(flnrnBll ICam ^rlynnl Slibrary KF 1384 war""'"""'"-"'"'' V.I A treatise on the law of corporations ot 3 1924 019 347 768 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019347768 THE LAW OF CORPORATIONS. A TREATISE LAW OF CORPORATIONS OTHER THAN MUNICIPAL. CITATIONS FROM THE ENGLISH AND UNITED STATES COURTS, AND FROM THE COURTS OF EVERY STATE AND TERRITORY IN THE UNION. THOMAS W.^WATERMAN, COUNSELLOR AT LAW; AUTHOR OF TREATISES OK THE "SPECIFIC PERFORMANCE OF CONTRACTS," THE "LAW OF TRESPASS," "SET-OFF, RECOUPMENT, AND COUNTER-CLAIM," ETC. IN TWO VOLUMES. VOL. L NEW YORK: BAKER, VOORHIS & CO., PUBLISHERS, 66 NASSAU STREET. 1888. aG=^ Cl. '/fe^ O'^ COPYRIGHT, 1888, BY THOMAS W. WATERMAN. PREFACE. The following pages, the result of six years of continu- ous research in the field of corporate law, during which each one of the several thousand cases cited was carefully examined by the author, embrace the subject in the various aspects which present themselves to the inquirer. Begin- ning with the origin of corporations, it traces its development from feeble beginnings to the present time, when it has acquired a vigorous and sturdy growth entering into the most important relations of business. In this country especially, it has attained a magnitude, and an interest, which cause it to rank among the leading topics of the law. The distinction between a corporation and partnership, and also between a corporation and the several unincorporated associations, is clearly drawn, and it is shown why the former is superior. The several steps from the creation to the final dissolution of a corporation are then given in de- tail, and every proceeding which is likely to occur in prac- tice is fully explained. For an intelligent understanding of many of the decisions a history of the causes which led to them, and the successive steps taken with the result became necessary, and thus while much was gained in explicitness the work was somewhat enlarged. This, however, will be found an advantage v\rhich would have been lost with more brevity. VI PREFACE. The writer is indebted to the able and unremitting assist- ance of Radcliffe Lockwood, Esq., during three years of labor in the examination of authorities, and much valuable and discriminating research in the preparation of the work is owing to his industry. All of the later decisions, and most of the earlier ones, on corporate law are cited, and none were adopted without a careful examination by the author. Most of the decisions were found in the State library at Binghamton, but access was also had to the State library in Albany, which supplied needed deficiencies. This required a large expenditure of time and labor, and an accumulation of materials, which are herewith presented. Care was taken to avoid errors of citation, which notwithstanding may have sometimes oc- curred, but it is hoped and believed that this will seldom, if ever, be encountered. T. W. W. Binghamton, N. Y., February, 1888. CONTENTS, 3. 4- S- 6. 7- 8. 9- ro. 13- CHAPTER I. MEANING, HISTORY, AND [OBJECT. Different ideas respecting, .... Definition, ...... Has a separate and distinct existence, . Special attributes, ...... How constituted, ..... Difference between a corporation and a partnership, Unincorporated associations in general. Clubs Board of brokers, Joint stock companies, .... History of corporations, .... Object and use of corporations, Multiplication of corporate bodies, PAOC I 3 6 12 14 I? 26 32 34 35 43 S3 56 CHAPTER n. KINDS OF CORPORATIONS. § 14. General classification, . . . . • • • -57 15. How primarily divided, S9 16. Public corporations, 64 17. Private corporations, 66 18. Ecclesiastical corporations, 7* 19. Incorporated religious societies, .... 74 20. Eleemosynary corporations, 85 21. Quasi corporations, 90 Tin CONTENTS. CHAPTER III. MODE AND EVIDENCE OF CREATION. i 22. «3. «4. "5- 26. 27. 28. 29. 30. 31- 32. 33- 34- 35- 136. 37- 38. 39- 40. 41. 42. 43- § 44- 45- 46. 47. 48. 49. 5°- S^- 52- 53. 54. SS- 56. 57- 58. Power to create under the Roman law. At common law, .... Power to create in the United States, . Constitutional provisions. General legislative power, . Delegation of power, .... Language of statute, .... Statutory construction, .... Materiality of corporate name, Wrongful adoption of name, Where there are two corporations of the same Essential preliminary steps, Exact conformity with provisions of act not required. Charter must be accepted, Mode of acceptance, .... Proof of acceptance, .... Evidence in general of corporate existence. Corporations by prescription Corporations by necessary implication, Admissions and declarations, . Legislative recognition of corporation. Date of incorporation, .... CHAPTER IV. MEMBERS AND OFFICERS— HOW CONSTITUTED, General rule as to admission of members, Membership in joint stock companies, Subscribing for stock, Effect of subscription, Proof of membership, Time and mode of electing members and officers, Who entitled to vote, Voting by proxy, ...... Special qualifications of voters, Number of votes allowed to each share, . Corporation not allowed to vote on its own stock, Keeping polls open, Proof of result of election, ..... Validity of election, Failure to hold election PAGE 96 97 98 lOI i°3 107 109 no 114 120 122 123 127 129 133 13s 139 I4S 148 ISO 154 156 160 162 164 165 168 169 174 177 182 183 185 186 186 187 194 CONTENTS. IX CHAPTER V. CORPORATE MEETINGS. §59. Importance of, 60. Who to call, 61. Different kinds of meetings, 62. Rule as to notice of meeting, .... 63. How notice should be given, 64. Requisites of notice, ..... 65. Rule as to meeting in the State granting charter, 66. Organization of meeting, .... 67. Expression of corporate will, 68. Rule with reference to a quorum, 6g. When all are required to be present, . 70. Separate private action of members invalid, 71. Limitation of power of majority, . 197 198 201 202 205 207 2TO 213 214 218 223 224 225 CHAPTER VI. BY-LAWS. § 72. Definition and importance, . 73. By whom made, .... 74. Must not be coiltrary to law, 75. Must be reasonable, 76. By-laws which are proper, . 77. Validity of regulations, 78. Must not be in restraint of trade, 79. Cannot impose a forfeiture, 80. Creating lien on shares, 81. Lien created by usage or agreement, 82. Lien under the National Currency Act, 83. Restraining transfer of stock, . 84. How by-laws may be proved, 85. How far binding, .... 86. How construed, 87. How validity of by-law determined, . 232 233 236 239 241 245 248 252 254 264 267 269 272 273 27s 277 CHAPTER Vn. CORPORATE SEAL. § 88, History, 89. At common law, 90. Modern English rule, 279 280 283 CONTENTS. § 91. Agent need not be appointed by deed, . 92. Rule as to corporate seal in the United States. 93. Ancient method of sealing, 94. Sealing at common law and by statute, 95. When corporate seal indispensable, 96. Proof of corporate seal, .... 97. Form of executing instruments, 98. Recognition of agent's authority, 99. Legal effect of affixing seal, . xoo. Answer must be sealed, .... PAGE 287 S90 294 29s 303 304 309 314 3'8 319 CHAPTER VIII. CORPORATE AGENTS. § loi. Necessity of, ...... . 102. Method and power of appointment, 103. Proof of appointment, ..... 104. When an agency will be presumed, 105. Security for good behavior, .... 106. Liability of sureties on official bond, 107. Release of surety, ...... 108. Officers de /ado, ...... 109. Ratification of unauthorized acts, no. Appointments of sub-agents, .... IT I. General rule as to liability on written instruments, 112. Liability of principal on sealed instrument, 113. Liability of principal on simple contracts, . 114. Liability of agent on written instrument, . 115. Liability of principal for fraud of agent, 116. Liability of agent for fraud committed by him, 1 17. Liability of principal for misrepresentations of agent. 118. Liability of agent for false representations, 1 19. Liability of the corporation for the torts of its agents, 120. Liability of corporation for negligence of its agents, 121. Liability of agents for negligence, 122. Rule as to fiduciary relation, .... 123. Power of agent to bind corporation in general, 124. General power of directors, .... 125. Limitation of power of directors, 1 26. Power and disability of president, . 127. Power and disability of cashier or treasurer, 128. Power and disability of teller of bank, 129. Power and disability of secretary. 321 322 323 326 336 340 343 345 347 361 367 370 375 384 389 393 396 399 400 404 414 417 428 431 436 443 450 456 459 CONTENTS. XI 130. Power and disability of superintendent, . 13 T. Pay for services, ..... 132. Service of process, .... 133. Who may bring action, .... 134. Statute of limitations, .... 135. Notice to agent, ..... 136. .\cts and declarations of officers and agents, 137. Agency not restricted to place, . 459 460 465 466 467 468 473 481 CHAPTER IX. RIGHTS, POWERS, AND DISABILITIES OF CORPORATIONS IN CxENERAL. § 138. Construction of charter, ....... 482 139. Inviolability of charter, ....... 498 140. Conditional grant, . . . . . . . .515 i4r. Where the grant is without consideration, . . . 517 142. Police regulations, . . . . . . . .518 143. Release from obligations, ...... 529 144. Right to enact changes in methods of legal procedure, . 530 145. Amendment of charter by consent of corporation, . . 531 146. Reservation by State of power over corporations, . . 533 147. Restricted to authority conferred by charter, . . . 539 148. When corporate power presumed, ..... 541 149. Power with reference to place of creation, . . . 542 150. Rights and powers of foreign corporations, . . . . 544 r5i. Amalgamation, ........ 555 152. Meaning of consolidation, ....... 557 153. Power to consolidate, ....... 562 154. Effect of consolidation in general 564 155. Effect of consolidation in respect to creditors, . . 570 156. Consolidation of corporations created by different States, . 573 CHAPTER X. POWER TO CONTRACT, AND HEREIN OF ULTRA VIRES. §157. Capacity to contract in general, . . . , 158. Meaning and nature of franchises, .... 159. Alienation of corporate franchises, • . . , 160. Meaning of the term «///■« wV^j-, .... 161. Rule as to contracts which are ultra vires, . 162. Contract of directors or officers for their own benefit, 163. In what manner a corporation may contract. S78 586 587 595 597 6ro 621 Xll CONTENTS. CHAPTER XL POWER TO ACQUIRE, HOLD, AND TRANSFER PROPERTY. PAGE § 164. At common law, .... 165. Limitation of right by statute, 166. Statutes of mortmain, 167. Capacity to take by will, 168. Devise or bequest for a charitable use, 169. Grants to religious corporations, J 70. Title to real estate, .... 171. Sale of property by religious corporations, 172. Power to take mortgage security, 1 73. Mortgaging corporate property, 174. Right of eminent domain, . . 627 . 630 . (>3i . ■ 63s . 641 . 650 . 6.S3 . 656 . 657 . 658 . 664 VOLUME II CHAPTER XH. SUBSCRIPTIONS FOR, ASSESSMENTS UPON, AND TRANS- FER OF STOCK. § 175. Meaning and nature of subscription, . 176. Form of subscription, .... 177. Subscription previous to organization, 1 78. Consideration for subscription, 179. Nature of conditional subscription, . 180. Construction of conditional subscription, 181. Performance of condition, . 182. Waiver of condition, 183. Subscription on special terms of payment, 184. Validity of subscription, . 185. Presumption as to validity of subscription, 186. Subscription by agent, . 187. Lapse of time affecting subscription, . 188. Payment on subscription, 189. Proof of subscription, 190. Change releasing subscriber, . 191. When subscriber not released by change, VOL. II. — PAGE II IS 17 20 23 26 30 34 37 40 41 49 52 60 CONTENTS. Xlll § 192. General rule as to subscription obtained by fraud, 193. Where the subscriber is a party to the fraud, . 194. Proof of fraud required in order to release subscriber, 195. Rights of creditors in cases of fraudulent subscriptions, 196. Rights of stockholders in undisposed-of shares, . 197. Promise of payment implied in subscription, . 198. Right of subscriber to certificate, 199. Assessments and calls, 200. Notice of calls, ....... 201. Insufficient objections to payment of subscription, 202. Time and mode of payment, .... 203. Collection of subscriptions, . . . - ' 204. Sale of shares for non-payment of subscription, . 205. Right to forfeit shares, 206. Nature and effect of the forfeiture of shares, 207. Collusion in the forfeiture of shares, 208. Rights of creditors in relation to unpaid subscriptions, 209. Meaning and nature of dividend, .... '2 10. Right and power of corporation in relation to dividends, 211. Profits to be distributed equally among all entitled, 212. Dividends in what payable, ..... 213. Right to dividends of preference shareholders, 214. Stockholders not entitled to share of profits until dividend has been declared, ...... 215. Right of vendee of stock to dividends, 216. When profits deemed capital and when income, . 217. Statute of limitations, ...... I 218. Application of dividend to indebtedness of stockholder, 219. Right to transfer shares, . ..... 220. Refusal of corporation to permit a transfer of shares, . 221. Fraudulent transfer of shares, 222. What passes by transfer of shares, .... 223. Transfer of shares upon the books, . 224. Sale of shares by delivery of certificates, 225. Effect of transfer on the rights of the parties to it, . 226. Liability of transferee of shares, ; .... VOL. 11. — PAGE 66 71 74 76 78 81 84 90 96 99 101 106 109 III 114 118 120 142 148 154 158 I.S9 163 166 169 174 177 178 185 190 199 203 211 216 219 § 227. 228. CHAPTER XIII. LIEN ON CORPORATE PROPERTY. Lien of corporation on shares not implied, , Lien created by agreement 222 225 XIV CONTENTS. VOL. II. — PAGE § 229. Statutory construction with reference to lien, . . . 226 230. Lien of corporation under general provisions of law, . 230 231. Assignee of shares, how aflfected by lien of corporation, . 232 232. Waiver by corporation of its lien on stock, . . . 238 233. Lien of bank on paper transmitted to it, .... 240 234. Lien of bank on deposit, ...... 242 235. Lien of common carrier on freight, . . . . , . 244 236. Power to mortgage corporate property, .... 246 237. Construction and effect of mortgage of corporate prop- erty 248 238. Character of rolling stock, . . . . . . 251 239. Machinery, ......... 254 240. Mortgage of after-acquired property, .... 255 241. Fraud in sale under mortgage, ...... 265 242. Appointment of receiver, . . . . . . 267 243. Mechanic's lien, ........ 268 CHAPTER XIV. TAXATION OF CORPORATE PROPERTY. §244. Meaning and nature of taxes, . . . . . .270 245. Power to impose taxes, . . . . . . . 274 246. Right to tax foreign corporations, 280 247. Place of taxation, ........ 283 248. Meaning of the term person or inhabitant in a statute, . 292 249. State taxation with reference to the powers granted to the general government, . . . . . . . 293 250. Taxation affecting commerce between the States, . . 302 251. Taxation of corporate franchise, . . . . . 312 252. Assessment upon national bank shares, .... 31^ 253. Assessment upon property in general, .... 319 254. Assessment in the case of banking corporations, . . . 322 255. Assessment of railroad property, ..... 324 256. Taxation must be equal, ....... 329 257. Double taxation, ........ 334 258. Right of State to exempt from taxes, .... ^^g 259. Construction of statutes exempting from taxation, . . 347 260. In case of consolidation, 354 261. In case of sale of corporate property, .... 356 262. Increase of taxation, ........ 358 263. When exemption may be revoked, ..... 359 CONTENTS. XV CHAPTER XV. CORPORATE LIABILITY ON CONTRACTS. § 264. In general, 265. Presumption in favor of validity of contract, . 266. Where the corporation has been benefited by the ( tract 267. Official services, ....... 268. Corporate liability on engagement of agent, 269. Ratification by corporation of acts of its agent, 270. Where the contract is entered into before organization, 271. Assuming debt of third person, .... 272. Corporate bonds, ....... 273. Nature and validity of coupons, .... 274. In case- of fraud, . . . '. 275. Personal liability of shareholders of private corporations, 276. Individual liability of members of public corporations, 277. Form and nature of proceedings against stockholders, 278. Proof required to charge stockholders personally, 279. Limitation of time of action against stockholders, . VOL. II. — PAGE 361 363 373 376 384 389 391 393 399 405 411 418 420 423 426 CHAPTER XVI. CORPORATE LIABILITY FOR WRONGS. §280. General liability of corporations for torts, . 281. Libel 282. Malicious prosecution, ...... 283. Misrepresentations of agent, 284. Nuisance, 285. Injury from improper interference with highway or street, 286. Injury at railroad crossings, ..... 287. Interference with natural flow of water, . 288. Causing death of person, ...... 289. Forcible removal of passenger from public conveyance, 290. Loss of freight, 291. Injury of passenger by railroad accident, 292. Duty of corporation to keep its works in a safe condition, 293. Injury of employ^ from defective machinery, . 294. Injury by co-employ^, 295. Injury in case of contributory negligence, 428 432 438 442 444 451 455 458 464 467 475 484 491 495 498 500 XVI CONTENTS. VOL. II. — PAGE § 296. Damage done by contractor, 504 297. Injury by receiver, ....... 506 298. Liability of f«aj2 corporations forneglect of duty, . , 508 299. Injury of personal property, . . . . . . 513 300. Wilful acts of agent, 515 301. Damages for injury to property, '522 302. Damages in case of personal injury, ..... '524 303. Mental suffering as an element of damages, . . . 527 304. Damages where injuries cause death, . .... 532 305. Exemplary damages, .... 536 CHAPTER XVII. AMOTION AND DISFRANCHISEMENT. §306. Nature and power of amotion, 544 307. Grounds for the exercise of the power of amotion, . . 545 308. Proceedings in removal from office, 546 309. Meaning and nature of disfranchisement, . . . 550 310. Power of corporation to expel its members, . . • 55^ 311. Ground for expulsion of members, ..... 554 312. Proceedings upon removal of members, .... 557 313. Removal of members of unincorporated societies, . . 561 314. Waiver of objection to proceedings in amotion or disfran- chisement, 563 CHAPTER XVIII. RIGHT OF CORPORATION TO SUE, AND LIABILITY TO BE SUED. ■ 315. General power of corporations to ma;ihtain stiitB, 316. Suits for salvage, 317. Right of corporation to sue in another State or country, 318. Bill in equity "by corporation for the protection of its rights, 319. Suit by stockholder for protection of corporate interests, 320. Suit by and against a stockholder ilidtviduallly, 321. Suit'by mitiority of shitreholders, .... 322. Suit by stockholders against directors and officers, . ^23. Bill in equity against corporation by third persons, 324. Liability df corporations to actions on contract, 325. Liability of corpotations t& actions for toJts, 326. Suits against foreign corporations, .... 327. Suits in the United States courts .... ^64 568 568 574 577 581 584 585 589 593 595 596 600 CONTENTS. XVll CHAPTER XIX. PROCEEDINGS IN SUITS BY AND AGAINST CORPO- RATIONS. I 328. Service in general of process on corporations, 329. Service of process on foreign corporations, 330. Appearance by corporation, 331. Parties plaintiffs, .... 332. Parties defendants, .... 333. Declaration or complaint, 334. Answer of corporation, 335. Misnomer of corporation, 336. Denial of existence of corporation, 337. Proof required of corporate existence, 338. Admission of incorporation, 339. Admissions in general, .... 340. Corporate records, .... 341. Presumptive evidence, . VOL. ri.— PAGE • 605 607 . 616 616 , 625 626 ■ 631 633 63s 638 641 643 64s 648 CHAPTER XX. SALE OF CORPORATE PROPERTY ON EXECUTION. § 342. 343. 344. 345- 346. 347- 348. 349- Sale of corporate franchise, .... Stock in a corporation, ..... Property exempt from seizure and sale, General rule as to liability of corporate property, Rolling stock of railroad company, Process of garnishment, .... 65 1 653 6S5 658 661 662 Officer's return, ......... 664 Method and consequences of sale, ..... 665 CHAPTER XXI. VISITORIAL POWER. §350. Meaning and object of visitation, 351. Who to be visitor, 352. Appointment of visitor, .... 353. Power of visitor, ..... 354- Right of appeal, ** 667 668 671 671 674 XVIU CONTENTS. CHAPTER XXII. APPOINTMENT OF RECEIVER. 355. Application for receiver, 356. Jurisdiction of court, .... 357. Notice to the defendant, . 358. Power of court exercised with caution, . 359. Grounds for appointment of receiver, 360. Who to be appointed receiver, 361. Revocation of appointment, 362. Effect of appointment, .... 363. Bond of receiver, .... 364. Position of receiver in relation to property. 365. Possession of receiver protected by court, 366. Duty of receiver in relation to debts, 367. Power of receiver to compromise claims, 368. Certificate of indebtedness, 369. Sale of corporate property by receiver, 370. Suits by receiver, .... 371. Set-off against receiver, 372. Liability of receiver for contempt, . 373. Suits against receiver, 374. Counsel fees, .... 375. Care of funds, ..... 376. Disbursements by receiver, 377. Investigation of receiver's accounts, . 378. Compensation of receiver, VOL. II. — PAGE 676 678 680 681 684 686 688 690 692 692 696 698 701 703 703 704 708 709 709 711 712 713 717 717 CHAPTER XXIII. PROCEEDINGS BY QUO WARRANTO. 379. Definition and object, ..... 380. Information in the nature of qiw warranto, 381. When the proceeding may be maintained, . 382. Leave to file information, in discretion of court, 383. When an information will not lie, 384. By whom prosecuted, ...... 385. Who to be made parties defendants, . 386. Essential averments in information, 387. Appearance of defendant, 388. Defense, 389. Judgment, 719 722 726 735 739 746 752 754 758 759 765 CONTENTS. XIX CHAPTER XXIV. WRIT OF MANDAMUS. VOL. II. — PAGE § 390. Functions, 391. Origin, 392. Only proper when there is no other remedy, 393. The act required must be capable of performance, be gatory, and involve substantial interests, . 394. In case of contract, 395. Voluntary associations, .... 396. How far action of courts controlled, . 397. Discretionary powers not interfered with by mandamus. 398. Mandamus not a writ of right, .... 399. Delay in making application, .... 400. When in general a mandamus will be granted, . 401. Not in general proper for refusal to transfer shares, 402. To compel the surrender of the corporate books, 403. Compelling the inspection of corporate books, • 404. Restoration of member unlawfully removed, 405. Compelling admission or restoration to office, 406. Reinstating teacher, ..... 407. Enforcing right of admission to school, . 408. To compel the raising of money by taxation, 409. Authority of court to issue, 410. Who may apply for a mandamus, 411. The petition, ...... 412. Rule to show cause, 413. Nature and requisites of the writ, . 414. The return, ...... 415. Traverse of return, .... 416. Costs, ....... obli- 768 770 771 778 783 784 785 788 790 791 792 803 805 80s 808 8ti 813 813 81S 817 819 821 823 824 828 832 834 CHAPTER XXV. DISSOLUTION OF CORPORATIONS. §417. Exercise of the right, 835 418. Surrender of corporate franchises in general, . . . 837 419. How a corporation may surrender its franchises, . . 841 420. Surrender by majority, 845 421. The surrender of the charter must be accepted by the State, 85s XX CONTENTS. VOL. II.— PAGE §422. Dissolutionby death of members, or loss of integral part, . 857 423. What will not constitute corporate dissolution, . . . 863 424. Legislative control over public corporations, . . . 873 425. Inviolability of charter of private corporation, . . .877 426. Reservation by legislature of power to repeal or change charter, 881 42 7. Grounds of forfeiture of corporate franchises, . . . 890 428. When a judgment of forfeiture will not be rendered, . 899 429. Waiver of forfeiture, ........ 903 430. The fact of forfeiture cannot be tried collaterally, . . 908 431. Judicial determination of forfeiture, . . . . .912 432. Equity jurisdiction, 916 433. Proceedings to enforce forfeiture, . . . . .922 434. Effect of dissolution, ....... 926 435. Rights of creditors and corporators, ..... 933 436. Renewal of corporate powers, 946 TABLE OF CASES. (The figures refer to i he pages.) Abbey v. Chase, 369. Aberdeen R.R. Co. v. Blackie, 375, 420, 613. Aberdeen Female Academy zi. Aber- deen, vol. ii. 872. Abbott V. Am. Hard Rubber Co., 227, 419, 438, 611, 625, 851. V. Aspinwall, 150. V. Baltimore, etc., Co., 510, 598, 600; vol. ii. 385. V. Goodwin, 660. V. Merriam, 415. V. Omaha Smelting Co., 100. Abby V. Billups, 625. Ackerman v. Desha County, vol. ii. 778. V. Halsey, vol. ii. 587, 706. Ackerson v. Erie R.R. Co., vol. ii. 539. Acklin V. Paschal, vol. ii. 939. Acres v. Moyne, vol. ii. 948. Ada Street M. E. Church v. Garnsey, 81 . Adams V. Creditors, 306. V. Hannibal and St. Joseph R.R. Co., 479, 480. V. Hill, 439. V. Nashville, vol. ii. 292, 299. V. Wiscasset Bank, 90; vol. ii. 49- Adams Mining Co. v. Senter, 418. Adamson's Case, 620. Adden v. White Mts., etc., R.R. Co., 674. Adderly v. Storm, vol. ii. 141, 220, 417. Addison z*. Lewis, vol. ii. 667, 715. Adkins v. Thornton, vol. ii. 423. Adler v. Milwaukee Patent Brick Manf. ^ Co., vol. ii. 122. Adley V. Reeves, 252. Adriance v. Roome, 273. ^tna Ins. Co. v. Peck, vol. ii. 636. ^tna Nat. Bank v. Fourth Nat. Bank, vol. ii. 242, African M. E. Church v. Conover, 653. Agate V. Sands, vol. ii. 131. Agnew V. Bank of Gettysburg, vol. ii. 633- Agricultural Bank v. Burr, 162, 168, 216. V. Commercial B'k, 416. V. Wilson, 168; vol. ii. 128. Agricultural, etc., R.R. Co. v. Win- chester, vol, ii. 53, 82. Aiken v. Wasson, vol. ii. 415. Ala. R.R. Co., ex parte, vol. ii. 787. Ala., etc.,- R.R. Co. v. Kidd, 68 ; vol. ii. 387. Alabama, etc., R.R. Co. v. Rowley, vol. ii. 96. Albany Exchange Bank v. Wells, vol. ii. 319. Alb. Nat. Bank v. Maher, vol. ii. 330, 333. Albany Northern R.R. Co. v. Brown- eli, 539- Albany, etc., R.R. Co. v. Dayton, 674. V. Town of Ca- naan, vol. ii. 325- Albert v. Savings Bank, 598 ; vol. ii. 197. 385- V. Savings Bank of Bait., 408. Alcorn v. Homer, 130. Aldermen, etc., v. Finley, vol. ii. 6^6, 638. ^ Aldrich v. Cheshire R.R. Co., vol. ii. 524. V. Drury, 679. V. Press Printing Co., vol. ii. 434- Alexander v. Cauldwell, 348, 600. V. Commercial, etc.. Bank, vol. ii. 137. V. Relfe, 401 ; vol. ii. 429, 693- Alexandria Canal Co. v. Swann, 466 ; vol. ii. 564. Alford V. Miller, 422 ; vol. ii. 122, 611. Alleghany City v. McClurkan, 350, 604 ; vol. ii. 363. XXll TABLE OF CASES. The figures re/er to the pages. Allegheny County Workhouse v. Moore, 475. Allen V. Buchanan, vol. ii. 877. 913. V. Curtis, 467 ; vol. ii. 617. V. Freednian's Savings, etc., Co., 607 ; vol. ii. 372. V, Frument Mining, etc., Co., vol. ii. 268. V. London & Southwestern R. R. Co., vol. ii. 439. V. McKean, 70, 86, 138 ; vol. ii. 668, 669, 673. V. Merchant's Bank of N. Y., 405, 416. V. Montgomery R.R. Co., 658 ; vol. ii. 116, 944. V. N. J. Southern R.R. Co., vol. ii. 626, 863. V. St. Louis Ins. Co., 409. V. Sullivan R.R. Co., 300. Allerton v. Lang, vol. ii. 203. AUibone v. Hagar, vol. ii. 175. Allin's Case, vol. ii. 184. Allman v. Havana, etc., R.R. Co., vol. ii. 13, 93. All Saints' Church v. Lovett, 149, 150, 187, 347. Almy V. California, vol. 11. 305. Alton & Chicago R.R. Co. v. Dalby, 49- 91 < ISO- Am. Academy of Arts and Sciences v. Harvard, 642, 650. Am. Asylum v. Phoenix Bank, 88; vol. ii. 187, 769, 771. Am. Bank v. Baker, 230. Am. Bible Soc. v. Marshall, 640. V. Noble, 638. Am. Building Assoc, v. Sutton, vol. ii. 185. Am. Cent. R.R. Co. v. Miles, 463 ; vol. ii. 367. Am. Coal Co. v. County Commission- ers, vol. ii. 281, 321. Am. Colonization Soc. v. Gatrill, 646 ; vol. ii. 567. Am. Dock, etc., Co. v. Trustees, vol. ii. 655. Am. Exp. Co. V. Conant, vol. ii. 608. V. Johnson, vol. ii. 610. V. Patterson, 403. Am. Ins. Co. v. Oakley, 335, 449, 624. V. Wellroan, vol. ii. 614. Am. Mu. Life Ins. Co. v. Owen, 549, 569. Am. Primitive Soc. v. Pilling, 201. Am. Print Works v. Lawrence, 664. Am. Railway Frog Co. v. Haven, 185; 186; vol, ii. 772. Am. Tube Works v. Boston Machine Co., vol. ii. 946. Am. Union Tel. Co. 7/. Western Union Tel. Co., 549. Amerman v. Wiles, vol. ii. 372. Amesbury v. Bowditch Mu. Fire Ins. Co., 239. Amesbury Nail Factory Co. v. Weed, vol. ii. 285. Amesbury Woolen, etc., Manf. Co., vol. ii. 284. Amherst Academy v. Cowles, vol. ii. 668. Amherst Bank v. Root, 336. Ammant v. New Alexandria, etc., R.R. Co., vol. ii. 254, 658, 660. Amy V. Dubuque, vol. ii. 176. V. Selma, vol. ii. 874. Anacosta Tribe v. Murbach, vol. ii. 562. Ancient, etc., Club v. Miller, 1 1 1 ; vol. ii. 565. Anderson v. Kern's Draining Co., 665. V. Longden, 326. V. Newcastle, etc., R.R. Co., vol. ii. 9, 75, 100, 638, 641. V. Nicholas, vol. ii. 89. V. Tompkins, 22. V. Tuberville, 671. Andover v. Flint, vol. ii. 412. Andover, etc.; 'Tump. Co. v. Guild, vol. ii. 4, 91, no. Andover, etc., Tump. Corp. v. Hay, 626. Andrews v. Hartford & New Haven R.R. Co., vol. ii. 534. V. Heriot, 639. V. Murray, vol. ii. 414. Androscoggin Water Power Co. v. Bethel, etc.. Mill Co., vol. ii. 340, 432- Angier v. East Tenn., etc., R.R. Co., 545. Anglo-Australian Co. v. British Prov- ident Ins. Co., vol. ii. 845. Anglo-Cal. Bank v. Grangers' Bank, 255 ; vol. ii. 223, 226. Annual Conference Soc. v. Clarkson, 641. Anthony v. Adams, 463. Antipoeda Baptist Church v. Mulford, vol. ii. 593. Antonio v. Mehaffy, 604. Applegate v. Ernest, vol. ii. 284, 662. Appleton V. Water Commissioners of N. Y., 28. Application of Murphy, vol. ii. 208. Tke figures refer to the pages^ TABLE OF CASES. XXIU Appling V. Bailey, vol. ii. 785. Arberrj- v. Beavers, vol. ii. 769, 822. Ardesco Oil Co. v. North America Oil, etc., Co., vol. ii. 137. Arents v. Corn, vol. ii. 399, 400. Arenz v. Weir, vol. ii. 693. Argent v. Dean and Chapter of St. Paul, vol. ii. 441. Argenti v. San Francisco, 603. Ariinond v. Green Bay & Miss. Canal Co., vol. ii. 460. Arlington v. Pierce, vol. ii. 377, 693. Arinington w. State,i74; vol.ii. 190,757. Armour z/. Mich. Cent. R.R. Co., vol. ii. 407- Arms V. Conant, 212. Armstrong v. Treasurer, vol. ii. 348. Arnold v. Hudson River R.R. Co., 676. V. Mayor of Poole, 282. V. Ruggles, vol. ii. 653. V. Suffblk Bank, 256, 263; vol. ii, 187, 206, 230, 625, 626. Arrington v. Van Houton, vol. ii. 774. Arthur v. Griswold, 399. V. Commercial Bank, vol. ii. 247, 651, 661. Ash V. Cummings, 671. Ashby V. White, vol. ii. 565. Asher v. Sutton, 4').5. Asheville Division No. 15 z/. Aston, 115, 633, 641; vol. ii. 845. Ashtabula, etc., R.R. Co. v. Smith, 164; vol. ii. 13, 15, 20. Ashton V. Burbaiiic, vol. ii. 53, 117. Ashuelot, etc., Co. v. Hoit, 167 ; vol. ii. 41. Ashuelot Manf. Co. v. Marsh, 444, 466 ; vol. ii. 616. Ashurst V. Field, vol. ii. 173. Ashurt's Appeal, 436. Aspinwall v. Daviss County, 130, 565; vol. ii. 55, 84. V. Ohio & Miss. R.R. Co., 210.515,544,562,577. V. Sacchi^ vol. ii. 57. V. Torrance, vol. ii. 421. Atchafalaya Bank v. Dawson, vol. ii. 923- Atchinson, etc., R.R. Co. v. People, vol. ii. 726. V. Weaver, 672. Athol Music Hall Co. v. Carey, 167 ; vol. ii. lo. Athol, etc., R.R. Co. v. Inhabs. of Prescott, vol. ii. 114, 116. Atkins V. Albree, vol. ii. 174. V. Hunt, 18. Atkins V. Randolph, 504. Atkinson v. Atkinson, vol. ii. 197. ■V. Marietta, etc., R.R. Co., 107, 109, 590 ; vol. ii. 247, 652. V. Phila., etc., R.R. Co., 672. Atlanta v. Gate City Gaslight Co., 134, 214. Atlanta, etc., R.R. Co. v. Hodnett, vol. ii. 66. V. State, 565. Atlantic Cotton Mills v. Abbott, vol. ii. 26, 81, no. Atlantic & Great Western R.R. Co. v. Dunn, vol. ii. 536, 540. Atlantic De Laine Co. v. Mason, vol. ii. 92. Atlantic Fire Ins. Co. v. Sanders, 203, 272 ; vol. ii. 96. Atlantic Mu. Fire Ins. Co. v. Young, 381 ; vol. ii. 629. Atlantic & Gulf R.R. Co. v. Allen, vol. ii. 340, 353. Atlantic & Pacific R.R. Co. v. Reisner, vol. ii. 376. Atlantic & Pacific R.R. Co. v. Sl Louis, 155. Atlantic & Ohio Tel. Co. v. Com., vol. ii. 155. Atlantic, etc., Tel. Co. v. Chicago, etc., R.R. Co., 671. Atlaniic & Pacific Tel. Co. v. Union Pacific R.R. Co., 589. Atlantic State Bank v. Savery, 469. Atlas Bank v. Nahant Bank, vol. ii. 41 1. Atterbury v. Knox, vol. ii. 569. Attleborough Nat. Bankz/. Rogers, 605. Atwood V. Agr. Bank, vol. ii. 421. Atwool t/. Merryweather, vol.ii. 588, 852. Atty. Genl. v. Bank of Charlotte, vol. "• 313- V. Bank of Columbia, voL ii. 687, 688. V. Bank of Michigan, voL ii. 924. V. Bank of Newbem, 483, 489. V. Bank of Niagara, vol. ii, 918. V. Barstow, vol. ii. 731, 751, 766. V. Bay State Mining Co., vol. ii. 281, 290. V. Boston & Me. R.R. Co., 574- V. Brazen, etc.. College Oxon., 15. XXIV TABLE OF CASES. The figures refer to the pages. " Atty. Genl. v. Clarendon, vol. ii. 916. V. Clergy Soc, vol. ii. 840, 85s. V. Continental Life Ins. Co., vol. ii. 712. V. Cooper's Co., 642. V. Corp. of Leicester, 393. V. Dangars, 607. , w. Delaware, etc., R.R. Co., vol. ii. 724. 735. 759- V. Ely, etc., R.R. Co., vol. ii. 742. V. Foote, vol. ii. 759, 764. V. Garrison, vol. ii. 671. V. Governors of Foundling Hospital, vol. ii. 670. V. Guard., etc., Ins. Co., vol. ii. 616. •V. Guardian, etc., Ins. Co., vol. ii. 689, 693, 704. V. Hudson R.R. Co., vol. ii. 917. V. Ins. Co., vol. ii. 703. V. Joy, 120. v. Leaf, vol. ii. 725. V. Life Ins. Co., 580 ; vol. ii. 700. V. Lock, vol. ii. 672. V. Lonsdale, 642. V. Master, etc., of St. Cross, vol. ii. 670. V. Mayor, etc., of Plymouth, 630. V. McArthur, 105. V. Mercantile Ins. Co., 36, 43- ■V. Mich. State Bank, vol. ii. 762. V. Middleton, 236 ; vol. ii. 671. V. Munby, 635. V. N. J. R.R. Co., vol. ii. 917. V. North Am. Life Ins. Co., vol. ii. 712, 718. V. Parsons, 635. V. Pearson, 79. V. Petersburg, etc., R.R. Co., 577, 793 ; vol. ii. 727, 755, 890, 904, 921, 924. V. R.R. Cos., 533; vol. ii. 917. V. Rigby, vol. ii. 668. V. Salem, vol. ii. 728. V. Simonton, 65, 154. V. Soule, 646. V. Stanford, 642. Atty. Genl. v. Talbot, vol. ii. 671, 675. V. Tudor Ice Co., vol. ii. 728, 916, 917. V. Utica Ins. Co., 395 ; vol. ii. 670, 728, 918. V. Wilson, vol. ii. 411. Auburn & Lato Plank R. Co. v. Doug- lass, 491, 496. Auburn v. Strong, 237 ; vol. ii. 670. Augusta V. Earle, vol. ii. 569. Augusta Bank v. Hamblett, 449. Aurora v. West, 160 ; vol. ii. 399. Aurora Agr. Soc. v. Paddock, 659 ; vol. ii. 371. Aurora, etc., Turnpike Co. v. Holt- house, vol. li. 920. Austin V. Boston, vol. ii. 292. V. Daniels, 318, 393. V. Guardians of Bethnal Green, 284. V. N. Y., etc., R.R. Co., vol. ii. 599- V. Rutland R.R. Co., 673. Australian, etc.. Steamship Co. v. Mounsey, 659. Avery v. Fox, 672. Ayres v. Weed, 641. B. & A. R.R. Co. V. Richardson, vol. ii. 191. Babb V. Read, 28. Babcock v. Beman, 384. V. N. J. Stock Yard Co., 113, 484. Bache v. Horticultural Soc, vol. ii. 729. Backhouse v. Harrison, vol. ii. 402. Backus V. Lebanon, 666. Bacon v. Inhabs. of Charlton, 480. V. Miss. Ins. Co., 445, 598 ; vol. ii. 363, 385. V. Robertson, vol. ii. 936. Badger v. Bank of Cumberland, 328. Bagshaw v. Eastern Counties R.R. Co., vol. ii. 578. V. Eastern Union R.R. Co., 230, 512. Bagshaw, ex parte, 556. Bailey -u. Birkenhead, etc., R R Co 489- V. Citizens' Gaslight Co., vol. ii. 146, 159- V. Hannibal, etc., R.R. Co., vol. ii. 160. V. Mayor, 130. V. New York, 66, 504 ; vol. ii. 875- V. R.R. Co., 175; vol.ii. 146, 172. V. Shofield, vol. ii. 869. Tke figures refer to the pages. TABLE OF CASES. XXV Bailey v. Strohecker, vol. ii. 804, 805. V. Trustees of Meth. Epis. Ch., vol. ii. 888. Bailwick v. Bait. & Ohio R.R. Co.. vol. ii. 477. Bain v. Globe Ins. Co., vol. ii. 609. Baird v. Bank of Washington, 346. Baird's Case, 36, 37. Baker v. Administrator, etc., vol. ii. 631, 657, 688. V. Backus, vol. ii. 914. V. Bolton, vol. ii. 465. V. Clarke Inst., 638. V. Cotter, 446. V. Fessenden, vol. ii. 268. V. First Nat. Bank, vol. ii. 292, 298, 299, 300, 861. V. Marshall, vol. ii. 187, 804. V. Woolston, 431. Bakersfield Town Hall Asso. v. Ches- ter, 143. Baldwin v. Bank of La., 416. V. Canfield, 197, 432; vol. ii. 206, 503, 859. V. Green, 503. Ball V. Lappius, vol. ii. 779, Balliet v. Brown, 600. Balston Spa Bank v. Marine Bank, vol. ii. 664. Baltimore v. Baltimore, etc., R.R. Co., vol. ii. 291, 312. ■V. Bait. City Pass. R.R. Co., vol. ii. 285. V. Green Mount. Cemetery, vol. ii. 348. V. Norman, vol. ii. 596. V. Pittsburg, etc., R.R. Co., vol. ii. 913. V. Reynolds, 328. V. Root, vol. ii. 664. Bait., etc., R.R. Co. v. Boteler, vol. ii. 457- V. Breinig, vol. ii. 457- V. Fifth Baptist Church, 400; vol. ii. 429, 626. V. Magruder, 671. V. Sewell, vol. ii. 185, 190, 200. V. Supervisors, 493. V. Weightman, vol. ii. 597, ■ 599- V. Wheeling, vol. ii. 582, 631. Bait., etc., R.R. Co. v. Wilkens, vol. ii. 408. Bait. & Ohio R.R. Co. v. Blocher, vol. ii. 47 1, 536. V. Galiahue,vol. ii. 599, 601, 626. V. Glenn, 543, 545. 574; vol. ii. 571. V. Harris, voL ii. 491- V. Lansing, 674. - V. Marshall Co., vol. ii. 904. V. Schwindling, vol. ii. 502. Bait. & Potomac R.R. Co. v. Reany, vol. ii. 453. Bait. & Susquehanna R.R. Co. •». Musselman, 573. Baltimore, etc., Turnp. Co. v. Union R.R. Co., 667, 677. Balto. V. Eshback, 328. Bamstead v. Empire Mining Co., 8. Bancroft v. Cambridge, 523. V. Lynn field, 462. V. Wilmington Conference Academy, 291. Bangor House Proprietary v. Hinck- ley, 653. Bangor Bridge Co. v. McMalion, vol, ii. 90. Bangor R. Co. v. Smith, 536. Bangor, etc., R.R. Co. v. Harris, vol. ii. 327- V. McComb,674. V. Smith, 133, 134. 137. 352 ; vol. n. 566, 883, 888. Bangor Boom v. Whiting, 598. Banet v. Alton, etc., R.R. Co., vol. ii. 53, 64. 94, 107. 514- Bangs V. Mcintosh, vol. ii. 680, 916. Bank v. Charlotte, vol. ii. 53. •V. Downey, 422. V. Flour Co., 611.' V. Lanier, 255, 267, 621 ; vol. ii. 191, 192, 199, 212, 232. V. Simonton, vol. ii. 627, 643. V. Slason, 298. \ V. R.R. Co., 319. Bank Tax Case, vol. ii. 297. Bank of Ala. v. Berry, 10. Bank of Am. v. McNeil, vol. ii. 185, 209, 238. XXVI TABLE OF CASES. Thefigtiyes refer to the pages. Bank of Attica v. Manf & Trader's Bank, 255, 256; vol. ii. 118, 181, 222, 228, 232, 263. Bank of Auburn v. Putnam, vol. ii. 393. V. Weed, vol. ii; 635. Bank of Augusta v. Earle, 212, 48 1, 539, 546, 549, 586; vol. ii. 476. Bank of British Columbia v. Page, vol. ii. 615. Bank of British North Am. v. Hooper, 382. Bank of Carlisle v. Hopkins, 338. Bank of Chillicothe v. Swayne, 597. Bank of Circleville ■?/. Renick, 151. Bank of Columbia v. Okely, 531. V. Patterson, 288, 292, 293, 317, 33 1, 376, 624; vol. ii. 593. Bank of Commerce v. McGowan, vol. ii. 340, 351. V. New York, vol. ii. 297. V. Rutland, etc., R.R.Co.,vol. ii. 613. Bank of Edwardsville v. Simpson, vol. ii. 56. Bank of Genesee v. Patchin Bank, 384, 385. 392. 598- ^, , .. Bank of Greensboro v. Clapp, vol. 11. 442. Bank of Havana v. Magee, 61. Bank of Hindustan v. Alison, 556. Bank of Holly Springs v. Pierson, 223, 255- Bank of Ithaca z/. Kmg, 12 ; vol. n. 271. Bank of Ky. v. Schuylkill Bank, 269, 270, 271, 327, 367,389,416; vol. ii. 219, 594, 926. Bank of London v. Tyrell, 621. Bank of Louisville v. Bank of Newark, 268. V. Nat. State Bank, vol. ii. 223. Bank of Lyons v. Deramon, 328. Bank of Marietta v. Pindall, 551 ; vol. ii. 568. Banket Metropolis 7/. Guttschlick, 291 ; vol. ii. 593. v. Jones, 450. V. New England Bank, vol. ii. 241, V. Orme, vol.ii.634. Bank ot Michigan v. Niles, 631. V. Williams, vol. ii. 627. Bank of Middlebury v. Edgerton, 590, 591. Bank of Middlebury v. Rutland, etc., R.R. Co., 198, 225, 283, 313. Bank of Miss. v. Duncan, vol. ii. 935, 939- V. Wrenn, vol. ii. 845, 926. Bank of Monroe v. Schermerhorn, vol. ii. 687. Bank of Niagara v. Johnson, vol. ii. 706. Bank of Owego v. Babcock, 417. Bank of Pa. v. Com., 489 ; vol. ii. 274, 342- Bank of Pennsylvania v. Reed, 451. Bank of Pittsburgh v. Whitehead, 469. Bank of Poughkeepsie v. Ibbotson, vol. ii. 131, 913. Bank of the Republic v. Millard, vol. ii. 242. Bank of Rochester v. Gray, 295. Bank of Rome v. Village of Rome, vol. ii- 397- Bank of South Australia v. Abrahams, 661. Bank of South Car. v. Hammond, 602. V. Humphreys, 469. Bank of St. Mary's v. Mumford, 471. V. St. John, 345. Bank of State of N. Y. v. Farmers' Branch Bank of Ohio, 454. , Bank of Switzerland v. Bank of Turkey, vol. ii. 837. Bank of Toledo v. The City of Toledo, 500. V. The International Bank, 143. Bank of U. S. v. Dandridge, 5, 134, 136, 139. 194. 202, 288, 323. 328, 336, 432, 483,622,655; vol. ii. 381. V. Davis, 390, 396, 470. V. Deveaux, 9, 10 ; vol. ii. 600. V. Dunn, 447, 450, 476. V. Lyman, 134. V. Macalester, vol. ii. 243. V. Magill, 341. V. Planters' Bank, vol. ii. 594, 601. Bank of Utica v. Magher, 144, 379. V. Smalley, 174, 271 ; vol. h. 141, 180,185, 206, 226, 232, 627, 634. Bank of Vergennes v. Warren, 306, 33 1 . Bank of Vincennesz/. State, vol. ii. 724. The figures refer to the pages. TABLE OF CASES. xxvn Bank of Waterville v. Belster, vol. ii. 627, 635. Bank of Wilmington v. Wollaston, 273, 339- 467 ; vol. ii. 638. Bank of Wishtenavv v. Montgomery, vol. ii. 568. Banks v. Darden, vol. ii 646. Bank Commrs. v. Bank ot Brest, 437, 438 ; vol. ii. 56, 843. V. Bank of Buffalo, 335 ; vol. ii. 920. V. R. I. Cent. Bank, vol. ii. 686, 922. BankeacI v. Brown, 661. Banton v. Wilson, vol. ii. 812. Baptist Assoc, v. Hart's Exrs., 644. Baptist Church in Hartford v. With- erell, 31, 80, 651. Baptist Church -u. Mulford, 286, 287, 294. Baptist Soc. V. Clapp, 304. Barbour County v. Horn, vol. ii. 512. Barclay v. Quicksilver Mining Co., vol. ii. 707. V. Talman, vol. ii. 913. Bard v. Poole, 546, 549 ; vol. ii. 476. Bardstown, etc., R.R. Co. v. Metcalfe, 496, 659, 664. Bardwell v. Sheffield Water Works Co., vol. ii. 170. Bargate v. Shortridge, 410. Baring v. Erdman, 664. Barings v. Dabney, vol. ii. 134. Barker v. Atlas Bank, vol. ii. 176. V. Bucklin, 167. V. Clarke Inst., 530. V. Marshall, vol. ii. 780. V. Mechanics' Fire Ins. Co., 387. Bayard v. Farmers', etc.. Bank, vol. ii. 202. Bayless v. Orne, 395; vol. ii. 679, 916. Bayley v. Manchester, etc., R.R. Co., vol. ii. 471. Baylies v. Lafayette R.R. Co., vol. ii. 712. Bayliss v. Swift, vol. ii. 423. Beach v. Fulton Bank, 578,'590 ; vol. ii. 385, 596. V. Leahy, 92. V. Smith, vol. ii. 48, 102. Beale v. Railway Co., vol. ii. 538. Beall V. Fox, 643: Beardsley v. Knight, 298. V. Ontario Bank, vol. ii. 252, 661. V. Smith, vol. ii. 419.'] Beatty v. Knowler, 489. Beatty v. Kurtz, 31, 644. V. Marine Ins.Co., 221, 325, 431. Beatty Organ, etc., Co., vol. ii. 376. Beaumont v. Meredith, 28. Beck V. Ashuelot Manuf. Co., vol. ii. 605. V. Hanscome, 196, 223. Becket v. Houston, vol. ii. 87, 168. Beckwith v. Windsor Manuf. Co., 288 ; . vol. ii. 243. Bedford R.R. Co. v. Bowser, 348, 532 ; vol. ii. 15, 66, 1 19, 122. Bedford Union v. Commrs. of Bedford, vol. ii. 273. Bee V. San Francisco, etc., R.R. Co., vol. ii. 367. Beebe v. Ayres, 246. Beecher v. Dillsburg, etc., R.R. Co., 166; vol. ii. 35. V. Wells Flouring Mill Co., 174. Beekman v. Bonsor, 646. V. Saratoga, etc., R.R. Co., 665. Beene v. Cahawba, vol. ii. 81, 635. Beer Co. v. Massachusetts, 523. Beers v. Bridgeport Spring Co., vol. ii. 150, 152, 155, 166. V. Housatonic R.R. Co., 410. V. Phoenix Glass Co., 332, 351, 360. Belfast, etc., R.R. Co. v. Belfast, vol. ii. 1 60. V. Ccttrell, vol. ii. 20, 81, no. V. Moore, 161 ; vol. ii. 4, 91, no. Belhaven's Case, vol. ii. 119. Belknap v. Boston & Me. R.R. Co., vol. ii. 540, 543. Belli/. Bank of Nashville, 99. V. Indianapolis, etc., R.R. Co., vol. ii. 8f 7. V. Shibley, vol. ii. 700. Bell Gap R R. Co. v. Christy, vol. ii. 390. Bcllemire v. Bank of U. S., 416. Belleville Nail Co. v. People, vol. ii. 318. Bellman v. N. Y. Cent., etc., Co., vol. ii. 484. Bellona Co.'s Case, 666 ; vol. ii. 865. Belmont v. Erie R.R. Co., vol. ii. 680 686, 916. Bellows V. Halloweli & Augusta Bank, 123 ; vol. ii. 944, 946. V. Todd, 112. Belo V. Commrs. of Forsyth, vol. ii. 335. XXVlll TABLE OF CASKS. The figures refyr io the pages. Bement v. Plattsburg, etc., R.R. Co., vol. ii. 66i. Bend v. Susquehanna Bridge Co., vol. ii. 109, 220. Benedict v. Denton, 306. Benjamin v. Elraira, etc., R.R. Co., 659 ; vol. ii. 256. Benneson v. Bill, vol. ii. 687. Bennett v. Am. Art Union, vol. ii. 932. V. Union Bank, 657. Bennett's Appeal, 64, 484. Bennet's Case, vol. ii. 220. Benoist v. Carondolet, 319. Benson v. Heathorn, 441. V. New York, vol. ii. 877. j Bentley v. Bishop of Ely, 235. V. Columbia Ins. Co., 392. Benton v. Cent. R.R. Co., vol. ii. 457. Benwood Iron Works v. Hutchinson, vol. ii. 609. Bergen v. Porpoise Fishing Co., vol. ii. 249. Bfergman v. St. Paul Mut. Building Assoc, 483. Berlin v. Gorham, 130; vol. ii. 875. Berks & Dauphin Turnpike Co. v. Myers, 309, 625. Berrian v. Methodist Soc, vol. ii. 606. Berry v. Brett, vol. ii. 708. V. Yates, 511. Berry, etc., R.R. Co. vol. ii. 53. Berthin v. Crescent City Slaughter House Co., 499. Berwick v. Johnson, 249. Bethany v. Sperry, 195, 205. Bethlehem v. Perseverance Fire Co., 642, 643. Belts V. De Vitre, vol. ii. 519. Bevans v. Dingman's T. Co., vol. ii. 270. Beverley v. Brooke, vol. ii. 690. V. Lincoln Gaslight, etc., Co., 284. Barker v. Merchants' Ins. Co., 580. V. Parker, 339. V. Troy, etc., R.R. Co., vol. ii. 105. V. Woolston, 468. Barkley v. Levee Commissioners, vol. ii. 778. Barnard v. Norwich, etc., R.R. Co., vol. ii. 256. V. Vermont, etc., R.R. Co., vol. ii. 164, 175. Barnes v. Barnes, 147. V. Brown, vol. ii. 44, 199. V. District of Columbia, 57, 130; vol. ii. 874. V. Hall, vol. ii. 653. Barnes v. Morgan, vol. ii. 653. V. Ontario Bank, 450, 453. V. Perine, 117 ; vol. ii. 82. V. Trenton Gaslight Co., 469. Barnett v. Chicago, etc., R. R. Co., vol. ii. 597, 613, 615. Bart V. King, 468; vol. ii. 612. V. N. Y., etc., R.R. Co., 191. Barren Creek Ditching Co. v. Beck, 194; vol. ii. 838, 914. Barret v. Darlington & Stockton R.R. Co., 495. v. Long, vol. ii. 437. Barrett v. Mead, vol. ii. 191, 641, 912. Barrick v. Austin, 455. Barrington v. Bank of Washington, 340 ; vol. ii. 649. v. Miss. Cent. R.R. Co., vol. ii. 48. V. Neuse River, etc., Co., 665. Barrow v. Nashville, etc., T. Co., 631. Barrows v. Mass. Med. Soc, vol ii. 810. Barry v. Merchants' Exchange Co., 483, 580, 584, 627, 632, 659 ; vol. ii. 121, 144, 246, 362. Barter v. Com., 239. Bartholomew v. Bright, vol. ii. 393. Bartlett v. Brickett, vol. ii. 6i8. V. Drew, 2, 124, 148. ■V. West. Union Tel. Co., 248. Barton v. Barbour, vol. ii. 711. V. Plank R. Co., 348. V. Port Jackson, etc.. Plank R. Co., 612. Barton's Case, vol. ii. 112. Bartow v. Port Jackson, etc., R.R. Co., 598. Barwick v. English Joint Stock Bank, vol. ii. 409. Bascom v. Albertson, 646. Bass V. Chicago & Northwestern R.R. Co., 24s ; vol. ii. 541. Bassett v. Carleton, vol. ii. 594. V. Fish, 93. V. Mining Co., 212. V. Monte Christo, etc., Mining Co,, 661. V. Porter, 147. V. St. Albans Hotel Co., vol. ii. 421. Basshor v. Dressel, 155, 156; vol ii 904. Bateman v. Mayor, etc., of Ashton, 596 Bates V. Androscoggin, etc., R.R. Co.i vol. ii. 146. V. Bank of Ala., 288. V. Bank of the State, 484, 599. The figures refer to the pages. TABLE OF CASES. XXIX Bates V. Boston & N. Y. Cent. R.R. Co., 296, 302. V. Keith Iron Co., 429. V. Lewis, vol. ii. 120. V. N. Y. Ins. Co., vol. ii. 167, 177, 178, 225. Bates County v. Winters, vol. ii. 50. Battershall v. Davis, 657 ; vol. ij. 82, 688, 700. Battle V. Davis, vol. ii. 678, 692, 705. Bavington v. Pittsburg, etc., R.R. Co., vol. ii. 25, 33. Bawknight v. Liverpool, etc., Ins. Co., vol. ii. 597, 609, 613. Baxter v. Brown, 7. V. Nashville, etc., Turnpike Co., vol. ii. 651. Bayard v. Farmers' Bank, 188 ; vol. ii. 202. Bay City v. State Treasurer, vol. ii. 795. Bayliss v. Lafayette, etc., R.R. Co., vol. ii. 619. Biblack v. Mason, vol. ii. 696, 698. Biddle's Appeal, vol. ii. 146, 172. Big Mt. Improvement Co.'s Appeal, vol. ii. 592. Bigelow V. Gregory, 100. V. Hartford Bridge Co., vol. ii. 917. V. Heaton, vol. ii, 244. V. Randolph, vol. ii. 511. V. West Wisconsin R.R. Co., 674. Bill V. Boston Union Telegraph Co.,436. V. Dareuth Valley R.R. Co., 465. V. Donohue, vol. ii. 625. V. Fourth Gt. Western Turnpike Co., vol. ii. 639. Billings V. Robinson, vol. ii. 693. Binney v. Plumley, 466. Binney's Case, 627, 668; vol. ii. 178, 667. Bingham v. Mead, vol. ii. 99. V. Weiderwax, 654. Binghamton Bridge, 494, 501 ; vol. ii. &77. Binningham Fire Ins. Co. v. Cora., vol. ii. 188, 797, 804. Bird V. Daggett, 128, 327. Biscoe V. Gt. Eastern R.R. Co., vol. ii. 592. Bish V. Bradford, vol. ii. 11, 61, 75. V. Johnson, vol. ii. 63, 64. Bishop V. Brainerd, 16, 563, 574. V. Breckles, 24. V. Globe Co., 263 ; vol. ii. 226, 238. Bishop's Fund v. Eagle Bank, vol. ii. 127. Bissell V. Farmers', etc.. Bank, vol. ii. 190. V. First Nat. Bank, 450, 451. V. Mich. Southern, etc., R.R. Co., 528, 597, 602 ; vol. ii. 429, 488, 490. V. N. Y. Cent. R.R. Co., vol. ii. 483, 487. Black V. Auditor, vol. ii. 793. V. Huggins, vol. ii. 587. V. Del., etc.. Canal Co., 493, 499, 508, 509, 562, 564, 588, 623, 658, 666 ; vol. ii. 48, 846. V. Zacharia^ vol. ii. 200. Black, etc., Soc. v. Vandyke, vol. ii. 551. Blacket v. Blizard, 220. Black River Improvement Co. v. La Crosse Booming & Transportation Co., 679. Black River, etc., R.R. Co. v. Barnard, 155,248,674. Black River, etc., R.R. Co. v. Clarke, vol. ii. 2, 9, 640. Blackburn v. Selma, etc., R.R. Co., 577 ; vol. ii. 601. Blackman v. Cent. R.R., etc., Co., 467. Blackshire w. Iowa Homestead Co., 306. Blackstock v. N. Y. & Erie R.R. Co., 412. Blackstone Manuf. Co. v., Blackstone, 542. Blair v. Compton, vol. ii. 653. V. Erie R.R. Co., vol. ii. 490. V. Milwaukee R.R. Co., 526. V. Perpetual Ins. Co., 340, 578. V. St. Louis, etc., R.R. Co., voL ii. 952. Blair Town Lot & Land Co. v. Walker, 439. 61 1- Blake v. Bayley, 323, 326 ; vol. ii. 645. V. Buffalo Creek R.R. Co., 611; vol. ii. 375. V. Hinkle, 194. V. Livingston County, vol. ii. 39S. V. Midland R.R. Co., vol. ii. 533. V. Portsmouth R.R. Co., vol. ii. 633. 929. 93°- V. Rich, 679. V. Supervisors, vol. ii. 394. V. Terris, 414. Blake, etc., Co, v. New Haven, vol. ii. 695. Blanchard v. Dedham Gas Co., vol. ii. 204, 205, 215. V, Dow, 186. V. Kansas, 67 2> Blanchard's Gun Stock, etc.. Factory V. Warner, 627. XXX TABLE OF CASES. The figures refer to the pages. Blatchford v. Ross, 432, 564 ; vol. ii. 373- Blen V. Bear River, etc., Mining Co., Blessing z*. Galveston, 130. Bliss V. Anderson, vol. ii. 580. V. Kanweah Canal, etc., Co., 443. V. Matteson, 423, 611. Block V. Atchison, etc., R. R. Co., vol. ii. 611. Blodgett V. Morrill, vol. ii. 71, 120. V. Utica, etc., R.R. Co., 671. Blood V. Marcuse, 459 ; vol. ii. 383. V. Nashua & Lowell R.R. Corp., vol. ii. 458. Bloomer v. Union Coal, etc., Co., 659. Bloomfield Gas Light Co. v. Richard- son, 669. Bloxam v. Metrop. R.R. Co., vol. ii. 148. Blumenthal v. Brainard, vol. ii. 507, 710, 711. Blundell v. Winsor, 20, 37. Blunt V. Walker, vol. ii. 104, 362. Board of Commrs. v. Baldwin, vol. ii. 278. V. Elston,vol. ii. 296. V. Mighels, 91. V. Reynolds, 621. V. State, vol. ii. 837. Board of Commrs. of Tippecanoe Co. V. Lafayette, etc., R.R. Co., 348. Board of Directors v. Houston, vol. ii. 274- Board of Liquidation v. McComb, vol. ii. 792. Board of Police v. Grant, vol. ii. 787, 823, 829, 832. Boardman v. Lake Shore, etc., R.R. Co., 468; vol. ii. 49, 150, 160, 163. Boatmen's Ins. Co. v. Able, vol. ii. 204. Bock V. Lauman, vol. ii. 632. Bodley w. Goodrich, vol. ii. 138. Bodman v. Am. Tract Soc, 641. Bodwell V. Eastman, 43. Bogardus v. Trinity Church, 540, 632. Bohiman v. Green Bay, etc,, R.R. Co., 672. Boice V. Hudson River R.R. Co., 246. Boisgerard v. N. Y. Banking Co., 377, 608, 625. Bonaffe v. Fowler, 400. Bonaparte v. Camden & Amboy R.R. Co., 68, 669. Bond V. Mt. Hope Iron Co., vol. ii. 186. Bonnell v. Griswold, vol. ii. 436. Bonner v. Am. Spiral & Hinge Manuf. Co., 350. V. State, vol. ii. 811. Bbody V. Rutland, etc., R.R. Co., vol. ii. 46. Boogher v. Life Assoc, of Am., vol. ii. 429. 439- Booker, ex parte, vol. ii. 25, 65. Booker 7/. Young, 189. Bool V. Junction R.R. Co., vol. ii. 54. Boom Co. V. Patterson, 664, 672. Booth V. Bunce, vol. ii. 952. V. Campbell, vol. ii. 427. V. Clark, vol. ii. 697, 706. V. Farmers' and Mechanics' Nat. Bank, vol. ii. 517. V. Robinson, 435, 441, 583. Boot & Shoe Co. v. Hoit, vol. ii. lo. Borland v. Lewis, vol. ii. 932. Boss V. Hewitt, vol. ii. 400. Boston Acid Manuf. Co. v. Stetson, 129. Boston Glass Manuf. Co. v. Langdon, vol. ii. 85s, 859, 867, 904. Boston Manuf. Co. v. Newton, vol. ii. 321. Boston Music Hall v. Cory, vol. ii. 178, 20Q, 209. Boston V. Richardson, 503. Boston & Sandwich Glass Co. 2/. Bos- ton, vol. ii. 322. Boston Seamen's Friend Soc. v. Bos- ton, vol. ii. 273. Boston Water Power Co. v. Boston, vol. ii. 321, 322, 335. Boston & Alb. R.R. Co. v. Pearson, 36, 43. Boston & Albany R.R. Co. v. Richard- son, vol. ii. 218. Boston & Lowell R.R. Co. v. Com., vol. ii. 314. Boston & Lowell R.R. Co. v. Salem & Lowell R.R. Co., vol. ii. 901. Boston & Providence R.R. Co. v. N. Y. & New England R.R. Co., 348! Boston, etc., Corp. v. Midland R.R. Co., vol. ii. 750. Boston, etc., R.R. Co. v. Gilmore, vol. ii. 254, 662. Boston, etc., R.R. Co. v. Greenbush 679. Boston, etc., R.R. Co. v. Lowell etc R.R. Co., 668. Boston, etc., R.R. Co. v. Midland R.R. Co., vol. ii. 728. Boston, etc., R.R. Co. v. Salem etr R.R. Co., 666. ' Boston, etc., R.R. Co. v. State, vol ii 532. Boston, etc., R.R. Co. v. Wellington 164; vol. ii. 41, 107, 115. The fibres refer to ike pages. TABLE OF CASES. XXXI Bostwick V. Detroit Fire Department, vol. ii. 563. Bostwick, ex parte, vol. ii. 823. Bottman v. San Francisco, vol. ii. 389. Houghton V. Otis, vol. ii. 414. Boulard v. Calhoun, vol. ii. 540. Bouldin v. Alexander, 83. V. Baltimore, vol. ii. 631. Bourne v. Freeth, 18. Bouton V. Dry Dock, etc., Co., vol. ii. 107. Bow V. AUenstown, 146. Bowden v. Santos, vol. ii. 184. Bowditch V. Boston, 671. Bowditch Mu. Ins. Co. v. Winslovv, 243. Bowdoinhara v. Steam Mill Corp., 135. Bowen v. First Nat. Bank of Medina, 548. V. Irish Presbyterian Cong., 78, 307- V. Lease, 580. V. Morris, 372. Bower v. Bank of the State, 116. V. New York, vol. ii. 491. Bowling Green, etc., R.R. Co. v. War- ren County Ct., 498. Bowman v. Wathen, vol. ii. 460. Boyce v. City of St. Louis, 641, 656. V. Supervisors of Cayuga, 28. Boyd V. Alabama, 518, 524. V. Chesapeake, etc.. Canal Co., 465 ; vol. ii. 663. V. Croyd R.R. Co., 9. V. Hale, vol. ii. 425. V. Peach Bottom R.R. Co., vol. ii. 15, 20, 102, 104. V. Rockport Steam Cotton Mills, vol. ii. 215. Boyden v. Bank of Cape Fear, vol. ii. 242. Boylan v. Hoguet, vol. ii. 211. Boyntori v. Andrews, 426 ; vol. ii. 42. V. Hatch, vol. ii. 41, 42, 128, 426. Brabham v. Supervisors, etc.,vol. ii. 512. Bradford v. Cary, 162. V. Water Lot Co., 118 ; vol. ii. 634. Braddock v. Phila., etc., R.R. Co., vol. ii. 96. Bradley v. Ballard, 605, 608 ; vol. ii. 370. 372- V. Bander, vol. ii. 290. V. Boston & Me. R.R., 411. V. Case, 91. V. Farwell, vol. ii. 133. V. N. Y. & N. H. R.R. Co., 494, 674. Bradley v. Poole, vol. ii. 69. V. South Car. Phosphate Co., 496. Bradly v. Williams, 427. Bradstreet v. Bank of Royalton, 225. Bradw ell v. Farwell, vol. ii. 944. Brady v. Bronson, 672. V. Brooklyn, 482. V. Chicago, vol. ii. 467. V. Mayor, etc., of Brooklyn, 578. V. Supervisors of N. Y., 28. V. Weeks. 523. Bradt v. Benedict, vol. ii. 869. Bragg V. City of Bangor, vol. ii. 448. Brainerd v. Bertram, 18. V. N. Y. & Harlem R.R. Co., vol. ii. 393, 394, 396. Branch v. Atlantic & Gulf R.R. Co., vol. ii. 247. V. City of Charleston, vol. ii. 354- V. Jessup, 588 ; vol. ii. 256. Brand v. Donaldsonville, vol. ii. 593. Brander v. Brander, vol. ii. 171. Brandon Iron Co. v. Gleason, vol. ii, 863, 909, 914. Brant v. Ehlen, vol. ii. 42, 139. Brassey v. New York, etc., R.R. Co., vol. ii. 685, Bray v. Farwell, 37, 482. V. Wallingford, vol. ii. 512, 596. Breden v. Dubarry, vol. ii. 386. Breese v. U. S. Tel. Co., 248. Breithaupt v. Bank of Ga., vol. ii. 60c). Brenhan v. Tracy, vol, ii. 436, 567. Brent v. Bank, vol. ii. 223. V. Bank of Washington, 264; vol. ii. 227. V. State, 105. Bret V. Cumberland, 131. Brewer v. Boston Theatre, 418 ; vol. ii. 618, 623, 852. V. Stone, vol. ii. 646. Brewers', etc., Ins. Co. v. Burger, vol, ii. 49. Brewster v. Burnett, vol. ii. 946. V. Hatch, 418. V. Hartley, 182, 185. V. Hobart, 361. V. Hough, vol. ii. 359. V. McCall, 641. V. Sime, vol. ii. 197. Brick Presbyterian Church v. New York, 520. Bridge Co. tj. Clarksville, 667. V. Genl. Ins. Co., 657. V. HobokenLand, etc.,Co., 496, 497- xxxu TABLE OF CASES. The figures refer to the pages. Bridge Co. v. U. S., 675. Bridgeport v. New York & New Ha- ven R.R. Co., 2 ; vol. ii. 348, 586. Bridgeport Bank v. New York & New Haven R.R. Co., vol. ii. 56, 75, 87, 187, 192, 214. Bridgeport City Bank v. Empire Stone Dressing Co., vol. ii. 392. Bridgeport Savings Bank v. Eldredge, 444, 466. Bridges' Case, vol. ii. 117. Briggs V. Boston, etc., R.R. Co., vol. ii. 244. V. Cape Cod, etc., Co., vol. ii. 838, 904. V. Comweli, vol. ii. 127, 131. V. Johnson County, vol. ii. 280. ■V. Pennirnan, vol. ii. 131. Bright V. Lord, vol. ii. 169. V. Metairie Cemetery Assoc.,444. Brightwell v. Mallory, vol. ii. 178. BrinckerhofF v. Bostwick, 395 ; vol. ii. 117, 587,617,623. V. Brown, vol. ii. 864. Brinham v. Wellsburg Coal Co., vol. ii. 124, 581. Brinley v. Mann, 303, 309, 313. Brisbane v. Delaware, Lackawanna, etc., vol. ii. 168, 192. Bristol V. Sandford, vol. ii. 693. British Am. Land Co. v. Ames, vol. ii. 568. British Com. L. Ins. Co. v. Commis- sioners, vol. ii. 283, 393, Brittain v. Newland, vol. ii. 634. Broad v. Jollyfe, 250. Broadway Bank v. McElrath, vol. ii. 207, 215. Brockenbrough v. James River, etc., Co., vol. ii. 1 10. Brocket v. Ohio & Pa. R.R. Co.. S7S- Brockway v. Allen, 316. ■V. Innes, vol. ii. 415. Brokaw v. N. J. R.R. & Transp. Co., vol. ii. 429, 520, 595. Bronson v. La Crosse R.R. Co., 320, 467 ; vol. ii. 631, 632. Brooklyn Cent. R.R. Co. v. Brooklyn City R.R. Co., vol. ii. 879, 914. Brooklyn Park Commis. v. Armstrong, vol. ii. 937. Brooklyn Steam Transit Co. v. Brook- lyn, vol. ii. 861. Brooks V. Davenport, etc., R.R. Co., 674. V. N. Y. & Greenwood Lake R.R. Co., vol. ii. 485. Brothers v. Cartter, vol. ii. 492. Broughton v. Manchester Water Works Co., 285. V. Pensacola, vol. ii- 939. 95°- Brouwer v. Appleby, 151. V. Harbeck, vol. ii. 137. V. Hill, vol. ii. 704. Brower v. Cothreal, vol. ii. 647. Brown v. Adams, vol. ii. 200. V. Andrew, 624. V. Beatty, 664, 669. V. Buffalo, etc., R.R. Co., vol. ii. 150. V. Corp. of Belleville, 286. V. Cayuga& Susquehanna R.R. Co., vol. ii. 460. V. Donnell, 334. V. Fairmount Gold, etc., Co., 437. V. Florida Southern R.R. Co., vol. ii. 79. V. lUius, vol. ii. 635. V. Jefferson County, vol. ii. 508. V. Kelsey, 643. V. Lehigh Coal, etc., Co., vol. ii. 146, 159. V. Howard Fire Ins. Co., vol. ii. 195, 198, 218, 701. V. Milwaukee, etc., R.R. Co., vol. ii. 457. V. Pacific Mail Steamship Co., i8i, 182, 188. V. Penobscot Bank, vol. ii. 277. V. Phelps, vol. ii. 206. V. Powell, 673. V. South Ken. Agrl. Soc, vol. ii. 430. V. Thompkins, 638. V. Vandyke, 467. V. Winnisimmet Co., 113, 354, 386. Browne's Nat. Bank Case, vol. ii. 319. Browning v. Morris, vol. ii. 411. Brownlee v. Ohio, etc., R.R. Co., vol. ii. 6, 100. Brownlow v. Metrop. Board of Works, vol. ii. 491. Broyles v. McCoy, 23. Bruce v. Lord, 382, 387. V. Manchester, etc., R.R. Co. vo'. ii. 678. '' V. N. Y. Cent. R.R. Co.. 1:21: V. U. S., 338. ' ^" Bruoe's Ca.se, vol. ii. 544. Bruffet V. Gt. Western R.R. Co 1:70 • vol. ii. 867, 877, 916. ■' ^' ' Brumleyz/. Westchester Co.Manf. Soc vol. ii. 626. ' ■' Tke figures refer to the pages. TABLE OF CASES. XXXIU Brundage v. Brundage, vol. ii. 142, 146, 163. Brunenmeyer v. Burke, vol. ii. 585. Brunson v. Monson, etc., Manf. Co., vol. ii. 431. Brunswick v. Dunning, 60. Bruyn v. Receiver, etc., 465. Bryan v. Leavenworth, etc., R.R. Co., 611. Bryant v. Goodnow, 203. Buccleuch v. Metrop. Board of Works, vol. ii. 461. Bucherw. Dillsburg, etc., R.R. Co., i5l. Buchanan, etc., Co. v. Woodman, vol. ii. 242. Buck V. Lockport, vol. ii. 776.. Buckbill V. Turnpike Co., vol. ii. 593. Buckfield Branch R.R. Co. v. Irish, 81, 107. Buckley v. Briggs, 291, 586. Buckmaster v. Consumers' Ice Co., vol. ii. 190, 583, 917, 923. Buck Mt. Coal Co. v. Lehigh, etc., Co., vol. ii. 583. Bucksport, etc., R.R. Co. v. Buck, vol. ii. 24, 61. Buckville Branch R.R. Co. v. Irish,' vol. ii. 90. Buell V. Buckingham, 418, 424, 621 ; vol. ii. 134, 864. Buffalo City Cemetery v. Buffalo, vol. ii. 348. Buffalo, etc., R.R. Co. v. Brainard, 665. Buffalo, etc., R.R. Co. v. Gary, vol, ii. 639, 916. Buffalo, etc., R.R. Qo.v. CIark,vol.ii. 10. Buffalo & Erie R.R. Co. v. Com., vol. ii. 277, 312. Buffalo, etc., R.R. Go. v. Douglass, 127. Buffalo, etc., R.R. Co. v. Dudley, 167, 168, 508, 514, 515; vol. ii. 8,61, 67, 72. Buffalo & Jamestown R.R. Co. v. Gif- ford, vo\ ii. 4, 8, 63. Buffalo, etc., R.R. Cc. v. I.ampson, vol. ii. 258. V. Pottle, vol. ii. 59- , V. Supervisors, etc., vol. ii. 284, 325. Buffett V. Troy & Boston R.R. Co., 604 ; vol. ii. 489. Building Assoc, v. Anderson, vol. ii. 568. V. Martin, vol. ii. 838. V. Sendmeyer, vol. ii. 213. Bulkley v. Big Muddy Iron Co., voL ii. 618, 619, 630. •V. Derby Fishing Co., vol. iL 368, 593- V. N.Y.