When corporation is sued in complaint for taxes, there must be averment of fact of incorporation, and where and under what law, so that court may determine where jurisdiction of its person lies. (People v. C. P. R. R. Co., 83 Cal. 393, 23 Pac. 303.)

The omission in a complaint and proceedings upon attachment against a corporation defendant of the word "company" from its corporate name does not affect the attachment lien, and the error is waived by an appearance and answer of the corporation in its true name without objection. (Hammond v. Starr, 79 Cal. 556, 21 Pac. 971.)

In action against corporation for services, allegation that plaintiff was employed by defendant, through its secretary, is sufficient allegation of employment by corporation, though it is better pleading to omit reference to the secretary. (Sullivan v. Grass Valley etc. Co., 77 Cal. 418, 19 Pac. 757. Note citation: Orlando v. Pragg, 34 Am. St. Rep. 29.)

An averment that a corporation made and entered into an agreement by its president is sufficient, as against a general demurrer. If president, as such, had no authority to enter into the contract, it is a matter of defense. (Malone v. Crescent City etc. Co., 77 Cal. 38, 18 Pac. 858. Note citation: Orlando v. Pragg, 34 Am. St. Rep. 29.)

A written acknowledgment of debt signed by the president of a corporation as such does not constitute a cause of action against a corporation. (Curtiss v. Murry, 26 Cal. 633.)

A corporation cannot avail itself of the defense of a material alteration of a note as to place of payment, when such alteration was made by the agent of the corporation before delivery of the note to the payee. (Pelton v. Lumber Co., 113 Cal. 21, 45 Pac. 12.)

Stockholder's Right to Sue Corporation.-A stockholder's right to sue the corporation of which he is a member is undoubted. (Barnstead v. Empire Mining Co., 5 Cal. 299.)

The corporation being a legal entity distinct from the individuals composing it, can sue the stockholders or be sued by them. (Barnstead v. Empire Mining Co., 5 Cal. 299.)

The corporation is the proper person to institute proceedings for the redress of corporate injuries. Where, however, the corporation or its manager or directors refuse or are unable to bring suit, a stockholder may, upon such showing, sue in his own name on behalf of the stockholders making the corporation a party defendant. (Cogswell v. Bull, 39 Cal. 320; Chetwood v. Nat. Bank, 113 Cal. 414, 45 Pac. 704; Baines v. Babcock, 95 Cal. 581, 29 Am. St. Rep. 158, 27 Pac. 674, 30 Pac. 776; Donohoe v. Mariposa etc. Co., 66 Cal. 317, 5 Pac. 495.)

Every stockholder or member of a corporation has right to sue in equity to prevent any departure from chartered purposes of a cor

poration by the action of the majority. (Ashton v. Dashaway Assn., 84 Cal. 61, 22 Pac. 660, 23 Pac. 1091.)

Demand that Corporation Sue.-Demand in good faith that action be brought by corporation must be made by stockholders before he can sue because of refusal of corporation to sue. (Morrison v. Stone, 103 Cal. 94, 37 Pac. 142; Bacon v. Irvine, 70 Cal. 221, 11 Pac. 646.)

But where demand is useless it is unnecessary. (Wickersham v. Crittenden, 93 Cal. 17, 28 Pac. 788, 106 Cal. 329, 39 Pac. 603; Ashton v. Dashaway Assn., 84 Cal. 61, 22 Pac. 660, 23 Pac. 1091; Smith v. Dorn, 96 Cal. 73, 30 Pac. 1024.)

When, upon proper demand, corporation wrongfully refuses to institute appropriate action, or when it appears such demand by stockholders would be unavailing and fruitless, action may be instituted and prosecuted by stockholders for direct and immediate benefit of corporation, and for the incidental benefit of the stockholders. (Neal v. Hill, 16 Cal. 145, 76 Am. Dec. 508; Cogswell v. Bull, 39 Cal. 320; Wickersham v. Crittenden, 93 Cal. 17, 28 Pac. 788; Waymire v. Ry. Co., 112 Cal. 646, 44 Pac. 1086.)

And the general rule that member or stockholder of corporation cannot have redress for any money or injury to corporation until he has made an earnest effort to secure proper action by board of trustees does not apply where it would be futile and useless to make a demand or such effort. (Ashton v. Dashaway Assn., 84 Cal. 61, 22 Pac. 660, 23 Pac. 1091. To same effect: Smith v. Dorn, 96 Cal. 79, 30 Pac. 1024. Note citations: 24 Am. St. Rep. 644; 57 Am. St. Rep. 71.)

