[§ 3037 condition that his co-plaintiffs indemnified him against liability for plaintiffs' costs.81

§ 3037. Intervening and interpleaded parties. There is nothing about a corporation which prevents it from intervening in a suit or interpleading claimants like any natural person would under a similar state of the equities. Nor is there any reason why others should not in the ordinary manner interplead it or intervene in a suit where it is a party. The questions involved in either situation are mainly substantive questions of the existence of the right to intervene or to interplead, and few actual questions of parties can arise. In the code states they are both regulated by statutes. Intervention in federal equity practice is now regulated by New Equity Rule 37, which is not materially different from the established law on that subject.82 The right of the corporation to interplead claimants to stocks and dividends has been sustained, and there is no reason why it may not interplead any conflicting claimants to a fund or property which it has as a stakeholder. It is often done by an insurance corporation where a loss payable or a benefit is thus in dispute.83 The corporation rather than its disbursing officer or agent is the one to file an interpleader 'bill or petition.84

Stockholders who make a proper showing of equity are allowed to intervene in suits to which the corporation is a party, when neces sary for the protection of their rights, or where a proper defense is available which it will not make,85 and its creditors may also intervene.86 Intervention is frequently allowed in corporate mortgage foreclosure suits and receivership suits.87 The state may of its own

81 A trustee was joined as a co-plaintiff, whereas he might have been made a defendant for refusal to join. McAllen v. Woodcock, 60 Mo. 174.

82 See full text of the rule 226 U. S. appendix. See Kardo Co. v. Adams, 231 Fed. 950.

83 As to claimants to stocks or divi dends, see chapter on Stock and Stockholders, infra.

May interplead dividend claimants. Salisbury Mills v. Townsend, 109 Mass. 115.

84 Mutual benefit insurance corporation can interplead claimants to a benefit. Its treasurer is not the one to file the interpleader bill as he does

not owe the money. Hechmer v. Gilligan, 28 W. Va. 750.

85 A stockholder may intervene to make a defense or claim which the corporation will not or cannot make (practice on such a petition of intervention stated). Ex parte Gray, 157 Ala. 358, 131 Am. St. Rep. 62, 47 So. 286. See also chapter on Stock and Stockholders, infra.

86 See case cited in note following. 87 See § 1373, supra, and chapter on Stock and Stockholders, infra.

In a foreclosure suit against a corporation, individual bondholders on making a proper case against the trustee who primarily represents them and

motion intervene in a suit affecting a state owned corporation.89 A so-called intervention has been allowed to enable a late officer to inform the court of the dissolution of the corporate defendant.90 A petitioner will not be allowed to intervene on a side which would so align the parties as to oust the jurisdiction of a federal court, where equal protection could be given him on the other side.91 In the federal courts and chancery courts generally, equitable owners or claimants of corporate property cannot be admitted as defendants to assert their equities in a law action against it for tort.92

Unless the petitioner shows equities involved in the suit,93 or shows that his corporation cannot properly make defense 94 leave to intervene should be refused.

V. PLEADINGS

§ 3038. General law of pleading. The same rules of pleading apply to corporate parties as to other parties. The law of pleading is

[§ 3038 general to all of them.95 This decision made with respect to a municipal corporation applies equally to a private one. In fact it was made in response to an argument which conceded that as to private corporations no distinction could be made. It was made respecting a system of pleading established by statute but is true of any general system, common-law or statutory. Later, on mature consideration it was reiterated by the same court,96 and others accord with it.97 Since no commentary on the general law of pleading is fit or proper for this book, many cases might be discarded as presenting nothing of corporation law, though a corporation was one of the parties. But a great many of such cases are of illustrative value and have been retained in this chapter for that purpose. The same pleadings are proper or necessary as with natural parties pursuing similar remedies, and a statutory remedy is not construed as dispensing with them unless it plainly appears that such was the intendment of it.98 In earlier days when the distinctive kinds of process were still preserved, it was held that actions which do not proceed according to the ordinary course of a common-law action by summons may be pleaded according to the practice peculiar to them after jurisdiction by ordinary summons is had.99 On the law side the federal practice "shall conform as near as may be to the practice, pleadings and forms" of the respective states wherein the district is situated, while on the equity

95 Per Field, J., in San Francisco Gas Co. v. San Francisco, 9 Cal. 453, at page 466.

Να

96The rules of pleading are general. They were designed to embrace all persons, natural or artificial, capable of suing or being sued. exception is made of corporations, by the statute, and we have no authority to interpolate any upon the system." Hunt v. San Francisco, 11 Cal. 250, per Baldwin, J.

97 Thorn & Maynard v. New York Cent. Mills, 10 How. Pr. (N. Y.) 19, aff'd sub nom. Shearman v. New York Cent. Mills, 1 Abb. Pr. (N. Y.) 187.

98 Code, 3049, providing for notice, and the sections providing for the right to sue and the manner of service, held not to provide a method of suit by merely serving a notice of claim without other pleadings. Hodges v. Atlantic & G. R. Co., 51 Ga. 244.