&N. H. R.R.Co., 525. Bullard v. Bank, 236, 268 ; vol. ii. 223, 232. w. Bell, vol. ii. 176. V. Kinney, 40. V. Nantucket Bank, vol. ii. 629, V. Nat. Eagle Bank, 255. V. Thompson, 548. Buncombe Turnpike Co. v. McCarson, 140, 322, 323, 324. Bundy v. Birdsall, 31, 653. Bunn's Appeal, vol. ii. 663. Bunting v. Camden & Atlantic R.R. Co., vol. ii. 399. Burbank v. Whitney, 643. Burdick v. Champlain Glass Co., vol. ii. 593- Burgess v. Pue, 129, 202, 328. Burke v. Badlam, 587. V. Ballam, vol. ii. 336. V. Smith, vol. ii. 15, 28, 119, 122, 129, 184. V, Wall, 85. Burlington, etc., R.R. Co. v. Boestler; vol. ii. 19. Burlington, etc., R.R. Co. v. Stumps, vol. ii. 456. Burmester v. Norris, 331, 434. Burmeister v. N. Y. Elevated R.R. Co., 413. 4J4- Burnham v. Savings Bank, vol. ii. 634. Burns v. Clarion Countv, 91. V. Multonah R.R. Co., 671. Burnes v. Pennell, 39, 164; vol. ii. 71. Burr V. McDonald, 288, 322, 659 ; vol. ii. 246. V. Smith, 643. V. Wilcox, vol. ii. 38, 87, 142. Burrall v. Bushwick R.R. Co., vol. ii. 85, 125, 178. Burrel v. Assoc. Ref. Ch., 78. Burrill v. Boardman,.649. V. Nahant Bank, 317, 357, 365, 367. Burroughs v. North Carolina R.R. Co., vol. ii. 163, 169. V. Richmond County, vol. ii. 401. Burrows v. Smith, 164 ; vol. ii. 30. Burt V. Batavia Paper Manf. Co., 468. V. Farrar, 126; vol. ii. 10. V. Rattle, 659; vol. ii. 157, 160, 246. Burton v. Peterson, vol. ii. 89. Xxxiv TABLE OF CASES. The figures re/tr to the ^agis. Busey v. Hooper, 131, 143, 166; vol. "• 43- Bush V. Shipman, 503; vol. ii. 874, 877. Bushel V. Com. Ins. Co., vol. ii. 598, 615, 616, 660. Bushwick, etc., Co. v. Ebbets, 131. Butler V. City of Milwaukee, 449. V. Palmer, vol. ii. 837. V. Rahm, 659. Butterfield v. Beardsley, 27, 41. Butternuts, etc., Turnpike Co. v. North, vol. ii. 16. Button V. Hoffman, vol. ii. 860. Buttonworth v. O'Brien, vol. ii. 632. Butts V. Cuthbertson, vol. ii. 593. V. Wood, 611. Byron v. Carter, 237, 255. Cabot, etc., Bridge Co. v. Chapin, 152 ; vol. ii. 27, 45. 93- Cady V. Knit Goods Manf. Co., vol. ii. 918, 919. ■V. Sandford, 655. Cahill V. Bigger, 1 1 5. V. Kalamazoo Mu. Ins. Co., 140, 195, 234, 243, 345; vol. ii. 861. Cahn V. Michigan, etc.,' R.R. Co., vol. ii. 245. Calder, etc., Nav. Co. v. Pilling, 234. Caldicott V. Griffiths, 30. Caldwell v. Com. Warehouse Co., 485. V. Nat. Mohawk Valley Bank, 360,451,495. V. N. J. Steamboat Co., vol. ii. 484. Caley v, Phila., etc., R.R. Co., vol. ii. 14, 23, 53, 82. Calhoun v. Memphis, etc., R.R. Co., vol. ii. 256. V. Richardson, 415. California, etc., R.R. Co. v. Butte County, vol. ii. 796. Callahan v. Hallowell, vol. ii. 606. Callanan v. Edwards, vol. ii. 219. Callender v. Painsville, etc., R.R. Co., 138 ; vol. ii. 641. Camden & Amboy R.R. Co. v. Briggs, 487, 495, 496, 526, 541. Camden & Atlantic R.R. Co. v. May's Landing, etc., R.R. Co., 604. Camden Rolling Mill Co. v. Swede Iron Co., vol. ii. 597, 609, 614. Came v. Brigham, 232 ; vol. ii. 639, 645. Cameron v. Seaman, 323. Cammeyer v. United German Lutheran Churches, 161, 225. Camp V. Barney, vol. ii. 709. Camp V. Byrne, 210. V. Western Union Tel. Co., 248. Campbell v. Grooms, ^ol. ii. 803. V. Marietta, etc., R.R. Co., 559- V. Morgan, vol. ii. 18S, 213, 804. V. PcuUney, igo. V. Miss. Union Bank, vol. ii. 855, 929. Canada Southern R.R. Co. v. Geb- hard, vol. ii. 175, 638, 941, 952. Canal Co. v. Railroad Co., 130. Canal Trustees v. People, vol. ii. 825. Candargua Academy v. McKecknie, vol. ii. 627. Candee v. Western Union Tel. Co., 248. Cairo & St. Louis R.R. Co. v. Ma- honey, vol. ii. 376. Cape Sable Co.'s Case, 655 ; vol. ii. 178. Cardot v. Barney, vol. ii. 508, 710. Carey v. Cincinnati, etc.. R.R. Co., vol. ii. 598, 637. 640, 911. V. Cleveland & Toledo R.R. Co., 599 ; vol. ii. 477, 488. V. Giles, 450. V. McDougald, 376. Carling, etc.. Case, vol. ii. 128. Carlisle v. Saginaw Valley, etc., R.R. Co., vol. ii. 7, 30, 104. V. Terre Haute, etc., R.R. Co., vol. ii. 56. Carman u. Steubenville, etc., R.R. Co., vol. ii. 439, 504, 595, 638. Carmichael v. Trustees, 93 ; vol. ii. 566. Carolina Bank, ex parte, vol. ii. 715. Carpenter v. Biggs, vol. ii. 383. V. Farnsworth, 382. V. N. Y. & New Plaven R.R. Co., vol. ii. 150, 152. Carr v. Chartiers Coal Co., 465. V. Commercial Bank, vol. ii. 610. V. Le Fevre, vol. ii. 41, io6, 399. V. St. Louis, 465. Carrick v. Lamar, vol. ii. 788. Carrier v. Gordon, vol. ii. 289. Carroll v. Cone, vol. ii. 659. •V. East St. Louis, 549, 550. Carrol v. Green, vol. ii. 176. Carroll v. MuUanphy Savings Bank, 255 ; vol. ii. 185. Carron Iron Co. v. Maclaren,vol. ii. 597; V. Stainton, vol. ii. 597. Carron z/. Arctic Mining Co., vol. ii. 81, 106, no, 116. V. Central R.R. Co., 674, 675. Cartan v. Father Mathew Soc, 241 ; vol. ii. 112, 914. The figures refer to the pages. TABLE OF CASES. XXXV Carter v. Anderson, 240. V. Burley, 398. V. Ford Glass Co., vol. ii. 617. V. Howe Machine Co., vol. ii. 438. 517. 596. Carthage v. First Nat. Bank, vol. ii. 295. Case V. Bank, vol. ii. 181, 185, 223. Case of Dean & Chapter of Anderson, vol. ii. 837. Case of the Royal Bank of India, vol. ii. 132. Case of Taylors of Ipswich, 2i;i. Case of Tay ward & Fulcher, vol. ii. 837. Casey v. Adams, vol. li. 601. V. La Societe, etc., 688; vol. ii. 138. Caskill V. Dudley, vol. ii. 420. Cass V. Citizens' Bank, vol. ii. 138. V. Pittsburg, etc., R.R. Co., vol. ii. 7, 17, 21, 99. Cassin v. Delany, vol. ii. 525. Castle V. Belfast Foundry Co., 446. Catlm V. Eagle Bank, vol. ii. 134, 864, 944- Cayuga Lake R.R. Co. v. Kyle, 164. Cazeaux v. Mali, 396. Centr. Agricultural, etc., Assoc, v. Ala. Gold Life Ins. Co., vol. ii. 423,424. Central Bank v. Empire Stone Dress- ing Co., vol. ii. 368. Cent. Branch, etc , R.R. Co. v. Atch- ison, etc., R.R. Co., 664. Cent. Bridge Co. v. Lowell, vol. ii. 445, 575, 667. Centr. Crosstown R.R. Co. v. Twenty- third St. R.R. Co., vol. ii. 729,904, 908. Cent. Gold Mining Co. v. Piatt, 659. Cent. Manf. Co. v. Hartshorne, vol. ii. 627. Cent. Nat. Banki/.Williston, vol. ii. 205. Centr. Pacific R. R. Co. v. Howard, vol. ii. 278. Central Pacific R.R. Co. v. State Board of Equalization, vol. ii. 332. Central R.R. Co. v, Claghorn, 436. Central R.R. Co. v. Collins, 226. Central R.R. & Banking Co. v. Georgia, 560 ; vol. ii. 354. Cent. R.R. Co. ot Venezuela v. Kisch, vol. ii. 68. Cent. R.R., etc., Co. v. Letcher, vol. ii. 456. Central R.R., etc., Co. v. Papot, vol. ii. 167. Central, etc., Road Co. v. People, vol. ii. 726, 904. Central R.R. Co. v. Ward, vol. ii. 189, 196. Centr. P. R. Co. v. Clemens, vol. ii. 24, 59, 62, 100. Central Turnpike Co. v. Valentine, vol, ii. 27. Centre, etc.. Turnpike Co. v. McCon- aby, 143, 144; vol. ii. 24, 66, 100, 637- Centre T. Co. v. McCurdy, vol. ii. 65. Chadsey z/. McCrary, 114. Chaffee v. Fourth Nat. Bank of N. Y., 542, 543- Chaffe V. Luderling, 498. Chafee v. Rutland R.R. Co., vol. ii. 142, 149, 160. Chaffin V. Cummings, vol. ii. 87. Chamberlain v. Bradley, vol. ii. 649. V. Pacific Wool Growing Co., 614. V. Painesville & Hudson R.R. Co., 200; voU ii. 18. V. Painesville, 614; vol. ii. 22, 24, 102. V. Smith, 639. V. Warburton,vol. ii. 834, Chamberlain's Case, vol. ii. 13. Chamberlin v. Greenleaf, vol. ii. 211. V. Huguenot Manf. Co., vol. ii. 423. V. Mammoth Mining Co., 465. Chambers v. Baptist Education Soc, vol. ii. 669. V. Falkner, 598. V. Lewis, vol. ii. 414. V. St. Louis, 628. Chambersburg Ins. Co. v. Smith, vol. ii. 205, 206. Chapin v. Sullivan R.R. Co., 679. V. Vt. & Mass. R.R. Co., vol. ii, 394. Champion v. Memphis, etc., R.R. Co., vol. ii. 59. Chandler v. Brown, vol. ii. 699, 702, 708. V. Keith, vol. ii. 699, 705. V. Monmouth Bank, 462. V. Siddle, vol. ii. 706. Chapman v. Albany & Schenectady R.R. Co., 669. V. Mad River, Lake Erie, etc., R.R. Cos., 514, 515; vol. ii. 583. V. Milvain, 41. •V. Oshkosh & Miss. R.R. Co., vol. ii. 460. V. Weimer, 660. XXXVl TABLE OF CASES. The figures refer to the pages. Chappell's Case, vol. ii. 184. Charles River Bridge Co. v. Props, of Warren Bridge, 144, 146, 491, 496, 502, 574 ; vol. ii. 637. Charleston v. Branch, 566. Charleston Ins. & Trust Co. v. Sebring, vol. ii. 623. Charlestown Boot & Shoe Co. v. Duns- more, 434. Charlotte Bank v. Charlotte, vol. ii. 54. Charlotte.etcR.R.Co.z/.Blakely.v.ii.s. Charitable Assoc, v. Baldwin, 358. Charitable Corp. v. Sutton, 395, 441. Chartiers R.R. Co. v. Hodgens, vol. ii. 53- Chase V. Bank, vol. ii. 36, 37. V. Blackstone Canal Co., vol. ii. 786. V. East Tenn., etc., R.R. Co., vol. ii. 1 10. V. Lord, vol. ii. 92. V. Merrimack Bank, vol. ii. 419. V. Sycamore, etc., R.R. Co., 165 ; vol. ii. 15, 2Q. 7/. Vanderbilt, 570; vol. ii. 155, 160. Ghater v. San Francisco S. R. Co., vol. ii. 187. Chattahooche Nat. Bank v. Schley, 407. Chattaroi R.R. Co. v. Kinner, 100. Chautauga Co. Bank v. White, 603. Chautauqua Co. Bank v. Risley, 542, 603, 692. Cheany v. Hooser, \ 30. Cheeney vJ Lafayette, etc., R.R. Co., vol. ii. 367. Chegary v. New York, vol. ii. 348. Chelmsford Co. v. Demarest, 326, 339, 340 ; vol. ii. 644. Chemical Nat. Bank v. Kohner, 460. Chenango R.R. Co. v. Braham, 674. Cheney v. Lafayette, etc., R.R. Co., 461. Cheraw, etc., R.R. Co. v. Garland, vol. ii. 96. Cherry v. Frost, vol. ii. 87, 218. Chesapeake & Ohio Canal Co. v. Knapp, 291, 603, 692. Chesapeake & Ohio R.R. Co. v. Miller, ^ 594- Chesapeake & Ohio R.R. Co. v. Paine, vol. ii. 663. Chesapeake, etc., R.R. Co. v. Patton, 672. Chesapeake & Ohio R.R. Co. v. Vir- ginia, 572. Cheshire w.CountyCommrs., vol. ii. 330. Cheshire, etc.. Telephone Co. v. State, vol. ii. 335. Chesley v. Pierce, vol. ii. 221. Chester Glass Co. v. Dewey, 168, 604; vol. ii. 8r, 88, no, 641. Chester v. Halliard, vol. ii. 587. Chestnut Hill v. Rutter, 389. Chetlain v. L. Ins. Co., vol. ii. 61. V. Republic Life Ins. Co., vol. ii. 62, 82, 100. Chew V. Bank of Bait., vol. ii. 190, 191. V. Kech, 304. Chicago Building Soc. v. Crowell, 585, 602, 604. Chicago Life Ins. Co. v. Needles, vol. ii. 254, 329, 662, 726, 890. Chicago, etc., R.R. Co. v. Auditor General, 574; vol. ii. 601. Chicago, etc., R.R. Co. v. Borough of Fort Howard, vol. ii. 254, 325, 662. Chicago, etc., R.R. Co. v. Dickson, vol. ii. 516. V. Crane, vol. ii. 799- V. Fell,v. ii. 595. V. James, 432. V. Iowa, 526. Chicago, etc., R.R. Co. v. Keokuk, etc., Packet Co., vol. ii. 696. Chicago, etc., R.R. Co. v. Lake, 665. V. Moffit, 565. Chicago, etc., R.R. Co.v. Northwestern Union Packet Co., vol. ii. 245. Chicago, etc., R.R. Co. v. People, 525 ; vol. ii. 803. Chicago, etc., Co. v. Putnam, 157. Chicago, etc., R.R. Co. v. Scurr, vol. ii. S4I. W.Smith, 671. Chicago, etc., R.R. Co. v. Springfield, etc., R.R. Co., 678. Chicago, etc., R.R. Co. v. Sweet, vol. ii. 492. Chicago, etc., R.R. Co. v. Williams, 245 ; vol. ii. 595. Chicago, etc., R.R. Co. v. Wilson, 670. Chicago & Alton R.R. Co. u. Shannon, vol. ii. 495, 536. Chicago City R.R. Co. v. People, 2. Chicago & Northwestern R.R. Co. v. Miller, vol. ii. 325. Chicago & Northwestern R.R. Co. v. Williams, vol. ii. 532. Chicago, Rock Island & Pacific R.R. Co. V. Moffit, vol. ii. 45. Chickopee Bank v. Eager, 416. Child V. Hudson's Bay Co., vol. ii. 231, 233, 260. V. New York, etc., R.R. Co., vol. ii. 951. Tke Jigu res refer to the pages. TABLE OF CASES, XXXVU Childs V. Bank of Missouri, vol. ii. 520. V. The Bank, vol. ii. 428. Chilton V. London, etc., R.R. Co., 246 ; vol. ii. 596. Clinton V. The People, 299. Chippendale, ex parte, 608. Chisholm v. Fomy, vol. ii. 45. Chouteau v. Allen, 422. V. Dean, 461. Chouteau Ins. Co. v. Floyd, 397, 438 ; vol. ii. 127. V. Holmes, 203. Chouteau Springs Co. v. Harris, 270 ; vol. ii. 180, 184, 185, 206. Christian Church v. Johnson, 290. Christian Soc. v. Macomber, vol. ii. 636. Christian Union v. Yount, 481, 546, 549, 640 ; vol. ii. 569. Christian University v. Jordan, 326. Christ Church v. Barksdale, 464. V. Phila., 5o6;vol.ii. 360. Christ Church Hospital v. Philadelphia County, 517. Christopher, etc., St. R.R. Co. v. Mayor, vol. ii. 455. Chubb V. Upton, v. ii. 57, 72, 74, 99, 424. Church V. Imperial, etc., Co., 284. V. Sterling, 355, 418, 616. Church of Newark v. Clark, 76. Cicero v. Clifford, vol. ii. 401. Cicotte V. Anciaux, vol. ii. 623, 685. Cincinnati Gas Light Co. v. Avon- dale, 9. Cincinnati Gas Light & Coke Co. v. The State, vol. ii. 334, 615. Cincinnati Mu. Co. v. Rosenthal, 552. Cincinnati, etc., R.R. Co. v. Cole, 138. Cincinnati, etc., R.R. Co. v. Clarkson, vol. ii. 4. Cincinnati, etc., R.R. Co. v. Clinton County, vol. ii. 795. Cincinnati, etc., R.R. Co. v. Danville, etc., R.R. Co., 678. Cincinnati, etc., R.R. .Co. v. Pearce, vol. ii. 86. Citizens' Bank v. Wright, vol. ii. 793. Citizens' Bank of Bait. v. Howell, 405, 416. Citizens' Building Assoc, v. Coriell, vol. ii. 587. Citizens', etc., Ins. Co. v. Lott, vol. ii. IS9- Citizens' Loan Assoc, v. Lyon, vol. ii. 587. Citizens' Mu. Fire Ins. Co. v. Sortwell, 200, 206. Citizens' Nat. Bank v. Elliott, 460, 462 ; vol. ii. 373- Citizens' Savings Assoc, v. Topeka,, vol. ii. 280. City Bank of Columbus v. Bruce, 433. City Bank v. Perkins, 360, 376. City of Chicago v. Hall, vol. ii. 124. City of Clinton v. Cedar Rapids, etc., R.R. Co., 130. City Council v. Dunn, 252. City Council v. Montgomery, etc., Plank R. Co., 144. City Council v. Morehead, 306. City of Bath v. Miller, vol. ii. 265. City of Davenport v. C. R. Q, & P> R.R. Co., vol. ii. 347. City of Dubuque v. 111. Cent. R.R. Co., vol. ii. 347. City Fire Ins. Co. v. Carrugi, vol. ii. 370, 613. City Ins. Co. v. Commercial Bank, 867, 926. City Hotel v. Dickinson, vol. ii. 32, 62, 107, III. City of Lexington v. Butler, vol. ii. 400, 602. City of London v. Van Acre, v. ii. 862. V. Wood, 233 ; V. ii. 600. City of Louisville v. University of Louisville, 70 ; vol. ii. 876. City of Macon v. First Nat. Bank, vol, ii. 297. City of Memphis v. Memphis GayosQ Gas Co., 377, 597. City of Menasha v. Milwaukee & Northern R.R. Co., 573. City of Natchez v. Mallory, 604. City Nat. Bapk v. Paducan, vol. ii. 292, 300. City of Ohio v. Cleveland & Toledo R.R. Co., vol. ii. 158, 159, 166, 169. City of Ottawa v. People, vol. ii. 769, 800, 819. City of Paterson v. Societv, etc., 13a, City Pottery Co. v. Yates, vol. ii. 68a City of Richmond v. Scott, vol. ii. 300, 338. City of San Antonio v. Lane, 513. City of St. Louis v. Russell, loi. Clapp V. Astor, vol. ii. 164. V. City of Burlington, vol. ii. 29A V. Peterson, vol. ii. 45, 124. Clare v. Nat. City Bank, 414. Clarissy v. Metrop. Fire Dept., 91, 94. Clark V. Baker, vol. ii. 522. V. Binninger, vol. ii. 709. V. Continental Improvement Ca, 164, 287. V. Corp. of Washington, 589, XXXVlll TABLE OF CASES. Thejigures refer to the pages. Clark V. Farrington, 580 ; vol. ii. 104, 108. V. Iowa City, vol. ii. 176, 393, 400, 401. V. Janesville, vol. ii. 393. V. Lowell, vol. ii. 246. V. MonongahelaNav. Co., vol. ii. 48, 61, 62, 65, 100. V. People, vol. ii. 759. V. Potter County, vol. ii. 633. V. San Francisco, 422. V. Titcomb, 446. V. Tucket, 252. Clarke v. Gordon, vol. ii. 398. V. Cuckfield Union, 284. V. Hart, vol. ii. 112. V. Hawkins, vol. ii. 708. V. Imperial Gaslight, etc., Co., 203, 306. V. Janesville, vol. ii. 405. V. Lincoln Lumber Co., vol. ii. 128. V. N. J. Steam Nav. Co., vol. ii. 615. V. Phila., etc., R.R. Co., vol. ii. 308. •u. Thomas, vol. ii. 23. V. Woolen Manf. Co., 319. Clarke County v. Paris, etc., T. Co., vol. ii. 35. Clarke Nat. Bank v. Bank of Albion, 451- Clarke School Dist. No. 7, vol. ii. 370. Clarkson v. Clarkson, vol. ii. 171, 172. Class V. Manchester Iron and Steel Co., III. V. Pittsburg, etc., R.R. Co., 166. Clayton v. Casey, vol. ii. 772. V. Gresham, vol. ii. 171. Clearwater v. Meredith, 226, 562, 508, 560, 563. eieghorn -v. N. Y. Cent. & Hudson River R.R. Co., vol. ii. 542. Clem V. Newcastle, etc., R.R. Co., vol. ii. 73- Clement v. Lathrop, 115. Clerk V. Farmers' Woolen Manf. Co., 325- Cleve V. Financial Corp., 207. Cleveland v. Burnhara, vol. ii. 49. Cleveland R.R. Co. v. Curran, vol. ii. 483. Cleveland & Pittsburg R.R. Co. v. Rowan, vol. ii. 534, 535. Cleveland & Pittsburg R.R. Co. v. Spear, 535, 670. Cleveland, etc., R.R. Co. v. Elliott, vol. "■ 457. Cleveland, etc., R.R. Co. v. Erie, vol. ii. 625. V. Jeweit, vol. ii. 681. V. Robbins, v. ii. 90,192. V. Speer, vol. ii. 63. Cleveland v. Stuart, 71. Clews V. Bank of New York, 452. Clinch V. Financial Corp., 201 ; vol. ii. 556, 625. Clinton v. Cedar Rapids & Mo. R.R. Co., vol. ii. 876. Clinton Woolen & Cotton Manf. Co. v^ Morse, 10, 440. Coal & Iron Co., etc. v. Parish, 440. Coal & Iron Co. v. Sherman, 611. Coats V. Donnell, 451 ; vol. ii. 134, 382. Coates V. Mayor, etc., of New York, 238. V. New York, 239, 520. Coburn v. Boston Papier Mache Manf. Co., vol. ii. 867, 868. Cockburn v. Union Bank, vol. ii. 806. Cocheco Nat. Bank v. Haskell, 399. Cochran v. Arnold, vol. ii. 637. V. Perry, 23. V. Toher, vol. ii. 472. Cockerell v. Ancompte, 33. Codd V. Rathbone, 61. Coe V. Brown, 659. V. Columbus, Piqua & Ind. R.R. Co., 588, S92, 593; vol. ii. 250, 662. V. Johnson, 659. V. McBrown, vol. ii. 249. V. Peacock, vol. ii. 256. V. State, vol. ii. 254. Coffey V. Bank, 453. V. Nat. Bank of Missouri, vol. ii. 947- Coffin V. Reynolds, vol. ii. 415. Cogswell V. Bull, vol. ii. 623, 630. Coheco Nat. Bank v. Haskell, 451. Cohen v. Commissioners, vol. ii. 583. "v. Gwynn, vol. ii. 197. Coil V. Pittsburg Female College, vol ii. 74- Coit V. N. C. Gold Amalgamating Co.^ vol. ii. 41, 42. Coite V. Com. Mu. Life Ins. Co., vol ii 316. V. Soc. for Savings, vol. ii. 302. Colchester v. Brooke, vol. ii. 951. V. Goodwin, 250. V. Seaver, v. ii. 934, 950, 95 1 . Cole V. Dyer, vol. n. 751. The Jig-ures refer to the ^ages. TABLE OF CASES. XXXIX Cole V. Goodwin, vol. ii. 477, 4S3. V. Joliet Opera House Co., vol. ii. 15,9s. V. Ryan, vol. ii. 109, 178. Coleman v. Columbia Oil Co., vol. ii. 149, 167. V. Eastern Counties R.R.Co., 510, 581. V. N. Y. & New Haven R.R. Co., vol. ii. 474, 595. V. San Rafael Turnp. Co.,629, 654. V. Second Av. R.R. Co., 6il. V. Spencer, vol. ii. 2, 204. V. West Va. Oil, etc., Co., 449. V. White, vol. ii. 413, 421. Coles V. County of Madison, 100. V. Whitman, vol. ii. 190. College of Phj'sicians v. Salmon, 119. Collins V. Carnegie, 305. V. Chicago, vol. ii. 297. V. Godfrey, vol. ii. 373, 463. V. Sherman, 491, 496. Colorado Cent. R.R. Co. v. MoUandin, vol. ii. 455. Colt V. Brown, vol. ii. 708. V. Ives, 271 ; vol. ii. 204. Columbian Book Co. v. De Golyer, vol. ii. 606, 607. Columbian Ins. Co. v. Wheelwright, vol. ii. 817. Columbus, etc., R.R. Co. v. Powell, 572. Columbus, etc., R.R. Co. v. Skidmore, 569. Combs V. Smith, vol. ii. 709. Combes' Case, 311. Comins v. Bradbury, 672. Commercial Bank v. Chambers, vol. ii. 934- V. Cunningham,47i. V. French, 118,466; vol. ii. 617. V. Hughes, V. ii. 242. V. Kortright, 174, 315; V. ii. 185. V. Lockwood, vol. ii. 951- Commercial Bank of Manchester v. Nolan, 10. Commercial Bank v. State, vol. ii. 724, 752, 764, 892, 935. Com. V. Alger, 519. V. Allegheny Bridge Co., vol. ii. 750. 903- V. Arrison, vol. ii. 738. V. Athearn, vol. ii. 735, 772. V. Atlantic & Gt. Western R.R. Co., 510. Com. V. Bakeman, vol. ii. 639. Bank of Albany v. Canal Commrs., vol. ii. 823, 825. •V. Baroux, vol. ii. 818. Com., etc., R.R. Co. v. Baxter, vol. ii. 22. Com. V. Beamish, 92. V. Berkshire Life Ins. Co., vol. ii. 314. V. Bonsall, 534. V. Boston, vol. ii. 935. V. Boston, etc., R.R. Co., vol. ii. 532- V. Boyntdn, 339. V. Breed, vol. ii. 903. V. Bringhurst, 177. V. Cain, 244; vol. ii. 738. V. Cary Improvement Co., 587 ; vol. ii. 314.. V. Central Passenger R.B., 491. V. Ches. & Ohio Canal Co., vol. ii. 406. V. Clark, vol. ii. 819, 832. V. Cluley, vol. ii. 750. V. Cochituate Bank, 431. V. Commercial Bank, vol. ii. 890, 903- V. Commissioners of Allegheny Co., vol. ii. 815, 829. V. Commrs. of Lancaster, vol. ii. 832, 903. V. Conover, 183. V. Cornish, vol. ii. 585. V. Councils of Pittsburg, vol. ii. 404. V. CuUen, 134, 137, 138, 170, 194, 532 ; vol. ii. 843, 855, 859. V. Del. Canal Co., vol. ii. 668. V. Dearborn, vol. ii. 745, 765. V. Dennison, vol. ii. 769. V. Douglass, vol. ii. 731. V. Eastern R.R. Co., 539; vol. ii. 888. V. Easton Bank, vol. ii. 358. V. Erie & Northeast. R.R. Co., 484, 488, 496. V. Emigrant Industrial Savings Bank, vol. ii. 394. V. Essex Co., 515, 516; vol. ii.879. V. Evans, 523. V. Farmers' Bank, vol. ii. 747. V. Farmers' & Mechanics' Bank, 531 ; vol. ii. 922, 939. V. Fayette Co. R.R. Co., 533. V. Five Cents Savings Bank, vol. ii. 316. V. Fitchburg R.R. Co., 509 ; vol. ii. 730, 901. xl TABLE OF CASES. The figures refer to the pages. Com. V. V. V. "V. V. V. V. V. Fowler, vol. ii. 747. Franklin Ins. Co., vol. ii. 701, 710, 892. German Soc, vol. ii. 546. Gill, 169. Gloucester Ferry Co., vol. ii. 280. Graham, vol. ii. 733. Green, 94. Guardians of the Poor, vol. ii. 549, 831. Hamilton Manf. Co., 525, 587 ; vol. ii. 291, 314. Huston, 133. Intoxicating Liquors, 520. Jones, vol. ii. 758. Lexington, etc., Turnp. Co., vol. ii. 748. Lowell Gas Light Co., vol. ii. 314.' 354- Luscomb, 523. Meeser, vol. ii. 732. Metropolitan R.R. Co., vol. ii. 466. Milton, 549, 551 ; vol. ii. 281. Murray, vol. ii. 738, 745. New Bedford Bridge Co., 515. New England Slate, etc., Co., vol. ii. 314. Patrick Soc, vol. ii. 554. Pennsylvania Beneficial Inst., vol. ii. 557, 808. Perkins, vol. ii. 659. Philanthropic Soc, vol. ii. 555, 831. Phoenix Bank, 12. Phoenix Iron Co., vol. ii. 806. Pike Beneficial Soc, vol. ii. 551, 810. Pittsburg, vol.ii. 7691 815, 822, 826, 829. Pittsburg, etc., R.R. Co., 576, 672; vol. ii. 146, 741, 914. Pottsville Water Co., 503. Proprs. of New Bedford Bridge, vol. ii. 447. Quicksilver Mining Co., vol. ii. 601. Railroad Co., vol. ii. 750. Reading Savings Bank, 431. Reigart, vol. ii. 735. Reitzell, 339. Rosseter, vol. ii. 771. St. Mary's Church, 435. St. Patrick Soc, v. ii. 551, 808. Slifer, vol. ii. 848. Small, vol. ii. 735. Smith, 588, 625 ; v. ii. 247, 735. Com. V. Sprenger, vol. ii. 758. V. Tenth Mass. Turnp. Corp., vol. ii. 752, 924. V. Texas, etc., R.R. Co., vol. ii. 280. V. Trustees, vol. ii. 448. V. Trustees of St. Mary's Church, vol. ii. 790. Com. Union Ass. Co. v. Scammon, 546. Com. V. Union Ins. Co., vol. ii. 100, 747, 749, 904. V. Vt., etc., R.R. Co., vol. ii. 450, 466, 532. V. West, 339. •V. Westchester R.R. Co., 109, 149; vol. ii. 65. V. Wickersham, 190. V. Woelper, 203, 244 ;. vol. ii. 738> 767. V. Woodward, 168. V. Worcester, 252. Com. Exch. Bank v. Cumberland Coal Co., 197, 331, 332. Com. Ins. Co. v. Crane, 464. Com. Bank of Natchez v. State, vol. ii 904. Com. Bank of Pa. v. Union Bank of N. Y., 405. Com., etc.. Bank of Vicksburg v. Slo- comb, vol. ii, 600. Commissioners 7/. Aspin wall, vol. ii. 401. Commrs. of Craven v. Atlantic & N. C. R.R. Co., vol. ii. 406. Commissioners v. Brackenridge, vol; ii. 348. Commissioners, etc. v. Citizens' Nat. Bank, vol. ii. 300, 335. Commissioners v. Detroit, 66. V. Farmers' & Mechan- ics' Nat. Bank, vol. ii. 335- Commrs. v. Gherky, 91. Commrs. on Inland Fisheries v. Hol- yoke Water Power Co., 496. Commrs. of Knox County v. Aspinwall, vol. ii. 363. Commrs. of Hamilton County v. Mi- ghels, vol. ii. 510. Commrs. v. Holyoke Water Power Co., 539. Commissioners of Lagrange v. Rogers, 643. Commrs. of Roads v. McPherson, 91. Commissioners v. Philadelphia, vol. ii. 769. Commissioners v. Ross, 343. Commrs. v. Shields, 155. The figures refer to ike pages ^ TABLE OF CASES. xli Compagnie Francaise, etc. v. Western Union Tel Co., 558. Conant v. Seneca County Bank, vol. ii. 168. V. Van Shaick, vol. ii. 415. Concord Bank w. Bellis, 655. Condut V. Seneca County Bank, vol. ii. 227. Concord v. Mclntire, vol. ii. 635. Cong'. Belli Elohim v. Cent. Presby. Ch. 656. Cong Soc. of Halifax v. Stark, 653. Conkey v. H.art, 531. Conklin v. Bank, vol. ii. 223. V. Furman, vol. ii. 427. V. Second Nat. Bank, 236, 256, 266, 267 ; vol. ii. 232. Conn. Mu. Life Ins. Co. v. Cleveland, etc., R.R. Co., 352, 583. Conn., etc., R.R. Co. v. Bailey, vol. ii. 72, no, 115, 909. Conine v. Junction, etc., R.R. Co., 306. Connor v. Todd, vol. ii. 268, 699. Conover v. Mer. Ins. Co. of Albany, 330. 333- Conrad v. Atlantic Ins. Co., 661. V. Ithaca, vol. ii. 455. V. La Rue, vol. ii. 82. Conro V. Gray, vol. ii. 125, 677, 863. V. Port Henry Iron Co., 119, 368, 438; vol. ii. 678, 681. Conservators of River Tone v. Ash, 1 50. Continental T. Co. v Valentine, v. ii. 93. Contocook Valley R.R. Co. v. Barker, vol. ii. 93. Converse v. Dimock, vol. ii. 679. V. Norwich, etc., Co., 605. Conway v. Taylor, vol. ii. 312. Cooch V. Goodman, 20, 305. Cook V. Berlin Wool Mill Co., 443, 611. V. Burlington, vol. ii. 335. V. Cole, vol. ii. 708. V. College of Physicians, vol. ii. 785. V. Detroit, etc., R.R. Co., 559 ; vol. ii. 681, 951. V. Graham, 299. V. Hager, 575. V. Hannibal, etc., R.R. Co., vol. ii. 376. " V. Kent, vol. ii. 844. V. Sherman, 442, 611. V. State, vol. ii. 352. V. State Nat. Bank, 452. V. Tullis, vol. ii. 385. Cooke V. Nat. Bank of Boston, vol. ii. 602. Cooke V. Orange, vol. ii. 695. V. State Nat. Bank of Boston, 451. Coon V. Syracuse & Utica R.R. Co., vol. ii. 498. Coope V. Eyre, 18. Cooper V. Canal Co., vol. ii. 653. V. Cent. R.R. Co., vol. ii. 457, V. Corbin, vol. ii. 318. V. Curtis, 358 ; vol. ii. 929. V. Dismal Swamp Canal Co., vol. ii. 179, 188, 804. V. N. Y. Cent. & Hudson River R.R. Co., vol. ii. 376. Copley V. Grover & Baker Sewing Ma- chine Co., vol. ii. 438, 440, 596. Copp V. Lamb. 210. Copper Miners' Co. v. Fox, 285. Coquard v. Marshall, 168. Corbett v. Woodward, 209, 423. Corey v. Long, vol. ii. 688, 689, 697. Cork, etc., R.R.Co. v. Paterson, v. ii. 63. Cornell v. Hichens, vol. ii. 104. Corning v. Greene, 41. V. McCullough, vol. ii. 177,413. Cornwall v. Sullivan R.R. Co., 525. Corporation of Weavers in London v. Brown, 250. Corrigan v. Trenton Del. Falls Co., 300. Corry v. Londonderry, etc., R.R. Co., vol. ii. 146. V. Pittsburg, etc., R.R. Co., voL ii. 657. Corst V. Harris, 21. Corwin v. N. Y. & Erie R.R. Co., 525. Cosby V. Owensboro, etc., R.R. Co., vol. ii. 453. CosgTOve V. Ogden, vol. ii. 469. Cosenback v. Salt Springs Nat. Bank, vol. ii. 913. Cottage St. Church v. Kendall, 167. Cotter V. Doty, 252. Cotton V. Miss., etc.. Boom Co., 102, 107. Cotton States Life Ins. Co. v. Ed- wards, 390. Couch V. Rochester German Fire Ins. Co., 350. Coulter V. Robinson, vol. ii. 935. V. Trustees, etc., vol. ii. 634. County of Callaway v. Foster, 539; vol. ii. 55, 284. Crawford v. Pittsburg, etc., R.R. Co., vol. ii. 60. Lackawanna v. First Nat. Bank, vol. ii. 335. Henry v. Nicolay, 572. Rockland v. County of Law- rence, vol. ii. 875. xli TABLE OF CASES. The figures refer to thej^ages. County of Scotland v. Thomas, vol. ii. 84. Wilson V. Nat. Bank, vol. ii. 601. County Commissioners v. Annapolis, etc., R.R. Co., vol. ii. 340. County Commrs. v. Duckett, vol. ii. 501. V. Gibson, vol. ii. 509. Cox V. Bodfish, 37, 40. V. Louisville, etc., R.R. Co., 675. V. Midland Counties R.R. Co., vol. ii. 376. V. Vunderkled, vol. ii. 528. Cox's Case, vol. ii. 132. Coyle V. Bait. & Ohio R.R. Co., 478- Covert V. Rogers, 207 ; vol. ii. 137. Covey V. Pittsburg, etc., R.R. Co., vol. ii. 254, 25S, 662. Covington v. Covington, vol. ii. 443. V. Covington Bridge Co., 515. 530, 576; vol. ii. 156, 246. Covington Draw Bridge Co. v. Shep- herd, II ; vol. ii. 600, 625, 679. Covington, etc.. Bridge Co. v. Mayer, 211. 575. Covington, etc., R.R. Co. v. Bowler, 442, 611 ; vol. ii. 375. Cowardin v. Universal Life Ins. Co., 553- Cowdrey v. Galveston, etc., R.R. Co., vol. ii. 678, 711, 716. Cowell V. Colorado Springs Co., 1 50, 155. 545. 549. 550; vol. ii. 571- V. Springs Co., 481. Cowles V. Cromwell, vol. ii. 25, 178, 220, 416. V. Mercer County, vol. ii. 600. Craig V. First Presb. Church, 177, 180, 190, 218. V. Gregg, vol. ii. 581, 616. ■V. N. Y., etc., R.R. Co., vol. ii. 457. V. Vicksburg, vol. ii. 393, 397. Craker v. Chicago, etc., R.R. Co., vol. ii. 516, 527, 529, 541. Cram v. Bangor House, 622. V. Bangor Proprietary, 374. •Crampton v. Varna R.R. Co., 287. Crandall v. Nevada, vol. ii. 306. Crawford v. North Eastern R.R. Co., vol. ii. 143, 161. V. Longstreet, 293, 654. V. Rohrer, vol. ii. 122. Crawfordsville, etc., R.R. Co. v. Wright, vol. ii. 595. Crear v. Crossly, 668, 669. Crease v. Babcock, 107 ; vol. ii. 421, 884, 929. Crenshaw v. Royburv, vol. ii. 377. Crescent Citv Gaslight Co. v. New Orleans Gaslight Co., 503. Crewer, etc.. Mining Co. v. Willyams, 661. Creyke's Case, vol. ii. 117. Crocker z/. Crane, 112; vol. ii. 103. i*. New London, etc., R.R. Co., vol. ii. 472, 595. V. New York, 672. V. Old South Soc, vol. ii. 809. V. Whitney, 597, 658. Crocker's Case, vol. ii. 125. Crocket v. Young, 450. Cromie v. Louisville Orphan Home Soc, 644. Crommelin v. New York, etc., R.R. Co., vol. ii. 246. Cromwell v. County of Sac, vol. ii. 400. Crook V. Jadis, vol. ii. 402. Cross V. Peach Bottom R.R. Co., 533. V. Phoenix Bank, vol. ii. 226. •V. Pinckneyville M. Co.,vol. ii. 81. V. Sackett, vol. ii. 76. Grossman v. Penrose Ferry Bridge, vol. ii. 64, 75. Crowley v. Genesee Mining Co., 288, 444- V. Panama R.R. Co., 542. Crowshay v. Maule, 24. Croxton's Case, vol. ii. 178. Cruse V. Axtell, 644. Crump V. U. S. Mining Co., 140, 397, 443, 444 ; vol. ii. 67, 620, 909. Crum's Appeal, vol. ii. 385. Cudden v. Estwick, 109, 250. Culbertson -v. Wabash Nav. Co., vol. ii. 601, 624. Culbreth v. Phila., etc., R.R. Co., vol. ii. 245. CuUem V. Latimer, vol. ii. 822, 830. CuUins V. Flagstaff Silver Mining Co., vol. ii. 369. Culver V. Third Nat. Bank, vol. ii. 423- Cumberland, etc.. Canal Corp. v. Port- land, vol. ii. 430. Cumberland v. Portland, vol. ii. 446. Cumberland, etc.. Canal Corp. v. Port- land, vol. ii. 432. Cumberland Coal Co. v. Hoffman Coal Co., vol. ii. 597. Tke figures refer to the pages. TABLE OF CASES. xliii Cumberland Coal Co. v. Parish, 6ii. Cumberland Coal Co. v. Sherman, 418, 422,441,611; vol. ii. 375, 383, 384. Cumberland Valley R.R. Co. v. Mc- Lanahan, 670. Cumings ^/. Sawyer, 161. Cummings v. Merchants' Nat. Bank, vol. ii. 292. V. Nat. Bank, vol. ii. 302, 321. 330- V. Webster, 232, 233. Cunliff V. Manchester, etc., Co., vol. ii. 578. Cunningham v. Ala. Life Ins. & Trust Co., 233, 236, 262 ; vol. ii. 230, 249. Cunningham v. Edgefield, etc., R.R. Co., vol. ii. 71, 74. V. International R.R. Co. vol. ii. 505. V. Pacific R.R. Co., 673. V. Pell, 395 ; vol. ii. 580, 587, 613, 623. V. Vt., etc., R.R. Co., vol. ii. 28, 143, 160. Curien v. Santini, 2 ; vol. ii. 729, 850. Curran v. State, vol. ii. 941. Currie v. Mu. Assoc. Soc, 54, 56, 173. V. White, vol. ii. 146. Currier v. Lebanon Slate Co., vol. ii. 128. V. N. Y., etc., R.R. Co., 191. V. Trustees, 32, 169. Currie's Case, vol. ii. 128. Curry v. Bank of Mobile, 291. V. Scott, 2, 56, 79. V. Woodward, v. ii. 142, 176, 935. Curson v. African Co., vol. ii. 939. Curtiff V. Manchester & Bolton Canal Co., 228. Curtis V. Eastern R.R. Co., vol. ii. 464. V. Harlow, vol. ii. 220. V. Kent Waterworks, 466. V. Leavitt, 52, 319, 353, 490, 583, 659 ; vol. ii. 246, 693. V. McCullough, 549 ; vol. ii. 811, 834. V. Steever, vol. ii. 653, 654. V. Whipple, vol. ii. 280. Curtiss V. Hoyt, vol. ii. 185. Cushing V. Baldwin, vol. ii. 524. Cushman v. Smith, 671. V. Thayer Manf. Co., vol. ii. 190, 192, 203, 217. Custar V. Titusville Gas, etc., Co., vol. ii. 66. Custer V. Tompkins County Bank, 471. Cutting V. Damarel, vol. ii. 168, 693. Dabney v. Bank of South Carolina, vol. ii. 134. Da Costa v. Russian Co., vol. ii. 828. Dacy -v. N. Y. Chemical Manf Co., 360. Dallas V. Atlantic, etc., R.R. Co., vol. ii. 612. Dalton, etc., R.R. Co. v. McDaniel, vol. ii. 176. Dalton V. Southeastern R.R. Co., vol. ii- 535- Dana v. Bank of St. Paul, vol. ii. 381. V. Bank of U. S., vol. ii. 134. V. Brown, 255 ; vol. ii. 222. Danbury, etc., R.R. Co. v. Wilson, 532 ; vol. ii. 7, 59. 81, 98, 100, 117. Dance v. Girdler, 8. Dane v. Bank of U. S., 435. V. Young, 276 ; vol. ii. 872, 931. Danforth v. Penny, 544; vol. ii. 600. V. Phda., etc., R.R. Co., vol. ii. 591. _ V. Schoharie, etc., Co., vol. ii. 593- Daniels v. Hart, vol. ii. 247. V. St. Louis, etc., R.R. Co., 559. Danville Bridge Co. v. Pomeroy, 472. Darby v. Regina, vol. ii. 74f;. D'Arcy v.- Tamar, etc., R. Co., 225. Darst V. Gale, 604, 608; vol. ii. 384. Dart V. Farmers' Bank of Bridgeport, vol. ii. 599. V. Houston, 86 ; vol. ii. 743. Dartmouth College v. Woodward, 2, 4, 55, 64, 85, 130, 235, 499, 500, 501 ; vol. ii. 672, 877. Dashiell v. Atty. Genl., 643. Dater v. Troy Turnpike & R.R. Co., vol. ii. 595. Daughdrill v. Ala. Life Ins. & Trust Co., vol. ii. 27. Dauphin, etc., R.R. Co. v. Kennerly, vol ii. 340. Davenport v. City Bank of Buffalo, vol. ii. 921. V. Dows, vol. ii. 588, 624. V. Peoria, etc.. Fire Ins. Co., 291. Davenport Savings Fund Assoc, v. North Am. Fire Ins. Co., v. ii. 382. Davidson v. Bridgeport, 354. V. New York, 57. V. Railroad Co., vol. ii. 490. V. Rankin, vol. ii. 176. Davidson's Case, vol. ii. 37. Davies v. Hawkins, 135. Davis V. Bank of England, vol. ii. 191, 550, 551- V. Bemis, vol. ii. 516. xliv TABLE OF CASES. The figures refer to ihe^ages* Davis V. Bilsland, vol. ii. 269. V. Branch Bank of Mobile, 367. V. Cook, vol. ii. 604. V. Dumont, vol. ii. 66. V. Duncan, vol. ii. 709. V. E. T. & Ga. R.R. Co., 679. V. Gray, vol. ii. 313. V. N. Y., etc., R.R. Co., v. ii. 456. V. Old Colony R.R. Co., 348, 512, 597, 600, 602; V. Proprietors of JVT acting House in Lowell, vol. ii. 16. V. Rock Creek, etc., Mining Co., 422,447, 611. V. Smith, vol. ii. 242. Day V. Essex County Bank, vol. ii. 598. V. Holmes, vol. ii. 213. V. Newark India Rubber Manf. Co., 105. V. Stetson, 133. Dayton v. Pease, 413 ; vol. ii. 491. V. Wame, 386. Dayton Nat. Bank v. Merchants' Nat. Bank, vol. ii. 181, 190. Dayton, etc., K.R. Co. v. Hatch, vol. ii. 8, 24, 42, 79. Dayton, etc., R.R. Co. v. Lewton, 672. Deaderick v. Wilson, 426. Dean v. Bennett, 201. V. Biggs, vol. ii. 124. V. Davis, 64, 66, 94, 149. V. New Milford, vol. ii. 509. V. Sullivan, 525, 6S0. Dearden v. Townsend, 246. De Bruler v. Ferguson, 646. De Camp v. Alward, 435. V. Miss. & Mo. R.R. Co., vol. ii. 520. Decatur v. Paulding, vol. ii. 788. De Caumont v. Bogert, vol. ii. 203. Decker v. Freeman, 310. De Comeau v. Guild Farm Oil Co., vol. ii. 185, 187. De Cordova v. Galveston, v. ii. 401, 403. Dedham Bank v. Chickering, 139, 336. Dedham Inst, for Savings v. Slack, 456. Deehan v. Johnson, vol. ii. 789. De Grave v. Mayor, etc., of Monmouth, 284. De Groiif v. Am. Linen Thread Co., 585, 604. De Haven v. Kensington Nat. Bank, 453- Deitweiler v. Breckenkamp, vol. ii. 914. Deiacy v. Neuse River Co., v. ii. 560, 808. Deland v. Williams, vol. ii. 174. Delano v. Trustees of Smith Charities, 323. Delaplaine v. Chicago & Northwestern R.R. Co., vol. ii. 461. Delauney v. Strickland, 32. Delaware Division Canal Co. v. Com., vol. ii. 446, 449. Del. & Hudson Canal Co. v. Pa. Coal Co., 345. Delaware, etc., Canal Co. v. Samson, vol. ii. 115. Delaware Railroad Tax Case, vol. ii. 277. 290, 321, 343. 354. 358, 877. Delaware, etc., R.R.Co.z/. Irick,v. ii. 61. Del., etc. R.R. Co. v. Oxford Iron Co., vol. ii. 223, 232. Del. R.R. Co. V. Tharp, 532 ; v. ii. 884. Darning v. Grand Trunk R.R. Co., vol. ii. 381. V. Williams, vol. ii. 203. Den V. Bolton, 162. V. Vraelandt, 304, 305. Denike v. New York, etc., Co., vol. ii. 369, 851, 870, 916. Denmead v. Bank of Baltimore, vol. ii. 269, 662, 666. Denning v. Grand Trunk R.R. Co., vol. ii. 514. Dennis v. Kennedy, 39. Denny v. Hamilton, vol. ii. 142, 653. V. Lyon, vol. ii. 213. V. Manhattan Co., 404. V. New York Cent. R.R. Co., vol. ii. 477. Denton v. Jackson, 91, 109. V. Livingston, vol. ii. 653. Denver, etc., R.R. Co. v. Conway, vol. ii. 484. Depau V. Humphreys, 547. De Peyster v. Am. Fire Ins. Co., voL ii. 150. Dappe V. Railroad Co., vol. ii. 499. Derby Canal Co. v. Wilmot, 319. Derby Turnpike Co. v. Parks, 518. Da Ruyter v. Trustees of St. Peter's Church, 579. Despatch Line of Packets v. Bellamy Manf. Co., 25, 290, 346, 361, 370 ; vol. ii. 389. Daspar v. Continental Water Meter Co., vol. ii. 608. Das Moines Valley R.R. Co. v. Graff, vol. ii. 22. De Soto Bank v. Memphis, vol. ii. 351. Detroit v. Dean, vol. ii. 620. V. Jackson, 328, 332, 375, 377, 379- V. Mu. Gas, etc., Co., 593. Detroit Daily Post Co. v. McArthur, 36, 437, 543- The figures refer to tke pages. TABLE OF CASES. xlv Detroit Savings Bank v. Burrows, vol. ii. 242. Detweiler v. Breckenkamp, vol. ii. 112. Devendorf v. Beardsley, 398 ; v. ii. 694. V. Dickinson, v. ii. 697, 712. De Voser v. Richmond, 66. De Voss V. City of Richmond, vol. ii. 219. 393. 876. Dew V. Judges, etc., vol. ii. 772. Dewey v. St. Albans Trust Co., vol. ii. 91, 868. Dewing V. Perdicaries, vol. ii. 193. Dewitt z/. Hastings, 139. De Witt V. Walton, 387. De Varaigne v. Fox, 664. Dey V. Jersey City, 624. Dezeng v. Beekman, 311. Diamond v. Lawrence County, vol. ii. 396. Dibble v. N. Y. & Erie R.R. Co., voL ii. 533- Dickenson v. Chamber of Commerce, 238. Dickinson v. Cent. Nat. Bank, vol. ii. 205, 209. V. Valpy, 18. Diggle V. London & Blackwell R.R. Co., 282, 286, 593. Diligent Fire Ins. Co. v. Com., 160, 172. Dill V. Wabash Valley R.R. Co., vol. ii. 82, 100. Dillingham v. S'ow, 146. Diman v Providence, etc., R.R. Co., vol. ii. 582. Dimmick v. Brodhead, 672. Dimpfel v. Ohio & Miss. R.R. Co., 564; vol. ii. 618. Dingley v. Boston, 665 ; vol. ii. 937. Dingman v. The People, 498, 524. Directors v. Houston, 67. Divessey v. Smith, vol. ii. 124, 176. Dixon V. Evans, vol. ii. 118. •V. Field, vol. ii. 787. Doane v. Clinton, vol. ii. 269. Dobbins v. Walton, vol. ii. 237. Dobson V. Simonton, vol. ii. 926, 927, 948. Dockery v. Miller, 542. Dodge V. Council Bluffs, 481, 545 ; vol. ii. 568, 569. V. Mmnesota Plastic Slate Roof- ing Co., vol. ii. 425. V. Southwestern R.R. Co., 681. V. Wolsey, 5 14 ; vol. ii. 64, 340, 578, 580, 624. Doe V. Woodman, 136. Dolan V. Del. & Hudson Canal Co., vol. ii. 458. Donadi v. New York, etc., Ins. Co., vol. ii. 610. Donnelly v. People, vol. ii. 724, 749. Donworth v. Coolbaugh, vol. ii. 882. Dooley v. Cheshire Glass Co., 149, 153. V. Wolcott, vol. ii. 637. Dorchester, etc.. Bank v. New England Bank, 416. Doremus v. Dutch Ref. Church, 81, 19s ; vol. ii. 547. Dorman v. Jacksonville, etc., P. R. Co., vol. ii. 61. Dorr V. N. J. Steam Nav. Co., v. ii. 483. Dorris v. Sweeney, vol. ii. 53. Doty V. Mich. Cent. R.R. Co., v. ii. 609. Doud V. Wisconsin, etc., R.R. Co., vol. ii. 580. Dougherty v. Hunter, 334, 445. Douglas V. Bank, 106. V. Meicles, vol. ii. 198. Douglass V. Com., vol. ii. 789. V. Ireland, vol. ii. 42, 426. V. Va. City, 580. Dousman v. Wisconsin, etc., Co., vol. ii. 582. Dow V. Clark, 274. V. Memphis & Little Rock R.R. Co., vol. ii 256. Downer v. BankofZanesville, v. ii. 229. V. Zanesville Bank, 364. Downie v. White, vol. ii. 72. Downing v. Mt. Washington R. Co., 491, 598; vol. ii. 385. V. Marshall, 637, 641, 645. V. Potts, 162, 175, 252; vol. ii. 50, 112, 180. Dows V. Naper, 168. Dowsman v. Wisconsin, etc., Manf. Co., vol. ii. 79. Doyle V. Continental Ins. Co., 481, 551, 552; vol. ii. 280. V. Lord, 676. V. Mizner, loi, 153, 197. V. Peerless Petroleum Co., vol. ii. 916. Drake v. Flewellen, 387. V. Hudson River R.R. Co., 232, 669. Draper v. Stone, vol. ii. 190. DriscoU V. West Bradley, etc., Manf. Co., 259 ; vol. ii. 183, 190, 222, 223. Droitwich Salt Co. v. Curzon, vol. ii. 256. Drury v. Cross, vol. ii. 133. Dubois V. Del. & Hudson Canal Co., 316, 37'. Dubuque Female College v, Dubuque, vol. ii. 385. xlvi TABLE OF CASES. The figures refer ' to ike pages. Dubuque & Minn. R.R. Co. v. Keisel, 119. Ducat V. Chicago, 353, 552 ; v. ii. 280. Duckworth v. Roach, vol. ii. 177. Lucro V. Springs, vol. ii. 937. Dudley V. Jamaica Aqueduct Corp., vol. ii. 322. V. Ky. High School, 215, 622. Duffield V. Banium, etcWorks, v. ii. 72. Duke V. Cahawba Nav. Co., 142, 143, 174 ; vol. ii. 206. DuUam v. Willson, vol. ii. 756. Du Laurans v. First Diiision of St. Paul, etc., R.R., 472, 473. Duncan v. Jandon, vol. ii. 218. Duncarry v. Giil, 439, 624. Duncomb v. N. Y., Housatonic, etc., R.R. Co., 426. Dundalk Western R.R. Co. v. Tapster, 235- Dunham v. Cine, etc., R.R. Co., vol. ii. 250. V. I sett, 660, 66 1. v. Rochester, 249, 661. Dunn V. Hartford & Wethersfield R.R. Co., vol. ii. 429. V. St. Andrews Church, 136, 187, 368 ; vol. ii. 593. Dunnell Manf. Co. v. Inhabs. of Paw- tucket, vol. ii. 354. Dunstcn V. Imperial Gas, etc., Co., 235, 463 ; vol. ii. 373. Durant v. Iowa County, vol. ii. 398. Duranly's Case, vol. ii. 76. Durar ^'. Ins. Co., 351. Durfee v. Old Colony, etc., R.R. Co., 214, 508, 622. Durham v. Daniels, vol. ii. 638. V. Manf., etc., Co., vol. ii. 805. V. Monumental Silver Mining Co., vol. ii. 185, 187. Durkee v. Stringham, vol. ii. 88. Dustin V. Imperial Gas Co., vol. ii. 367. Dutcher zi. Importers', etc., Nat. Bank, vol. ii. 137. Dutchess Cotton Manf. v. Davis, 150; vol. ii. 12, 81, 627, 642. Dutchess, etc., R.R. Co. v. Mabbett, 161 ; vol. ii. 3. Dutton V. Connecticut Bank, vol. ii. 205, 208. Duvergier v. Fellows, 20, 98. Dyckman v. Valiente, 227. Dyer v. Erie R R. Co., vol. ii. 457. V. Grand Trunk R.R. Co., vol. ii. 244. V. Osborne, vol. ii. 290. V. Tuscaloosa Bridge Co., 667. Dyer v. Walker, vol. ii. 729, 909. Dyte V. St. Pancreas Board of Guardi- ans, 284. Eagle V. Charing Cross R.R. Co., 677. Eagle Works v. Churchill, vol. ii. 639. Eakright v. Logansport, etc., R.R. Co., 128 ; vol. li. 6b, 96, 100. Eames 7>. Doris, vol. ii. 124. V. Wheeler, vol. ii. 201. Earp's Appeal, V. ii. 159, 170, 172, 173. East Anglian R.R. Co. v. Eastern Counties R.R. Co., 512, 588. East Boston Ferry Co. v. Boston, vol. ii. 803. East Boston Freight R.R. Co. v. East- ern R.R. Co., vol ii. 247. East Brandywine, etc., R.R. Co. v. Rauck, 674. East Haddam Baptist Church v. Ext. Baptist Soc, 31. East Hartford v. Hartford Bridge Co., vol. ii. 876. East New York, etc., R.R. Co. v. Lightfall, vol. ii. 46. East River Bank v. Hoyt, 478. East Tenn., etc., R.R. Co. v. Evans, 573. East Tenn. & Va. R.R. Co. v. Gam- mon, 217, 623; vol. ii. II. Eastern Archipelago Co. v. Reg., vol. ii. 10 1, 897. Eastern Bridge Co. v. The Country, vol. ii. 289, 359, 525. Eastern Counties R.R. v. Broom, vol. ii. 447- Eastern Counties R.R. Co. v. Hawkes, 600. Eastern Plank Road Co. -v. Vaughan, 141, 252; vol. ii. 38, 97, 100, III. Eastern R.R. Co. -v. Boston & Me. R.R. Co., 529, 644, 678. V. Loring, 340. Eastern Union R.R. Co. v. Cochrane, 342. Eastman v. Amoskeag Manf. Co., vol. ii. 448. Easton Bank v. Com., vol. ii. 342. Eaton V. Aspinwall, 140, 143, 151 ; vol. ii. 57, 424, 637. V. Boston, etc., R.R. Co., 674. Eaton & Hamilton R.R. Co. v. Hunt, 576. Eaton, etc., R.R. Co.z/. Hunt, v. ii. 628. Ebbinghousen v. Worth Club, 34. Eden v. Foster, 235 ; vol. ii. 671. Edgerly v. Emerson, 198, 224. Edgerton v. N. Y. & Harlem R.R. Co., vol. ii. 484. The figures refer to the pages. TABLE OF CASES. x!vii Edinburgh R.R. Co. v. Hobelwhite, vol. ii. 1 1 6. Edwards v. Grand June. R.R. Co., 8 ; vol. ii. 391. V. Kearzey, 531. V. Midland R.R. Co., v. ii. 440. V. Union Bank, vol. ii. 595. Eel River, e-t. ., R.R. Co. v. Field, 666. Eggleston v. Doolittle, 215, 508. Ehle V. Cliittenango Bank, vol. ii. 159. Ehrenzeller v. Union Canal Co., 135. Ehrgott V. Bridge Manf. Co.. v. ii. 392. Ehrman v. Union Cent. Life Ins. Co., 601. E'ckmeyer v. Hat Blocking Machine Co., 349. Eidemiller v. Wyandotte City, 672. Eidman v. Bowman, 437 ; v. ii. 58, 79. Einstein v. Rosenfield, vol. ii. 617,685. Eisfield V. Kenworth, 125. Eldridge v. Smith, 591, 670. Elizabeth City Academy v. Lindsey, 142. Elkins V. Camden & Atlantic R.R. Co., 207 ; vol. ii. 160, 617. EUiason v. Coleman, vol. ii. 745. EUicott V. Warlord, vol. ii. 689. Elliot V. Guerrero, vol. ii. 187. Ellis V. Am. Tel. Co., 248. V. Boston, etc., R.R. Co., vol. ii. 690, 695. V. Essex Merrimac Bridge, vol. ii. 197. V. Kansas, etc., R.R. Co., vol. ii. 444- V. Little, vol. ii. 693. V. Marshall, 130. V. N. Y., Lake Erie, etc., R.R. Co., vol. ii. 498. V. Pulsifer, 372. V. Schmoeck, vol. ii. 127. V. Sheffirld Gas Consumers' Co., vol. ii. 504. Ellison V. Mobile, etc., R.R. Co., voL ii. 15.34.70- V. Schneider, vol. ii. 206, 210. V. Miss. & Ohio R.R. Co., vol ii. 75. Elmer v. Fennel, 365. Elmes V. Ogle, 332. Elmore v. bands, 246. Elwell^/. Dodge, 331, 381. V. Grand St., etc., R.R. Co., vol. ii. 248. V. Shaw, 312. Ely V. Sprague, 433 ; vol. ii. 149, 179. Elysville Manuf. Co. v. Okisko, 328 ; vol. ii. 39. Emerson v. New|?ury, vol. ii. 377. V. Providence Hat Manf. Co., 362. Emerson's Appeal, vol. ii. 678. Emery v. San Francisco Gas Co., vol. ii. 330- Emmet v. Reed, 351. Em mitt V. Springfield, etc., R.R. Co., vol. ii. 24. Emmons v. Providence Hat Manf. Co., 318. Emory v. Evansvjlle, etc., R.R. Co., vol. ii. 627. Empire Transfer Co. v. Blanchard, 348. Endowment Fund v. Satchwell, 104. Entield Toll Bridge Co. v. Conn. River Co., vol. ii. 855, 904, 914. Enfield Toll Bridge Co. v. Hartford & New Haven R.R. Co., 497, 667. England v. Dearborn, vol. ii. 860. English V. New Haven & Northampton Co., 534. Ensley v. Memphis, vol. ii. 339. Ensminger v. People, vol. ii. 724. Enthoven v. Ho)le, vol. ii. 395. Episcopal, etc., Society v. Episcopal Church in Dedham, 117; v. ii. 372. Eppes V. Mississippi, etc., R.R. Co., 138; vol. ii. 96, 104, 114, 643. Erickson v. Nesmith, vol. ii. 421. Ericsson v. Brown, vol. ii. 415. Erie v. Knapp, vol. ii. 664. Erie City v. Schwingle, vol. ii. 509. Erie, etc., P. R. Co. v. Brown, v. ii. 49. Erie & Northeastern R.R. Co. v. Casey, vol. ii. 877, 882, 937. Erie, etc., R.R. Co. v. Owen, vol. ii. 10. Erie 'R.R. Co. v. State, 553 ; vol. ii. 283, 305. Ernst V. Bartle, 139. V. Hudson River R.R. Co., vol. ii. 456. V. Nichols, 435. Ervin v. Oregon R.R. & Nav. Co., 192. Erwin v. Neversink Steamboat Co., vol. ii. 416. Eslava v. Ames Plow Co., vol. ii. 564. Espy V, Bank of Cincinnati, 452. Essex Bridge Co. v. Tuttle, vol. ii. 8r, 97, 106. Essex T. Co. v. Collins, 624 ; vol. ii. 14. Estell V. Knightstown, etc., T. Co., vol. ii. 96, 98. Estes V. Belford, vol. ii. 608. Etting V. Commercial Bank, vol. ii. 516. Eureka Co. v. Bailey Co., 315. European & North Am. R.R. Co. v. Poor, 422, 441, 611 ; vol. ii. 367. xlviii TABLE OF CASES. The figures refer ' to tht fages. Evangelical, etc., HoBie v. Buffalo Hy- draulic Assoc, vol. ii. 657. Evans v. Bailey, 168. V. Brandon, vol. ii. 617. V. Coventry, vol. ii. 148. V. Lee, 306. V. Memphis, etc., R.R. Co., vol. ii. 472. V. Osgood, 200, 205. V. Phila. Club, v.ii. 544, 551,557. V. Smallcombe, 348. V. Trimountain Mat. Fire Ins. Co., vol. ii. 703. V. Wells, 369. Evansville Nat. Bank v. Britton, vol. ii. 292, 318. V. Metrop. Nat. Bank, 255, 266, 268, 318; vol. ii. 223, 232. Evansville, etc., R.R. Co. v. Baum, vol. ii. 516, 595. Evansville, etc., R.R. Co. v. IJunn, vol. ii. 26. Evansville, etc., R.R. Co. v. Evansville, vol. ii. 642. Evansville, etc., R.R. Co. v. Shearer, vol. ii. 15. Evarts v. Killingworth Manf. Co., 194; vol. ii. 859, 864. Evening Journal Assoc, z*. McDermott, vol. ii. 433, 437. Everdell v. Sheboygan, etc., R.R. Co., vol. ii. 663. Everett v. Smith, igo, 218, Everhart v. Pliila., etc., R.R. Co., vol. ii. 62, 220. V. R.R. Co., vol. ii. 59. V. West Chester, etc., R.R. Co., vol. ii. 184. Evertson v. Nat. Bank, vol. ii. 401. V. Nat. Bank of Newport, vol. ii- 399- Ewin V. Oregon R.R. & Nav. Co., vol. ii. 624. Ewing V. Oroville M. Co., vol. ii. 59. V. Robeson, vol. ii. 627. Excelsior Grain Binder Co. v. Stayner, vol. ii. 48, 102. Exchange Bank of Columbus v. Hines, vol. ii. 330. Exchange Bank v. Monteath, 326, 360. Exeter Bank v. Rogers, 339; v. ii. 951. Express Co. v. Kounlze, vol. ii. 484. V. Railroad Co., 541. Fabeus v. Mercantile Bankj 416. Factors' Ins. Co. v. Harbor, 36. Factors', etc., Ins. Co. v. Marine Dry Dock, etc., Co., vol. ii. 89, 192. Fairbanks v. Lamson, 643, 646. Fairfield County Turnp. v. Thorp, vol. ii. 50. Fairfield Savings Bank v. Chase, 468, 473- Falconer z/. Campbell, 6, loi, 130. Fall River, etc., Co. v. Old Colony, etc., R.R. Co., vol. ii. 63. Fanning v. Gregoire, 312, 498. V. Ins. Co., 164; vol. ii. 12, 49. Fargo V. Louisville R.R. Co., 39. V. McVickar, 41. Farmers', etc.. Bank v. Baldwin, 597. Farmers' Bank v. Beaston, vol. ii. 940. Farmers', etc.. Bank v. Butchers', etc.. Bank, vol. ii.- 392, 459- V. Champlain, etc., Co., vol. ii. 216. Farmers' Bank v. Com., vol. ii. 277. Farmers', etc., Nat. Bank v. Dearing, 103 ; vol. ii. 295, 548. Farmers' Bank v. Haight, 295. •V. Iglehart, vol. ii. 236. V. McKee, 474. Farmers', etc.. Bank v. Harrison, 548. V. Payne, 469,471. V. Raymer, vol. ii. 635- V. Ryan, v. ii. 659. V. Troy City Bank, V. ii. 627, 640. V. Wasson, 241, 255; vol. ii. Ill, 180, 200, 223, 225. v. Wyman, vol. ii. 197. Farmers' & Manf. Bank v. Haight, 313. 387- Farmers' & Mechanics' Bank v. Butcn- ers' & Drovers' Bank, 418. Farmers' & Mechanics' B.ink v. Champ. Trans. Co , vol. ii. 475. Farmers' & Mechanics' Bank v. Em- pire Stone Dressinij; Co., 264. Farmers' & Merchants' Bank v. Dow- ney, 439, 611. Farmers' Bank of Md. v. Iglehart, vol. ii. 206, 255. Farmers' Nat. Gold Bank v. Wilson, vol. ii. 213, 215. Farmers' & Merchants' Ins. Co. v, Harrah, 549 ; vol. ii. 2^0. The figures refer to the pages. TABLE OF CASES. xlix Farmers' Mut. Fire Ins. Co. v. Chase, 362 ; vol. ii. 294. Farmers' Loan & Trust Co. v. Clowes, 542, 657. Farmers' Loan, etc., Co. v. Central R.R. Co., vol. ii. 710, 717. Farmers' & Traders' Bank v. Harrison, 600. Farmers' Loan & Trust Co. v. Curtis, vol. ii. 363. Farmers' Loan & Trust Co. v. Hen- drickson, 662; vol. ii. 252, 661. Farmers' Loan Co. v. McKinney, 658. Farmers' Loan & Trust Co. v. Perry, 542 ; vol. ii. 365. Farmers' Loan & Trust Co. v. Stone, 526. Farmington Academy v. Allen, v. ii. 84. Farnham v. Camden, etc., R.R. Co., vol. ii. 483. V. Del. & Hudson Canal Co., vol. ii. 747. Farnsworth v. Wood, vol. ii. 699. Farnum v. Blackstone Canal Corp., 106, 123, 575- Farrar v. Walker, 42, 168. Farrell Foundry 7'. Dart, 471. Farrington v. 'Tennessee, 506 ; vol. ii. 290. 313. 335. 340. 947- Farwell v. Boston & Worcester R.R. Co., 413; vol. ii. 498. V. Hougton Copper Works, 206. Fatman v. Loback, 174; vol. ii. 207. Faulds V. Yates, 191, 214; vol. ii. 199. Fawcet v. Y. & N. M. R.R. Co., 525. Fay V. Gray, vol. ii. 199. V. Noble, 333, 429. V. Parker, vol. ii. 540, 543. Fazakeily v. Wiltshire, 109. Featherstone v. Cooke, vol. ii. 589, 681. Featherstonehaugh v. Lee Moor, etc., Co., vol. ii. 164. Fee V. New Orleans Gaslight Co., 564. Feigel v. Trustees of German M. E. . Soc, 84. Feigley v. Sponeberger, 21. Fellows V. Miner, 643. Fenwick v. East London R.R. Co., vol. ii. 445. Fenton v. Wilson Sewing Machme Co., vol. ii. 429, 438. Ferguson v. Wilson, vol. ii. 190, 625. Ferraria v. Vasconcelles, 82, 84. Fernandez v. Gt. West. Ins. Co., vol. ii. 373- F;ertilizing Co. v. Hyde Park, 113, 484, 495. 496. 523. 665. Ffooks V. Lond. & S. W. R.R. Co., 533 Field V. Cooks, 100, 152. V. Crawford, 274. V. Field, 79, 218; vol. ii. 548. V. N. Y. Cent. R.R. Co., 9. •V. Pierce, vol. ii. 87. Fifth Ward Savings Bank v. First Nat. Bank, 347. Finckle v. Stacey, 18. Fine v. Hornsby, vol. ii. 180, 201. Finely Shoe & Leather Co. v. Kurtz, 437 ; vol. ii. 58. Fillebrown v. Grand Trunk R.R. Co., vol. ii. 483, 484. Finney v. Bennett, vol. ii. 620. Fire Department of N. Y. v. Kip, 123 ; vol. ii. 639. Fire Dept. v. Noble, 553 ; v. ii. 272, 280. Fireman's Ins. Co. ex parte, vo\. ii.187, 804. First Baptist Church v. Schenectady R.R. Co., V. ii. 429, 445, 595, 565. First Baptist Soc. v. Hazen, 654. First Soc. of M. E. Church v. Brown-, ell, 83. First M. E. Church v. Chicago, v. ii. 349. First Meth. Epis. Church v. Filkins, 651. First Nat. Bank v. Almy, vol. ii. 422. V. Bentley, 385. V. Charlotte, 513. V. Christopher, 468. V. County Commis- sioners, V. ii. 400. First Nat. Bank of Omaha v. County of Douglas, vol. ii. 292, 297, 298, 601. First Nat. Bank v. Drake, 348, 464'; vol. ii. 374, 518. V. Exchange Bank, 484. V. Farwell, vol. ii. 317, 321. V. Fricke, 347. First Nat. Bank of Carlisle v. Graham, 407. 453- First Nat. Bank v. Gifford, 168, 446, 611, 614; vol, ii. 214. V. Hartford, etc., Ins. Co., 263. V. Hoch, 444. V. Hogan, 459. V. Hurford, vol. ii. 12, 67, 74, 442. First Nat. Bank of Hartford v. Hart- ford, etc., Ins. Co., vol. ii. 233, 238. First Nat. Bank v. Kimberlands, 444. First Nat. Bank of Rock Island v. Loy- hed, 468. TABLE OF CASES. The figures refer to the pages. First Nat. Bank of Whitehall v. Lamb, 548. First Nat. Bank v. Mason, vol. ii. 243. •a. Meredith, v. ii. 319. V. Ocean Nat. Bank, 407, 408. V. Peterborough, vol. ii. 301. V. Reed, 360, 394 ; vol. ii. 616. V. St. Joseph, V. ii. 298. V. Smith, vol. ii. 292, 299. V. Treasurer, v. ii. 292. V. Waters, vol. ii. 300. First Parish in Sudbury 7/. Stearns, 161. First Parish in Sutton v. Cole, 1 1 5. Pirst Presbyterian Church of Bloom- , field, 120. First Presb. Cong. v. Quackenbush, vol. ii. 92. First Religious Soc. v. Stone, v. ii. 81. Fischer v. Raab, vol. ii. 562. Fiser v. Miss., etc., R.R. Co., vol. ii. 37, 48. Fish V. Chicago, Rock Island & Pacific R.R. Co., vol. ii. 89. •V. Union Pacific R.R. Co., vol. ii. 921, 926. Fisher v. Board of Trade of Chicago, vol. ii. 583. V. Bush, 182, 191 ; vol. ii. 199. V. Essex Bank, 174 ; vol. ii. 205, 208, 215, 219. V. Evansville, etc., R.R. Co., 563, 575 ; vol. ii. 32, 64. V. Miss., etc., R.R. Co., v. ii. 102. V, Murray, 22. V. N. Y. Centr., etc., R.R. Co., 572. V. N. Y. & Hudson River R.R. Co., 566. V, Taylor, vol. ii. 361. Fishkill Savings Inst. v. Nat. Bank of Fishkill, 401 ; vol. ii. 429, 516. "Fisk V. Chicago, etc., R.R. Co., vol. ii. 66, 597. V. Potter, 660. V. Rock Island & Pacific R.R. Co., 550. V. Union Pacific, R.R. Co., vol. ii. 939- Fister v. La Rue, 350. "Fitch V. McDiarmid, vol. ii. 769. Eitchburg R.R. Co. v. Grand Junction R.R. & Depot Co., 539 ; v. ii. 887. Fitzgerald v. Robinson, 83. Flagg V. Lady Bryan Mining Co., 172. Flagg V. Manhattan R.R. Co., 432, 436. V. R.R. Co., vol. ii. 527. Flagg Staff Silver Mining Co. v. Pat- rick, 432. Flanagan v. Gt. Western R.R. Co., 613. Flash V. Conn., vol. ii. 2, 413, 584. Flash T/.Third Avenue R.R.Co.,v. ii. 456. Fleckner v. Bank of U. S., 288, 291, 599, 622 ; vol. ii. 593. Fleming, ex patie, vol. ii. 781. Fleming v. Hector, 28, 32, 33. Fletcher v. Auburn, etc., R.R. Co., voL ii. 451. V. Peck, 499, 500. Fletcher's Case, vol. ii. 112. Fletzall V. Chicago & Alton R.R. Co., vol. ii. 615. V. Kansas City, etc., R.R. Co., vol. ii. 616. Flike V. Albany R.R. Co., vol. ii. 495. Flint V. Aldermen of Boston, v. ii. 292. V. Board of Aldermen, v. ii. 298. V. Boston, vol. ii. 318. V. Clinton Co., 306. Flint, etc., R.R. Co. v. Dewey, 422, 440, 442, 611, 621. Flint V. Pierce, 237, 274. Flint, etc.. Plank R. Co. v. Woodhull, 483; vol. ii. 915. Florida, etc., R.R. Co. v. Pensacola,etc., R.R. Co., vol. ii. 576. Flower v. Pa. R.R. Co., vol. ii. 520. Flynn v. N. A. Life Ins. Co., vol. ii. 616. Fogg V. Griffin, vol. ii. 443, 444. Folger V. Chase, vol. ii. 929. V. Columbian Ins. Co., vol. ii. 849, 867, 872, 904. . Follett V. Field, vol. ii. 679. V. Rose, 298. Foot V. Mayor of Truro, 196. Foote V. Cincinnati, vol. ii. 428, 595. Forbes 7/. Marshall, 115. ■V. Memphis, etc., R.R. Co., 467; vol. ii. 133. Ford ■v. Fitchburg R.R. Co., v. ii. 498. V. Santa Cruz R.R. Co., v. ii. 453. Forsee v. Ala. Gt. Southern R.R. Co., vol. ii. 472. Fort Edward, etc., P. R. Co. v. Payne, vol. ii. 3, 20, 120. Fort Edward, etc., P. R. Co. v. North, vol. ii. 16. Fort Wayne, etc., R.R. Co. v. Mellett, vol. ii. 692. Foss V. Harbottle, 218, 406, 407, 453, 623; vol. ii. 513. Foster v. Essex Bank, 391, 406, 407, 453; voLii. 513. The fibres refer to the pages,, TABLE OF CASES. Foster v. Fowler, vol. li. 269. V. Oxford, etc., R.R. Co., 435. V. Potter, vol. ii. 653. V. Shaw, 306. Fothergill's Case, vol. ii. 49. Fouche V. Brower, 390. Fountaine v. Carmarthen Co., 443. Fountain Ferry T. Co. v. Jewell, vol. ii. loi. Fountain v. Phoenix Ins. Co., v. ii. 931. V. Ravenel, 647. Four Mile Valley R.R. Co. v. Bailey, vol. ii. 82, 105. Fowle V. Alexandria, vol. ii. 596. V. New Haven & Northampton Co., vol. ii. 522. Fowler v. Chichester, vol. ii. 540. Fowler, ex ;parte, vol. ii. 717. V. Scully, 657. V. Shearer, 312. Fox V. Clifton, 18. V. Horah, vol. ii. 934. V. Northern Liberties, vol. ii. 596. V. Union Academy, 6j2. Frailey v. Central Fire Ins. Co., vol. ii. 694. Framework Knitters v. Green, 240. Francis w.N.Y., etc., R.R. Co., v. ii. 203. Franco-Texan Land Co. v. Laigle, 210, 213. Frankford, etc., R.R. Co. v. Phila., vol. ii. 293. Frankfort Bank v. Johnson, 338 ; vol. ii. 951. Franklin Av. Savings Inst. v. Board of Education, u6. Franklin Bank v. Bank of Cooper, 344 ; vol. ii. 644. V. Stevens, 341, 344. V. Steward, vol. ii. 644. Franklin Ben. Assoc, v. Com., v. ii. 809. Franklin Bridge Co. v. Wood, 108. Franklin Fire Ins. Co. v. Hart, 112. Franklin Co. v. Lewiston Inst, for Sav- ings, 600. Franklin Glass Co. v. Alexander, vol. ii. III. V. White, v. ii. 1 10. Franklin Ins. Co. v. Jenkins, 395. . Franklin, etc., Turnp. Co. v. Young, vol. ii. 658. Fraser v. Charleston, vol. ii. 204, 214, 215. Fraylor v. Sonora Mining Co., 465. Frazer v. Seibern, vol. ii. 298, 317, 318, 335- Frazier v. New Orleans Gaslight, etc., Co., 416. Frazier v. Wilcox, vol. ii. 568, 618. Freeh z/. Phila., etc., R.R. Co., vol. ii. 457. Frederick County v. Frederick Farm- ers', etc.. Bank, vol. ii. 298. Frederick v. Groshen, vol. ii. 491, 589. Freeholders v. State Bank, vol. ii. 687. Freeholders of Sussex Co. v. Strader, vol. ii. 512. Free Schools in Andover v. Flint, 237, 274. Freeland v. Pa. Centr. Ins. Co., 596. Freeman v. Machias Water Power & Mill Co., 210, 544. V. Matlock, vol. ii. 19. V. Panama R.R. Co., 102. V. Stine, 442. Freight Tax Case, 587. Fremont Ferry, etc., Co. v. Fuhrman, vol. ii. 59. French v. Dennett, 287, 303. V. Fuller, 404. V. Gifford, vol. ii. 587. V. Lafayette Ins. Co., v. ii. 614. V. Old South Soc, 254. V. Teschemaker, v. ii. 92, 417. Freon v. Carriage Co., vol. ii. 187, 190, 804. Fripp V. Chard R.R. Co., v. ii. (>-]T, 687. Frontin v. Small, 312. Frost V. Domestic Sewing Machine Co., 449. V. Frostburg Coal Co., 129 ; vol. ii. 637. V. Walker, 36. Frothingham v. Barney, vol. ii. 933. Frowd's Case, vol. ii. 71. Fry, In re, 39. Fry V. Lexington, etc., R.R. Co., 165, 513 ; vol. ii. 4, II, 16, 53, 60, 63. Fuggle V. Hobbs, vol. ii. 619. Fugure v. Mu. Soc, 89. Fulgam V. Macon, etc., R.R. Co., vol. ii. 87. Fuller V. Academic School, vol. ii. 557. V. Dame, 620. V. Hooper, 382. V. Plainfield Academic School, vol. ii. 561, 674, 812. V. Van Geesen, 658. Fulton Bank v. N. Y. & Sharon Canal Co., 360, 448, 469, 471 ; V. ii. 631., Fulton Co. V. Miss. & Wab. R.R. Co., 513- Funston v. Chicago, Rock Island &■ Pacific R.R. Co., vol. ii. 457, 525. Furnivall v. Coombes, 386. Fusz V. Spaunhorst, 399. lii TABLE OF CASES. The figures rr/er to the pages. Gable v. Miller, 79. Gaff z/. Flesher, vol. ii. 141, 939. V. Greer, 83. Gage V. Newmarket, vol. ii. 385, 598. Gaines v. Coates, 491. Galbraith v. BuUding Assoc, vol. ii. 185. Gale V. Nixon, 316. Galena v. Amy, vol. ii. 815. Galena & Chicago Union R.R. Co. v. Appleby, 526. Galena v. Corwith, 582. Gallego V. Atty. Genl, 643. Gallery v. Nat. Exchange Bank, 611. Gall way t/. Mathew, 21. Gal way 7/. U. S. Steam Sugar, etc., Co., vol. ii. 677. Galvenstine's Appeal, vol. ii. 685. Galveston City Co. v. Sibley, vol. ii. 90. Galveston R.R. Co. v. Cowdrey, 212, 481 ; vol. ii. 255, 263. Ganga Iron Co. v. Dawson, vol. ii. 568. Garden Gully United Quartz Mining Co. V. McLister, vol. ii. 113. Gardner v. Bennett, 414. V. Board of Health ofN.Y.,28. V. Butler, 611, 615 ; v. ii. 373. V. Hamilton Ins. Co., 131, 564. V. Hope Ins, Co., v. ii. 91, 92. V. Newburgh, vol. ii. 576. V. State, vol. ii. 313, 352. Gardiner v. Mu. Ins. Co., 244. Garland v. Reynolds, 466. Garling v. Baechtel, vol. ii. 424. Garlinghouse v. Jacobs, vol. ii. 595. Garnett v. Richardson, 100. Garrett v. Dillsburg, etc., R.R. Co., vol. ii. 9, 1 5, 59. Garrison v. Combs, 293. V. Howe, vol. ii. 131, 414. Garvey v. Colcock, 293. Gas Co. V. San Francisco, 605 ; vol. ii. 876. Gashwiler v. Willis, vol. ii. 383. Gas Light Improvement Co. v. Terrell, 620. Gasway v. Atlantic & West Point R.R. Co., vol. ii. 540, Gates V. Boston & N. Y. Air Line R.R. Co., vol. ii. 951. ^ Gay V. Portland Bank, vol. ii. 58. Gaylord v. Fort Wayne, etc, R.R. Co., vol. ii. 729, 916. Gear v. R.R. Co., 674. Geer v. School Dist. of, Richmond, vol. ii. 581. Gelpeke v. Dubuque, vol.ji. 398, 399, 363- Genesee District v. McDonald, 202. Genl., Ins. Co. v. U. Ins. Co., 471. Georgia, etc. Life Ins. Co. v. Gibson, 161. Georgia R.R. Co. v. Smith, 521. German Evangelical, etc., Cong. v. Pressler, 233, 651. German Nat. Bank v. Kimball, vol. ii. 321. German Ref. Church v. Com., v. ii. 764. German Ref. Ch. v. Sibert, 84 ; vol. ii. 559- German Security Bank v. Jefferson, vol. ii. 237. German Union Assoc, v. Sendmeyer, vol. ii. 187. Germania Building & Loan Assoc, v. Wagner, vol. ii. 269. Germantown Farmers' Mut. Ins. Co. V. Dhein, 6oo ; vol. ii. 372. Germantown Passenger R.R. Co. v. Filler, vol. ii. iii, 112, 114. Geyer z/. Western Ins. Co., 255, 263; vol. ii. 200, 233, 236. Ghent v. Adams, 370. Gianna v. Second Avenue R.R. Co., vol. ii. 484. Gibbert's Case, vol. ii. 180. Gibbons v. Mainwaring, vol. ii. 678. V. Ogden, 514, 541. Gibbs V. Commissioners, vol. ii. 786. V. Queen Ins. Co., vol. ii. 608. Giblin v. McMullin, 407. Gibson v. Armstrong, 85. V. Barton, 207. V. Columbia, etc., T. B. Co., vol. ii. 40, 41. V. Columbia, etc., R.R. Co., vol. ii. loi. V. Pacific R.R. Co., vol. ii. 492, 496. Gifford V. N. J. R.R. Co., 8, 215, 230, 532, 622 ; vol. ii. 578. V. Thompson, vol. ii. 167, 172. Gilbert v. Iron Manf. Co., vol. ii. 209. V. Manchester Manf. Co., 162, 174, 277 ; vol. ii. 306, 232. V. Nantucket Bank, vol. ii. 634. Gilbert's Case, 241. Gildart v. Gladstone, 495. Giles V. Hutt, vol. ii. n6. Gilfillan v. Union Canal Co., vol. ii 175. 