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statute does not in terms declare that the contract shall be void, but merely prescribes a penalty for making it.10 A statute provision that "no corporation shall engage in mercantile or agricultural business, nor in commission, brokerage, stock-jobbing, exchange, or banking business of any kind," does not invalidate a single isolated contract for the purchase of goods.11

1 Morris etc. R. R. Co. v. Sussex R. R. Co. 20 N. J. Eq. 543; and see Thompson v. Lambert, 44 Iowa, 239.

2 Dean v. La Motte Lead Co. 59 Mo. 523.

3 Rock River Bank v. Sherwood, 10 Wis. 230. See infra, ULTRA VIRES.

4 In re Contract Corp. Law R. 8 Eq. 14.

5 Grand Gulf Bank v. Archer, 8 Smedes & M. 151.

6 Nevittv. Bank of Port Gibson, 6 Smedes & M. 513; and see People v. President etc. of Cal. College, 38 Cal. 166; Chicago etc. R. R. Co. v. Howard, 7 Wall, 392; Revere v. Boston Copper Co. 15 Pick. 351.

7 Dean r. La Motte Lead Co. 59 Mo. 523. But see Conant v. Nat. Ice Co. 8 Jones & S. 83.

8 Houston v. Jefferson College, 63 Pa. St. 428.

9 White Water etc. Canal r. Vallette,21 How. 414; City of Bridgeport v. Housatonic R. R. Co. 15 Conn. 475.

See Fleckner v. U. S.

10 Cin. etc. Ins. Co. v. Rosenthal, 55 Ill. 85. Bank, 8 Wheat. 338; Nat. Bank. v. Matthews, 98 U. S. 621; Leavitt v. Palmer, 3 N. Y. 19; White v. Franklin Bank, 22 Pick. 181; Blair v. Perpetual Ins. Co. 10 Mo. 559.

11 Graham v. Hendricks, 22 La. An. 523.

§ 46. Capacity to sue.-The power to sue is one of the common-law incidents of a corporation. And this power has been upheld, notwithstanding defects of organization, or other peculiar circumstances relied upon to defeat it.2 Corporations, public or private, may sue upon all promises and obligations made to them,3 which fall within the scope of the legitimate purposes of the corporation. So, a corporation may sue for injuries done to the body corporate, or to the corporate property; 5 and in a proper case can maintain a bill of interpleader. In England, a corporation aggregate may, as the petitioning creditor, sue out a commission of bankruptcy.7 The fact that a state is the sole proprietor of a corporation, does not prevent the corporation from suing.8 If the charter

of a corporation does not in terms give the power to refer to arbitration, the power to sue includes a power of reference. But if the charter directs that controversies shall be decided by a designated tribunal, the jurisdiction will be deemed exclusive, and an action at law cannot be maintained in a case where such tribunals have jurisdiction to decide.10 Under the common law a corporation cannot maintain a suit after its charter has expired. 11

1 See Bartlett v. Brickett, 14 Allen, 62.

2 Balt. etc. R. R. Co. v. Gallahue, 12 Gratt. 655; Bangor etc. R. R. Co. v. Smith, 47 Me. 34; Holmes v. Gilliland, 41 Barb. 568; Town of Shrewsbury v. Brown, 25 Vt. 197. But see Workingmen's etc. Bank v. Converse, 29 La. An. 369.

3 Mayor of Stafford v. Till, 4 Bing. 54; Gordon v. Mayor etc. of Balt. 5 Gill, 231; Portsmouth Livery Co. v. Watson, 10 Mass. 91.

4 Ancient City Club v. Miller, 7 Lans. 412.

5 Am. Mut. Ins. Co. v. Owen, 15 Gray, 491; Knickerbocker Life Ins. Co. v. Ecclesine, 42 How. Pr. 201; 11 Abb. Pr. (N. S.) 385; Trenton Ins. Co. v. Perrine, 3 Zab. 402; Metrop. Saloon Co. v. Hawkins, 4 Hurl. & N. 87; Goodspeed v. East Haddam Bank, 22 Conn. 529, 536.

6 Mills v. Townsend, 100 Mass. 115.

7 Ex parte Bank of Ireland, 1 Molloy, 261.

8 Hutchinson v. Taylor, 6 Heisk. 634.

9 Day v. Essex Co. Bank, 13 Vt. 97; Alex. Canal Co. v. Swann, 5 How. 83.

10 Bassett v. Carleton, 32 Me. 553; and see Thompson v. Planet etc. Building Soc. Law R. 15 Eq. 333; Wright v. Monarch etc. Building Soc. Law R. 5 Ch. Div. 726.

