managing officer.88 The control and conduct of the suit or defense after it is begun and pending is likewise in the directors acting through the attorney for the corporation.89 A corporation aggregate, as distinguished from one that is sole, must always appear by attorney, for it cannot appear in person.90 § 2934. Authorization of agents and officers to sue, defend or appear. Theoretically the authority of an officer or attorney emanates from a by-law or from the directors by a resolution, but it need not be a formally passed and recorded one, so far as the adverse party in litigation is concerned,91 although under the earlier rule a seal was essential; 92 but the common law requirement that the warrant of attorney be entered and spread on the record is now obsolete in most or all jurisdictions,93 it being presumed that an attorney of 88 See §§ 1988, 2054, 2055 and 2136, supra. Authority to employ attorneys, see Chapter 42, §§ 2054, 2064, 2157, supra. 89 As to control of litigation and dismissals and discontinuances, see § 3112, infra, and see also Chap. 42, §§ 1981, 2051, 2131, 2155, supra, as to compromises and settlements. 90 1 Bl. Comm. 476; Nispel v. Western Union R. Co., 64 Ill. 311; Nixon, Ellison & Co. v. Southwestern Ins. Co. of Cairo, Illinois, 47 Ill. 444; Kankakee Drain. Dist. v. Commissioners Lake Fork Spec. Drain. Dist., 29 Ill. App. 86, rev'd 130 Ill. 261, 22 N. E. 607; Brookville Ins. Co. v. Records, 5 Blackf. (Ind.) 170; State Bank v. Bell, 5 Blackf. (Ind.) 127. Cannot appear by its cashier. State Bank v. Van Horn, 4 N. J. L. 382. At common law the technical rules of a plea to the jurisdiction required it to be in person, since appearance by attorney admitted the jurisdiction. Mineral Point R. Co. v. Keep, 22 Ill. 9, 74 Am. Dec. 124. See §§ 3018-3020, infra, as to appearances. 91 A resolution of the board is not necessary. Kenton Furnace R. & Mfg. Co. v. McAlpin, 5 Fed. 737. A resolution authorizing the bring ing of suit is good if the only director not notified of the meeting had waived notice. Las Ovas Co. v. Davis, 35 App. Cas. (D. C.) 372. A letter signed by the corporation by its secretary authorizing the addressee, an attorney at law, to appear for it in all suits in justice court, is sufficient in justice court and on appeal from it. Norberg v. Heineman, 59 Mich. 210, 26 N. W. 481. The president's written authoriza tion to a solicitor to take an appeal binds the corporation. American Ins. Co. v. Oakley, 9 Paige (N. Y.) 496, 38 Am. Dec. 561. Attorney's statement that he has authority suffices but does not authorize a suit in the name of the corporation by one without its authority to institute same. Bridgton v. Bennett, 23 Me. 420 (municipal corporation). As to the mode of conferring authority generally, see Chapters 39 and 42, supra. As to by-laws generally, see Chapter 16, supra. 92 Authorization to appear for it must be under seal. In re Cape Sable Co., 3 Bland (Md.) 606. 93 See Farmers' & Mechanics' Bank v. Troy Bank, 1 Dougl. (Mich.) 457, following Osborn v. Bank of United [§ 2934 the court has the necessary authority when he enters an appearance for the corporation, and also that a suit instituted by the officers was authorized.95 Assent to the use of the corporate name in suing for the use of the real party in interest may be inferred.96 A substitution of attorneys, if contested, must be after a hearing and not ex parte.97 If the attorney was without authority the proceeding may be set aside, but this will not be done to the prejudice. of the other party unless necessary for the protection of the corporation.98 As in the case of ordinary clients the attorney cannot change sides or represent both parties.99 A general manager has authority to institute necessary legal proceedings in the usual course of business1 and to perform the necessary incidents 2 but one not a general manager has not such authority.3 States, 9 Wheat. (U. S.) 738, 6 L. Ed. 204. And see also Gaines v. Tombeckbee Bank, Minor (Ala.) 50; State Bank v. Bell, 5 Blackf. (Ind.) 127; Penobscot Boom Corporation v. Lamson, 16 Me. (4 Shep.) 224, 33 Am. Dec. 656; Whyte v. Betts Mach. Co., 61 Md. 172. See also § 3046, infra. 94 Norberg v. Heineman, 59 Mich. 210, 26 N. W. 481, and see also cases cited in the note preceding this. 95 Conley v. Daughters of Republic of Texas, Tex. Civ. App. 151 S. W. 877. 96 Lime Rock Bank v. Macomber, 29 Me. 564. 97 Substitution of attorneys for the corporation for the purpose of dismissing its appeal. Woodbury v. Nevada Southern Ry. Co., 115 Cal. 85, 46 Pac. 862. 