177. Gill V. Balis, 438 ; vol. ii. 58, 128. V. Cubitt, vol. ii. 402. V. Ky., etc.. Mining Co., 549. Gaienwater v. Madison, etc., R.R. Co 410, 412. Tke figures refer to the pages. TABLE OF CASES, liii Gillespie v. Wood, vol. ii. 779. Gillet V. Fairchild, vol. ii. 705, 708. V. Moody, vol. ii. 704. Gillett V. Campbell, 331. V. Missouri Valley R.R. Co., vol. "• 439. 539. 540. Gillis V. Bailey, 364, 389. 430. V. Pa. R.R. Co., vol. ii. 503. Gillshannon v. Stony Brook R.R. Corp., vol. ii. 499. Gilman v. Bassett, vol. ii. 769, 813. Gilman, Clinton, etc., R.R. Co. v. Kelly, 615. Gilman v. Eastern R.R. Corp., vol. ii. 496. V. Hamilton, vol. ii. 674. Gilman, etc., R.R. Co. v. Kelly, 352, 359, 422, 439, 442; V. ii. 375, 384. Gilman v. Sheboygan, vol. ii. 272. V. Sheboygan, etc., R.R. Co., 559; vol. ii. 951. Gilmer v. Lime Point, 665, 670. Gilmore v. Pope, vol. ii. 90, 107. Gilpin V. Howell, vol. ii. 21 1. Gilroy v. Com., vol. ii. 747. Gilson V. Gwinn, vol. ii. 246. Gindrat v. Dane, 395. Girard v. Phila., 119, 49S; vol. ii. 874. Girard Point Storage Co. v. Southwark Foundry, vol. ii. 655. Given v. Wright, 594. Glahn v. Harris, vol. ii. 423. V. Latimer, vol. ii. 423. Glaise v. South Carolina R.R. Co., 106 ; vol. ii. 283. Glass V. Tipton, etc.. Turnpike Co., 1 14. V. Wilhite, 643. Glass Co. V. City of Boston, vol. ii. 284. Glassholm v. Barker, vol. ii. 465. Glazie v. So. Car. R.R. Co., 553. Glendale Soc. v. Brown, 32. Glenn v. Dorsheimer, vol. ii. 175. V. Semple, vol. ii. 127, 175. V. Williams, vol. ii. 96, 176. Glens Falls Ins. Co-z/. Judge of Jackson Ct., 552. Glidden v. Unity, vol. u. 643. Gloucester Bank v. Salem Bank, 456. Goddard v. Grand Trunk R.R. Co., vol. ii. 529, 530, 538. V. Smithett, vol. ii. 728, 746, 748, 751- Godin V. Cincinnati, etc.. Canal Co., 436. Godmanchester v. Phillips, 223. GofF v. Gt. Northern R.R. Co., 403 ; vol. ii. 410. Gold Mining Co. v. Nat. Bank, 604. Gold, etc.. Mining Co. v. Ruble, vol. ii. 149. Goldey v. Pa. R.R. Co., vol. ii. 514. Goldsmith v. Sachs, 18. V. Swift, vol. ii. 142. Gooch V. Assoc, for the Reliff of Aged & Indigent Females, 88. V. Gregory, vol. ii. 659. V. McGee, vol. ii. 655. Gooday v. Colchester & Stone Valley R.R. Co., 359; vol. ii. 391. Goodell V. New England Mut. Fire Ins. Co., 466. Goodell Manf. Co. v. Trask, v. ii. 285. Good Hope Co. v. Railroad Barb Fenc- ing Co., vol. ii. 609. Goodin v. Cincinnati, etc.. Canal Co., 191, 611, 672. V. Evans, 137. Goodloe v. Cincinnati, 400. V. Godley, 473. Goodman v. Harvey, vol. ii. 402. Goodnow V. Coramrs. of Ramsey County, 90. Goodrich v. Burbank, vol. ii. 658. V. Reynolds, vol. ii. 74. Goodsell V. Hartford & New Haven R.R. Co., vol. ii. 534. Goodspeed v. East Haddam Bank, 56, 402 ; vol. ii. 438, 439, 565, 596. Goodwin v. Hardy, v. ii. 155, 163, 167. V. Union Screw Co., 328, 624 ; vol. ii. 380. V. U. S. Ins. Co., vol. ii. 646. Goody z/. Colchester, etc., Co., v. ii. 385. Goodyear v. Phelps, vol. ii. 626. Goolsby, ex parte, vol. ii. 788. Gordon v. Appeal Tax Court, vol. ii. 312, 340. V. Mayor, etc., of Baltimore, vol. ii. 335. V. Preston, 309, 315, 318, 347, 658 ; vol. ii. 247, 385. V. Richmond, etc., R.R. Co., vol. ii. 142, 146, 160. V. Winchester Building Assoc, 99. 506- Gorgas Appeal, vol. ii. 300. Gorgas v. Blackburn, vol. ii. 829. Gorgier v. Mieville, vol. ii. 396. Gorman v. Pacific R.R. Co., 525. Gorton v. Erie R.R. Co., vol. ii. 456. Goshen T. Co. v. Hustin, vol. ii. 103. Goshen & Sharon Turnpike Co. v. Sears, 130. Goshorn v. Supervisors, 492, 575. Goss V. Hampton,- vol. ii. 199. V. Phillips, vol. ii. 653. liv TABLE OF CASES. The figures refer io the pages. Gott V. Dinsmore, 39. Gould V. Hill, vol. ii. 483. V. Hudson River R.R. Co., vol. ii. 460. V. Oneonta, 605. V. Sub-district, etc., vol. ii. 628. Gpulding V. Clark, 198, 205, 206. Goundie v. Northampton Water Co., 631. Gove v. Epping, 463. Governor v. Allen, 60. V. Gridley, 65, 92. Gowen Marble Co. w.Tarrant, 291, 624 ; vol. ii. 362, 376. Gowen v. Penobscot R.R. Co., 531 ; vol. ii. 881. Gowen's Case, vol. ii. 118. Graff V. Pittsburg, etc., R.R. Co., vol. ii. 52, 71, 100. Graham v. Columbus, etc., R.R. Co., 672. V. Connersville, etc., R.R. Co., 672. V. Railroad Co., v. ii. 840, 943. V. Springfield, 159. V. Van Dieman's Land Co., 207. Gram v. Prussia, 78. Grand Gulf Bank v. Archer, 10, 142 ; vol. ii. 923. V. JefFers, v. ii. 926. Grand Gulf R.R., etc., Co. v. State, vol. ii. 730. Grand Rapids Bridge Co. v. Prange, vol ii. 861, 863. Grand Rapids, etc., R.R. Co. v. Alley, 671. Grand Rapids, etc., R.R. Co. v. Grand Rapids, etc., R.R. Co., 678. Grand Rapids, etc., R.R. Co. v. Heisel, vol. ii. 455. Granger v. Original Empire Mill, etc., Co., 207. V. Pulaski County, 90. Granger, etc., Co. v. Vinson, v. ii. 37. Granier v. Bassett, vol. ii. 142, 163, 165. Grant v. Fancher, 92. V. Lewis R.R. Co., vol. ii. 578. V. Mechanics' Bank, 269; vol. ii. 183, 226, 233. V. Taylor, vol. ii. 241. Grape Sugar, etc., Manf Co. v. Small, 352 ; vol. ii. 380, 389. Gratz V. Read, 363, 395 ; v. ii. 115, 148. Graves v. Dudley, vol. ii. 242. V. Gouge, vol. ii. 623. Graw V. Memphis, etc., R.R. Co., vol. ii. 653. Graws v. Maine, etc.R.R.Co., v. ii. 457. Gray v. Coffin, vol. ii. 413, 414. V. First Division of St. Paul, etc., R.R. Co., 675. V. Lewis, vol. ii. 580, 704. V. Monongahela Nav. Co., vol. ii. 62, 98. V. N. Y. & Va. Steamship Co., 422. V. Portland Bank, 165; vol. ii. 79, 593- V. Turnpike Co., 203 ; vol. ii. 639, 648. Grayville & Mattoon R.R^ Co. v. Burns, 478. Grayville, etc., R.R. Co. v. Burns, 432. Great Falls, etc., R.R. Co. v. Copp, vol. ii. 90. Gt. Luxembourg R.R. Co. v. Magnay, 439. 440. 614. Gt. Northern R. R. Co. v. Eastern Coun* ties R.R. Co., 588. Gt. Northern R.R. Co. v. Manchester, etc., R.R. Co., 287. G. T. R. Co. V. Cook, vol. ii. 53. Gt. Western R.R. Co. v. Goodman, 274. V. Miller, v. ii. 543- Greaves v. Gouge, vol. ii. 617. Greely v. Smith, vol. ii. 633, 927. Green v. African Meth. Epis. Soc, vol. ii. 554, 829. V. Allen, 647. V. Beckman, vol. ii. 91. V. Biddle, 499. V. Graves, 108. V. Hudson River R.R. Co., vol. ii. 465. V. London Genl. Omnibus Co., vol. ii. 442, 520. V. Merchants' Ins. Co., 469. V. Rutherforth, 235, 642 ; vol. ii. 674. V. Seymour, 130, 131, 597; vol. ii. 848. V. Walkill Nat. Bank, vol. ii. 867, 919. Grjcn Bay & Minn. R.R. Co. v. Union Steamboat Co., 113. Green v. Cady, 651. Green County v. Conness, 564. Green Mt., etc., T. Co. v. Bulla, vol. ii. 188, 211, 804. Greene v. Dennis, 148, 649. Greenlow v. King, 419. Greenwood v. Freight Co., 666 ; vol. ii. 617,878. V. Seymour, vol. ii. 470. The figures refer to the pages. TABLE OF CASES. ly Greenwood's Case, 37. Greenville, etc., R.R. Co. v. Coleman, 175- Greenville, etc., R.R. Co. v. Johnson, 153- Greenville, etc., R.R. Co. v. Smith, vol. ii. 70. Greenville, etc., R.R. Co. v. Woodsides, vol. ii. 103. Greer v. Chartiers R.R. Co., vol. ii. 51. Gregg V. Mass. Medical Soc, v. ii. 553. Gregory v. Dubois, 162. V. Patchett, vol. ii. 852. V. Shelby College, 29, iii, 499. Gridley v. Barnes, vol. ii. 124, 176. Griffin v. Inman, Swan & Co., 435. V. Ky. Ins. Co., 536, 537. Griffith V. Mangam, vol. ii. 421, V. State, 641, 646. V. Wells, 598. Grimes v. Harmon, 84, 646. Grindley v. Barker, 435. Grinnell v. Western Union Tel. Co., 247. Grisewood's Case, vol. ii. 76. Griswold v. Haven, 397. V. Peoria University, v. ii. 81. V. Seligman, vol. ii. 36. Grocers' Bank v. Kingman, 340. Grocers' Nat. Bank v. Clark, v. ii. 947. Groesbeck v. Dunscomb, 162. Grose Isle Hotel Co. v. L' Anson.v. ii.50. Grosse Isle Hotel Co. v. Pawson, vol. ii- 93- Grosvenor v. United Soc. of Believers, 83- Grotenkemper v. Harris, v. ii. 533, 535. Grubb V. Mahoning Nav. Co., v. ii. 98. Grubbs v. Vicksburg, etc., R.R. Co., vol. ii. 97. Grund v. Van Vleck, vol. ii. 540. Grymes v. Howe, vol. ii. 203, 206. Guardians of Stokely Unions/. Strother, 345- Gue V. Tide Water Canal Co., 588 ; vol. ii. 651. Guild V. Parker, 422, 441, 611. Guiner v. Marblehead Soc. Ins. Co., vol. ii. 180. Gumz V. Chicago, etc., R.R. Co., 413. Gundlack v. Germania Mechanics' As- soc, 88. Gunmakers v. Fell, 249. Gunn V. Cent. R.R. Co., 541, 600. Guthrie v. Imbrie, 296. Habersham v. Savannah, etc., Canal Co., vol. ii. 800. Habricht v. Pemberton, 39. Hackensack Water Co. v. De Kay, 346. Hackford v. N. Y., etc., R.R. Co., vol. ii. 456. Hackney v. Alleghany County Mu. Ins. Co., 470. Hadley v. Peabody, vol. ii. 664. V. Russell, vol. ii. 421. Hagan v. Prov. & Wore. R.R. Co., vol. ii. 541. Hagar v. Cleveland, vol. ii. 23, 641, 647. V. Union Nat. Bank, 255 ; vol. ii. 177, 223. Hagerman v. Empire State Co., vol. ii. 611. Hagerstown Co. v. Creeger, 115, 143. Hahnemannian Life Ins. Co. v. Beebe, vol. ii. 628. Haight V. Morris Aqueduct, vol. ii. 631. V. Sahler, 316, 371, 375; vol. ii. 594- Haldeman v. Pennsylvania R.R. Co., vol. ii. 937. Hale V. Bridge Co., 611. V. Everett, 79. V. Mut. Ins. Co., 235. V. Rawalie, 453. V. Republican River Bridge Co., vol. ii. 155. Halfrich v. Williams, vol. ii. 516. Hall V. Auburn Turnpike Co., 421. V. Grossman, vol. ii. 783. V. Mobile & Montgomery R.R. Co., 475. V. Sullivan R.R. Co., 588, 592. V. Union Ins. Co., vol. ii. 206. V. U. S. Ins. Co., 270; vol. ii. 97, 103, 109, 176, 220, 233, 238. Hall Manf. Co. v. Am. R.R. Supply Co., vol. ii. 372, 609. Hallam v. Indianola Hotel Co., 425. , Hallett V. narrower, 61. Hallows V. Fernie, vol. ii. 74. Halsey v. Ackerman, vol. ii. 617. Ham V. Toledo, etc., R.R. Co., vol. ii. 775. 784. Hambleton v. Cent. Ohio R.R. Co., vol. ii. 195, 218. Hamblett v. Bennett, 653. Hamilton v. Annapolis R.R. Co., vol. ii. 909. V. Cent. Ohio, etc., R.R. Co., vol. ii. 191. V. Granger's Life, etc., Ins. Co., vol. ii. 76. V. Keith, 499. V. Third Av. R.R. Co., vol. ii. 531, 540. Ivi TABLE OF CASES. The figures re/tr to the pages. Hamilton County v. Cincinnati, etc., Turnpike Co., 401. Hamilton Co. v. Massachusetts, vol. ii. 3'4- Hamilton County v. Mighels, 66. Hamilton & Deansville Plank R. Co. v. Rice, 167. Hamilton, etc.. Hydraulic Co. v. C. H. & D. R.R. Co., 606. Hamilton Mu. Ins. Co. v. Hobart, 161, 564 ; vol. ii. 55. Hamilton, etc.. Plank R. Co. v. Rice, 165 ; vol. ii. 6, 12, 93, 216. Hammond v. Port Royal, etc., R.R. Co., vol. ii. 951. V. Shepard, 115, 116, 118. V. Strauss, 134. Hampshire v. Franklin, vol. ii. 875. Handy v. Draper, vol. ii. 176. Hann v. Mulberry Gravel Road Co., vol ii. 95. Hannat/. Cincinnati, etc., R.R. Co., 564. V. International Petroleum Co., 156, 157, 555- Hannemannian Ins. Co. v. Beebe, vol. ii. 567. Hannibal & St. Joseph R.R. Co. v. Marion County, 90. Hannibal, etc., P. R. Co. v. Menefee, vol, ii. 62. Hannibal, etc., R.R. Co. v. Muder, 670. Hannon v. County of St. Louis, vol. ii. 512. Hanover Junction, etc., R.R. Co. v. Grubb, vol. ii. 1 00. Hanover Junction, etc., R.R. Co. v. Haldeman, vol. ii. 14, 84. Hanover Water Company v. Ashland Iron Co., 4S0. Hanson v. Dexter, 357. V. European & North Am. R.R. Co., vol. ii. 473. V. Vernon, vol. ii. 271. Hardcastle v. Md., etc., R.R. Co., vol. ii- 775. 833- Hardenburgh v. Farmers' & Mechan- ics' Bank, 172, 204. Hardesty v. Pyle, vol. ii. 256. Harding v. Stamford Water Power Co., 675. V. Townshend, vol. ii. 527. Hardon v. Newton, vol. ii. 679, 851. Hardy v. Chesapeake Bank, v. ii. 242. V, Merriweatlier, vol. ii. 13, 6i, 75. 636. V. Waltham, vol. ii. 343. Hare v. London & Northwestern R.R. Co., vol. ii. 625. Harger v. McCuUough, vol. ii. 413. Hargrave v. Bank , of Illinois, vol. ii. 636, 642. Harlem Presbyterian Church v. Mayor, vol. ii. 273. Harlem Canal Co. v. Seixas, v. ii. 1 1, 98. Harlem R.R. Co. v. Ketchum, 460. Harman's Case, 556. Harmon v. Dreher, 84. V. Page, vol. ii. 175. Harmstead v. Washington Fire Co., vol. ii. 562. Harpending v. Dutch Church, 632. V. Munson, vol. ii. 951. Harper v. Indianapolis & St. Louis R.R. Co., vol. ii. 492, 496. V. Straw, vol. ii. 670. Harrington v. Liston, 197. V. Tennessee, 499. V. Workingmen's Benev- olent Assoc, 233. Harris v. Am. Bible Soc, 639. V. Miss. Valley, etc , R.R. Co., 195 ; vol. ii. 857, 864, 892, 903- V. Muskingum Manf. Co., vol. ii. 85s, 863. •V. North Devon R.R. Co., 611, 620. V. Norvell, vol. ii. 415. V. San Francisco Sugar Refin- ing Co., vol. ii. 166. V. School District, 93. V. Stevens, vol. ii. 167. V. Thompson, 579. V. Wakeman, 250. Harrisburg Bank -v. Com., vol. ii. 277. V. Tyler, 480. Harrison v. Brown, 41. V. Mexican R.R. Co., vol. ii. 154. 156. V. Missouri Pacific R.R. Co., 375- V. Tiimmins, 90. Harshman v. Bates Co., 570. Hascall v. Life Assoc, of Am., vol. ii. 379- Haskell v. Oak, vol. ii. 82, 414. Haslett V. Witherspoon, 130. Hasson v. Oil Creek, etc., R.R. Co., 273, 680. Hastings 2/. Blue Hill Turnp. Corp., 194. V. B. & M. R.R. Co., 680. V. Drew, vol. ii. 148, 425, 939. Hart V. Boston, Hartford, & Erie R.R. Co., 576 ; vol. ii. 96. V. Lauman, vol. ii. 109. V. Mayor, etc., of Albany, 252. The figures refer to the pages. TABLE OF CASES. Ivii Hart V. Rensselaer, etc., R.R. Co., vol. ii. 476, 488. V. St. Charles St. R.R. Co., vol. ii. 79. 166. V. Stone, 333. Hartford Bank v. Hart, 478. Hartford v. Boston, Hartford & Erie R.R. Co., vol. ii. 899. Hartford, etc., R.R. Co. v. Boorman, vol. ii. 106, 109, 216, 220. Hartford & New Haven R.R. Co. v. Croswell, 226, 508 ; vol. ii. 52, 53, 59, 60, 584. Hartford, etc., R.R. Co. v. Kennedy, vol. ii. 81, 106, 115. Hartridge v. Rockwell, 424, 425. Harts V. Brown, 424, 427, 621. Hartwell v. Armstrong, 665. Harvard College v. Boston, 632. Harvester Works v. Libby, vol. ii. 109, 340. Harwood v. Humes, 384. V. Marshall, vol. ii. 811, 827, 832, 834. Hassoll V. Long, 340. Hasson v. City of Rochester, v. ii. 340. v. Oil Creek, etc., R.R. Co., 679. Hatch V. Barr, 304. V. Cincinnati, etc., R.R. Co., 678. V. Coddington, vol. ii. 246. V. Dana, vol. ii. 96, 122, 176. V. Dickinson, vol. ii. 51. Hatcher v. Toledo, etc., Co., vol. ii. 652, 6S3- Hauser v. Tate, 476. Havemeyer v. Havemeyer, 191. Haven v. Adams, 309. V. Emery, vol. ii. 250. V. Grand June. R.R. Co., vol. ii. 393, 403, 404. V. N. H. Asylum, 324 ; v. ii. 647. Havens v. Erie R.R. Co., vol. ii. 456. Hawes v. Anglo-Saxon Petroleum Co., 158. V. Knowles, vol. ii. 516. ■ V. Oakland, vol. ii. 620, 621. Hawkins v. Mansfield Gold IVIining Co., vol. ii. 8. V. Maltby, vol ii. 221. V. Miss., etc., R.R. Co., vol. ii. 60, 62. V. New Orleans Printing, etc., Co., vol. ii. 434. Hawley v. Brumagin, vol. ii. 86. V. Cramer, 419. V. Upton, 168 ; V. ii. 49, 71, 88. Hawley's Case, vol. ii. 546. Hawthorne v, Calef, vol. ii. 417. Hay V. Cohoes, 400 ; vol. ii. 504, 595. Hayden v. Atlantic Cotton Factory, vol. ii. 41, 72. V. Middlesex Turnp. Corp:, 348, 430 ; vol. li. 593, 594. V. Noyes, 251. V. Smithfield Manf. Co., vol. ii. 492. V. Stoughton, 646. Hayes v. Gallon Gas Co., 605. Haynes v. Brown, vol. ii. 87, 645, 647. V. Covington, 601. V. Hunnewell, 384. Hays V. Com., 184. ex parte, vol. ii. 785. V. Houston, etc., R.R. Co., vol. ii. 429, 470, 541. V. Lycoming Fire Ins. Co., vol. ii. 663. V. Northwestern Bank, v. ii. 638, V. Ottawa, etc., R.R. Co., 168, 588. V. Pittsburg, etc., R.R. Co., vol. ii. 52. Hayward v. Davidson, 627, 654. V. Pilgrim Soc, 357. Haywood v. Lincoln Lumber Co., 443 ; vol. ii. 944. Haywood, etc., P. R. Co. v. Bryan, vol. ii. loi, 105. Hazard v. Durant, 348 ; vol. ii. 630. Hazen v. Boston, etc., R.R. Co., vol. ii. 596. V. Union Bank, 514. Hazlehurst v. Savannah, etc., R.R. Co., 349, 600; vol. ii. 141. Head v. Curators, 66. V. Providence Ins. Co., 430, 624. V. The University, 535. Health v. Erie R.R. Co., vol. ii. 618. Heard v. Brooklyn, 680. V. Eldredge, vol. ii. 172. V. Talbot, vol. ii. 904, 910. Hearne v. Southern Pacific R.R. Co., vol. ii. 457. Heart v. State Bank, 255, 260 ; vol. ii. 222. Heaston v. Cincinnati, etc., R.R. Co., vol. ii. 81, 98, 114, 627, 636, 642. Heath v. Barmore, vol. ii. 930, 937. t/. Erie R.R. Co., 611; vol. ii. 580, 589. V. Missouri, etc., R.R. Co., vol. ii. 867. Heath v. Silverthorn Lead, etc., Co., 153, 210. Heckart v. Roberts, vol. ii. 822. Hedges' Appeal, 39. Iviii tAbLE OF CASES. The figures refer to the pages^ Hedges v. Madison, vol. ii. 512. V. Parquett, vol. ii. 585. Heffner v. Com., vol. ii. 821. Heine v. Levee Commissioners, vol. ii. 778. Heiss V. Murphy, 646. Helm V. Suigg-ett, 271 ; vol. ii. 187, 206. Hendee v. Pinkerton, 297, 301, 630, 661 ; vol. ii. 247. Henderson v. Australian Royal Mail Steam Nav. Co., 285. V. Lacon, 399 ; vol. ii. 442. Henderson, etc., R.R. Co. v. Leavell, vol. ii. 108. Henderson v. Railroad Co., v. ii. 516. V. Royal British Bank, vol. ii. TJ, IT]. V. Walker, v. ii. 507, 594. Hendrix v. Aca'demy of Music, v. ii. 7. Henriques v. Dutch West India Co., 150; vol. ii. 568, 627, 642. Henry v. Burlington R.R. Co., 462. V. Dubuque & Pacific R.R. Co., 679. V. Gt. Northern R.R. Co., vol. ii. 143, 160, 161. V. Jackson, 274. Henry & Co. v. Northern Bank of Ala., 475- Henry v. Vermillion, etc., R.R. Co., vol. ii. 36, 48, 106, 126. V. Vt. Cent. R.R. Co., v. ii. 459. Henson v. Erie R.R. Co., vol. ii. 539. Hentz V. Long Island R.R. Co., vol. ii. 63. 459- Hepburn v. School Directors, vol. ii. 300, 319. Herkimer, etc., Co. v. Small, vol. ii. 106, 117. Hern v. Nichols, 396. Herron v. Vance, vol. ii. 108, 929, 930. Hershire v. First Nat. Bank, v. ii. 301. Hersey v. Veazie, 395 ; vol. ii. 623. Hesketh v. Braddock, 250. Hess V. Werts, 39, 100. Hester v. Memphis, etc., R.R. Co., vol. ii. 59, 66. Heuser v. Harris, 646. Hewitt ^z. N. Y. & Oswego, etc., R.R. Co., 506, 517. V. Pioneer Press Co., vol. ii. 434. 436. V. Swift, vol. ii. 429, 469. Hibblewhite v. M'Morine, vol. ii. 395. Hibernia Fire Engine Co. v. Harrison, 239- Hibernia Nat. Bank v. Lacombe, vol. ii. 568. Hibernia T. Co. v. Henderson, vol. ii. 48, 65, 104. Hickens v. Congreve, 467. Hickling v. Wilson, vol. ii. 127. Hickman v. Missouri Pacific R.R. Co., vol. ii. 497. Hicks V. Hinde, 316. V. International, etc., R.R. Co., vol. ii. 507. V. Launceston, 196. Higgins V. Livingstone, 384. V. Senior, 368. V. Watervliet, etc., R.R. Co., vol. ii. 469. V. Watervliet Tump. Co., vol. ii. 472. Highland Tump. Co. v. McKean, 140, 325 ; vol. ii. 104, 645. Hightowerz/. Mustian, vol. ii. 134. V. Thornton, vol. ii. 121, 124, 706. Hilbish V. Catherman, vol. ii. 271. Hildreth v. City of Lowell, 665, 671. Hile's Case, vol. ii. 715. Hill V. Bank of Rockingham, v. ii. 190. V. Beach, 545. V. County Commrs., vol. ii. 789. V. Fogg, vol. ii. 864. V. Lacrosse, etc., R.R. Co., vol. ii. 254. V. Manchester, etc.. Water Works, Co., 306, 309, 366. V. Newichawanick Co., vol. ii. 169. V. Pine River Bank, v. ii. 222, 238. V. Reed, vol. ii. 99. Hilles V. Parish, 211. Hilliard v. Goold, 354; vol. ii. 381. Hillier v. Alleghany Mut. Ins. Co., vol. ii. 131- Hillyer v. Burlington, etc., R.R. Co., 481. V. Overman Silver Mining Co., 432- Hills V. Bannister, 387. Himraelmann v. Hoadley, vol. ii. 454, Hinckley v. Cape Cod R.R. Co., vol. ii. 457- Hine v. Woolworth, vol. ii. 373. Hitchcock V. Galveston, 604. V. U. S. Bank, 546. Hix V. Gardiner, 250. Hoagland v. Bell, 174. Hoare v. Dawes, 18. Hobart v. Bennett, vol. ii. 704. Hobbit V. London & Northwestern R.R. Co., vol. ii. 505. Hoboken Building Assoc, v. Martin, 116; vol. ii. 634, 859, 864, "^e figures refer to the pages. TABLE OF CASES. lix Hodge V. First Nat. Bank, 444, 476. Hodges V. New England Screw Co., 395. 54°. 6ii ; vol. ii. 580, 918. V. Planters' Bank, 270, 408 ; vol. ii. 206. V. Rutland & Burlington R.R. Co., 438, 444. Hodgkinson v. Nat. Live Stock Ins. Co., vol. ii. 852. Hodgson V. Copeland, vol. ii. 584, 729, 864. Hoereth v. Franklin Mill Co., vol. ii. 634- Hoey V. Henderson, vol. ii. 53. Hoffman Coal Co. v. Cumberland Coal Co., vol. ii. 375. Hoffman Sieam Coal Co. v. Cumber- land Coal, etc., Co., 611 ; v. ii. 238. Hoge V. Railroad Co., vol. ii. 340. Hogenlocherz'. Coney Island, etc., R.R. Co., 480. Holbrook v. Fauquier, etc., T. Co., vol. ii. 89, 192, 214. V. N. J. Zinc Co., vol. ii. go. Holcomb V. New Hope Del. Bridge Co., 439. Holden v. Hoyt, 245, 480. Holder z/. Lafayette, etc., R.R. Co., 461. HoUaday v. Frisbie, vol. ii. 655. Holland v. Cruft^ 653. V. Hey man, vol. ii. 867. V. Leslie, vol. ii. 626. V. Lewiston Falls Bank, 464. Hollingsbead v. Woodward, vol. ii. 863, 867, 913. HoUingsworth v. Tensas, 671. Hollis V. Hollis, 643. HoUoway v. Memphis, etc., R.R. Co., vol. ii. 638, 643. Holman z'. Borough, 299. Holmes v. Clark, vol. ii. 496. ■V. Gilliland, 127, 150; v. ii. 566. v. Holmes Manf. Co., 121, 122; vol. ii. 577. V. Nuncaster, vol. ii. 658. V. Sherwood, vol. ii. 706. V. Wakefield, vol. ii. 429. Holsman v. Boiling Spring, etc., Co., vol. ii. 590. Holton V. Bangor, vol. ii. 291. Holyoke Bank v. Burnham, vol. ii. 132, 220. V. Goodman, etc., Co., vol. ii. 606. V. Haskins, vol. ii. 627. Holyoke Co. v. Lyman, 495, 536 ; vol. ii. 887. Home of the Friendless t/. Rouse, 514; vol. ii. 340. Home V. Green, vol. ii. 296. Home Ins. Co. v. Davis, 481, 533, 551 ; vol. ii. 280. Home Stock Ins. Co. v. Sherwood, 10 ; vol. ii. 104, 199. Hon V. State, vol. ii. 861. Honeyman v. Blake, 112. Hood V. New York & New Haven R.R. Co., vol. ii. 489, 491. Hooker v. New Haven & Northamp- ton Co., vol. ii. 464. Hooksett V. Amoskeag Manf. Co., vol. ii. 448. Hoole V. Gt. Western R.R. Co., vol. ii. 158, 159. Hooper v. Savannah, etc., R.R. Co., 672. V. Winston, vol. ii. 717. Hope Mu. Fire Ins. Co. v. Beckman, 138. Hope Mu. Fire Ins. Co.'Z'. Koeller, 138. Hope Ins. Co. v. Boardman, v. ii. 600. Hope Mu. Ins. Co. v. Weed, vol. ii. 176. Hopkins' Appeal, 424. Hopkins v. Atlantic & St. Lawrence R.R. Co., vol. ii. 536. V. Gallatin Turnp. Co., 288, 306; vol. ii. 137. V. Mehaffy, 374. V. Roseclare Lead Co., vol. ii. 860. V. Western Pacific R.R. Co., vol. ii. 453. V. Whitesides, v. ii. 934, 944. Hopkinson v. Exeter, vol. ii. 551. V. Marquis of Exeter, 34; vol. ii. 553. Hoppin V. Buffum, 169, 176. Hopson V. .iEtna Axle & Spring Co., 611. Horn V. Chicago, etc., R.R. Co., 526. V. Ivy, 283. Homaday v. Ind., etc., R.R. Co., vol. ii. 100. Hornor v. Henning, vol. ii. 421. Horton v. Baptist Church, 231, 623. V. Garrison, 93. Hort's Case, 556; vol. ii. 125. Hosher v. Kansas City, etc., R.R. Co., vol. ii. 451. Hotchin v. Kent, 326, 328, 359. Hotel Co. V. Wade, 348, 426. Houghton V. Dodge, vol. ii. 389. Housatonic Bank v, Martin, 468. House V. Board of Commis., vol. ii. 510, 511. Ix ■fABLE OF CASES. Thefigurrs rlfrr to the Paget. House 7/. Cooper, vol.ii. 630, 631. Houseman v. Building Assoc, 473. Houston & Gt. Northern R.R. Co. v. Parker, vol. ii. 459. Houston V. Jefferson College, vol. ii. 840. V. Neuse River Nav. Co., vol. ii. 747, 749- Houston, etc., R.R. Co. z/. Commission- ers, vol. ii. 794- z/. Hill, v.ii. 475. V. Randolph, v. ii. 822. f. Shirley, 571 ; vol. ii. 948. w. Van Alstyne, vol. ii. 208. Hovey v. Magill, 378. Howard v. Bank of England, 161. V. Chicago, etc., R.R. Co., vol. ii. 384- V. Gage, vol. ii. 547. V. Hayward, 652. V. Kentucky, etc., Ins. Co.,531; vol. ii. 881. V. Lee, 333. Howe V. Dewel, vol. ii. 679, 680, 867, 916. V. Freeman, vol. ii. 265, 662. V. Keeler, 288, 289 ; vol. ii. 370. V. Newmarch, vol. ii. 516. V. Starweather, vol. ii. 142, 654. Howell V. Cassopolis, vol. ii. 291, 292. •V. Chicago, etc., R.R. Co., 215 ; vol. ii. 149, 155, 159, 173, 598. Howland v. Cuyendall, vol. ii. 176. V. Edmunds, vol. ii. 176. V. Myer, 331. Hoyle V. Plattsburg, etc., R.R. Co., 422, 441, 611; vol. ii. 252, 253. 254, 329, 375, 660, 661. Hoyt V. Bridgewater Copper Mining Co., 350. V. Chicago, etc. R.R. Co., 526. Hoyt, ex parte, vol, ii. 817. Hoyt V. Shelden, 323, 333, 546, 551. V. Thompson, 318, 365, 367, 551 ; vol. ii. 703. H. T. R. Co. V. Cruger, vol. ii. 34. Hubbard v. Camperdown Mills, vol. ii. 712. V. Chappel, vol. ii. 636, 638. V. German Cath. Cong., vol. ii. 248. Hubbell V. Meigs, vol. ii. 198. Huckle V. Money, vol. ii. 537. Huddersfield C. Co. v. Buckley, vol. ii. 109, 178, 216, 220. Hudson V. Carman, 134, 135, 141 ; vol. ii. 639. Hughes V. Antietam Manf. Co., vol. ii. 56,70.75.93.97- 114. 115- Hughes, ex parte, vol. ii. 770. Hughes V. Oregonian R.R. Co., vol. ii. 662. V. Parker, 129, 170. V. Sun Mu. Ins. Co., v. ii. 484. Huguenot Nat. Bank v. Studwell, vol. ii. 867. HuUman v. Honcorap, vol. ii. 732. Humbert v. Trinity Church, 540, 632. Hume V. Pittsburg, etc., R.R. Co., vol. ii. 614. Humes v. Knoxville, 401 ; vol. ii. 454, Humphrey, ex parte, 223. Humphrey 7^. Pegues, v. li. 356, 340, 345. Humphreys "v. Mooney, 481. Hungerford Nat. Bank v. Van Nos- trand, vol. ii. 636, 638. Hungerford's Bank v. Dodge, v. ii. 632. Hunt V. Bullock, vol. ii. 254, 662. V. Kansas Bridge Co., 16, 142; vol. ii. 93. V. Wolfe, vol. ii. 698. Hunter v. Marlboro, 489. V. Sun Mu. Ins. Co., 273. Hunterdon Bank v. Nassau Bank, vol. ii. 200. Huntington v. Cent. Pacific R.R. Co., vol. ii. 297. V. Savings Bank, 90. Huntsville v. Phelps, 277. Hurd V. Green, vol. ii. 370. Hurlburt v. Carter, 580. Hurlbut V. Marshall, 323. Hurst V. Meason, vol. ii. 179. Huss V. Centr. R.R. & Banking Co., 468, 547; vol. ii. 613. Husser v. Johnson, 306. Hussey v. Gallagher, 242. Hutchins v. Byrnes, 328, 372. V. New England Coal Mining Co., vol. ii. 572. V. Smith, vol. ii. 25. V. State Bank, \ol. ii. 184. Hutchinson v. Railway Co., vol. ii. 496. V. Western, etc., R.R. Co., vol. ii. 430, 519. Hyatt V. Allen, vol. ii. 165, 172. V. McMahon, 116. Hyde v. Doe, vol. ii. 947. V. State, vol. ii. 731. V. Trewhitt, vol. ii. 726. V. Woods, 35 ; vol. ii. 562. The fibres refer io the pages. TABLE OF CASES. Ixi Iddings V. Bruen, vol. ii. 698, 712. 111. Cent. R.R. Co. z/.County ofMcLean, vol. ii. 345. V. Crudup, V. ii. 488. V. Downey, vol. ii. 474. SOI- V. Grabill, v. ii. 445. * V. Haynes, v. ii. 514. V. Hammer.v. ii. 540. V. Illinois, 521. V. Jewell, V. ii. 496. Illinois, etc., R.R. Co. v. People, vol. ii. 246, 475. 111. Cent. R.R. Co. v. State, 527. 111. & St. Louis R.R. Co. v. Whalen, vol. ii. 467. III., etc., R.R. Co. V. Whittemore, 245. HI. Grand Trunk R.R. Co. v. Cook, vol. ii. 99, loi. Illinois Linen Co. v. Hough, 461 ; vol. ii- 373- Imboden v. Etowah Battle Branch, etc., Mining Co., 478. V. Hunter, 443. Imler v. Springfield, vol. ii. 451. Imperial Mercantile Credit Assoc, v. Coleman, 621. Importing, etc., Co. v. Lockfe, vol. ii. 729. Increase v. Babcock, vol. ii. 738. Indianapolis, etc., R.R. Co. v. An- thony, vol. ii. 474, 516. Indianapolis, etc., Co. v. Herkimer, 1 52 ; vol. ii. 8. Indianapolis, etc., R.R. Co. zi. Jones, 572. Indianapolis R.R. Co. v. Kercheval, 526. Indianapolis R.R. Co. v. Marshall, 526. Indianapolis, etc., R.R. Co. v. Mor- ganstern, 287, 288. Indianapolis, etc., R.R. Co. v. Pugh, 672. Indianapolis, etc., R.R. Co. v. Rinard, 246 ; vol. ii. 467, 468. Indianapolis, etc., R.R. Co. v. State, 679 ; vol. ii. 800. Indianola R.R. Co. v. Fryer, 572. Inge V. Birmingham, etc., R.R. Co., vol. ii. 592. Ingham v. Reform Club, 32, 34. Inglehart v. Thousand Island Hotel Co., 611. Inglis V. Sailors' Snug Harbor, 32, 644. Ingraham v. Marine Bank, 342. V. Speed, 662. V. Terry, vol. ii. 633, 926, 939. Inhabitants of Ipswich, In re, vol. ii. 786. Norton v. Hodges, vol. ii. 92, 458. Palmyra v, Morton, 273- School Dist. V. Wood, ^. 92. Springfield v. Conn. River R.R. Co., 668. Worcester v. Western R.R. Corp., vol. ii. 357- Inhabs. v. String, 1 1 5. In re Accidental Ins. Co., vol. ii. 184, Agra & Masterman's Bank, vol. ii. 362. Atty. Genl. v. Continental Life Ins. Co., vol. ii. 704. Bangpr, etc.. Slab Co., v. ii. 156. Bank of Hindustan, 555. Bank of Madison, vol. ii. 242. Barton's Trust, vol. ii. 154. Bigelow, 266. Blakely Ordnance Co., v. ii. 391, Boston & Alb. R.R. Co., 668. British Provident Life & Fire Assu. Co., 661. Clark's Trust, 643. Com. Fire Ins. Co., vol. ii. 713. Comstock, 552 ; vol. ii. 615. Contract Corp., 332. County Life Assoc. Co., 346. Corporation of Huddersfield, 671. Croton Ins. Co., vol. ii. 702. Doolittle, vol. ii. 698. Dunkerson, 266. Election of St. Lawrence Steam- boat Co., 175. Empire City Bank, vol. ii. 131, 132,417- Family Endowment Assoc.,557. Farnsworth, vol. ii. 242. Financial Corp., vol. ii. 56. Fowler, 665. Fry. 39- German Mining Co., 434. Glen Iron Works, vol. ii. 130, 141, 663. Gt. Western Tel. Co., vol. ii. 363. 593- Humber Iron Works Co., 661. Irrigation Co. of France, 556. Leeds Banking Co., 363, 624. Life Assn. Co., 661. London India Rubber Co., vol. iL 156. Ixii TABLE OF CASES. The figures refer to the pages. In re London & Northern Ins. Corp., SS6. Long Branch, etc., R.R. Co., vol. ii. 689. Long Island R.R. Co., vol. ii. 112, 225. Manchester, etc., Loan Assoc, 537- Marine Mansions Co., 659. McMahon, vol. ii. 292. Mechanics' Society, vol. ii. 904. Mt. Washington R.R. Co., 665. Nat. Provident Life Assoc, 557. New South Meeting House, vol. ii. 849, 919, 924. N. Y. Cent. R.R. Co., 665. Oregon Bulletin, etc., Co., 9. Patent File Co., 659 ; vol. ii. 247. Peninsular, etc. Bank, 326. Reciprocity Bank, vol. ii. 132. Sandilands, 303. Sankey Brook Coal Co., 661. St. Lawrence Steamboat Co., 187. St. Mary's Church, 135, 222, 226, 623. ' South Mountain Consolidated Mining Co., vol. ii. 127, 130. State Fire Ins. Co., vol. ii. 857. Tift, vol. ii. 429. Trustees of Williamsburg, vol. ii. 817. U. S. Ports & Genl. Insurance Co., 557. Van Allen, vol. ii. 697. Wild, vol. ii. 632. Williams, vol. li. 242. Woven Tape Skirt Co., vol. ii. 698, 718. Insane Asylum v. Higgins, 115; vol. ii. 634. Insurance Co. v. Baltimore, v. ii. 803. V. Com., vol. ii. 280, 302. V. Francis, 543. V. New Orleans, 9, 12 ; vol. ii. 281. Institution for the Blind v. How, 115. Instone v. Franklort Bridge Co., vol. ii. II, 81, 115. Inter-Nat. Publishing Co. v. Jack, vol. ii. II. International Life Ass. Socz/. Commrs. of Texas, 11. International, etc., R.R. Co. v. Bre- mond, 348, 532; vol. ii. 55. Iowa, etc., p..R. Co. v. Perkins, 164 ; vol. ii. 6, 49, 50. Ireland v. Nichols, vol. ii. 685, Ireland v. Palestine, etc., T. Co., vol ii. 92, 947. Irish V. Webster, 466. Iron City Bank v. Pittsburg, v. ii. 342 Iron Co. V. Hooper, 260. Iron Mt. Bank v. Mercantile Bank vol. ii. 438. Irons V. Manfs. Nat. Bank, vol. ii. 138 Irvine v. Forbes, 30. V. Lumberman Bank, v. ii. 909 V. Withers, vol. ii. 400. Irving Nat. Bank v. Corbett, vol. ii 627, 636. Isham V. Bennington Iron Co., 292, 308, 319; vol. ii. 251. W.Buckingham, vol. ii. 210. V. Trustees of First Presbyterian Church, 80. Jacobson v. Allen, vol. ii. 693. Jackson v. Bank of Marietta, v. ii. 627. V. Brown, 580, 659 ; v. ii. 247. V. Campbell, 306. V. Crawfordsville, etc., R.R. Co., vol. ii. 98. V. Hampden, 203, 206. V. Hartvvell, 61, 90, 649. V. Ludeling, 611. V. Newark Plank R. Co., vol. ii. 149, 152, 155. V. Plumbe, vol. ii. 627. V. Pratt, 304. V. Second Avenue R.R. Co., vol. ii. 517, 595. V. Twenty-third St. R.R. Co., vol. ii. 203. V. Vestles, vol. ii. 638. V. Walsh, 310, 372 ; v. ii. 646. James v. Pontiac, etc., P. R. Co., vol. ii. 651, 653. V. Railroad Co., vol. ii. 266. V. Woodruff, v. ii. 184, 933, 937. Jameson v. People, 146, 154. Jamison v. 111. Cent. R.R. Co., v. ii. 503. Jansen v. Ostrander, 61, 91. Jaques v. Golightly, vol. ii. 411. V. Withy, vol. ii. 411. Jarvis v. Rogers, 174. Jay Bridge Co. v. Woodman, 237. Jefferson Branch Bank v. Skelly, 491, 493. 514; vol. ii. 340. Jeafferson, ex parte, vol. ii. 947. JefTersonville, etc., R.R. Co. v. Baum, vol. ii. 516. Jeffersonville R.R. Co. v. Rogers, 246; vol. ii. 438, 473, 540, 595. Jefts V. York, 7.7. Jenkins v. Andover, vol, ii. 280. ' The Ji^res reffr to the pages. TABLE OF CASES. Ixiii Jenkins v. Morris, 382. V. Union T. Co., vol. ii. 48. Jenks V. Osceola Township, vol. ii. 664. Jennings v. Great Northern R.R. Co., 245. Jennings, ex parte, vol. ii. 796. Jermain v. Lake Shore, etc., R.R. Co., vol. ii. 166. Jersey City Gas Light Co. v. Con- sumers' Gas Co., vol. ii. 746. Jersey City, etc., Co. v. Jersey City, vol. ii- 335- Jessup V. Carnegie, 100. . V. Bridge, vol. ii. 256. V. Loucks, 680. Jewell V. Rock River Paper Co., vol. ii. 35. 51. 127. Jewetl V. Lawrenceburg, etc., R.R. Co., vol. ii. 26, 5g. V. Thames Bank, vol. ii. 419. V. Valley R.R. Co., v. ii. 66, 72. John V. Farmers' & Mechanics' Bank, vol. ii. 926. Johns V. Johns, vol. ii. 179, 653. Johnson, etc. v. Albany, etc., R.R. Co., vol. ii. 86, III, 115. Johnson v. Brooks, vol. ii. 190. V. Bush, 307. V. Canal, etc., R.R. Co., vol. ii. 457. V. Com., vol. ii. 313. V. County of Stark, vol. ii. 401. V. Corser, 100. V. Crawfordsville, etc., R.R. Co., vol. ii. 50, 100. V. Crow, 506, 517. ex parte, 225. V. Griffin Banking Co., 485. V. Johnson, vol. ii. 171. V. Jumel, vol. ii. 729. V. Laflin, vol. ii. 37, 85, 181, 185, 188, 208, 214, 216, 238. v. Lucas, vol. ii. 780. V. Lullman, vol. ii. 86. V. Mcintosh, 9. V. Lyttle's Iron Agency, vol. ii. Ill, 114. V. Railroad Co., vol. ii. 474. V. St. Lo,uis Despatch Co., vol. ii. 428, 433. V. Shrewsbury, etc., R.R. Co., 556. V. Sommerville D. & P. Co., vol. ii. 583, 630. V. Underbill, vol. ii. 178, 206. V. Utica Water Works, 665. , Johnson v. Wabash, etc., P. R. Co., vol. ii. 9. 51- V. Wells, vol. ii. 529. Johnston v. Crawley, 297, 307. V. Christopher, etc., St. R.R. Co., vol. ii. 455. V. Dutton, 21. Harvester Co. v. Clark, vol. ii. 642. V. Jones, 171, 174, 175, 190, 192, 205, 207, 323; voL ii. 575. V. Southwestern R.R. Bank, 368 ; vol. ii. 442. Jones V. Andrews, vol. ii. 601. V. Arkansas Mech., etc., Co., 621. V. K\vrj, vol. ii. 41 5. V. Bank of Tennessee, 150; vol. ii. 63s, 636, 637, 642. V. Boston Mills Corp., v. ii. 606. V. Cincinnati Type, etc., Co., vol. ii. 636, 642. ex parte, vol. ii. 118. V. Galena R.R. Co., 526. V. Guaranty, etc., Co., 113, 658. V. Hannovan, vol. ii. 451. V. Jarman, vol. ii. 91. V. Louisville, etc., R.R. Co., vol. ii. 467. V. Milton, etc., Turnpike Co., 203, 205. V. Morrison, 611 ; v. ii. 79, 146. V. Nat. Building Assoc, vol. ii. 362. V. Richardson, 660. V. Robinson, vol. ii. 708. V. Sisson, vol. ii. 91, 97. V. Terre Haute, etc., R.R. Co., vol. ii. 122, 155, 167, 169. V. Walker, 664. Jordan v. Ala. Gt. Southern R.R. Co., vol. ii. 438. V. Fall River R.R. Co., vol. ii. 475- V. Nat. Shoe & Leather Bank, vol. ii. 242, 243. V. Stewart, vol. ii. 522. Josephs V. Pebrer, 20, 98. Josey V. Wil. & Man. R.R. Co., 307. Joy V. Jack.son, etc.. Plank R. Co., 529, 591. Judson V. Rossie Galena Co., vol. ii. 221, 422. Juker z/. Com., 173, 182. Junction R.R. Co. v. Boyd, 679. Justices of Clarke County v. Pariss, etc., Co., vol. ii. 36, 817. Ixiv TABLE OF CASES. The figures refer to the pages. Kahn v. Baik of St. Joseph, 263 ; vol. ii. 233. ■v. St. Joseph, vol. ii. 228. Kain v. Smiih, vol.ii. 710. Kaine v. Com., vol. ii. 803. Kaiser v. 1)1. Cent. R.R. Co., 529. V. Lawrence Sav. Bank, 100. Kalannazoo Novelty Manf. Co. v. McAlister, 475. Kanawha Coal Co. v. Kanawha & Ohio Coal Co., 105, 154; vol. ii. 904. Kane v. Bloodgood, vol. ii. 175. V. People, vol. ii. 431, 492, 762. Kanosha R.R. Co. v. Marsh, 508. Kansas Cent. R.R. Co. v. Alien, 680. Kansas Cent. R.R. Co. v. Fitzsim- mons, vol. ii. 505. Kansas City Hotel Co. v. Harris, vol. ii. 66. V. Hunt, 161. V. Sauer, 194 ; V. ii. 838, 864, 926. Kansas Pacific R.R. Co. w. Gulp, vol. ii. 278. V. Mower, 520, 526. V. Prescott, vol. ii. 278. Kansas Valley Nat. Bank v. Rowell, 657, 658. Karnes v. Rochester, etc., R.R. Co., vol. ii. 149, 685. Karst V. St. Paul, etc., R.R. Co, vol. ii. 523. Katama Land Co. v. Jemegan, vol. ii. 13, 58, 81, 91. V. HoUey, v. ii. 58. Kean v. Colt, vol. ii. 682. V. Davis, 383. V. Johnson, 229; vol. ii. 852. V. Johnstone, 562, 563; v. ii. 55. Kearney v. Andrews, 233. Kearns v. Leaf, vol. ii. 857. Keasy v. Bricker, vol. ii. 823. Keegan v. Western R.R. Co., vol. ii. 496. Keeler v. Brooklyn Elevated R.R., 421. 7/. Johnson, vol. ii. 17. Keesee v. Civil Dist. Board of Educa- tion, vol. ii. 274. Kelley v. Newburyport Horse R.R. Co., 347. 443- Kellogg V. Hickok, vol. ii. 403. V. Malin, 680. V. Stockwell, V. ii. 86, 208. Kelly V. Board of Public Works, 291 ; vol. ii. 362. Kelly v. Mayor, etc., 414. V. People's Transp. Co., 609. V. Troy Ins. Co., 396. V. Wright, 194. Kelsey v. Nat. Bank, 347, 356; vol. ii. 386, 388. V. Northern Light Oil Co., vol. ii. 23. Kendall v. Lucas County, vol. ii. 508. Kennebec R.R. Co. v. Kendall, vol. ii. ,3, 81, 120, 914. Kennebec, etc., R.R. Co. v. Jarvis, voL ii. II. Kennebec, etc., R.R.Coiz/. Palmer, 532. Kennebec & Portland R.R. Co. v. Portland, etc., R.R. Co., 570. Kennebec R.R. Co. v. Waters, v. ii. 15. Kennedy v. Gibson, v. ii. 601, 699, 919. V. Panama, etc.. Mail Co., vol. ii. 410. V. St. Paul, etc., R.R. Co., vol. ii. 684. Kennet, etc.. Navigation Co. v. Wither- ington, vol. ii. 859. Kenosha v. Lamson, vol. ii. 400. Kent V. Bornstein, vol. ii. 946. V. Jackson, 623. V. Quicksilver Mining Co., 233, 236, 241, 349, 599, 607 ; vol. ii. 57, 141, 155, 156. Kenton County Court v. Bank Lick Turnpike Co., 131, 138. Kenton Furnace, etc., Co. v. McAlpin, 206. Kentucky v. Dennison, vol. ii. 782. Ky. Seminary v. Wallace, 117, 641; vol. ii. 633. Keppel V. Petersburg R.R. Co., vol. ii. 159, 189,194. Kerchner V. Gettys, 545. Kerr v. Dougherty, 637. V. South Park Commrs., 672. V. Trego, vol. ii. 592. Kesler v. Smith, vol. ii. 534. Keyser v. McKissam, 347. V. Stansifer, 80, 216, 623. V. Trustees of Bremen, 118. Keystone Bridge Co. v. Newberry, 414. Keystone Mining Co. v. Gallagher, vol. ii. 269. Kichland v. Menasha Woodenware Co., 348. Kidder w. Boom Co., vol. ii. 566. Kier v. Boyd, 670. Kilbrath v. Gaylord, vol. ii. 176. Kilpatrick v. Penrose Ferry Bridge Co., 460. Kimball v. Goodburn, vol. ii. 678. The figures refer to tke pages. TABLE OF CASES. Ixv Kimball v. Lamprey, vol. ii. 805. V. Marshall, 204. V. Union Water Co., v. ii. 804. Kimmel v. Stoner, vol. ii. 587. Kincaid v. Dwinelle, vol. ii. 867, 913. Kinder v. Taylor, 98. King V. Amery, 131, 136. V. Banks, loi. V. Baylay, 59. V. Gierke, 235. ■V. Marshall, 66i. V. Merchants' Exchange Co., 584, 659. •V. National, etc., Co., 552. V. Paterson, etc., R.R. Co., vol. ii. 152, 155, 166, 177. Kingsbury v. Ledyard, 347. Kingsley v. First Nat. Bank, v. ii. 137. Kinley v. Chicago, etc., R.R. Co., vol. ii. 527. Kinzie v. Chicago, 304. Kirhy V. Shaw, vol. ii. 331. Kirk V. Bell, 624. V. Hodgson, 22. Kirksey v. Florida, etc., P. R. Co., vol. ii. 26, 90, 115. Kitchen v. Cape Girardeau, etc., R.R. Co., 323. V. St. Louis, etc., R.R. Co., 427, 428 ; vol. ii. 372. Klein v. Alton, etc., R.R. Co., vol. ii. 112, 115. Kline V. Centr. Pacific R.R. Co., vol. ii. 474, 595- Klopp V. Lebanon Bank, vol. ii. 226. Knapp V. McAuIey, 672. Knecht v. U. S. Savings Inst., vol. ii. 242, 567. Knickerbocker Life Ins. Co. v. Eccle- sine, vol. ii. 436. Knight V. Fox, vol. ii. 504. V. Old Nat. Bank, v. ii. 230, 232. 7A Wells, 118. Knott V. Southern Ins. Co., vol. ii. 613. Knowlton v. Ackley, 194; vol. ii. 861, 863, 864. •V. Congress, etc.. Spring Co., vol. ii. 56. Knox V. Bank of U. S., 548. Koehler v. Black River Falls Iron Co., 307, 308, 395, 422, 439. 440, 611 ; vol. ii. 134. Koehler, ex parte, 527. Koelmel v. New Orleans, etc., R.R. Co., vol. ii. 524. Kohl V. U. S., 664. Kopp V. French, vol. ii. 809. Kortright v. Buffalo Bank, vol. ii. 213. Koshkonong 'Z'. Burton, vol. ii. 176. Kraft V. Freeman Printing, etc., Assoc, 446. Kramer v. Arthur, 39. V. Market Street R.R. Co., vol. ii. 464. Kuhn V. McAllister, vol. ii. 180. Kuhns V. Westmoreland Bank, vol. ii. 226. Kupfer V. South Parish in Augusta, 439- Kyle V. Fayetteville, v. ii. 292, 300, 318. Lackawanna & Bloomsburg R.R. Co. V. Chenewith, vol. ii. 486. Lackawanna Iron Co. v. Luzerne County, vol. ii. 339. Lackland v. Northern Mo. R.R. Co., 670. Ladd V. Couzins, 479. V. Southern Cotton Press, etc., Co., 527. Ladies' Collegiate Institute v. French, vol. ii. 13. La Farge v. Exchange Fire Ins. Co., 9. Lafayette Bank v. Buckingham, vol. ii. 694. Lafayette Ins. Co. v. French, 551 ; vol. ii. 280, 605,611. V. Rogers, v. ii. 627. Lafayette v. Male Orphan Asylum, voL ii. 273. Lafayette Bank v. State Bank of III., 450. Lafayette, etc., R.R. Co. v. Cheeney, vol. ii. 374. La Fond v. Deems, 27, 39. ... La Grange, etc., P. R. Co. v. Mays, vol, ii. 66, 67. La Grange v. State Treasurer, v. ii. 685, La Grange, etc., R.R. Co. v. Rainey, vol. ii. 178, 845, 855, 914. Laing v. Burley, vol. ii. 86. Lake v. Crawford, vol. ii. 760. Lake Erie & Western R.R. Co. v. Fix, vol. ii. 527. Lake Erie & Western R.R. Co. v. Grif- fin, vol. ii. 951. Lake Ontario Shore R.R. Co. v. Cur- tiss, vol. ii. 10, 14, 82. Lake Ontario, etc., R.R. Co. v. Mason, 167; vol. ii. 6, 9, II, 96. Lake Pleasanton Water Co. v. Contra Costa Water Co., 666. Lake Shore, etc., R.R. Co. v. Cincin- nati, etc., R.R. Co., 566. Lake Shore, etc., R.R. Co. v. N. Y., Chicago, etc., R.R. Co., 666. Ixvi TABLE OF CASES. Thefigurrs refer to the pagtt. Lake Superior Building Assoc, v. Thompson, vol. ii. 634. Lake Superior Iron Co. v. Drexel, vol. ii. 42. Lake Superior, etc., R.R. Co. v. Greve, 675- Lake View v. Rose Hill Cemetery Co., 521, 529- Lamb v. Bowser, 551. Lamm v. Port Deposit Homestead Assoc, vol. it. 442. Lamphere v. Grand Lodge, etc., of United Workmen, vol. ii. 188, 810. Lancaster Co. Nat. Bank v. Smith, 407, 453- Lance's Appeal, 668. Land Grant R.R. v. Commrs. of Coffey County, 544, 546. Lane v. Boston & Albany R.R. Co., 479. V. Brainerd, 203, 221 ; vol.ii. 7. Lane County v. Oregon, vol. ii. 277. Lane v. Old Colony, etc., R.R. Co., vol. . ii. 245. Langan v. Iowa & Minn. Constr. Co., 397. Langston v. South Car. R.R. Co., vol. ii. 398. Langton v. Hasten, 660. V. Waite, vol. ii. 211. Langworihy v. New York, etc., R.R. Co., vol. ii. 244. Lansing v. Lansing, vol. ii. 712. Laramie County v. Albany County, 91. Larkin v. Ames, 652. V. Wilson, vol. ii. 599. Larrabee v. Baldwin, vol. ii. 417. Lathrop v. Commercial Bank, 288, 512, 627. V. Kneeland, vol. ii. 57. V. Union Pacific R.R. Co., vol. ii. 597. Latimer v. Eddy, vol. ii. 670, 674. V. Union Pacific R.R. Co., vol. ii. 609, 615, Laumon v. Lebanon Valley R.R. Co., 228, 229, 508, 509, 558, 563, 588 ; vol. ii. 841, 843, 844. Laurel Fork, etc., R.R. Co. v. West Va. Transp. Co., 526. Law V. London Indisputable Co., vol. ii. 857. Lawler v. Burt, vol. ii. 414. Lawrence County v. Chattaroi, 91. Lawrence v. Gebhard, vol. ii. 383, 593. V. Goodrich Fire Ins. Co., vol. ii. 678. V. Greenwich Fire Ins, Co., vol. ii. 684. Lawrence v. Gt. Northern R.R. Co., vol. ii. 459. V. Kitteridge, 639. V. Housatonic R.R. Co., vol. ii. 528. V. Maxwell, vol. ii. 211, 218. V. Nelson, vol. ii. 131. V. Taylor, 316. V. Wynn, 41. Lawson v. Weston, vol. ii. 402. Lawyer v. Cipperly, 78, 79. Lazarus v. Shearer, 383. Lea'z;. Am. Atlantic & Pacific Canal Co., vol. ii. 860, 867, 950. V. American, etc., R.R. Co,, vol. ii. 929. Leach v. Fobes, vol. ii. 190. V. Hale, 453. V. Hains, vol. ii. 553, 562. Learned v. Tillotson, 480. Leasure v. Union Mut. Life Ins. Co., 481 ; vol. ii. 568. Leavenworth, etc., R.R. Co. v. Paul, 680. Leavitt v. Blatchford, 365, 659 ; vol. ii. 246. V. Fisher, vol. ii. 207. V. Oxford, etc.. Mining Co., 443. V. Palmer, 598. V. Peck, 21. V. Yates, 349, 354. Leazure v. Hillegas, 306, 628, 632, 635. Lebanon, etc.. Gravel R. Co. v. Adair, 346. Lebanon v. Olcott, vol. ii. 524. Lee V. Citizens' Nat. Bank, vol. ii. 183, 239- V. Meth. Epis. Church, vol. ii. 649. V. Pembroke Iron Co., 492. V. Village of Sandy Hill, vol. ii. 455. 516, 595- Leech v. Harris, 35 ; vol. ii. 554. Lechmere Bank v. Boynton, 129. Leeds, etc., R.R. Co. v. Feamly, 161. Lees V. Canal Co., 495. Leffingwell v. Elliott, 653. Legg V. Mayor, etc., vol. ii. 770, 831, 832. Leggett V. Bank of Sing Sing, 256 ; vol. ii. 183, 228, 233. V. N. J. Manuf. & Banking Co., 306, 37S, 443, 448. Legrand v. Hampden Sidney College, 293- V. Mercantile Assoc, vol. ii. 362. Lehigh Bridge Co. v. Lehigh Coal & Nav. Co., 9, 194; vol. ii. 636, 638. The figures re/er to the ^ages. TABLE OF CASES. Ixvii Lehigh Coal & Navigation Co.'s Ap- peal, vol. ii. 794. Lehigh Coal & Nav. Co. v. Cent. R.R. Co. of N. J., vol. ii. 617, 716. Lehigh Coal & Nav. Co. v. Northamp- ton Co., vol. ii. 353. Lehman v. Brooklyn, vol. ii. 533, 534. V. Warner, vol. ii. 424. Leitch V. Wells, vol. ii. 182. Leland v. Hayden, vol. ii. 154, 173. Leo V. Union Pacific R.R. Co., v. ii. 623. Leonard -v. Burlington Mu. Loan As- soc, 390. V. Win slow, vol. ii. 246. Leonardsville Bank v. Willard, 152; vol. ii. 618, 639. Le Roy v. Globe Ins. Co., vol. ii. 152, 166. Lessepsz/. Architects' Co., vol. ii. 112. Lester v. Webb, 318, 333, 335. Levering v. Mayor, 306, 319. V. Rittenhouse, vol. ii. 522. Levisee v. Shreveport City R.R. Co., 611 ; vol. ii. 367. Levy Court v. Coroner, 94. Lexington Life Ins. Co. v. Page, vol. ii. 134, 148, 944. Lexington & Ohio R.R. Co. v. Apple- gate, vol. ii. 453. Lexington & Ohio R.R. Co. v. Bridges, 114.415- Lexington, etc., R.R. Co. v. Chandler, vol. ii. 98, III, 114. Lexington, etc., R.R. Co. v. Elvvell, 338, 342, 343. Lexington R.R. Co. v. Staples, vol. ii. 99- Leweys, etc., P. R. Co. v. Bolton, vol. ii. 99. Leweys Island R.R. Co. v. Bolton, vol. ii. 93, 95, III, 114. Lewis V. Bank of Ky., vol. ii. 625, 627, 640. V. City Bank, 531. V. St. Albans, etc.. Works, vol. ii. 626. V. St. Louis & Iron Mt. R.R. Co., vol. ii. 494. Libbey v. Hodgson, vol. ii. 597, 613. Libby v. Rosekrans, vol. ii. 689, 697. License Tax Cases, vol ii. 338. Lichfield v. Vernon, vol. ii. 272. Life Assoc, of Am. v. Fassett, vol. ii. 927. 930, 936, 94°- Life, etc., Co. v. Manufacturers', etc., Co., 598. Life & Fire Ins. Co. v. Mech. Fire Ins. Co., 389 ; vol. ii. 382. Liebke v. Knapp, vol. ii. 41. Lighte V. Everette Ins. Co., vol. ii. 627. Lightner v. Boston & Albany R.R. Co., 570. Lilly V. Commrs. of Cumberland Co., vol. ii. 296. Lincoln v. Fitch, vol. ii. 694. Lincoln & Kennebec Bank v. Richard- son, 131, 133. Lindell v. Benton, vol. ii, 606, 633. Lindley, ex parte, 646. Lindsay v. Hyatt, vol. ii. 176. Lindsey v. Atty. Genl., vol. ii. 724, 726, 7SI- Lionberger v. Broadway Savings Bank, vol. ii. 137. Lippett V. Am. Wood Paper Co., vol. ii. 654. Liquidator, etc. v. Brown, vol. ii. 700. Litchfield Bank v. Church, vol. ii. 34, 39.71.73.635- V. Peck, vol. ii. 72. Litchfield Iron Co. v. Bennett, 325. Litchfield v. Register and Receiver, vol. ii. 788. Little V. Bailey, 81. V. Bowers, 484. Littleton Manf. Co. v. Parker, v. ii. 94. Little Miami R.R. Co. z/. Wetmore, 404. Little Rock, etc., R.R. Co. v. Page, 426. Littlewort v. Davis, 93, 601. Liverpool Ins. Co. v. Massachusetts, 5, 19, 39, 56, no; vol. ii. 280. Liverpool Water Works v. Atkinson, 339- Livesey v. Omaha Hotel Co., vol. ii. 102. Live Stock, etc., Assoc, v. Crescent City, etc., Co., 105. Livingston v. Lynch, 30, 135 ; v. ii. 60. V. Rector, etc., of Trinity Church, vol. ii. 585. V. Van Ingen, 497. Lloyd V. West Branch Bank, 351, 406, 431- Loan Assoc, v. Stonemetz, 460, 463 ; vol. ii. 373. V. Topeka, vol. ii. 279. Lockhart v. Van Alstyne, vol. ii. 28, 142, 147, 160, 163. Locks V. Nashua & Lowell R.R. Co., 670. Lockwood V. Nat. Bank, 194, 235, 255, 267, 272, 273, 323 ; vol. ii. 200, 204, 223. V. Thunder Bay River Boom Co., 432. Loftin V. Sowers, vol. ii. 749. Ixviii TABLE OF CASES. The figures refer to the pages. Logan V. Hannibal, etc., R.R. Co., vol. ii. 474. V. McAlister, 132, 134, 135. Lohman v. N. Y. & Erie R.R. Co., 334. V. St. Paul, etc., R. R. Co., 67 1 . Loker v. Damon, vol. ii. 523. London & Birmingham R.R. Co. v. Winter, 290. London & Brighton R.R. Co. v. Fair- clough, vol. ii. 116. London & Brighton R.R. Co. v. Good- win, 342. London, Brighton, etc., R.R. Co. v. London & Southwestern R.R. Co., 556. London & Southwestern R.R. Co. v. Southeastern R.R. Co., 556. London Co. v. Winter, 293. London Dock Co. v. Sinnott, 286. London Soc. v. London Ins. Co., 122. Londonderry v. Andover, 146, 149. JyOngley v. Little, vol. ii. 176, 220. •v. Longley Stage Co., vol. ii. 841. Loop V. Chamberlain, 672. Lord f. Brooks, vol. ii. 146, 154, 171, 172, 359. V. Governor & Co. of Copper Miners, 623. V. Yonkers Fuel Gas Co., 592. Lord Arlington v. Merrick, 339. Lord Eure v. Strickland, 131. Lord Cornbury v. Middleton, 637. Lorillard v. Clyde, 541. Loring v. Salisbury Mills, v. ii. 89, 196. Losee v. Bullard, vol. ii. 177. Lothian v. Wood, vol. ii. 269. Lothrop V. Stedman, 533 ; vol. ii. 580, ^n, 930. 935- Lottimer -v. Lord, vol. ii. 689, 690, 692. Loughbridge v. Harris, 671. Louisiana v. Jumel, vol. ii. 792. Louisiana Paper Co. v. Naples, vol. ii. 142. Louisville v. Com., vol. ii. 655. V. Kean, vol. ii. 788. Louisville Gas Co. v. Citizens' Gas Co., 587. Louisville, etc., R.R. Co. v. Burke, vol. "• 533. Louisville, etc., R.R. Co. v. County Ct. of Davidson, 90. Louisville, etc., R.R. Co. v. Faulkner, vol. ii. 595. Louisville, etc., R.R. Co. v. Guinan, vol. ii. 540. Louisville R.R. Co. v. Letson, 11 ; vol. ii. 565, 600. Louisville, etc.. Tump. Co. v. Meri- wether, vol. ii. 114. Louisville, etc., R.R. Co. v. Palmes, 569. 594- Louisville, etc., R.R. Co. v. The State, vol. ii. 324. Louisville, etc., R.R. Co. v. Tennessee R.R. Commission, 529. Louisville, etc., R.R. Co. v. Thompson, 674; vol. ii. 16, 43. Louisville v. University of Louisville, 499- Louisville & Nashville R.R. Co. v. Gaines, vol. ii. 390. Louisville Water Co. v. Hamilton, vol. ii. 655. Louisville & Nashville R.R. Co. v. Hodge, vol. ii. 453. Louisville & Nashville R.R. Co. v. State, vol. ii. 450. Lovett V. German Reformed Church, 345- V. Steam Saw Mill Assoc, 305, 306. Low V. Conn., etc., R.R. Co., v. ii. 391. Lowe V. E. K. R. R. Co., vol. ii. 40. Lowell V. Boston, vol. ii. 280, 411. V, Railroad Corp., vol. ii. 456. Loweree v. Newark, 672. Lowry v. Commercial, etc., Bank, vol. ii. 190, 195, 218. V. Inman, vol. ii. 414, 420. V. Parsons, vol. ii. 425. Luby V. Hudson River R.R. Co., 480. Lubricating Oil Co. v. Standard Oil Co., 389. Lucas' Case, 85. Lucas V. Bank of Darien, 392. V. Pitney, 583. ■V. White Line Transfer Co., 327. Lucton School v. Scarlett, 489. Ludlow V. Hurd, vol. ii. 249. V. Yonkers, vol. ii. 523. Luling V. Atlantic Mu. Ins. Co., vol. ii. 149. 155- Lumbard v. Aldrich, 272. V. Stearns, vol. ii. 892. Lunn V. Thurston, 660. Lusk V. Lewis, 646. Lycoming Fire Ins. Co. v. Langley, voL ii. 568. ^ Lycoming County v. Gamble, vol. ii. 291, 707. Lycoming Gas, etc., Co. v. Moyer, 672. Lyde v. Eastern Bengal R.R. Co., 533. Lyman v. Boston, etc., R.R. Co., 526. ■V. Phila., etc., R.R. Co., vol ii. 457. The figures refer to the pages. TABLE OF CASES. Ixix Lyman v. White Bridge Co., 400 ; vol. ii. 429. Lyme v. Henley, vol. ii. 564. Lynch, ex parte, vol. ii. 771. Lynchburg v. Norfolk, etc., R.R. Co., 9; vol. ii. 274. Lyndeborough Glass Co. v. Mass. Glass Co., vol. ii. 384. Lyon V. Fishmongers' Co., vol. ii. 461. V. Green Bay, etc., R.R. Co., 674. V. Jerome, 361. Lyons v. Orange, etc., Jl.R. Co., 132, 135- Lyster's Case, 222. Mabbett v. White, 22. Mabey v. Adams, 399. Macawly v. Robinson, vol. ii. 117. Macdougall v. Gardiner, vol. ii. 584. Macedon, etc., P. R. Co. v. Lapham, vol.ii. 56. Machel v. Nevinson, 214. Machinists' Nat. Bank v. Field, vol. ii. 189, 194, 198. Mackinnon v. Penson, vol. ii. 513. Mackley's Case, vol. ii. 57. Macon v. Cent. R.R. Co., vol. ii. 340. V. Cummins, vol. ii. 598. Macon & Western R.R. v. Davis, 491. Macon, etc., R.R. Co. v. Parker, vol. ii. 666. Macon, etc., R.R. Co. v. Vason, 323 ; vol. ii. 83, 94, 97, 116. Macy V. Indianapolis, vol. ii. 454. Maddox v. Graham, vol. ii. 398, 815, 822, 827, 833. Madison Ave. Baptist Church v. Bap- tist Church in Oliver Street, 218, 657. Madison v. Koebly, vol. ii. 546. Madison, etc.. Plank R. Co. v. Water- town, etc.. Plank R. Co., 627. Madison, etc., R.R. Co. v. Whiteneck, 526. Magee v. Mathis, vol. ii. 345. Magill V. Kauffman, 136, 315,474; vol. ii. 382. Maguire's Case, vol. ii. 36. _ Magruder v. Colston, vol. ii 220. Magwood V. Railroad Bank, v. ii. 197. Mahady v. Bushwick R.R. Co., 676. Mahan v. Wood, vol. ii. 54. Mahler v. Transportation Co., vol. ii. 532. Mahoney v. Bank of Ark., no. V. Bank of the State, 12, 148. V. Spring Valley Water Co., vol. ii. 655. Maker v. Atlantic, etc., R.R. Co., vol. ii. 457. Malecek v. Tower Grove & Lafayette R.R. Co., 479. Mali V. Lord, vol. ii. 517. Mallory v. Mallett, vol. ii. 934. Malone v. Burlington, etc., R.R. Co., vol. ii. 499. Maltby v. Northwestern Va. R.R. Co,, vol. ii. 648, 650. V. The Reading & Columbia R.R. Co., vol. ii. 290. Maltby's Case, 344. Maltz V. Am. Express Co., 36. Man V. Bank of West Tennessee, vol. ii. 134. Manahan v. Varnum, 653. Manby v. Long, 283, 287. Manchester Bank v. White, v. ii. 413. Manchester, etc., R.R. Co. v. Fisk, 367. Manderson v. Com. Bank of Pa., 447 ; vol. ii. 579, 587. Manf. Co. v. Bradley, vol. ii. 603. V. Roper, 517. Manhattan Co. v. Lydig, 392 ; vol. ii. 644. Manhattan R.R. Co. v. N. Y. Elevated R.R. Co., 436. Manheim P. R. Co. v. Arndt, v. ii. 60. Manisty's Case, vol. ii. 118. Mann v. Chandler, 380 ; vol. ii. 593. V. Cooke, vol. ii. 4, 28, 72, 106, 127. V. Eckford, 657. V. Pentz, 305; V. ii. 126, 421, 705. V. Pratt, vol. ii. 106. V. Williams, vol. ii. 50. Manning v. Gashane, 39. V. Quicksilver Mining Co., 174; vol. ii. 160, 165, 168. Mansfield v. Fuller, vol. ii. 784. Mansfield, etc., R.R. Co. v. Brown, vol. ii. 83. Mansfield, etc., R.R. Co. v. Drinker, 562, 570. Mansfield, etc., R.R. Co. v. Pettis, vol. ii. 27. Mansfield, etc., R.R. Co. v. Stout, vol. ii. 13, 56, 98. Manufacturers', etc.. Loan Co. v. Odd Fellows' Hall Assoc, 339. Many v. Beekman Iron Co., vol. ii. 626, 629. 631. Mapes V. Second Nat. Bank, 477. Marble Iron Works v. Smith, v. ii. 863. Marbury'z/. Madison, vol. ii. 817. March v. Eastern R.R. Co., vol. ii. 65, 150, 155, 167, 169, 191, 580. Ixx TABLE OF CASES, The figures refer to ikejiages. Mare v. Charles, 385. Marietta v. Fearing, 237, 503 ; v. ii. 874. Marietta, etc., R.R. Co. v. Elliott, vol. ii. 59. Marine Bank v. Biays, vol. ii. 178, 629, 634- V. Chandler, 453. V. Clements, 445 ; vol. ii. 362. Marine, etc.. Bank v. Jauncey, vol. ii. 640. Marine Nat. Bank v. Nat. City Bank, 452. Mariners' Bank v. Sewall, vol. ii. 929, 930- Marks v. Cong. Daruch Amuno, 162. V. Junction R.R. Co., vol. ii. 52. Marlborough Manf. Co. v. Smith, 270, 275, 432, 438 ; vol. ii. 204. Marlborough, etc., R.R. Co. v. Arnold, vol. ii. 49. Marquand v. N. Y. Manf. Co., 23, 24. Marquette, etc., R.R. Co. v. Taft, vol. ii. 376. Marr v. Bank of West Tennessee, vol. ii. 944. Marsh v. Burroughs, 166; vol. ii. 122, 123. V. Eastern R.R. Co., vol. ii. 623. V. Fulton Co., 347. V. Oneida Cent. Bank, v. ii. 242. V. Union Pacific R.R. Co., vol. ii. 244. V. Whitmore, 612. Marshall v. Bait. & Ohio R.R. Co., 11 ; vol. ii. 600. V. Queensborough, 287, 622. V. Western N. C. R.R. Co., vol. ii. 948. Marston v. Gould, vol. ii. 211. Martin v. Bienville Oil Works, v. ii. 807. V. Continental, etc., R.R. Co., 202, 438. V. Dix, 57. V. London, etc., Co., 671. V. Mayor of Brooklyn, 463. V. Mobile & Ohio R.R. Co., 549 ; vol. ii. 654. V. Nashville Building Assoc, 233- V. Pensacola, etc., R.R. Co., 348 ; vol. ii. S3, 66. V. Walton, 469. V. Webb, 451. V. Zellerbach, 348. Maryland Hospital v. Foremati, 607. Mason v. Caldwell, vol. ii. 116. V. Davol Mills, vol. ii. 79. Mason v. Kennebec & Portland R.R. Co., vol. ii. 524. V. Pewabic, etc., Co., vol. ii. 952. Mass. Genl. Hospital v. State Mu. Life Ass. Co., 536, 539 ; vol. ii. 883. Mass. Iron Co. v. Hooper, 255 ; vol. ii. 13, 224, 225. Mass., etc., R.R. Co. v. Boston, etc., R.R. Co., 678. Massoah v. Delaware, etc., Canal Co., vol. ii. 457. Hasten v. Miljer, vol. ii. 395. Masters v. Eclectic Life Ins. Co., vol. ii. 851. V. Rossie Lead Mining Co., vol. ii. 421, 626. V. Warren, vol. ii. 528, 534. Master Stevedores' Assoc, -v. Walsh, vol. ii. 112, 913. Mathews v. Albert, vol. ii. 421. V. Mass. Nat. Bank, 408. V. Skinker, 491, 597, 629,657. V. Trustees, 543. Mathewman's Case, 161. Mathis V. Morgan, vol. ii. 860. Mathex v. Neidig, vol. ii. 131. Matter of Barker, 186. Boston & Albany R.R. Co., vol. ii. 876. the Bowery Bank, vol. ii. 687. Bridgeport Old Brewery Co., 210. British Sugar Refining Co., 203, 207. Brooklyn, etc., R.R. Co., vol. ii. 838, 912. Chenango County Mu. Ins. Co., 186, 193. Clinton St., vol. ii 874. Comnirs. of Central Park, 665. Contract Corporation, 285. Croton Ins. Co., vol. ii. 701. Cooper, 665. Deansville Cemetery Assoc, 665, 671. Deveaux, 108. Dutchess & Columbia Co. R.R. Co., 166. the Eagle Iron Works, vol. ii. 687. Election of St. Lawrence Steamboat Co., 43, 181. Empire City Bank, vol. ii. 127. Franklin Tel. Co., vol. ii. 742, 867. Hebra, etc., vol. ii. 766. Hebron, etc.. Church, 80. Hollister Bank, vol. ii. 421. The figures refer to the pages. TABLE OF CASES. Ixxi Matter of Howe, 636, 648. Independent Ins. Co., vol. ii. 872. Jackson Marine Ins. Co., vol. ii. 895. Lee & Co.'s Bank, 537, 539. Long Branch, etc., R.R. Co., vol. ii. 711. Long Island R.R. Co., 170, 175, 207, 252, 254, 255, 672; vol. ii. 913. the Mayor, etc., of N. Y., vol. ii. 273, 348. the Mechanics' Soc, v. ii. 908. Merritt, vol. ii. 716. Mohawk & Hudson R.R. Co., 193- N. Y., etc., R.R. Co., 107, io8, 155, 668, 672; vol. ii. 729, 904, 908. Niagara Insurance Co., vol. ii. 848. North Shore Staten Island Ferry Co., 175, 177. Norwood, vol. ii. 926. Prospect Park & Coney Island R.R. Co., 562, 674. Pyrolusite Manganese Co., vol. ii. 848, 900. the Reciprocity Bank, 161, 534; vol. ii. 127, 416, 882, 889, 945. Ref Dutch Ch., 78. Richardson, 161. Roman Catholic Soc, 656. Sage, vol. ii. 60 1, 806. Silkstone Fall CoUiery Co., 210. South Mt. Consolidated Manf Co., vol. ii. 128. Spring Valley, etc., Co., 108. Stafford, vol. ii. 712. the Suburban Hotel Co., vol. ii. 848. Towanda Bridge Co., 666. Townsend, 665. Union Bank of Jersey City, vol. ii. 713, 718. Union Ins. Co., 170, 1S8. Union Village, etc., R.R. Co , 674. Utica, etc., R.R. Co., 674. Van Allen, vol. ii. 700, 709. Vt. Canada R.R. Co., vol. ii. 250. White Mts. R.R. Co., vol. ii. 891. Wheeler, vol. ii. 58, 79. Matter of Will of Fox, 638. Woven Tape Skirt Co., vol. ii- 935- Maund v. Monmouthshire Canal, 401 ; vol. ii. 447. Maux Ferry Gravel Road Co. v. Brane- gan, 463 ; vol. ii. 373. Maxwell v. Dullidge Hospital, 622, 624. Mayer v. Amidon, 399. Mayer v. Soc. for the Visitation of the Sick, 509. Mayhew's Case, vol. ii. 178. Maynard v. Firemen's Fund Ins. Co., 402 ; vol. ii. 432. Mayor, etc., of Baltimore v. Baltimore & Ohio R.R. Co., vol. ii. 335. Mayor, etc., of Bait. v. State, 130. Mayor of Colchester v. Lowten, 627. Mayor of Kidderminster v. Hardwick, 282. Mayor of Kingston v. Horner, 146. Mayor, etc. v. Long, vol. ii. 644. Mayor, etc., of Ludlow v. Charlton, 282. Mayor, etc., of Ludlow v. Greenhouse, 642. Mayor of Lynn v. Henley, 131. Mayor, etc., of Mobile ■z/. Yuille, 277. Mayor of Stafford v. Till, 293. Mazetti v. N. Y. & Harlem R.R. Co., vol. ii. 456. McAleer v. McMurray, 611; vol. ii. 581. McAllisters. Kuhn, vol. ii. 181. V. Plant, 594,658,659; vol. ii. 247. McAndrew v. Electric Tel. Co., 248. McArthur v. Green Bay, etc.. Canal Co., 247. McAuley v. Columbus, etc., R.R. Co., 156, 563. McAunich v. Miss., etc., R.R. Co., 526. McBane v. People, vol. ii. 770, 819, 832. McCafferty v. Spuyten Duyvil & Port Morris R.R. Co., vol. ii. 505. McCall V. Byram Manf. Co., 194, 212, 345, 465, 481 ; vol. ii. 606. V. N.Y., etc., R.R. Co.,v. ii. 457. McCally v. Pittsburgh, etc., R.R. Co., vol. ii. II. McCaren v. Franciscus, vol. ii. 416. McCartee v. Orphan Asylum, 627, 636, 638. McCarty z/. Roots, 512. McCauUey v. Jenney, 292. McClellan v. Scott, vol. ii. iiT, 69. McClelland v. Whitely, 161 ; v. ii. 7, 49. McCIues V. Manchester & Lawrence R.R. Co., vol. ii. 475. Ixxii TABLE OF CASES. The figures refer to the pages. McCluny v. Silliman, vol. ii. 773. McClure v. People's Freight R.R. Co., vol. ii. 10, 50. V. Phila., etc., R.R. Co., 246. McCord V. Ohio, etc., R.R. Co., v. ii. 80. McCormick v. Kansas City, etc., R.R. Co., vol. ii. 451. V. Pennsylv. R.R. Co., vol. ii. 4'ti4, 616. McCoy V. Farmer, vol. ii. 939. V. Justices of Harnett Co., vol. ii. 825, 829, 832. V. Washington Co., vol. ii. 405. McCracken v. San Francisco, vol. ii. 385. 