4 Bank of U.S. v. Dandridge, 12 Wheat. 64, 79; and see Baird v. Bank of Washington, 11 Serg. & R. 411; Trustees etc. v. Hills, 6 Cowen, 23; McCollough v. Annapolis etc. R. R. Co. 4 Gill, 58.

5 Sampson v. Bowdoinham etc. Co. 36 Me. 78; and see State v. Lehre, 7 Rich. 234; Partridge v. Badger, 25 Barb. 146; Royal British Bank v. Turquand, 5 El. & B. 248.

6 People v. Stevens, 5 Hill, 616; Rex ». Hughes, 4 Barn. & O. 363; People v. Hills, 1 Lans. 202.

CHAPTER VIL

CORPORATE LIABILITIES.

572. Capacity to be sued, generally.
573. May be sued by members.

§ 74. In what courts.

§ 75. In what name to be sued.

§ 76. Liability upon contracts, generally.

§ 77. Liability upon negotiable instruments.

§ 78. Liability for wrongs.

§ 79. In cases of fraud.

§ 80. Tortious acts of agents.

§ 81. Trespass to the person.

§ 82. Trespass to property.

$83. Libel, malicious prosecution, etc.

§ 84. Negligence.

§ 85. Wrongful acts resulting in death.
§ 86. Liability to indictment.

§ 87. Liability to taxation.

§ 88. Place of taxation.

§ 89. Modes of valuation and assessment.
90. Exemption from liability to taxation.

§ 72. Capacity to be sued, generally.--The capacity of being sued is one of the incidents of a corporation, although it is usually contained among those powers expressly given;1 subject to the qualification, that it is in relation to some matter within the scope of the legitimate purposes of the corporation.2 Assumpsit will lie against a corporation; so will an action on the case; so of an action of trover; 5 or of trespass. And certain bodies created by the legislature, having a corporate capacity for particular specified ends, have an incidental capacity to be sued, independently of any express power, and for such purpose are regarded as corporations sub modo.7 A liability imposed by statute generally, includes corporations as well as natural persons. But a corporation is

not liable to be sued for a statute penalty imposed in general terms, on any "person' who shall take logs belonging to another with intent to claim them. The fact that a state is the sole proprietor of a corporation does not prevent the corporation from being sued. 10

1 See Bradley v. Richardson, 2 Blatchf. 343; Inhabitants etc. v. Hodges, 100 Mass. 241; Whitman v. Keith, 18 Ohio St. 134.

2 Ancient City Club v. Miller, 7 Lans. 412; and see Pearce v. Railroad Co. 21 How. 411: Griggs v. Foote, 4 Allen, 195; Miners' Ditch Co. v. Zellerbach, 37 Cal. 543.

3 Smith v. Cong. Meeting-house, 8 Pick. 178; Bank of Metropolis v. Guttschlieck, 14 Peters, 19; Randal v. Van Vechten, 19 Johns. 60; Leinington v. Blodgett, 37 Vt. 215; Herzo v. San Francisco, 33 Cal. 134.

4 Sargent v. Franklin Ins. Co. 8 Pick. 90; Shipley v. Mechanics' Bank, 10 Johns. 484.

5 Smith v. Birminghamı etc. Gaslight Co. 1 Ad. & E. 526.

6 Reg. v. Birmingham etc. Railw. Co. 3 Ad. & E. N. S. 223; Chestnut Hill Turnp. Co. v. Rutter, 4 Serg. & R. 16; Maud v. Monmouthshire Canal Co. 4 Man. & G. 452; and see Barteé v. Houston etc. R. R. Co. 36 Tex. 648.

7 Todd v. Birdsall, 1 Cowen, 260; Levy Court v. Coroner, 2 Wall. 501; Clarissy v. Metrop. Fire Depart. 7 Ább. Pr. N. S. 352.

8 See Chase v. American Steamboat Co. 10 R. I. 79; Bartee v. Houston etc. R. R. Co. 36 Tex. 648.

9 Androscoggin Water Power Co. v. Bethel Steam Mill Co. 64 Me. 441; and see State v. Cincinnati Fertilizer Co. 24 Ohio St. 611.

10 Hutchinson v. Western etc. R. R. Co. 6 Heisk. 634; Moore v. Trustees of Wabash, etc. 7 Ind. 462.

§ 73. May be sued by members.-As a general rule. a member of a corporation is not disabled by reason of his membership from maintaining an action against the corporate body, upon any cause of action he may have against it; and the instances are common in which the right of a person to sue the corporation of which he is a member has been exercised.2 It is no valid objection to an action against a joint-stock company, that the plaintiffs are corporators or members of the company. But an illusory suit in the name of a shareholder, but really prosecuted by and in the interest of a rival company, cannot be maintained for the purpose of dissolving or restraining another association or company, of which the nominal plaintiff may be a member.4

1 Barnstead v. Empire Min. Co. 5 Cal. 299; Ex parte Booker, 18 Ark. 338; Waring v. Catawba Co. 2 Bay, 109.

2 See Culberton v. Hubush Nav. Co. 4 McLean, 544; Schrich v. St. Louis etc. Co. 34 Mo. 423; Connell v. Woodward, 6 Miss. 665; Merrick v. Peru Coal Co. 61 Ill. 472.

