Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/306

 § 315.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VU. vires, which has not been fully performed, is not estopped from pleading its own want of power ; but that doctrine does not apply to a case where a party comes into a court of equity, and, while retaining all that he has received upon such a contract, asks to be permitted to retake what he has parted with under it. I take it there is nothing in the law, as there is certainly nothing in the principles of equity, to estop the court from saying that the obligation to return the property transferred under these contracts is mutual, and shall not be enforced against one of the parties without being, at the same time, enforced against the other. As the parties and the subject- matter are now before the court, it is the duty of the court, so far as is possible, to place them in statu quo" 1 § 315. In a treatise on the law of stock corporations very little of the law relating to municipal corporations corpora/ will be included ; the latter being very different legal institutions and subserving very different purposes. " A municipal corporation, 1 ' says Justice Hunt, " in the exer- cise of all its duties, including those most strictly local or internal, is but a department of the state. The legislature may give it all the powers such a being is capable of receiving, making it a miniature state within its locality. Again, it may strip it of every power, leaving it a corporation in name only ; and it may create and recreate these changes as often as it chooses, or it may exercise directly within the locality any or all of the powers usually committed to a municipality." 2 The case from which this citation is taken held a municipal corpo- ration responsible for negligence in the management of its streets ; and the decision is undoubted law. Nevertheless, a municipal corporation is not liable for misfeasance or non- 1 See, also, Madison Ave. Baptist Church o. Oliver Street Bap. Church, 73 N. Y. 82. When an illegal con- tract of consolidation has been exe- cuted and the defendant has derived all the benefits from the contract, its illegality is no defence to a bill in equity for an accounting and re- turn to the plaintiff of the consider- ation of the contract. Railroad v. 286 Railroad, 66 N". II. 100. When a per- son enters into an illegal "trust" be cannot come into equity seeking an accounting for the jirofits arising un- der such trust (i. e., not suing in dis- affirmance and to get back his prop- erty). Uncles v. Colgate, 148 N. Y. 529. 2 Barnes v. District of Columbia, 91 U. S. 540, 544.