389- McCrary v. Junction R.R. Co., 226, 228; vol. ii. 52. McCready v. Guardians of the Poor, vol. ii. 428. V. Ramsey, 255 ; vol. ii. 220, 233- McCuUoch V. Norwood, vol. ii. 926, 928. V. State, 99, 103 ; vol. ii. 275, 293- McCullough V. Moss, 350, 432, 445 ; vol. ii. 221, 385. V. State of Maryland, vol. ii. 280. McCully V. Pittsburg, etc., R.R. Co., vol. ii. 38, 40, 60, loi. McCune Mining Co. v. Adams, 139. McCurdy v. Bowes, vol. ii. 703. V. Myers, vol. ii. 850. McCutcheon v. Steamboat Co., 604. McDaniels v. Flower Brook Manuf. Co., 169, 177, 206, 209. McDermott v. Board of Police, 233. V. Hannibal .& St. Joseph R.R. Co., 479. V. Pacific R.R. Co., vol. ii. 496. McDiamid v. Fitch, vol. ii. 796. McDonald v. Minneapolis Lumber Co., vol. ii. 269. McDonough v. Templeman, 313. McDougald v. Bellamy, 401. McDougall V. Gardiner, vol. ii. 623. IJ^cDowell V. Ark. Mech. & Agl. Co., 426, 443. V. Bankof VVilmington, 262; vol. ii. 181, 224. V. Mech. & Agr. Co., 6n. McEvers v. Lawrence, vol. ii. 703. McEwen v. Montgomery County Mu. Ins. Co., 472. IklcEwen v. West London, etc., Co., 271. McGargell v. Hazleton Coal Co., 347. McGary i:/. The People, ii8, 119. McGeary v. Chandler, 39. McGee v. Mathis, vol. ii. 340. McGenness v. Adriatic Mills, 479, 480. McGinnis v. Watson, 80. McGraw v. Memphis, etc., R.R. Co., vol. ii. 664. McGregor v. Erie R.R. Co., 574. V. Home Ins. Co., v. ii. 160. McGuire v. Grant, vol. ii. 523. McHarg v. Eastman, vol. ii. 289. McHenry v. Duffield, 377. V. Jewett, 169; vol. ii. 218. V. N. Y., Pennsylv., etc., R.R. Co., vol. ii. 623. Mcllrath v. Snure, vol. ii. 694. Mclntire v. McLain, etc., Assoc, vol. ii. 91. V. Preston, 8, 380 ; vol. ii. 636, 644, 648. V. Wood, vol. ii. 773, 818. Mclntyre v. Easton, etc., R.R. Co., 671. V. Ingraham, 491. V. N. Y. Cent. R.R. Co., vol. ii- 534- Mclntyre Poor School v. Zanesville Canal, etc., Co., 154, 156; vol. ii. 864. Mclntyre v. Union College, vol. ii. 626, 631. Mclver v. Robinson, vol. ii. 318. McKay v. Beard, 134; vol. ii. 866. McKee v. Wilmington & Raleigh R.R. Co., 497. McKeen v. County of Northampton, vol. ii. 290. McKelvey v. Crockett, vol. ii. 663. McKim V. Mason, vol. ii. 269. V. Odom, 58, 107, 400; vol. ii. 564, 616. McKiernan v. Lienzen, 460, 484, 579. McKinley v. Chicago, etc., R.R. Co., vol. ii. 540. McLaren v. Franciscus, vol. ii. 220. V. Pennington, vol. ii. 882, 910, 937. McLaughlin v. Chadwell, vol. ii. 292. M'Laughlin v. Detroit & Milwaukee R.R. Co., 227, 358 ; vol. ii. 87, 143. McLellan v. Cumberland Bank, vol. ii. 596. M'Loughlin v. Detroit, etc., R.R. Co., vol. ii. 384. McMahan v. Morrison, 558, 560. McMahon v. Banke, 34. V. Macy, vol. ii. 425. McMasters v. Reed, vol. ii. 363. The figures refet to tke pages. TABLE OF CASES. Ixxiii McMillan v. Maysville, etc., R.R. Co., vol. ii. 1 5, 17. V. Smith, vol. ii. 785. McMinnville Acadtmy v. Reneau, vol. ii. 629. McMullan v. Charleston, 239. McNeely z/. Woodruff, 190. McNeil V. Tenth, National Bank, 174, 175; vol. ii. 168, 206, 214, 217. McPherson v. Foster, 595. M'Queen v. Middletown Manuf. Co., 10. McQuin V. Middleton Manuf. Co., vol. ii. 605, 607. McRae v. Locke, vol. ii. 423. V. Russell, vol. ii. 104. V. Wilmington, etc., R.R. Co., vol. ii. 468. McWhorter v. Lewis, 379. Mead v. Keeler, 156, 331, 355; vol. ii. 380. V. N. Y., Housatonic, etc., R.R. Co., 156,563,566, 574. 575- Meadow Dam Co. v. Gray, vol. ii. 107. Meads v. Merchants' Bank, 459. V. Walker, vol. ii. 11. Meagher v. Driscoll, vol. ii. 527. Means v. Swormstedt, 380. Meara v. Holbrook, vol. ii. 507. Mears v. London & Southwestern R.R. Co., vol. ii. 513. 1'. IVJoulton, 31. Mechanics' Bank of Alexandria v. Bank of Columbia, 288. Mechanics' Bank v. Bank of Columbia, 368, 384, 484. V. Heard, 509; vol. ii. 855. V. Merchants' Bank, vol. ii. 181, 229. •v. New York, etc., R.R. Co., 394; vol. ii.67, 87, 200, 212. V. Schaumburg, 469. v. Schuyler, 397. V. Smith, 237, 274. Mechanics' Nat. Bank of Newark v. Burnet Manf. Co., 182. Mechanics' Banking Assoc, v, Mari- posa Co., vol. ii. 206. Mech. Bank zi. New Haven R.R. Co., 264. Mechanics', etc.. Savings Bank v. Meri- den Agency Co., 511. Mechanics, etc., Co. v. Hall, vol. ii. 81, no, 115, 116. Mechanics' and Traders' Bank v. Bridges, 535. Mechanics' & Traders' Bank v. Debolt, vol. ii. 340. Mechanics' and Traders' Bank v. Thomas, vol. ii. 340. Medbury v. N. Y. & Erie R.R. Co., 332, 449- Medical College, Case of, 102. Medical Inst. v. Paterson, 109. Medomak Bank v. Curtis, 347, 352. Medway Cotton Manf. v. Adams, 118 ; vol. ii. 634. Meeker v. Winthrop Iron Co., 191. Meints v. East St. Louis Co-Operative, etc., Co., vol. ii. 662, 663. Melendy v. Keen, vol. ii. 69. Melledge v. Boston Iron Co., 318. Mellen v. Whipple, 274. Melville v. Dodge, 342. Melvin ■v. Lamar Ins. Co., v. ii. 72, 120. Memphis v. Dean, vol. ii. 581. V. Laski, vol. ii. 664. V. Lasser, 411. ■V. Memphis Gayoso Gas Co., 601. Memphis Branch R.R. Co. v. Sullivan, 348, 515, 532. Memphis Freight Co. v. Memphis, 669. Memphis, etc., R.R. Co. v. R.R. Commrs., 561, 591 ; vol. ii. 247. Menasha v. Milwaukee, etc., R.R. Co. 559; vol. ii. 951. Mendelsohn v. Anaheim Lighter Co., vol. ii. 520, 540. Mendock v. Gifford, vol. ii. 255. Menier v. Hooper's Tel. Works, 191 ; vol. ii. 584, 852. Mercer v. Mc Williams, 671. Mercer County v. Hackett, vol. ii. 395, 398, 405. , V. Pittsburg, etc., R.R. Co., vol. ii. 14, 3S, 60, 70. Merchants v. Goddin, 445. Merchants' Bank v. Cook, 169 ; vol. ii. 419. V. Marine Bank, 456. V. McColl, 335, 381. V. McLeod, v. ii. 707. V. New York, etc., R.R. Co.,v.ii.56. V. Shouse, 255 ; vol. ii. 177, 223. V. State Bank, 451 ; vol. ii. 429. Merchants' Bank of Macon v. Central Bank of Ga., 352, 369. Merchants' Manf. Co. v. Grand Trunk K.R. Co., vol. ii. 6ii. IXXIV TABLE OF CASES. Thejlgures refer to the ^ages. Merchants' Mut. Ins. Co. v. Brower, vol. ii. 653. Merchants' Nat. Bank of Newark v. ■ Burnett Manf. Co., 195. Merchants' Nat. Bank v. McNaughton, 548. Merchants' Nat. Bank v. Richards, vol. ii. 185, 209. Merchants' Dispatch Transp. Co. v. Hallock, vol. ii. 245. Merchants' & Planters' Line v. Wag- aner, vol.ii. 519, 630, 631, 838. Meredith v. Hinsdale, 300. Merrick v. Burlington, etc.. Plank R. Co., 290, 554. V. Lamar Ins. Co., v. ii. 373. V. Peru Coal Co., 460. V. Reynold Co., 143 ; v. ii. 368. V. Van Santvoord, 543, 545. Merrill v. Beaver, vol. ii. 13, 57. ■V. Campbell, vol. ii. 664. V. Gamble, vol. ii. 13, 57. V. Plainfield, 450, 463. V. Reaver, vol. ii. 76. V. Suffolk Bank, vol. ii. 633, 926. Merrimac Mining Co. v. Bagley, vol. ii. 109, no. Merrimac M. Co. v. Levy, v. ii. 109, 220. Merritt v. Farris, 210. Merriwether v. Garrett, vol. ii. 778. Merwin v. Chicago, vol. ii. 664. Messenger v. Pa. R.R. Co., vol. ii. 280. Messersmith v. Sharon Savings Bank, vol. ii. 109. Metcalft/. Messenger, vol. ii. 286. Meth. Church v. Ellis, vol. ii. 350. Meth.Church in Newark v. Clark, 29, 83. Methodist Church v. Remington, 635, 643- Meth. Ch. V. Town, vol. ii. 50. Methodist Church v. Wood, vol. ii. 635. Methodist Epis. Church v. Pickett, 82, 142, 143, 187; vol.ii. 100,639. Meth. E. Church v. Sherman, v. ii. 14. Meth. Epis. Church of Kendallvilie v. Shultze, 117. Meth. Soc. V. Bennett, 652. Meth. Epis. Corp. v. Herrick, 324, Metropolitan Bank v. Godfrey, 546. Metrop. Board of Excise v. Berrie, 518. Melrop. Board of Works v. McCarthy, vol. ii. 461. Metropolitan City R.R. Co. v. Chicago, etc., R.R. Co., 666, 667. Metrop. Elevated R.R. Co. v. Manhat- tan Elevated R.R. Co., 437. Metropolitan Saloon, etc., Co. v. Haw- kins, vol. ii. 436. Mettler v. Easton, etc., R.R. Co., 672. Metz V. Buffalo, etc., R.R. Co., vol. ii. 467. Meyer v. Barker, 386. V. Johnston, 592, 659, 660 ; vol. ii. 248, 678, 6S3, 711. V. Midland Pacific R.R. Co., vol. ii. 505. Miami Exporting Co. v. Gano, vol. ii. 738, 926. Michaels v. N. Y. Cent. R.R. Co., voL ii. 477. Michigan State Bank v. Gardner, vol. ii- 633, 939- Michoud v. Girod, 420, 439. Mickey v. Stratton, 288. Mickles v. Rochester City Bank, vol. ii. 728, 863, 915. Middle Bridge Corp. v. Marks, 550. Middle Bridge Props, v. Brooks, 483. Middlebrook v. Merchants' Bank, vol. ii. 185, 190. Middlebrooks v. Springfield Fire Ins. Co., vol. ii. 599. Middlebury College v, Loomis, vol. ii. 68, 73- V. Williamson, vol. ii. 3- Middlesex Manf. Co. v. Lawrence, 338. Middlesex R.R. Co. v. Boston, etc., R.R. Co., 589. Middlesex Tump. Co. v. Locke, 226, 508; vol.ii. 107. V. Swan, vol. ii. 59- Middletown Bankz*. Magill, vol. ii. 126, 187. Middlelown Ferry Co. v. Middletown, vol. ii. 2S7. Middletown v, McCormick, 115. Midland, etc., R.R. Co. v. Gordon, vol. ii. 61, 83. Mihills' Manf. Co. v. Camp, 469. Milford, etc., Turnp. Co. v. Brush, 115; vol. ii. 629, 648. Mill Dam Foundry z/. Hovey, 304. Milledge v. Boston Iron Co., 118. Miller v. Chance, 659 ; vol. ii. 246. V. Chittenden, 652. v. Com., vol. ii. 293, 358. V. Enghsh,i69, 208, 216, 508. V. Ewer, 213, 318. V. Gt. Republic Ins. Co., vol. ii. 178, 416. V. Hanover, etc., R.R. Co., vol. ii. 120. V. 111. Cent. R.R. Co., vol. ii. 79. The figvres refer to the pages. TABLE OF CASES. Ixxv Miller v. Lancaster, 573. V. Mansfield, vol. ii. 246. V. Milwaukee, 596. V. N. Y. & Erie R.R. Co., 515. 7j. Palermo, vol. ii. 747. V. Pittsburg, etc., R.R. Co., vol. ii. 22, 30, loi. V. Porter, 635. V. Race, vol. ii. 402. V. Rutland & Washington R.R. Co., 353, 371, 591, 662 ; vol. ii. 254, 393, 662. V. State, 534, 536 ; vol. ii. 347. V. Stewart, 343. •v. Superior Machine Co., 626. V. Tiffany, 547. V. Wild Cat, etc., Co., vol. ii. 67, 755- V. Wliite, vol. ii. 425. Milliken v. Whitehouse, vol. ii. 427. Milliman v. N. Y., etc., R.R. Co., vol. ii. 468. V. Oswego & Svracuse R.R. Co., 515. Mills V. Jefferson, vol. ii. 403. V. Northern R.R. Co., vol. ii. 125, 146, 148. V. St. Clair Countj', 495. V. Stewart, vol. ii. 117, 119, 142. Milnerw. N. J. R.R. Co., 666. V. Pensacola, vol. ii. 876, 950. Milnor v. N. Y. & N. H. R.R. Co., 545. Miltenberger z/. Logansport R.R. Co., vol. ii. 683, 715. Milwaukee & St. Paul R.R. Co. v. Arms, vol. ii. 538. Milwaukee & St. Paul R.R. Co. v. Crawford County, vol. ii. 353. Milwaukee, etc., R.R. Co. v. Field, vol. ii. 28, 60. Miner v. Village of Fredonia, v. ii. 286. Mineral Point R.R. Co. v. Keap, 10. Miners' Bank v. United States, 65, 69, 496, 539 ; \'ol- ii- 885. Miners' Ditch v. Zellerbach, 595, 600. Minhinnah v. Haines, vol. ii. 797. Minneapolis Harvester Works v. Libby, 168; vol.'ii. 87, 102. Minnesota Valley R.R. Co. v. Doran, 674. Minnesota Co. v. St. Paul Co., vol. ii. 254. Minor v. Mechanics' Bank, 340, 351. Minot V. Curtis, 118. V. Paine, vol. ii. 146, 159, 163, 173- V. Phila., etc., R.R. Co., vol. ii. 274. 340. Mintzer v. County of Montgomery, vol. ii. 292, 298. Miss. Cent. R.R. Co. v. Mason, vol. ii. 451. Mississippi River Bridge Co. v. Rmg, 674. Miss. & Rum River Boom Co. v. Prince, 100. Miss., etc., R.R. Co. v. Cross, vol. ii. 53, 62, 73. 99- V. Cromwell, vol. ii. 190. V. Caster, vol. ii. 97, 98, 114, 627, 629. V. Harris, v. ii. 37. Missouri Pacific R.R. Co. v. Collier, vol. ii. 608. Missouri River R.R. Co. v. Richards, vol. ii. 375. Missouri, etc., R.R. Co. v. Ward, 672. Mitchell V. Crassweller, vol. ii. 521. V. Deeds, 142, 150, 155, 563. V. Jenkins, vol. ii. 438. V. Lycoming Mu. Ins. Co., 161. V. N. Y. Cent. & Hudson River R.R. Co., v. ii. 534. •V. Rockland, 403. V. Rome R.R. Co., vol. ii. 10, 74, loi, 104, 117. V. St. Andrew's Bay Land Co., 313. 314, 373- V. Union Life Ins. Co., 313. V. Vermont Mining Co., 211, 445 ; vol. ii. Ill, 112. V. Winslow, 660. Mobile Mu. Ins. Co. v. CuUom, vol. ii. 223, 233. Mobile V. Stonewall Ins. Co., v. ii. 341. V. Youille, 239, 249. Mobile R.R. Co. v. Talman, 658. Mobile, etc., R.R. Co. v. Mosely, vol. ii. 340. V. Prewitt, vol. ii. 245. V. State, 526 ; v. ii.850,889, 941. V. Steiner, 527. V. Wisdom, vol. ii. 797. Mobile & Ohio R.R. Co. v. Franks, vol. ii. 479. V. Mosely, voL ii. 326. V. Yandal, voL ii. 81. Ixxvi TABLE OF CASES. The figures reftr to the t ages. Mohawk Bridg'e Co. v. Utica & Sche- nectady R.R. Co., 488, 496, 497, 667 ; vol. ii. 574. Mohawk & Hudson R.R. Co. v. Clute, 655 ; vol. ii. 289, 325. Mohr V. Chicago, etc., R.R. Co., vol. ii. 245. Moise V. Chapman, vol. ii. 708. Moises V. Thornton, 305. Mokelumne Hill Mining Co. v. Wood- bury, 145 ; vol. ii. 639. Monadnock R.R. v. Felt, vol. ii. 15. Monmouth Mut. Ins. Co. v. Lowell, vol. ii. 565. Monongahela Nav. Co. v. Coon, 515, 532. Monroe v. Conner, 21. V. Fort Wayne, etc., R.R. Co., vol. ii.'ioo, 298, 315. Monroe Savings Bank W.Rochester, 587. Montague v. Church School Dist., vol. ii. 364. Montgomery v. Elliott, vol. ii. 400. Montgomery Mu. Building & Loan Assoc. V. Robinson, 105. Montgomery, etc., R.R. Co. v. Ma- thews, vol. ii. 66. Montgomery v. Merrill, vol. ii. 729. V. Montgomery, etc., R. Co., 598. Montgomery & West Point R.R. Co. v. Boring, 572. Montpelier v. East Montpelier, 504. Monument Nat. Bank v. Globle Works, 599, 602 ; vol. ii. 392, 429, 593. Monumoi Gt. Beach v. Rogers, v. ii. 636. Mooar v. Walker, vol. ii. 663. Moody V. Wright, 660. Moore ^z. Bankof Commerce, 251,272 ; vol. ii. 114, i8o, 223, 240. V. Board of Trustees, 69. V. Brink, 27, 36, 37, 39. V. Chicago R.R. Co., v. ii. 472. V. Evans, vol. ii. 483. V. Fitchburg R.R. Corp., 401 ; vol. ii. 429, 469, 471, 595. V. Jones, '299; vol. ii. 109, 220. •V. Hanover Junction R.R. Co., vol. ii. 23. V. Hudson River R.R. Co., vol. ii. 62. V. Moore, 645. V. Schoppert, vol. ii. 729. V. Whitcomb, vol. ii. 841. Moores v. Citizens' Nat. Bank, vol. ii. 192. V. Nat. Bank of Piqua, vol. ii. 442. Moran v, Commrs. of Miami County, vol. ii. 398. Morey v. Town of Newfane, 91. Morford v. Farmers' Bank, vol. ii. 392. Morgan v. Bank of N. A., vol. ii.142, 181, 185, 226. V. Cree, vol. ii. 274. V. Lawrenceburg, vol. ii. 636. V. Louisiana, 506, 565, 594; vol. ii. 340, 356. V. N. Y. & Alb. R.R. Co., vol. ii. 421. V. Railroad Co., v. ii. 133, 618. Morgan County v. Thomas, vol. ii. 15, 36, 140, 141. Morice v. Bishop of DurhaTi, 646. Morrill v. Noyes, 659 ; vol. ii, 256. Morris v. Keil, 306, 308. V. St. Paul, etc., R.R. Co., 119. V. Thomas, vol. ii. 702. V. Way, 657. Morris Canal & Banking Co. v. Fisher, vol. ii. 363, 393, 399. Morris Canal Co. v. Lewis, vol. ii. 393, 399- Morris & Essex R.R.. Co. v. Green, 474. Morris, etc., R.R. Co. v. Haslan, vol. ii. 457. Morris & Essex R.R. Co. 11. Newark, 677. Morris & Essex R.R. Co. v. Sussex R.R. Co., 597. Morrison v. Datn, vol. ii. 477. V. Dorsey, vol. ii. 23. •V. Eaton & Hamilton R.R. Co., 583. V. Gold Mt., etc., Co., v. ii. 8. Morristown v. Shelton, loi. Morse v. Conn. River R.R. Co., 479. Morss V. Harpeth Academy, v. ii. 940. Morton Gravel Road Co. v. Wysong, 234. Morton v. Metrop. Life Ins. Co., vol. ii. 438. Mosely v. Burrow, v. ii. 729, 863, 867. Moshannon Land, etc. Co. v. Sloan, 327. Moss's Appeal, vol. ii. 146, 164, 172. Moss V. Averill, 323, 446, 627 ; v. ii. 362. V. Oakley, 580; vol. ii. 221. V. Rossie Lead Mining Co., 356, 604. Mott V. Consumers' Ice Co., vol. ii. 429, 515- V. Hicks, 9, 370, 378, 580; vol. ii. 593- V. Pa. R.R. Co., vol. ii. 347. V. U. S. Trust Co., 485. Moulin V. Trenton Ins. Co., v. ii. 608. The figures refer to the pages. TABLE OF CASES. Ixxvii Moulton V. Hunt, 639. Moultrie t'. Rockingham Savings Bank, vol. ii. 50. V. Smiley, vol. ii. 586, 633. Mt. Holly Paper Co.'s Appeal, vol. ii. 226, 442. Mount Moriah Cemetery Assoc, v. Com., 236. Mt. Olivet Cemetery Co. v. Shubert, 368 ; vol. ii. 803. Mt. Sterling Coalroad Co. v. Little, 165; vol. ii. 10, 301. Mt. Sterling, etc., Co. v. Looney, 327. Mount V. Waite, vol. ii. 411. Mousseaux v. Urquhart, 175, 185. Mowrey v. Incl. & Cin. R.R. Co., 215, 226, 227, 499, 533, 563, 623. Moyer v. Pennsyl. Slate Co., v. ii. 411. Mozley v. Alston, vol. ii. 623. Mud Creek Draining Co. v. State, vol. ii. 752. Mudgett V. Horrell, vol. ii. 49. Mullen V. St. John, vol. ii. 484. Muller V. Dows, 577 ; vol. ii. 600, 601. V. Palermo, vol. ii. 749. Muma V. Potomac Co., vol. ii. 926, 935, 941. Mumlord v. Am. Life Ins. Co., 549. V. Hawkins, 352, 449. Munkers v. Kansas City, etc., R.R. Co., vol. ii. 451. Munn V. Barnum, vol. ii. 88, 210, 214. V. Commission Co., 370. V. Currie, vol. ii. 115. V. Illinois, 519. Munroe v. Thomas, v. ii. 651, 652, 665. Murbank v. Whitney, 550. Murdock v. Phillip's Academy, vol. ii. 546, 675. Murdock's Appeal, vol. ii. 668. Murphy, ex parte, 190. Murphy v. Farmers' Bank, vol. ii. 747, 749- 750. 758. V. State Bank, 148. Murray v. Berkshire Life Ins. Co., vol. ii. 292. V. Hudson River R.R. Co., vol. ii. 525. V. Lardner, vol. ii. 398, 401. V. Nelson Lumber Co., 348. V. South Carolina R.R. Co., vol. ii. 498. Murry v. Stevens, vol. ii. 188, 804. Muscatine Turnverein v. Funck.vol. ii. 860, 926, 929. Muschamp v. Lancaster & Preston Junction R.R. Co., vol. ii. 476. Musgrave & Hart's Case, vol. ii. 221. Musgrave v. Morrison, vol. ii. 23, 37. Mussey v. Eagle Bank, 457. V. White, 186. Mu. Life Ins. Co. v. Cleveland, etc., R.R. Co., vol. ii. 393. Mutual, etc.. Life Ins. Co. v. Davis, vol. ii. 570. Mu. Lite, etc., Co. v. Haight, v. ii. 296. Mutual Ins. Co. v. Stokes, 133, 134, 136. Mu. Ins. Co. V. Supervisors of Erie, vol. ii. 321. Mut. Savings Bank v. Meriden Agency Co., 600. Myers v. Croft, 653. V. Irwin, III. V. Manhattan Bank, loj, 549. V, Pownal, vol. ii. 834. V. San Francisco, vol. ii. 536. V. York & Cumberland R.R. Co., vol. ii. 402. Nabring v. Bank of Mobile, vol. ii. 653. Naglee v. Pacific Wharf Co., vol. ii. 208, 215. Napa Valley R.R. Co. v. Napa County, vol. ii. 795. Napier v. Poe, vol. ii. 102. Narragansett Bank v. Atlantic Silk Co., 140, 288, 334. Nash V. Eldorado County, vol. ii. 176. Nashville v. Ward, 100. Nashville Bank z/. Petway, 194; vol. ii. 864, 939- z". Ragsdale, vol. ii.653. ' Nashville Gas Light Co. v. Nashville, vol. ii. 339. Nashville, etc., R.R. Co. v. Stames, vol. ii. 540. Nashville, etc., R.R. Co. v. Smith, vol. ii. 457. Nassau Gas Light Co. v. Brooklyn, vol. "■ 354- Nathan v. Whitlock, vol. ii. 72, 134, 184, 705- Nat. Bank v. Case, vol. ii. 230. V. Chicago, vol. ii. 318. V. Colby, vol. ii. 138, 928. V. Com., v. ii. 290, 297, 301. "v. Elmira, vol. ii. 328. V. Graham, 400 ; v. ii. 430, 513- V. Ins. Co., vol. ii. 244, 867. V. Mathews, 548. V. Norton, 478. "v- Page, 384. V. Van Derwerker, 39, 41, V. Watsontown Bank, 263 ; vol. ii. 86, 238, Ixxviii TABLE OF CASES. The figures refer to the pages^ Nat. Bank v. Whitney, 609. Nat. Bankof Commerce z". Huntington, vol. ii. 612. Nat. Bank of Commerce v. Nat. Me- chanics' Banking Assoc, 452. Nat. Bank of New London v. Lake Shore, etc., R.R. Co., vol. ii. 90. Nat. Bank of North Am. v. Kirby, vol. ii. 400. Nat. Bank of Watertown v. Landon, 30. Nat. Bank of Zenia v. Stewart, vol. ii. 223. Nat. Alb. Exch. Bank ii. Wells, vol. ii. 300, Nat. Com. Bank of Mobile v. Mobile, vol. ii. 297. Nat. Exchange Bank v. Hartford, etc., R.R. Co., vol. ii. 402. Nat. Ex. Bank v. Hills, vol. ii. 319. Nat. Pahquioque Bank v. First Nat. Bank, vol. ii. 867, 914, 919. Nat. Park Bank v. Gunst, 548. V. Nichols, vol. ii. 601. Nat. Pemberton Bank v. Porter, 596, Nat. Security Bank v. Cushman, 469. Nat. Shoe and Leather Bank v. Me- chanics' Nat. Bank, vol. ii. 137. Nat. State Bank v. Young, vol. ii. 297, 298. Nat. Banking Co. v. Wiltz, vol. ii. 223. Nat. Condensed Milk Co. v. Branden- brough, vol. ii. 597, 598. Nat. Exchange Co. v. Drew, 391. Nat. Manure Co. -u. Donald, 596. Nat. Trust Co. v. Miller, 600; v. ii. 696. Nat. Tube Works Co. v. Bedell, 414. Natoma Water and Mining Co. v. Clarkin, 631. Katusch V. Irving, 229. Naugatuck R.R. Co. v. Waterbury But- ton Co., vol. ii. 476. Neall V. Hill, vol. ii. 545, 586, 679, 916. Near v. Del. & Hudson Canal Co., vol. ii- 493- Neate v. Denman, 215. Needles v. Martin, 646. Neff 2/. Wolf River Boom Co., v. ii. 949. Neil V. Board of Trustees, etc., iii. Neilson w. Iowa Eastern R.R. Co., vol. ii. 269. Nelson v. Cushing, vol. ii. 673. V. Eaton, 659 ; vol. ii. 246. V. LuHng, vol. ii. 75. V. Vt., etc., R.R. Co., 525. Nerot V. Bernard, 23. Nesbitt v. Trumbo, 668. Nesmith v. Bank of Washington, 260, 261 ; vol. ii. iSl, 239. Neuse R. Navigation Co. v. Connmrs. of Newbern, vol. ii. 81. Nevada Bank ^'.Sedgwick,v.ii. 291, 318. Nevins v. City of Peori.T, vol. ii. 464. Nevitt V. Bank of Port Gibson, v. ii. 738. New Albany v. Burke, vol. ii. 119, 129. New Alb. & Plank R. Co. v. Smith, vol. ii. 393. New Albany, etc., R.R. Co. v. Fields, vol. ii. 70, 72. New Albany, etc., R.R. Co. v. Grooms, vol. ii. 610. New Albany, etc., R.R. Co. v. Huff, 576. New Albany, etc., R.R. Co. v. Slaugh- ter, vol. ii. 72. New Albany R.R. Co. v. McNamara, 531- V. Pickens, vol. ii. 116. V. Tilton, 526 ; V. ii. 610. Newark Plank Road, etc., Co. v. Elmer, vol. ii. 449. New Athens v. Thomas, 289, 291. New Bedford, etc., T. Co. v. Adams, vol. ii. no. Newberry v. Detroit, etc.. Iron Co., vol. ii. 200, 206, 234. New Boston v. Dunbarton, 146, 149. New Brunswick, etc., R.R. Co. v. Mug- geridge, vol. ii. 68. New burg Petroleum Co. v. Weare, 212, 545. 555; vol. li. 568. Newburg Turnpike Co. v. Miller, 497 ; vol. ii. 576. Newby ■v. Oregon Cent. R.R. Co., 121 ; vol. ii. 576, 577. V. Van Oppen, etc., Manf. Co., vol. ii. 597, 605. Newcastle v. Atty. Genl., ii. Newcomb v. Reed, 200. Newell V. Gt. Western R.R. Co., vol. ii. 597, 609. V. Smith, vol. ii. 678, 711. V. Williston, vol. ii. 296. New England, etc., Bank v. Newport Steam Factory, vol. ii. 421. New England Car Spring Co. v. Union India Rubber Co., 469. New England Fire & Marine Ins. Co. V. Schettler, 375, 429. New England Fire, etc., Co. v. Robin- son, 627 ; vol. ii. 362. New England Iron Co. v. Elevated R.R. Co., 625, 626. New England Ins. Co. v, Robinson, 291. The figures refer to the pages » TABLE OF CASES. Ixxix New England Manf. Co. v. Vandyke, vol. ii. 646. New England Marine Ins. Co. v. De Wolf, 369, 379. New England Mut. Life Ins. Co. v. Woodworth, vol. ii. 60R. New England Trust Co. v. Eaton, vol. ii. 173. Newfoundland R.R., etc., Co. v. Schack, vol. ii. 935. Newhall v. Galena, etc., Union R.R. Co., 623. New Hampshire, etc., R.R. Co. v. Johnson, 152, 168; vol. ii. 49. New Haven, etc., R.R. Co. v. Chap- man, vol. ii. 54, 61, 102. New Haven Cent. R.R. Co. v. Johnson, vol. ii. 93, no. New Hope, etc., Bridge Co. v. Phoenix Bank, 367. New Hope, etc.. Bridge Co. v. Pough- keepsie Silk Co., vol. ii. 569. New Jersey, etc.. Bank v. Thorp, vol. ii. 568. New Jersey v. Yard, 536 ; vol. ii. 340. N. J. Midland R.R. Co. v. Strait, 571. N. J. Southern R.R. Co. v. Long Branch Commrs., vol. ii. 729, 908, 909, 923. N. J. Steamboat Nav. Co. v. Merchants' Bank, vol. ii. 483. Newling z/. Francis, 170; vol. ii. 837. Newman, ex parte, vol. ii. 785, 817. New Market Savings Bank v. Gillet, 625. Newmyer's Appeal, 652. New Orleans Banking Assoc, v. Wiltz, III. New Orleans v. Cazelar, vol. ii. 874. ■u. Clark, 503. V. Houston, 100. V. Morris, 679. V. People's Bank, vol. ii. 297. V. Statham, vol. ii. 540. New Orleans Gas Light Co. v. Haynes, vol. ii. 706. New Orleans Gas Co. v. Louisiana Light Co., 503, 506, 563, 587, 666 ; vol. ii. 878. New Orleans Nat. Banking Assoc, v. Wiltz, 255. New Orleans, etc., Co. v. Briggs, vol. ii. 115. New Orleans, etc., Packet Co. v. Brown, 462. New Orleans, etc., R.R. Co. v. Bailey, vol. ii. 537, 541. New Orleans, etc., R.R. Co. v. Board of Assessors, vol. ii. 290. New Orleans, etc., R.R. Co. v. Burke, vol. ii. 475. New Orleans, etc., R.R. Co. v. Dela- more, 592 ; vol. ii. 247. New Orleans, etc., R.R. Co. v. Harris, 215, 228, 508, 563, 622; vol. ii. 55, 62, 850. New Orleans, etc., R.R. Co. v. Hurst, vol. ii. 541. New Orleans, etc., Co. v. Louisiana, etc., Co., 558. New Orleans, eic, R.R. Co. v. Mitch- ell, vol. ii. 457. New Orleans, etc., R.R. Co. v. New Orleans, vol. ii. 876. New Orleans, etc., R.R. Co. v. Will- iams, vol. ii. 66. New Orleans Water Works v. Rivers, 587. New Orleans Water Works Co. v. St. Tammany Works, 671. Newport, etc., Co. v. Starbird, 115; vol. ii. 618. Newport Marsh Trustees, ex parte, 148. Newsom i). Cocke, vol. ii. 731. Newton v. Commissioners, 522. V. Fay, vol. ii. 198. Newton Manf. Co. v. White, vol. ii. 859, 860, 865. New York v. Bailey, 404; vol. ii. 491. N. Y. African Soc. v. Varick, 118; vol. ii. 633. New York, etc.. Canal Co. v. Fulton Bank, vol. ii. 618. New York Car Oil Co. v. Richmond, vol. ii. 640. N. Y. Cent. Ins. Co. v. Nat. Protection Ins. Co., 393. New York Dry Docks v. Hicks, 627 ; vol. ii. 568. N. Y. Exchange Co. v. De Wolf, vol. ii. 52, 66. N. Y. Firemen's Ins. Co. v. Ely, 598 ; vol. ii. 565. New York Firemen's Ins. Co. v. Stur- ges, 541. New York Floating Derrick Co. v N. J. Oil Co., 545. N. Y. Iron Mine v. Negaunee Bank, 429. N. Y. Marbled Iron Works v. Smith, vol. ii. 867. New York, etc. v. Kip, 484. N. Y. Nat. Exchange Bank v. Jones, vol. ii. 635. Ixxx TABLE OF CASES. The figures refier to the pages. N. Y. & Va. State Stock Bank v. Gib- son, vol. ni. 133. New York, etc., R.R. Co. v. Boston, etc., R.R. Co., 667. N. Y. & New Haven R.R. Co. -v. Ketchum, vol. ii. 367, 374, 390, 463- N. Y., etc., R.R. Co. v. Hunt, vol. ii. 42, 46, 94. N. Y. & Harlem R.R. Co. v. Kip, 670, 671. N. Y. Cent. R.R. Co. v. Metrop. Gas Light Co., 670. N. Y. & Harlem R.R. Co. v. New York, 624. N. Y., etc., R R. Co. v. Nickals, vol. ii. 148. N. Y. Cent., etc., R.R. Co. v. People, vol. ii. 799. New York & N. H. R.R. Co. v. Pixley, vol. ii. 574. N. Y. & Erie R.R. Co. v. Sabin, vol. ii, 336. N. Y. & New Haven R.R. Co. v. Schuyler, 174, 322, 333, 394, 398; vol. ii. 56, 86, 87, 89, 90, 180, 181, 185, 191, 198, 200, 208, 217, 429, 618, 625. N. Y., etc.,Tel. Co. v. Dryburg,v. ii. 431 Nicholas v. Oliver, 380. NichollsT/. Diamond, 385. Nichols V. Burlington, etc., P. R. Co., vol. ii. 24, 94. V. Burlington R.R. Co., vol. ii. 22. V. Frothingham, 335. V. Thomas, 6. Nichols' Case, vol. ii. 139, 442. Nicholson v. Bradford Union, 284. V. Erie R.R. Co., vol. ii. 503. V. Leavitt, 656. Nicol V. Walworth, 651. NicoU V. N. Y. & Erie R.R. Co., 627, 633. 654- V. Mumtord, 23. Nilson V. Gaines, vol. ii. 356. Nimmons v. Tappan, vol. ii. 863, 867. Nippensose Manf. Co. v. Stadon, vol. ii. 42. Nixon V. Green, vol. ii. 63. Noble V. Callender, vol. ii. 50, 106. V. Halliday, vol. ii. 705. Noesen v. Port Washington, vol. ii. 53. Nolton V. Western R.R. Co., v. il. 490. Norris v. Androscoggin R.R. Co., 525. V. Mayor, etc., of Smithville, vol. ii. 856. V. Stapps, 236. Norris v. Vt. Cent. R.R. Co., vol. ii. 459- V. Wrenschall, vol. u. 176, 413- North V. State, vol. ii. 861. Northampton Bank v. Pepoon, 369, 433- North Am. Building Assoc, v. Sutton, vol. ii. 187, 643, 644. Am. Mining Co. v. Clarke, 230. Carolina R.R. Co. v. Leach, voL ii- 15. 5°. 59.65. Cent. R.R. Co. v. Rider, vol. 11. 653- Lebanon v. Arnold, vol. ii. 420. Hempstead v. Hempstead, 60, 61, 91. Missouri R.R. Co. v. Akers, vol. ii. 610. Pacific R.R.Co. v. Reynolds,674. Pa. R.R. Co. V. Adams, vol. ii. 398. River Bank v. Aymar, 474, 478. River Ins. Co. v. Lawrence, 548. Safford Steel, etc., Co. v. Ward, vol. ii. 93. Ward Nat. Bankz/. Newark, vol. ii. 290. Yarmouth v. Skillings, v. ii. 874. Northeast. R.R. Co. v. Casey, v. ii. 914. V. Rodrigues, vol. ii. 70, 72, 115. Northern Bank of Ky. v. Keizer, vol. ii. 238. Cent. R.R. Co. v. Bastian, 307. Cent. Mich. R.R. Co. v. Eslow, vol. ii. 7. Cent. R.R. Co. v. Husson, vol. ii. 497. Cent. R.R. Co.z/. Rider, voL ii. 665. Liberty Market Co. v. Kelly, 633. 654- Pacific R.R. Co. v. St. Paul, etc., R.R. Co., 666. R.R. Co. V. Eastern Coun- ties R.R. Co., 556. R.R. z/. Kennedy, vol. ii. 116. R.R. Co. 7/. Miller, 482, 533 ; vol. ii. 3, 63, 106. R.R. Co. V. Page, 246. Transp. Co. v. Chicago, 627. Northwestern Distilling Co. v. Bryant, 115. Fertilizing Co. v. Hyde, 10. Mut. Life Ins. Co. v. Overholt, 552. The figures_ refer to the pages. TABLE OF CASES. Ixxxi Northwestern R.R. Co. ■z'. Winray, 344. Union Packet Co. ij. Shaw, 617. University v. The Peo- ple, vol. ii. 348. Northrop w. Curtis, 271. V. Newtown Turnpike Co., 270, 276. Northrup v. Miss. Valley Ins. Co., 474. Northumberland County Bank v. Eyer, vol. ii. 628, 634, 636. Norton v. Newton, etc., Tump. Co., vol. ii. 205. V. Thatcher, 21. Norway Plains Co. v. Boston & Me. R.R., 410; vol. ii. 478. Nourse v. Prime, vol. ii. 211. Noyes v. Marsh, vol. ii. 185. ■V. Rutland & Burlington R.R. Co., vol. ii. 475. V. Smith, vol. ii. 492, 496. V. Spaulding, vol. ii. 88, 210. Nugent V. Supervisors, 513, 533, 563, 564 ; vol. ii. 35, 63, 393. Nulton V. Clayton, 164. Nutter ^i. Lexington, etc., R.R. Co., vol. ii. 23. Nutting V. Thomason, vol. ii. 189, 196. Oakes v. Hill, 653 ; vol. ii. 771. V. Turquand, vol. ii. 68, 76. Oakland Bank v. Wilcox, vol. ii. 616. Oakland v. Oakland, etc., R.R. Co., vol. ii. 838, 931. Oakland R.R. Co. v. Keenan, vol. ii. 656. Oakley v. Paterson Bank, vol. ii. 679. Oberlander v. Speiss, 399. O'Brien v. Boston & Worcester R.R. Co., vol. ii. 516. V. Chicago, etc., R.R. Co., vol. ii. 571. V. Mechanics', etc., Ins. Co., vol. ii. 653. Ocean Ins. Co. v. Portsmouth R.R. Co., vol. ii. 599. Ochiltree v. Railroad Co., vol. ii. 418. Occidental, etc., Assoc, v. Sullivan, vol. ii. III. Occum Co. V. Sprague Co., 629. O'Donald v. Evansville, etc., R.R. Co., vol. ii. 627. O'Donnell v. Allegheny Valley R.R. Co., vol. ii. 499. V. Bailey, vol. ii. 346. Odd Fellows Hall Co. v. Glazier, vol. ii. : 106. Ogden w. Gibbons, 497. Ogdensburgh, etc., R.R. Co. v. Frost, vol. ii. 47, 81, 116. Ogdensburgh, etc., R.R. Co. v. WoUey, vol. ii. 47, 101. Ogilvie V. Crawford County, v. ii. 308. V. Knox Ins. Co., vol. ii. 71, 78, 123, 127. Ogle V. Somerset T. R. Co., v. ii. 108. Oglesby v. Attrill, 90, 490. Ohio V. Frank, vol. ii. 176, 400. Ohio Ins. Co. v. Nunnemacher, v. ii. 58. Ohio Life Ins. & Trust Co. v. Debolt, 493, 495, 499. Ohio Life Ins. Co. v. Merchants Ins. Co., 546, 580, 604. Ohio & Miss. R.R. Co. v. Davis, vol. ii. 268, 678, 711. Ohio & Miss. R.R. Co. v. Hatton, vol. ii. 383. Ohio & Miss. R.R. Co. v. Ind. & Cin. R.R. Co., 588. Ohio & Miss. R.R. Co. v. McClelland, 518, 525. Ohio & Miss. R.R. Co. v. McPherson, 213 ; vol. ii. 96, 100. Ohio, etc., R.R. Co. v. Commissioners, vol. ii. 781. V. Brubaker, 525. V. Quier, v. ii. 606, V. Weber, 575; vol. ii. 601. Ohio & Miss. R.R. Co. v. Wheeler, 11, 123, 574, 575 ; vol. ii. 601. Ohio Wesleyan Female College v. Hig- gins, vol. ii. 8. Oil Creek, etc., R.R. Co. v. Pennsyl- vania Transp. Co., 605, 609 ; vol. ii. 372. Olcott V. Supervisors, 669. V. Tioga R.R. Co., 9, 323, 352, 381, 468; vol. ii. 371. Old Colony R.R. Co. v. Evans, 484, 580, 627, 633 ; vol. ii. 362. Old South Soc. V. Crocker, 643. Oldtown & Lincoln R.R. Co. v. Veazie, 515; vol. ii. 93. Oliphant v. Woodburn Coal, etc., Co., vol. ii. 616, 617. Oliver v. Liverpool Ins. Co., 19, 31 ; vol. ii. 280. V. North Pacific Transp. Co.,vol. ii. 526. V. Northeastern R.R. Co., vol. ii. 455- V. Washington Mills, v. ii. 321. O'Neal V. King, vol. ii. 23. V. School Commrs., 93. Oneida Bank v. Ontario Bank, 602. Ixxxii TABLE OF CASES. The figures refer to the pages. Ontario Bank v. Bunnell, vol. ii. 293. Ontario, etc., R.R. Co. v. Curtis, 165. Orange, etc., R.R. Co. v. Alexandria, vol. ii. 274, 28S, 348. Oregon Cent. R.R. Co. v. Scoggin, vol. ii. 70, 93. Oregon Investment Co. v. Rathbone, 552- Oregon Steannship Co. v. Otis, 480. O'Reiley v. Kankakee Draining Co., 124. Orleans Building Co. v. Lawson, 609. Ormerod v. N. Y., West Shore, etc., R.R. Co., 667. Ormsbee v. Davis, 22. Ormsbyz/. Vt. topper Mining Co., 211 ; vol. ii. 904. Orno V. Wedgewood, vol. ii. 636. Oroville, etc., R.R. Co. v. Supervisors of Plumas Co., 127, 155, 590; vol. ii. 248. Orphan Asylum v. McCartee, vol. ii. 678, 682. Orr V. Baker, vol. ii. 350. V. Bank of U. S., v. ii. 428, 469, 595. V. Bigelow, vol. ii. 210, 214. V. Lacey, 597. Osborn v. Bank of U. S., 103, 288 ; vol. ii. 294, 580, 600, 604, 616. V. Crosby, vol. ii. 11. V. Gillett, vol. ii. 465. V. Hart, 669. Osborne v. Humphrey, vol. ii. 345. V. Mobile, vol. ii. 307, 310. Osgood V. King, vol. li. 128. V. Laytin, vol. ii. 148, 704. V. Maguire, vol. ii. 691, 704. V. Manhattan Co., vol. ii. 644. V. Ogden, vol. ii. 130. Oskaloosa Agr. Works v. Parkhurst, vol. ii. 21. Ossipee, etc., Manf. Co. v. Canney, 608 ; vol. ii. 23. Otis V. Gardner, vol. ii. 86, 204. Otis Co. V. Inhabs. of Ware, 11. Oswego Falls Bridge Co. v. Fish, 491, 497. Ottawa Gaslight Co. v. Graham, vol. ii. 523- Ottawa Glass Co. v. McCaleb, vol. ii. 291. Ottawa Northern Plank R. Co. v. Mur- ray, vol. ii. 371. Utter V. Brevoort, vol. ii. 45. Ottoman Cahvey Co. v. Dane, 122. Ould V. Washington Hospital, 641. Overseers v. Sears, 6p, 61,63, 114, 162, 653. Overton v. Memphis, etc., R.R. Co., vol. ii. 68 r. Owen V. Purdy, 132, 138, 352. V. Smith, vol. ii. 937. V. Whitaker, 192; vol. ii. 728. Owings V. Speed, 324. Owsley V. Montgomery & West Point R.R. Co., vol. ii. 438, 596. Oxford Iron Co. v. Quinckett, v. ii. 406. Oxford Iron Co. v. Spradley, vol. ii. 364, 406. Oxford Turnpike Co. v. Bunnel, 270, 276 ; vol. ii. 204. Pacific Bank v. De Ro., 119. Pacific Guano Co. v. Mullein, v. ii. 640. Pacific Railroad Removal Cases, vol. ii. 603. Pacific R.R. Co. v. Cass Co., v. ii. 254. V. Hughes, 514; vol, ii- 53- V. McGuire, 514; vol. ii. 346. V. Renshaw, 533 ; vol. ii. 5, 107. V. Seely, 493, 629. V. Thomas, 348. Paddock v. Brown, 82. Page V. Crossley, "JT. V. Hardin, vol. ii. 793. V. Heineberg, 627, 654. Paige V. Smith, vol. ii. 508, 710, 711. Paine v. Hutchinson, vol. ii. 221. V, Indianapolis, etc., R.R. Co., vol. ii. 601. V. Lake Erie, etc., R.R. Co., 573- 574. 611. V. Stewart, vol. ii. 416, 421. Painesville, etc., R.R. Co. v. King, vol. ii. 28. Painesville, etc., R.R. Co. v. Leverett, vol. ii. 160. Palestine v. Barnes, vol. ii. 651. Palfrey v. Paulding, 135. Palmer v. Doney, 219, 224. V. Forbes, vol. ii. 254. V. Lawrence, 604 ; vol. ii. 8l. V. Merrill, vol. ii. 216. V. Ridge Mining Co., v. ii. 220. V. Stevens, 379. V. Vandenbergh, 91. V. Yates, 365, 367. Pancoast v. Gowan, vol. ii. 658. Papy's Case, vol. ii. 546. Paret v. Bayonne, vol. ii. 595. Paris V. Paris, vol. ii. 171. Parish of Bellport & Petty v. Tooker, 78, 8l ; vol. ii. 728. The figures refer to the pages. TABLE OF CASES. Ixxxiii Parish v. Wheeler, 603, 607, 659 ; vol. ii. 246. Park Commrs. v. Detroit, vol. ii. 876. Park V. Grant Locomotive Works, vol. ii. 149, 150. V. Spaulding, 34. Parke v. Com. Ins. Co., vol. ii. 606. Parker v. Browning, vol. ii. 506, 697. V. Erie R.R. Co., vol. ii. 474. V. Fales, 76. V. Gt. Western R.R. Co., 496. V. Kett, 311. V. Mason, vol. ii. 173. V. McKenna, 443. ■V. Metrop. R.R. Co., vol. ii. 882. V. Nickerson, 441, 611. V. Northern Cent., etc., R.R. Co., vol, ii. 7, 14. V. Savage Placer Mining Co., vol. ii. 269. V. Smith, vol. ii. 749. V. Thomas, vol. ii. i6, 70. Parker Mills v. Commrs. of Taxes, 11 ; vol. ii. 282. Parkersburg v. Brown, vol. ii. 280. Parks V. Evansville, etc., R.R. Co., vol. ii. 26, 74. V. Waltham, vol. ii. 377. Parmly v. Tenth Ward Bank, vol. ii. 677. Parnaby v. Lancaster Canal Co., vol. ii. 564. Parrot v. Byers, vol. ii. 201. V. Cincinnati, etc., R.R. Co., vol. ii. 454. V. City of Lawrence, 496. Parsons v. Goshen, 463. V. Jackson, vol. ii. 400. V. Lyman, 639. V. Monteath, vol. ii. 483. Partridge v. Badger, 186, 354. Passenger R.R. Co. v. Young, vol. ii. 472. Passmore v. Phila., etc., R.R. Co., 671. Patchin v. Ritter, vol. ii. 324. Patten v. Accessory Transit Co., vol. ii. 682. Paterson v. Mayor, etc., of N. Y., 316. V. Society, etc., v. ii. 348, 874. Patterson v. Arnold, 44 ; vol. ii. 639. V. Hubbs, vol. ii. 749. V. Miss., etc., Boom Co., 664, 665. Pattison v. Syracuse Nat. Bank, 406, 453- Patton V. Minesmger, vol. u. 532. Paul V. Virginia, 7, 551, 553, 586. Paxson V. Sweetj 239. Payne v. BuUard, vol. ii. 175. V. Commercial Bank of Natchez, 451. V. Elliot, vol. ii. 86. V. Western, etc., R.R. Co., vol. ii. 432. Payson v. Stoever, 532 ; vol. ii. 56. Peabody v. Flint, 8, 228, 467, 61 1 ; vol. ii. 580, 588, 623. Peacock v. Peacock, 24. V. Rhodes, vol. ii. 402. Peake v. Wabash R.R, Co., v. ii. 2, 96. Pearce v. Madison, etc, R.R. Co., 562 ; vol. ii. 410, 443. Pease v. Del., Lack. & Western R.R. Co., vol. ii. 473. Peck V. Mayor, etc., 414. V. N. Y. Cent, & Hudson River R.R. Co., vol. ii. 468, 469. Peckham v. Hendren, 431, 469. V. North Parish, vol, ii. 597. Peddicord v. Baltimore, etc., R.R. Co., 677. Peebles v. Patapsco Guano Co., vol. ii. 429. 443- Peek u. Detroit Novelty Works, 478. Peel V. Thomas, 37. Pees V. Leeds, vol. ii. 826. Peirce v. Burroughs, vol. ii. 173. V. Partridge, vol. ii. 581. Pelton V. Nat. Bank, vol. ii. 321. e/. Northern Transp. Co., vol. ii. 285. Pendergast v. Bank of Stockton, 255, 263; vol. ii. 181, 223, 230. Pendleton County v. Amy, vol. ii. 405. Pendleton v. Bank of Ky., 115. Peninsular Bank v. Hanmer, v. ii. 379. Peninsular R.R. Co. v. Tharp, 562. Penney, ex parte, vol. ii. 180. Penniman v. Briggs, 95 ; vol. ii. 870. Pennington v. Townsend, 598. Pennock v. Coe, 493, 659 ; vol. ii. 246, 255. Pennoyer v. Neff, vol. ii, 608. Pa. R.R. Co. V. Ackerman, vol. ii. 457. Pennsylv. R.R. Co.'s Appeal, 271, 666, 668 ; vol. ii. 194. Pennsylv. R.R. Co. v. Bait., etc., R.R. Co., 671. Pa. R.R. Co. V. Beale, vol. ii. 457. Pennsylvania R.R. Co. v. Books, vol. ii. 485, 522, 526, 533. Pennsylvania, etc., R.R. Co. v. Bun- nell, 678. Pennsylvania R.R. Co. v. Canal Commrs., 11, iii ; vol. ii. 783. Ixxxiv TABLE OF CASES. The figurit re/ir to thep.ages. Pennsylv. R.R. Co. v. Henderson, vol. ii. 483, 486, 534. Pa. R.R. Co. V. New York, etc., R.R. Co., vol. ii. 876. V. Pemberton, etc., R.R. Co., vol. ii. 680. V. Price, vol. ii. 490. V. Riblet, 525. V. R.R. Co., 679. V. Weber, vol. ii. 457. Penn. R.R. Co. v. Vandiver, vol. ii. 471, S9S- Pennsylvania Co. v. Wentz, 526. Pennsylvania College Cases, v. ii. 313. Pa., Del. & Md. Steam Nav. Co. v. Dan- dridge, 510. Pennsylvania Transp. Co.'s Appeal, vol. ii. 948. Penobscot Broom Corp. v. Lamson,io2, 103, 104, 129, 133. Penobscot, etc., R.R. Co. v. Bartlett, vol. ii. 34, 94. Penobscot R.R. Co. v. Dummer, vol. ii. 4, 94, 96. Penobscot, etc., R.R. Co. v. Dunn, vol. ii. 16, 44, 81, 90, 142. Penobscot R.R. Co. v. White, vol. ii. 16, 640, 645. Pensacola Tel. Co. v. Western Union Tel. Co., 549 ; vol. ii. 310. Pentz V. Citizens', etc., Co., 241 ; vol. ii. 112, 914. V. Hawley, vol. ii. 699, 705. People V. Abbott, vol. ii. 760. V. Adams, vol. ii.- 767. V. Albany Med. College, vol. ii. 813. V. Alb. & Susq. R.R. Co., vol. ii. 724, 739. V. Albany, etc., R.R. Co., 171, 186, 202, 214; vol. ii. 624, 681, 685, 764, 801. V. Alb. & Vt. R.R. Co., vol. ii. 858. V. Assessors, 4, 13 ; vol. ii. 320. V. Assessors of Watertown, 60. V. Ballou, vol. ii. 767. V. Bank of Hudson, vol. ii. 765. V. Bank of Niagara, vol. ii. 742. V. Barker Am. R.R., vol. ii. 325. V. Bartlett, vol. ii. 732. V. Batchelor, 202, 204. V. Bay State Shoe & Leather Co., vol. ii. 285. V. Beardsley, vol. ii. 328. V. Beebe, vol. ii. 833. V. Beigler, 140. V. Ben. Soc, vol. ii. 808. People V. Board of Assessors, v. ii. 146. V. Board of Education, v. ii. 814. V. Bogart, vol. ii. 743. V. Board of Metrop. Police, vol. ii. 831, 833. V. Board of Supervisors, vol. ii. 296. V. Board of Trade, 34 ; vol. ii. 544. 562, 784. 785- V. Boston, etc., R.R. Co., 525. V. Bradley, vol. ii. 291. V. Bristol, etc.. Tump. Co., vol. ii. 721, 756, 862, 925. V. Brooklyn, vol. ii. 272, 773. V. Cady, vol. ii. 822. V. Canal Commrs., 678. V. Carpenter, vol. ii. 734. V. Cemetery Co., vol. ii. 350. V. Central Car, etc., Manuf. Co., vol. ii. 163. V. Cent. R.R. Co., vol. ii. 599. V. Cheeseman, 484. V. Chicago, vol. ii. 775, 874. V. Chicago Board of Trade, vol. "• 550. 554, 555- V. Church of the Atonement, vol. ii. 667. V. City of Oswego, vol. ii. 285. V. Clute, vol. ii. 767. V. College of California, vol. ii. 842. V. Collins, vol. ii. 821, 827. V. Commissioners, vol. ii. 149. V. Commissioners, etc., vol. ii. 289, 300. V. Commrs.of Hudson, V. ii. 833. V. Commrs. of Taxes, 517, 535 ; vol. ii. 300, 319. V. Commrs. of Texas, v. ii. 296. V. Compagnie Gen. Transatlan- tique, vol. ii. 305. V. Conklin, vol. ii. 586. V. Connor, vol. ii. 766. V. Cook, vol. ii. 725. V. Corp. of N. Y., V. ii. 732, 769. V. Crockett, 236 ; vol. ii. 185, 188, 223, 230, 804. V. Crossley, 182, 236. V, Davenport, vol. ii. 348. V. D.e Mill, vol. ii. 755. V. Densmore, vol. ii. 834. V. Dispensary & Hospital Soc, vol. ii. 891. V. Dolan, vol. ii. 318. V. Draper, vol. ii. 734. V. Dupuyt, 92. V. Dutchess, etc., P. R. Co., vol. ii; 799, 827. The figures refer to the pages. TABLE OF CASES. Ixxxv People V. Easton, vol. ii. 815. V. Empire Mu. Life Ins. Co., 572. V. Erie R.R. Co., vol. ii. 867. V. Everitt, vol. ii. 823. V. Farnhaiti, 154, 155. V. Farrington, vol. ii. 563. V. Finger, vol. ii. 834. V. Fire Assoc, of Phila., 533 ; vol. ii. 334. V, Fire Underwriters, v. ii. 550. V. Fishkill P. R. Co., vol. ii. 908. V. Fredericks, vol. ii. 325. V. Fulton, 78. V. Gas Light Co., vol. ii. 745. V. Globe Mu. Ins. Co., 461 ; vol. ii- 733- * V. Goss Manf. Co., vol. ii. 804. V. Grand Blanc, etc., P. R. Co., vol. ii. 888. V. Green, vol. ii. 784, 794. V. Hartwell, vol. ii. 735. V. Hatch, vol. ii. 770, 783. V. Higgins, vol. ii. 545, 563. V. Hills, vol. ii. 745. V. Hillsdale & Chatham Tump. Co., vol. ii. 739, 895, 924. V. Hoffman, vol. ii. 296. V. Home Ins. Co., vol. ii. 291, 317- V. Jackson, etc., P. R. Co., vol. ii. 902. V. Jameson, vol. ii. 788. V. Jones, vol. ii. 763. ?/. Judge, etc., vol. ii. 788. V. Judges of Branch, v. ii. 771. V. Kankakee River Improve- ment Co., vol. ii. 736. V. Kerr, 675, 876. V. Kildruff, vol. ii. 805, 829. V. Kingston, etc.. Tump. Co., vol. ii. 728, 730, 766. V. Lake Shore, etc., R.R. Co., vol. ii. 806. V. Lathrop, 93. V. Livingston, vol. ii. 766. V. Long Island R.R. Co., vol. ii. 785. V. Loomis, vol. ii. 767. •V. Loucks, vol. ii. 776. V. Manhattan Co., vol. ii. 443-, 756, 763, 947. v: Manhattan Gas Co., vol. ii. 781, 798- V. Manhattan Fire Ins. Co., vol. ii. 296. V. Marshall, 531. People V. Mauran, 633. V. Maynard, 146 ; vol. ii. 734. V. Medical Soc, 160, 240; vol. ii. 544, 550, 556, 8n. V, Merchants', etc.. Bank, vol. ii. 166. V. Metrop. R.R. Co., 436. t/. Miller, 278; vol. ii. 223. V. Miss. & Atlantic R.R. Co., vol. ii, 749. f, Morrell, 10 1. •V. Morris, 61, 68, 105. V. Munson, 654. V. Mu. Gas Light Co., 587. V. Nelson, 88, 108. V. New York, vol. ii. 771, 772. V. N. Y. Board of Underwriters, vol. ii. 552. V. N. Y. Central & Hudson River R.R. Co., vol. ii. 783, 799- V. New York, etc., Co., vol. ii. 291. V. N. Y. Com. Assoc, 239 ; vol. ii. 550, 552. V. N. Y. Cotton Exchange, vol. ii. 560. V, Niagara, vol. ii. 324. V. Niagara Bank, voL ii. 760. ■V. Northern Pacific R.R. Co., vol. ii. 808, 898. V. Nuthill, 161. V. Oakland County Bank, vol. ii. 8go. V. O'Keefe, vol. ii. 771. V, Olmsted, vol. ii. 817. V. Ottawa Hydraulic Co., vol. ii. 904. V. Pacific M, Si Co., vol. ii. 807. V. Parker Vein Coal Co., vol. ii. II, 56, 187, 804. z/.' Pease, vol. ii. 759, 760, 761. V. Peck, 203. V. Percellsi vol. ii. 760. V. Phillips, vol. ii. 760, 762, 767. V: PhcEnix Bank, vol. ii. 904. V. Pinkney, 91. V. Potter, vol. ii. 634, V. Railroad, vol. ii 754. V. Ransom, vol. ii. 825. w. Ravenswood, etc., Co., vol. ii. 633, 641,763.. V. Rector, etc., of Church of the Atonement, 74, 185. ^'. Rensselaer, etc., R.R. Co., vol. ii; 752. V: Richardson, vol. ii. 752. V. Robinson,- 175. Ixxxvi TABLE OF CASES. The figures refer to the f ages. People V. Rochester, 204. V. Runkel, 174, 194, 195, 651 ; vol. ii. 634. V. Ryder, vol. ii. 757. V. Sacramento County, 90. V. Sailors' Snug Harbor, 232 ; vol. ii. 557, 559, 670. V. Salem, 665 ; vol. ii. 780, 795. V. Salomon, 130; vol. ii. 830. V. Saratoga, etc., R.R. Co., 1 52 ; vol. ii. 765. V. St. Franciscus Benevolent Soc, vol. ii. 556, 557, 808. V. St. Stephens' Church, vol. ii. 784. 57. Schoonrnaker, 12. V. Scrugham, vol.ii. 812. V. Seaman, vol. ii. 767. V. Selfridge, 126. V. Seymour, vol. ii. 834. V. Sierra, etc., Co., vol. ii. 743. V. Smith, 665. V. State Ins. Co., vol. ii. 807. V. Steele, 79 ; vol. ii. 585, 770, 825. V. Stevens, vol. ii. 769, 772. V. Stockton, etc., R.R. Co., vol. ii. 12, 103, 382. V. Stratton, vol. ii. 762. V. Supervisors, vol. ii. 143. V. Supervisors of Greene Co., vol. ii. 774. V. Supervisors of Chenango Co., vol. ii. 774. V. Supervisors of Columbia, vol. ii. 834. V. Supervisors of Westchester Co., vol. ii. 778, 786, 791, 827. V. Sweeting, vol. ii. 735. V. Swift, vol. ii. 389. V. Thatcher, v. ii. 759, 760, 762. V. Thompson, vol. ii. 728, 764, 771, 925. •u. Throop, vol. ii. 808, 824. V. Tibbetts, vol. ii. 732, 735. V. Tisdale, vol. ii. 745. V. Township Board, etc., 440. V. Troy, etc., R.R. Co., vol. ii. 775- V. Trustees of Geneva College, 2 ; vol. ii. 733. V. Trustees of Schools, 92. V. Tuthill, 183. V. Twaddell, 180, 195 ; vol. ii. 838, 860. v. Universal Life Ins. Co., vol. ii. 713. People V. Utica Ins. Co., 10, 50, 484, 492, 586, 657 ; vol. ii. 293, 724, 725, 728. V. Vail, vol. ii. 761. V. Van Cleve, vol. ii. 761. V. Waite, vol. ii. 735. V. Walker, 498 ; vol. ii. 822, 845. V. Washington & Warren B'k, vol. ii. 742. V. Weaver, vol. ii. 292, 318, 319, 321. V. Whitcomb, vol. ii. 743, 764. V. Whyler, vol. ii. 330. V. Williams, vol. ii. 787. V. Wren, loi ; vol. ii. 875. V. Young Men's, etc., Soc, 208. People's«Bank v. Gridley, v. ii. 86, 205. V. Kurtz, vol. ii. 89, 442. People's Ferry Co. v. Balch, vol. ii. 20. People's Ins. Co. w. Westcott, 202, 210, 323 ; vol. ii. 94. People's Savings Bank v. Collins, 151. Peoria & Rock Island R.R. Co. v. Coal Valley Mining Co., 572. Peoria, etc., R.R. Co. v. Elting, vol. ii. 62,81, 106, IIS. V. Preston, 515 ; vol. ii. S3, 62, 93. V. Sawyer, 674. Peppin v. Cooper, 339. Percy v. Millandon, 364. Perkins v. Bradley, 4So. V. Missouri, etc., R.R. Co., vol. ii. 540. V. N.Y. Cent. R.R. Co., vol.ii. 483, 486, S22. V. Portland, etc., R.R. Co., 606. V. Saunders, 134. V. Savage, vol. ii. 71. V. Union Button-Hole Co., vol. ii. 8. V. Washington Ins. Co., 327, 334. V. Watson, S48. Perley v. Railroad, vol. ii. S23. Perpetual Ins. Co. v. Goodfellow, vol. ii. 183. Perret's Case, 5S7. Perrine v. Chesapeake & Del. Canal Co., 487, 493. V. Fireman's Ins. Co., vol. ii. 209, 239. z*. Granger, 2S4; vol. ii. 112, 22s, 914. Perry v. Adams, vol. ii. 658. Tke figures refer to the pages. TABLE OF CASES. Ixxxvii Perry v. Simpson Water-Proof Manuf. Co., vol.ii. 370, 387. V. Tupper, 162. Peru Bridge Co. v. Hendriclcs, 658. Peru Iron Co., ex parte, 624. Pervear v. Com., vol. ii. 338. Petersburg Savings & Ins. Co. v. Lumsden, vol. ii. 226, 233. Peterson v. Mayor of N. Y., 624; vol. ii. 385. V. Sinclair, vol. ii. 663. Pettibone v. McGraw, vol. ii. 421. Pettingill T/. Androscoggin, etc., R.R. Co., vol. ii. 663. V. Evans, 660. Pettis V. Atkins, 100. Phelan v. Hazard, vol. ii. 41, 140. Phelps V. Farmers', etc.. Bank, vol. ii. 155. 163, 170. Philadelphia Co.'s Appeal, 506, 517, 666. Phila. Baptist Assoc, v. Hart, 31. Phila. Loan Co. v. Turner, 608. Phila. V. Western Union Tel. Co., 588. Phila., etc., R.R. Co. v. Bayless, vol. ii. 335- V. Bowers, 514. V. Cowell, vol. ii. 38, 175. V. Derby, vol. ii. 429,541,595. V. Hickman, vol. ii. 21, 49. V. Larkin, vol. ii. 539- V. Lewis, v. ii. 406. V. Quigley, vol. ii. 429,430,434. V. Smith.v.ii. 393. Philadelphia, etc., R.R. Co. v. Woelper, 660 ; vol. ii. 258. Phila. Contributionship, etc. v. Com., vol. ii. 312. Phila. & Erie R.R. Co. v. Catawissa R.R. Co., 493. Phila. & Reading R.R. Co. v. Derby, vol. ii. 520. Phila., Wilm. & Bait. R.R. Co. v. How- ard, 558. Phila., Wilm.& Bait. R.R.Co. v. Larkin, vol. ii. 531. Phila., Wilni. & Bait. R.R. Co. v. Mary- land, 566, 575 ; vol. ii. 355. Philbrook v. New England Mu. Ins. Co., 243. Phillips V. Bury, 235 ; vol. ii. 673, 674. V. Coffee, 306, 626. V. Com., vol. ii. 744. Phillips V. Covington, etc.. Bridge Co., vol. ii. 21, 42. V. Therasson, vol. ii. 423, 427, V. Wickham, 180, 195. V. Winslow, vol. ii. 256. Phillips Academy v. King, 235, 636. Phillips Limerick Academy v. Davis, vol. ii. 54. Phoenix Ins. Co. v. Com., 549, 551 ; vol. ii. 204, 823. Phoenix W. Co. v. Badger, vol. ii. 84, 96. 99- Phosphate of Lime Co. v. Green, 203, 348. Piatt V. N. Y. & Boston R.R. Co., 590. Pickering v. Busk, 327. V. Templeton, vol. ii. 75. Pickett V. School Dist. No. i, 613. Pier V. Finch, 246. V. Hanmore, vol. ii. 436. Pierce v. Com., 184. V. Emery, 586, 589, 593, 607, 660; vol. ii. 247, 261. V. Inhabs. of Cambridge, vol. ii. 35°- a, V. Milwaukee Construction Co., vol. ii. 124. V. Milwaukee, etc., R.R. Co., 592; vol. ii. 246, 264. V. Partridge, 8 ; vol. ii. 660. Pierch v. Milwaukee, etc., R.R. Co., 659. Pierpont v. Graham, 24. Pierson v. McCurdy, vol. ii. 617. Pike V. Bangor, etc., P. R. Co., v. ii. 90. V. Bangor, etc., R.R. Co., vol. ii. 22, 94. V. Dilling, vol. ii. 539. V. Middleton, 462. Pike County v. Rowland, 202. Pillford V. Fire Dept., 236. Pillow V. Roberts, 298. Pinckney v. Henegan, vol. ii. 834. Pmgry v. Washburn, 138. Pinkerton v. Boston, etc., R.R. Co., 680. V. Manchester, etc., R.R. Co., v. ii. 141, 187, 206. Pipe-Makers v. Woodroffe, 241. Pipers/. Chappell, 235, 277. Piqua Bank v. Knoop, 499 ; vol. ii. 341. Piscataqua Bridge v. N. H. Bridge, 667. Piscataqua Ferry Co. v. Jones, vol. ii. 50, 98, loi, 102, 115. Pitman v. Kintner, 370, 372. Pittsburg, etc., R.R. Co. v. Bedford, etc., R.R. Co., 589. Pittsburg, etc., R.R. Co. v. Biggar, vol. ii. 33. Ixxxviii TABLE OF CASES. The figures refer to the pages. Pittsburg-, etc., R.R. Co. v. Bingham, vol. ii. SOI. Pittsburg, etc., R.R. Co. v. Byers, vol. ii. 40. Pittsburg, etc., R.R. Co. v. Clarke, 164, 263; vol. ii. 201, 226, 253. Pittsburg, etc., R.R. Co. v. Com., vol. ii. 798- Pittsburg, etc., R.R. Co. v. County of Allegheny, vol. ii. 29. Pittsburg Coal Co. v. Foster, v. ii. 645. Pittsburgh, etc., R.R. Co. v. Qazisxa, 164 ; vol. ii. 49. Pittsburg, etc., R.R. Co. v. Gilliland, vol. il. 459. Pittsburg, etc., R.R. Co. v. Graham, vol. ii. 40. Pittsburg V. Grier, vol. ii. 492. Pittsburg, etc., R.R. Co. v. Krichbaum, vol. ii. 457. Pittsburg, etc., R.R. Co. v. Plumer, vol. ii. 40. Pittsburg, etc., R.R. Co. v. Robinson, 672. Pittsburg, etc., R.R. Co. v. Shaeffer, 344- Pittsburg, etc., R.R. Co. v. Slusser, vol. ii. 536, 540. Pittsburg, etc., R.R. Co. v. South West. Pa. R.R. Co., 526. Pittsburgh, etc., R.R. Co. v. Stewart, 445 ; vol. ii. 14, 42, 105. Pittsburg, etc., R.R. Co. v. Thompson, vol. ii. 484, 526. Pittsburg, etc., R.R. Co. v. Vandyne, vol. ii. 468. Place z/. Butternuts Manf. Co., v. ii. 590. Plank R. Co. v. Husted, vol. ii. 342. ■V. Woodhull, 130. Planters' Bank v. Bivingsville Cotton Manf. Co., vol. ii. 421. V. Lamkin, 244. V. Sharp, 347 ; vol. ii. 386. , V. Whittle, vol. ii. 134. Planters' & Merchants' Bank of Mobile V. Andrews, 10, 465. Planters, etc., Co. v. Selma Savings Bank, 255, 271 ; v. ii. 226, 231, 233. Planters' Bank of Miss. v. State, vol. ii. 893- Piatt V. Archei-, vol. ii. 926, 930. Plimpton V. Bigelowj 210, 545 ; vol. ii. 654. Plitt V. Cox, vol. ii. 937. Piutrib V. Cattaraugus Co. Mu. Ins. Co., 445. Plymouth Bank v. Bank of Norfolk, 260; vol. ii. 181, 209, 235. Plymouth P. R. Co. v. Colwell, vol. ii. 655. Pneumatic Gas Co. v. Berry, 348, 352. Pochelu V. Kemper, 153. Podmore v. Gunning, vol, ii. 678. Polar Star Lodge v. Santini, vol. ii. Sjo; Polk V. Plummer, 59. Pollard V. Maddox, 588. V. State, vol. ii. 295. Polleys V. Ocean Ins. Co., 477. Pollock V. Nat. Bank, vol. ii. 191. Polly V. Saratoga, etc., R.R. Co., 671. Pomeroy v. Wells, 92. Pond V. Cooke, vol. ii. 696. V. Fr-amingham, etc., R.R. Co., vol. ii. 125. V. Vt. Valley R.R. Co., vol. ii. 578, 600, 623. Pondville Co. v. Clark, vol. ii. 131, 869. Pool V. Chicago, etc., R.R. Co., 413. Pope V. Terre Haute Car Manf. Co., 481 ; vol. ii. 608, 609. Port V. Russell, 611. Porter v. Androscoggin, etc., R.R. Co., 304. 319- V. Bank of Rutland, 470. V. McCollum, vol. ii. 393. V. Rockford, etc., R.R. Co., 587 ; vol. ii. 290. Port Gibson v. Moore, vol. ii. 950. Port Jervis v. First Nat. Bank, 469. Portland Dry Dock, etc., Co. v. Port- land, vol. ii. 855. Portland, etc., R.R. Co. v. Graham, vol. ii. 2, III. Portland, etc., R.R. Co. v. Kennebec, etc., R.R. Co., 658 ; vol. ii. 248. Portland, etc., R.R. Co. v. Saco, vol. ii. 352. Port Royal R.R. Co.v. Hammond, 550'. Potter V. Bank of Ithaca, 604. V. Potter, 643. V. Stevens, vol. ii. 422. Poughkeepsie, etc., P. R. Co. v. Griffin, vol. ii. 9, 61. Poughkeepsie & Salt Point R.R. Co. v. Griffin, 166. Poultney v. Bachman, 232. Powell V. City of Madison, vol. ii. 289, V. Myers, vol. ii. 477. V. North. Mo. R.R. Co., 559, 565 ; vol. ii. 937. V. Pa. R.R. Co., vol. ii. 514. Powers V. Hazleton, etc., R.R. Co., 674. V. Loughridge, vol. ii. 711. Powis V. Harding, vol. ii. 127. '^e figures refer to the pages. TABLE OF CASES. Ixxxix Prall V. Tilt, vol. ii. 217. Pratt V. Atlantic, etc., R.R. Co., vol. ii. 881. V. Hudson River R. R. Co., 430. V. Jewett, 509 ; vol. ii. 846. V. Pratt, vol. ii. 149, 154. V. Pratt, Reed & Co., vol. ii. 584, 585. V. Short, 492. V. Taunton Manf. Co., vol. ii. 189, 191. Preachers' Aid Soc. v. Rich, 115, 643. Presbyterian Church v. New York, 233, 236. Presbyterian Cong. v. Carlisle Bank, vol. ii. 186, 240. Presbyterian Soc. v. Auburn Co., vol. ii. 657. President, etc. v. Indianapolis, v. ii. 655. V. McConaby, v. ii. 747. President, etc., of Port Gibson ?/. Moore, 498. Preston v. Grand Collier Dock Co., vol. ii. 852. V. Liverpool, etc., Co., vol. ii. 385. 391- V. Melville, vol. ii. 171. V. Mo. & Pa. Lead Co., 366. Price V. Anderson, vol. ii. 171. V. Grand Rapids, etc., R.R. Co., 221. V. Minot, vol. ii. 167. Price's Appeal, vol. ii. 92. Priestly v. Fowler, vol. ii. 498. Prime v. Twenty-third Street R.R'. Co., vol. ii. 455. Prince v. Commercial Bank, v. ii. 366. Princeton Bank v. Croger, vol. ii. 654. Prince of Wales Life Ass. Co. v. Hard- ing, 358. Pritchard v. Norton, 531. Proctor V. Webber, vol. ii. 593. Proprs. of Baptist Meeting House v. Webb, vol. ii. 729, 863. Proprs. of Canal Bridge v. Gordon, 15, 136, 624. Proprs. of Cornish Bridge v. Richard- son, vol. ii. 321. Proprs. of Fryeburg Canal v. Frye, 358. Proprs. of Leeds & Liverpool Canal v. Hustler, 495. Proprs. of Quincy Canal v. Newcomb, vol. ii. 910. Proprs. of Meeting House in Lowell, vol. ii. 349. Proprs. of Southampton v. Local Board, vol. ii. 491. Proprs. of Southold v. Horton, 100. Protection Ins. Co. v. Ward, v. ii. 106. V. Wilson, 466. Protection Life Ins. Co. v. Foote, 322, 336. Protection Life Ins. Co. v. Osgood, vol. ii. 185, 187. Prouty V. Lake Shore, etc., R.R. Co., 571- V. Mich. Southern & Northern Ind. R.R. Co., vol. ii. 160. Providence Bank v. Billings, 494 ; vol. ii. 275, 348. Providence & Worcester R.R. Co. v. Wright, vol. ii. 284. Provident Savings Inst. v. Jackson Place Rink, vol. ii. 416, 417. Prov. Inst, for Savings v. Boston, vol. ii. 292. Prowse V. Foot, 196. Pruitt V. Hann. &. St. Jo. R.R. Co., vol. ii. 477, 514- , Pryzbylowicz 7/. Missouri River Co., 672. Puckett V. White, vol. ii. 781. Pugh & Sherman's Case, 161 ; v. ii. 76. Pulford V. Fire Department, 241 ; vol. ii. 756. Pullam V. Cincinnati & Chicago R.R. Co., 588,661 ; vol. ii. 247, 254,681. Pullman Car Co. v. Missouri Pacific R.R. Co., 565, 569. Pullman Palace Car Co. v. Reed, 245 ; vol. ii. 472. Pullman v. Upton, vol. ii. 37, 57, 109, 132, 220. Pumpelly v. Green Bay Co., 675. Pumphrey v. Baltimore, vol. ii. 820. Purchase v. N. Y. Exch. Bank, v. ii. 185. Purdy V. People, 105. Putnam v. New Albany, vol. ii. 1 5, 38, 119, 129. Pyrolusite Manganese Co. v. Ward, 12. Quick V. Lemon, 165 ; vol. ii. 10. Quigley v. Centr. Pacific R.R. Co., vol. ii. 528. Quimby v. Vanderbilt, vol. ii. 476, 488. Quincy Bridge Co. v. Adams County, 574; vol; ii. 290, 601. Quincy Coal Co. v. Hood, 469. Quiner v. Marblehead Ins. Co., vol. ii. 200, 215. Rabb V. Reed, 39. Racine County Bank v. Ayres, vol. ii. 17, 60, 61, 628. Racine & Miss. R.R. Co. v. Farmers' Loan & Trust Co., 575. Rafferty v. Bank of Jersey City, 151. xc TABLE OF CASES, The figures reftr to the pages. Rahm v. King Wrought Iron, etc., Manf. Co., vol. ii. 392. Railroad Co. v. Allerton, 437 ; v. ii. 58. V. Baldwin, 680. V. Brown, vol. ii. 468. V. Commissioners, 506 ; vol. ii. 340, V. Gaines, 594; vol. ii. 340, 356. V. Finney, vol. ii. 541. V. Fuller, vol. ii. 312. V. Georgia, 561, 565, 594; vol. ii. 356. V. Banning, vol. ii. 501, 504. V. Harris, 13, 106, 543, 577 ; vol. ii, 613. V. Hecht, 531. V. Houston, vol. ii. 456. R.R. Co. V. Howard, 583, 585, 663. zi. Jackson, vol. ii. 291, 337. Railroad Co. v. James, vol. ii. 662. R.R. Co. V. Kip, 665. Railroad Co. v. Koontz, vol. ii. 608. V. Lockwood, vol. ii. 479. V. Loftin, vol. ii. 340. 2/. Maine, 558, 565; vol. "■ 354- V. Maryland, vol. ii. 274. R.R. Co. V. Pearson, 36, 309. Railroad Co. v. Peniston, v. ii. 276, 295. V. Philadelphia, 506 ; vol. ii. 340. ■V. Reeves, vol. ii. 477. V. Renwick, 671. V. Richmond, 526, 611. V. Rollins, vol. ii. 948. V. Schumeir, vol. ii. 460. V. Soutter, vol. ii. 267. V. Sprag^e, vol. ii. 400. V. Stewart, vol. ii. 36. V. Stockton, vol. ii. 271. V. Vance, lo6. R.R. Co. V. Veazie, 508. Railroad Co. v. White, vol. ii. 51. V. Whitton, 577 ; vol. ii. 598, 601. Railroad Commrs. v. Portland, etc., R.R. Co., vol. ii. 79S. Railroad Tax Case, vol. ii. 293, 322, 329. 341- Railway Co. v. Daniel, vol. ii. 36. ■V. De Medina, vol. ii. 36. V. Graham, vol. ii. 36. V. Gunstone, vol. ii. 36. V. McCarthy; 604 ; vol. ii. 370- TJ. Prescott, vol. ii. 278. Railway Co. v. Railway, 667. Raleigh & Augusta Air Line R.R. Co. V. Wicker, vol. ii. 458. Raleigh & Gaston R.R. Co. v. Davis, 68; vol. ii. 271. Ramsden v. Boston & Alb. R.R. Co., vol. ii. 429, 516. Ramsey 2/. Erie R.R. Co., 188, 203; vol. ii. 549. v. Gould, vol. ii. 550, 623. V. Peoria Marine, etc., Ins. Co., vol. ii. 929. Ranee's Case, vol. ii. 148. Rand v. Hubbell, vol. ii. 146, 170, 173. Randall v. ElweJl, vol. ii. 329. V. Bait. & Ohio R.R. Co., vol. ii. 498. 2/. Van Vechten, 316, 373; vol. ii. S93, 594. Randolph v. Larned, vol. ii. 653, 701. V. Wilmington, etc., R.R. Co., 594. Ranger v. Great Western R.R. Co., 389- Rankin v. Sherwood, vol. ii. 633. Ransom v. Stonington Savings Bank, 320. Rathbone v. Tioga Navigation Co.,i 58, 630, 655. Rathbun v. N. C. R.R. Co., 468. Ray V. Bank of Ky., 453. V. Powers, vol. ii. 414. Ray County v. Bentley, 90. Raymond v. Caton, vol. ii. 116. Read v. Frankfort Bank, 531 ; vol. ii. 889. V. Gt. Eastern R.R. Co., vol. ii. 533- V. Memphis Gayoso Gas Co., 362. V. Spalding, vol. ii. 477. Reading z/. Com., vol. ii. 775, 821. Reading R.R. Co. v. State, vol. ii. 307. Receiver v. First Nat. Bank, v. ii. 690. Receivers v. Paterson Gas Light Co., vol. ii. 708. Rector of Christ Church v. County of Phila., 535. Red Wing Hotel Co. v. Friedrich, vol. ii. 10. Reddall v. Bryan, 665. Reddish v. Pinnock, 41. Redmond v. Dickerson, 422, 611. V. Enfield Manf. Co., vol. ii. 598. Redpath v. Western Union Tel. Co., 247, 248. Reed I/. Boston Machine Co., v. ii. 946. V. Bradley, 306. Tkejieures refer to the pages. TABLE OF CASES. XCl Reed v. Copeland, vol. ii. 203. V. Cumberland, etc.. Canal Corp., vol. ii. 728. V. Head, vol. ii. 172. V. Jones, 191. V. Home Savings Bank, 389 ; vol. ii. 438. V. Richmond Street R.R. Co., 161 ; vol. ii. 8. Reedie v. London & Northwestern R.R. Co., vol. ii. 504. Rees V. Conococheague Bank, 549 ; vol. ii. 627. V. Watertown, vol. ii. 776. Reese v. Bank of Commerce, vol. ii. 227, 233. V. Bank of Montgomery County, vol. ii. 79, 155, 201. Reese River Mining Co. v. Smith, vol. ii. 68. Reformed, etc.. Church v. Brown, vol. ii. 13. Ref. Church v. Schoolcraft, 656. Ref. Dutch Church v. Veeder, 653. Regents of University of Md. -v. Will- iams, 2, 15, 65, 67; vol. ii. 874, 878. Regina v. Aldham, 199. Reg. V. Amand, 8. Regina v. Balby T. Road, vol. ii. 775. Reg. V. Birmingham & Gloucester R.R. Co., vol. ii. 448. V. Blizard, vol. ii. 767. Regina v. Cottle, 488. Reg. V. Dean of Chester, vol. ii. 674. Regina v. Dean, etc., of Rochester, vol. ii. 674. Reg. V. Derby, vol. ii. 826. V. Derbyshire, etc., R.R. Co., vol. ii. 808. V. Dulwich College, 235. Regina v. Durham, 196. Reg. -v. Ely, vol. ii. 455. V. Governors of Darlington School, *ol. ii. 546. V. Gt. North, of Eng. R.R., vol. ii. 447. 