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to individuals under like circumstances. This is seen by what follows in this article.1

§ 7381. May Maintain Actions of Assumpsit. - The old idea was that a corporation could not maintain an action of assumpsit, because it could only contract by its common seal, and hence could sue only in covenant. But this idea is exploded, and the settled law is that a corporation can sue in assumpsit whenever an individual can. Thus, an incorporated bridge company may maintain assumpsit for the use and occupation of premises held by its tenant. As already seen,* assumpsit may be maintained by a corporation against a shareholder upon his express promise to pay his proportion of the legal assessments upon stock issued to him."

§ 7382. May Sue in Trespass.- Although the old conception was that a corporation could only act by its seal, still it did not follow that it could not be acted upon except by its seal. It could own property, and if a trespass were committed thereon, it could maintain an action of trespass to recover damages therefor.

§ 7383. May Maintain Actions Sounding in Damages. Corporations, like individuals, constantly maintain actions,

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1 That a corporation cannot have equitable relief in behalf of its stockholders, when they are without equity, see Arkansas River Land &c. Co. v. Farmers' Loan &c. Co., 13 Colo. 587; 8. c. 22 Pac. Rep. 954. That a corporation may follow its property as a trust fund when an individual might,

see Erie R. Co. v. Vanderbilt, 5 Hun (N. Y.), 123.

2 London Gas Light &c. Co. v. Nicholls, 2 Car. & P. 365; ante, § 5046.

Southwark Bridge Co. v. Sills, 2 Car. & P. 371.

Ante, § 1823.

• Worcester Turnp. Co. v. Willard, 5 Mass. 80; 8. c. 4 Am. Dec. 39; Gilmore v. Pope, 5 Mass. 491; Andover

&c. Turnp. Co. v. Gould, 6 Mass. 40; 8. c. 4 Am. Dec. 80; Goshen &c. Turnp. Co. v. Hurtin, 9 Johns. (N. Y.) 217; 8. c. 6 Am. Dec. 273; Dutchess Cotton Manufactory v. Davis, 14 Johns. (N. Y.) 238; 8. c. 7 Am. Dec. 459. Under the common-law system of pleading, a corporation may maintain assumpsit upon a contract to take its stock at a specific price, or it may declare on a contract to take stock agreeably to the provisions of its charter; and to such a declaration the common counts may be added. Beene v. Cahawba &c. R. Co., 3 Ala. 660.

• Greenville &c. R. Co. v. Partlow, 14 Rich. (S. C.) 237; Second Cong. Soc. v. Waring, 24 Pick. (Mass.) 304.

the object of which is the recovery of damages for wrongs done to them, as, for instance, where a stockholder and officer of a corporation, and a third person, conspire to cripple the corporation by a manipulation of its shares, and the conspiracy is successful.1 For example, a corporation may maintain an action for libel, upon averment and proof of special damages. This would clearly be true in respect of a slander of its goods or property.

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§ 7384. May have Summary Remedies. It has been held not unconstitutional for the legislature to give a summary remedy for the collection of its debts to a corporation created for the public benefit.

§ 7385. Special Statutory Remedies in Favor of Corporations. When it was the fashion to create corporations by special acts of the legislature, special remedies were often accorded to them; but the decisions relating to such remedies may, for the most part, be regarded as obsolete."

§ 7386. Remedies on Commercial Paper. Some of the cases take this distinction, that where a corporation has no power to acquire commercial paper, yet, if it does acquire it, it cannot maintain an action thereon, but may maintain an action for money had and received to recover what it gave for the paper. That is to say, while it cannot maintain an action. on the instrument which it had no power to take, it can main

1 Ilion Bank v. Carver, 31 Barb. (N. Y.) 230.

• Knickerbocker &c. Ins. Co. v. Ecclesine, 11 Abb. Pr. (N. 8.) (N. Y.) 385; 8. c. 42 How. Pr. (N. Y.) 201.

Bank of Newbern v. Taylor, 2 Murph. (N. C.) 266.

