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already seen,' a domestic corporation within each of the States. Such a corporation is a resident of each of such States, for the purposes of the ordinary jurisdiction of its courts, and consequently may be subjected to garnishment in any one of them, provided the situs of the debt is there, though its principal office or place of business be not there.2

87818. Answer of the Garnishee.-The rule of the common law being that a corporation could not speak, nay even whisper, except by its corporate seal, it followed that, where this rule was adhered to, a corporation proceeded against as garnishee could answer only under its corporate seal. But the general disuse and abolition of corporate seals has rendered this rule obsolete, and it is believed that in such a case the corporation may answer without the use of its seal, by any authorized agent."

1 Ante, §§ 47, 319, 320, 688, 7438, 7452, 7472, 7490, 7799; post, §§ 8012, 8020, 8128.

Drake Attach., 5th ed., § 479; Mahaney v. Kephart, 15 W. Va. 609, 625; Smith v. Boston &c. Railroad, 33 N. H. 337. See also Bolton v. Pennsylvania Co., 88 Pa. St. 261.

8 Ante, § 5044, note 2, p. 3766.

Baltimore &c. R. Co. v. Gallahue, 12 Gratt. (Va.) 655; s. c. 65 Am. Dec. 254.

Statutes also exist changing this principle, such as the following in Alabama: "The provisions of this chapter are applicable to all private corporations, and all affidavits required to be made under its provisions may be made by the president, cashier, secretary, or any other duly authorized agent of such corporation; and such corporation may do and be dealt with under its provisions in the same manner as if they were natural persons." Ala. Code, § 3267. "This," said Stone, C. J., "is manifestly a change of the common-law mode of

official action by a corporation, for, at common law, corporate acts were performed under the seal of the corporation. Garnishment is a species of attachment, and the purging of the conscience of some one having knowledge of the facts, is necessary to its successful administration. Hence, the legislative change, by which a sworn personal answer is secured. And, under this statute, corporations 'may do and be dealt with, in the same manner as if they were natural persons'; that is, they may be required to answer orally, to have their answers rejected, if they refuse to answer when so ordered, and to have judgment rendered against them for want of an answer. The answer may be made by the 'president, cashier, secretary, or any other duly authorized agent of such corporation.' The legislature cannot be supposed to have intended that the corporation may, at its mere pleasure, authorize one of the named officers, or any other agent it may appoint, to attend and

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87819. Relief in Equity against Garnishee. It is a principle of equity jurisprudence that equity will not relieve a party against a judgment recovered against him at law, unless he was prevented from making his defense by circumstances not necessary to be here stated, but "unmixed with negligence or fault on his part." For the purposes of this rule the negligence of the agent through whom the judgment-debtor acted in making his defense is imputable to him. Therefore, the negligence of an officer of a corporation, in allowing a judg ment to be rendered against the corporation as garnishee, when the debt has been previously assigned to another party, and notice thereof has been given to another officer, will exclude such corporation from relief in equity against the judgment.2

7820. Other Matters Relating to the Garnishment of Corporations. A number of other matters, depending mostly upon local statutes, will now be referred to, chiefly in the notes. The fact that the money is payable on the draft of the creditor or depositor upon giving a certain notice, as is usual where money is deposited at interest in a savings bank, does not prevent his creditor from seizing it by garnishment although

make answer for the corporation. It might select an agent with intentional reference to his want of knowledge of the facts about which he is to be interrogated. The intention was, that the answer should be made by some person cognizant of the facts,

against as garnishee in a court of a justice of the peace in a different township from that in which the principal business office of the corporation is situated, may transmit by mail its disclosure verified by the oath of its proper officer. Whitworth v. Pelton,

whether that person was president, 81 Mich. 98; s. c. 45 N. W. Rep. 500.

Compelling an answer under Alabama
statute by attachment or judgment nisi:
Ex parte Cincinnati &c. R. Co., 78
Ala. 258.

cashier, secretary, or some other
agent of the corporation. A failure to
answer by some officer or agent who
Can answer knowingly, would author-

ize a

judgment for want of an answer, subject to be made final as in other cases." Ex parte Cincinnati &c. R. Co., 78 Ala. 258. Under statutes of Michigan (How. Mich. Stat., § 8055, as amended by Mich. Pub. Acts 1885, p. 240), a corporation proceeded

1 Foster v. Wood, 6 Johns. Ch. (N. Y.) 87, 89; Marine Ins. Co. v. Hodgson, 7 Cranch (U. S.), 332; Bateman v. Willoe, 1 Sch. & Lef. 201; Slack v. Wood, 9 Gratt. (Va.) 40.

Richmond Enquirer Co. V. Robinson, 24 Gratt. (Va.) 548.

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the notice has not been given.' It has been held in Missouri that the validity of a conveyance may be tried in a proceeding by garnishment in a court of law. Extending this doctrine, it is held that the question of the validity of a transfer of the assets of a corporation, alleged to have been made in fraud of creditors, may be tried in a proceeding by garnishment.