11 Building Assoc. v. Anderson, 7 Phil. (Pa.) 106.

§ 47. Name in which to sue.--In general a corporation can sue only by its corporate name; 1 in the name and style given to it by law.2 Where a contract is made with a corporation through an agent, the action must be brought in the name of the corporation. So, the trustees of a corporation should sue in the corporate name only.1 An action upon a note made payable to the treasurer of a corporation, or his successor in office, for the use of the corporation, is rightfully brought in the name of the corporation. After a change of name the corporation should sue by its new name. A legislative change of the name does not impair its right to sue on a note executed to it by the old name. A slight variation between the name in

C

which a corporation has brought suit and the name by
which the papers which it offers in evidence under the
plea of the general issue, to prove its incorporation, show
it to have been incorporated, ought to be disregarded.
1 Curtiss r. Murry, 26 Cal. 633; Norton v. Hodges, 100 Mass. 241; Brad-
ley v. Richardson, 2 Blatchf. 343.

2 Porter v. Nekervis, 4 Rand. 359; and see Dark v. Houston, 22 Ga. 506; Mauney v. Motz, 4 Ired. Eq. 195.

3 Garland v. Reynolds, 20 Me. 45; Commercial Bank v. French, 21 Pick. 486. See Myers v. Machado. 6 'Abb. Pr. 198.

4 Bundy r. Birdsall, 29 Barb. 31; and see Leonardsville Bank v. Willard, 25 N. Y. 574; Lowenthall v. Wiseman, 56 Barb. 490; Brittain v. Newland, 2 Dev. & B. Eq. 363.

5 Warren Academy v. Starrett, 15 Me. 443. See Haynes v. Coving. ton, 13 Smedes & M. 408; Timms v. Williams, 3 Ad. & E. N. S. 413.

6 Madison College v. Burke, 6 Ala. 494; Gould v. Sub-district No. 3 etc. 7 Minn. 203; Mayor etc. of Colchester v. Seaber, 3 Burr. 1866; and see Eaton etc. R. R. Co. v. Hunt, 20 Ind. 457; Racine County Bank v. Ayers, 12 Wis. 512.

7 Trustees etc. v. Schwagler, 37 Iowa, 577.

8 Thatcher v. West River Nat. Bank, 19 Mich. 196.

§ 48. In what courts suit may be brought.—A corporation in a foreign country may sue as such in the English courts. So, a corporation created by the laws of a foreign country may sue in one of the state courts in this country; 2 or it may sue in the federal courts. A corporation created by any state has power to sue in the federal courts as if it were a citizen of that state.4 And in the absence of any restraining statute, corporations created by the laws of any one state are competent, as artificial persons, to bring suit in the courts of other states.5 A suit by a corporation in its corporate name must be presumed to be a suit by a citizen of the state under whose laws the corporation exists; and this presumption cannot be countervailed by averment or evidence to the contrary, for the purpose of withdrawing the suit from the jurisdiction of a court of the United States. The fact that a state is a member of a corporation suing in a circuit court, does not prevent such court from entertaining jurisdiction of the action.8 The United States of America suing in their corporate capacity in a court of Great Brit

ain, thereby submit themselves to its jurisdiction, and can only obtain relief subject to the control of the court and pursuant to the rules of practice. A suit by a corporation created by the United States is a suit arising under the laws of the United States, 10

1 Henriques v. Dutch West India Co. 2 Ld. Raym. 1535; Nat. Bank of St. Charles v. De Bernales, 1 Car. & P. 569; Ryan & M. 190; and see United States v. Wagner, Law R. 3 Eq. 724.

2 British Am. Land Co. v. Ames, 6 Met. 391.

3 Soc. for Prop. of Gospel v. Wheeler, 2 Gall. 105.

4 Muller v. Dows, 94 U. S. 444; Railway Co. v. Whitton, 13 Wall. 270; Insurance Co. v. The "C. D. Jr." 1 Wood, 72; Nat. Park Bank v. Nichols, 4 Biss. 315; Marshall v. Balt. etc. R. R. Co. 16 How. 314; Williams v. Mo. etc. R. R. Co. 3 Dill. 267.