449- V. Gt. Western R.R. Co., vol. ii. 802. Regina v. Inhabs. of St. Paul, etc., 295. V. Leith, vol. ii. 322. Reg. V. Liverpool, etc., R.R. Co., vol. ii. 792, 804. V. London, etc., R.R. Co., vol. ii. 778. V. Longton Gas Co., vol. ii. 449. V. Mayor, etc., of Liverpool, 630. V. Mayor, etc., of Stamford, 187, Regina v. Mousley, vol. ii. 739. Reg. V. Newbury, vol. ii. 544. Regina v. Registrar, 119. Reg. V. Ricketts, vol. ii. 548. V. Southeastern R.R. Co., vol. ii. 825, 828. V. Stephens, vol. ii. 519. V. Sutton, vol. ii. 545, 548. V. Taylor, vol. ii. 765. V. Thomas, vol. ii. 546. V. Victoria Park, vol. ii. 659. Regina v. Wilts, etc.. Canal Navigation Co., vol. ii. 806. Reg. V. York, etc., R.R. Co., vol. ii. 802. Reichwald v. Commercial Hotel Co., 210, 212 ; vol. ii. 41, 134, 368, 390, 864. Reid V. Eaton Manf. Co., vol. ii. 412, 413, 425, 942. V. Etonton Manf. Co., vol. ii. 124, 154. Reilly v. Oglebay, 192, 195, 200. Relfe V. Rundle, 113, 546. Renick v. Bank of West Union, vol. ii. 738- Renner v. Bennett, vol. ii. 767. Rensselaer, etc., P. R. Co. v. Barton, vol. ii. 3, 10. Rensselaer, etc., P. R. Co. v. Wet- more, vol. ii. 72. Rensselaer, etc., P. R. Co. v, Wetsel, 32, 115- Rensselaer & Saratoga R.R. Co. v. Davis, 629, 664, 665, 670. Rensselaer v. Snyder, 531. Renwick v. Hall, vol. ii. 731. Republic Life Ins. Co. v. PoUok, v. ii. 335. Respublica v. Griffiths, vol. ii. 749. V. Wray, vol. ii. 724. Reusens v. Mexican Nat. Construction Co., vol. ii. 14. Reuter v. Telegraph Co., 272, 285, 355, 606. Revere v, Boston Copper Co., v. ii. 856. Rex V. Abingdon, vol. ii. 826. V. Aldermen of Heydon, vol. ii. 824. V. Amery, 133; vol. ii. 752, 765, 837, 910. V. Andover, vol. ii. 546. V. Askew, 129. V. Ashwell, 234, 245. V. Bank of England, vol. ii. 185 187. 593. 804. V. Barker, vol. ii. 768. V. Bankes, vol. ii. 823. V. Bathwick, 305. xcu TABLE OF CASES. The figures refer to the pages. Rex V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. Zr. V. V. V. V. V. V. V. V. V. V. V. V. V. v: V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. Beeston, 215. Bellringer, 223. Bigg, 287, 593. Bishop of Ely, vol. ii. 671, 674, 675- Bower, 223. Bridgewater, vol. ii. 837. Buller, 224. Bumpstead, 1851 Burgesses of Carmarthen, vol. ii. 548. Cambridge, vol. ii. 546. Canterbury, vol. ii. 546. Carmarthen, 202. Chetwynd, 203. Churchwardens; v. ii. 546, 824. City of London, vol. ii. 441, 765. Clitheroe, vol. ii. 828. Colchester, 15. Commrs. of Excise, vol. ii. 791. Corp. of Bedford Level, v. ii. 745. Coventrj', 193 ; vol. ii. 546. Dawbeny, vol. ii. 739. Dawes, vol. ii. 735. Derby, vol. ii. 549. Fishermen of Feversham, vol. ii. 544. 548- Francis, vol. ii. 724, Gardner, 10. Ginever, 235. Gloucester, vol. ii. 546. Gniver, 185. Gravesend, 364. Gray, vol. ii. 837. Great, 223. Griffiths, vol. ii. 547. Grimes, vol. ii. 547. Guardians, 84. Hall, vol. ii. 767. Hanger, 248. Harris, vol. ii. 546, 547, 548. Head, 234, 235. Headley, 223. Hertford, vol. ii. 765.. Hill, 202, 207. Hughes, 134. Ipswich, vol: ii^ 546. Justices of Berkshire, vol. ii. 824. Kerrison, vol. ii. 455. Langhorne, vol. ii. 548. Lisle, 345. Liverpool, vol. ii. 548, 550, 561. Lord Dacres, 281. Lyme Regis, vol. ii. 544, 830. May, 207, 223. Mayor, etc., of Lyme, v. ii. 544. Mayor & Jurats of Hastings, 492. Rex V. Mayor of Liverpool, vol. ii. 448. V. Mayor, etc., of Stratford-on- Avon, vol. ii. 448. V. McKay, vol. ii. 767. V. Medley, 415. V. Merchant Taylor Co., vol. ii. 806. V. Miller, 323 ; vol. ii. 837. V. Morris, vol. ii. 859. V. Newcastle, vol. Ii. 806. V. Nottingham, vol. ii. 824. V. Oxford, vol. ii. 546. V. Parry, 174. V. Pasmore, 129, 130, 195 ; vol. ii. 859, 910. V. Perry, vol. ii. 735. 2'. Pole; 196. V. Ponsonby, vol. ii. 544. V. Portsmouth, vol. ii. 546. V. Proprs. of Birmingham Canal, vol. ii. 858. V. Richardson, vol. ii. 544, 546, 548, 767. ■V. Rippon, vol. ii. 826. V. Sanchar, 193. V. Sargeant, vol. ii. 735. V. Severn, etc., R.R. Co., vol. ii. 768, 801. V. Shepherd, vol. ii. 739. V. Shetwynd, 208. V. Slythe, 188, 189; vol. ii. 751. V. Smith, 190; vol. ii. 826, 827. V. Spencer, 234. V. Stafford, vol. ii. 828. V. Taylor, vol. ii. 544, 546. V. Theoderick, 203. V. Tidderly, vol. ii. 544. V. Tregony, vol. ii. 826. V. Treveneu, 189. V. Truebody, vol. ii. 546, 547. V. Vice-Chancellor, 129. V. Wallis, vol. ii. 767. V. Wardroper, vol. ii. 735. V. Webb, 6, 20. V. Wells, vol. ii. 546. V. Westwood, 131, 234. V. Whitmarsh, 20. V. Whitaker, 219, 223. V. Williams, 224 ; vol. ii. 767, V. Winwich, 198. V. Wilton, vol. ii. 548. V. York, vol. ii. 794, 828. Rexford v. Knight, vol. ii. 937. Reynolds ■y. Simpson, 513. V. Starlc County, 627. Rheem v. Naugatuck Wheel Co., vol. ii, 634, 635. Rhodes v. Webb, 447, 614. The figures refer to the Pages. TABLE OF CASES. XClll Rhey v. EUensburg, etc., Plank R. Co., . 165. Rhymney R.R. Co. v. TaffVale R.R. Co., 556. Rice V. Commissioners of Middlesex, vol. ii. 790. V. Nat. Bank, vol. ii. 904. V. R.R. Co., 491, 493. V. Rock Island R.R. Co., vol. ii. 64. 99- Rice's Appeal, 439, 611. Rich V. State Nat. Bank, vol. ii. 378. Richards v. Merrimack, etc., R.R. Co., 589, 658, 659 ; vol. ii. 149, 246, 248. V. New Hampshire Ins. Co., 611 ; V. ii. 132, 134, 944. Richardson v. N. Y. Cent. R.R. Co., vol. ii. 532. V. Richardson, vol. ii. 173. V. Sibley, 588 ; vol. ii. 247, 651. V. Vt., etc., R.R. Co., vol. ii. 30, 143. Rich V. Ashbury R.R. Carriage & Iron Co., 512. Richmond, etc., R.R. Co. v. Com., vol. ii. 351. Richmond v. Daniel, vol. ii. 274. Richmond, etc., R.R. Co. v. Louisa R.R. Co., 113, 491, 493, 495, 666. Richmond St. R.R. Co. v. Reed, 234 ; vol. ii. 53. Richmond, etc., R.R. Co. z/. Richmond, vol. ii. 452, 491. Richmond F. Assoc, v. Clarke, vol. ii. 9'. 93- Richmond Turnpike Co. v. Vanderbilt, 403- Richmondville Manf. Co. v. Prall, vol. ii. 210. Richmond's Case, vol. ii. u8. Rickart v. The People, 28. Rickoff V. Brown's, etc.. Machine Co., vol. ii. 9. Ricord v. Centr. Pacific R.R. Co., 402 ; vol. ii. 438. Riddell v. Harmony Fire Co., v. ii. 560. Riddick v. Amelin, 106. Riddle v. Bedford County, 347. V. Proprietors, etc., 6, 130 ; vol. ii- 595. 596,911- Rider v. Morrison, vol. ii. 122. V. Union India Rubber Co., 353. Ridge Turnpike Co. v. Stoever, vol. ii. 353. RidgefieJd, etc.,^R.R. Co. v. Brush, vol. ii. 31, 46, 50, 66. Ridgway v. Farmers' Bank, 391. Rieman v. Shepard, vol. ii. 289. • Riggs V. Cragg, vol. ii. 172, 173. V. Johnson County, vol. ii. 815, 818. RikofF V. Brown's Rotary Shuttle Sew- ing Machine Co., 152; vol. ii. 5. Ringo V. Biscoe, vol. ii. 134, 944. Rioters' Case, vol. ii. 791. Ripley v. McBarron, vol. ii. 438. Risley v. Indianapolis, etc., R.R. Co., 443- Rivanna Nav. Co. v. Dawson, 636. Rives V. Dudley, 627, 654. V. Montgomery South. P. R. Co., vol. ii. 67, 75, 95. V. Plank R. Co., vol. ii. 59. Rivingston's Case, 556. Robbins v. Butler, 39. V. St.Paul,etc., R.R.Co.,680. Roberts' Appeal, vol. ii. 173, 203. Roberts v. Button, 309, 313. V. Mobile, etc., R.R. Co., vol. ii. 28. Robertson v. Bullions, 74, 78 ; vol. ii. 667, 670. V. City of Rockford, 100, 570. Robie V. Sedgwick, 146, 148. Robins v. Embry, 659 ; vol. ii. 134. V. Wells^ 42. Robinson v. Baker, vol. ii. 246. V. Chartered Bank, v. ii. 180. V. Fitchburg, etc., R.R. Co., 479 ; vol. ii. 644. V. Gilfillan, 22. V. Jones, vol. ii. 747. V. Lane, vol. ii. 934. V. Nat. Bank of Newberne, vol. ii. 138, 210. V. N. Y. & Erie R.R. Co., vol. ii. 451. V. Phila., etc., R.R. Co., vol. ii. 949- V. Pittsburg, etc., R.R. Co., vol. ii. 72. V. Smith, 395, 467 ; vol. ii. 580, 58s, 587. V. Western Pacific R.R. Co., vol. ii. 457. V. Wilkinson, 18. Roche z/. Roanoke Seminary, v.ii. 12, 50. Rockford, etc., R.R. Co. v. Byam, vol. ii. 457- Rockford, etc., R.R. Co. v. Hillmer, 525. Rockford, etc., R.R. Co. v. Sage, vol. ii. 390- XCIV TABLE OF CASES. The figures rrfir to the pages. Rockford v. Shunick, vol. ii. 21, 71. Roclf River Bank v. Sherwood, 600. Rockville, etc., Turnpike Co. v. Van Ness, vol. ii. 107. Rodrigues v. Hefterman, 23. Roe V. Birkenhead, 359 ; vol. ii. 410. V. Dean of Rochester, 328. V. Pierce, vol. ii. 381. Roehler v. Mechanics' Aid Soc, vol. ii. 551, 560, 808. Rogers v. Brenton, 250. V. Danby Universalist Soc, 8, 128; vol. ii. 581. ex parte, vol. ii. 796, 823. V. Gould, vol. ii. 211. V. Hastings, etc., R.R. Co., 461; vol. ii. 375. V. Huntingdon, vol. ii. 183. V. Huntingdon Bank, 255, 260 ; vol. ii. 142, 225, 226. V. Jones, 239, 251. V. Lafayette Agricultural W'ks, . 215 ; vol. ii. 579, 580, 619. V. Stevens, vol. ii. 207. Rogers Locomotive Works v. Erie R.R. Co., vol. ii. 280, 773. Rollback v. Pacific R.R. Co., v. ii. 496. Rolling Stock Co. v. Atlantic, etc., R.R. Co., 435. Rollins V. Clay, 438 ; v. ii. 56, 729, 863. Roman v. Fry, 161. Rome V. Cabot, 580. Rome, etc., R.R. Co. v. Ontario, etc., R.R. Co., 573. Romeo v. Ayer, 115. V. Chapman, vol. ii. 633, 634. Rondout, etc., R.R. Co. v. Deyo, 674. Roosevelt Hospital v. Mayor of N. Y., vol. ii. 340. Root, ex parte, vol. ii. 834. Rorhe v. Thomas, vol. ii. 863. Rose Z'. Morgan, 81. V. Turnpike Co., 194 ; v. ii. 860. Rosenbach v. Bank, vol. ii. 223. Rosenback v. Salt Springs Nat. Bank, 256, 267 ; vol. ii. 112, 232. Rosenfield v. Einstein, vol. ii. 769, S06. Rosenthal v. Madison, etc., Plank R. Co., 120. Ross V. Chicago, Burlington, etc., R.R. Co., 513. V, Crockett, 225. V. Estates Investment Co., vol. ii. 68. V. Lafayette, etc., R.R. Co., vol.. ii. 28. V. N. Y. Cent., etc, R.R. Co., vol. ii. 499. Ross V. Ross, vol. ii. 653, 663. V. Union Pacific R.R. Co., vol. ii. 185, 590. V. Williams, vol. ii. 692. Rotch's Wharf Co. v. Judd, 655. Rounds V. Del., Lac. & W. R.R. Co., vol. ii. 469, 516, 517. Rouse V. Moore, 92. Roxbury v. Boston & Providence R.R. Co., 539; vol. ii. 882. V. Huston, vol. ii. 636. Royal Bankz/. Junction, etc., R.R. Co., 302, 319. Royal British Bank v. Turquand, 332, 433, 443 ; vol. ii. 365. Royalton v. Royalton Turnpike Co., 432- Ruby V. Abyssinian Soc, 477. Ruck V. Williams, vol. ii. 491. Ruggles V. Brock, vol. ii. 127. V. City of Fond du Lac, vol. ii. 292, 319. V. Illinois, 113, 521, 527. Rundel v. Life Assoc, of America, vol. ii. 944. Rundle v. Deane, 283. V. Del. & Raritan Canal Co., 9, 66. Runion v. Latimer, vol. ii. 805. Runyan v. Coster, 549, 635. Ruse V. Bank of Com., vol. ii. 182. Russel V. Reece, 376. V. Reed, 91. V. Temple, vol. ii. 179. Russell V. Hudson River R.R. Co., vol. ii. 499. V. McLellan, 134, 135, 194 ; vol. ii. 859. V. Men of Devon, vol. ii. 513. V. Topping, 657. V. Wakefield Water Works Co., 607 ; vol. ii. 625. Russell Manf. Co. v. New Haven Steamboat Co., vol. ii. 484. Rutland, etc., R.R. Co. v. Lincoln, vol. ii. 38. Rutland, etc., R.R. Co. v. Proctor, 597 ; vol. ii. 566. Rutland, etc., R.R. Co. v. Thrall, vol. ii. 28, 59, 62, 94, 115, 158. Rutter^/. Chapman, 130. V. Tullis, vol. ii. 692. Ryan v. Commissioners, vol. ii. 335. V. Dunlap, 450. V. Fowler, vol. ii. 492. V. Leavenworth, etc., R.R. Co., 423. 439; vol. ii. 167. Ryckman v. Perkins, vol. ii. 711. The figures refer to ike pages. TABLE OF CASES. XCV Ryder v. Alton, etc., R.R. Co., 140 ; vol.ii. 84, 155. Sabin v. Bank of Woodstock, vol. ii. 168, 219. V. Vt. Cent. R.R. Co., v. ii. 506. Sackets Harbor Bank v. Lewis Co. Bank, 604. Saffold V. Barnes, vol. ii. 76, 79. Safford v. People, vol. ii. 709. V. Wyckoff, 541, 542, 580 ; vol. ii. 364. Sage V. Dillard, 132, 508, 515 ; v. ii. 890. V. Lake Shore, etc., R.R. Co., 574. Sager v. Portsmouth, vol. ii. 484. Sagory v. Dubois, vol. ii. 81, lofi, 216. St. Albans v. Nat. Car Co., vol. ii. 291. St. Clair County Tump. Co. v. The People, 495. St. Clair v. Cox, 481 ; vol. ii. 608, 611. St. John V. Erie R.-R. Co., vol. ii. 143. St. John's College v. State, vol. ii. 878. St. John's College, Cambridge, v. Tod- dington, 235 ; vol. ii. 669, 671. St. Joseph Bankz/. St. Joseph, v. ii. 319. St. Joseph, etc., R.R. Co. v. Callender, 672. St. Joseph Township v. Rogers, 513. St. Louis V. Allen, vol. ii. 875. V. Ferry Co., vol. ii. 288. V. Manf., etc., Bank, 499. V. Russell, 91. St. Louis Bridge, etc., Co. v. Memphis, etc., R.R. Co., vol. ii. 268. St. Louis Building, etc., Assoc, v. Lightner, vol. ii. 298. St. Louis County Court v. Sparks, vol. ii. 732, 811. St. Louis Domicile Assoc, v. Augustin, 195- St. Louise Gas Light Co. v. St. Louis, vol. ii. 845. St. Louis, Iron Mt., etc., R.R. Co. v. Berry, 594. St. Louis, Iron Mt, etc., R.R. Co. v. Loftin, 506. St. Louis Ins. Co. v. Goodfellow, vol. ii. 177, 181, 229. St. Louis Nat. Bank v. Papin, vol. ii. 297. St. Louis Perpetual Ins. Co. v. Good- fellow, 264. St. Louis Public Schools v. Risley, 306. St. Louis, etc., R.R. Co. v. Berry, 569. V. Dalby, vol. ii. 596- St. Louis, etc., R.R. Co. v. Loftin, 517. St. Louis R.R. Co. v. Northwestern, etc., R.R. Co., 155. St. Louis, etc.. Coal & Mining Co. v. Sandoval Coal & Mining Co., vol. ii. 841, 929. St. Mary's Benef. Soc. v. Burford, 242. St. Mary's Church v. Cagger, 291. St. Mary's Church, Case of, 67, 135. St. Paul Division v. Brown, 133. St. Paul Fire & Marine Ins. Co. v. Allis, 107, 150. St. Paul, etc., R.R. Co. v. Robbins, vol. ii. II. St. Phillips Church v. Zion, etc., Church, vol. ii. 939. St. Luke's Church v. Mathews, 464. St. Luke's Church in Chelsea v. Slack, vol. ii. 805. Sala V. New Orleans, 499, 533. Salem Bank v. Gloucester Bank, 234, 405 ; vol. ii. 383. Salem v. Mill Dam Corp., 540. Salem Mill Dam Co. v. Ropes, vol. ii. 27, 56, 93- Salem Iron Factory Co. v. Inhabs. of Danvers, vol. ii. 284. Saline Co. v. Sappington, vol. ii. 619. Salisbury Mills v. 'Townsend, vol. ii. 197. 576. Salomans v. Laing, 512, 607. Salmon v. Richardson, 400. Salt Co. V. East Saginaw, 506, 517; vol. ii. 360. Salt Lake City Nat. Bank v. Hendrick- son, vol. ii. 91. Salters v. Genin, vol. ii. 211. Saltmarsh v. Planters' Bank, vol. ii. 633, 926. Saltsman v. Shults, 41. Sampson v. Bowdoinham Steam Mill Corp., 209 ; vol. ii. 63. Samuel v. HoUiday, 8, 203, 275 ; vol. ii. ■579, 581, 582, 621,686. Samuels v. Evening Mail Assoc, vol. ii. 436. San Antonio -v. Lane, vol. ii. 406. V. Mehaffy, 604. Sanborn v. Fireman's Ins. Co., 428. San Buenaventura Manuf. Co. v. Vas- sault, 171, 202, 208. Sanders v. Guardians of St. Neot's Union, 284. Sanderson v. White, 643, 649 ; vol. ii. 671. Sandford v. Board of Supervisors of N. Y., vol. ii. 321. V. Catawissa, etc., R.R, Co., vol. ii. 479. XCVl TABLE OF CASES. The figures refer to the pages. Sandford v. Eighth Avenue R.R. Co., vol. ii. 471. V. Handy, vol. ii. 443. V. Sinclair, vol. ii. 681, 678. V. Supervisors of N. Y., 39. San Diego v. San Diego, etc., R.R. Co., 435. 61 1- Sands v. Sanders, vol. ii. 1 14. Sandusky City Bank v. Wilbor, vol. ii. 342- Sandy River Bank v. Merchants', etc.. Bank, 456. San Francisco v. Canavan, vol. ii. 874. V. Fry, vol. ii. 291. V. Spring Valley Works, 102. San Francisco, etc., R.R. Co. v. Bee, vol. ii. 944, 952. San Francisco, etc., R.R. Co. v. Cald- well, 674. San Francisco & North. Pacific R.R. Co. V. Dinwiddle, vol. ii. 332. San Francisco & North. Pacific R.R. Co. V. State Board of Equalization, vol. ii. 332. Sangamon, etc., R.R. Co. v. Morgan, vol. ii. 325. Sanger v. County Commissioners, vol. ii. 820. V. Upton, vol. ii. 37, 96. Santa Cruz R.R. Co. v. Spreckels, vol. ii. 92. San Jose Gas Co. v. January, 587. San Jose Savings Bank v. Sierra Lum- ber Co., 346. San Mateo County v. Southern Pacific R.R. Co., 9. Santa Barbara v. Stearns, vol. ii. 271. Santa Clara Assoc, v. Meredith, 288, 461 ; vol. ii. 373, 374. Santa Cruz R.R. Co. v. Schwartz, vol. ii. 15. Sappington v. Little Rock, etc., R.R. Co., vol. ii. 951. Sargent v. Essex R.R. Corp., 271 ; vol. ii. 206. V. Franklin Ins. Co., 162, 255, 269; vol. ii. 177, 186, 222. V. Webster, 198, 203, 218, 224, 579- Savage v. Ball, 175. V. Medbury, vol. ii. 176, 708. V. Walshe, vol. ii. 840, 841. Savage Manf. Co. v. Armstrong, vol. ii. 636, 640. Savannah, etc., R.R. Co. v. Lancaster, 659 ; vol. ii. 393. Savannah v. State, vol. ii. 791, 794. Savings Bank v. Bates, vol. ii. 134. V. Davis, 205, 209, 288, 289, 303. V. Nashua, v. ii. 290, 335. Sawyer v. Baldwin, jy., V. Cox, 306. V. Hoag, V. ii. 128, 129, 709, 944. V. Meth. Epis. Soc, 8 ; v. ii. 581. V. Winnegance Mill Co., 387 ; vol. ii. 624. ?/. Upton, vol. ii. 139, 176. Saybolt V. N. Y., Lake Erie & Western R.R. Co., vol. ii. 484. Sayre v. Louisville, etc., Assoc, 251. 7/. Northwestern Turnpike Co., 65. Scadding v. Lorant, 204. Scales z*. Chattahoochee, vol. ii. 512. Scammon v. Kimball, vol. ii. 131. Scarborough T. Co. v. Cutler, vol. ii. 617, 639. Schaeffer v. Mo. Home Ins. Co., 153, 168 ; vol. ii. 70, 87. Scheffer v. Nat. Life Ins. Co., v. ii. 604. Schenck v. Andrews, vol. ii. 42, 426. V. Mercer County Mu. Fire Ins. Co., 472. Schenectady, etc., Plank Road Co. v. Thatcher, 167, 508, 515. Schraidlapp v. La Confiance Ins. Co., vol. ii. 609. Schmidt v. Gunther, 31. V. Hennepin Co., vol. ii. 233. SchofFt/. Bloomfield, 214. Schoharie Valley R.R. Case, v. ii. 210. Scholfiekl V. Union Bank, vol. ii. 218. SchoUenberger, ex parte, vol. ii. 613. School Commrs. v. Dean, 93. School Directors v. Carlisle Bank, 11. School Dist. V. Blaisdell, vol. ii. 635. V. Boston, etc., R.R. Co., vol. ii. 484. School Dist. No. 5 v. Everett, 633, 654. School Dist. V. Griner, vol. ii. 634. V. Ins. Co., 39. School District v. Maclpon, 94. School Dist. V. Tompson, 90. V. Williams, 92. School Inspectors v. People, vol. ii. 775, 788, 813, 833. Schoonover v. Hinckley, vol. ii. 699. Schuylkill Nav. Co. v. Commissioners, vol. ii. 353. Schwinger v. Raymond, vol. ii. 436. Scofield V. Eighth School District, vol. ii. 579. 584. Scofield Rolling Mill Co. v. State, vol. u- 443- The fibres refer to the pages. TABLE OF CASES. XCVll Scotland v. Thomas, 570, 572. Scott V. Cent. R.R., etc., Co., vol. ii. 145. 159- V. Depeyster, 393, 395. V. Eagle Fire Ins. Co., 429; vol. ii. 147, 150, 585. V. First Meth. Church of Jackson, 83- V. Johnson, 381 ; vol. ii. 632. V. Middletown,etc., R.R.Co.,347, 352 ; vol. ii 384. V. Nat. Bank of Chester Valley, 407. 453- V. R.R. Co., 662. V. Royal Wax Candle Cc.v.ii. 597. Scotthorn v. South Staffordshire R.R. Co., vol. ii. 476. Scoville V. Thayer, vol. ii. 56, 96, 128, 131, 140, 176. Scripture v. Francestown Soap Stone Co., vol. ii. 200. Scriveners' Co. v. Brooking, 240. Schuyler Co. v. Mercer Co., 12. Seagraves v. City of Alton, vol. ii. 593. Searight v. Payne, vol. ii. 41. Sears v. Hotchkiss, vol. ii. 586. Seaver v. Boston & Me. R.R. Co., vol. ii. 499- V. Coburn, 387. Sebastian v. Covington, etc., Bridge Co., 211. Secombe v. R.R. Co., 664. Second Ave. R.R. Co. v. Mehrbach, 444. Second Cong. Soc. v. Waring, 652, 653. Second Nat. Bank of Cincinnati v. LovelJ, 555. Second Nat. Bank v. Wells, vol. ii. 627. V. Western Nat. Bank, 452. Sedalia, etc., R.R. Co. v. Wilkerson, vol. ii. 49. Seeger v. Barkhamsted, v. ii. 528, 534. Seeley v. N. Y. Nat. Exch. Bank, vol. ii. 152, 153. V. San Jose Lumber Co., 350, 460. Seibrecht v. New Orleans, 478, 579. Seizer v. Mali, 396. Selden v. Overseers of the Poor, 74. Seligman v. Charlottsville Nat. Bank, 600. Selma, etc., R.R. Co. v. Anderson, vol. ii- 75. 93- V. Lacy, v. ii. 532. Selma, Rome, etc., R.R. Co. z/. Harbm, 571. 572. Selma & Tennessee R.R. Co. v. Tipton, 332, 333; vol. ii. 24, 82, 84 115. Selz V. Cagwin, vol. ii. 289. Semple v. Bank of British Columbia, 553; vol. ii. 615. Seneca County Bank v. Lamb, 236, 238. V. Neass, 469. Severin v. Cole, 671. Sewall V. Boston Water Power Co., vol. ii. 191. V. Brainerd, vol. ii. 401. V. Eastern R.R. Co., 165 ; vol. ii. 14, III. V. Lancaster Bank, 276; vol. ii. 142, 226. Seward v. City of Rising Sun, v. ii. 290. Seybolt v. N. Y., Lake Erie & Western R.R. Co., vol. ii. 488, 490. Seymour v. Canandaigua, etc., R.R. Co., 659 ; vol. ii. 258. V. Dascomb, vol. ii. 658. V. Ely, vol. ii. 790. V. Greenwood, v. ii. 470, 472. V. Hartford, vol. ii. 345. ■V. Miliord, 71 ; v. ii. 653, 656. V. Sturgess, vol. ii. 8i, 84, no, 127, 216. V. Wilson, vol. ii. 705. Shacklefordz/.'Miss.Cent. R.R.Co., 573. V. New Orleans, etc., R.R. Co., 461 ; vol. ii. 367, 374. 375- Shaffner v. Jeffries, vol. ii. 21. Shaler, etc.. Quarry Co. v. Bliss, vol. ii. 414- Shamokin Valley, etc., R.R. Co. v. Ma- lone, vol. ii. 939. Shaugnessy v. Rensselaer Ins. Co., vol. ii. 700. Sharp V. Mayor, etc., of N. Y., v. ii. 442. Sharpe v. Bellis, 356. Shaver v. Bear River Mining Co., 351 ; vol. ii. 384. Shaw V. Bill, 659, 661 ; vol. ii. 255, 400. V. Boylan, vol. ii. 411. V. Clark, 469. V. Cock, 41. V. Fisher, vol. ii. 221. V. Mayor, vol. ii. 546. V. Norfolk County, 588. V. Norfolk Co. R.R. Co., 571, 572, 658 ; vol. ii. 248. V. Poynter, 250. V. Railroad Co., vol. ii. 951. V. Spencer, vol. ii. 213. Shawmut Bank v. Pittsburgh, etc., R.R. Co., 581. Shea V. Mabry, 414. Sheehan v. Good Samaritan Hospital, vol. ii. 273, 348. xcvm TABLE OF Cases. The figures refer to the pages. Sheffield Township v. Andress, 291 ; vol. ii. 377. Shelby R.R. Co. v. Louisville R.R. Co., 205, 209. Shelbyville v. Shelbyville, etc., T. Co., vol. ii. 5, 35, 87. Shelbyville, etc., Turnp. Co. v. Barnes, 563; vol. ii. 55. Sheldon v. Hat Blocking Co., 438. Sheldon Hat Blocking Co. v. Eicke- meyer, 600, 607; vol. ii. 57, 141. Sheldon v. Vail, 85. Shelhamer v. Thomas, vol. ii. 522. Shenandoah R.R. Co. v. Griffith, vol. ii. 228. Shellington v. Howland, v. ii. 206, 216. Shelton v. Banks, iii. V, Darling, 390. Shepherd v. Milwaukee Gas Light Co., 459- Shepley v. Atlantic & St. Lawrence R.R. Co., 590. Sheridan v. Charlick, vol. ii. 521. Sherman v. Conn. River Bridge Co., vol. ii. 629. V. Fitch, 304, 313, 318, 348, 357. 359- V. Proprietors, vol. ii. 634. V. Rochester & Syracuse R.R. Co., vol. ii. 498. ■u. Smith, 536, 539 ; v. ii. 884. Sherwin v. Bugbee, 147. Sherwood v. Am. Bible Soc, 627, 637, 639, 640. V. St. Paul, etc., R.R. Co., 674. Shields v. Ohio, 527, 539, 561, 565. Ship V. Crosskill, 467. Shipley v. Mechanics' Bank, vol. ii. 185, 187, 804. Shipman v. yEtna Ins. Co., vol. ii. 208. Shirreff z/. Wilks, 21. Shockley v. Fisher, vol. ii. 137. Shoemaker v. Kingsbury, vol. ii. 486. Shoe & Leather Bank v. Thompson, vol. ii. 436, 567. Shone v. Lucas, vol. ii. 869. Short V. Bait. City Passenger R.R. Co., vol. ii. 462. V. Medberry, vol. ii. 416. V. Unangst, 135, 206. Shorter v. Smith, 497. Shotwell V. Mali, 396. V. McKown, 378. Shrever v. Livingston Co., vol. ii. 834. Shrewsbury v. Hart, 118. Shrewsbury, etc., R.R. Co. v. North Western R.R. Co., 588. Shriver v. Stevens, vol. ii. 376. Shurtz V. Schoolcraft, etc., R.R. Co., vol. ii. 5. Sibley v. Carteret Club, vol. ii. 559. V. Quinsigamond Nat. Bank, vol. ii. 190, 204, 205. Sickels' Case, vol. ii. 132. Silk Manf. Co. v. Campbell, 467. Silliman v. Fredericksburg, etc., R.R. Co., vol. ii. 443. Silloway v. Columbian Ins. Co., vol. ii. 599- Silsby V. Barlow, 76, T], Silver Lake Bank v. North, 549, 603, 657 ; vol. ii. 569. Silver Hook Road v. Greene, 362 ; vol. ii. 94. Silverthome v. Warren R.R. Co., vol. ii. 832. Simm V. Anglo- Am. Tel., vol. ii. 218. Simond v. Catlin, 312. Simons v. Vulcan Oil & Mining Co., 439. 611. Simpkins v. Smith, etc., Gold Co., vol. ii. 696. Simpson v. Maiden, vol. ii. 377. •V. Moore, vol. ii. 171, 172. V. Reynolds, vol. ii. 663. V. Wiltbank's Appeal,v.ii. 172. Sims V. Street R.R. Co., 432. Singer Co. v. Union Co., vol. ii. 591. Singer Manf. Co. v. Effinger, v. ii. 636. V. Holdfodt, V. ii. 540. Sinking Fund Cases, 499 ; vol. ii. 726, in, 947- Sir James Smith's Case, vol. ii. 862. Sixth Avenue R.R. Co. v. Gilbert Ele- vated R.R. Co., vol. ii. 863. Sixth Av. R.R. Co. v. Kerr, 666, 667. Skelly V. Jefferson Branch Bank, vol. ii. 342- Skinner v. Dayton, 24. V. Lambert, 41. •V. Maxwell, vol. ii. 678. Skowhegan Bank v. Cutler, vol. ii. 205, 208. Slade V. Van Vechten, 419. Slatten v. Des Moines Valley R.R. Co., vol. ii. 524. Slaughter v. Com., 551. V. Ins. Co., vol. ii. 280. Slaughter House Cases, 105, 514. Slawson v. Loring, 382. Slaymaker v. Gettysburg Bank, vol. ii. 202, 653. Slee V. Bloom, v. ii. 658, 748, 839, 910. Sleeper v. Franklin Inst., vol. ii. 808. Sloan V. State, loi. The figures refer to the pages. TABLE OF GASES. XCIX Slocum V. Providence Steam & Gas Pipe Co., vol. ii. 413. Slight 7'. Gutzlass, vol. ii. 949. Small V. Herkimer Manf. Co., 253 ; vol. ii. 110, 116, 117. Smallcombe v. Evans, 203. Smead v. Indianapolis, etc., R.R. Co., 602 ; vol. ii. 363. Smedes v. Bank of Utica, 416. Smelser v. Wayne, etc.. Turnpike Co., vol. ii. 642. Smith V. Ala. Life Ins. & Trust Co., 540, 585, 597- V. Alvord, 2n, 555. V. American Coal Co., 175 ; vol. ii. 168, 206. V. Bangs, vol. ii. 575, 586. V. Birmingham Gaslight Co., 401. V. Board of Water Commrs., 469. V. Bromley, vol. ii. 411. V. Chicago & Northwestern R.R. Co., vol. ii. 948. V. Clay, 361. V. Crescent City, etc., Co., vol. ii. 215- V. Eastern R.R. Co., 525. V. Erb, 202, 347 ; vol. ji. 792. ■V. Exeter, vol. ii. 291, 339, v. First Nat. Bank, 453. V. First iSat. Bank of Westfield, 407. V. Goldworthy, vol. ii. 56. V. Gower, 591 ; vol. ii, loi, 108, V. Holcomb, vol. ii. 527. V. Huckabee, vol. ii. 91. V. Hull Glass Co., 328. V. Hurd, 7, 415, 467 ; vol. ii. 588, 616. V. Ind., etc., R.R. Co.,v. ii. 96, 98. V. Jackson, vol. ii. 785. V. Lansing, 426 ; vol, ii. 944. ■V. Little, vol, ii. 614. V. Maine Boys Tunnel Co., vol. ii. 118. V. McCarthy, 130. V. McCuUough, 661 ; vol. ii. 256. V. Morse, vol. ii. 655. V. Myers, 90. V. Natchez Steamboat Co., 194, 324. V. Nelson, 79, 234. v.. N. Y. Cent. R.R. Co., vol. ii. 483, 487. V. N; Y. Consolidated Stage Co., vol. ii. 688. V. Plank R. Co., 118 ; vol. ii. 96. V. Prattville Manf. Co., v, ii. 149. Smith V. R.R. Co., vol. ii. 527. V. Rathbun, vol. ii. 623, 631. V. Silver Valley Mining Co., 195, 210. v. Skeary, vol. ii. 134. V. Smith, 237, 306, 444 ; vol. ii. S44, 547. 563. SS9. V. State, vol. ii. 765. V. Tallahassee P. R. Co., vol. ii. 48, so, 67, 74. V. Washington, vol. ii. 454. V. Woodville Consolidated Silver Mining Co., 418. Smoot V. Wetempka, vol. ii. 492. Smyth V. Darley, 202. Snow V. Housatonic R.R. Co., vol. ii. 495. 496. Snyder v. Atlantic Mu. Ins. Co., vol. ii. 373. V. Han. & St. Jo. R.R. Co., vol. ii. 520. Society v. Com., vol. ii. 551, 561, 831. So. Life Ins. Co. v. Lanier, 606. Society, etc. v. Butler, 69. V. New Haven, v. ii. 877. V. Young, vol. ii. 638. Soc. of Middlesex ^'. Davis, 136, 137. Soc. of Practical Knowledge v. Abbott, 2 ; vol. ii. 68. Soc. for Prop, of Gospel v. New Haven, 10, 87, 539. Soc. for the Propagation of Gospel v. Pawlet, 1 54, 627 ; vol. ii. 636. Soc. for Prop, of Gospel v. Wheeler, vol. ii. 572. Soc. for Savings v. Coite, v. ii. 315, 319. Soc. for Savings v. New London, vol. ii- 397- Sodus Bay, etc., R.R. Co. v. Hamlin, vol. ii. 52. Sohier v. St. Paul's Church, 643. Solomon's Lodge v. Montmollin, 306. Somerset R.R. Co. v. Clarke, v. ii. 92. Somerset, etc., R.R. Co. v. Gushing, vol. ii. ,93. Somerville, etc., R.R. Co. v. Doughty, 674. Soper V. Buffalo & Rochester R.R. Co., 477. V. Henry County, 66. Souley zi. Clockmakers' Co., 637. Southampton t/. Graves, vol. ii. 647. South Baptist Soc. v. Clapp, 662. South Carolina R.R. Co. w. Blake, 566. South Carolina, etc., R.R. Co. v. Ezell, vol. ii. 9. Southgate z/. Atlantic & Pacific R.R. Co., 449. TABLE OF CASES. The figures refer to the pages. South Georgia, etc., R.R. Co.w. Ayres, vol. ii. 87. South of Ireland Colliery Co. v. Wad- dle, 285. South & North Ala. R.R. v. Chappell, vol. ii. 429. Southold V. Horton, vol. ii. 635. South School Dist. v. Blakeslee, 210, 213, 214. South Side R.R. Co. v. Daniel, vol. ii. 463. South Royalton Bank v. Suffolk Bank, vol. ii. 565, 596. South Wales R.R. Co. v. Redmond, 582. Southwestern R.R. Co. v. Georgia, vol. ii. 354. South Yorkshire R.R. Co. v. Gt. North- ern R.R. Co., 588, 596. Southern, etc., R.R. Co. v. Stoddard, vol. ii. 63. Southern Cal. Colony Assoc, v. Busta- mente, 307. Southern Express Co. v. Fitzner, vol. ii. 432- V. Hood, V. ii. 310. Southern Life Ins., etc., Co. v. Gray, 466. Southern Hotel Co. v. Newman, 161 ; vol. ii. 108. Southern Ins. Co. v. Packer, v. ii. 632. Southern Life Ins. & Trust Co. v. Lanier, 602. Southern Pacific R.R. Qo.v. Reed, 675. Southern Pa. R.R. Co. v. Stevens, vd. ii- 53- Southern Plank R. Co. v. Hixon, vol. ii. 71. 73, SS8- Spalding v. Bank of Susquehanna Co., 474- Spangler v. Indiana, etc., R.R. Co., vol. ii. 90, 94, 1 1 5. Spargo's Case, vol. ii. 43. Sparhawk v. Union, etc., R.R. Co., vol. ii. 583, 917. Sparks v. Farmers' Bank, 196. V. Liverpool Water Works Co., vol. ii. 118. Sparrow v. Evansville, etc., R.R. Co., 228 ; vol. ii. 64. Spartanburg, etc., R.R. Co. v. De Graffenreid, vol. ii. 13. Spaulding v. Cary, 160. Spear v. Crawford, 166, 627 ; vol. ii. 2, 127, 416. V. Hart, vol. ii. 169. V. Ladd, 433. Speer v. Blairsville, 665. Spencer v. Blaisdell, vol. ii. 658. V. Champion, vol. ii. 914. V. Hartford, Providence & Fishkill R.R. Co., vol. ii. 463- Spense v. Iowa Valley, etc., Co., vol. ii. 91- Spering's Appeal, vol. ii. 177, 586. Spooner v. Holmes, vol. ii. 401. V. McConnell, vol. ii. 917, 923- Sprague v. Cockero Manf. Co., vol. ii. 189. V. Hartford R.R. Co., 574 ; vol. ii. 606. V. Illinois River R.R. Co., 226, 231. 507 ; V. ii. 64. V. Smith, vol. ii. 507. Sprigg V. Western Tel. Co., 533. Springfield v. Commrs. of Hampden, vol. ii. 831. V. Connecticut River R.R. Co., vol. ii. 452. Spring Valley Water Works v. Schott- ler, 587. Spurlock V. Pacific R.R. Co., 255. Spyker v. Spence, 363, 475. Stackpole v. Seymour, vol. ii. 187, 804. Stacy V. State Bank of 111., 463. Stamford Bank v. Benedict, 288. V. Ferris, v. ii. 654, 664. Standard Oil Company v. Bachelor, vol. ii. 289, 293. Stanford v. Worn, 673. Stanhope's Case, vol. ii. 119. Stanley v. Brunswick Tontine Hotel Corp., 293. V. Chester, etc., R.R. Co., vol. ii. 391. Stanton v. Camp, 316. V. Wilson, 167. Stark V. Burke, vol. ii. 4, 142. . V. McGowen, 497. Stark Bank v. U. S. Pottery Co., 335, 435.456; vol. ii. 391. Starke v. High Arch Corp., 489. Starkweather v. Am. Bible Soc, 639, 640, 643. Starrett v. Rockland Ins. Co., vol. ii. 7. State V. Accommodation Bank, 133. V. Adams, 133, 185, 508; vol. ii. 554, 670, 672, 674, 914. V. AUis, 303. V. Am. Express Co., 553. V. Ancker, 172. V. Armstrong, loi. V. Armell, 675. The figures refer to the pages. TABLE OF CASES. CI State V. V. V. V. Zl. V. V. V. V. V. Ashley, vol. ii. 724, 747, 765. Atkins, vol. ii. 302. Bait. & Ohio R.R. Co., 491 ; V. ii. 154,159,309,335,429. Bailey, 228, 558 ; vol. ii. 55, 819, 822, 827, 830. Bank of Charleston, vol. ii. 904. Bank of La , 433. Bank of Manchester, 580. Bank of Md., 10, 498, 580; vol. ii. 864, 868. Bank of Newbern, vol. ii. 323. Bank of South Carolina, vol. ii. 870, 893, 934. Barron, 194; vol. ii. 730, 754, 764, 838, 863, 925. Beck, vol. ii. 740. Beecher, vol. ii. 763. Bell Telephone Co., 525. Berry, vol. ii. 313. Blurdell, vol. ii. 352. Bonnell, 171, 195,202,204,213. Bonner, vol. ii. 790. Board of Fire Commissioners, vol. ii. 789. Boston, Concord & Montreal R.R. Co., 498; V. ii. 731, 767. Bradford, 98 ; vol. ii. 767. Bridgman, vol. ii. 774. Brown, vol. ii. 739, 760. Buchanan, vol. ii. 732. Bull, 130, Butler, vol. ii. 53, 746. Cahawba, vol. ii. 767. Callaway County, 539. Carr, 144 ; vol. ii. 640. Cent. Ohio Mut. Relief Assoc, vol. ii. 729, 765, 914. Cent. R.R. Co., vol. ii. 532. Chamber of Commerce, vol. ii. 550, 554, 557, 809. Chase, 491. Cheraw, etc., R.R. Co., vol. ii. 804. Chester, vol. ii. 822, 827. Cincinnati Gas Co., 503 ; vol. ii. 752, 763. Claypool, vol. ii. 690. Coffee, vol. ii. 734. Collector, etc., vol. ii. 352. Columbia, etc.. Tump. Co., vol. ii. 924. Columbus Gaslight, etc., Co., 521. Commercial Bank, 335 ; vol. ii. 893. 899, 903. Commercial Bank of Cincin- nati, vol. ii. 275. State V. Commercial Bank of Manches- ter, 476 ; vol. ii. 729. V. Commissioners, vol. ii. 352. V. Commrs. of R.R. Taxation, no. 535. 536. V. Common Council, vol. ii. 812. V. Conklin, 278, V. Consolidation Coal Co., 570, 588 ; vol. ii. 923. V. Cumberland & Pa. R.R. Co., vol. ii. 307, 321, 335. V. Curran, 67 ; vol. ii. 873. V. Curtis, 237, 239. V. Dawson, 130. V. Dayton, etc., R.R. Co., vol. ii, 798. V. District Court, v. ii. 608, 609. V. Douglas County Road Co., vol. ii. 767. V. Dover, vol. ii. 448. V. Duffy, vol. ii. 813. V. Edgefield, etc., R.R. Co., vol. ii. 716. V. Essex Bank, vol. ii. 738. V. Evans, vol. ii. 722. V. Fagan, 105 ; vol. ii. 921, 923. V. Ferguson, 202, 233. V. Ferris, 162, 168, 175. V. First Nat. Bank, v. ii. 204, 805. V. Fisher, vol. ii. 739. V. Flavell, vol. ii. 352. V. Fourth Turnpike Co., v. ii. 908. V. Fosdick, 553 ; vol. ii. 280. V. Franklin Bank, vol. ii. 178. State Freight Tax Case, vol. ii. 317. State V. Ga. Medical Soc, vol. ii. 554, 562, 670, 808. V. Gibbs, vol. ii. 781, 793, 828. V. Gilmore, vol. ii. 532. V. Gleason,v. ii. 724, 731, 746, 759. V. Godwinsville, etc.. Road Co., vol. ii. 904. V. Grand Trunk R.R. Co., vol. ii. 466, 532. V. Gt. Works Milling, etc., Co., vol. ii. 432, 446, 520. V. Green Co., 539, 572. V. Guerrero, vol. ii. 804. V. Guille, 232. V. Gummersall, vol. ii. 758. V. Hall, vol. ii. 788. V. Hancock, vol. ii. 352. V. Hannibal, etc., R.R. Co., vol. ii. 291, 336. V. Harris, vol. ii. 719. V. Hartford, etc., R.R. Co., vol. ii. 798, 802. V. Hebrew Cong., 83. on TABLE OF CASES. The figures refer to the f ages. State V. HoUiday, vol. ii. 797. State V. V. Horton, vol. ii. 664. V. V. HousatoniG R.R. Co., vol. ii. V. 320, 327, 328. V. Hunter, 177. V. V.JW. Cent. R.R. Co., v. ii. 324. State of Indianat/.Woram, 9, 60, 90, 604. V. Sta:te v. Independent School Dis{., vol. ii. 731. V. State Ins. Co. v. Saxy vol. ii. 187. V. State V. Jacobs, vol. ii, 735. v^ Jersey City, 670 ; vol. ii. 546. V. V. Johnson, vol. ii.724. V. Kill Buck-Tump. Co., v. ii. 740. V. V. Kingan, vol. ii, 741. V. Kirkley, vol. ii. 7721 783, 791. V. V. Krebs; 113. V. V. Lathrop, 551 ; vol. ii. 280, 281. V. Leete, 175 ; vol. ii. 752. ■V. V. Lehre, 190. V. V. Lingo, vol. ii. 548. V. V. Lusitanian Soc, vol. ii. 833. V. Lyons, vol. ii. 744, V. V. Maine Centr. R.R, Co., vol. ii. 314, 354, 466/ V. V. Manchester & Lawrence R.R., vol. ii. 466. V. V. Mansfield, 489, 670; v. ii. 351. V. MayheW, vol. ii. 803. V. V. McCrillus, vol. ii. 774. V. McDaniel, v. ii. 761, 763, 767. V. V. McGarry, vol. ii. 548. V. McMinnville, etc., R.R. Co., V. vol. ii. 704. V. V. McNaughton, vol. ii. 739. V. V. Mead, vol. ii. 739. V. Medical Society, 182. V. V. Merchants, 1 86. V. V. Merchants' Exchange, 238. V. z>. Merchants- Ins., etc., Co., vol. ■V. ii. 892, 916, 921. V. V. Metz, 574 ; vol. ii. 284. V. V. Miami Exporting Co., v. ii. 763. V. V. Milwaukee, Vol. ii. 659, 815. V. V. Milwaukee Chamber of Com- merce, 34. V. V. Milwaukee, etc., R.R. Co., 543, V. 544; vol. ii. 894. V. Miss., etc., R.R. Co., v. ii. 762. V. V. Montclair R.R. Co., 671. V. V. Moore, vol. ii. 728. V. V. Morgan, vol. ii. 247. V. V. Morris, 57. V. V. Morris & Essex R.R. Co., vol. V. ii. 430, 432, 447. V. ■V. Morristown, 233. V. V. Morristown Fire Assoc, 540, V. 632; vol. ii. 92, 124. V. Nashvile University, 9. , Nat.- Bank of Bait., v. ii. 947. , Newark, 489 ; vol. ii. 298, 301, 351, 780. .New Haven, etc., R.R. Co., 525 ; vol. ii. 782, 917. , New Orleans Gas Light & Banking Co., 67 ; v. ii. 914. , New York, 236. , Northern Cent. R.R. Co., 545, 574,661; V. ii. 254, 347, 685. , Northeastern R.R. Co., vol. ii. 801. , Northwestern Endowment, etc., Assoc, vol. ii. 608. , Noyes, 496. Ohio & Miss. R.R. Co., vol. ii. 432, 446. Olcott, vol. ii. 754. Overton, 246, 278. Paterson, etc. Tump. Co., vol. ii. 747- Paterson, etc., R.R. Co., vol. u. 798. 893- Pawtuxet Turnp. Corp., vol. 11. 744- Pennsylvania, etc, Canal Co.. vol. ii. 763, 766. People's Mu. Benefit ■ Assoc, 464 ; vol, ii. 730. People's Building Assoc, vol. ii. 188, 804. Perrine, vol. ii. 781, 778. Person, 536. PettinelH, 174, 188, 200; vol. ii. 200, Pipher, vol. ii. 741, 894. Pittman, 87. Police Jury, vol. ii. 790. Powers, vol. ii. 320. Primra, 169.: Railroad, vol. ii. 532. Railway Co., vol. ii. 729. , Railroad Tax Cases, vol. ii. 29f, 778. Real Estate Bank, vol. ii. 724. Rives, 663 ; vol. ii. 656, 658, 660, 864, 935. Rombauer, vol. ii. 187, 804. Roosa, 130. Ross, vol. ii. 350, 352. , St. Louis Ins. Co., vol. ii. 724. St. Louis, etc., Co., vol. ii. 804. , Seneca County Bank, v. ii. 897. . Schnierle, vol. ii, 747. Sherman, 498, 595. , Shields, vol. ii. 739. Sibley, 134. The figures refer to ihe^ages. TABLE OF CASES. cm State V. Smith, vol. ii. 37, 58, 79, 199, 216,724,735,739,743,758. V. Southern Minn. R.R. Co., vol. ii. 781. V. Southern Pacific R.R. Co., 499; vol. ii. 885, 889. V. Springfield, vol. ii. 876. V. Standard Life Assoc, v. ii. 729. V. Stoll, 498. V. Stone, vol. ii. 724, 735. V. Sullivan County, 539. v. Telephone Co., v. ii. 634, 798. V. Town Council, vol. ii. 350. •V. Township of Readington, vol. ii. 330- V. Trustees, etc., v. ii. 544, 546. V. Tudor, 179, 232; vol. ii. 551. V. Turnpike, vol. ii. 754. V. Vt. Cent. R.R. Co., vol. ii. 449. V. Vincennes University, 144; v. ii. 559, 638, 857,861,904,914. V. Wadkins, vol. ii. 745. V. Warmoth, vol. ii. 789. V. WarrenFoundry, etc.,Co., 216; vol. ii. 188, 804. V. Washington Soc. Library Co., 539. V. West Wisconsin R.R. Co., vol. ii. 724. V. Western Union Tel. Co., vol. ii. 280. V. White's Creek Tump. Co., vol. ii. 749. V. Williams, 34, 236. V. Wilmington, 214, 622. V. Wilmington Bridge Co., vol. ii. 776. V. Wiltbank, 638. V. Wood, vol. ii. 42. V. Woodruff, vol. ii. 340. V. Wright, 172. V. Young, 194. V. Zanesville Turnp. Co., vol. ii. 7S4, 821. State Bank v. Armstrong, vol. ii. 242. V. Chetwood, 337. V. Comegj's, 328, 331. of Illinois V. Brown, 65. V. Maryland, v. ii. 134, 658. V. People, vol. ii. 313. V. Richmond, vol. ii. 290. V. State, V. ii. 730, 870, 934. State Bank of U. S. v. Com., v. ii. 941. State Board of Agriculture v. Citizens' Street R.R. Co., 599, 604. State Nat. Bank w. Robidoux, vol. ii. 864. State of N. J. v. Wilson, vol. ii. 344. State Protestant, etc., Soc. v. The Mayor, etc., vol. ii. 348. State R.R. Tax Cases, 587 ; vol. ii. 324, 326, 333- State Savings Assoc, v. Kellogg, vol. ii. 421, 913- State Tax on Foreign-held Bonds, vol. ii- 327. 337- State Tax on Railway Gross Receipts, 587 ; vol. ii. 309. State of Tenn. v. Davis, 455. State Treasurer v. Auditor General, 575 ; vol. ii. 284, 328. Statts V. Hudson River R.R. Co., 525. Steacy v. Little Rock, etc., R.R. Co., vol. ii. 41, 139. Steamboat Co. v. McCutcheon, 544. Steam Nav. Co. v. Weed, 604, 607. Steamship Co. v. Tugman, vol. ii. 603. Steamship Dock Co. v. Heron, 237, 255; vol. ii. 222. Stebbins v. Jennings, 76, 148, 650. V. Merrill, 325. V. Merritt, 194, 200, 203, 206, 214, 304, 306. V. Phoenix Ins. Co., 263, 270 ; vol. ii. 200, 223, 233. Steele v. Western Inland Co., v. ii. 524. Stein V. La Dow, 23. Steiner's Appeal, vol. ii. 246. Steinmetz v. Versailles, etc., T. Co. , vol. ii. 30, 100. Stephen v. Ware, vol. ii. 426. Stephens,- etc.. Transportation Co. v. Central R.R. Co., 144. Stephenson v. Hart, 76, 643. V. N. Y. & Harlem R.R. Co., 460 ; vol. ii. 376. Sterling v. Marietta & Susquehanna Trading Co., 388. Stern v. Congregation, 84. Stetson V. Chicago, etc., R.R. Co., 675. V. City of Bangor, v. ii. 292, 298. V. City Bank, vol. ii. 633, 929. V. City Bank of New Orleans, 592 ; vol. ii. 567. V. Kenipton, 215, 463. Steubenville, etc., R.R. Co. v. Tuscara- was County, vol. ii. 277. Stevens v. Boston, etc., R.R. Co., 410 ; vol. ii. 244, 246. V. Buffalo, etc., R.R. Co., vol. ii. 252. V. Com. Mu. Ins. Co., v. ii. 373. V. Davison, 234, 277; vol. ii. 678, 682. V. Eden Meeting House Soc, 205, 206. - CIV TABLE OF CASES. The figures refer to the pagis. Stevens v. Erie R.R. Co., 670. V. Hill, 433. V. Midland Counties R.R. Co., vol. ii. 441. V. Middlesex Canal Co., vol. ii. 524. V. N. Y., etc., R.R. Co., vol. ii. 358. V. Paterson & Newark R.R. Co., 668 ; vol. ii. 460. V. Phoenix Ins. Co., 9. V. Pratt, 549, 550, 657. ■V. Rutland & Burlington R.R. Co , 228 ; vol. ii. 60, 877. V. Shippen, 642. V. South Devon R.R. Co., vol. ii. 161. V. Watson, 660. Stewart v. Brooklyn, etc., R.R. Co., vol. ii. 516. V. Firemen's Ins. Co., v. ii. 196. V. Jones, 589; vol. ii. 247, 651. •V. Lay, vol. ii. 421, 423. V. Lehigh Valley R.R. Co., 424, 441, 611. V. Sonneborn, vol. ii. 438. V. Trustees of Hamilton Col- lege, vol. ii. 12, 31. V. U. S. Ins. Co., vol. ii. 618. Stewart's Appeal, 588. Stiles V. Western R.R. Corp., 479. Stillman v. Dougherty, vol. ii. 705. Stilz V. Indianapolis, vol. ii. 874. Stinchfield 1/. Little, 303, 312. Stinson v. N. Y. Cent. R.R. Co., vol. ii. 483. Stockbridge v. West Stockbridge, 147. Stockton, etc., R.R. Co. v. City of Stockton, vol. ii. 277. Stoddard v. Long Island R.R. Co., vol. ii. 483- V. Shetucket Foundry Co., vol. ii. 47, 155. Stoddert v. Vestry of Port Tobacco Parish, 293, 365. Stodghill V. C. B. & Q. R.R. Co., 675. Stokes V. Lebanon, etc.. Tump. Co., vol. ii. II, 106, 113. V. N. J. Pottery Co., 443 ; vol. ii. 693. Stone V. Berkshire Soc, vol. ii. 634. V. City & County Bank, v. ii. 76. V. Crocker, vol. ii. 438. V. Fairbury, etc., R.R. Co., vol. ii. 454. V. Farmers' Loan & Trust Co., 528, 529. ^ v. Flagg, 98. Stone V. Hackett, vol. ii. 197, 215. V. 111. Cent. R.R. Co., 521. V. Mississippi, 518, 520. Stoneham Branch R.R. Co. v. Gould, vol. ii. 27, 93. Stoney v. Am. Life Ins. Co., v. ii. 363. Storer v. Gt. Western R.R. Co., 604. V. Hobbs, 672. Storey v. Furman, vol. ii. 177. Story V. Jersey City, etc.. Plank Road Co., vol. ii. 65. V. N. Y. Elevated R.R. Co., 676 ; vol. ii. 453. Stourbridge Canal Co. v. Wheeler, 495. Stout V. Sioux City & Pacific R.R. Co., vol. ii. 503. Stowe V. Flagg, 126, 127 ; vol. ii. 8. Stow V. Wise, 135, 205. Stoystown, etc., Turnp. Co. v. Craver, 197, 432, 478. Straffon's Ex'rs' Case, vol. ii. 36. Straffon, ex j>arte, vol. ii. 221. Strange v. Houston & Texas R.R. Co., vol. ii. 90, 192, 193. StrasburgR.R.Co.i'. Echternacht, 188. Stratton v. Allen, 621. Strauss v. Eagle Ins. Co., 483, 496, 598 ; vol. ii. 385. Stribling V. Bank of the Valley, v. ii. 638. Strickland v. Parker, vol. ii. 662, 666. Stringer's Case, vol. ii. 148. Strohecker v. Ala., etc., R.R. Co., 671. Strong V. Brooklyn, etc., R.R. Co., vol. ii. 145. V. McCagg, vol. ii. 679, 916. V. Smith, 168, 193. Strout V. Natoma, etc., Co., vol. ii. 208. Struthers v. Dunkirk, etc., R.R. Co., vol. ii. 454. Stuart V. London & Northwestern R.R. Co., 355. V. Valley R.R. Co., vol. ii. 6. Studebaker Bros. Manf. Co. v. Mont- gomery, vol. ii. 642. Stupart V. Arrowsmith, 623. Sturges z/. Bank of Circleville, 399. V. Carter, vol. ii. 291. V. Stetson, vol. ii. 3, 44. V. Vanderbilt, vol. ii. 845, 913. Sturgess v. Barton, vol. ii. 414. Sturtevant v. City of Alton, 319; vol. ii. 362. Stuyvesant v. New York, 236 ; v. ii. 628. Sullivan v. Mu. Ins. Co., 161. Sumner v. Marcy, 489, 511 ; vol. ii. 62. Sumrall v. Sun Mut. Ins. Co., 138. Sumter County v. Nat. Bank of Gaines- ville, vol. ii. 290, 297, 298. The figures refer to the pages. TABLE OF CASES. cv Sunapee v. Eastman, vol. ii. 617, 634. Supervisors v. Brown, 91. V. Stanley, vol. ii. 292, 319. Susq. Bridge Co. v. Genl. Ins. Co., 659 ; vol. ii. 246. Susquehanna Canal Co. v. Bonham, 588; vol. ii. 247, 651. Susquehanna Mu. Ins. Co. v. Perrine, 237, 273. Susquehanna, etc., Turnp. v. People, vol. ii. 492. Sutherland v. Olcott, vol. ii. 56. Sutter V. Trustees, etc., 508. Sutton V. Jones, vol. ii. 687. V. Spectacle Makers' Co., 282. Sutton's Case, 6 ; vol. ii. 178. Suydam v. Moore, 536 ; vol. ii. 882. V. Morris & Banking Co., 604. V. Receivers, vol. ii. 702. Swan V. Gray, vol. ii. 787, 829. V. Manchester, etc., R.R. Co., vol. ii. 472. V. Scott, vol. ii. 372. Swarth v. People, vol. ii. 731. Svvatara R.R. Co. v. Brune, vol. ii. 46. Swartwout v. Michigan Air Line R.R, Co., vol. ii. 20, 22, 72, 99. Sweatland v. 111. & Miss. Tel. Co., 248, 479- Sweatt V. Boston, 68. Swift V. Poughkeepsie, vol. ii. 325. V. Smith, 64 ; vol. ii. 86. Sweeny v. Smith, vol. ii. 118, 584. Symmers v. Reg., vol. ii. 550. Symonds v. Supervisors, etc., vol. ii. 512, 596. Syracuse & Tully Plank R. Co. v. Peo- ple, vol. ii. 448. Syracuse, etc., R.R. Co. v. Gere, vol. ii. 20, 48. Taber v. Cincinnati R.R. Co., 659 ; vol. ii. 247. V. Houston, vol. ii. 528. Taft V. Hartford, etc., R.R. Co., v. ii. 143. V. Railroad Co., vol. ii. 160. V. Ward, 39, 43. Taft & Co. V. Mills & Co., vol. ii. 599. Taggart v. Western Md. R.R. Co., 530; vol. ii. 31. Talbot V. Hudson, 665. V. Scripps, vol. ii. 6l8, 630. Talladega Ins. Qo.v. Landers, 135, 352. V. Peacock, 324, 584. Tallmadge v. Fishkill Iron Co., v. ii. 131. Tallmage v. Pell, vol. ii. 704. Talmadge v. North Am. Coal & Trans- portation Co., 534. Talty f. Freedman's, etc., Co., v. ii. 199. Tapfield v. Hillman, 660. Tappan v. Bailey, 39, 43. V. Merchants' Nat. Bank, vol. ii. 292, 297, 299. Tarbell v. Page, vol. ii. 630. Tar River Nav. Co. v. Neal, 142, 144, 150; vol. ii. 33, 115, 904. Tasker v. Wallace, vol. ii. 45. Tatem v. Wright, 553 ; vol. ii. 280. Taussig z/. Hart, vol. ii. 199, 211. Tawcett v. Charles, vol. ii. 544. Tax Cases, vol. ii. 335. Taylor v, Agr., etc., Assoc, 352, 659. V. Boston Water Power Co., vol. ii. 453. V. Cedar Rapids, etc., R.R. Co., 672. V. Chichester & Midhurst R.R. Co., 598. V. Columbian Ins. Co., vol. ii. 691, 867. V. Commissioners of Newberne, 133. 137- V. Davis County, vol. ii. 508. V. Earle, 509. V. Fletcher, vol. ii. 16, 71. V. Grand Trunk R.R. Co., vol. "• 539- V. Griswold, 177, 180, 183, 205. V. Heggie, 304, 311. V. Manwaring, vol. ii. 415. V. Miami Exporting Co., 433. V. N. Y., etc., R.R. Co., 679. V. Phila. & Reading R.R. Co., 113- V. Taylor, 218. V. Western Pacific R.R. Co., vol. ii. 536. Taymouth v. Koehler, 348 ; vol. ii. 384. Telegraph Co. v. Davenport, vol. ii. 189, 191. V. Texas, vol. ii. 311. Telfaire v. Howe, 629. Telfer v. Northern R.R. Co., v. ii. 467. V. Railroad Co., vol. ii. 533. Ten Broek v. Boiler Compound Co., 330. Ten Eyck v. Del. & Raritan Canal Co., 67. Tennessee v. Whitworth, vol. ii. 336, 569 ; vol. ii. 340, 356. Tenney v. Lumber Co., 306, 314. V. N. E. Protective Union, 39. Tenth Ward Nat. Bank v. Newark, vol. ii. 292. Terhune v. Midland R.R. Co., 563; vol. ii. 55, 626, 919. CVl TABLE OF CASES. The figures refer to the pages. Terre Haute Gas Co. v. Teel, v. ii. 444. Terre Haute, etc., R.R. Co. v. Graham, vol. ii. 504. Terrell v. Branch Bank of Mobile, 392. Terret v. Taylor, 64, 74 ; v. ii. 877, 910. Terry v. Anderson, 531 ; v. ii. 175, 177. V. Caiman, vol. ii. 176. V. Eagle Lock Co., v. ii. 146, 372. V. Little, vol. ii. 91. V. McLure, vol. ii. 176. V. Merchants', etc.. Bank, vol. ii. 926. Texira v. Evans, vol. ii. 395. Thatcher v. Bank of State of N. Y., 405, 417. 453. V. West River Nat. Bank, vol. ii. 634. Thayer v. Boston, vol. ii. 491. V. Middlesex Mer. Fire Ins. Co., 325. V. New England Lithographic Co., vol. ii. 425. ■V. Tyler, vol. ii. 613. V. Union Tool Co., vol. ii. 422. Thebus v. Smiley, vol. ii. 131. The Banks v. Poitiaux, 292, 627, 631, 632, 657. The Blackwell, vol. ii, 568. The Camanche, vol. ii. 568. Theological Seminary v. Childs, 638. The Ordinary, etc.. Cent. R.R., etc., Co., vol. ii. 326. Thigpen v. Miss. Cent. R.R. Co., vol. ii. II, 51. Third Nat. Bank of Baltimore u. Boyd, 407. Thomas v. Armstrong, vol. ii. 651, 652. V. Boston & Providence R.R. Co., vol. ii. 478. V. Brownsville, etc., R.R. Co., 424, 442, 611. V. Dakin, 6, 12, 13, 17, 22, 24, 61, 109, no, 118. V. EUmaker, 28. V. Placerville Gold Quartz Mining Co., vol. ii. 608. V. Railroad Co., 113, 482, 588. Thomlinson v. Branch, vol. ii. 356. Thompson v. Abbott, 572. V. Androscoggin Improve- ment Co., 484, 665, V. ^tna Axle & Spring Co., vol. ii. 368. V. Allen County^ vol. ii. 778. V. Bell, 389. V. Candor, 142. V. Davenport, 368. V. Ebbets, vol. ii. 339, Thompson v. Erie R.R. Co , vol. ii. 160. V. Guion, vol. ii. 59. V. Lambert, 580, 659; vol. ii. 369. V. N. Y. R.R. Co., 142. V. N. Y. & Harlem R.R. Co., 154, 497. 667: vol. ii. 574, 637, 908. V. Norris, 642. V. Pacific R.R. Co., 99, 103 ; vol. ii. 295. V. People, 587 ; vol. ii. 926. V. Powells, 547. V. Sherrard, vol. ii. 685. V. Soc. of Tammany, 193. V. Swoope, 640. V. Thompson, vol. ii. 869. V. Tioga R.R. Co., 384, 468. V. Waters, 546, 550, 552, 627, 629; vol. ii. 571. ■V. Wesley an Newspaper Assoc, 435. V. Young, 344. Thomson v, Lee County, 513; v. ii. 401. V. Sixpenny Savings Bank, 403- Thorington v. Gould, 345. Thornburgh v. Newcastle, etc., R.R. Co., vol. ii. 73. Thomdike v. Barrett, 291. Thornton v. Bank of Washington, 10. V. Marginal Freight R.R., vol. ii. 930. V. Railroad Co., vol. ii. 926, V. Wabash R.R. Co., vol. ii. 9SI- Thorp V. Weggeforth, vol. ii. 947. V. WoodhuU, vol. ii. 12. Thorpe v. Rutland, etc., R.R. Co., 491, 525. Thrasher v. Pike County, vol. ii. 32. V. PikeCounty R.R. Co., 165; vol. ii. 8, 83, Thurston v. Union Pacific R.R. Co., vol. ii. 468. Thweatt v. Bank of Hopkinsville, 512, 513. Tide Water v. Coster, 665. Ticonic Water Power, etc., Co. v. Lang, 161 ; vol. ii. 16, 37. Tigard v. Moflfit, 83. Tierman v. Commercial Bank of Natchez, 416. Tileston v. Newell, 655. Tinsman v. Belvidere R.R. Co., $7, 64. 67. 5°3- Tipling V. Pexall, 6. Tippets V. Walker, 317, 364. The figures refer to the pages. TABLE OF CASES. evil Tisdale v. Harris, vol. ii. 201. Titcomb v. Union M. & F. Ins. Co., vol. ii. 142. V. Union Ins. Co., v. ii. 665, 666. Titus V. Cairo & Fulton R.R. Co., 432, 443- V. Ginheimer, v. ii. 254, 657, 662. V. Gt. Western Turnpike Co., vol. ii. 520. V. Mabee, v. ii. 254, 657, 660, 662. Tobacco-Pi pe Makers' Co. v. Wood- roffe, 133, 240. Todd V. Birdsall, 92. V. Emly, 28, 32. Toledo R.R. Co. v. Chenoa, 156. Toledo, etc., R.R. Co. v. Johnson, vol. ii. 756. V. Morrison.vol. ii. 461. V. Prince, vol. ii. 376- V. Reynolds, v. ii. 653, 662. V. Rodrigues, v. ii. 376, 377- V. Shuckfflan, v. ii. 457. V. Williams, v. ii. 468. Toledo, Wabash & Western R.R. Co. V. Harrison, vol. ii. 516. Toll Bridge Co. v. Betsworth, 479. Tombigbee R.R. Co. v. Kneeland, vol. ii. 569. Tovaev. Parkersburg Branch R.R. Co., vol. ii. 442. Tomlin v. Dubuque, etc., R.R. Co., vol. ii. 460. Tomlinson v. Branch, 536, 566 ; vol. ii. 354- V. Bricklayers' Union, vol. ii. 617. V. Jessup, 534, 538. Tonica, etc., R.R. Co. v. McNeely, vol. ii. 12. Toof V. Martin, vol. ii. 868. ■Topeka Bridge Co, v. Cummings, vol. ii. 102. Topping V. Bickford, vol. ii. 642, 649. Toram v. Howard Beneficial Assoc, vol. ii. 594. Torrey v. Bank of Orleans, 419. Totten,'etc., Co. v. Tison, v. ii. 157, 160. Totterdell v. Fareham Brick Co., 624. V. Glazby, 241. Towar v. Hale, vol. ii. 937. Towle V. State, voL ii. 787. Town V. Bank of River Raisin, vol. ii. 855, 864. Town of Dublin, Case of, 117. Town of Pawlet v. Clark, 71. Townes v. Nichols, vol. ii. 804. Townsend v. Brown, 496. V. Goewpy, 39. V. Mclvor, vol. ii. 188, yjS, 804, 823, 827. ^'. N. Y. Cent. & Hudson River R.R. Co., vol. ii. 540. V. Susquehanna Tump. Co., vol. ii. 501. Townson v. Havre de Grace Bank, 144. Tracy v. Guthrie County Agr. Soc, vol. ii. 380, 384. V. Talmage, 605 ; vol. ii. 411. V. Yates, vol. ii. 46, 142, 221. Transportation Co. v. Wheeling, vol. ii. 311- Trask v. Maguire, vol. ii. 357. Traventine's Appeal, vol. ii. 577. Treadwell v. Salisbury, 215, 588. V. Salisbury Manf. Co., 509 ; vol. ii. 125, 837, 847, 849, 858. Treasurer v. Com. Mining Co., vol. ii. 190. Tremain v. Cohoes Co., vol. ii. 504. Tremont Bankt/. City of Boston, vol. ii. 285. Trenton Banking Co. v. Haverstick, 10 ; vol. ii. 565. V. Woodruff, 471, 542, 657. Trenton Mut. Life & Fire Ins. Co. v. Perrine, vol. ii. 567. Trenton Water Power Co., In re, vol. ii. 801. Trice v. Hannibal, etc., R.R. Co., 525. Triebel v. Colburn, vol. ii. 664. Trigg V. St. Louis, etc., R.R. Go., vol. ii. 540, 541. Tripp V. New Metallic Packing Co., 475. V, Swanzey Paper Co., 382, 434, 659. Trott V. Warren, 135. Troy Fire Ins. Co. v. Carpenter, 472. Troy & Rutland R.R. Co. v. Kerr, 588, 623 ; vol. ii. 63, 65, 106, 247, 832. Troy Turnpike & R.R. Co v. McChes- nay, 328 ; vol. ii. 106, 1 1 5. Troy, etc., R.R. Co. v. Newton, vol. ii. 93. Ill- V. Potter, 680. V. Tibbits, 166; v. ii. 30. 31. CVIU TABLE OF CASES. The figures re/tr to the f ages. Troy, etc., R.R. Co. v. Warren, l66 ; vol. ii. 32. True V. International Tel. Co., 248. Trumbull County, etc., Ins. Co. v. Horner, vol. ii. 84. Trustees v. Bly, 82, 219. V. Bosseiux, vol. ii. 587. V. Levant, 466. V. McKechnie, 625. V. Peaslee, 508. V. People, vol. ii. 814. V. Rechlin, 82. V. Shulze, 659. Trustees of First Cong. Church v. Webber, 149. Trustees of H. College v. Stewart, vol. ii. 13. Trustees of Northvirestern College v. Schwagler, 120. Trustees of Phila. Baptist Assoc, v. Hart, 644. Trustees of Phillips Academy v. King, 85, 642. Trustees of Schools v. Tatman, vol. ii. 877. Trustees of South Baptist Church v. Yates, 651. Trustees of University v. Moody, 290 ; vol. ii. 948. Trustees of Vernon Soc. v. Hills, 151. Trustees of Williamsburg, In re, vol. ii. 776. Trustees, etc. v. Flint, vol. ii. 413, 425. V. Parks, 114. V. Peaslee, 115, 649. V. Schwagler, v. ii. 628. V. Tatman, 65. V. Winston, 65. Tuckahoe Canal Co. v. Tuckahoe R.R. Co., 497. Tucker v. Chaplin, vol. ii. 533. V. Ferguson, vol. ii. 340, 359. V. Mass., etc., R.R. Co., 674. V. St. Louis, etc., R.R. Co., vol. ii. 376. Tuff ». Warman, vol. ii. 501. Tunney v. Midland R.R. Co., vol. ii. 499- TurnbuU v. Payson, 168 ; v. u. 34, 49. V. Prentiss Lumber Co., vol. ii. 944. Turner v. First Nat. Bank of Keokuk, 407. V. Bank of Keokuk, vol. ii. 919. V. Granger's Life & Health Ins. Co., vol. ii. 127. V. Hannibal, etc., R.R. Co., vol. ii. 711. Turner v. Indianapolis, etc., R.R. Co., vol. ii. 709, 715. V. Maryland, vol. ii. 305. V. North Branch & Mission R.R. Co., vol. ii. 470, 520, 541. Turnpike Co. v. Davidson Co., 155. V. Illinois, 633, 654. V. Phillips, vol. ii. 60, 62. V. Rutter, vol. ii. 428. V. State, vol. ii. 728, 896. V. Wallace, 71. Tump. R. Co. V. People, vol. ii. 448. Turpin v. Locket, 74. Turquand v. Marshall, 203, 400; vol. ii. 148. Tuscaloosa Scientific, etc., Assoc, v. Green, vol. ii. 929, 930. Tuttle V. Mich. Air Line R.R. Co., 562 ; vol. ii. 63. V. Walton, 239, 260 ; vol. ii. 181, 232. Twelfth Street Market Co. v. Jackson, 444. Twin Creek, etc., Turnp. Co. v. Lan- caster, 10, ir. Twin Lick Oil Co. v. Marbury, 348, 423, 425, 428, 443, 621. Tyler v. Beecher, 665. V. Western Union Tel. Co., 247. Tyng V. Clarke, vol. ii. 425. V. Commercial Warehouse Co., 113- Tyrrell v. Washburn, 24, 25, 27. Tyson v. Mahone, vol. ii. 625. V. Wabash R.R. Co., vol. ii. 249, 250, 681, 682. Umsted v. Buskirk, vol. ii. 421. Uncas Nat. Bank v. Rith, 658. Underhill v. Gibson, 478. V. Trustees, vol. ii. 365, 874. Underwood v. Newport Lyceum, 401, 604; vol. ii. 363. V. N. Y. & New Haven R.R. Co., vol. ii. 150. Union Bank of Fla. v. Call, vol. ii. 378. V. Clossey, 337. V. Geary, vol. ii. 631. of Georgetown v. Laird, 263. V. Knapp, 325 ; v. ii. 648. V. Jacobs, 484, 539. V. Laird, 271 ; vol. ii. 185, 200, 232. V. Ridgely, 234, 272, 291, 328. ■V. State, vol. ii. 275, 359. Tkefieiires refer to the pages ^ TABLE OF CASES. CIX Union Bank of Tenn. v. Ellicott, vol. ii. 137- Union Nat. Bank -v. Hunt.vol. ii. 372. Building Assoc, v. Sendmeyer, vol. ii. 185. Canal Co. v. Young, vol. ii. 951. Cement Co. v. Noble, v. ii. 107. Gold Mining Co. v. The Bank, 306, 307, 325 ; vol. ii. 388. Hotel Co. V. Hersee, v. ii. 14, 20. Impiovement Co. v. Com., 535, 536- Iron Co. V. Pierce, vol. ii. 414. Ins. Co. V. Grain, 125. Lock & Canals v. Towne, vol. ii. 53. 65. Mining Go. v. Rocky Mt. Nat. Bank, 605. Mu. Fire Ins. Co. v. Keyser, 235, 428, 625. Mut. L. Ins. Co. V. Frear Stone, etc., Co., vol. ii. 79, 83. Mut. Life Ins. Co. v. White, 444. Nat. Bank v. Chicago, v. li. 292. V. Hunt, 609. Pacific R.R. Co. v. Durant,voI. ii. 410, 443. V. Hall, vol. ii. 798, 801, 802, 819. V. Hause, vol. ii. 525- V. U. S., vol. ii. 145, i6o. Passenger R.R. Co. v. Phila., vol. ii. 358. Screw Co. v. Am. Screw Co., vol. ii. 167. R.R. & Transit Co. v. Shackett, vol. ii. 467. Turnpike Co. v. Jenkins, 167 ; vol. ii. 104. Water Co. v. Murphy's Flat Fluming Co., 609. United Soc. v. Eagle Bank, vol. ii. 127. United Soc. of Shakers v. Underwood, 414, 611. U. S. •z/. Amedy, 9. United States v. Bank of North Car- olina, 9. U. S. V. Bait. & Ohio R.R. Co., vol. ii. 429. V. Block, 664. V. Bridge Go., 667. V. City Bank of Columbus, 455, 476. V. Commissioners, vol. ji. 788. V. Dandridge, 186. U. S. v. Fox, 546. V. Grundy, vol. ii. 931. V. Guthrie, vol. ii. 788. V. Hart, 236. V. Hillegas, 343. V. Johns, vol. ii. 640. V. Jones, 664, 672. V. McKelden, 203, 207. V. Memphis, etc., R.R. Co., vol. ii. 429. United States v. Nelson, vol. ii. 395. U.S.I/. New Orleans R.R. Co., 659, 672 ; vol. ii. 262. V. Oregon R.R., etc., Co., 671. V, Railroad Co., vol. ii. 271. V. R.R. Bridge Co., 679. V. Tillotson, 343. V. Union Pacific R.R. Co., 531 ; vol. ii. 873. V. Vaughan, vol. ii. 208. V. Wilson, vol. ii. 296. U. S. Bank v. Dandridge, 315. V. Stearns, 82, 640. U. S. Ins. Co. V. Shriver, 471. U. S. Mortgage Co. v. Gross, 546. U. S. Rolling Stock Co. v. Atlantic, etc., R.R. Co., 347, 359, 417. U. S. Trust Co. V. Brady, 100. V. Lee, 550. V. N. Y., West Shore, etc., R.R. Co., vol. ii. 677. U. S. Trust Co. of N. Y. v. U. S. Fire Ins. Co., vol. ii. 703. University of Des Moines v. Livingston, vol. ii. 7. University v. People, vol. ii. 340. University of Md. v. Williams, v. ii. 670. Updegraff z/. Grans, vol. ii. 732. Upper Miss. Transp. Co. v. Whittaker, vol. ii. 609. Upton V. Bnrnham, vol. ii. 238. V. Englehart, vol. ii. 4, 68, 72, 76, 624. V. Hansbrough, 163 ; vol. ii. 71, 78, 95, 216. V. Tribilcock, 438 ; vol.ii. 8, 11, 57, 66, 72, 107, 120, 127. Utica Bank v. Hilliard, vol. ii. 646. V. Smalley, 255, Utica V. Churchill, vol. ii. 149. Utica Ins. Co. v. Bloodgood, 464. V. Cadwell, vol. ii. 639. V. Lynch, vol. ii. 712. V. Scott, 657. V. Tilman, vol. ii. 639. Utley V. Clark Gardner Lode Mining Co., vol. ii. 614. ex TABLE OF CASES. The figures refer to the f ages. Utley V. Union Tool Co., 124, 125, 139 ; vol. ii. 413. Vail V. Hamilton, 169, 185 ; vol. ii. 693, 706. Valk V. Crandall, 157; vol. ii. 14. Valle V. Zeigler, vol. ii. 335. Valley Bank v. Ladies', etc., Soc, vol. ii. 867, 894. Valley Bank, etc. v. Sewing Soc, vol. ii. 863. Van Aernam v. McCune, vol. ii. 433. Van Allen v. The Assessors, v. ii. 297. Van Buren v. Reformed Church, 82. Vance v. Bank of Indiana, vol. ii. 627. V. Erie R.R. Co., vol. ii. 429, 438, 596. V. Farmers' and Mechanics' Bank, 106, 155. Van Cott V. Van Brunt, 425 ; vol. ii. 41, 45. 138, 705, 706. Vandall v. South San Francisco Dock Co., 486. Vanderbilt v. Adams, 520. V. Richmond Tump. Co., vol. ii. 520, 521. Van Deuzen v. Trustees, 651. Vandine's Case, 252. Van Doren v. Olden, vol. ii. 171, 172, 173- Van Dyck v. McQuade, vol. ii. 166. Vandyke v. Hart, vol. ii. 728. Van Epps v. Van Epps, 418, 419.' Van Glahn v. De Rosset, vol. ii. 930, 939. , Van Hook v. Somerville Manf. Co., 363. Vanhorne v. Dorrance, 671. Van Keuren v. Johnston, 92. Van Kirk v. Clark, 91. Van Leuven v. First Nat. Bank, 391. Van Norman v. Jackson County Cir- cuit Judge, vol. ii. 653. Van Ranst v. N. Y. College of V. Sur- geons, vol. ii. 588. Van Rensselaer T/. Emery, vol. ii. 711. V. Sheriff of Albany, vol. ii. 791. Van Sandam v. Moore, 51, 54. Van Sands v. Middlesex County Bank, vol. ii. i8i, 182, 225. Vansant v. Roberts, 117, 635, 641. Van Shaick v. Hudson River R.R. Co., vol.' ii. 456. Vatable v. New York, Lake Erie, etc., R.R. Co., vol. ii. 951. Van Wickle v. R.R. Co., 670. Veazie v. Mayor, 526 ; vol. ii. 881. Vedder v. Fellows, 246. Veeder v, Midgett, vol. ii. 57, 140. Venango Nat. Bankw.Taylor, v. ii. 138. Vermilyea v. Fulton Bank, vol. ii. 626. Vermont z'. Soc. tor Prop, of Gospel, 539 ; vol. ii. 637. , Vermont Mu. Ins. Co. v. Cummings, vol. ii. 566. Vt. & Canada R.R. Co. v. Vt. Cent. R.R. Co., 138 ; vol. ii. 697, 933. Vermont Cent.; R.R. Co. v. Clayes, 159 ; vol. ii. 12, 103. Vt., etc., R.R. Co. V. Vt. Cent. R.R. Co., 532 ; vol. ii. 689. Vernon v. Manhattan Co., 469. Vernon Soc. v. Hillas, vol. ii. 749. V. Hills, 194, 347 ; vol. ii. 637. 