But when a stockholder's demand upon a corporation to bring an action and its refusal to do so are simulated and not in good faith, the stockholder cannot maintain the action. (Morrison v. Stone, 103 Cal. 94, 37 Pac. 142.)

And a stockholder may intervene to assert the rights of the corporation against the plaintiff, and need not aver a request to the corporation officers to defend the action where the action is brought against the corporation by an assignee for the use and benefit of the president and two directors thereof, constituting a majority of the board in which the answer of the corporation admits all the causes of action alleged. (Shively v. Gold Min. Co., 129 Cal. 293, 61 Pac. 939.)

Character of Action.-Action by stockholder to enforce corporate rights must be regarded as a suit brought on behalf of the corporation, and the stockholder can enforce only such claims as the corporation could enforce; and the essential character of the cause remains the same, whether the suit be brought by the corporation or a stockholder. (Chetwood v. Cal. Nat. Bank, 113 Cal. 414, 45 Pac.

For Misappropriation of Funds.-Stockholder may maintain an action in behalf of corporation against the directors of the corporation for an accounting and recovery by the corporation of moneys belonging to it, which had been fraudulently misappropriated by the directors. (Beach v. Cooper, 72 Cal. 99, 13 Pac. 161. To same effect: Ashton v. Dashaway Assn., 84 Cal. 68, 22 Pac. 660, 23 Pac. 1091. Note citation: Rothwell v. Robinson, 12 Am. St. Rep. 610.)

And stockholders may sue directors to recover money or property fraudulently misappropriated, the corporation being joined as defendants. Facts in case held to constitute a fraud. (Woodroof v. Howes, 88 Cal. 184, 26 Pac. 111.)

In such suit, the corporation is a necessary party defendant, and at no stage of the proceedings can it be dismissed from the case without making a discontinuance. (Beach v. Cooper, 72 Cal. 99, 13 Pac. 161. To same effect: Wickersham v. Crittenden, 93 Cal. 33, 28 Pac. 788.)

But, in stockholders' suit against directors to recover fraudulently appropriated property, it is not necessary to join as defendants the directors who did not participate in the fraud. (Woodroof v. Howes, 88 Cal. 184, 26 Pac. 111.)

Such action to recover money paid to president of corporation is brought for the account of the corporation, and not for individual benefit of the stockholder; and whatever would have estopped the corporation from recovering a judgment against its president is equally a defense against the action by the stockholder. (Wickersham v. Crittenden, 110 Cal. 332, 42 Pac. 893.)

In a suit by a stockholder on behalf of the corporation against another stockholder, the complaining stockholder cannot be compelled to make restitution before bringing suit. (Wills v. Porter, 132 Cal. 516, 64 Pac. 896.)

Where a complaint in intervention by a stockholder makes averments that the suit was brought for the use and benefit of the president and two directors of the corporation defendant, and that the claims sued upon were concocted in pursuance of a conspiracy to defraud the company of its property, in the absence of finding disposing of the issues so tendered, judgment cannot be rendered for the plaintiff upon the findings made in his favor. (Shively v. Gold Min. Co., 129 Cal. 293, 61 Pac. 939.)

Particular Actions-Quieting Title.-The ownership and possession of property held in trust by the trustees of a corporation for its use is the ownership and possession of the corporation, and the corporation can sue in its corporate name to quiet title thereto, and to restrain a threatened interference with the possession. (First Baptist Church v. Branham, 90 Cal. 22, 27 Pac. 60.)

Rescission-Laches.-A proceeding by a stockholder to compel a corporation to rescind a resolution and contract made thereunder,

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instituted two years after the date of resolution without explanation of the delay, is barred by laches, for want of promptness and diligence in seeking a rescission required by section 1691 of the Civil Code. (Wills v. Porter, 132 Cal. 516, 64 Pac. 896.)

A creditor of a corporation need not have recovered judgment against it as a prerequisite to an action to reach property fraudu lently transferred to a new corporation when the latter is a mere continuance of the former and the new corporation is liable to the extent of the property so transferred. (Blanc v. Paymaster Min.

Co., 95 Cal. 524, 29 Am. St. Rep. 149, 30 Pac. 765. To same effect: Higgins v. California etc. Co., 122 Cal. 375, 55 Pac. 155.)

Goods Sold and Delivered.-A corporation formed by members of a partnership firm, which took its assets, and continued to pay its debts, is liable in an action for goods sold and delivered in the name of the firm by a former customer, who had no knowledge or notice of the incorporation until shortly before commencement of the action, when the goods and bills therefor were received by the corporation, and the amounts thereof entered upon the books by it, and payments made without objection. (Reid v. Kieling's Sons Co., 125 Cal. 117, 57 Pac. 773.)