98 American Ins. Co. v. Oakley, 9 Paige (N. Y.) 496, 38 Am. Dec. 561. It will be noted that this was a chancery suit, and the rule might be different on the law side; although in opening judgments a showing of merits and equity is required on the law as well as on the equity side. If the attorney carried on the litigation without knowledge of the corporation, there would be other grounds to open a judgment; and if it suffered him to do so with knowledge, it might well be bound by the result. See § 3118, infra. 99 An attorney who appeared for defendant in a former trial cannot appear for plaintiff corporation on the second trial. Price v. Grand Rapids & I. R. Co., 18 Ind. 137. An attorney having appeared for a corporation specially to ask dismissal of a bill for a receiver, is not disabled to appear for the trustee in a subsequent suit to foreclose a mortgage on its road. Shaw v. Bill, 95 U. S. 10, 24 L. Ed. 333. 1 Frost v. Domestic Sew. Mach. Co., 133 Mass. 563. See also Chap. 42, § 2136, supra. 2 Execution of an appeal bond. Sarmiento v. Davis Boat & Oar Co., 105 Mich. 300, 55 Am. St. Rep. 446, 63 N. W. 205. 3 An officer, merely as an officer, has no power to bring suits even if necessary in his judgment. American Waterworks Co. v. Venner, 63 Hun (N. Y.) 632, 18 N. Y. Supp. 379; Pinkerton v. Gilbert, 22 Ill. App. 568 (superintendent of a factory). As to general powers of attorneys and other agents, see also Chap. 42, supra. Consequently, the president, vice president,5 treasurer, cashier of a bank, or secretary merely by virtue of the name of the office has no such power but it may reside in any of such officers who is the general managing officer, or who is thereto expressly authorized, and if the suit or litigation is within the authority conferred or the ordinary course of business. A subsequent ratification is equivalent to original authority for this purpose.9 The officers incumbent at the time should act for the corporation, and sign its pleadings.10 Mere authority to receive service of process does not qualify or authorize 4 See §§ 2054, 2055, supra, and see also the following cases: United States. In re Winston, 122 Fed. 187 (institution of petition in bankruptcy against debtor). California. Streeten v. Robinson, 102 Cal. 542, 36 Pac. 946. Illinois. Boston Tailoring House v. Fisher, 59 Ill. App. 400. Kentucky. Savings Bank v. Benton, 2 Metc. 240. Massachusetts. New England Mut. Life Ins. Co. v. Wing, 191 Mass. 192, 77 N. E. 376; Trustees of Smith Charities v. Connolly, 157 Mass. 272, 31 N. E. 1058. Michigan. Sarmiento v. Davis Boat & Oar Co., 105 Mich. 300, 55 Am. St. Rep. 446, 63 N. W. 205. Missouri. Lewis v. Pulitzer Pub. Co., 77 Mo. App. 434. Nevada. Reno Water Co. v. Leete, 17 Nev. 203, 30 Pac. 702. New Jersey. Beebe v. George H. Beebe Co., 64 N. J. L. 497, 46 Atl. 168. New York. Potter v. New York Infant Asylum, 44 Hun 367, aff'd 118 N. Y. 684, 23 N. E. 1147; Recamier Mfg. Co. v. Seymour, 15 Daly 245, 5 N. Y. Supp. 648; Mumford v. Hawkins, 5 Den. 355; Oakley v. Workingmen's Union Benev. Society, 2 Hilt. 487; American Ins. Co. v. Oakley, 9 Paige 496, 38 Am. Dec. 561. Oregon. Lucky Queen Min. Co. v. Abraham, 26 Ore. 282, 38 Pac. 65. Texas. Dallas Ice Factory & Cold Storage Co. v. Crawford, 18 Tex. Civ. App. 176, 44 S. W. 875. Washington. Fernald v. Spokane & B. C. Telephone & Telegraph Co., 31 Wash. 672, 72 Pac. 462. West Virginia. Colman v. West Virginia Oil & Oil Land Co., 25 W. Va. 148. 5 Not decided but questioned in Streeten v. Robinson, 102 Cal. 542, 36 Pac. 946 (employment of attorney); Lacaze v. Creditors, 46 La. Ann. 237, 14 So. 601, holding vice president had power to institute suit; Fernald v. Spokane & B. C. Telephone & Telegraph Co., 31 Wash. 672, 72 Pac. 462. holding he could do what president could have done if present. See also Chap. 42, supra. 6 See also Chap. 42, supra. 7 See § 2136, supra, and see the following: Institution of litigation. Bristol County Sav. Bank v. Keavy, 128 Mass. 298 (treasurer of a bank analogous to cashier). Employment of attorney, Root v. Olcott, 42 Hun (N. Y.) 536, aff'd 115 N. Y. 635, 21 N. E. 1116; Mumford v. Hawkins, 5 Den. (N. Y.) 355. 8 See also Chap. 42, supra. 9 De Zavala v. Daughters of Republic of Texas, 58 Tex. Civ. App. 19, 124 S. W. 160. 10 The courts will not try their right to office on a motion to such pleadings. Mechanics' Nat. Bank v. H. C. Burnet Mfg. Co., 32 N. J. Eq. 236. [§ 2936 the possessor to do other acts in litigation for the corporation.11 A stockholder, as such, is totally lacking in authority to use the corporate name in litigation in its interest, his right and power in that respect being to bring a stockholders' suit on behalf of the corporation if it is unable to do so by reason of a hostile control, or if the directors refuse to do so on request.12 § 2935. Remedies and forms of action in general. Since corporations, as already shown, sue and are sued like natural persons 13 they may resort to or be subjected to any form of action or remedy appropriate