643, 910. Verplanck v. Merc. Ins. Co., 418, 492 ; vol. ii. 681, 918, 921. Vice V. Fleming, 21. Vick V. Lane, etc., Co., vol. ii. 123. V. N.Y. Cent., etc., R.R. Co., vol. ii. 499- Vicksburg v. Lombard, vol. ii. 404. Vicksburg, etc., R.R. Co. v. McKean, vol. ii. 48, 67, 102, 181. Vidal V. Gerard, 648. Vigers v. Sainet, 39. Vilas V. Reynolds, 310. V. Merchants' Mu. Ins. Co., vol. ii. 432. Vincennes R.R. Co. v. Bank of North Am., 543. Vincennes University v. Indiana, 86, 106, 135. Vincent v. Chapman, 370; vol. ii. 412. V. Nantucket, 450. Vinton's Appeal, vol. ii. 172. Virginia City v. Chollar Potosi Mining Co., loi. Virginia, etc.. Steam Nav. Co. z/. U. S., vol. ii. 634. Virginia, etc., R.R. Co. v. Elliott, 674. V. Hewry, 674. V. Washington County, v. ii. 274. Voisin V. Leche, vol. ii. 747. Von Hoffman v. Quincey, vol. ii. 815. Von Schmidt v. Huntington, v. ii. 846. Vowell V. Thompson, 177 ; vol. ii. 218. Vreeland v. N. J. Stone Co., 164; vol. ii. 49, 68. Wabash, etc., R.R. Co. v. Ham, 573. Wabash^ etc., Canal Co. v. Johnson, vol. ii. 797. The figures refer to the pages. TABLE OF CASES. CXI Wade V. Thayer, vol. ii. 520. Wadsworth v. Henniker, 463. Wagner v. R.R. Co., 674. Waite V. Dowley, vol. ii. 292, 301. Wakeiield Bank v. Truesdell, 450. Wakefield v. Fargo, vol. ii. 415. Wakely v. Muscatine, vol. ii. 770. Wakeman v. Dalley, 399. Walburn v. Ingilby, 37. Walcott V. People, vol. ii. 310, 345. Waldo V. Chicago R.R. Co., 511 ; vol. ii. 69, 442. V. Goodsell, vol. ii. 534. Waldron v. Rensselaer, etc., R.R. Co., 525. Walker v. Bank of State of N. Y., 405. z/. Detroit Transit R.R. Co., vol. ii. 210. ex parte, ill. •u. Flemming, 346. V. Gt. Western R.R. Co., vol. ii. 376. V. Ogdcn, vol. ii. 113, 118. V. Lewis, vol. ii. 91. V. Mad River, etc., R.R. Co., vol. ii. 63. V. Mobile, etc., R.R. Co., vol. ii- 39. 73. 75- V. Old Colony R.R. Co., 674 ; vol. ii. 458, 459. V. Southeastern R.R. Co., vol. ii. 438. V. Transp. Co., vol. ii. 484. Walker's Case, vol. ii. 180. Wallace v. Anderson, vol. ii. 748. V. Long Island R.R. Co., 435. V. Loomis, 119; vol. ii. 683. •v. Mayor, 9. V. McConnell, vol. ii. 400. V. Nevkf York, 3, 13. V. Sawyer, vol. ii. 664. Wallamet Falls Canal & Lock Co. v. Kittridge, vol. ii. 839. Waller v. Bank of Kentucky, 465. Wallis V. London, etc., R.R. Co., vol. ii. 246. Wallis' Case, 250. Wain V. Bank of North Am., 272. Walnut V. Wade, vol. ii. 176, 400. Walsh V. Sexton, vol. ii. 203. Walter v. Belding, vol. ii. 821. Waltham v. Austin, 253. Waltham Bank v. WaJtham, v. ii. 327. Walther v. Warner, 669. Walworth County Bank v. Farmers' Loan & Trust Co., v. ii. 387, 446. Wann v. West. Union Tel. Co., 248. Ward V. Farwell, vol. ii. 726. Ward V. Hartford, vol. ii. 664. V. Grisvvoldville Manf. Co., vol. ii. 699. ^/. Lewis, 655. V. Polk, 462. V. Salem Street R.R., 228. V. Sea Ins. Co., vol. ii. 898, 913, 921. V. Society of Attorneys, vol. ii. 837. 857. Warden v. Railroad Co., 424, 442. V. Union Pacific R.R. Co., 612. Wardens, etc. v. Hall, 118. Ware v. Bazemore, v. ii. 580, 618, 630. V. Grand Junction Water Co., 228, 229, 533 ; vol. ii. 578. Waring v. Catawba Co., 8 ; vol. ii. 581, 593- Warner v. Beem. vol. ii. 176. V. Beers, 12, 25, 97. V. Erie R.R. Co., vol. ii. 496. ^'. Mower, 201, 202, 204, 275, 313- Warren v. Charleston, 130. V. King, vol. ii. 160. V. Lyncli, 296. V. Henly, vol. ii. 271. V. Mobile, etc., R.R. Co., 571. V. Ocean Ins. Co., 328. Warren Bank v. Suffolk Bank, 416. Warren Manf. Co. v. .i^Itna Ins. Co., 549; v.ii.615. V. Warford, vol. ii. 285. Washburn College v. Commissioners, vol. ii. 350. Washburn v. Nashville, etc., R.R. Co., vol. ii. 500. Washington Bank v. Lewis, 393, 478. Washington Beneficial Soc. v. Backer, vol. ii. 560. Washington Bridge Co. v. The State, 502, 515. Washington Mut. Ins. Co. v. Chamber- lain, vol. ii. 639. Washington, etc., Tump. Co. v. Cul- len, 325. Washington, etc., Turnp. Co. z*. Mary- land, vol. ii. 896, 941. Washington, etc.. Turnpike R.j/. State, vol. ii. 840. Washington University w. Rouse, vol. ii. 340, 341. Wasson v. First Nat. Bank, vol. ii. 292. Waterbury v. Merchants' Union Ex- press Co., 23, 39, 42 ; vol. ii. 677, 680, 685. CXll TABLE OF CASES. Tke figures rejer to tlie pages. Waterford, etc., Tump. R. Co. v. Peo- ple, vol. ii. 448. Waterhouse v. Jamieson, vol. ii. 128. Waterman v. Troy, etc., R.R. Co., vol. ii. 29. Water Valley M. Co. v. Seaman, vol. ii. 46, 67, 112. Watervliet Bank v. White, 380. Waterworks Co. v. Burkhart, 665. Watkins v. Eames, vol. ii. 81. V. Wilcox, 74; vol. ii. 667. Watson V. Arabergate, etc., R.R. Co., vol. ii. 476. V. Avery, 85. V. Bennett, 400. V. Eales, vol. ii. 1 14. V. Harlem, etc., Nav. Co., vol. ii. 589. V. Jones, 79. V. N. Y., etc., R.R. Co., 671. V. Watson, 333. Watts V. Waddle, 550. Watts' Appeal, 435, 657 ; vol. ii. 247. Watumpka, etc., R.R. Co. v. Bingham, 137- Waugh V. Carver, 18. Waukon & Miss. R.R. Co. v. Dwyer, 168 ; vol. ii. 96. Wausau Boom Co. v. Plummer, vol. ii. 581. Way V. Billings, 140. Waynesville Nat. Bank v. Irons, 469. Wear v. Jacksonville, etc., R.R. Co., vol. ii 98. Weary v. State University, vol. ii. 668. Weaver v, Barden, vol. ii. 182, 213. V. Weaver, vol. ii. 318. Webb V. Burlington, vol. ii. 291. V. Ridgely, 191 ; vol. ii. igp. Webster v. The People, 539. V. Turner, vol. ii. 840, 843. V. Upton, vol. ii. 8, 72, 120, 210, 214, 220. Weckerly v. Geyer, 183. Weed V. Panama R.R. Co., vol. ii. 469, S16. V. Saratoga & Schenectady R.R. Co., vol. ii. 475, 476. Weeden v. Town Council, vol. ii. 787. Wehn V. Commrs. of Gage County, vol. ii. 512. Weight V. Liverpool Ins. Co., v. ii. 597. Weir V. St. Paul., etc., R.R. Co., 664. Weiss V. Pa. R.R. Co., vol. ii. 457. Welch V. Milwaukee, etc., R.R. Co., 674. V. St. Genevieve, vol. ii. 929. Weld -v. May, 76. Welland Canal Co. v. Hathaway, vol. ii. 635, 643. Wellcome v. People's Ins. Co., 243. Welles u. Cowles, vol. ii. 179. V. March, 22, 23. V. N. Y. Cent. R.R. Co., vol. ii. 483- Wellersburgh, etc., R.R. Co. !». Young, vol. ii. 4, 34. Wells V. Canton Co., vol. ii. 269. V. Cent. Vt. R.R. Co., v. ii. 340. V. Gates, 27, 36, 39. V. Mayor, etc., of Hull, 284. V. N. Y. Cent. R.R. Co., v. ii. 486. V. Northern Pacific R.R. Co., 484. V. Oregon R.R., etc., Co., 119. V. Rahway White Rubber Co., 624. V. Rodgers, vol. ii. 93. V. Stackhouse, vol. ii. 788. Welsh V. Allen, 651. V. First Division of the St. Paul, etc , R.R. Co., 571. V. Pittsburg, etc., R.R. Co., vol. ii. 483- Wendel v. State, 484. Wert V. Crawfordsville R.R. Co., vol. ii. 71. West V. Bullskin Prairie Ditching Co., 123, 124. V. Carolina Ins. Co., vol. ii. 729, 909. V. Madison County Agr. Board, 659 ; vol. ii. 247. V. Waddill, 443. Westchester & Phila. R.R. Co. 7/. Jack- son, vol. ii. 59, 468. West Branch Bank v. Armstrong, vol. ii. 236. Westcott V. Fargo, 39, 41 ; vol. ii. 581. V. Minnesota, etc., Co., vol. ii. 112, 914. Westerloo v. DeWitt, vol. ii. 203. West London R.R. Co. v. London & Northwestern R.R. Co., 556. Westman v. Aktiebolaget, vol. ii. 597. Westmoreland Bank v. Klingensmith, 471- West Phila. Canal Co. v. Jones, vol. ii. 220. West Pa. R.R. Co. v. Johnston, 680 ; vol. ii. 662. West River Bridge Co. v. Dix, 664, 666; vol. ii. 272. West St. Louis Sav. Bank v. Shawnee County Bank, 376, 454, 611, 614 ; vol. ii. 442. Westerfield v. Radde, 443. The figures refer to the pages^ TABLE OF CASES. CXUl West Winsted Savings Bank, etc. v. Ford, 153, '54; vol. ii. 635, 642. West Wis. R.R. Qo.v. Supervisors, 517. West Wisconsin R.R. Co. v. Trempea- leau County, 517, 533; vol. ii. 340, 356. Western Banlc of Scotland v. Addie, vol. ii. 68. Western Banlc v. Gilstrap, 288, 449. Western Boatmen's Assoc, v. Kribben, . 474. 484. Western Cottage Organ Co. v. Red- dish, 484. Western Life Assoc, ex parte, v. ii. 845. Western Pa. R.R. Co. v. Hill, v. ii. 452. Western Pa. R.R. Co. v. Johnston, vol. ii. 264, 658. Western Pacific R.R. Co. v. Tevis, 681. Western R.R. Co.. v. Avery, v. ii. 176. Western R.R. Corp. v. Babcock, 375. Western R.R. Co. v. Davis, 559. Western, etc., R.R. Co. v. Taylor, vol. ii. 594. Western Saving Fund Soc. v. Phila., 504. Western Screw & Manf. Co. v. Cously, vol. ii. 390. Western Stage Co. v. Walker, 2i. Western Transp. Co. v. Barber, vol. ii. 245. Western Transp. Co. v. Schen, v. ii. 287. Western Union Tel. Co. v. Am. Union Tel. Co , 669. Western Union Tel. Co. v. Axtell, 525. Western Union Tel. Co. v. Buchanan, 248. Western Union Tel. Co. v. Eyser, vol. ii. 429, 540. Western Union Tel. Co. v. Lieb, vol. ii. 280. Western Union Tel. Co. v. Mayer, 533, 549; vol. ii. 280, 310. Western Union Tel. Co. v. Rich, 679. Western Union R.R. Co. v. Smith, 571. Western Union Tel. Co. v. State, vol. ii- 339- Western Union Tel. Co. v. Tyler, 247. Weston V. Bear River, etc.. Mining Co., vol. ii. 208, 218. V. City Council of Charleston, vol. ii. 280, 295. V. Hunt, 60, 61. Weston's Case, vol. ii. 85, 180. Wetherbee v. Baker, vol. ii. 42. Weyer v. Second Nat. Bank, vol. ii. 195, 200, 204. Weymouth v. Penobscot Log Driving Co., no. Weymouth v. Washington, etc., R.R. Co., 549; vol. ii. 569, 612. Wharton v. School Directors, 92. Wheeler w. Millar, vol. ii. 87, loi, 131. V. Newbold, vol. ii. 399. V. Smith, 646. V. Troy, vol. ii. 509. V. Walker, 168. Wheless v. Nat. Bank, vol. ii. 596. V. Second Nat. Bank, vol. ii. 438- Wheelock v. Boston, etc., R.R. Co., vol. ii. 457- ■V. Kost, vol. ii. 37, 132, 138, 199, 220, 417. ■V. Moulton, 313, 655 ; vol. ii. 251. Whipple V. Parker, 29. White V. Atty. Genl., 643. V. Brownell, 35, 36, 37; v. ii. 562. V. Cuyler, 312. ex parte, vol. ii. 819. ■V. Franklin Bank, vol. ii. 411. V. Howard, 546, 550, 640, 641, 643- V. Miller, 8i. V. Nashville, etc., R.R. Co., 672. V. Schuyler, vol. ii. 190. V. State, 146. V. Syracuse & Utica R.R. Co., 482. V. Vermont, etc., R.R. Co., vol. ii. 395, 401. Whitecar v. Michenor, vol. ii. 585. Whitehall, etc., R.R. Co. v. Myers, vol. ii. 50, 72. Whitehead v. Buffalo, etc., R.R. Co., 286 ; vol. ii. 598. Whitehouse v. Bickford, vol. ii. 645. V. Sprague, 43. Whiteman v. Wilmington & Susq. R.R. Co., 401. Whitemarsh v. Philadelphia, etc., R.R. Co., vol. ii. 821. White Mts. R.R. Co. v. Eastman, vol. ii. 72, 120, 644, 646, 650. Whitesell v. Northampton County, vol. ii. 321. Whiteside v. People, 223. White River Bank, In re, vol. ii. 783. White Water Valley R.R. Co. v. Mc- Clure, 674. White Water, etc., Co. v. Valette, 1 54, 580, 658 ; vol. ii. 248, 362. White's Bank v. Toledo, etc., Ins. Co., vol. ii. 237. White's Creek Turnp. Co. v. Davidson, vol. ii. 908. CXIV TABLE OF CASES. The figures refer to the pages. Whitfield V. Southeastern R.R. Co., vol. ii, 433. Whitford v. Panama R.R. Co., vol. ii. 433. 441. 520, 534- V. Laidler, 291, 388. Whitman v. Lex, 643. V. Porter, 43; vol. ii. 131. Whitman Mining Co. v. Baker, 600. Whitney -u. First Nat. Bank of Brattle- boro, 391, 453. V. Madison, vol. ii. 290. V. Ragsdale, vol. ii. 301. V. South Paris Manf. Co., 473; vol. ii. 380. V. Stovve, vol. ii. 377. Whitney Arms Co. v. Barlow, 596, 604, 608, 609 ; vol. ii. 367, 370. Whittington v. Farmers' Bank, vol. ii. 635- Whittlesey v. Frantz, vol. ii. 634. Whitwell U. Warner, 430; vol. ii. 134, 411. Wickersham -v. Chicago Zinc Co., 469. Wickson v. Nesmith, vol. ii. 413. Wier V. Bush, 194. Wight V. People, vol. ii. 749. V. Shelby R.R. Co., vol. ii. 7, 1 5, 50, 108. Wiggin V. Free- Will Baptist Church, 200, 205, 207. Wiggins Ferry Co. v. East St. Louis, voL ii. 312. Wild V. Bank of Passamaquoddy, 335. Wilde V. Jenkins, vol. ii. 864. Wilds z'. Hudson River R.R. Co., vol. ii.' 526, 533. Wiley V. Board of Education, 310. V. First Nat. Bank, 407, 453. Wilkes V. Back, 309, 312. Wilkie V. Rochester, etc., R.R. Co., vol. ii. 580. Wilkins v. Despard, vol. ii. 931. V. Thome, vol. ii. 623. Wilkinson v. Northern Pacific R.R. Co., 686. V. Providence Bank, vol. ii. 187, 804. Willard v. Trustees of Methodist E. Church, 83. Willamette Freighting Co. v. Stannus, vol. ii. 91, 92, 93. Willamette Manf. Co. v. Bank of Brit- ish Columbia, 594. Willcocks, ex parte, 172, 177, 234; vol. ii. 218. Williams v. Babcock, vol. ii. 700. V. Bank of Mich., 39, 97, 99 ; V. ii. 625, 637, 638, 643. Williams Case, vol. ii. 132. V. Caswell, 547. V. Cheney, 333 ; vol. ii. 636, 642. V. Chester, etc., R.R. Co., 459- V. Christian Female College, 326. V. County Commrs., vol. ii. 770. 778, 783. 791- V. Croswell, 103, 545, 549 ; vol. ii. 567, 569, 611. ex parte, vol. ii. 715. ""• Gregg, 417. ■V. Hadley, vol. ii. 411. V. Halliard, vol. ii. 177. V. Ins. Co., vol. ii. 596. V. Keech, 93. w. Lowe,, vol. ii. 112, 115, 223, 914. V. Mechanics' Bank, vol. ii. 200. V. N. Y. Cent. R.R. Co., 669, 677, 678. V. Planters' Ins. Co., vol. ii. 438. V. School District, 665. V. Traphagen, vol. ii. 131. V. Union Bank, 154. V. Western Union Tel. Co., V. ii. 145, 146, 149, 151. V. Williams, 641, 643. Williamson v. Kokomo, etc., Assoc, vol. ii. 86i. V. New Alb., etc., R.R. Co., 659 ; vol. ii. 267. V. N. J., etc., R.R. Co., 660; vol. ii. 254. V. R.R. Co., 662. V. Wadsworth, vol. ii. 415. Williamsport v. Com., vol. ii. 404. Williamsport Gas Co. v. Pinkerton, 583 ; vol. ii. 400. Willink V. Andrews, 659. V. Morris Canal, etc., Co., vol. ii. 251. Willis V. Corlies, vol. ii. 678, 682. V. Deyson, 21. V. Fry, vol. ii. 87. Williston V. Mich. Southern, etc., R.R. Co., vol. ii. 164. Wills V. Southerland, 41. Wilmarth v. Crawford, 484; vol. ii. 104, 363. Wilmer v. Atlanta & Richmond Air Line R.R. Co., 577. Wilraersdoerffer v. Lake Mahopac Imp. Co., vol. ii. 924. The figures refer to the pages. TABLE OF CASES. cxv Wilmington v. Reid, vol. ii. 877. Wilmington R.R. Co. v. Reid, 499, 514; vol. ii. 352. Wilmington & Manchester R.R. Co. V. Saunders, 145. Wilmington, etc., R.R. Co. v. Stauffer, 674. Wilmington, etc., R.R. Co. v. Thomp- son, vol. ii. 639. Wilmot V. Coventry, 293. Wilson V. Baker, vol. ii. 634. V. Bank of Montgomery Coun- ty, vol. ii. 58. V. Cent. Bridge Co., 509 ; vol. ii. 848, 853, 855. V. Furniss R.R. Co., 604. V. Gaines, 594. V. Goodman, 384. V. Jefferson County, vol. ii. 508. v. Lewis, vol. ii. 664. V. Little, 177; vol. ii. 199. V. New Orleans, etc., R.R. Co., vol. ii. 384. V. Proprs. of Cent. Bridge, 177 ; vol. ii. 837. V. Salamanca, 564. V, Tesson, vol. ii. 885. v. Wills Valley R.R. Co., 530 ; vol. ii. 63, 96. Wiltbank's Appeal, vol. ii. 149, 159, 174. Wilton V. Middlesex R.R. Co., vol. ii. 520. Winch V. Birkenhead, etc., R.R. Co., 556, 5S8 ; vol. ii. 626. Winchester v. Bait. & Susq. R.R. Co., 470. Windham, etc., Inst. v. Sprague, vol. ii. 92, 221. Winfield v. Hudson, vol. ii. 393, 399. Wing V. Harvey, 472. Winona, etc., R.R. Co. v. Blake, 521. V. St. Paul, etc., R.R. Co., v. ii. 617. Winslow V. Merchants' Ins. Co., 660. Winsmore v, Greenbank, vol. ii. 565. Winsor v. Bailey, vol. ii. 623, 631. ex parte, i\ ; vol. ii. 95. Winter v. Belmont Mining Co., vol. ii. 89, 214. V. Muscogee R.R. Co., 226 ; vol. ii. 59, 97. Winton v. Wilks, 250. Wintringham v. Rosenthal, vol. ii. no. Wisconsin R.R. Co. v. Supervisors, vol. ii. 359. Wiswell V. Starr, vol. ii. 680, 706. Witherly v. Regents Canal Co., vol. ii. 501. 533- Withnell v. Gartham, 215. Witter V. Miss., etc, R.R. Co., v. ii. 59. Wolf z/. Goddard, vol. ii. 638. Woman's Christian, etc., Union v. Taylor, 347. Wood 1'. Bedford, etc., R.R. Co., vol. ii. 247. V. Coosa,etc.,R.R.Co.,v. ii. 5, 27. V. Cox, 646. V. Dummer, 611 ; vol. ii. 56, 120, 939- V. Hayes, vol. ii. 199. V. Jefferson County Bank, vol. ii. 639, 762. V. N. Y. & New Haven R.R. Co., vol. ii. 476. V. Tate, 136, 662. V. Turnpike Co., vol. ii. 651. V. Truckee Turnpike Co., vol. ii. 652. V. Whelen, 288, 432 ; v. ii. 390. Woodbridge v. Detroit, vol. ii. 329. Woodbury v. County Commrs., vol. ii. 783. 791. Wood & Hydraulic Hose Mining Co. V. King, 210, 481, 491, 545. Woodfork v. Union Bank, vol. ii. 939. Woodman v. York & Cumberland R.R. Co., 29?). Woodmas v. Mason, 305. Wood Mowing Machine Co. v. Cald- well, 533. Woodruff 7/. Erie R.R. Co., vol. ii. 367, 714. V. McDonald, 164 ; vol. ii. 7. V. Wentworth, vol. ii. 199. Woods V. Lawrence Co., v. ii. 402, 405. V. Hicks, vol. ii. 91. V. Nashua Manf Co., v. ii. 524. V. People's Nat. Bank, 657, 658. Woodson V. Gallipolis, vol. ii. 642. Woodworth v. Payne, 680. Woolsey v. Judd, vol. ii. 633. Worcester v. Eaton, vol. ii. 411. V. Essex Merrimac Bridge Corp., 274. V. Norwich, etc., R.R. Co., 594; vol. ii. 65 s, 888. Worcester Agr. Soc. v. Worcester,, vol. ii. 273, 326. Worcester Medical Inst. v. Bigelow, vol. ii. 54. Worcester Medical Inst. v. Harding, 150; vol. ii. 638, 642. Worcester, etc., R.R. Co. v. Hinds, vol. ii. 27, 82, 93. ex VI TABLE OF CASES. The figures refer to the pages. Worcester T. Co. 2/. Willard.vol. ii. 90. Word ■z/. Griswoldville Manf. Co., vol. ii. 176. Worden v. Orange County Bank, vol. ii. 606. Work V. Bennett, vol. ii. 199. Worrall v. Munn, 316. Worrell v. First Presbyterian Church, 81, 188, 580. Worth V. Commissioners, vol. ii. 291. Wright V. Allen, vol. ii. 748. V. Atkyns, 646. ■V. Boyd, 367. 2/. Burdy, 210, 211, 212, 481, 543. V. Carter, 489, 677. ■V. Douglass, 642, 649. V. N. Y. Cent. R.R. Co., 9 ; vol. ii. 496. V. Oroville Mining Co., 192 ; vol. ii. 579. V. Pipe Line Co., vol. ii. 372. V. Shelby R.R. Co., vol. ii. 102. V. Vermont, etc., R.R. Co., vol. ii. 166. V. Wilcox, vol. ii. 521. Wright's Appeal, vol. ii. 442. Wyatt V. Williams, vol. ii. 464. Wych V. Meal, vol. ii. 626. Wyman v. Am. Powder Co., vol. ii. 187. V. Hallowell & Augusta Bank, 123, 476. V. St. Louis, vol. ii. 350. Wynne v. Price, vol. ii. 221. Yarborough v. Bank of England, 328 ; vol. ii. 441, 520. Yates V. Van De Bogert, 679. Yeaton v. Bank of the Old Diminion, 130. 515- Yerkes v. Nat. Bank, 405. Yonkey v. State, vol. ii. 749. York & Cumberland R.R. Co. v. Ritchie, 363 ; vol. ii. iii, 114. York & Maryland R.R. Co.z/. Winans, vol. ii. 519. York & North Midland R.R. Co. v. Hudson, 621. York, etc., R.R. Co. v. Pratt, v. ii. 99. York & North Midland R.R. Co. v. Regina, 130. York, etc., R.R. Co. v. Winans, 588. York, etc., P. R. Co. v. Ritchie, vol. ii. 94- Yorkton v. Milwaukee, etc., R.R. Co., vol. ii. 472. Young V. Bank of Alexandria, 531 ; vol. ii. 873. V. Harrison, 499. V. Rollins, vol. ii. 948. V. Rosenbaum, vol. ii. 417, V. South Tredegar Iron Co., 544 ; vol. ii. 215. V. Vough, 255 ; vol. ii. 238. Youngman v. Elmira & Williamsport R.R. Co., vol. ii. 651, 655, 660. Zabriskie v. Cincinnati, etc., R.R. Co., vol. ii. 92. V. Cleveland, etc., R.R. Co., 602 ; vol. ii. 443. ■v. Hackensack & N. Y. R.R. Co., 226, 508, 514, 533, 562 ; vol. ii. 372, 846, 877. Zack V. Pa. R.R. Co., 670. Zeisweiss v. James, 647. Zimmer v. State, 514, 565, 566. Zimmerman v. Anders, 643. Zion Church v. St. Peter's Church, vol. ii. 627. Zirkel v. Joliet Opera House Co., vol. ii. 83, 128. Zylstra v. Charleston, 239. THE LAW OF CORPORATIONS OTHER THAN MUNICIPAL. CHAPTER I. MEANING, HISTORY, AND OBJECT. ) I. Different ideas respecting. 2. Definition. 3. Has a separate and distinct exist- ence. 4. Special attributes. 5. How constituted. 6. Difference between a corporation and a partnership. § 7. Unincorporated associations in general. 8. Clubs. 9. Board of brokers. 10. Joint stock companies. 11. History of corporations. 12. Object and use of corporations. 13. Multiplication of corporate bodies. § I. Different, ideas respecting. — The precise nature of a corporation aggregate, abstractly and technically considered, so long as its distinguishing features and attributes are cor- rectly understood, is not perhaps of very great importance ; though the diverse views of writers on the subject have at- tracted some attention, and occasioned more or less criti- cism. A corporation has been variously characterized as : " A collection of many individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individ- ual";^ "A political person capable like a natural person of enjoying a variety of franchises";* "A franchise possessed by one or more individuals who subsist as a body politic";^ ' Kyd on Corp. 13. and there is some confusion in its use. ' Ibid. 15. "The better opinion deduced from the 8 2 Kent's Com. 266. The term authorities seems to be that it consists ' franchise " has several significations, of the entire privileges embraced in VOL. I. — 1 2 MEANING, HISTORY, AND OBJECT. § I " An artificial being, invisible, intangible, and existing only in contemplation of law 'V " An artificial intellectual being, the mere creature of the law ";" " An artificial body of men composed of divers constituent members ad z'nsiar corporz's humani, the ligaments of which body politic or artificial body are the franchises and liberties thereof which bind and unite all its members together, and in which the whole frame and essence of the corporation consist";^ "A body created by law composed of individuals united under a com- mon name";* "A body politic or corporate formed and authorized by law to act as a single person, a society having the capacity of transacting business as an individual";® " A juridical being separate and distinct in its rights and obli- gations from the individual members who compose it";^ "A society created by the sovereign power";'' "A legal institution ";* "A person which exists in contemplation of law only, and not physically."^ Extracts similar to the foregoing might be greatly multiplied. Sufficient have been given to show three distinct conceptions of a corpo- and constituting tlie grant." Butler, of franchises. The very existence of a J., in Bridgeport V.N. Y. & New Haven corporation is a franchise; and every R.R. Co., 36 Conn. 255. " It is a fran- act of a corporation affecting the public chise for a number of persons to be in- is the exercise of a franchise." Savage, corporated and subsist as a body politic, Ch. J., in People v. Trustees of Geneva with a power to maintain perpetual sue- College, 5 Wend. 211. See Chicago cession, and do other corporate acts." City R.R. Co. v. People, 73 III. 541. 2 Blk. Com. 37. " A franchise is a ' Marshall, C. J., in Dartmouth privilege or immunity of a public na- College v. Woodward, 4 Wheat ture which cannot legally be exercised 636. without a legislative grant. The vari- '^ Regents of University of Md. v. ous powers conferred on corporations Williams, 9 Gill & Johns. 365. are franchises. The execution of a ''■ Bac. Abr. Corp. A. policy of insurance by an insurance ' Angell & Ames on Corp. i. company, and the issuing of a bank * Webst. Diet. note by an incorporated banking com- « Curien v. Santini, 16 La. Ann. 27. pany, are franchises. Without legisla- See Soc. of Practical Knowledge v. Ab- tive authority, neither could lawfully bott, 2 Beavan, 559. be donp by a corporation ; and were a ' Hosmer, Ch. J., in Greene v. Den- bank to execute a policy of insurance, nis, 6 Conn. 293. , or an insurance company to issue bank ° I Dillon on Municip. Corp. 91. notes, such acts would be usurpations "Green's Brice's Ultra Vires, i. § 2 MEANING, HISTORY, AND OBJECT. 3 ration, to wit : An artificial body or political person ; a number of individuals authorized by law to act under a collective name as one person ; and a privilege or immu- nity of a public nature legally exercised. § 2. Definition. — A corporation aggregate is a body created by law composed of several persons under a special denomination, with the capacity of a continuous succession, and of acting in many respects as an individual, always maintaining its identity, and possessing, however long its duration, the same rights, privileges, duties, and liabilities.'^ "A corporation or community," says an old writer, " is a collection or an assembly of several individual persons united in one mystical body, called a body politic, by per- mission and grant of the prince, but distinguished from those persons that compose a State ; and it is established for the common good of those who are of this body politic. .... A corporation represents one person which is distinct from the individual members of such corporation ; because though all the members of such corporation should be dead, yet it is the same body politic still, if others are substituted in their room."^ The definition given by Mr. Kyd, whose work on corporations, though published in England nearly one hundred years ago, is still regarded as a sound and able exposition of many of the leading principles of the subject, is as follows : "A corporation is a collection of many indi- viduals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property, of contracting obligations, of suing and being sued, of enjoying privileges and immunities in common, and of exercising a variety of political rights more or less extensive according to the design of its institution I See Wallace v. Mayor of N. Y., 2 Hilt. 440. « Ayliffe, Civ. L. 196. 4 MEANING, HISTORY, AND OBJECT. § 2 or the powers conferred upon it either at the time of its creation or at a subsequent period of its existence." ^ In the Dartmouth College case Chief -Justice Marshall said : "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only tho'se properties which the charter of its creation confers upon it, either ex- pressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are im- mortality, and, if the expression may be allowed, individ- uality, properties by which a perpetual succession of many persons are considered as the same and may act as a single individual. They enable a corporation to manage its own affairs and to hold property without the perplexing intri- cacies, the hazardous and endless necessity of perpetual conveyances for the purpose of transmitting it from hand to hand." ^ An approved modern text writer defines a corporation as "A fictitious person created by special authority and en- dowed by that authority with a capacity to acquire rights and incur obligations as a means to the end for the attain- ment of which the corporation is created. It is chiefly for the purpose of clothing bodies of men with these qualities and capacities that corporations were invented and are in use. By these means a perpetual succession of individuals is capable of acting for the promotion of the particular ob- ject like one immortal being." ' An insurance company. ' I Kyd on Corp. 13. constitutes the members for the time ^ Dartmouth College v. Woodward, being one artificial person or legal body 4 Wheat. 636. In People v. Assessors, capable of transacting some kinds of I Hill, 616, Bronson, J:, characterized business like a natural person. A cor- a corporation aggregate as " a coUec- poration is therefore said to be a legal tion of individuals united into one body being, or the mere creature of the under such a grant of privileges as se- law." cures a succession of members without ' Lindley on Partnership, 4th Eng. changing the identity of the body, and Ed. 4. " In some corporations the § MEANING, HISTORY, AND OBJECT. organized in England under a deed of settlement legalized and enlarged by acts of Parliament, and doing business in Massachusetts, possessed the following attributes : i. A distinctive name ; 2. Power to sue and be sued in the name of one of its officers ; 3. Perpetual succession by the transfer of its stock ; existence as an entity apart from the share- holders, enabling it to sue its stockholders and to be sued by them. It was held a corporation, notwithstanding sev- eral acts of Parliament had declared that it should not be thus deemed. The court remarked that whatever might be the effect of such a declaration in the English courts, it could not alter the nature of a corporation, or prevent the courts of another jurisdiction from inquiring into its real character.* It is not essential to the character of a corpo- ration that its powers should be equal to any similar associa- whole powers rest in a select body, or in select bodies, with powers to per- petuate their own corporate existence by filling vacancies in their own body ; and such body or bodies constitute the corporation itself, and the meetings and acts done thereat are the meetings and acts of the corporation itself. .... There are corporations of another sort, where the aggregate body or corpo- rators meet to discharge corporate func- tions, and have authority also to per- form certain acts and dutie^by means of different agents sometimes desig- nated by the statutes creating them, and sometimes left to their own choice. Of this nature are the townships where the inhabitants are corporators, and as- semble to exercise corporate powers, and have authority to appoint various officers to perform public duties under the guidance and direction of the cor- poration. Such are the selectmen for the ordinary municipal concerns, over- seers of the poor, school committees, assessors of taxes, and various other functionaries. In these cases, the va- rious officers form different boards for the performance of different duties sub- ordinate to the corporation ; but they do not constitute the corporation, nor are their meetings the meetings of the corporation. In the latter cases the records of the officers are properly rec- ords of their own proceedings, and not of the proceedings of the corporation itself." Story, J., in Bank of U. S. v. Dandridge, 12 Wheat. 64. 1 Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566, affi'g S. C. 100 Mass. 531, Bradley, J., dissenting. It seems to be the policy of the English law to at- tach certain consequences to incorpo- rated bodies, such as exemption of the members from individual liability.which render it desirable there, that associa- tions like the above should not become, technically, corporations. The court remarked that local policy of that nature could have no place here in de- termining whether an association, whose powers are ascertained, and its privileges conferred by law, is an incor- porated body. MEANING, HISTORY, AND OBJECT. §3 tion. It is sufficient if, in its corporate name, it exercises the powers and rights of a natural person in the manage- ment of its concerns.^ § 3. Has a separate and distinct existence. — It has been said that a corporation is only in abstracto ; that it is in- visible, and rests only in intendment of law ; ^ and that considered as a tangible fact, it is a fiction, a shade, a non^ entity.^ But it is not perceived how a corporation is more a fiction than any other legally organized body. When " a corporation is said to be invisible, that expression must be understood of the right of many persons to act as a corpo- ration, and then it is as visible in the eyes of the law as any ' Falconer v. Campbell, 2 McLean, 195. Association, in the sense that it is confederacy or union for particular purposes, " is a generic term, and may indifferently comprehend a voluntary confederacy which is a partnership dis- soluble by the persons who formed it, or a corporate confederacy deriving its ex- istence from a statute, and dissoluble only by the law." Cowen, J., in Thomas V. Dakin, 22 Wend. 9. A common name has been regarded as a corporate criterion. In reference to this, Lord Ellenborough, in Rex v. Webb, 14 East; 406, said : " As to the fourth point, that the subscribers have pre- sumed to act as if they were a body corporate, how is this made out ? It was urged that they assumed a common name, that they have a committee, etc. But are these the unequivocal evidence and characteristics of a corporation? How many unincorporated assurance companies and other descriptions of persons are there that use a common name, and have their committees, gen- eral meetings, and by-laws ? Are these all illegal ? or which of these particulars can be stated as being of itself the distinctive and peculiar cri- terion of a corporation ? " "^ Case of Sutton's Hospital, 10 Rep. 32 b. As touching corporations. Chief Baron, Manwood is reported to have said that " they are invisible, immortal, and have no souls, and therefore no subpoena lieth against them, because they have no conscience, no souls. A corporation is a body aggregate ; none can create souls but God ; but the king creates them ; and therefore they have no souls. They cannot speak, nor ap- pear in person, but by attorney." Tip- ling V. Pexall, 2 Bulst. 233. ° Green's Brice's Ultra Vires, 2d Am. Ed. 2. "A corporation cannot, as such, commit offences and crimes ; for it is a person in notion, and by fiction only. Therefore the delinquents in the cor- poration ought to be punished, but not that which is incorporeal, and merely a right." Wood's Civ. L. 135. A cor- poration has no body which can be ar- rested. Nichols V. Thomas, 4 Mass. 232. It has been said that " a corpo- ration cannot be beaten nor beat, nor commit treason or felony, nor be im- prisoned for a disseizin with force, nor be outlawed, nor a capias in debt be awarded against it." Parsons, C. J., in Riddle v. Proprietors, etc., '7 Mass. 169. §3 MEANING, HISTORY, AND OBJECT. Other right whatever of which natural persons are capable." * The corporation has an existence separate and distinct from the persons composing it, who cannot individually exercise corporate powers, enforce corporate rights, or, as a rule, be made responsible for the corporate acts.^ A few of the numerous instances that might be mentioned will be stated to show this. " When a corporation is seized in fee of freehold, the entire inheritance is in the corporation, and the members are no more seized than the members of a man's body could be said to be seized of his estate." ^ And ' I Kyd on Corp. 1 6. ^ " Corporations, communities, or col- leges are civil persons, and have their civil capacities as one body." Wood's Civ. L. 134. "A corporation is a civil institution, or, as it is sometimes termed, a body politic, the essential character of which is that it has a legal existence as a person under the name given it by legislative authority, either by express charter, or by prescription, which im- plies a charter." New Am. Cycl., tit. Corporation. ''A grant of corporate existence is a grant of special privileges to the corporators, enabling them to act for certain designated purposes as a single individual, and exempting them (unless otherwise specially provided) from individual liability." Field, J., in Paul V. Virginia, 8 Wall. 168. " The very purpose of incorporation is to cre- ate such legal and ideal person in law distinct from all the persons compos- ing it, in order to avoid the extreme difficulty, and perhaps it is not too much to say the utter impracticability, of such a number of persons acting to- gether in their individual capacities." SHAVir, C. J., in Smith v. Hurd, 12 Mete. 371. In an approved English work the following concise, clear, and forcible language is employed : " A corporation aggregate consists of sev- eral individuals united in such a man- ner that they and their successors con- stitute but one person in law, a person distinct from that of any of the mem- bers though made up of them all, and whose privileges and possessions when once vested in it will forever be vested without any new conveyance to new successors ; for all the individual mem- bers that have existed from the foun- dation to the present time, or that shall ever hereafter exist, are but one person in law ; as the river Thames is the same river, though the parts which compose it are changing every instant. From this distinction between the ag- gregate existence of the corporation and the individual existence of each of its members, it follows that they may sue and be sued by one another in a court of law." Smith's Mercantile Law, 3d Am. Ed. 140. ^ Maule, J., in Baxter v. Brown, 7 M. and Gr. 210. " Corporators, where the corporation is possessed of person- alty or real property, have in general no individual share, right, title, or es- tate to or in any specific part or por- tion thereof, which is wholly vested in the ideal entity or abstraction, the cor- poration, and not in the body or per- sons who happen to be at any given time the existing corporators, either jointly, severally, or as joint tenants or tenants in common, or in any other 8 MEANING, HISTORY, AND OBJECT. §3 it was held that a corporation might be a British subject, though composed wholly of aliens.^ Where a bond was given to several persons who were governors of a voluntary- association which was afterward created a corporation, it was held that the obligor was not liable in an action by the corporation, it being a different body from the association.^ So a corporation may sue its members, and the mem- bers may sue the corporation.^ " In the abstract, it is not a person, nor an animated body, but is only a kind of intellectual body, or the representative of a body ani- mated. In the concrete, it is taken for the particular mem- bers of such corporation."* Corporations have, however, been included in terms of description appropriated to per- sons.^ Domat says : " Communities that are lawfully es- mode or way whatsoever." Grant on Corps. 5. In Peabody v. Flint, 6 Al- len, 52, it was said by Chapman, J., that " the corporation itself holds its property as trustee for the stockholders, who have a joint interest in all its prop- erty and effects, and each of whom is related to it as cestui que trust." 1 Reg V. Arnaud, 16 L. J. N. S. Gr. B. 55- » Dance v. Girdler, i N. R. 34 ; Met- calfv. Bruin, 12 East. 14; Vin. Abr. 38, PI. 6. But see Edwards v. Grand June. R.R. Co., I M. & Cr. 650. ' Pieree v. Partridge, 3 Mete. 44 ; GifFord v. N. J. R.R. Co., 10 N. J. Eq. (2 Stockt.) 171 ; Bamstead v. Empire Mining Co., J Cal. 299 ; Booker Ex parte, 17 Ark. 338 ; Samuel v. Holli- day, I Woolw. 418 ; Sawyer v. Meth. Epis. Soc, 18 Vt. 405 ; Rogers v. Danby Universalist Soc, 19 Id. 187; Waring V. Catawba Co., 2 Bay. 109. " As a corporation or body politic may bring an action and implead a person, so it may also be impleaded and brought into judgment. But then such corpo- ration ought to appear by its syndick or attorney, since it cannot appear in its own person. And when a process is served upon a corporation, it ought to be on the person of the administrator or syndick ; and an attachment lies against their goods, and a sequestra- tion on their lands, if they do not ap- pear by their syndick. But the partic- ular or individual members of a corpo- ration cannot be convened for the debt of the corporation. For, as that which is due to a corporation at large and collectively is not due to the particular members of such corporation, and can- not be recovered by them in their sep- arate capacities, so the particular mem- bers thereof may not be sued for the debts of such corporation at large. Yet when a particular member is con- stituted as a syndick to bind the whole body, and all and every member there- of, a particular member may then be sued for the debt of the corporation ; because such syndick represents the corporation, especially if all the mem- bers were present at the constituting of such syndick." Ayliffe, Civ. L. 197. ■• Ayliffe, Civ. L. 196. 'Mclntire v. Preston, 5 Oilman, III. 48. ■ A corporation is a person when §3 MEANING, HISTORY, AND OBJECT. tablished (corporations) are in the place of persons, and their union, which renders common all their interest, makes them to be considered as one single person."^ The Ger- man jurisprudence, founded on the Roman law, carrie'd the idea that personality was essential to corporations. Hei- neccius, in his essay on the legal histbry of the corporate guilds or societies of trade in Germany,* speaks of this per- placed in circumstances identical with those of a natural person. United States V. Bank of North Carolina, 6 Pet. 29; 12 Id. 134, 135 ; United States V. Amedy, 11 Wheat. 392; Cincinnati Gas Light, etc., Co. v. Avondale, 43 Ohio St. 257 ; Lynchburg v. Norfolk, etc., R.R. Co., 80 Gratt. 237. Private corporations are persons so far as prop- erty is concerned. San Mateo County V. Southern Pacific R.R. Co., 13 Fed. Rep. 722; 8 Sawyer, 238; but not within section i of the Constitution of the Uni- ted States. Insurance Co. v. New Or- leans, I Woods, 85. It has been said that the term " person " includes a cor- poration, unless it appears to have been used in a more limited sense. In re Oregon Bulletin, etc., Co., 18 Bankr. Reg. 199. 'Domat, Civ. L., lib. i, title 15. ^ Ch. Tj, sec. 19. Corporations are deemed persons for the purpose of bringing actions, and also of jurisdic- tion. Bank of U. S. v. Deveaux, 5 Cranch, 61 ; Rundle v. Del. & Raritan Canal Co., 14 How. 80 ; Stevens v. Phoenix Ins. Co., 41 N. Y. 149. Where the charter provided that no action should be brought against any person for anything done pursuant to the act of incorporation without a previous no- tice of twenty days, it was held that the word person included the corporation, and that it was entitled to the notice. Boyd V. Croyd R.R. Co., 4 Bing. N. C. 669. Whenever rights or remedies are given by a statute to "persons," corporations, if within the equity of the statute, are entitled to thera. Lehigh Bridge Co. v. Lehigh Coal & Nav. Co., 4 Rawle, 9. The words " living person " in the New York Code of Procedure of 1857, were held to embrace corpora- tions. La Farge v. Exchange Fire Ins. Co., 22 N. Y. 352 ; Field v. N. Y. Cent. R.R. Co., 29 Barb. 176; Wright v. same, 28 Id. 80 ; Johnson v. Mcintosh, 31 Id. 267; Wallace v. Mayor, etc., of N. Y., 2 Hilton, 440. And the word " person " in the New York statute of limitations includes them. Olcott v. Tioga R.R. Co., 20 N. Y. 210. An act subjecting land to entry " by any person or persons wishing to make the same," was held to embrace corporations. State V. Nashville University, 4 Humph. 157. In the last mentioned case it was assumed by counsel that, although cor- porations are included in all legal en- actments in which duties and liabilities are imposed upon persons, yet they should be excluded from the meaning of the word when a benefit is to be ob- tained. But no authority was pro- duced showing any such distinction. It was held that a corporation might give a negotiable promissory note within the statute of 3d and 4th of Anne, al- though the statute was confined to notes when drawn "by any person." Mott V. Hicks, I Co wen, 513; State of Ind. V. Wo ram, 6 Hill, 33. Corpora- tions are persons within penal statutes. U. S. V. Amedy, 1 1 Wheat. 392. It has been repeatedly decided that they are lO MEANING, HISTORY, AND OBJECTi §3 sonality as an attribute of all corporations. The property of a corporation is legally vested in itself, and not in its members. As individuals they cannot, even by joining to- gether unanimously, convey a title to it. Nor can they make a contract that will bind it, or enforce by action a contract that has been made with it. The artificial person such in reference to the statutes of usury in cases where banks are resist- ing as well as seeking that application of the law. See Thornton v. Bank of Washington, 3 Pet. 36, 42; Commer- cial Bank of Manchester v. Nolan, 7 How. Miss. 508 ; Grand Gulf Bank v. Archer, 8 Smed. & Marsh, 151. Cor- porations are deemed persons within a clause in a treaty, as to confiscation and prosecution. Soc. for Propagation of the Gospel v. New Haven, 8 Wheat. 464. They are so regarded within the act of Congress of April 20, 1871 (17 U. S. Statutes at Large, 13), which provides that "any person who, under color of any law, statute, ordinance, reg- ulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the Uni- ted States, shall, any such law, statute, ordinance, regulation, custom, or usage to the contrary notwithstanding, be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Northwestern Fertilizing Co. v. Hyde, 13 Biss. 480. A corporation was deemed a person within the insolvent laws of Maryland. State v. Bank of Md., 6 Gill & Johns. 205. A corporation was held not a person within the New York at- tachment laws, 24th Sess., ch. 49. M'Queen v. Middletown Manuf. Co., 16 Johns. 5. But the contrary was held with reference to the attachment laws of Illinois, Tennessee, and Alabama, Mineral Point R.R. Co. v. Keap, 22 III. 9; Bank of Ala. v. Berry, 2 Humph. 443; Planters' & Merchants' Bank of Mobile v. Andrews, 8 Porter, 404. In Trenton Banking Co. v. Haverstick, 6 Halst. 171, it was objected that the law of New Jersey required, in order to ob- tain an attachment, that the oath must be made by the applicant for the writ, and that as an artificial person could not make an affidavit, the bank could not entitle itself to that remedy. But it was held that the law necessarily conferred authority to perform services like that on the agents of the corpora- tion, and that the affidavit could be made by the cashier, or president, or one of the acting clerks of the bank. In Rex V. Gardner, Cowper, 79, it was held that the poor rates on vacant ground belonging to- a corporation might be assessed to the corporation as being an inhabitant or occupier of the ground. See Bank of U. S. v. De- veaux, 5 Cranch, 61 ; Soc. for Propaga- tion of the Gospel v. Wheeler, 2 Gallis, 105. In New York it was held at an early day that under the tax and assess- ment law corporations were liable to assessment, although the act only spoke of persons. Clinton Woolen & Cotton Manuf. Co. v. Morse, Supm. Ct., Oct. term, 1817, cited in People v. Utica Ins. Co., 15 Johns. 358. It was decided that corporations were within the act of New York of 1855, ch. 137, provid- ing that all persons or associations do- ing business in the State, and not resi- dents, should be assessed and taxed on all sums, invested in any manner in §3 MEANING, HISTORY, AND OBJECT. II called the corporation must manage its affairs in its own name as exclusively as a natural person manages his prop- erty and business. The ofificers, though chosen by vote of the stockholders, are not their agents, but the agents of the corporation, and they are accountable to it alone. There- fore one or more of the stockholders cannot maintain an said business, the same as if they were residents of the State. International Life Ass. See. v. Commrs. of Taxes, 28 Barb. 318 ; Parker Mills v. Commrs. of Taxes, 23 N. Y. 242. Under the act of 39 EHz., ch. 5, providing that all and every person and persons might found hospitals for the poor and incorporate them, it was held that a municipal cor- poration was included in the words "every person and persons." New- castle V. Atty. Genl., 12 Clark & Fin. 402. The word " individuals " in an act may include corporations. Pa. R.R. Co. V. Canal Commrs., 21 Pa. St. 9. This was held to be the case where a statute of Massachusetts of 1853, ch. 319, sec. 3, provided that no abatement should be made of the taxes assessed upon any individual until he had filed a list of his estate liable to taxation, and made oath to the same. Otis Co. V. Inhabs. of Ware, 8 Gray, 509. A corporation, in respect to the taking of its property by the exercise of the power of eminent domain, is considered as a mere citizen owner. Bellona Co.'s Case, 3 Bland Ch. 442. So, when created and doing business in a particular State, it is to be deemed to all intents and pur- poses a person, although an artificial person, an inhabitant of the State for the purposes of its incorporation, capa- ble of being treated as a citizen of that State as much as a natural person. Louisville R.R. Co. v. Letson, 2 How. 497, affi'd in Marshall v. Bait. & Ohio R.R. Co., 16 How. 314, and in Coving- ton Draw Bridge Co. v. Shepherd, 20 Id. 232; Ohio & Miss. R.R. Co. v. Wheel- er, I Black. 286. " The word person includes a corporation as well as a nat- ural person." Code of Ark., 1874, p. 991, sec. 5625. " The word person may be extended to bodies corporate." Pub- lic Statutes of Mass., 1882, p. 59; Rev. Sts. of Me., 1871, p. 58 ; Rev. Laws of Vt., 1880, p. 77, sec. 21 ; Code of Iowa, 1873, p. 8, sub. 13. The word " person," however, being generally understood as denoting a nat- ural person, it is to be taken in that sense, unless from the context or other parts of the act it appears that corpo- rations were also intended to be em- braced. Where an act provided that all debts due from solvent debtors by notes, penal or single bills, bonds, judg- ments, or mortgages, and stocks on which any dividend or profit was re- ceived by the holder which were owned or possessed by any person, should be subject to a tax, it was held that the term " person " did not include corpo- rations. School Directors v. Carlisle Bank, 8 Watts, 289. A bank or other corporation is not a person within the act of Congress of 1797, ch. 74, sec. 5, which provides that " where any reve- nue officer or other person hereafter becoming indebted to the United States, by bond or otherwise, shall be- come insolvent, or where the estate of any deceased debtor in the hands of executors or administrators shall be in- sufficient to pay all debts due from the deceased, the debt of the United States shall be first satisfied ; and the priority hereby established shall be deemed to extend as well to cases in which a 12 SlEANING, HISTORY, AND OBJECT, § 4 action at law against the officers for any breach of official dut7 that injures the corporate property as a whole. An injury done by the directors of a corporation to an indi- vidual, by inducing him to become a member by means of false representations, is actionable, because it is a wrong to him personally, and not to the corporation. But the in- terest of stockholders, as such, is a qualified and equitable interest. § 4. Special attributes. — The essential characteristic of a corporation is the merging of the members into one dis- tinct, artificial, individual existence,^ so that it may act with the will of a single person, and the body be kept by a per- petual succession.* The authority to have property held in perpetual succession is essentially a corporate power. "This is the very end of the incorporation ; for there cannot be a succession forever without an incorpora- tion."^ The rights and privileges of the corporation do not determine or vary upon the death or change of any of the individual members, but continue as long as the cor- poration endures. It is sometimes said that corporations debtor, not having sufficient property brought within them. Schuyler Co. v. to pay all his debts, shall make a vol- Mercer Co., 4 Oilman, 20. The word untary assignment thereof, or in which '" resident," occurring in the constitu- the estate and effects of an absconding, tion or in a statute, ordinarily means concealed, or absent debtor shall be an individual, a citizen, and not a cor- attached by process of law, as to cases poration. Independent of the cases in which an act of legal bankruptcy making corporations inhabitants and shall be committed." I U.. S. Sts. at residents by construction for certain Large, 512; Com. v. Phoenix Bank, 1 1 purposes, the natural, ordinary, and Mete. 129. The statute of New York literal meaning of the term, residents of requiring every person who owns and a town, would not include corporations. Occupies land in the town in which he People v. Schoonmaker, 63 Barb. 44. or she resides to work on the public See Pyrolusute Manganese Co. v. Ward, highway, does not include corporations. 73 Ga. 49 ; Insurance Co. v. New Or- Bank of Ithaca v. King, 12 Wend. 390. leans, i Woods, 85. Ordinarily a law which in general terms ' Warner v. Beers, 23 Wend. 155. speaks of plaintiffs and defendants, ap- ^ Mahony v. Bank of the State, 4 plies to persons only, and municipal Ark. 620. corporations are not affected by its pro- = Thomas v. Dakin, 22 Wend. 102. visions, unless expressly named and § 4 MEANING, HISTORY, AND OBJECT, 1 3 are immortal. But the immortality of a corporation means only its capacity to take in perpetual succession so long as the corporation exists.^ " It is calculated for and capable of duration forever where no limitation is fixed by the act that creates it ; though it may be brought to a ter- mination by accident, or by certain defaults of duty on the part of its members at any period." ^ Grotius, speaking of the state of a corporation,^ says : " Isocrates, and after him the Emperor Julian, said that States were immortal ; that is, they might possibly prove so ; because the people is one of those kinds of bodies that consist indeed of separate and distinct members, but are, however, united in name as hav- ing one constitution only Now this spirit or con- stitution in the people is a full and complete association for political life. And the just and immediate effect of it is the sovereign power, the bond that holds the State together, the breath of life. For these artificial bodies are like the natural. The natural body continues to be still the same, though its particles are perpetually upon an insensible flux and change, whilst the same form remains." "The neces- sity of such bodies is evident whenever rights ought to be continued beyond the lives of the persons possessed of them. That rights should in this manner survive, must be often requisite to the good of the public ; and the most easy and convenient way of keeping them alive is by the creation of such artificial persons, a kind of intellectual bod- ies consisting of individual members, but in the abstract distinguished from them."* ' 2 Kent Com. 268 ; People v. As- aptly said that the chief point of differ- sessors, i Hill, 616. "Banks are none ence between the natural and artificial the less regarded as corporations be- person is, that the former may do what- cause their charters are limited to a ever is not forbidden by law, and the term of years. It is enough that they latter can do only what is authorized enjoy the right of succession for that by its charter. Railroad Co. v. Har- term." Cowen, J., in Thomas v. Da- ris, 12 Wall. 6;. kir\, supra. * Browne's Civ. Law, 141. Ayliffe 'i Wallace v. New York, 2 Hilt. 440. (Civ. L. 197, 198) says: "'A corpora- 2 Book 2, ch. 9, sec. 3. It has been tion approved by law may have goods H MEANING, HISTORY, AND OBJECT. §5 § 5. How constituted. — A corporation generally consists of members in their natural capacity. But it may be com- posed of persons in their political capacity, of members of other corporations, or of other corporations : as in the case of Christ's Hospital, of Bridewell, chartered by Edward the Sixth, of which the mayor, citizens, and commonalty of London were made the governors, and incorporated by the and estates in common, as any indi- vidual and single person may have an estate proper to himself, — as woods, pastures, fish-ponds, and a common chest or treasury for money. But the goods and estates of a corporation are not the goods and estates of the par- ticular members considered separately, but of all the members, as they make one collective body, and are allotted for their common use It has been a doubt indeed among the doc- tors whether a corporation may prop- erly be said to possess a thing ; many of them holding the negative, viz. : that a corporation is only said to possess a thing by impropriety of speech. Oth- ers say that a corporation itself cannot be said to possess a thing, but only those persons are in possession unto whom the administration is granted, — first, because a corporation is a person represented, and therefore cannot pos- sess a thing ; secondly, because a cor- poration does not seem to possess any ability of consenting, because in a cor- poration there are infants, pupils, mad- men, and many others who cannot consent. But possession is not ac- quired without an intention and con- sent ; wherefore a corporation cannot possess a thing. Hence it seems that as those things which are in the com- mon and promiscuous use of men, as a market and the like, cannot be pos- sessed, but are only promiscuously made use of by the people of such cor- poration, as in like manner other things are in common to such bodies politic and cannot be possessed by them, ac- cording to the opinion of these men. But I think the contrary is the better opinion ; as that a corporation and the inhabitants thereof may properly be said to possess a thing either in their own persons, or else by their servants and syndicks, or by other administra- tors. For though a corporation be only a person by fiction of law, yet the property and possession of a thing is lodged in the corporation itself, and not in the individuals of a corpora- tion." Again he says: "A corpora- tion may, in its own person, whenever it pleases, do any extrajudicial act, as make contracts and the like, and shall not be compelled to constitute a syn- dick (as in judicial acts) for the des- patch of any public business of this kind And as a corporation may contract with persons who are not such corporation, so, according to Bartolus, it may make contracts with its own members, and they shall be valid. Corporations are bound by their contracts after the same manner as individual persons are. For though a corporation cannot separately and in- dividually give their consent in such a manner as to oblige themselves as a collective body, yet, being lawfully as- sembled, it represents but one person, and may consequently make contracts, and by their collective consent oblige themselves thereunto. And thus a corporation may consent, though not with the same readiness and facility as particular persons." § 5 MEANING, HISTORY, AND OBJECT. 1 5 name of The Governors, etc., of the Hospital of Edward the Sixth of England, of Christ, Bridewell ; and the cases of the Universities of Oxford and Cambridge, of which the many colleges (distinct and separate corporations) within the universities form component parts of those larger cor- porations. So, the act for founding a university in Balti- more provided that the College of Medicine of Maryland, which was a chartered institution, might constitute and an- nex to itself three other colleges or faculties, viz. : the fac- ulty of divinity, the faculty of law, and the faculty of the arts and sciences ; the four faculties or colleges thus united, to be one corporation of the name of The Regents of the University of Maryland. It was held that the College of Medicine and the University were distinct and independent corporations.^ And the individuals, or any of them, who in their natural capacity compose one corporation"^ may, in the same capacity, compose another distinct and separate corporation : as the president and directors of one bank, or any number of them, may be the president and directors of another bank, or the incorporated managers of any other institution.^ There was a combination of interests of three corporations, and they occasionally met and voted con- jointly, while at other times they held separate meetings, and kept separate records. The same persons were mem- bers of all of the corporations, and their corporate interests had become identified by the equalization of shares in the several companies. It was held that in a suit at common law the three companies might be regarded as three dis- tinct legal persons.* " There is substantially no more objection to a State creating a corporation, to be composed of corporations ' Regents of University of Md. v. ' Atty. Genl. v. Brazen, etc., College Williams, 9 Gill & Johns. 365. To Oxon., 8 Bligh, N. S. 377 ; Rex v. Col- enable a corporation to be regarded as Chester, cited 3 Term. Rep. 234. composed of distinct integral parts, the ' Proprs. of Canal Bridge v. Gordon, members of each class must be definite, i Pick. 297. 1 6 MEANING, HISTORY, AND OBJECT. § 5 chartered by different States, than of natural persons be- longing to those States. Nor do we see any objection, technical or otherwise, to the parting of two or more States unitedly, in the exercise of their sovereign authority, with such of their respective powers as shall be necessary, in or- der to confer upon persons, natural or artificial, the fran- chise or privilege of being a corporation, and with such powers and privileges as they shall deem it proper to grant to them." ^ Ayliffesays:* "Some have doubted whether a person may be a member of two. corporations at one and the same time. Now, in answer hereunto, it is to be observed that there are some colleges or corporations that are subaltern to each other, and are as the whole and a part, or as body and members of the same body, which we call a corporation within a corporation. Thus, in one or two universities each university is divided into -colleges as members of the whole body. And in this case a person may be a member of the whole university, and a member of a particular col- lege which is a part of the university ; as a person may be a member of the State, and also of some particular city under that State. And there are some colleges or societies which are unto each other as separate species. And in these it is to be considered whether a person can be in one corporation necessarily, and in another voluntarily. For example : A man is a citizen of London by birth, and thus he is necessarily a member of the corporation of London ; and in this case, certainly, he may be a member of another city or corporation voluntarily. But if it be a question whether he may be in several voluntary colleges or corpo- rations, I answer, that if the institution of one corporation be incompatible to the design and institution of the other for which such other corporation is founded, he cannot be ' Bishop V. Brainerd, 28 Conn. 289, per Storrs, C. J. See Hunt v. Kan- sas Bridge Co., 11 Kans. 412. " Civ. L. 204. § 6 MEANING, HISTORY, AND OBJECT. 