3 Westcott v. Fargo, 6 Lans. 319.

4 Waterbury v. Merchants Un. Ex. Co. 3 Abb. Pr. N. S. 163,173; and see Forrest v. Manchester etc. Co. 7 Jur. N. S. 41; Filder v. London etc. Railw. Co. 1 Hem. & M. 489; Rex v. Trevenen, 2 Barn. & Ald. 479.

§ 74. In what courts.-For the purposes of litigation, corporations are to be considered inhabitants of the state under whose laws they exist, and the right to sue them in the courts of a different state depends generally upon express legislation. But it is within the power of a state legislature to authorize a suit against a foreign corporation in personam, as well as a suit in rem.2 And a corporation may be sued in the federal courts of any state other than that which created it, where service can be obtained according to the statutory rules of the state where such court is established. A foreign corporation, by a voluntary appearance in the courts of a state, thereby submits to their jurisdiction.4 And when a foreign corporation, by its officers, comes within the jurisdiction of another state, and there engages in business, it becomes subject to the laws of the latter state, and to the process of the courts; and where such a corporation, by its officers, is guilty of a wrong, or commits a trespass, within the state, it cannot escape the consequences of its illegal acts by setting up that it holds its existence under a foreign government. But if suit is commenced by service upon an officer of a foreign corporation, when he happens to be temporarily in another state, a plea to the jurisdiction will be sustained. A suit brought against a corporation created by the concurrent legislation of two states, is, in legal contemplation, a suit in which citizens of each state are joined as defendants, and if the plaintiff is a citizen of either of these states, the suit cannot be maintained in the courts of the United States.8 Since the enactment of the English Judicature Acts, a foreign corporation, carrying on business in England, although not incorporated

according to English law, may be sued as defendant in an English court, in respect of any cause of action which arose within the jurisdiction."

1 Lathrop v. Union Pacific Railw. Co. 1 McArthur, 234; and see Gibbs v. Queen Ins. Co. 63 N. Y. 114; Nat. Condensed Milk Co. v. Brandenburgh, 40 N. J. L. 111; Weight v. Liverpool etc. Ins. Co. 30 La. An. 1186; Fisk v. Chicago etc. R. R. Co. 53 Barb. 513.

2 Barnett v. Chicago etc. R. R. Co. 4 Hun, 114; 6 Thomp. & C. 358; and see Bawknight v. Liverpool etc. Ins. Co. 55 Ga. 194.

3 Ex parte Schollenberger, 96 U. S. 369; Railw. Co. v. Whitton, 13 Wall. 270; and seo Eggleston v. Orange etc. R. R. Co. 1 Code R. N. S. 212; Libbey v. Hogdon, 9 N. H. 394; City etc. Ins. Co. v. Carrugi, 41 Ga.

660.

4 North Mo. R. R. Co. v. Akers, 4 Kans. 453; De Bemer v. Drew, 57 Barb. 439; 39 How. Pr. 466; and see Myers v. Dörr, 13 Blatchf. 22; Day v. India Rubber Co. 1 id. 628.

5 People v. Cent. R. R. Co. 48 Barb. 478; Conn. etc. Ins. Co. v. Duerson, 28 Gratt. 630.

6 People v. Cent. R. R. Co. 48 Barb. 478; Warren Manuf. Co. v. Etna Ins. Co. 2 Paine, 501; Austin v. N. Y. etc. R. R. Co. 1 Dutch. 381; and see Richmond etc. R. R. Co. v. Richmond, 26 Gratt. 83.

7 Camden Rolling Mill Co. v. Swede Iron Co. 32 N. J. L. 15; Latimer . Union Pacific Railw. 43 Mo. 105; Newell v. Great West. Railw. Co. 19 Mich. 336.

8 County of Alleghany v. Cleveland, etc. R. R. Co. 51 Pa. St. 228. See Sprague v. Hartford etc. R. R. Co. 5 R. I. 233; Ohio etc. R. R. Co. v. Wheeler, 1 Black. 286.

9 Newby v. Van Oppen, Law R. 7 Q. B. 293; Westman v. Aktiebol aget etc. 1 L. R. Ex. D. 237; Scott v. Royal Wax Candle Co. 1 L. R. Q. B. D. 404.

§ 75. In what name to be sued.-As a general rule, a corporation can be sued only by its corporate name. The name of a corporation is of its very essence, and a change of name in the execution, from that by which it is sued and judgment entered up against it, is a material variance.2 But after the name of a corporation has been lawfully changed, it should be sued by its new name. And appearing and answering to the merits admits that the defendant is correctly named.4 In general, a corporation may be declared against by what purports to be a corporation name, without setting forth by averment how it acquired that name.5 If the description impliedly amounts to an allegation that the defendants are a corporate body, it is sufficient. A corporation defendant can take advantage of a misnomer only by pleading it in abatement.7