5 Fisk v. Chicago etc. R. R. Co. 4 Abb. Pr. N. S. 378; Savage Manuf. Co. v. Armstrong, 17 Me. 34; Eslavar. Ames Plow Co. 47 Ala. 384; Will lams r. Creswell, 51 Miss. 817. See Lathrop v. Union Pacific R. R. Co. 1 McAr. 234.

6 Lathrop v. Union Pacific R. R. Co. 1 McAr. 234; Hatch v Chicago etc. R. R. Co. 6 Blatchf. 105; Stevens v. Phoenix Ins. Co. 41 N. Y. 149; United States v. Insurance Companies, 22 Wall. 93.

7 Educational Soc. v. Varney. 54 N. II. 376; County of Alleghany v. Cleveland etc. R. R. Co. 51 Pa. St. 228; Ohio etc. R. R. Co. v. Wheeler, 1 Black, 236.

8 U. S. Bank v. Planter's Bank, 9 Wheat. 904.

9 Prioleau v. United States, Law R.2 Eq. 659.

10 Osborne v. Bank of U. S. 9 Wheat. 738; Union Pacific R. R. Co. . McComb, 58 How. Pr. 478.

§ 49. Disfranchisement of members.-A corporation possesses inherently the power to disfranchise members for either of the following causes: First. When an offense is committed by a member, which has no immediate relation to his corporate duty, but is of so infamous a nature as to render him unfit for the society of honest men. Second. When an offense is against the duty of a member as a corporator, in which case he may be expelled, on trial and conviction, by the corporation. Third. When the offense is of a mixed nature, compounded of the two first mentioned.1 Before an expulsion is made for an offense of the kind first mentioned, it is necessary that there should be a previous conviction by a jury, acAnd the exercise of the affect the private rights

cording to the law of the land. power to disfranchise does not

a member of a joint

of the corporator in the franchise; stock company, or of any corporation owning property, cannot be expelled, and thus deprived of his interest in the stock or general fund, unless such power has been expressly conferred by the charter.4 And where the right to expel for just cause exists, it cannot be exercised in an arbitrary and summary manner, but the party charged with the violation of duty should have an opportunity to be heard. Nor will an incorporated society be permitted to use its power to expel members for purposes of personal or private revenge, or make it the instrument of religious intolerance, or political proscription.6 ́ Where the constitution of an incorporated society makes "slander against the society" by a member, an offense for which he may be fined or expelled, such a provision will be construed as intending an offense analogous to slander as defined by the common law."

1 Leech v. Harris, 2 Brewst. 571; People v. Chicago Board of Trade, 45 Ill. 112; Smithe. Smith, 3 Desaus. Eq. 557; People v. N. Y. Com. Ass. 18 Abb. Pr. 271; People v. Medical Soc. 24 Barb. 570; People v. Fire Underwriters, 7 Hun, 248; State v. Chamber of Commerce, 20 Wis. 63.

2 Commonw. v. St. Patrick's Soc. 2 Binn. 448; Commonw. v. Guardlans of Poor, 6 Serg. & R. 469; and see Soc. for Visitation of Sick v. Meyer, 52 Pa. St. 125.

3 Evans v. Phila. Club, 50 Pa. St. 107.

4 Boggs' Case, 11 Code R. 99; Evans v. Phila. Club, 50 Pa. St. 107; and see State v. Tudor, 5 Day, 329; Davis v. Bank of England, 2 Bing.

393.

5 People v. St. Franciscus Ben. Soc. 24 How. Pr. 216; People v. Sailor's Sung Harbor, 5 Abb. Pr. N. S. 119; 54 Barb. 532; Southern Plank Road Co. v. Hixon, 5 Ind. 165; State v. Adains, 44 Mo. 570; White v. Brownell, 2 Daly, 329; Sibley v. Carteret Club, 40 N. J. L. 295.

6 State v. Georgia Med. Soc. 38 Ga. 608; People v. St. Franciscus Ben. Soc. 24 How. Pr. 216; and see People v. Farrington, 22 How. Pr. 294.

7 Roehler v. Mechanic's Aid Soc. 22 Mich. 86.

§ 50. Corporate seal.-Without an express grant, it is incident to every corporation to have a common seal; 1 and a corporation, like an individual, may adopt and use what seal it will.2 But in order to bind a corporation by specialty, the instrument must be sealed with the corporate seal; and the private seal of an agent, professing to

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