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.9 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; Lemington 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. Birmingham etc. Gaslight Co. 1 Ad. & E. 526.

6 Reg. c. 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 Tux. 648.

7 Todd r. Birdsall, 1 Cowen, 260; Levy Court v. Coroner, 2 Wall. 501; Clarissy v. Metrop. Fire Depart. 7 Abb. 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. Westeru 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. 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.*

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.

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. Lon don 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. 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; 5 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. Since the enactment of the English Judicature Acts, a foreign corporation, carry. ing 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.9

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. 433; 39 How. Pr. 466; and see Myers v. Dorr, 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 v. 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. Aktiebolaget 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

1 Curtiss v. Murry, 26 Cal. 633; Bradley v. Richardson, 2 Blatchf. 343; Hay v. McCoy, 6 id. 69; Lucas v. Johnson, 8 Barb. 244; Herod v. Rodman, 16 Ind. 241; Campbell v. Brunt, 25 Ill. 225.

2 Bradford v. Water Lot Co. 58 Ga. 280.

3 Mayor of Colchesterv. Seaber, 3 Burr. 1866; Gould v. Sub-District No. 3, 7 Miun. 203. Compare Morris v. St. Paul etc. Railw. Co. 19 id. 628; Eaton etc. R. R. Co. v. Hunt, 20 Ind. 457; Thrasher v. Pike etc. R. R. Co. 25 Ill. 393; Dean v. La Motte Lead Co. 50 Mo. 223.

4 Virginia etc. Steam Nav. Co. v. United States, Taney, 418; Lake Superior Build. Co. v. Thompson, 32 Mich. 293; School District v. Griner, 8 Kan. 224.

5 Hart v. Balt. etc. R. R. Co. 6 W. Va. 336; Dodge v. Minnesota etc. Roofing Co. 14 Minn. 49; and see La Fayette Ins. Co. v. Rogers, 30 Barb. 491; Williams v. Franklin Township etc. 26 Ind. 310.

6 Woolf v. City Steamboat Co. 6 Dowl. & L. 606; 7 Com. B. 103; and see Towne v. Loudon etc. Ship Co. 5 Com. B. N. S. 730; Ingate v. Austrian Lloyd's Co. 4 id. 704.

7 Gilbert v. Nantucket Bank, 5 Mass. 97; and see Stone v. Berk. shire Cong. Soc. 14 Vt. 86; Thatcher v. West River Nat. Bank, 19 Mich. 196.

§ 76. Liability upon contracts generally.— Corporations are in general bound by all contracts, whether express or implied, whether by bond, bill of exchange, or negotiable note, entered into in the usual and necessary course of their legitimate business, except when there is a statutory prohibition. And a contract entered into by an officer or agent of a corporation, without authority from the corporation to make it, may be rendered obligatory upon the corporation by a subsequent ratification.2 And a ratification may be inferred from corporate acts involving or implying a confirmation; 3 or from the acquiescence of the directors or other governing body of the corporation; 4 or a ratification may be presumed from lapse of time.5 If a corporation accepts the benefit of a contract negotiated for them, this will operate as a ratification of the entire contract. So, bringing suit by the corporation upon the unauthorized contract is a ratification thereof; and resistance by a corporation of an attempt to recover property which it acquired by the instrumentality of one acting as its agent, was deemed a sufficient recognition of the agency.8 But a corporation cannot ratify an act of an agent which it could not in the first instance have directly empowered him to perform.9

And those who ratify must be those who might have given the original authority.10 A board acting collectively can ratify a contract made in their behalf without original authority, if it is one within their general powers to make, but individual members of the board cannot ratify it. So, in order to sustain a contract against a corporation upon the ground of a corporate ratification, it must be shown that the acts, etc., relied upon as constituting a ratification, were performed with a full knowledge of all the material facts; 12 and the ratification must be complete.18 A corporation cannot disaffirm a contract made by an agent as to those parts which impose an obligation, and affirm it so far as it operates to advantage.14 So, if the adoption of any particular form or mode is necessary to confer the authority to contract in the first instance, there can be no valid ratification except in the same manner.15 Thus, if a sealed power, or a written vote of the corporation is necessary to give authority, the ratification must likewise be under seal, or by written vote. 16 If the contract be within the scope of the corporate franchise, and merely fails to conform to the regulations prescribed by the charter for the guidance of the corporate officers and the protection of the rights of members as to each other, the corporation may be held liable, under the general rules of law as to agents, estoppel, waiver, etc.17 Thus, a corporation which permits appearances to exist, and its officers and agents to so act, as to give one employed by them reason to believe that he is employed by the company, will be liable to such person as his employer to pay for the services rendered. 18 But in the absence of proof of acceptance thereof by the corporation, services rendered and expenses incurred therefor prior to its organization will be presumed to have been gratuitous, in view of the general good or private benefit expected to result from the object of the corporation.19 And a corporation is not barred froin resisting alleged liability either by a ratification or estop