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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 may 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 compelling them to make discovery of doings of the corporation, where no relief is sought against them as as individuals. 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.1

§ 7411. Further of This Subject. Where the officers of a corporation are thus joined for the purpose of discovery, the discovery is limited to matters coming to their knowledge in

1 Wych v. Meal, 3 P. Wms. 310; Dummer v. Chippenham, 14 Ves. 245; Moodalay v. Morton, 1 Bro. C. C. 469; Le Texier v. Anspach, 15 Ves. 159, 164; Gibbons v. Waterloo Bridge Co. 5 Price, 491, 493; Glasscott v. Copper Miners' Co., 11 Sim. 305; Many v. Beekman Iron Co., 9 Paige (N. Y.), 188; Bronson v. La Crosse &c. R. Co., 2 Wall. (U.S.) 283, 203, per Nelson, J.; Fulton Bank v. New York &c. Canal Co., 1 Paige (N. Y.), 311, per Walworth, Ch.

Le Texier v. Anspach, 15 Ves. 159, 164; Gibbons v. Waterloo Bridge Co., 5 Price, 491, 493; Many v. Beekman Iron Co., 9 Paige (N. Y.), 188; Story Eq. Pl., § 234.

Man. Soc., 1 Johns. Ch. (N. Y.) 366. Also it has been said that a bill for a discovery will lie against the members of a corporation without joining the corporation where the members are personally liable for its debts. Middletown Bank v. Russ, 3 Conn. 135, 139; s. c. 8 Am. Dec. 164. Where the officers or members of the corporation are joined with the corporation for purposes of discovery only, and the complainant, by mistake, inserts a prayer for relief against such officers, as well as against the company, the officers can not demur to the discovery and relief generally. They should make the discovery sought, and demur to the relief; or should answer the bill

• Dummer v. Chippenham, 14 Ves. generally, and then object, at the 245, 252.

• French v. First Nat. Bank, 7 Ben. (U. S.) 488; s. c. 11 Nat. Bank. Reg. 189; Brumley v. Westchester Co.

hearing, that they have been improperly made parties to the suit, for relief as well as for discovery. Many v. Beekman Iron Co., 9 Paige (N.Y.), 188

the course of their service as officers, and cannot be extended to other matters. The objection that a discovery may subject the company to a forfeiture of its charter, is not sufficient to support a general demurrer to a bill for discovery and relief, even if it would have authorized a demurrer to the discovery of particular facts. Where a corporation, being a party to a suit, is directed by an order of court to do a specific thing to effectuate certain relief to which the other party is entitled, an officer of the corporation may, in aid of such relief, be compelled, by a subpœna duces tecum on the order of a master, to produce certain specified books and documents of the corporation.'

§ 7412. Statutory Substitutes for Discovery. — The subject of discovery in equity has lost most of its importance, by reason of the fact that statutory substitutes for this remedy have been enacted generally in England' and America. The

"No case has gone so far as to join an officer of a corporation for the purpose of discovery of matters which were not within his knowledge as such officer, or learned by him while in the service, or as a member of the corporation; nor, as in this case, matters which took place before the corporation was formed, or in which it had no part; though it appears that by and through other sources of information the officer happens to have obtained such knowledge." Per Choate, D. J., in McComb v. Chicago &c. R. Co., 7 Fed. Rep. 426; s. c. 11 Reporter, 422.

Robinson v. Smith, 3 Paige (N. Y.), 222; 8. c. 24 Am. Dec. 212.

Erie R. Co. v. Heath, 8 Blatchf. (U.S.) 413.

In England it is no longer the practice, nor even proper, to make an officer or member of a corporation a party to a bill against it for purposes of discovery. In accordance with the fifty-first section of

the Common Law Procedure Act of 1854, it has been provided, by the rules of court, that "if any party to an action be a body corporate or a joint-stock company, whether incorporated or not, or any other body of persons, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply at chambers for an order allowing him to deliver interrogatories to any member or officer of such corporation, company, or body, and an order may be made accordingly." Rules of Court 1875, Order XXXI., Rule 4. See Wilson v. Church, 9 Ch. Div. 552. Doubtless the more recent court rules deal with the subject in a similar way.