That the Ohio statute of 1844, regulating practice in the courts, did not apply to suits of incorporated banks, -see Clinton Bank v. Hart, 19 Ohio, 372. That the statute of the same State, authorizing a joint action by a bank against a drawer and

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indorser, applied to banks of other States, see Lewis v. Bank of Kentucky, 12 Ohio, 132; 8. c. 40 Am. Dec. 469. Construction of Ohio statute of 1824 relating to suits where banks are parties: Goodenow v. Duffield, Wright (Ohio), 455. That a bank could not ask the aid of a court of equity against a party to a joint and several contract before exhausting legal remedies, -see Bank of Chillicothe v. Yoe, 4 Ohio, 125.

• Ante, §§ 5714, 5744, 5748.

tain an action to recover its money which it had no power to pay out, and which it ought not to have parted with. In other words, it has a right to rescind the ultra vires contract, and to recover what it has lost under it. But the better doctrine is that it can do this only where the other party has successfully avoided his obligation under the contract on the ground of its being ultra vires."

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§ 7387. Action by Corporation on Promise Made to its Officer. Elsewhere we have seen that a deed conveying land to the trustees of a corporation is a deed to the corporation itself. An analogous rule is that a promise made to the officers of a corporation for its benefit, and upon a consideration proceeding from it, is enforceable in the form of an action by the corporation, as, for instance, an agreement to pay, to the directors of a corporation, money due to the corporation itself.1

§ 7388. Demand in Actions by Corporations. · A corporation must make demand where an individual must, and need not make demand where an individual need not, prior to bringing and maintaining an action. Demand is generally necessary only where there is a bailment and a custody originally rightful, and where the bailee may justly assume that it is the pleasure of the bailor that his custody of the thing bailed should continue until the contrary is made known to him. It would be justly regarded as a grievance to him if his bailor could make a demand of the return of the subject of the bailment in the first instance by bringing an action to recover it, or to recover damages for its detention. But where the bailee has asserted rights adverse to those of the bailor, this obviously excuses demand. Thus, if the treasurer of a corporation receives money belonging to it, and asserts rights thereto

1 Waddill v. Alabama &c. R. Co., 35 Ala. 323. Compare Phelps v. Masterton &c. Stone Dressing Co., 3 Rob. (N. Y.) 517.

2 Ante, § 6004.

Ante, 5113. Compare ante,

§ 5038.

Thompson v. Marion &c. Gravel Road Co., 98 Ind. 449.

inconsistent with the right of the corporation to demand the same, and makes charges in the corporate books in extinguishment of his obligation to pay over the money to the corporation, a demand is not necessary before suit brought by the corporation to recover the money.1

ARTICLE III. WHAT ACTIONS LIE AGAINST CORPORATIONS.

SECTION

SECTION 7391. What actions will lie against 7406. Actions for violations of public

corporations.

7392. When assumpsit will lie against

corporations.

7393. When not.

7394. Trespass.

7395. Case.

7396. Trover.

7397. Replevin.

7398. Ejectment.

7399. Forcible entry and detainer.

7400. Slander-Libel - Slander of

goods.

7401. Book account.

7402. Account stated.

7403. Use and occupation.

7404. Actions on clauses of charter. 7405. Actions on by-laws.

duties.

7407. Specific performance.

7408. Mode of compelling performance of agreement to arbi

trate.

7409. Bills in equity for discovery. 7410. Mode of procedure to compel discovery in equity.

7411. Further of this subject.

7412. Statutory substitutes for discovery.

7413. Bill of interpleader by agent of corporation.

7414. Actions to recover payments voluntarily made.

7415. Demand in actions against corporations.

§ 7391. What Actions will Lie against Corporations. Without going into the ancient history of this subject, it may be said here that it is settled that where the law imposes an obligation upon a corporation, which it fails or refuses to discharge, it may be held civilly liable therefor, at law or in equity, in any appropriate form of action where the system of common-law pleading prevails, and on appropriate allegations and proofs, under the system of equity and under the codes.2

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§ 7392. When Assumpsit will Lie against Corporations. Thus, although there are some ancient and untenable hold

