes of discovery, although the latter is not an officer or agent of the corporation (Wright v. Dame, 1 Met. (Mass.) 237); and it has been held in the English Court of Chancery that members of the corporation may be joined with an officer in such a bill. Glasscott v. Copper Miners' Co., 11 Sim. 305. But, outside of the rule above stated, a bill for a discovery, in aid of a defense to an action, cannot be maintained against one who is not a party to the record at law, though he may be interested in the subject of the action,—Lord Cottenham saying: "The cases of officers of corporations stand on principles entirely peculiar to themselves, and have obviously no application to the present case." Queen of Portugal v. Glyn, 7 Clark & Fin. 466. It is scarcely necessary to add that the plaintiff may waive his right to have an officer of the corporation joined who can answer under oath and be responsible for the penalties of perjury; and that he may therefore maintain a bill for a discovery against the corporation alone in aid of an action against it at law, although it does not answer under oath. Colgate v. Compagnie Française, 23 Fed. Rep. 82. In the case of Costa Rica v. Erlanger, 1 Ch. Div. 171, there was a cross-bill for a discovery against the plaintiff and the president of the plaintiff Republic. The only questions were as to staying the original action till answer, and as to the right to choose the officer of the plaintiff Republic who should make the discovery. One of the leading cases on this subject was that of a "bill against a corporation to discover writings. The defendants answered under their common seal, and so, being not sworn, will answer nothing in their own prejudice. Ordered that the clerk of the company, and such member or members as the plaintiff shall think fit, answer on oath, and that the master settle the oath." Anon., 1 Vern. 117, Anno 1682. So, in a case against the East India Company an officer of the company was made defendant in a bill for discovery of orders and entries in the books of the company, and a demurrer to the bill was overruled. Wych v. East India Co., 3 P. Wms. 309, Anno 1734. In like manner, a demurrer to a bill against the East India Company and their secretary, praying for a general examination of witnesses in India, and that the defendants might discover by what authority the plaintiff was dispossessed of a lease for supplying Madras with tobacco (the plaintiffs intending to bring an action), was overruled. Moodalay v. Morton, 1 Bro. C. C. 469, Anno 1785. 1 Virginia &c. Man. Co. v. Hale, 93 Ala. 542; . c. 9 South. Rep. 256. 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." § 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 1 Colonial &c. Mort. Co. v. Hutchinson Mort. Co., 44 Fed. Rep. 219. 'Howe v. Best, 5 Madd. 19; Story Eq. Plead., 235, note 2; Norwood v. Memphis &c. R. Co., 72 Ala. 563. Norwood v. Memphis &c. R. Co., 72 Ala. 563; Tutweiler v. Tuscaloosa Coal &c. Co., 89 Ala. 391; s. c. 7 South. Rep. 398. Tutweiler v. Tuscaloosa &c. Coal Co., 89 Ala. 391; s. c. 7 South. Rep. 398. Compare Zelnicker v. Brigham &c. Co., 74 Ala. 598; Watts v. Eufaula Nat. Bank, 76 Ala. 474. For a bill not alleging facts entitling the plaintiff to a discovery from the directors, see Camp v. Taylor (N. J.), 19 Atl. Rep. 968. Wych v. Meal, 3 P. Wms. 310. Fulton Bank v. Sharon Canal Co., 1 Paige (N. Y.), 219. |