The corporation under the circumstances is estopped from setting up a defense to such action, founded upon the change made from a copartnership to a corporation. (Reid v. Kieling's Sons Co., 125 Cal. 117, 57 Pac. 773.)

Implied Contracts.-Corporations may be bound by implied contracts within the scope of their authority; and municipal corporations are liable to actions of implied assumpsit. (Brown v. Board of Education etc., 103 Cal. 531, 37 Pac. 503.)

Where work, labor, and services were performed and materials furnished under an invalid contract, the firm performing the work and furnishing the materials or its assignee can recover on quantum meruit. (Sims v. Petaluma Gas etc. Co., 131 Cal. 656, 63 Pac. 1011.) The mere fact that a corporation knew that a physician was treating an employee, and was relying upon the corporation for payment, and did not object to the rendition of services fastens no liability upon the corporation. (Deane v. Gray Bros. etc. Co., 109 Cal. 433, 42 Pac. 443.)

Injunction. The corporation whose general, ordinary and only business is that of mining by the hydraulic process may be temporarily enjoined upon an ex parte application without notice to it from depositing or discharging its mining debris in certain streams or from selling its water to others to be used for a purpose producing a like result. (Eureka etc. Co. v. Superior Court, 66 Cal. 311, 5 Pac. 490.) Where general and ordinary business of a corporation is "buying and selling mining claims or in working them," an injunction which restrains the mining operations of the corporation in a particular

manner, alleged to be to the injury of others, does not suspend the general and ordinary business of the corporation within the meaning of section 531, Code of Civil Procedure. (Golden Gate etc. Co. v. Superior Court, 65 Cal. 187, 3 Pac. 628.)

A corporation can be punished for contempt for disobeying an injunction. (Golden Gate etc. Co. v. Superior Court, 65 Cal. 187, 3 Pac. 628; Eureka etc. Co. v. Superior Court, 66 Cal. 311, 5 Pac. 490.)

Torts-Libel.-A corporation has the power to compose and publish a libel, and when it has done so becomes liable to an action for damages by the person of whom the words were composed and published. (Maynard v. Fireman's Fund Ins. Co., 34 Cal. 48, 91 Am. Dec. 672.)

Preference of Creditors of Corporation.-A corporation may prefer one of its creditors; and a bank, which has received collateral securities for the debt of the corporation to it in the due course of business, and in good faith, without taint of fraud, is not bound, upon a creditor's bill to reach assets of the corporation, to sur render its securities for the benefit of the creditors. The other creditors may compel the bank first to exhaust its securities, and to share ratably with them only for the balance of the debt remaining unpaid thereafter. (Welch v. Sargent, 127 Cal. 72, 59 Pac. 319.)

Subd. 3. Corporate Seal-Adoption of.-A corporation may adopt as its seal the private seal of an individual. Such seal when adopted must be used as the seal of the corporation. (Richardson v. Scott River etc. Co., 22 Cal. 150.)

A seal may become the seal of a corporation by use, though not regularly adopted. (Blood v. La Serena Land etc. Co., 113 Cal. 221, 41 Pac. 1017, 45 Pac. 252.)

Alteration.-A corporation may alter its seal at pleasure. (Richardson v. Scott River etc. Co., 113 Cal. 221, 41 Pac. 1017, 45 Pac. 252.)

Prima Facie Evidence of Proper Authority and Due Execution.— The corporate seal on a document is prima facie evidence that it was affixed under proper authority, and that the document is regularly and duly authorized and executed. (Miners' etc. Co. v. Zellerbach, 37 Cal. 543, 99 Am. Dec. 300; Southern Cal. Assn. v. Bustamente, 52 Cal. 192; Bliss v. K. C. & I. Co., 65 Cal. 502, 4 Pac. 507; Schallard v. Eel River etc. Co., 70 Cal. 144, 11 Pac. 490; Crescent City etc. Co. v. Simpson, 77 Cal. 286, 19 Pac. 426; Vaca Valley etc. R. R. Co. v. Mansfield, 48 Cal. 560, 24 Pac. 145; Burnett v. Lyford, 93 Cal. 114, 28 Pac. 855; Underhill v. Santa Barbara etc. Co., 93 Cal. 300, 28 Pac. 1049; Colton etc. Co. v. Schwartz, 99 Cal. 284, 33 Pac. 878; Purser v. Eagle Lake etc. Co., 111 Cal. 142, 43 Pac. 523; Andres v. Fry, 113 Cal. 124, 45 Pac. 534; Blood v. Water Co., 113 Cal. 221, 41 Pac. 1017, 45 Pac. 252; Mills v. Boyle Min. Co., 132 Cal. 95, 64