1 East New York &c. R. Co. v. Elmore, 5 Hun (N. Y.), 214.

For a general statement of the doctrine of the liability of a corpora

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tion to an action by one sustaining damage in consequence of its failure to discharge a duty imposed by law,Seagraves v. Alton, 13 Ill. 366.

ings to the contrary, a corporation may now be sued in assumpsit on express or implied promises, in the same manner as an individual. This action will lie against it for refusing to permit a transfer of its shares upon its books, at the suit of a person lawfully entitled to demand the same; or upon a refusal of the corporation to permit a stockholder to subscribe for additional stock to which he is entitled. So, if a railroad corporation occupies land after its agent has been notified by the owner that rent will be charged, it is liable in assumpsit for use and occupation.3

§ 7393. When not. Covenant, and not assumpsit, being the form of action at common law upon a sealed instrument,

1 Breckbill v. Lancaster Turnp. Co., 3 Dall. (U. S.) 496; Frankfort Bank v. Anderson, 3 A. K. Marsh. (Ky.) 1. An exception to this rule was admitted where a local act authorized a corporation to make promissory notes: Slark v. Highgate Archway Co., 5 Taunt. 792. But all American corporations have this power, unless it is prohibited to them: Ante, § 5730.

• Rex v. Bank of England, 1 Doug. 524; Davis v. Georgetown Bridge Co., 1 Cranch C. C. (U. S.) 147; Gray v. Portland Bank, 8 Mass. 364, 382; 8. c. 3 Am. Dec. 156; Worcester Turnp. Co. v. Willard, 5 Mass. 80; s. c. 4 Am. Dec. 39; Mechanics' Bank v. Bank of Columbia, 5 Wheat. (U.S.) 326; Bank of Metropolis v. Guttschlick, 14 Pet. (U.S.) 19; Kortright v. Buffalo Commercial Bank, 20 Wend. (N. Y.) 91; 8. c. 22 Wend. (N. Y.) 348; 34 Am. Dec. 317; Foster v. Essex Bank, 17 Mass. 479, 503; s. c. 9 Am. Dec. 168; Sargent v. Franklin Ins. Co., 8 Pick. (Mass.) 90, 98; s. c. 19 Am. Dec. 306; Poultney v. Wells, 1 Aiken (Vt.), 180; Gassett v. Andover, 21 Vt. 342; Stone v. Congregational Society, 14 Vt. 86; Antipoeda Baptist Church v. Mulford, 8 N. J. L. 182; North Whitehall v.

South Whitehall, 3 Serg. & R. (Pa.) 117; Chestnut Hill Turnpike v. Rutter, 4 Serg. & R. (Pa.) 6, 16; s. c. 8 Am. Dec. 675; Dunn v. St. Andrew's Church, 14 Johns. (N. Y.) 118; Danforth v. Scoharie &c. Turnp. Road, 12 Johns. (N. Y.) 227, 231; Bank of Columbia v. Patterson, 7 Cranch (U. S.), 299; Waring v. Catawaba Co., 2 Bay (S. C.), 109; Hayden v. Middlesex Turnp. Corp., 10 Mass. 397; s. c. 6 Am. Dec. 143; Proctor v. Webber, 1 D. Chip. (Vt.) 371, 456, note; Chesapeake &c. Canal Co. v. Knapp, 9 Pet. (U. S.) 541; Hunt v. San Francisco, 11 Cal. 250; Cape Sable Co.'s Case, 3 Bland (Md.), 606; Seagraves v. Alton, 13 Ill. 366.

Rex v. Bank of England, 1 Doug. 508, 524; Kortright v. Buffalo Commercial Bank, 20 Wend. (N. Y.) 91; 8. c. affirmed, 22 Wend. (N. Y.) 348; 34 Am. Dec. 317; Sargent v. Franklin Ins. Co., 8 Pick. (Mass.) 90; s. c. 19 Am. Dec. 306; ante, § 2462.

Gray v. Portland Bank, 3 Mass. 864; 8. c. 8 Am. Dec. 156.

• Illinois Cent. R. Co. v. Thompson, 116 Ill. 159. That a corporation must first be put in default before it will be liable upon an implied contract, — see Seagraves v. Alton, 13 Ill. 366.

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