These statutes and their interpretation are considered at length in 1 Thomp. Trials, § 731, seq. For the construction of the New York statute, see Ibid., § 743, et seq.

necessity of this species of relief has been almost obliterated by statutes which have been generally enacted in the United States, under which parties may be compelled to testify as witnesses, subject to the constitutional immunity against selfincrimination. Therefore, although the directors and other managing officers of the defendant corporation may be joined for the purpose of relief against them, yet they can be examined as witnesses, and the court will consider their adversary character to the plaintiff, and will accordingly allow them to be examined by means of leading questions. A statutory provision to the effect that any party to an action may be examined as a witness at the instance of any adverse party or parties, after issue joined in said action and before trial. thereof, is a statutory substitute for the bill of discovery in equity. Accordingly, where a corporation is a party to the record, it does not follow that its officers are parties to the action. As stated by the court in one case: "A corporation has a distinct legal existence as a person, or party capable of suing and being sued, and process against it brings only such artificial body into the court. By statute, process may be served on some designated officers of the corporation, but such service brings the corporation, and not the individual served, into court."

7413. Bill of Interpleader by Agent of Corporation.It is said that the grounds upon which the right to prefer a bill of interpleader rests, and consequently the appropriate allegations in such bill, are: 1. That two or more persons have preferred a claim against the complainant. 2. That they claim the same thing. 3. That the complainant has no beneficial interest in the thing claimed. 4. That he cannot determine, without hazard to himself, to which of the defendants the thing of right belongs. It is a settled rule, both at law

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• Atkinson v. Manks, 1 Cow. (N. Y.) 691, 703; Gibson v. Goldthwaite, 7 Ala. 281; s. c. 42 Am. Dec. 592.

and in equity, that an agent shall not be heard to dispute the title of his principal to property which the agent has received from, or for the use of, such principal; neither will he be heard to say that he will hold such property for the benefit of a stranger. So, it has been held that, where one person receives money for another as his agent, and the money is claimed by a third person, who gives notice of his claim, a bill of interpleader will not lie; for a mere agent receiving money for the use of another cannot, by notice, be converted into an implied trustee. His possession is the possession of his principal.

But it seems that where the adverse claimants of the fund in the hands of the agent both claim to derive their title from his principal, by assignment or otherwise, the principle which forbids the agent to bring a bill of interpleader does not apply; for, by preferring such a bill, he does not deny or question the title of his principal. Accordingly, it has been held that such a bill might be maintained upon the following facts: The bill alleged that several defendants (naming them) had set up claims to money collected by the complainant on notes and bills which had been placed in his hands for collection by the Tombigbee Railroad Company; that two of the defendants had brought suits at law for its recovery; that two of them claimed the entire sum as assignees of the corporation; and that the other defendant claimed a part thereof under an order of transfer by one of the assignees; that the complainant had no interest in the sum collected by him (at least beyond his commission, which it was competent for him to retain); but that he held the sum for the use of the party entitled thereto; and that he could not determine, without hazard to himself, which of the defendants was entitled to the money, and thereupon offered to bring the same into court. In such a case it has been held that the corporation is not a necessary party to the bill, because, having made an assignment of the thing or fund in

1 Gibson v. Goldthwaite, supra. • Gibson v. Goldthwaite, supra; citing Bowyer v. Pritchard, 11 Price, 115; Lowe v. Blank, 3 Madd. 277;

Morley v. Thompson, 3 Madd. 564, note in index.

Gibson v. Goldthwaite, 7 Ala. 281; s. c. 42 Am. Dec. 592, 597.

controversy, it has parted with its title, and consequently with its interest in the controversy.1

§ 7414. Actions to Recover Payments Voluntarily Made.— The rule that a payment voluntarily made under a mistake of law, but with a full knowledge of the facts, cannot be recovered back, rests upon general principles of public convenience, and applies to a corporation as well as to a natural person.2

§ 7415. Demand in Actions against Corporations. — It is conceived that no demand is necessary in order to maintain an action against a corporation, except where it would be necessary in the case of an individual. But before a stockholder can bring an action to prevent or redress breaches of trust committed by the officers of the corporation in the management of its affairs, he must make a demand on the directors to sue in the name of the corporation, absurd as this, in some cases, may be; though some courts have held that no such demand is necessary where it must be made upon the persons who themselves are guilty of the wrong. A demand against a corporation must, of course, be made upon an agent authorized to represent it in respect of the matter of the demand."

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& M. (Miss.) 649. How demand made upon the corporation to lay a foundation for an action to enforce a stockholder's individual liability, see Haynes v. Brown, 36 N. H. 545; Harvey v. Chase, 38 N. H. 272. Thus, a demand made by a passenger, or by his assignee, for his baggage where his check has been lost, is a good demand if made upon the baggagemaster of the railroad company. Cass v. New York &c. R. Co., 1 E. D. Smith (N. Y.), 522.

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