Relief to the corporation in instances of this kind may be afforded in law as well as in equity. Regional Land Corporation v. McLaughlin, 334 Mass. 276, 135 N.E.2d 24; Baker v. Allen, 292 Mass. 169, 197 N.E. 521. In this connection, it should be noted that the sale involved was a Massachusetts contract and Massachusetts law applies, although with respect to this particular question the law of Missouri and Massachusetts is in agreement.
However, in all these cases, the legal action was brought (or, the court indicates, could have been brought) directly by the corporation, not derivatively by a shareholder, and the corporation's claim involved money damages. See Regional Land Corp. v. McLaughlin, 334 Mass. 276, 277, 281 (1956) (corporation may bring action at law against directors, seeking damages for breach of contract and breach of fiduciary duty); Baker v. Allen, 292 Mass. 169, 173 (1935) (action against directors for waste, seeking damages and restitution, might be brought by a corporation at law or in equity, but when brought by shareholders, in equity); Cosmopolitan Trust Co. v. Mitchell, 242 Mass. 95, 118-121 (1922) (bank commissioner may sue trust company directors in equity for losses due to negligence and misconduct; remedy at law is not exclusive); Hill v. Murphy, 212 Mass. 1, 3 (1912) (liability of directors, for loss to corporation from libel award, could be established through an action at law by the corporation or in equity by the shareholders); Von Arnim v. American Tube Works, 188 Mass. 515, 520-521 (1905) (shareholder may bring equitable action against directors for payments of excessive salaries, in circumstance where corporation could have brought action at law for restitution). None of
Even under the new rules "circumstances constituting fraud" are to be "stated with particularity." Mass. R. Civ. P. 9 (b). Cf. Moskow v. Boston Redevelopment Authority, 349 Mass. 553, 561-564 (1965), cert. denied, 382 U.S. 983 (1966); Regional Land Corp. v. McLaughlin, 334 Mass. 276, 281 (1956). We think the same principle applies to a "fraud upon the Court."
See G.L.c. 231, ยง 7, Second; Dealtry v. Selectmen of Watertown, 279 Mass. 22, 26-27; Houghton v. School Comm. of Somerville, 306 Mass. 542, 547. See also Wesalo v. Commissioner of Ins. 299 Mass. 495, 498; Regional Land Corp. v. McLaughlin, 334 Mass. 276, 281; Joyce v. Hickey, 337 Mass. 118, 123. Cf. DeVincent Ford Sales, Inc. v. First Mass. Corp. 336 Mass. 448, 450-454.
Jacobs v. Mann, 300 Mass. 258, 259. Regional Land Corp. v. McLaughlin, 334 Mass. 276, 281. We summarize the allegations of count 1. The defendant is judge of the Probate Court for Norfolk County, and on August 2, 1955, entered a final decree in the estate of Susan R. Faunce, No. 134,307.