99 In ejectment a rule to plead entered and noticed as in case of ordinary actions (2 R. S. p. 231) is proper, where a corporation is defendant and has been summoned. The action should be begun by summons as other actions and thence proceed as an action of ejectment. Baker v. Long Island R. Co., 1 How. Pr. (N. Y.) 214. And see also Brown v. Syracuse & N. R. Co., 5 Hill (N. Y.) 554.

In ejectment by a corporation, since defendant cannot plead nu tiel in abatement or bar, but is confined to the general issue, that will raise corporate nonexistence, notwithstanding the statute requiring it to be specially pleaded in ordinary actions. Common & Undivided Land and Meadows of Southold v. Horton, 6 Hill (N. Y.) 501.

1 By virtue of the "Conformity Act" (R. S. §914), "the practice,

side and in admiralty "the principles, rules and usages of courts of equity and of admiralty respectively" are followed except as otherwise provided by statute or rule of court. The abolition of the distinctions in forms of action by the codes has done away with some of the rules which were formerly applicable to corporations, and even where the distinction between law and equity remains there have been many simplifications in equity pleading. Thus, in the federal practice the adoption of the New Equity Rules abolished the technical forms of pleadings in equity, and the bill is now to contain a short and simple statement of the cause of action.3 Succeeding sections in this subchapter deal with the various rules by which matters of pleading peculiar to corporations which are parties are governed. It will be observed on reading them that many of the accepted rules are but special phrasings of the ordinary rules of pleading.4

Such officers as are incumbent at the time of pleading should officiate in making the pleadings,5 and they are presented to the court by the attorney for the corporation.

§ 3039. In suits affirming or assuming corporate character and existence. A distinction not always made and frequently assumed is that between suits which affirm or assume the corporate character of the party and those which do not. Especially in the case where the defendant or one of the defendants is a corporation it will be found that the right asserted or the defense made often does not rest on any corporate attribute or even on the existence of the corporate defendant as a corporation. Of course it must rest on the existence

suance thereof; but the same shall be subject to alteration and addition by the said courts, respectively, and to regulation by the supreme court by rules prescribed from time to time," etc. The supreme court in November 4, 1912, promulgated the New Equity Rules superseding the former ones. See 226 U. S. appendix.

3 See New Equity Rules 18 and 25, printed in 226 U. S. appendix. 4 See the sections following.

5 Mechanics' Nat. Bank v. H. C. Burnet Mfg. Co., 32 N. J. Eq. 236. 6 See §§ 2933, 2934, supra. As to signature and verification, see § 3083, infra.

[§ 3040 of some entity or person, for a suit without parties cannot be; but it is in such suits immaterial whether it be that of a corporation." Much of the controversy formerly made over the necessity of and particularity with which allegations of corporate name, existence and locality should be made found its cause in the question whether the fact. of incorporation was a part of the cause of action or was merely a fact essential to the capacity of the party to sue or defend. Whenever it is essential in the cause of action or defense, it must be alleged with much greater particularity than when it is merely an allegation of capacity. Actions and suits between the corporation and its stockholders or officers necessarily affirm the corporate existence as a basis of the relationship on which the rights are predicated, and corresponding allegations are required.9

§ 3040. Caption and entitlement of pleadings. There seems to be nothing required in the heading or style of a pleading by or against a corporation which differentiates it from other litigants. The rule is familiar that the caption is not a part of the pleading, unless a statute makes it so, but it is important and desirable to make the caption accurate in respect to the names and description of the parties as well as in all other particulars. The names in the caption may by reference aid a defective name or description in the body of the pleading, though they will not serve its office.10 On the other hand

7 In such actions as quo warranto and dissolution suits where the very existence of the corporation is the principal issue, a stricter rule applies than in ordinary tort and contract actions. See chapters on Quo Warranto; Forfeiture, Dissolution and Winding Up, infra.

A like illustration can be found in litigation between the corporation and its officers or stockholders or members, and between officers and members, for without incorporation the litigated rights could not exist. See Chapters 17, 42, supra, and chapter on Stock and Stockholders, infra. Thus in suing a stockholder on his contract of subscription he is entitled to an allegation that the plaintiff is or represents by privity the corporation with which the contract was made, and that any precedent conditions have been fulfilled by it. See § 659, supra.

IV Priv. Corp.-74

8 The New York doctrine that incorporation must have been pleaded and proved by the party holding the affirmative, even on the general issue, and that want of such an allegation could be challenged by a general demurrer, was based on the hypothesis that incorporate character inhered in the substance of the cause of action. Much useless technicality was the result of this doctrine, which finally was done away with by a statute. See §§ 3042, 3043, 3068, 3073, 3083, 3086, infra.

9 See §§ 3058-3060, infra, and references there collected.

10 Mention in caption of defendant as "a corporation" is not enough. Miller v. Pine Min. Co., 3 Idaho (Hasb.) 493, 35 Am. St. Rep. 289, 31 Pac. 803.

A description in the title as "a corporation,'' will not supply the required allegations under the statute in New