'Clapp v. Hancock Bank, 1 Allen corporations, showing service on "the (Mass.), 394. within named garnishee," fatally de' Lee v. Tabor, 8 Mo. 322; Lack- fective: Sun Mut. Ins. Co. v. Seeligland v. Garesche, 56 Mo. 267. son, 59 Tex. 3, 7. The court say that "such a return is not sufficient upon an ordinary citation, and is equally defective as a return to a citation in garnishment": Citing Graves v. Robertson, 22 Tex. 130; Thomason v. Bishop, 24 Tex. 302; Ryan v. Martin, 29 Tex. 412. Attaching by garnishment the withdrawal value of shares in co-operative bank: Atwood v. Dumas, 149 Mass. 167; s. c. 21 N. E. Rep. 236; 3 L. R. A. 416.

Eyerman . Krieckhaus, 7 Mo. App. 455. Garnishment of debt due to two corporations jointly, evidenced by note or draft alleged to have been transferred in fraud of creditors: Humphreys v. Atlantic Milling Co., 98 Mo. 542; s. c. 10 S. W. Rep. 140. That the affidavit must state that the garnishee is a corporation, or a partner ship, etc., see Insurance Co. v. Friedman, 74 Tex. 56. Return on the writ of garnishment directed against two

6216

CHAPTER CXC.

MANDAMUS AGAINST CORPORATIONS. SECTION

SECTION 7826. Mandamus against corporations

formance of discretionary to compel performance of

acts. public duties.

7830. Who apply for the writ: plain7827. When not issued to compel the

tiff in the action. performance of public du- 7831. Against corporation in corporate

ties. 7828. Doctrine that the public duty 7832. Corporation may appeal where must be enjoined by statute.

the writ runs against its offi7829. Does not lie to compel the per

name.

cers.

8 7826. Mandamus against Corporations to compel Performance of Public Duties. — A writ of mandamus will be issued to compel a corporation to perform a public duty, where the duty is plainly prescribed by a mandatory statute, where there is clear proof of a breach of that duty, and where there is no other adequate legal remedy to compel its performance.' Thus, mandamus lies to enforce a provision in the charter of a railroad company requiring it to maintain its railroad in a con

1 "Where the charter of a corpo perfect legal obligation.” Ibid.; citration, or the general statute in force ing Ex parte Napier, 18 Q. B. 692, 694. and applicable to the subject, imposes “The right and obligation are necesa specific duty, either in terms or by sarily correlative; if there be no oblifair and reasonable construction and gation, there is no right.Ibid. Man. implication, and there is no specific damus lies where there is no other or adequate remedy, the writ of man- remedy at law, and the fact of there damus will be awarded.” 1 Redf, on being a remedy in equity furnishes no Railw. (4th ed.) 644; quoted with ap- objection to the remedy by mandamus; proval in State v. Southern Minn. R. nor is it an objection that the respondCo., 18 Minn. 40, 41. “But the writent may be punished for omitting to will not be awarded, unless the right do the act to compel which the mansought to be enforced is a complete and damus is sought. People v. New York, perfect legal right, and, of course, the 10 Wend. (N. Y.) 393. reciprocal obligation a complete and

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tinuous line; or to run its cars to a certain point on tide water;" or to compel the Union Pacific Railroad Company to operate its line to Council Bluffs, in the State of Iowa, instead of making its eastern terminus at Omaha, in the State of Nebraska;' or to compel a railroad company to build and keep in proper repair, bridges where its road crosses a public highway; or to reconstruct a public road which it has occupied with its railroad tracks; or to remove a bridge constructed across a navigable stream without a draw, and in lieu thereof to construct and maintain therein a bridge with a draw, for the passage of vessels in compliance with the governing statute; or to perform the statutory duty of constructing and maintaining a farm crossing for the benefit of a private owner; or to compel a canal company to bridge a canal over a private way, which it has cut off; or to compel a railroad company to run all its passenger trains to a station which it has once located and used, in a town made a terminal point by its charter, which town is a county seat; or to maintain a station in a certain town where there is a clear and strong case of public necessity; or to restore to its former usefulness a public highway which it has occupied with its tracks;" or to erect fences as

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Union Pac. R. Co. v. Hall, 91 U. S. 343.

2 State v. Hartford &c. R. Co., 29 Conn. 538.

Union Pac. R. Co. v. Hall, 91 U. S. 343; affirming 8. c. 4 Dill. (U. S.) 479.

State v. Wilmington Bridge Co., 3 Harr. (Del.) 312; People v. Troy &c. R. Co., 37 How. Pr. (N. Y.) 427; People v. Boston &c. R. Co., 70 N. Y. 569. It is no objection to granting the writ, in such case, that the company is liable to indictment for omitting to perform the act. Ibid.

Com. v. New York &c. R. Co., 138 Pa. St. 58; 8. c. 20 Atl. Rep. 951. New Orleans &c. R. Co. v. Mississippi, 112 U. S. 12.

State v. Chicago &c. R. Co., 79 Wis. 259; s. c. 12 L. R. A. 180; 48 N. W. Rep. 243. Here again, the fact that an action is given for a penalty for failing to perform the duty does not prevent the remedy by mandamus, because that is not such an adequate remedy at law as bars the remedy to compel the performance of the duty. Ibid.

8 State v. Savannah &c. Canal Co., 26 Ga. 665.

People v. Louisville &c. R. Co., 120 Ill. 48.

10 People v. Chicago &c. R. Co., 130 Ill. 175.

11 People v. Dutchess &c. R. Co., 58 N. Y. 152.

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