Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/642

§ *519.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. X. Domat's Civil Law upon this head (2 B. Tit. 3, §§ 1 and 2). Now where acts are executed within their authority, as repeal- ing by-laws and making orders, in such cases, though attended with bad consequences, it will be very difficult to determine that these are breaches of trust. For it is by no means just in a judge, after bad consequences have arisen from such exe- cutions of their power, to say that they foresaw at the time what must necessarily happen ; and, therefore, were guilty of a breach of trust. "Next as to malfeasance and non-feasance. For instance, in non-attendance, if some persons are guilty of gross non- attendance, and leave the management entirely to others, they may be guilty by this means of the breaches of trust that are committed by others. By accepting of a trust of this sort a person is obliged to execute it with fidelity and reasonable diligence ; and it is no excuse to say that they had no benefit from it, but that it was merely honorary; and, therefore, they are within the case of a common trust. 1 " Another objection has been made, that the court can make no decree upon these persons which will be just ; for it is said every man's non-attendance or omission of his duty is his own default, and that each particular person must bear such a pro- portion as is suitable to the loss arising from his particular neglect, which makes it a case out of the power of this court. Now, if this doctrine should prevail, it is, indeed, laying the axe at the foot of the tree. But, if upon inquiry before the master, there should appear to be a supine negligence in all of them, by which a gross complicated loss happens, I will never determine that they are not all guilty. Nor will I ever deter- mine that a court of equity cannot lay hold of every breach of trust, let the person be guilty of it either in a private or public capacity. The tribunals of this kingdom are wisely formed, both of courts of law and equity, and so are the tribu- nals of most other nations ; and for this reason there can be no inquiry but there must be a remedy in all or some of them ; and therefore I will never determine that frauds of this kind are out of the reach of courts of law or equity, for an intoler- able grievance would follow from such a determination. In 1 Citing Coggs v. Bernard, 1 Salk. 26. 622