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It may also be brought on the relation of some other public board or official, whose office is directly concerned with the performance of the public duty demanded of the corporation.' According to the weight of authority, it may also be brought on the relation of a private party, even where the object is to enforce the performance of a public duty. But other courts take the view that, except where the legislature has otherwise provided, only the State can proceed, whatever may be the form of proceeding, and that there can be no collateral inquiry, in an action by a private citizen, as to the failure of a corporation to perform a public duty, or to discharge a debt which it owes to the public generally.”
8 7831. Against Corporation in Corporate Name. -A writ of mandamus may properly be directed against a corporation
was held to be properly applied for People, 48 Ill. 233; Hamilton u. by the attorney for the State. State State, 3 Ind. 452; People v. Halsey, v. Hartford &c. R. Co., 29 Conn. 538. 37 Ind. 344; State v. County Judge
* For instance, in Pennsylvania, a of Marshall, 7 Iowa, 186; State v. mandamus to compel a railroad com- Rahway, 33 N. J. L. 110; Watts •. pany to reconstruct a highway injuri- Carroll Parish, 11 La. An. 141. See ously occupied by it, may be instituted al:o Dillon on Mun. Corp., sec. 695; on the relation of the road commis- High on Ex. Rem., secs. 431, 432; sioner of the township within which Cannon v. Janvier, 3 Houst. (Del.) 27. the highway is situated, acting offi- The principal reasons urged against cially and after procuring the consent the doctrine are, that the writ is preof the Attorney-General. Com. v. rogative in its nature, - & reason New York &c. R. Co., 138 Pa, St. 58; which is of no force in this country, 8. C. 20 Atl. Rep. 951.
and no longer in England, - and Union Pac. R. Co. v. Hall, 91 that it exposes a defendant to be U.S. 343; affirming 8. c. 4 Dill. (U. S.) harassed with many suits. An an479. In the opinion of the court in swer to the latter objection is, that this case by Mr. Justice Strong, the granting the writ is discretionary following passage occurs, at page 355: with the court, and it may well be “There is, we think, a decided pre- assumed that it will not be unnecesponderance of American authority in sarily granted." favor of the doctrine, that private • Martindale v. Kansas City &c. R. persons may move for a mandamus Co., 60 Mo. 508. In this case it was to enforce a public duty, not due held that an action could not be mainto the government as such, without tained by a private person for the rethe intervention of the government fusal of a railroad company to translaw-officer. People v. Collins, 19 port him to and from a station which Wend. (N. Y.) 16; County Comm'rg they had abandoned. 0. People, 11 Ill, 202; Ottawa v.
6 in its corporate name, and need not necessarily be directed against the officers who wield its power.'
$ 7832. Corporation may Appeal where the Writ Runs Against its officers. But where the writ is directed against the officers of a corporation to compel them to perform a corporate act, it has been regarded as a proceeding against the corporation itself, in such a sense as entitled it to appeal from the decision in its corporate name.'
'State o. Chicago &c. R. Co., 79 (ante, 8 7589) it will be discovered that Wis. 259; s.c. 12 L. R. A. 180; 48 N. the defendant was a corporation. W. Rep. 243. In many preceding • Louisville v. Kean, 18 B. Mon. cases where the writ was successful (Ky.) 9.
LIMITATION AND LACAES. SECTION
SECTION 7837. Corporations may acquire title 7840. Part payment to take the case by adverse possession
out of the statute. 7838. Limitation of actions to forfeit 7841. Limitation of actions against charters.
ors against trustees of corpo-
$ 7837. Corporations may Acquire Title by Adverse Possession. - Statutes of limitation operate upon the plaintiff, so as to deprive him of his remedy. Such being their operation, where a corporation, sued for the recovery of land, defends on the ground of title perfected through adverse possession under the statute of limitations, it is immaterial whether it is capable of acquiring title to land, under its governing statute; but it is sufficient that it can acquire and hold possession, and that it has done so. When it is considered that a corporation may be a disseisor, the conclusion naturally follows that, when sued in any kind of action for the possession of real property, it may defend upon the ground of having had an adverse possession during the period of the statute of limi. tations, equally with a natural person.'
§ 7838. Limitation of Actions to Forfeit Charters. Stat. utes have been enacted imposing a special limitation upon the time within which an action can be brought by the State to forfeit the charter of a corporation for misuser or non-user. In Ohio, for instance, where the action is for misuser, the
i Ante, 18 5777, 6305, 7394, 7398, 7399. • Humbert v. Trinity Church, 24
Wend. (N. Y.) 587; People v. Trinity
limitation is five years, but where it is to oust it of a franchise not conferred, it is twenty years. The principle which applies to ordinary statutes of limitation is equally applicable to a statute of this kind, that want of knowledge on the part of the State or of its officer not superinduced by fraud, does not take the case out of the statute.?