to the right asserted and the redress sought and ordinarily available to any litigant.14 In addition statutory remedies may be provided.15 In the federal courts the distinction between equity and law is preserved by the constitution and the general practice is pointed out by statutes and rules of court.16 Several of the states also preserve in whole or in part the same distinctions in forms, and these will be noted in commenting on the particular phase of practice on which they bear.17 An equitable character may be given to an action at law by amendment, and vice versa, as in actions between natural persons.18 § 2936. Equitable actions in general. As an incident of the right to sue and be sued as natural persons, corporations, to the same extent as natural persons, may maintain suits in equity to protect or enforce their rights. Thus, they may sue to enjoin a trespass upon their property or a nuisance affecting their property,19 or an invasion of 11 The insurance commissioner's authority is limited to receiving process. Further procedural acts are to be done by regular agents of the foreign corporation (affidavit in garnishment). Dougan v. Sun Fire Office of London, 39 Mo. App. 676. 12 See chapter on Stock and Stockholders, infra. A stockholder cannot sue out a writ of error for the corporation without special authority. Chicago & S. S. Rapid-Transit R. Co. v. Northern Trust Co., 90 Ill. App. 460, aff'd as Wells v. Northern Trust Co., 195 Ill. 288, 63 N. E. 136. 13 See § 2926, supra. 14 See sections following. 15 See § 2938, infra. 16 See U. S. Rev. St. §§ 913, 914, conforming to the "principles, rules and usages of" equity on that side, and to the local state practice "as near as may be" on the law side. See also New Equity Rules, 226 U. S. app'x. 17 See this chapter passim, infra. 18 Creditors' suit changed to action op debt. George H. Taylor Co. v. Woolverton, 37 Ill. App. 358. Action for deceit changed to stockholders' suit. King v. Livingston Mfg. Co., 180 Ala. 118, 60 So. 143. 19 Central Bridge Corporation v. Lowell, 4 Gray (Mass.) 474. franchise rights 20 or to restrain others from wrongfully using the corporate name, or from infringing a patent, trade-mark, or copyright 21 or for any other form of equitable relief which is suitable, there being equity in the bill and no adequate remedy at law.22 For its proper protection it may enjoin threatened unconstitutional action by a state officer 23 or minor public officers.24 While it cannot sue 20 Injunction against nuisance consisting in interference with franchise to take tolls, sustained. Newburgh & C. Turnpike Road Co. v. Miller, 5 Johns. Ch. (N. Y.) 101, 9 Am. Dec. 274. Equitable relief may be given against the unlawful exercise of a franchise in conflict with an exclusive franchise belonging to plaintiff. Boston & L. R. Corporation v. Salem & L. R. Co., 2 Gray (Mass.) 1. Suit may be maintained by a corporation to restrain interference by municipality with the laying of its gas mains. Public Service Corp. of New Jersey v. De Grote, 70 N. J. Eq. 454, 62 Atl. 65. 21 Newby v. Oregon Cent. Ry. Co., Deady, 609, Fed. Cas. No. 10,144; Dental Vulcanite Co. v. Wetherbee, 2 Cliff. 555, Fed. Cas. No. 3,810; Holmes, Booth & Haydens v. Holmes, Booth & Atwood Mfg. Co., 37 Conn. 278, 9 Am. Rep. 324. As to injunction against interference with corporate name or unfair competition therewith, see § 725 et seq., supra. 22 Where the stockholders have no equity to annul dealings between the corporation and its officers for fraud, it has none. Arkansas River Land, Town & Canal Co. v. Farmers' Loan & Trust Co., 13 Colo. 587, 22 Pac. 954. Action to charge stockholders for merchandise furnished is at law. Grants Pass Hardware Co. v. Calvert, 71 Ore. 103, 142 Pac. 569. A bill against a transfer agent for discovery of the amount of spurious stock put out by it and for indem nity against such stock issues shows equity. Bank of Kentucky V. Schuylkill Bank, 1 Pars. Eq. Cas. (Pa.) 180. Equity will take a bill to recover money lost by an officer in gambling on futures where discovery and accounting will be necessary. Medlin Milling Co. v. Moffatt Commission Co., 218 Fed. 686. 23 The corporation may sue for injunction to prevent state officers from impairing its franchise under an unconstitutional tax, Osborn v. Bank of United States, 9 Wheat. (U. S.) 738, 6 L. Ed. 204; or to prevent execution of an unconstitutional rate regulation confiscatory of its property; Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764; or to prevent insurance commissioner from compelling use of an illegal standard form of policy under unconstitutional law, Phenix Ins. Co. of Brooklyn, New York v. Perkins, 19 S. D. 59, 101 N. W. 1110. 24 Although a city may have power to regulate the charges made by |