1 7 a member of divers colleges or corporations at the same time. But if the business or institution of one of them be tlo impediment to the design of the other of them, there is ho law which forbids a man to be a member of two col- leges at the same time." § 6. Difference between a corporation and a partnership. — A corporation usually consists of a large number of mem- bers, and a partnership of but few. Although there may be any number of persons in a partnership, yet in proportion as the number is increased, the operations become unwieldy and inconvenient, which is not the case with respect to a corporation, on account of its legal unity. Both are rela- tions voluntarily assumed, and having for their object the union and co-operation of several persons in the prosecu- tion of some undertaking for pecuniary gain. A corpora- tion is created by means of some legislative act ; while a partnership results from an a,greement entered into by two or more persons to contribute money or other property, or skill and labor, to the conduct of certain business, and to share the profit and loss. " Both partnerships and private corporations are conventional, so far as the members are con- cerned. The difference^consists in this : the former are authorized by the general law among natural persons exer- cising their ordinary powers ; the latter, by special authority, usually if not necessarily emanating from the legislature, conferring extraordinary privileges, among the most prom- inent of which are concentrated permanent individual ex- istence and operation, with corporate succession of member- ship, rights, and liabilities." ^ A partnership is always the result of a contract ; but the contract need not be in writing. The law will imply a contract where persons act as partners. A mere agreement, however, to constitute a partnership at some future time, does not make the contracting parties ' Thomas v. Dakin, 22 Wend. 1 10, per COWEN, J. VOL. I.— 2 1 8 MEANING, HISTORY, AND OBJECT. § 6 liable as partners.^ Community of profit is the criterion by which to ascertain whether a contract is really one of part- nership.* Persons may take an interest in the objects to be accomplished by a partnership ; may make donations to ai'd its progress ; or may sign their names to subscription papers for the same end, without being liable for debts which other persons may contract in the prosecution of the same pur- pose.^ In contemplation of law, a partnership is an associa- tion the members of which have individual rights and duties ; but a corporation is regarded as a united body whose rights and duties are collective. The law only knows a corpora- tion by its corporate name. In this name all its acts are done without a specification of its members ; and this de- termines its continued identity though all of its members should be changed.* On the other hand, in the case of a partnership, where suits are to be prosecuted or defended, real estate conveyed, instruments under seal executed, and perhaps in some other transactions, it is necessary to use the names of all of the partners.^ Notwithstanding the part- nership be composed of numerous members who reside in different countries, one partner cannot maintain an action for the benefit of all to recover a debt due the firm, although he be the managing partner." It vi^as said, some years since, that the great distinction in contemplation of law between partnerships and corpora- tions is, "that in the first, the law looks to the individuals of whom the partnership is composed, and knows the part- nership no otherwise than as being such a number of in- ' Goldsmith v. Sachs, 17 Fed. Rep.'' inson v. Valpy, 10 Id. 128, per Parke, 726 ; 8 Sawyer, 1 10. B. ; Fox v. Clifton, 6 Bing. 776 ; Howell ' Hoare v. Dawes, Douglas, 371 ; v. Brodie, 6 Bing. N. C. 44. Coope V. Eyre, i H. Blk. 37 ; Waugh * Walker's Am. L. 225. V. Carver, 2 Id. 235 ; Finckle v. Stacey, ' Ibid. In Ohio, by the act of Feb. Sel. Ca. Ch. 9 ; Robinson v. Wilkinson, 27, 1846, pvtnerships may sue and be 3 Price, 538. sued in the firm name. ' Atkins V. Hunt, 14 N. H. 205. See ° Brainerd v. Bertram, 5 Abb. Pr. N. Bourne v. .Freeth, 9 B. & C. 632 ; Dick- S. 102. § 6 MEANING, HISTORY, AND OBJECT. 1 9 dividuals ; while in the second, it sees only the creature of the charter, the body corporate, and knows not the in- dividuals. Hence, on a judgment against a corporation, execution can only be levied on the corporate effects ; or sup- posing a trading corporation to become wholly insolvent, the individual members or proprietors will only lose their stock or shares in the capital of the body corporate, and do not be- come answerable for the debts in their individual capacities. But it is far otherwise with the members of unincorporated partnerships, who may be made answerable for the debts of the firm, to use a recent expression of the Lord Chancel- lor, 'to their last shilling and their last acre.'"^ Another writer says, that " although a voluntary society of numerous individuals should unite together by mutual agreement for common purposes, provide a common stock by subscrip- tion, and subject themselves to laws of their own creation for the government of , their society, yet all this will not entitle them to the privilege of suing and being sued in their social capacity, or protect them from individual lia- bility ; but each member, even though a holder only of a particular share, and chargeable only to a limited amount, according to the articles of agreement, will be liable never- theless to be sued in his individual capacity by all strangers having demands^ upon the society at large, in the same manner as if he were a member of an ordinary partnership, to the full amount of those demands, provided the demands are those for which the society at large is properly answer- able."^ A standard English authority distinguishes be- ' George's Views of Existing Laws, Miller, J., who delivered the opinion, etc., 1825, p. 29. In Liverpool Ins. Co. remarked, that "however the law on V. Mass., 10 Wall. 556, S. C. Oliver v. this subject maybe held in England, it Liverpool Ins. Co., loo Mass. 531, it is quite certain that the principle of was objected that the Liverpool and personal liability of the shareholders London Life and Fire Insurance Com- attaches to a very large proportion of pany was a mere partnership, because the corporations of this country." its members were liable individually for * 3 Stephens' Comm. i8i, the debts of the company. To this, 20 MEANING, HISTORY, AND OBJECT. § 6 tween corporations and partnerships thus : " A corporation, it is true, consists of a number of individuals, but the rights and obligations of these individuals are not the rights and obligations of the fictitious person composed of those indi- viduals ; nor are the rights and obligations of the body corporate exercisable by, or enforceable against, the indi- vidual members thereof, either jointly or separately, but only collectively as one fictitious whole. With partner- ships the case is otherwise. The members of these do not form a collective whole which is regarded as distinct from the individuals composing it ; nor are they collectively en- dowed with any capacity of acquiring rights, or incurring obligations. The rights and liabilities of a partnership are the rights and liabilities of the partners, and are enforceable by and against them individuailly. The fundamental dis- tinction between partnerships and unincorporated companies is, that a partnership consists of a few individuals known to each other, bound together by the ties of friendship and mutual confidence, and who, therefore, are not at liberty, without the consent of all, to retire from the firm and sub- stitute other persons in their places ; whilst a company consists of a larger number of individuals not necessarily acquainted with each other at all, so that it is a matter of comparative indifference whether changes amongst them are eifected or not." ^ While men continue to be partners they are regarded as natural persons merely. A corpora- tion aggregate can only act by an agent or attorney either provided for in the act of incorporation, or authorized by ' Lindley on Part., 4th Eng. Ed. 4, J. not -the making of by-laws. R. v. The courts treat as illegal any associa- Webb, 14 East. 406. Contra, Josephs tion for profit which attenipts to arro- v. Pebrer, 3 B. & C. 639. The adop- gate to itself the privileges of a body tion of a name necessarily denoting a corporate. Blundell v. Winsor, 8 Sim. corporation, is assuming to act as such ; 601. The creation of transferable shares and so is the use of a common seal, in a common stock, constitutes assum- R. v. Whitmarsh, 14 Q. B. 803 ; Cooch ing to act as a body corporate. Du- v. Goodman, 2 Id. 580. vergier v. Fellows, $ Bing. 248 ; but '§6 MEANING, HISTORY, AND OBJECT, 21 the corporation to act in its behalf ; * but in all matters with- in the scope of partnership dealings, or falling within the ordi- nary business and transactions of the firm, each partner has the right and power to bind the partnership. By virtue of his relation, he is the general agent of the firm, and can act at once as principal and agent of his copartners ; and in the fulfilment of outstanding engagements of the firm, and in the settlement of its business generally, the authority of each member remains the same after as before dissolution.* ' Co. Liu. 66 b. But with respect to powers confided to a corporation, the general rule is that they cannot be delegated ; and that when the corpora- tion itself is pointed out as the proper functionary to execute a discretionary power, it must be solely exercised by the corporation at meetings held for that purpose. Winsor, Ex parte, 3 Story, 411. ' Shirreff V. Wilks, I East. 52 ; West- ern Stage Co. V. Walker, 3 Clarke, Iowa, 504 ; Norton v. Thatcher, 8 Neb. 186. When a partnership consists of more than two members, in the ab- sence of an express provision to the contrary, there is an implied under- standing that the acts of the majority are to prevail over those of the minor- ity as to all matters within the scope of the common business. Johnston v. Dutton, 27 Ala. 245. Where the firm consists of but two persons, and there is nothing to prevent each from having an equal voice in the direction and control of its affairs, a partner may protect himself against the conse- quences of a future contract by giving notice of his dissent to the party with whom it is about to be made. Ibid. ; Gallway v. Mathew, 10 East. 264; Willis V. Dyson, I Stark. 164; Vice v. Fleming, i T. & Jerv. 227 ; Leavitt v. Peck, 3 Conn. 125 ; Feigley v. Spone- berger, 5 Watts & Serg. 564 ; Monroe V. Conner, 15 Me. 178. So, if the firm be composed of more than two per- sons, and one of them dissents, the party with whom the contract is made acts at his peril, and cannot hold the dissenting party liable unless his liabil- ity results from the articles, or from the nature of the partnership contract. Johnston v. Dutton, supra. Whether it would be deemed a bona fide trans- action so as to bind the firm, if the majority should wantonly act without notice to or consultation with the mi- nority, quere. That it would not, see Story on Part., sec. 123. In Corst v. Harris, Turn. & Russ., Lord Eldon said : " For a majority to say, we do not care .what one partner may say, we being the majority, will do what we please, is, I apprehend, what this court will not allow." Where the judge was asked to instruct the jury that the ma- jority pf the firm could not, under any circumstances, overrule the minority in the management of the business, and that if one member protested against a sale, his interest would not pass to the purchasers, it was held that the instruc- tion should have been given, with the single qualification that the jury must believe that the majority of the firm, in making the sale, were acting in good faith. Western Stage Co. v. Walker, 2 Clarke, Iowa, 504. If there is no stipulation to the contrary in the part- nership articles, a majority of the part- ners, acting fairly and in good faith. 2 2 MEANING, HISTORY, AND OBJECT. § 6 " As respects the joint property, every member is seized not merely to the extent of his own share, but is possessed of the whole, and has an equal voice in the conduct and management of the business. The power of the whole body resides in every member, each conferring upon the other the right to do whatever he himself may do in fur- therance of the common object. Each member being the agent of the whole, has the right of disposing of all or any part of the partnership effects for any purpose falling legit- imately within the scope of the object for which they have associated together." ^ One partner may enter upon, use, or otherwise control, all of the common property, real or personal ; and he may release and discharge the debts due the firm.** He may assign firm property as a security for antecedent debts as well as for debts thereafter to be contracted on its account ; and there are cases which hold that his authority even extends to a transfer or pledge of all of the partnership effects directly to a creditor in pay- ment, or for the security of a debt due from the company, though the tendency and ultimate effect of such a transac- tion may be to destroy the partnership business.^ Personal may conduct the partnership business 456, that the right of one partner, with- notwithstanding the dissent of the mi- out the concurrence of his copartner, nority. Ibid. ; Kirk v. Hodgson, 3 to assign the property of the firm to a Johns. Ch. 400 ; CoUyer on Part. 105 ; trustee to pay the partnership debts, Story on Part., sec. 125. results from his general power over the ' Fisher v. Murray, i E. D. Smith, partnership property. On the other 341. See Robinson v. GilfiUan, 15 hand it has been urged that, under or- Hun, 267. dinary circumstances, there is nothing * Thomas v. Dakin, 22 Wend. 9. in the nSture of the contract of part- 'Mabbett v. White, 15 N. Y. (2 nership from which the assent of the Kern.) 442, and cases cited. But the non-executing partner to such a trans- authority of each of several partners as action can be implied. Burrill on As- agent of the firm is necessarily limited signments, ch. 4. In Ormsbee v. Da- te transactions within the scope and vis, 5 R. I. 442, it was held that one object of the partnership and in partner could not assign the whole the course of its trade or affairs, property of the firm to a trustee for the See Welles v. March, 30 N. Y. 344. It benefit of the creditors of the concern, was held by Chief-Justice MARSHALL, without the prior assent or subsequent in Anderson v. Tompkins, i Brock, ratification of his copartner. In Welles §6 MEANING, HISTORY, AND OBJECT. 23 and individual liability is an incident both of partnerships and corporations ; uniform and invariable in the former, subject entirely to the legislative will in the latter.^ The established rule in reference to partnerships is, that every member of the company is liable for all of the debts of the concern ; * and that where one of the partners com- mits a fraud in the course of the partnership business, all of the partners are liable for the injury, though some of them do not concur in the act.^ A partnership is dissoluble, not only by the death or insanity, but by the bankruptcy of a member ; the sale by him of all his interest in the partner- ship effects, or the sale of the same by execution ; * his conviction of felony, if it results in his civil death ; and the marriage of a partner who is a feme sole} There has V. March, j«/ra,WRIGHT, J., said that it was the exercise of a power without the scope of the partnership enterprise. The more reasonable and just rule would seem to be that while a single partner may not, under ordinary circumstances, without the assent of his copartner, assign the firm property to a trustee for the benefit of creditors, yet if an extraordinary emergency oc- curs in the affairs of the partnership, and the non-assigning partner cannot be consulted on actount of his absence, under circumstances which furnish reasonable ground for inferring that he intended to confer upon the assigning partner to do any act for the firm which could be done with his concurrence if he were present.such an assignment.if fair- ly made, will be presumed /r2V«a/a«V valid. Stein v. La Dow, 13 Minn. 412. ' Waterbury v. Union Express Co., 3 Abb. Pr. N. S. 163. ' " If judgment is obtained against the firm for a debt owing by it, the judgment creditor is under no obliga- tion to levy execution against the prop- erty of the firm before having recourse to the separate property of the part- ners ; nor is he under any obligation to levy execution against all the partners ratably, but he may select any one or more of them and levy execution upon him or them, until the judgment is sat- isfied, leaving all questions of contribu- tion to be settled afterward between the partners themselves." Thompson on Liability of Stockholders, quoting from Lindley on Part. 300. Members of corporations are in like manner lia- ble for debts contracted before they have fully completed their corporate organization. Ibid^ citing Broyles v. McCoy, 5 Sneed, 602. ' Story Part. sec. 166. By the Roman law, each partner was ■ only liable to the extent of his own share. Dig. lib. 45, tit. 2, sees. I and 2. The French law is the same, except as to partnerships for commercial purposes, in which each partner is liable in solido. Pothier, De Societe, N. 96, 103, 104. ■'Marquand v. N. Y. Mfg. Co., 17 Johns. 525; NicoU v. Mumford, 4 Johns. Ch. 522 ; Rodrigues v. Heffer- man, 5 Id. 417 ; Cochran v. Perry, 8 Watts & Serg. 262. ' Nerot V. Bernard, 4 Russ. 247. 24 MEANING, HISTORY, AND OBJECT. § 6 been some conflict in the decisions aS to whether the con- cern may be dissolved at any time by the act of a single partner at his own mere pleasure, notwithstanding a provis- ion in the articles of copartnership against a dissolution.^ Of course where a partnership is formed for no definite period, any partner may withdraw at a moment's notice and dissolve the partnership. The superiority of a corporation over a partnership has been said to consist " in its ability to do all acts in the corporate name without specifying the members ; its independence of death or transfer of interest among the members ; and the liability of members only to the extent of their respective interests."* A partnership is not " adapted to carry on business which is designed to be permanent, or in which a large number of persons unite, or where changes of membership are expected to take place. The only safe method of prosecuting such business is by means of corporate powers. A corporation is not affected by the decease of one or more of its members, and its shares may be transferred so that existing stockholders may go out and new ones may be admitted without disturbing its business, and with safety to the members."^ ' Marquand v. N. Y. Mfg. Co., supra; ijership, whether it was a partnership Thomas v. Dakin, 22 Wend. 9. See at will or for a fixed period of time, Story's Eq. Juris., sec. 668 ; Story on even although he had expressly stipu- Part., sec. 275. In Skinner v. Dayton, lated to the contrary, if it was done for 19 Johns. 513, Platt, J., said : "Even a reasonable cause, at a reasonable where partners covenant with each time, and in a reasonable manner. Ry other that the partnership shall con- the codes of France and Louisiana, and tinue seven years, either party may also by the law of Scotland, partner- dissolve it the next day by proclaiming ships, which by the original contract his determination for the purpose ; the are to continue for a definite period, only consequence being that he there- cannot be dissolved until the expiration by subjects himself to a claim for dam- of the period, except for some just ages for breach of his covenant." cause. Story on Part., sees. 273, 274. Contra, Crowshay v. Maule, i Swanst. * Walker's Am. L. 241. 495 ; Peacock v. Peacock, 16 Ves. 56 ; « Tyrrell v. Washburn, 6 Allen, 466. Bishop V. Breckles, i Hoffman Ch. 534 ; " Corporate bodies may exist without Pierpont v. Graham, 4 Wash. C. C. 234. transferability of the rights of the cor- By the Roman law, it was competent porators ; for a large majority of our for any partner to renounce the part- literary and charitable, as well as all of § 6 MEANING, HISTORY, AND OBJECT, 25 The transferability of shares is not, however, confined to corporations. Such right of transfer may be contained in articles of partnership, and become a fundamental condition of them. The general rule is the reverse, and it is common to regard transferability as an indication of corporate char- acter.^ So, although non-dissolution by death or by legal disability is a mark of a corporate body, yet it may be adopted as an article of an ordinary partnership.* And re- stricted responsibility of members is not wholly confined to corporations. Limited partnerships, which were first intro- duced in France, are permitted by statute in Alabama, Cali- fornia, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, and Vermont. It is provided that in these partnerships there may be, be- sides the general partners, one or more special partners who shall put into the concern a certain amount of cash capital, and only be liable to the extent of the amount so furnished.^ our municipal corporations, are so." 'The provisions of the statute of Verplanck, Senator, in Warner v. Beers, New York on this subject were origin- 23 Wend. 1 52. ally a substantial adoption of the ' Ibid. French ordinance of 1673 ; and those ' CoUyer on Part., 5, 648. Where it of the States named above, have main- is apparent from the articles of a trad- ly followed the law of New York. The ing association, that the association is New York statute (3 Rev. Sts., 7th ed., designed to consist of many members p. 2234, et j^y.),which was first passed in who may from time to time cease to be 1822, and subsequently from time to interested therein by death or by vol- time amended, enacts that limited part- untary withdrawal, and that the same nerships for the transaction of any mer- business shall be continued in the same cantile, mechanical, or manufacturing manner by those who may remain and business, or of any other lawful trade or by such as may be added to their num- business (but not for the purpose of ber, it will be considered that each banking or insurance) within the State, member agreed to be and remain a may be formed by two or more persons, partner in the association, notwith- to consist of one or more persons to be standing changes in others of its mem- called general partners who shall be bers, until such time as he should die jointly and severally responsible, and of or withdraw by some positive act of one or more persons who shall con- his own. Tyrrell v. Washburn, supra, tribute in actual cash payments a spe- 26 MEANING, HISTORY, AND OBJECT. §7 § 7. Unincorporated associations in general. — Companies or societies which are not sanctioned expressly by the legis- lature pursuant to some general or special law, are usually cific sum as capital to the common stock, called special partners, who shall not be liable for the debts of the part- nership beyond the fund contributed by him or them. The general partners only can transact business for the firm, excepting as hereinafter mentioned. Persons proposing to form such part- nership must sign a certificate contain- ing the name of the firm ; the nature of the business ; the names of all of the partners and their places of residence, stating which are general and which are special partners ; the amount of capital contributed by each special partner ; and the time of the commence- ment and termination of the partner- ship. The certificate, after being acknowledged by the several persons signing it in the same manner as con- veyances of land, must be filed and recorded in the office of the clerk of the county where the principal place of business of the partnership is situated ; and a transcript of the certificate and acknowledgment, certified by the clerk in whose office it is filed, must be filed and recorded in the office of the clerk of every county in which the partner- ship has a place of business. At the time of filing the original certificate, an affidavit of one or more of the general partners must also be filed in the same office, stating that the sums mentioned in the certificate as having been con- tributed by each of the special partners have been paid in cash. The partners, when requested, are required to publish in two newspapers in the senate district or city or town in which the business is conducted, to be designated by the clerk of the county, the terms of the partnership for at least six weeks im- mediately after such registry. In the same manner every renewal of the partnership must be certified, acknowl- edged, recorded, and an affidavit filed and notice given. Every alteration in the names of the general partners, in the nature of the business, or in the capital of any of the special partners, and the death of any partner, will work a dissolution of the partnership, unless the articles of partnership specify that in such event the partnership shall be continued by the survivors, in which case it may be continued with the as- sent of the heirs or legal representatives of the deceased partner. Every such partnership carried on after such alter- ation or death, is to be deemed a gen- eral partnership in respect to subse- quent business, unless there is a provis- ion in the articles of partnership for the continuance of the business by the survivors ; provided that one or more special partners may be added to the partnership upon paying in an addition- al amount of capital to be agreed upon by all of the partners, and provided the general partners file an additional cer- tificate with the clerk with whom the original certificate was filed, verified on oath by one of them, stating the names and residences of such additional special partners, and the amount respectively contributed by them. Any special partner, or his heirs or legal represent- atives, may sell his interest in the part- nership, upon filing, within ten days thereafter, a notice with the clerk with whom the original certificate has been filed, and the purchaser will thereupon become a special partner. The busi- ness of the partnership must be con- ducted under a firm in which the names of the general partners only are inserted, except that where there are two or §7 MEANING, HISTORY, AND OBJECT. 27 no more than partnerships.^ At common law when they are formed for a distinct purpose other than for the sharing of profits or direct pecuniary advantage, " they are not partnerships, but, in the legal effect of their dealings with others, constitute agencies in which the liability of the more general partners, the firm name may consist of either one or more of such general partners with or without the addition of the words " and com- pany," or "& Co."; and if the name of any special partner is used in the firm name with his privity, he will be deemed a general partner. Unless the partnership put upon some conspicuous place on the outside and in front of the building in which it has its chief place of business, a sign on which is painted, in legible English, all the names in full of the partners, no action will be dis- missed by reason of the plaintiff failing to prove the allegations of his pleading as to the names and number of the partners, but the pleadings may be amended in that respect on the trial without costs. Suits in relation to the business of the partnership may be brought by and against the general partners alone. No part of the sum contributed by a special partner to the capital stock can be withdrawn by him, or be paid to him as dividends, profits, or otherwise, during the continuance of the partnership ; but any partner may annually receBre interest on the sum contributed by him, if the payment of it does not reduce the amount of the capital ; and if, after the payment of such interest, any profits remain to be divided, he may also receive his por- tion of such profits. If, by the payment of interest or profits to a special part- ner the original capital has been re- duced, he will be required to restore the amount requisite to make good his share of capital with interest. A spe- cial partner may from time to time ex- amine into the state and progress of the partnership concerns, and advise as to their management. He may also loan money to, and advance and pay money for, the partnership, and may take and hold the notes, drafts, accept- ances, and bonds of or belonging to the partnership, as security for the repay- ment of such money and interest, and may use and lend his name and credit as security for the partnership in any of its business, and has the same rights and remedies in these respects as any other creditor. He may also negotiate sales, purchases, and other business for the partnership ; but no business nego- tiated by him will be binding on the partnership until approved by a general partner. If he transact any other busi- ness on account of the partnership, he will be deemed a general partner. The general partners are liable to account to each other and to the special part- ners. The partnership cannot be dis- solved by the acts of the parties before the time specified in the certificate of its formation or renewal, until a notice of such dissolution has been filed and recorded in the clerk's office in which the original certificate was recorded, and been published once a week for four weeks in a newspaper printed in each of the counties where the partner- ship has places of business, and in the State paper. ' Wells v. Gates, 18 Barb. 554 ; La- fond V. Deems, i Abb. N. C. 318 ; S. C. 52 How. Pr. 41 ; Butterfield v. Beards- ley, 28 Mich. 412 ; Moore v. Brink, 4 Hun, 402 ; Tyrrell v. Washburn, 6 Al- len, 466. 28 MEANING, HISTORY, AND OBJECT. § 7 members respectively for contracts made by the association, or its committee, depends on the question whether the per- son by whose act the obligation was contracted was the au- thorized agent in so doing of the persons sought to be charged." ^ Private associations for private emolument or benevolence confined exclusively to the associates, which are as much private concerns as any other union of individ- ual capital for the exclusive advantage of the contributors, are treated as partnerships." An unincorporated association formed for the avowed purpose of promoting temperance, friendship, etc., but in reality to retail liquor among the members, was held to be a partnership.^ The Board of Health of the city of New York, as organized under the New York revised statutes, is not a corporation, and it was held that an action could not be maintained against it as such.* The same was held with reference to the Water Commissioners of the city of New York appointed under the act of 1834.® The board of supervisors of a county is not a corporation ; and such a board, apart from the county, is not liable to a suit. When a suit is brought against it as representing the county, the county is the real defendant.® " A church primarily is nothing but a voluntary association of persons for religious worship ; and for its main and dis- tinctive purpose corporate powers are not important. In- deed the church as such is not usually incorporated ; but the corporation is an associate body composed of the con- gregation who may or may not be religious persons, and who take on corporate powers for convenience in holding and transferring property, entering into contracts, etc. Where ■4 Abb. N. C, note; Fleming v. * Rickart v. The People, 79 111. 85. Hector, 2 Mees & Welsb. 172 ; Todd * Gardner v. Board of Health of N. V. Emly, 8 Id. 505 ; Matter of St. Y., 10 N. Y. 409. James's Club, 2 De G. M. & G. 383. ^ Appleton v. Water Commissioners ' Beaumont v, Meredith, 3 Ves. & of N. Y., 10 N. Y. 409. Bea. 180 ; Thomas v. EUmaker, Par- ' Boyce v. Supervisors of Cayuga, ao sons' Sel. Cas. 98 ; Babb v. Read, S Barb. 294 ; Brady v. Supervisors of N. Rawle, 151. Y., 2 Sandf. 460. § 7 MEANING, HISTORY, AND OBJECT. 29 there is no incorporation, those who deal with the church must trust for the performance of civil obligations to the honor and good faith of the members. Whereas, in case of incorporation, they would deal with a legal body capable of binding itself."^ Where persons united in articles to purchase property and carry on a manufacturing business, and their organization fell short of a corporation under the statute, it was held that they were in legal effect partners, and that the court would recognize and protect their prop- erty rights as individuals." The charter of an incorporated manufacturing company which owned real and personal property having expired, the stockholders entered into an agreement to continue the business, and to constitute one of their number an agent to carry it on, and to do every- thing pertaining to it. They further agreed individually at all times to furnish money, when called on by their agent, for the purpose of defraying the expenses, and to contribute toward the same pro rata, or in proportion to the amount of stock held and owned by each of them in the company. It was held that the agreement constituted a partnership as to third persons, irrespective of any particular arrangement between the partners limiting the right of each to make contracts binding the firm ; that the agent being a partner, it followed that he was authorized to draw and accept drafts and make notes in the name of the firm in all matters con- nected with its business, and that such paper would be valid as against all of the members of the firm in the hands of bona fide holders, although the agent might have drawn, accepted, or made it, in fraud of the rights of his partners ; and that the fact that the plaintiff had discounted paper for ' Meth. Church in Newark v. Clark, contract. The legislature may repeal 41 Mich. 731, per COOLEY, J. the grant, and thereby withdraw the « Whipple V. Parker, 29 Mich. 369. privilege when no rights have been ac- The grant of a privilege to raise money quired or liabilities incurred under the by a lottery is a mere gratuity and not act. Gregory v. Shelby College, 2 an act of incorporation ; nor is it a Mete. Ky. 589. 30 MEANING, HISTORY, AND OBJECT. § 7 the concern, supposing that the corporation was still in ex- istence, furnished no answer to his claim.* In private associations, the majority cannot bind the minority unless it be by special agreement. The members are tenants in common, each having a distinct though un- divided interest, and an entire dominion over his own share or proportion of the property, but without any right or power to bind the interest or regulate the enjoyment of the property of the other members.^ Sir Edward Coke ^ makes a distinction between public and private associa- tions, and thinks that in matters of public concern the voice of the majority should govern, because it is for the public good, and the power is to be more favorably con- strued than when it is created for private purposes. In Viner's Abridgment* several cases are referred to, making the same distinction, and it is now well settled that in mat- ters of mere private confidence or personal trust or benefit the majority cannot conclude the minority, but that when the power is of a public or general nature, the voice of the ' National Bank of Watertown v. subscription. The defendants, who Landon, 45 N. Y. 410. By the rules of were members of the committee, a society " for the protection of trade," passed resolutions for the printing and the object of which was to watch the stationery supplied by the plaintiff. It progress of measures through Parlia- was held that the plaintiff wag not pre- ment affecting the trade interests, and eluded by the rules from suing the de- to protect the members from fraudu- fendants, as the rules did not create a lent and dishonest practices, a commit- partnership between the members of tee had the naming of a printer and the society, and it was not to be in- stationer to be elected from the mem- ferred that the plaintiff looked to the bers of the society, the defraying of fund, and not to the jJarties who gave the expenses, and the application and dis- orders. Caldicottv.Griffiths,8Exch. 898. posal of the moneys of the society. It " Livingston v. Lynch,' 4 Johns. Ch. was also provided by the rules that the 573- The members of a telegraph sum of ten pounds should be left in the company are not partners, but tenants secretary's hands to meet the current in common of the property and fran- expenses, but that all orders for the chises of the company, and the major- payment of money should be drawn by ity cannot bind the minority unless by the secretary upon the treasurer at a special agreement. Irvine v. Forbes, committee meeting. The plaintiff was 1 1 Barb. 588. appointed printer and stationer to the 'Co. Litt. 181. society, and shortly afterward paid his * Tit, Authority, B. § 7 MEANING, HISTORY, AND OBJECT. 3 1 majority will control on grounds of public convenience. At common law the only way in which an unincorporated association can be sued is by an action against the members as individuals. A member could not maintain such an ac- tion, as it would be an answer to it that the plaintiff was legally interested in each side of the question.^ When, however, by legislative authority or sanction, an association is formed capable of acting independently of the rules and principles that govern a simple partnership, it is so far clothed with corporate powers, that it may be treated for the purposes of taxation as an artificial body, and becomes sub- ject as such to the jurisdiction of the government under which it undertakes to act and contract in its associated capacity.* A voluntary association cannot as such hold real estate.^ At common law a community not incorporated cannot purchase and take property in succession. Therefore, a deed of land to trustees de facto of an unincorporated religious society conveys no title to the society.* But in case of the subsequent incorporation of the society, the legal title to such property becomes vested in the cor- poration.^ In Phila. Baptist Assoc, v. Hart,^ the Supreme Court of the United States held that an unincorporated association could not take land by devise to the society, and that a devise of that description could not be executed by a court of equity as a charity at common law. But afterward the same .court sustained a bill by the nominal trustees of an unincorporated religious society to protect their right to a lot of land granted for the use of such so- ciety by the name of "The German Lutheran Church.'"' 'Schmidt v. Gunther, 5 Daly, 452; 'East Haddam Baptist Ch. v. same, I Chitty on PI., 6th Am. Ed., 45. As 44 Conn. 259. to the power of such an association to ^ Bundy v. Birdsall, 29 Barb. 31. maintain a suit, see Mears v. Moulton, ' Baptist Church in Hartford v. 30 Md. 142. Witherell, 3 Paige Ch. 296. 2 Oliver V. Liverpool & London Ins. * 4 Wheat, i. Co., 100 Mass. 531. 'Beatty v. Kurtz, 2 Pet. 566. 32 MEANING, HISTORY, AND OBJECT. § 8 And in a subsequent case a devise was held valid which provided for the vesting of the property in a corporation to be thereafter created,^ § 8. Clubs. — Societies which merely constitute the relation of principal and agent so far resemble partner- ships that each member is bound by certain acts of the rest in furtherance of the common object.* When goods are ordered by one member of a club for the benefit of all, every member who either concurs in the order or subsequently assents to it, is liable, although the member who ordered the goods is made the debtor in the plaintiff's books, and the bill is sent to him, unless it clearly appear that the plaintiff meant to give credit to that member only.^ A club was formed subject to the following rules : That the entrance fee should be ten guineas, and the arinual subscrip- tion five guineas ; that if the subscription was not paid with- in a certain limited period the defaulter should cease to be a member ; and that all members should discharge their club bills daily, the steward being authorized, in default of pay- ment on request, to refuse to continue to supply them. It was held not a case of partnership, but of principal and agent; 'Inglis V. Sailors' Snug Harbor, 3 ability to hold parochial property in Pet. 1 14. In Massachusetts it is pro- perpetual succession by means of trus- vided by statute (Genl. Sts., ch. 30, tees having corporate powers, and at sec. 24) that unincorporated religious the same time to leave them untram- societies shall have like power to man- meled as far as possible in respect to age, use, and employ any donation, their peculiar discipline , and usages, gift, or grant made to them, according Currier v. Trustees, 109 Mass. 165. to its terms and conditions, as incor- ' Flemyng v. Hectbr, 2 Mees & porated societies have by law. If such Welsby, 172; Todd v. Emly, 7 Id. a society has proceeded so irregularly 427 ; S. C. 8 Id. 505. as not to have a corporate existence, it ' Delauney v. Strickland, 2 Starkie, is still a legal organization entitled to 416. Clubs are not partnerships with- the name it has taken and to hold in the meaning of the provisions of the property given to it to the exclusion English joint stock companies winding of any other religious society afterward up acts. Matter of St. James's Club, incorporated. Glendale Soc. v. Brown, 2 De G. M. & G. 383. See Ingham v. 109 Mass. 163. The intent of this stat- Reform Club, 12 Phila. 264. ute is to confer upon religious societies § 8 MEANING, HISTORY, AND OBJECT. 33 and that the members of the club as such were not liable for debts incurred by the committee for work done or goods furnished for the use of the club, the committee having no authority to pledge the personal credit of the members.^ The duty of the secretary of a club formed for the purpose of supplying coal to the members, was to receive subscrip- tions from members and pay the amount to the treasurer, and to write to some merchant, whom the members might select, for an offer to deliver coal to the members' houses, and when the offer was accepted by the club, to prepare a contract for the merchant to sign. The treasurer was to pay the coal merchant upon delivery immediately after re- ceiving an order signed by the secretary and chairman, which order was to be given the Thursday night following each delivery. The plaintiff having made an offer which was accepted, entered into a written agreement with the secretary to deliver at the members' residences one hundred tons, " more or less," and he delivered one hundred and twenty- seven tons, pursuant to directions given by the secretary. When the time for payment arrived, it appeared that the secretary had not paid to the treasurer all the money re- ceived by him. The sum in the treasurer's hands, which was paid to the merchant, fell short of the amount due, and an action was brought against a member of the club for the residue. It was held that the member was liable.* It has been held in New York that where a number of persons form a club for social intercourse and pleasure, and assume a name under which they incur liabilities by opening an ac- count, they become jointly liable for any indebtedness thus incurred, and if one of them wishes to avoid personal re- sponsibility by withdrawing from the body, he must notify the creditors of such withdrawal ; otherwise, if a creditor continues to furnish in good faith articles such as have been ' Flemyng v. Hector, supra. ' Cockerell v. Ancorapte, 40 Eng. L. & Eq. 279. VOL. I.— 3 34 MEANING, HISTORY, AND OBJECT, § 9 previously purchased for the use of the club, his responsi- bility will continue upon the same principle that makes retiring partners liable for indebtedness subsequently con- tracted with former creditors.^ Certain members of an un- incorporated association, known as "The Mutual Pleasure Club," and the assignees of other members, brought an action against a member on an agreement entered into by him with the club. It was held that the plaintiffs had no right of action which they could enforce in their own behalf against the defendant ; no number of members short of the whole being competent to sue on a cause of action belong- ing to the club, and still less could they sue at law another member. The court said that although the association was not strictly a partnership, yet that the rights of the members in the property, and the modes of enforcing such rights, were not materially different from those of partners ; that in any agreement made by a contracting party with the association as such, each associate had an interest, but no associate had an interest which he could so transfer as that an action could be maintained by an assignee in his own name against a con- tractor with the association ; that the agreement, the right of action, and the result of an action, were the property of the association as such, and there was no separate owner- ship by a member save in the residuum.* § 9. Board of brokers. — Such an organization is not a cor- poration ; nor is it a joint stock company in the sense in which such companies are regarded by the English law, although it may have a large amount of property belonging ' Park V. Spaulding, 10 Hun, 128. See statute of New York, as a joint stock Ingham v. Reform Club, 12 Phila. 264. association. Ebbinghousen v. Worth ' McMahon v. Ranke, 47 N. Y. 67, Club, 4 Abb. N. C. 300. As to the per FOLGER, J. Where it appeared that right to expel a member from the club, an unincorporated club had no consti- see Hopkinson v. Marquis of Exeter, tution or by-laws, and that it was de- L. R. 5, Eq. 63 ; State v. Milwaukee signed to provide a club-house for the Chamber of Commerce, 47 Wis. 670 ; members to meet for social purposes, State v. Williams, 75 N. C. 134; People it was held liable, in action under the v. Board of Trade, 80 111. 134. § lO MEANING, HISTORY, AND OBJECT. 35 to it in a joint or aggregate capacity ; nor is it a partnership as between the members, whatever may be their relations to third persons. It may be defined a voluntary association of persons who, for convenience in transactions with each other, have united to provide a common place for the con- duct of their individual business, agreeing among themselves to pay the expenses incident to the support of the objects of the association, in which each for himself, at stated hours of the day, and for his individual profit, may enter into separate engagements with his fellow-members. The board does not share in the losses of the individual associates, but each member takes his own gains, and sustains the losses incident to his engagements. It has some elements in com- mon with corporations, joint stock companies, and partner- ships ; such as association, and regulations adopted by it for that purpose.^ The constitution of a stock and exchange board provided that in sales of seats for account of delin- quent members, the proceeds should be applied to the benefit of the members of the board exclusive of outside creditors, unless there should be a balance after the payment of the claims of the members in full. It was held not contrary to public policy ; the authorities to the contrary relating to cases where a man imposes such a direction or incumbrance on his own property which impedes creditors.** §10. Joint stock companies. — An incorporated joint stock company has been described as an association of persons having a joint stock divided into a large number of shares, governed strictly as to its powers, rights, duties, ' Leech v. Harris, 2 Brewster, Pa. making provision therein for a room 571 ; White v. Brownell, 2 Daly, 329; for the use of the board; for the elec- 3 Abb. Pr. N. S. 318. The Open Board tion of a president and other officers ; of Brokers of the city of New York was for the formation of an executive corn- organized in the year 1864 by the mittee, a committee of membership, a voluntary association of seventy-seven committee of arbitration, and a board persons, who, for convenience in the of appeals ; and for the election of new transaction of business with each other, members, adopted a constitution and by-laws, * Hyde v.Woods,g4U. 8,(4 Otto),523. 36 MEANING, HISTORY, AND OBJECT. § lO interests, and responsibilities by the terms of its instrument of incorporation, the shareholders in which are not individ- ually liable in their private capacities for the acts or con- tracts of the officers or the members of the corporation. Such incorporated joint stock companies have, unless oth- erwise provided by law, certain rights and powers, such as : to have perpetual succession ; to sue or be sued, implead or be impleaded, grant or receive by their corporate name, and do all other acts as natural persons may ; to purchase and hold land for the benefit of themselves and their suc- cessors ; to have a common seal ; and to make by-laws.^ The immediate superintendence of the affairs of the com- pany is delegated to a portion of the members called direct- ors, subject nevertheless to the general control of the shareholders assembled at stated intervals, or on particular occasions, when they may be convened. The general body of shareholders, therefore, except upon such occasions, un- like the members of a partnership, have no power to inter- fere with the concerns of the company or to bind it.* These institutions, when not incorporated, have been variously defined with some divergence of expression. While on the one hand it has been stated that they were invented to ob- viate the consequences of an- ordinary partnership,^ on the other it has been said that in the absence of any special law they are mere partnei^hips, and in general governed by the same rules ; that if one of the members dies, the cred- itor must proceed against the surviving members before an action can be maintained against the representatives of the deceased ; ^ and that, although the stock is usually divided 1 Wordsworth on Joint Stock Com- a mere partnership, and each member panies, 4. See Maltz v. Am. Express is liable for its debts." Frost v. Co., I Flippin, 611; Boston & Alb. Walker, 60 Me. 468. See Atty. Genl. R.R. Co. V. Pearson, 128 Mass. 445. v. Mercantile Ins. Co., 121 Mass. 524 ; ^Smith's Merc. L. 9, Eng. Ed. 56. Boston, etc., R.R. Co. v. Pearson, 128 8 Baird's Case, L. R. 5, Ch. 725. Id. 445 ; Factors, etc., Ins. Co. v. Har- * Moore v. Brink, 4 Hun, 402. "An bor, etc., Co., 37 La. Ann. 233; Wells unincorporated joint stock company is v. Gates, 18 Barb. 554; White v. § lO MEANING, HISTORY, AND OBJECT. 2>7 into shares transferable by assignment or delivery, and the business conducted by a board of trustees or directors, yet that a stipulation in the articles limiting the responsibility of the members to the joint funds will not operate to pre- vent the general liability of all of the members for all of the debts.^ The most correct view that can be taken of these bodies is that they are intermediate between corpora- tions known to the common law and ordinary partnerships, and partake of the nature of both. " They are not pure partnerships, for their members are recognized as an aggre- gate body ; nor are they pure corporations, for their mem- bers are more or less liable to contribute to the debts of the collective whole." ® In Baird's Case,^ James, L. J., said : "A joint stock com- pany is not an agreement between a great many persons that they will be copartners, but is an agreement between the owners of shares, or the owners of stock, that they or their duly recognized assigns, the owners of shares for the time being, whoever they may be, shall be and continue an association together, sharing profits and bearing losses. No shareholder in a joint stock company is, in the legal sense of the word, any more a partner than the owner of bank stock is ; he may not have the same limit of liability, but in every other respect he is the same ; he has the same right to take part in public meetings of the body, he has the same right to elect or remove directors, he has the same Brownell, 4 Daly, 162 ; Bray v. Far- vided into shares which may be trans- well, 81 N. Y. 600; Cox V. Bodfish, 35 ferred without the express consent of Me. 302. the copartners ; while Bouvier (L. ' Walbum v. Ingilby, i M. & K., Diet.) says that in England it is a 51, 76; Blundell v. Winsor, 8 Sim. quasi corporation; the association 601 ; Greenwood's Case, 23 Eng. L. continuing, notwithstanding the death, and Eq. 422 ; Peel v. Thomas, 29 Id. bankruptcy, or sale by a partner of his 276. Burrill (L. Diet.) characterizes share. a joint stock company as a partnership ' Lindley on Part., 2d Ed. 6 ; Moore consisting of numerous members who v. Brink, supra. ^ iH fi v,. i/ 6 **" act under articles of association or a ' L. R. 5, Ch. 725. deed of settlement, with a capital di- 38 MEANING, HISTORY, AND OBJECT, § lO right to vote for or against the resolutions of the body, he has the same right to such dividends as may be declared, and he has the same right to dispose of his share as a sepa- rate and distinct piece of property, and no other rights in or over the association, its assets, or its transactions ; and if he is liable under any contract or obligation, or in respect of any act of the body, it is not because they are contracts, obligations, or acts of his partners or partner, but because they are the contracts, obligations, and acts of the quasi body corporate (under present legislation, the actual body cor- porate) by its properly constituted agents. It may be, and generally is, no doubt, that the agents, the directors, are shareholders, and in that sense partners ; but it is certain that there may be a board of directors perfectly competent to bind the whole body, although every one of them may have disqualified himself by parting with every share. The presumption is that the death of a shareholder makes not the slightest difference either in right or liabiHty ; that the executor of a deceased shareholder, who succeeds in point of property to the share, takes it (of course in his execu- torial character) on exactly the same terms and conditions as every other owner of a share." In England joint stock companies, before the passage of enactments for their regulation granting them privileges and powers, and imposing upon them rules and obligations, were virtually mere partnerships. The large number of the members composing these companies finally compelled them to adopt certain regulations for their government, contained in an instrument called a deed of settlement. This constitutes trustees of the partnership property, di- rectors of the partnership affairs, auditors of its accounts, and such officers as the objects of the association require, and contains covenants for the performance of their re- spective duties which are specifically set out, as also are those of the other partners or shareholders. It also defines § lO MEANING, HISTORY, AND OBJECT. 39 the number of shares, the power and method of transferring them, and of calling for the instalments required thereon ; the mode of convening general meetings of proprietors, their rights when convened, and a variety of other rules suited to the exigencies of the particular undertaking. As far as the provisions of this instrument extend, it is the law by which the partnership affairs are to be governed. When it is silent, the general law of partnership is followed.^ Unincorporated joint stock companies, as they exist in the United States, with the exception, perhaps, of those or- ganized under the statutes of New York, are merely partner- ships, and are in general subject to all the rules governing that branch of the law.* The principal difference between such companies and partnerships relates to the effect of a transfer of a member's interest in not working a dissolution of the company. The fact that the members call them- selves stockholders, and the firm an association, and that there are a great many members, does not change the na- ture of the company.^ Certain persons entered into an ' Smith's Mercantile Law, 9th Eng. New York companies are deemed mere Ed. 56. An English joint stock com- partnerships. Taft v. Ward, 106 Mass. pany is not, like an ordinary partner- 518; s. C. ill Id. 518; Gott v. Dins- ship, bound by the acts of any individ- more, lb. 45. ual member. Burnes v. Pennell, 2 ' Babb v. Reed, 5 Rawle, 151 ; Kra- House of Lds. Cases, 497. mer v. Arthur, 7 Pa. St. 165 ; Hedge's ' Some of the New York cases so re- Appeal, 63 Id. 273 ; Hess v. Werts, 4 gard them. La Fond v. Deems, 52 Serg. & Rawle, 356 ; Tenney v. N. E. How. Pr. 41 ; i Abb. N. C. 318; Wells Protective Union, 37 Vt. 64; Vigers v. V.Gates, 18 Barb. 554; Dennis v. Ken- Sainet, 13 La. 300; Manning v. Ga- nedy, 19 Id. 517; Moore v. Brink, 4 sharie, 27 Ind. 399 ; Robbins v. Butler, Hun, 402. Other cases consider them 24 111. 387; /« re Fry, 4 Phila. 129; as substantially corporations. Water- Tappan v. Bailey, 4 Mete. 535 ; Mc- bury V. Merchants' Union Express Co., Geary v. Chandler, 58 Me. 537 ; Will- 50 Barb. 157; 3 Abb. Pr. N. S. 163; iams v. Bank of Mich., 7 Wend. 539, Westcott V. Fargo, 61 N. Y. 542; 542; Townsend v. Goewey, 19 Id. 424; Sandford v. Supervisors of N. Y., 15 Nat. Bank v. Van Derwerker, 74 N. Y. How. Pr. 172. See Fareo ^v. Louis- 234; Liverpool Ins. Co. v. Mass., 10 ville, etc., R.R. Co.,' fsChicsl-go'' legal Wall. 566; School Dist. v. Ins. Co., News, 277 ; Habricht v. Pemberton, 4 103 U. S. 707. Sandf. 658. In Massachusetts, such 40 MEANING, HISTORY, AND OBJECT. § ID agreement under their hands and seals to form an associa- tion for trading and mining in California, by which each person was to have one share for every five hundred dollars subscribed, the capital to consist of eighty shares, transfer- able certificates of which were to be issued. The constitu- tion of the association provided for a choice of officers, and that the president and directors should have the exclusive direction and arrangement of all the concerns of the com- pany and treasury department. No one could become a member without subscribing and sealing the indenture, or obtaining a certificate of stock directly from the officers, or by transfer. Two classes of stockholders were provided for: those who owned stock without engaging to render any personal service ; and those who agreed to go to Cal- ifornia and devote their personal services exclusively for the benefit of the company, for which each was to have one additional share ; but there was no provision that a person who was not an owner of stock could become so by ren- dering such personal service. It was held that the associa- tion was not, strictly speaking, a partnership. If the mem- bers had been copartners, each individual could have disposed of the whole property. No one, not even all of the members, not being directors, could have done this.^ If there is nothing in the constitution of a joint stock as- sociation which regulates the remedies of the shareholders as between themselves, the general law of partnership must prevail. Therefore, in such case, if certain of the share- holders sell goods to the company, they cannot maintain an action against it therefor until after a final settlement of the partnership accounts.* Where the members of such an association embarked in an undertaking for their common profit to be sustained by money advanced by each, it was held that their relation and position were such as to justify a court of equity, in order to settle their disputes respecting ' Bullard v. Kinney, lo Cal. 60. ' Cox v. Bodfish, 35 Me. 302. § lO MEANING, HISTORY, AND OBJECT. 4 1 the distribution of the common fund, to treat them as partners.