§ 7839. Limitation of Actions by Creditors against Trustees of Corporations. — It has been held that the directors of a corporation are not such trustees of its assets in behalf of creditors as to debar them from interposing the defense of the statute of limitations, when the creditors bring a bill in equity to charge them with funds of the corporation alleged to be wrongfully converted by them. The theory of the holding is that the trust under which they hold the property of the corporation in favor of creditors is not an express trust, but a trust which the law raises for equitable purposes; and the court reason that one who is not actually a trustee, but upon whom that character is forced by a court of equity, may avail himself of the statute of limitations. That this is the rule in regard to trustees of those implied trusts which courts of equity raise for the purposes of justice, is true. But it is be
Standard Oil Co., 49 provisions is limited to five years. Ohio St. 137,188; 8. c. 34 Am. St. Rep. Welles v. Graves, 41 Fed. Rep. 459;8.c. 541 ; 30 N. E. Rep. 279.
7 Rail. & Corp. L. J. 392. And bas * State v. Standard Oil Co., 49 Ohio been held that where, under this stat
8. C. 34 Am. St. Rep. 541; 30 ute, the right to forfeit the charter of N. E. Rep. 279. Under section 1047 a national bank has been lost by lapse of the Revised Statutes of the United of time, this has the effect of barStates, providing that “no suit or ring a proceeding against the directprosecution for any penalty or for- ors to charge them personally with feiture, pecuniary or otherwise, ac- the violation of law for which the cruing under the laws of the United charter might have been forfeited. States, shall be maintained, except in Ibid. cases where it is otherwise specially • Baxter v. Moses, 77 Me. 465, 481; provided, unless the same is com
8. c. 52 Am. Rep. 783. menced within five years from the * Baker v. Atlas Bank, 9 Metc. time when the penalty or forieiture (Mass.) 182; Peabody v. Flint, 0 Allen accrued,” it has been held that the (Mass.), 52; Farnam v. Brooks, 9
to forfeit the charter of a Pick. (Mass.) 212; Kane v. Black, 7 national bank for a violation of its Johns. Ch. (N. Y.) 90; Stringer's
lieved that such is not the nature of the trust upon which the directors of a corporation hold its assets for its creditors after it becomes insolvent. They are not made involuntary trustees in a suit in equity for the purposes of a particular case, but they are regarded in equity as holding a trust fund for the benefit of the creditors of the company for general purposes;1 and the general rule is that the statute of limitations is not available to them until they repudiate their trust relation and begin an adverse holding, which must be openly and publicly manifested.
§ 7840. Part Payment to Take the Case out of the Statute. Where a part payment of a debt is pleaded to take the case out of the statute of limitations, if the debtor is a corporation, there will, in some cases, be a question whether the debt has been paid on behalf of the corporation by a person authorized thereto. Where, as in the case of a religious corporation, the corporation consists of the trustees, churchwardens, or other governing body, and not of the congregation, then the question will be whether the governing body, where
Case, L. R. 4 Ch. 475; Re Alexander
Ante, § 1569, 2951. Compare especially ante, §§ 4361, 4362.
'Compare ante, 3779, et seq., § 4363. It has been held that an action by a stockholder against the directors of an insolvent national bank, founded in their negligence and wrongful acts, whereby the stockholders were compelled to pay assessments, is not an action "to enforce a liability created by law," and is not, hence, within the three years limitation prescribed by section 394 of the New York Code of Civil Procedure. Brinkerhoff v. Bostwick, 99 N. Y. 185; reversing . c. 24 Hun (N. Y.), 352. Where a corporation has been created to construct a gravel road, with power to lay assessments upon adjacent lands,
and money has been advanced to the corporation on the faith of the assessments, and the president of the corporation has collected some of the assessments, and has not turned over the money to the lenders, he is deemed to hold the same in trust for them, and their right of action against him to recover the same dates from the time when, repudiating the trust, be assumed to hold the money adversely to them; that is to say, from the time he refused to pay it over to them upon request, and the statute of limitations begins to run from that date. Pugh v. Miller, 126 Ind. 189; s. c. 25 N. E. Rep. 1040.
See, for example, Rew v. Petet, 1 Ad. & El. 196, where a verdict resolving this question in the affirmative was sustained.