erence to all of the foregoing subjects may be had by searching the general index to this treatise. And finally it is not intended here to treat of every point of practice presented in every case in which a corporation was one of the parties. That would simply submerge the distinctive law of corporation practice in a mass of procedural law depending in no way on anything pertaining to corporations. Corporations, as will be seen presently, are suitors and defendants likened as far as can be to natural persons. All the law of practice therefore applies to corporations unless their nature or the statutes or the unwritten law has made some different or apparently different rules, or has required some distinction and discrimination. It is such matters of distinction and difference, real or apparent, that are the subject of this chapter, a few suitable general illustrations being added. § 2925. In general; corporation as distinct party. The power to sue and to be sued is one incident to every corporation, and corporate rights of action are distinct from those of or against the members or stockholders, except when in equity or to prevent crime or wrongdoing the separate entity is disregarded. Because of this distinction the rule that a person cannot sue himself does not apply as between a corporation and its stockholders or members, and they may litigate antagonistically to each other. For example, a corporation. 6 See 790, supra; § 2926, infra. 7 One in control of a corporation is not subject to action to restrain violation by him of a contract of assignment of patent rights, the contract having been entered into between the corporation and the plaintiff. Aberthaw Const. Co. v. Ransome, 192 Mass. 434, 78 N. E. 485. As to what causes of action are individual to stockholders and what are in right of the corporation, see chapter on Stock and Stockholders, infra. 8 Equity will when necessary regard the fact that an individual owns or controls the corporation. At law they are distinct. Leigh V. American Brake-Beam Co., 205 Ill. 147, 68 N. E. 713. And see cases cited §§ 42-48, supra. may sue a stockholder on his subscription to its capital stock,10 and a stockholder may sue the corporation for his share of a dividend declared upon its capital stock.11 The same is true of other causes of action, whether arising ex contractu or ex delicto, at law or in equity.12 Corporations may litigate with each other notwithstanding they have common officers or members 13 or sustain a relation of trust to each other,14 though not solely because of it.15 The corporation though not a party to litigation may be interested therein or in the outcome of it; and therefore may assist by money contributions or otherwise in prosecuting or defending an action or proceeding that will directly or indirectly affect its own rights and privileges, but not otherwise.16 § 2926. Rule at common law; assimilation to natural persons. Among the incidental or implied powers which have been attributed to corporations from the earliest period is the power to sue and be sued. This power need never be expressly conferred. Whenever a corporation is duly created, among the incidents "tacite annexed" is the capacity "to sue and be sued, implead and be impleaded." 17 Corporations, like natural persons, therefore, unless 621 (where the action was by a corporation for the enforcement of a personal liability of directors for negligent performance of duty); Consolidated Fruit Jar Co. v. Wisner, 110 N. Y. App. Div. 99, 97 N. Y. Supp. 52 (where the action was by a corporation against its president for accounting); Beach v. Guaranty Sav. Ass'n, 44 Ore. 530, 1 Ann. Cas. 418, 76 Pac. 16; Burke v. Sidra Bay Co., 116 Wis. 137, 92 N. W. 568. See also Posner v. Southern Exhaust & Blow Pipe Co., 109 La. 658, 33 So. 641. 10 See Chap. 17, supra. 11 See chapter on Stock and Stockholders, subd. "Dividends,'' infra. 12 See §§ 2936, 2939 and 2940, infra, and see generally Chapter 42, supra, as to actions by or against officers and agents, chapter on Stock and Stockholders, infra, as to actions by or against members or stockholders and as to technical stockholders' suits. 13 It is no obstacle to an action that plaintiff and defendant corporations have "interlocking" directors. G. W. Jones Lumber Co. v. Wisarkana Lumber Co., 125 Ark. 65, 187 S. W. 1068. 14 A trust relation does not prevent one corporation from suing another. Leavenworth County Com'rs v. Chicago, R. I. & P. R. Co., 134 U. S. 688, 33 L. Ed. 1064. 15 One corporation cannot litigate with another merely because members are common to both and members' interests are in both. German Evangelical Society v. Prospect Hill Cemetery, 2 App. Cas. (D. C.) 310. 16 Power of corporation to assist or support actions by others, see Chapter 22, 817, supra. 17 United States. Dental Vulcanite Co. v. Wetherbee, 2 Cliff. 555, Fed. Cas. No. 3,810. Connecticut. Proprietors of White School House v. Post, 31 Conn. 240; Town of Stratford v. Sanford, 9 Corn. 275. [§ 2926 there is some restriction in the charter, "may maintain all such actions as are necessary to assert their rights when invaded, or to give them a recompense for any injury that can be done to them;" and, e converso, they may be sued like a natural person, to enforce any obligation to which they may be subject, or to obtain redress for any wrong for which they are liable.18 Positive law, statutory * * * 181 Kyd, Corporations, 185. Blackstone phrases it: "To sue or be sued, implead or be impleaded and do all other acts as natural persons may." 1 Bl. Comm. 475 cited in Santillan v. Moses, 1 Cal. 92, applying the rule to allow a Roman Catholic priest to sue as a corporation sole. "The tendency of the modern decisions is to assimulate the actions, rights, duties, and liabilities of corporations to those of individuals.’’ Moss v. Averell, 10 N. Y. 449. See also Jones v. Florence Wesleyan University, 46 Ala. 626 (rules of evidence assimilated). The same rules of procedure apply to a corporation as to a natural person. Johnson v. Butte & Superior Copper Co., 41 Mont. 158, 48 L. R. A. (N. S.) 938, 108 Pac. 1057. Rule of damages is not affected by corporate character of party. Murrell v. Pacific Exp. Co., 54 Ark. 22, 26 Am. St. Rep. 17, 14 S. W. 1098. Action at law may be maintained against a corporation the same as against a natural person. McLoud v. Selby, 10 Conn. 390, 27 Am. Dec. 689; Sutton's Hospital Case, 10 Coke 23a; 1 Kyd, Corporations, 185. Allegation that plaintiff is a corporation of the state is sufficient to import the right to sue and be sued. California Steam Nav. Co. v. Wright, 6 Cal. 258, 65 Am. Dec. 511. See also §§ 3043 and 3046, infra. "Is an incident to bodies politic of all descriptions, even to those which have been incorporated by and are located in another state or in a foreign country." McKim v. Odom, 3 Bland (Md.) 407. A corporation "for the purpose only" of receiving, holding and managing a donation for school purposes has power to sue for the fund. Proprietors of White School House v. Post, 31 Conn. 240. It was held in an Illinois case that a corporation cannot sue in its own name when its charter requires suits to be brought by the trustees or other officers. Marsh v. Astoria Lodge No. 112, I. O. O. F., 27 Ill. 421. See also or constitutional, has in some places ordained a right to sue and be sued "in like cases as natural persons. 19 The constitutional provision referred to has not been construed extensively in its literal sense and probably is little more than a declaration of the common-law principle,20 though it does invalidate discriminations not reasonably ascribable to any distinction from natural persons.21 § 2927. Statutory regulations and conditions-In general. The legislature may impose any regulations which are within the constitutional limitations. Thus it may establish rules for laying the venue unlike those governing the same matter in suits affecting only natural persons, and such legislation is not class or unequal when Dental Vulcanite Co. v. Wetherbee, 2 Cliff. 555, 3 Fish. Pat. Cas. 87, Fed. Cas. No. 3,810; Indiana Natural & Illuminating Gas Co. v. Anthony, 26 Ind. App. 307, 58 N. E. 868; State v. Inter Urban R. Co., 135 Iowa 694, 109 N. W. 867; Wilson v. American Palace Car Co., 67 N. J. Eq. 262, 58 Atl. 195; Phillips v. American Telephone & Telegraph Co., 71 S. C. 571, 51 S. E. 247. 19 For a constitutional provision declarative of this principle, see Const. of Alabama 1875, art. 14, § 12 (Const. 1901, § 240). "All corporations shall have the right to sue and be subject to be sued in all courts in like cases as natural persons. Michigan Const. art. 12, § 2. For a statute declarative of it, see Colorado Rev. St. § 855; Michigan Corp. Act, § 13; Wisconsin St. 1915, § 1748. 20 Such a constitutional provision does not intend that procedure and process intrinsically inapplicable can be used. Johnson v. Cayuga & S. R. Co., 11 Barb. (N. Y.) 621. A statute making claims against railroad companies for injuries to property assignable and suable by the assignee does not, in case of a claim ex contractu arising out of a contract of carriage, discriminate against cor porations, or deny them the constitutional right to sue and be sued as natural persons, such claims being assignable without the statute. Louisville & N. R. Co. v. Landers, 135 Ala. 504, 33 So. 482. See also Alabama Girls' Industrial School v. Reynolds, 143 Ala. 579, 42 So. 114, denying that it withdrew the immunity of state institutions from private suit; Kansas City, M. & B. R. Co. v. Whitehead, 109 Ala. 495, 19 So. 705, with comment on Brown v. Alabama Great Southern R. Co., 87 Ala. 370, 6 So. 295. Under such a provision a statutory liability for wrongful death of a child was held unconstitutional because none but corporations was made liable. Exception in necessary procedural matters, like venue, was noted however in the opinion. Smith v. Louisville & N. R. Co., 75 Ala. 449. See also holding that it does not apply to procedure like venue. Home Protection v. Richards & Sons, 74 Ala. 466. 21 The right under the constitution to sue in all courts' in like cases as natural persons (Const. 1846, art. 8, §3) invalidates a charter provision prescribing only the supreme court for injunction cases affecting the particu lar corporation. Story v. New York El. R. Co., 3 Abb. N. Cas. (N. Y.) 478. based on the inherent distinction between them and corporations.22 And statutory regulation of the jurisdiction of courts has been made, especially that of inferior courts, and that affecting foreign corporations.23 In some states it has been prescribed that a copy of the articles shall be filed in the county before suits therein can be maintained,24 and statutes requiring compliance with prescribed conditions by foreign corporations as a condition of suing are numerous, 25 The payment of taxes and the filing of reports and the like are often required under a penalty of forfeiture for noncompliance; and, when such forfeiture is complete, pending actions abate and power to sue or defend in new ones is gone.20 26 Regulative statutes in an enabling act for incorporation of a specific kind of corporations will operate on procedure as if they were found in a special charter, and will be construed accordingly as exceptions in applying the procedural law of corporations generally.27 Special charters sometimes contain provisions fixing practice in actions by or against the corporation.28 The strong tendency, in the absence of any such regulations, is to assimilate all procedural law to that of natural persons, and to construe regulations of a general nature affecting "persons," "parties," or the like as including corporations.29 § 2928. Regulations affecting "persons," etc., as applying to corporations. Generally a procedural regulation applicable in terms provided," does not exempt the cor- 29 See § 2926, supra, § 2928, infra. |