^ The rule that one partner cannot bring an ac- tion at law against his copartners, as applied to large, unin- corporated joint stock companies, has been avoided in Eng- land by having a public officer represent the company, who may sue and be sued in behalf of the members. Such an officer must be created by law, as the members could not, by their own act, empower their treasurer or secretary, to represent the firm, and to sue and be sued in its own be- half.* In New York, the statute of 1 849 provided that any joint stock company or association consisting of seven or more shareholders or associates, might sue or be sued in the name of the president or treasurer for the time being ; and the statute of 1851 extended the provision to any company or association composed of not less than seven persons who were owners, or who had an interest in any property, right of action, or demand, jointly or in common, or who might be liable to any action on account of such ownership or interest. The intent of these statutes was to obviate the inconvenience of joining all the shareholders or asso- ciates as parties.^ The company may hold real estate in the name of its president and his successors, and he may sell and convey free from any claim against any of the shareholders, or of any person claiming under them.* Cer- tificates of stock can be sold and transferred by indorse- 1 Butterfield v. Beardsley, 28 Mich. 1868, p. 394 ; Code of Ala. of 1876, p. 412. 149, sec. 13. ^See Lindley on Part., 720; Law- ^See Westcott v. Fargo, 61 N. Y. rence v. Wynn, 5 M. & W. 355 ; Skin- 542; Shaw v. Cock, 12 Hun, 173; Salts- ner v. Lambert, 4 Man. & Gr. 477 ; man v. Shults,. 14 Id. 256. In New Wills V. Sutherland, 4 Exch. 211; York there need not be a subscription Chapman v, Milvain, 5 Id. 61; Reddish in writing to a joint stock company V. Pinnock, 10 Id. 213 ; Harrison v. by members. The statute requires no Brown, 5 De G. & S. 728. greater formalities in that respect, for ' Corning v. Greene, 23 Barb. 33 ; the formation of such associations, than Fargo V. McVickar, 55 Id. 437. There for the formation of ordinary partner- are similar statutes in West Virginia ships. Nat. Bank v. Vanderwerker, 74 and Alabama. Code of West Va. of N. Y. 234. Until execution is issued 42 MEANING, HISTORY, AND OBJECT. § ID ment.^ • The management is confided to a board of trustees, or some other authority named in the articles, which pre- scribe the duration of the company. A shareholder has no right of control, except such as he exercises in the choice of managers ; and this right is not, as in the case of a part- nership, equal to that of every other member, but only equal to the amount of stock owned by him.** In conclu- sion, it may be stated that in New York joint stock com- panies possess the following attributes, ist. They can sue and be sued in a single collective name — to wit, the name of their president or treasurer. 2d. Their property or cap- ital is represented in shares or certificates of stock, differing against the company and returned un- satisfied, no action can be maintained against individual members. Water- bury V. Merchants' Union Express Co., 50 Barb. 157; 3 Abb. Pr. N. S. 163; Robins v. Wells, i Robertson, 666. ' There may be membership in a joint stock company without a certificate of stock. Farrar v. Walker, 3 Dillon, 506. * Waterbury v. Merchants' Union Ex- press Co., supra, per BARNARD, J. In New York it is provided by statute that " whenever, in pursuance of its articles of association, the property of any joint stock association is represented by shares of stock, it may be lawful for said associations to provide, by their articles of association, that the death of any stockholder, or the assignment of his stock, shall not work a dissolu- tion of the association, but it shall con- tinue as before ; nor shall such company be dissolved, except by judgment of a court, for fraud in its management, or other good cause to such court shown, or in pursuance of its articles of asso- ciation. Said association may also, by said articles of association, provide that the shareholders may devolve upon any three or more of the partners the sole management of their business. This act shall in no court be construed to give said associations any rights or privileges as corporations. It shall be lawful for any joint stock company or association to purchase, hold, and con- vey real estate for the following pur- poses : I. Such as shall be necessary for its immediate accommodation in the convenient transaction of its business ; or, 2. Such as shall be mortgaged to it in good faith by way of security for loans made by, or moneys due to, such joint stock company or associ- ation ; or, 3. Such as it shall purchase at sales under judgments, decrees, or mortgages held by such joint stock company or association. The said joint stock company or association shall not purchase, hold, or convey real estate in any other case, or for any other pur- pose ; and all conveyances of such real estate shall be made to the president of such joint stock company or asso- ciation as such president ; and who and his successors from time to time may sell, assigfn, and convey the same free from any claim thereon against any of the shareholders, or any person claiming under any or either of them." N. Y. Rev. Sts., 7th ed., vol. 2, 1543, 1544. § II MEANING, HISTORY, AND OBJECT. 43 in no respect from shares and stock certificates in corpo- rations, 3d. The death or insolvency of a member or the sale or transfer of his interest, does not dissolve the com- pany. 4th. They have perpetual succession. 5th. They can take and hold real and personal property in a collective capacity, and in perpetual succession.^ In Massachusetts the phrases joint stock companies and corporations, organ- ized under general laws, as used in all of the statutes of that State from 1851 to 1871 inclusive, are convertible terms, and refer to the same class of corporations as distinguished from those established under special charters.* § II. History of corporations. — According to Plutarch, corporations, which it is claimed by some were invented by the Romans, were introduced in Rome by Numa, who sub- divided the two rival factions of Sabines and Romans and instituted separate societies of every manual trade and pro- fession. By the civil law they were called universitates, as forming one w^hole out of many individuals ; or collegia, from being gathered together ; and were adopted by the canon law for the maintenance of ecclesiastical discipline.^ Bodies politic and corporate are known to have existed as I— M— ^+-1 ' The New York Constitution, article rata, each subscriber to be entitled to 8, sec. 3, provides that the term corpo- sell his stock, the purchaser to be vested ration, as used therein, shall be con- with all of the rights of an original sub- strued to include all associations and scriber, and the association to last as joint stock companies having any of long as the majority of the subscribers the powers or privileges of corpora- should determine', it was held that they tions not possessed by individuals or were partners. Whitman v. Porter, partnerships. 107 Mass. 522. One holder of shares ^ Atty. Genl. v. Mercantile Ins. Co., in a joint stock company cannot main- 121 Mass. 524. But see Taft v. Ward, tain an action against another member 106 Mass. 518; Bodwell v. Eastman, who has possession of the property of Ibid. 525; Boston & Alb. R.R.'Co. v. the company, for the custody of his Pearson, 128 Id. 445; Tappan v. Bailey, proportion of such property. White- 4 Mete. 529. Where parties entered house v. Sprague, 7 Atlantic Rep. 17. into an agreement to purchase and run * i Blk. Com. 468, 469 ; Browne Civ. a ferry-boat, to be owned by them in L. 141, 142. The term college or uni- proportion to the amounts of their sub- versity was applicable to every kind of scriptions, the money received from the corporatioh. Ibid, ferry to be divided among them pro 44 MEANING, HISTORY, AND OBJECT. §11 far back at least as the time of Cicero ; and Gaius traces them even to the laws of Solon of Athens some five hun- dred years previous, which allowed the formation of com- panies at pleasure provided they did nothing contrary to public law.^ In the Digest it is said : " But those who are 1 2 Kent's Com., 9th ed. 307. " Blackstone gives the honor of the invention to Rome ; Dr. AylifFe to Athens and to Solon. The latter, I think, is right ; and the Pandects seem to confess it." Browne Civ. L. 141, note. Ayliffe (Civ. L. 196, 197) says : " Colleges had their first rise and orig- inal from the Greek law of Solon, and as such they may make laws and stat- utes among themselves." " The Gre- cian youth who attended the schools of philosophy and rhetoric listened to teachers not authorized by the State, nor formed into corporate bodies on a public foundation The State sometimes encouraged the philosopher so far as to give him an assigned and fixed seat of instruction, as the Acad- emy to Plato, and the Lyceum to Aris- totle. But their disciples did not ob- tain in consequence of their attendance any privileges similar to those of grad- uation with us ; nor was the course of study made a necessary preparative to any profession At Rome in the time of the emperors, the professors in different sciences began to receive reg- ular stipends out of the public treasury, to be authorized by the State, and to become subject to regulations and a form of discipline. Constantine, The- odosius, and Justinian seem to have been the chief promoters of these plans. The institutions for the purpose of teaching the laws, in particular, begin from the third century to offer an ap- pearance somewhat resembling modern colleges. Students of the legal schools of Rome, Constantinople, and Berytus went through a course which lasted five years and were divided into five several classes, with distinguishing names to each. During the first, or freshman year, they were called dupon- dii, a name intimating that they were yet of no value ; in the second year they read the edicts, and were called edictals ; in the third, papinzanists, their study being Papinian's works ; in the fourth, lutoi, from luein, as having a power to answer questions like our bachelors ; in the fifth, alutoi. In the nth book of the Code, tit. 18, it ap- pears that no persons, under pain of infamy and banishment, were permitted by law to teach as pubhc professors (though they might as private precep- tors in private houses), unless estab- lished by government, and that the government had established in the capitol a foundation of public profes- sorships, viz. : one of philosophy ; two of law ; three of Latin ; professorships of rhetoric ; four of grammar ; five Greek professors of logic, and four of grammar, who could not teach pri- vately, under the same penalties of exile and infamy. The honors and privileges bestowed in consequence of proficiency in science, are everywhere to be found in the Justinian law. The professors and students were exempt from civil offices and from the recep- tion of strangers ; no noisy trade could be carried on near these seminaries, which were usually called auditories ; they were free from all ordinary taxes ; and after twenty years' (some say thirty) honorable exercise of their profession were entitled to the rank of count or comes, an honor the nature and degree §11 MEANING, HISTORY, AND OBJECT. 45 permitted to form themselves into a body under the name of a corporation, society, or other community, have within their peculiar jurisdiction, as. in the similar case of the republic, property in common, a common chest or treasury, and an agent or head of the corporation or society by whom, as in the republic, whatever is necessary to be done for the benefit of the community may be transacted." ^ It is said that college {collegium), or the union of several persons for a common purpose, was by the Roman law a corporation for religious, political, and industrial purposes. There were, " from the time of Numa, or Servius TuUius, colleges of artificers, carpenters, butchers, bakers, locksmiths, potters, and, finally, of persons engaged in nearly every other branch of industry. Their original design was either to bring the old and new citizens into closer union, or, according to Plutarch, to prevent the danger of a general conspiracy, by organizing separate assemblies, festivals, and finances, for different portions of the citizens."* During the latter period of the republic they were suspected of being centres of in- of which is not clear, counts, or comites formed a fourth. The power or faculty imperatoris, being very various in sta- of teaching- these was bestowed by the tion, power, and honor There State to the seminary ; by the seminary was at Constantinople, besides a col- to the individual, and hence in process lege for the study of the law, one for of time these branches of learning came the liberal arts ; and both there and at to be csW^A faculties ; and the criterion Alexandria were celebrated colleges of or essential difference of a university physicians." Browne's Civ. L. 152, was the power and license of teaching 164. Special merit is due to the civil the four faculties the supposed compass law for the advancement and encour- of universal knowledge." Ibid. 152, agement of seminaries of learning, " for note. it was at first owing to that inordinate ■ Dig., lib. 3, tit. 4. and universal passion which seized ^ New Am. Cycl., tit. College. A mankind, after the discovery of the writer in the same work, however, under Pandects at Amalifi, for the study of the head of Corporation, suggests that the law, that such members flocked to the alleged division of the citizens of tne universities where it was taught. Rome into separate societies, according The objects of study in these revered to their trades, as alleged by Plutarch, communities were divided into four isprobably fabulous, and says that, even branches : divinity, law, and physic if authentic, it was a mere classification composed three of these ; and the arts of the people without any of the essen- and sciences cemented under one head tial incidents of a corporation. He 46 MEANING, HISTORY, AND OBJECT. § II trigue, and the senate ordered the dissolution of those that had been newly formed. They were revived during the civil wars, and afterward suppressed, first by Caesar and then by Augustus, but seem to have been encouraged in the Byzantine empire.^ The communities styled perpetual, were distinct from those societies or communities which the civil law treated under the title of society or partnership ; these last being for the interests of particular men, without any necessary foundation on the sovereign authority, and were only for a certain time, or at least only for the life of the persons thus associated. " There were several perpet- ual corporations at Rome which were either confirmed by the decrees of the senate, or else by imperial constitu- tions."* The Romans had no notion of sole corporations. With them, the number three was requisite, though a cor- poration originally consisting of three persons, might still subsist when reduced to one.^ In England the legal principles on the subject were bor- rowed chiefly from the Roman law, and from the policy of the municipal corporations established in Britain and the other Roman colonies ; the powers, capacities, and incapac- ities of corporations under the English law very much re- sembling those under the civil law. The most ancient secular corporations established directly by the king's charter were guilds or incorporated companies of merchants, traders, and artisans ; and the practice of incorporating towns by charter was probably introduced in imitation of these com- thinks that " the true original of corpo- ^ i BIk. Com. 469; Wood, Civ. L. rations is to be found in the middle 135 ; Edinburgh Encycl., tit. Corpora- ages, when cities, towns, fraternities of Hon. Ayliffe (Civ. L. 205) says : tradesmen, and the like, obtained char- "Though all the persons of a body ters from feudal sovereigns of certain politic be changed, yet the corporation privileges and immunities, sometimes ' still remains the same ; yea, if there be for the protection of personal liberty, but one person remaining of the whole and sometimes for the advantage of corporation, the name and right of the trade, the latter being in the nature of corporation are preserved in that one a monopoly." person, though a corporation cannot at 'Ibid. ° Ayliffe, Civ. L. 196. first consist of one person." §11 MEANING, HISTORY, AND OBJECT. 47 panies. Among other franchises conferred on the inhabit- ants of towns by ancient charters was frequently that they should \\2Mt gildam mercatorium, or a merchant guild, which constituted them a corporate body, gilda signifying an in- corporate brotherhood or company ; for which reason the place of their meeting was called the guild hall. Sir Edward Coke mentions that he had seen a charter made by Henry I. to the weavers of London, by which the king granted to them that they should have gildam mercato- rium ; and a confirmation of it by Henry H.^ In MoUoy's ' lo Co. 30, a.b.; i Rol. 513 ; Kyd on Corp. 63. " During the latter part of the Saxon period, and for some time after the Conquest, the great nobles claimed and exercised prerogatives within their own demesnes, similar to those which the king exercised within those of the crown ; and of these it is certain that the power of conferring corporate privileges on their towns was one. There are many instances of towns within the demesnes of the feudal barons which had enjoyed such privi- leges by charters from their immediate lords, and having come to the crown by escheat, have had these privileges con- firmed and others added to them by frequent charters from the king. The whole history of the incorporation of towns in every country in Europe proves that the king did not exclusive- ly possess this prerogative. The in- habitants were originally tlie tenants or dependents either of the king, or of some particular nobleman on whose demesne they resided, and the superior, whether king or lord, exacted from them not only a rent for the lands which they possessed, but various tolls and duties for the goods which they exchanged with their neighbors. These exactions, which had at first been precarious, were gradually ascertained and fixed either by long custom, or by express regula- tions. But as, on the one hand, many artifices had frequently been practised in order to elude the payment of those duties, and as, on the other hand, the persons employed in levying them were often guilty of oppression, the inhabit- ants of particular towns, on their in- creasing in wealth, were induced to make a bargain with the superior by which they undertook to pay a certain yearly rent in the room of all his oc- casional demands ; and these pecuniary compositions being found expedient for both parties, were gradually extended to a longer period, and at last rendered perpetual. An agreement of this kind seemed to have suggested the first idea of a borough considered as a corpora- tion. Some of the principal inhabitants of a town undertook to pay the superior yearly rent, in consideration of which they were permitted to levy the old duties, and became responsible for the funds committed to their care. As managers of the community, therefore, they were bound to fulfil its obligations to the superior, and by a natural ex- tension of the same principle it came to be understood that they might be prose- cuted for all its debts ; as on the other hand, they obtained, of course, a right of prosecuting all its debtors. The society was thus viewed in the light of a body politic or fictitious person capable 48 MEANING, HISTORY, AND OBJECT. § II Maritime Law * it is said : " To engage persons of rank and fortune in trade, that industrious nation, the Burgundians, procured the association or incorporation by John, Duke of Brabant, of the ancient company of The Adventurers, in the year 1 248, which was then called The Brotherhood of St. Thomas k Becket of Canterbury, which, being after- ward translated into England, was by Edward the Third confirmed, and by his successors, Henry the Fourth, Henry the Fifth, Edward the Fourth, Henry the Sixth, Richard the Third, and King Henry the Seventh, who gave them the name of Merchant Adventurers ; and from him success- ively hath their charter been confirmed down to and by his late sacred majesty. King George the Second. And as this society is of ancient estimation, so is their government very commendable." The East India Company was incorpo- rated in 1599.** It is said that the first appearance in England in any docu- ment of the terms corporation and incorporation was early in the 15th century, in the reign of Henry the Fourth.^ Col- of legal deeds, and of executing every settled as clear law." i Kyd on Corp. sort of transaction by means of trustees 42, 43, 44. or guardians That the king, "Vol. 2, pp. 311, 312. however, was very soon after the Con- ' Ibid. quest understood to possess the ex- ' " Private corporations for commer- clusive prerogative of erecting guilds or cial purposes have been known as long incorporate companies, appears from at least as the institution of the civil this circumstance, that many such com- law ; but it has been reserved to our panics were suppressed about that own times to see them so enlarged and period, as adulterine guilds, that is, multiplied as to engross to themselves guilds set up without the king's warrant almost exclusively many of the most or authority. In the time of Bracton, important branclies of industry and who lived in the reigns of Henry the commerce. The advancement of the Third and Edward the First, the king's arts and sciences, and of the wants of prerogative as to the exclusive right of men, has opened up so many new and granting liberties and franchises in important means for the benefit of general, seems to have been fully es- mankind which cannot, from their na- tablished ; and the absolute necessity ture, be accomplished by individual re- of his assent to the erection of any cor- sources and skill, that the aggregation poration, was held in the reign of of capital and a combination of ener- Edward the Third to have been long gies have been found indispensable to § II MEANING, HISTORY, AND OBJECT. 49 leges and universities began to assume their present form upon the revival of letters in Europe. The time has been put as late as the 13th century, when first occurs some ob- scure mention of academical degrees ; though their origin has been attributed to Peter Lombard at Paris, and Gratian at Bologna, the former of whom lived in the nth, and the latter in the 12th century. It is not improbable that " dur- ing those two centuries they might have been undergoing a gradual change from common schools in cathedrals and monasteries, where for the most part grammar only was taught, to colleges in the 13th century, when they began to confer degrees. There were at Oxford, as early as the ninth century, numerous students and professors who read lectures in grammar, rhetoric, divinity, philosophy, arith- metic, geometry, and astronomy ; but the school was not founded or endowed, or furnished with power to bestow public distinctions on learning."^ Business similar to what is now known as banking is claimed to have been exercised in the reign of Sennacherib seven hundred years before the Christian era. In the New York Metropolitan Museum there are Babylonian tablets containing records of such transactions, the earliest tablet being of the year 601 B.C.** The term bank, from the Italian banco, a bench, is said to have originated from the practice of Jews in the towns of Italy to lend money seated the accomplishment of objects never courts." Caton, C. J., in St. Louis, before thought of, and which so evi- Alton & Chicago R.R. Co. v. Dalby, 19 dently mark the rapidly advancing civ- 111. 353. ilization of the present age. Formerly 'Brown's Civ. L. 151, 152, note. the ends to be accomplished for the "The title bachelor, baccalaureus, good of society rarely required the com- from bacca Iduri, military order, or binationof the capital and skill of many knight bachelor, sometimes meant a individuals, and but few private corpo- young cavalier who had served one cam- rations were created, and these cut so paign, and who might be said to have small a comparative figure in the des- arrived at the first step or degree of tinies of States, that they attracted but arms." Ibid. 154, note. little attention on the part of the law- ' Library of Useful Knowledge, vol. makers, and were little studied by the 2, p. 186. VOL. I.— 4 50 ^V^- MEANING, HISTORY, AND OBJECT. § II on benches in the public market. The Chamber of Loans, the first regular banking establishment known in Europe, was created at Venice, about the middle of the 12th cen- tury, to relieve the embarrassed finances of the republic caused by expensive wars. This institution, the plan of which was gradually improved, afterward became the cele- brated Bank of Venice, and it remained in existence until the destruction of the republic in 1797. It always main- tained a high character in Europe, and during two centuries and a half was unrivalled. In 1401 a bank, called "The Table of Exchange," was established in the city of Barce- lona. Six years later the Chamber of St. George, or Bank of Genoa, was organized; and on the 31st of January, 1609, The Bank of Amsterdam. The Bank of Hamburg was created in 1619; The Bank of Rotterdam in 1635; and The Bank of Stockholm in 1688. The Bank of Eng- land, which was projected by William Paterson, a native of Dumfries-shire in Scotland, on the model of the Bank of Genoa, was established in 1 694, pursuant to an act of Par^ liament^ which authorized their majesties to grant a com- mission Jo take subscriptions from individuals and to incor- porate them.^ A bank was hot established in Paris until 1716.^ In England, "the first class of joint stock companies subject to distinct legislative enactment were joint stock banks of issue beyond the distance of sixty-five miles from London ; and subsequently all joint stock banking com- panies consisting of more than six persons established after May 5th, 1844, were regulated by an act passed in that year. This measure continued in force until 1857, when a statute was passed subjecting companies formed under the last mentioned act, and any new companies, with some ' 5 William & Mary, ch. 20. ^ See argument of counsel in People v. Utica Ins, Co., 1 5 John^. 367. ' Edinburgh Encycl., tit. Bank. § II MEANING, HISTORY, AND OBJECT. 51 slight modifications, to the regulations ordained for other companies by the joint stock companies' act. In the fol- lowing year, joint stock banks were permitted to register with limited liability, a privilege previously withheld from them. Banking companies registered under the act of 1857 are now registered under the companies' act ; and all joint stock banks formed since November 2d, 1862, con- sisting of more than ten persons, must be formed and registered under its provisions, unless established under a special act or letters patent." * ' Smith's Mercantile L., 9th Eng. Ed. 57. Amendatory acts were passed in 1867, 1877, and 1879. In Van Sandam V. Moore, i Russ. Ch. 441, which was tried in 1826, Chancellor Eldon, in commenting upon the legal history of joint stock companies, and on the pro- visions which had been introduced into acts of Parliament creating or regulat- ing such companies in order to give effect to legal proceedings to which they were parties, said : " It is quite clear that in a commercial country like this there may be many undertakings and enterprises to which individual powers of mind or purse may be quite unequal ; and for such cases the consti- tution of the country has provided by giving the means of creating corporar tions. It is within my own memory that, when an application was made to Parliament to incorporate bodies, it was generally met with this short answer : • Why have you not gone to the Crown with your requests ? why have you not obtained a charter ? ' However, that mode of thinking has gone by, and sev- eral acts of Parliament have been passed establishing companies similar to this one. There were not many of those acts passed before inconveniencies were found to follow. If a man had occasion to bring an action against one of the bodies so constituted, he did not know how to proceed, or against whom to bring his suit; and if he brought it, naming the defendants who were known to him, he was treated with a plea in abatement, which was a check- mate to his action. To meet this in- convenience, it became necessary to introduce into those bills a clause that the company should sue and be sued by their clerk or secretary. It was soon found that this provision did not set the matter right. The secretary, on behalf of the company, sued a man of opulence, and, if he succeeded, he recovered not only judgment, but pay- ment of the demand. On the other hand, when the secretary was sued, the person suing found that, though he had gotten an individual with whom he could go into a court of law or equity in order to enforce a claim against him as defendant, yet, after he had gone thither, he frequently found that it would have been better for him not to have stirred ; for though the secretary, when he was plaintiff, got the money for which he sued, he was often unable, when made defendant, to pay what the plaintiff recovered. That state of things suggested to a learned lord the necessity of making all the members liable, as well as the secretary, for a de- mand against the company. Thus there arose a third class of acts of Par- 52 MEANING, HISTORY, AND OBJECT. § II In this country the first bank, called " The Bank of North America," was incorporated by an ordinance of the Continental Congress, passed Dec. 31, 1781 ; and the first Bank of the United States in February, 1791.^ liaraent establishing companies ; acts which made all the members, as well as the secretary, liable to answer de- mands recovered against the "company. Still this was not enough. For as these acts did not provide the means of letting the world know who the mem- bers were, the consequence was that, though all the members were liable, nobody who had a claim against them could tell who the persons were that were thus liable. Another improve- ment was therefore made. A proviso was introduced requiring that before a company was formed, or within a given time afterward, there should be a register or enrolment of the individuals of whom the company was composed; and it was thought that thus at last the work had been done completely, and that all was safe. Unfortunately, how- ever, it turned out, in consequence of sales and transfers of shares, that a per- son who was a member of the company to-day, was not a member of it to-mor- row ; the constituent members of the body were constantly changing; and a plaintiff did not know against whom to proceed, whether against the present or against former members. A further alteration was then made, the effect oi which was that those who had been members should continue liable, al- though they had transferred their inter- est, and that those who became mem- bers should also be liable, an enrolment of the names both of the one and the other being required. This had a very considerable operation, and it was won- derful to observe how much, after it was adopted, the passion for becoming members of these companies dimin- ished. One thing was still wanting. If the members of these bodies happened to quarrel among themselves (which, though they came harmonieusly to- gether, was very likely to happen), how were they to sue one another ? And it was not until the latest stage of im- provement that that difficulty was pro- vided for. I believe it was in the act regulating the new banking estab- lishments in Ireland (5th Geo. 4, ch. 73) that provisions were for the first time made to meet all these difficulties ; and similar provisions now form part of the regulations which are likely tp take place in the banking establish- ments in England now in contempla- tion. There were some (and many, too) whose opinions were very well deserving of attention, who declared that if bodies were formed on such principles, they could not, in the courts of this country, and according to the laws of the country, effectually demand what they had a right to demand, or be effectually sued for that for which they were liable. The very circumstance of the existence of that inability or inca- pacity, and the inconvenience or im- practicability of dealing with them in a court of justice; proved bodies of that kind to be illegal at common law. It was to make them legal that acts of Parliament were passed containing one or more of the series of provisions which I have mentioned.' ' New Am. Cycl., tit. Ban/b. A suc- cinct account of the early history of the business of banking in the State of New York is given substantially as fol- lows by COMSTOCK, J., in' Curtis v. Leavitt, 15 N. Y. 9: " In the year 1791 an act was passed to incorporate the stockholders of the Bank of New York, § 12 MEANING, HISTORY, AND OBJECT. 53 § 12. Object and use of corporations. — The end sought to be attained by an act of incorporation is usually such as re- quires for its successful accomplishment the combined en- terprise and pecuniary resources of a number of individuals which became the model of some forty other institutions specially chartered prior to the year 1835. These banks were authorized to carry on the busi- ness of banking in general terms with- out specification of the power to issue bills or any other banking power. They were unrestricted in the exercise of any of their powers except that of contract- ing debt, which, over and above the specie in their vaults, was not to ex- ceed three times the capital subscribed and actually paid in. The debt might be contracted in the issue of currency for circulation or otherwise, the amount only being limited. There was a pro- hibition also against trading in mer- chandise and stocks The sol- vency of banks was only guarded by these two provisions It was a most imperfect system, not for the par- ticular reason that a bank might be- come insolvent in the exercise of the debt-creating power, whether by issues payable on demand or by time engage- ments, but because in the event of insolvency the currency circulating through the community would not be redeemed In the year 1825 two bank charters were granted, and no others until 1829 Some new provisions were introduced, one of which required that fifty per cent, of the capital stock should be actually paid in. But the system remained un- changed. In the year 1827 a general act was passed, which took effect in January, 1828, and became incorpo- rated in the revised statutes applicable only to existing banks. In this statute are some new regulations concerning the management of banking corpora- tions directed to special abuses, but no change in the system. The evils and abuses of such a system gave rise also to another code of regulations elaborately prepared, which took effect at the same time (1828), applicable to future charters and charters which should be renewed in future. This was the act to prevent the insolvency of moneyed corporations. This code, as well as the one applicable to exist- ing banks, recognized in very unam- biguous language a distinction between bills and notes for circulation payable on demand without interest and de- mands of a different character bearing interest. It omitted the provision lim- iting the amount of debt, but required the whole capital to be paid. Reports were required to be made to the con- troller, and a series of new and strin- gent regulations were laid down. The principles of bank legislation, however, remained unchanged The safety fund act of 1829 took a feeble step in the right direction by establishing a specific fund for the redemption of the circulating notes of insolvent institu- tions This act limited the is- sues for circulation to twice the amount of capital paid in, and, for the first time in the legislation of this State, it prohibited the issue of bills and notes unless payable on demand. The act was only applicable to future charters or previous ones to be re- newed The legislature in 1837 reduced banking to a private business, except in the department of creating a circulating medium, and, as a private business, left it absolutely without re- straint or control. Any person or as- sociation could deal in bullion, could habitually lend money, could receive 54 MEANING, HISTORY, AND OBJECT. § 12 clothed with the powers and functions of an artificial being.^ The purpose must relate to something deemed beneficial to the public ; and this benefit constitutes the consideration and, in most cases, the sole consideration of the grant* A duty is imposed on government to supply the public wants in this regard ; and, as experience has shown that a State should not directly attempt to do this, it is necessary to confer on others the faculty of doing what the sovereign power is unable or unwilling to undertake.* Accordingly corporations are created, which, although they may be di- rectly and perhaps mainly promotive of private interests, yet will also secure the union and contribution of several persons in carrying out designs of general utihty.* Indi- viduals who desire unitedly to employ their money perma-- nently in some useful project, finding it impossible to do deposits, discount notes and bills, and with these banking powers could run in debt, borrow money, and execute every species of obligation except cir- culating notes, just as a private person could do. But it remained for the leg- islature of 1838 to complete the work thus begun The cardinal point was to render the circulation absolutely secure. This was accomplished by pro- viding for a deposit of mortgages and stocks, dollar for dollar, and by leaving the restraining laws in force as to all issues for currency not thus secured. Connected with this fundamental measure was the policy adopted by the legislature of 1837 as to other modes of banking, of permitting indi- viduals and associations to issue their notes on giving the required security. This was also done. The next grand idea was to leave banking in all its other operations with the few'est pos- sible restraints, and to permit it to be carried on like other branches of busi- ness. This, too, was accomplished. These were the great features of the organic act of 1838." ' See remarks of Lord Eldon in Van Sandam v. Moore, i Russ. 441. ' " It may often be convenient for a set of associated individuals to have the privileges of a corporation bestowed upon them ; but if their object is mere ly private or selfish, — if it is detrimental to or not promotive of the public good,^^ they have no claim upon the legislature for the privilege." Ro ANE, J., in Currie V. Mu. Assoc. Soc, 4 Hen. & Munf. 315. * The Binghamton Bridge, 3 Wall. 51, per Davis, J. *. Eminent political economists have objected to corporations created fof the benefit of particular branches of trade and manufactures as against pub- lic policy on the following grounds : 1st, the obstruction of the free use and circulation of labor ; 2d, the limitation of competition ; 3d, the facility afforded to combinations among tradesmen fof the purpose of defrauding the public. The Subject is fully discussed in Dr. AdaHi Smith's Wealth of Nations. § 12 MEANING, HISTORY, AND OBJECT. 55 this securely and certainly without an act of incorporation, apply to the legislatui:^ specifying their object and offering to advance the necessary funds to make it a success pro- vided they are granted a charter. The proposition is con- sidered and approved. The benefit to the public is regarded as an ample compensation for the powers conferred, and the corporation is created.^ A mere association of individ- uals lacks coercive power to form and enforce its laws and rules of conduct ; and when the members are dispersed by death, the privileges or immunities of the association can- not be transferred to others. So with reference to holding property. If land be granted to a number of persons not incorporated, there is no legal way of continuing the prop- erty to any other persons for the same purposes, except by endless conveyances.^ But when they are consolidated and united into a corporation, they and their successors are con- sidered as one person in law ; and the privileges and immu- nities, estates and possessions of the corporation, when once vested in it, will be vested in succeeding members without any new conveyance. It is chiefly for the purpose of cloth- ing bodies of men in succession with certain qualities and capacities that corporations were invented and are in use. ' Dartmouth College v. Woodward, the same property may be continued in 4 Wheat. 636, per Marshall, C. J. succession to any community through ^ " There is certainly no metaphysical an indefinite period The rule difficulty attending the transmission of may perhaps have arisen from the law landed property through a series of in- Of joint tenancy and its incident of sur- dividuals in their collective capacity vivprship, by which, if land be pur- without the support of a positive insti- chased by several to them and their tution. It has, however, been long an heirs, it does not go to the heirs of all, established maxim of the EngUsh law but to the heirs of the survivor. This, that land granted to a community or however, is not altogether a satisfactory aggregate body of men not incorpo- derivation of the rule ; for a purchase rated, cannot, by virtue of the original by a community would be in its col- grant alone, be transmitted to their lective capacity, with an intention to successors. It is difficult to account transmit the property, not to their heirs, for the establishment of this rule. It but to their successors. Perhaps we can hardly be supposed to have been must be satisfied with stating the rule introduced on reasons of political ex- as it is, without attempting to account pediency ; for by renewed conveyances for its origin." i Kyd on Corp. 6, 7. 56 MEANING, HISTORY, AND OBJECT, § 13 By these means a perpetual succession of individuals is capable of acting for the promotion of the particular object like one immortal being. As one person, they have one will, which is collected from the sense of the majority of the corporators. This decision by a "majority is a funda- mental law of corporations. It is also a fundamental prin- ciple of these institutions that this majority may establish rules and regulations which are a sort of municipal law for the body corporate, subject only to the superior law pre- scribed by the legislature which grants the privilege.^ § 13. Multiplication of corporate bodies. — Corporations for a considerable period after their introduction were seldom created for any other than municipal purposes, and gener- ally by royal charter. It is mainly due to very recent times that the law appertaining to the subject has been so modi- fied, liberalized, and enlarged, as to constitute the present important and deeply interesting branch of jurisprudence.^ The rapid growth of the United States in population and wealth, and the amazing progress made in useful inventions and in all the arts of civilized life, have occasioned a con- stantly increasing demand for corporations, not only in the business of commerce, manufactures, and the various details of internal improvement, but in the most diversified pur- suits. It is, therefore, scarcely exaggeration to say that " these institutions have so multiplied and extended within a few years, that they are connected with, and in a great degree influence, all the business transactions of this coun- try, and give tone and character to some extent to society itself." ' ' Currie v. Mu. Assoc. Soc, su- erpool Ins. Co. v. Massachusetts, 10 pra. Wall. 566. ^ See opinion of Miller, J., in Liv- ' Church, J., in Goodspeed v. East Haddam Bank, 22 Conn. 530. CHAPTER 11. KINDS OF CORPORATIONS. j 14. General classification. 1 5. How primarily divided. 16. Public corporations. 17. Private corporations. § 18. Ecclesiastical corporations. 19. Incorporated religious societies. 20. Eleemosynary corporations. 21. g«a« corporations. § 14. General classification. — Corporations, with reference to their objects, may be considered as belonging to one of three classes. The first are such as, although they involve to some extent private rights, yet are strictly public. The right of the legislature to establish, alter, or abolish pub- lic corporations is derived from their nature, for all munic- ipal regulations must be subject to the absolute control of the government in furtherance of the public needs ; and their existence is not based upon or the result of contract, the purposes of their creation and their duties being incom- patible with everything of that kind.^ The second class of corporations are such as have public obligations to discharge which are undertaken in consideration of certain benefits allowed and secured to the members. In cases of this kind there is something like a contract between the legislature and the corporation, though one of imperfect obligation 1 See Tinsman v. Belvidere R.R. Co., constitution ; but only a privilege, per- 2 Dutcher, N. J., 148; Davidson v. New mit, or license, subject to withdrawal York, 27 How. Pr. 342 ; Barnes v. Dis- whenever the legislature, in the exer- trict of Columbia, 91 U. S. 540 ; Martin cise of the police power of the State, V. Dix, 52 Miss. 53. A right to sell lot- may deem its continuance prejudicial tery tickets, conferred in the charter of to the public morals, or to the general a corporation, is not a contract within welfare of society. State v. Morris, ^j the meaning of the federal or of a State N. C. 510. 58 KINDS OF CORPORATIONS. § 14 with respect to the former, and subject to be dealt with by the legislature as the public good may require, a just com- pensation being required for any private property which may be taken for a public use. The third class of corpo- rations are such as, though they are beneficial to the public, have no immediate concern with it, the sole object being the personal emolument of the members.^ ' McKim V. Odom, 3 Bland Ch. 407. In this case the chancellor gave sub- stantially the classification adopted in the text, but not precisely in the same order, as follows : " The first kind of corporations is such as by assuming some of the duties of the State in a par- tial or detailed form, and having neither power nor property for the purposes of personal aggrandizement, can be con- sidered in no other light than as aux- iliaries of the government, and conse- quently as the secondary and deputy trustees and servants of the people. The right to establish, alter, or abolish such corporations seems to be a prin- ciple inherent in the nature of the in- stitutions themselves ; since all mere municipal regulations must, from the nature of things, be subject to the abso- lute control of the government. These institutions, being in their nature the auxiliaries of the government in the business of municipal rule, cannot have the least pretension to sustain their privileges, or their existence, upon any- thing like a contract between them and the government ; because there can be fit) reciprocity of Stipulation,and because their objects and duties are incompat- ible with everything of the nature of Such a compact The second Class of corporations are such as have no concern whatever with the duties of the republic, nor are in any manner bound to perform any acts for its ben- efit ; but whose only object is the per- sonal emolument of its members. The corporators in such institutions may also in some sense be considered as trustees. But then even in that char- acter they are the mere factors of indi- viduals, and therefore their resignation or removal cannot divest or alter any of the rights of individuals they repre- sented The third species of cor- porations partake in many respects of the nature of the first two classes, and are such as have a concern with some of the expensive duties of the State, the trouble and charge of which are under- taken and'defrayed by them in consid- eration of certain emolument allowed and secured to their members. In cases of this kind there are certain- ly many of the material features of a contract between the government and the corporation ; there is mani- festly a gui'd pro quo. But this con- tract, if it be so, is, and of necessity must be, like all others to which a gov- ernment or State is a party, one of im- perfect obligation as regards the State, and as such to be dealt with by the government of the State as the public good may require, on making a just compensation for any private property which may be taken for a public use. No bodies politic of this description were ever created under the provincial government. But since our independ- ence a great number of them have been Called into existence — such as canal companies, bridge companies, turnpike fOad companies, etc." Ayliffe (Civ. L. 196, 197), speaking of corporations under the civil law, says : " The first sort of corporations has re- § 15 KINDS OF CORPORATlOire. 59 § 15. How primarily divided.— Corporations are either ag- gregate or sole. The former consist of many persons united into one society, and kept up by a perpetual succes- sion of members, as the mayor and commonalty of a city ; or such as are not municipal, and have a consolidated capi- tal devoted to some enterprise for the promotion of private interests, as trading, insurance, manufacturing, turnpike, bridge, canal, railroad, banking, and literary, religious, and charitable associations. A corporation sole consists of one person only, and his successors in a particular station, in order to give him some legal capacities and advantages, particularly that of perpetuity. In this sense, in England, the reigning sovereign is a sole corporation, " to prevent, in general, the possibility of an interregnum, or vacancy, of the throne, and to preserve the possessions of the crown entire." ^ So is a bishop, parson, vicar, and some deans and prebendaries ; ** and the chancellor, regius professors of law and Hebrew, and reader of divinity in the University of Oxford, are respectively corporations sole.^ The governor of a State is a corporation sole, being so constituted by the organization of the State government, and not by any particular statute.* When bonds are di- spect unto such persons whose principal laws given thereuntd. But a comma- business regards religion— as chapters nity is a more general term." In Texas of cathedral of collegiate churches, private corporations are declared by monasteries, and the like ; and these are statute to \st of three kinds: 1st, re- Styled ecclesiastical corporations. The ligious ; 2d, for charity or benevolence J second Class of communities extends 3d, for profit. In Michigan, superin- itself to those persons who have to do tendents of the poor are declared to be a with temporal affairs only-^^s the civil Corporation, and to possess the usual government of cities, towns, etc., which powers of a corporation for public pur- is styled the corporation of such a city, poses. Comp. Laws of Mich, 1871, town, and the like ; and inferior unto p. 603. these we may reckon the colleges and ' i Blk. Com. 470. corporations of merchants, tradesmen, " Brice's Ultra Vires, by Green, 2d and artificers usually called companies. Am. Ed. 17. .... The WOfd corpus denotes any 'King v. Baylay, i B. & Ad. 761, Corporation of body politic whatsoever 770. which is authorized by charter or pre- * Polk v. Pluftjmer, 2 Humph. 500. scription and governed by particular " The governor constitutes the execu- 6o KINDS OF CORPORATIONS. §15 rected to be made payable to him in his official capacity, they are payable to him as a corporation sole as to that particular transaction.^ Where a minister of a parish is seized of lands in right of the town or parish, he is for this purpose a sole corporation, holding the lands to himself and his successors ; and in case of a vacancy in the office, the parish is entitled to the custody of the same, and for that purpose may enter and take the profits until there be a suc- cessor.' In Massachusetts, by the provincial statute of 28 live department of the State. It is one of his duties, among many others, to see that the laws of the State are executed and obeyed. This is a great and fundamental duty, without the ob- servance of which society might and would necessarily be gfreatly distracted, and the proper security of life, liberty, and property be seriously endangered for the purpose of enforcing the execu- tion of the laws, and the protection of the State from rebellion and invasion. He is the commander of the forces of the State. To hold that there can be an interregnum in this office would be to hold to temporary anarchy in the State, and, in order to hold that there is no such interregnum, we must hold that , the governor, as such, never dies. To do this, he must be a corporation sole with succession in office." Gov- ernor V. Allen, 8 Id. 176, per TURLEY, J. " That a State is a corporation, can- not be doubted. It is a legal being, capable of transacting some kinds of business, like a natural person, and such a being is a corporation." Bron- SON, J., in State of Indiana v. Woram, 6 Hill, 33, referring to People v. As- sessors of Watertown, i Id. 620. In North Hempstead v. Hempstead, 2 Wend. 135, Savage, C. J., said : " The State of New York owns a large quan- tity of land which belongs to the peo- ple of the State not in, their individual, but in their political capacity. The people, therefore, are not tenants in common in those lands, and an entry upon the lands without the license of the corporation (the State) would be a trespass." ' Ibid. ^ Weston V. Hunt, 2 Mass. 501 ; Brunswick v. Dunning, 7 Id. 445 ; Over- seers V. Sears, 22 Pick. 125. In Eng- land, "at the original endowment of parish churches, the freehold of the church, the church yard, the parsonage house, the glebe, and the tithes of the parish, were vested in the then parson, by the bounty of the donor, as a tem- poral recompense to him for his spirit- ual care of the inhabitants, and with intent that the same emoluments should ever after continue as a recompense for the same care. But how was this to be effected ? The freehold was vested in the parson; and if we suppose it vested in his natural capacity, on his death it might descend to his heir, and would be liable to his debts and in- cumbrances ; or, at best, the heir might be compellable, at some trouble and expense, to convey these rights to the succeeding incumbent. The law, there- fore, has wisely ordained that the par- son, quatenus parson, shall never die, any more than the king, by making him and his successors a corporation. By which means all the original rights of the parsonage are preserved entire to his successor." i Blk. Com. 470. §15 KINDS OF CORPORATIONS. 6 1 Geo. 2, ch. 9, the ministers of the several Protestant churches were made sole corporations capable of taking in succession any parsonage lands granted to the minister and his successors, or to the use of the ministry. And no alien- ation of any parsonage lands held by succession was valid any longer than he continued minister, unless, being minis- ter of some particular town, district, or precinct, or being a minister of some Episcopal church, the alienation was made with the consent of the vestry.^ It was said that there had been no instance of a sole corporation in Massachusetts, except that of a person seized of parsonage lands to hold to him and his successors in the same office in right of his parish ; that there had been some instances in which certain public officers were empowered by statute to maintain ac- tions as successors, such as judges of probate, and county and town treasurers ; but that it was only where it had been expressly provided by law.^ In the State of New York the supervisor of a town is a corporation sole, his power as such being derived by implication from the act creating the of- fice, and prescribing its duties.^ Under the general bank- ing law of New York of 1838, an individual banker was held not to be a corporation ; * but an officer or other per- son authorized to hold real and personal property to him and his successors, would be a sole corporation.^ An English writer divides sole corporations into two kinds : those where the person so denominated has a cor- porate capacity for his own benefit ; and those where he acts only as a trustee for the benefit of others. Of the latter kind he instances the chamberlain of the city of London, *' who may take a recognizance to himself and his successors ' Weston V. Hunt, ™/ra:. Wend. 109; People v. Morris, 13 Id. ^ Overseers v. Sears, supra. 355 ; Thomas v. Dakin, 22 Id. 102. 'Jackson v. Hartwell, 8 Johns. 425 ; "Codd v. Rathbone, 19 N. Y. 37; Jansen v. Ostrander, i Cowen, 670; Bank of Havana v. Magee, 20 Id. 355 ; North Hempstead v. Hempstead, 2 Hallett v. Harrower, 33 Barb. 537. ' Thomas v. Dakin, 22 Wend. 102. 62 KINDS OF CORPORATIONS. § IS in his politic capacity in trust for the orphans." * Among the political institutions of England there are many in- stances of the appropriation of particular revenues to the maintenance of a single person filling some particular sta- tion ; and as these revenues belong to the person not in his natural capacity, but in his public character, the right to them after his death vests of course not in his natural rep- resentative, but in the person who succeeds him in his office. Such persons, therefore, necessarily have in their political capacity perpetual succession resembling that of corporations ; and to give effect to this succession they must also necessarily have the capacity of suing and being sued in right of the office they hold distinct from their capacity of suing and being sued as private individuals. There are also instances of persons who hold particular offices, with power to act in their public character as trustees for others, which involves the necessity of their having perpetual succession, and the power of suing and being sued in their public character as far as their trust is concerned.^ "A bishop or parson acting in a corporate capacity, and holding property to him and his successor in right of his office, has no need of a corporate name, he requires no pecu- liar seal, he performs all legal acts under his own seal, in his own name, and name of office ; his own will regulates his acts, and he has no occasion for a secretary, for he need not keep a record of his acts ; no need of a treasurer, for he has no personal property except the rents and proceeds of the corporate estate, and these he takes to his own use when received. By-laws are unnecessary, for he regulates his own action by his own will and judgment, like any other in- dividual acting in his own right. Such a person holding an estate as a sole corporation dies or resigns his office ; the fee is in abeyance until a successor is appointed. The in- cumbent holds the property to his own use and benefit ' I Kyd on Corp. 20, ^ Ibid. § 15 KINDS OF CORPORATIONS. 6;^ whilst he retains the ofifice, and afterward the estate and the enjoyment of it go together to his successor. The trans- mission of the estate is perpetual, but the beneficial enjoy- ment changes at each succession. On the other hand, a corporation aggregate has a perpetual existence without change, so that an estate once vested in it continues vested without interruption. From this flows one necessary but obvious legal consequence, which is, that a grant to an aggre- gate corporation carries a fee without the word successors ; while a grant to a corporation sole without including suc- cessors carries a life estate only to the actual incumbent who is the first taker." ^ Another well-settled distinction is, that by the common law a sole corporation cannot take personal property in suc- cession, and that its corporate capacity is confined to real estate. An a^jgregate corporation may take personal prop- erty for itself and its successors. Blackstone says that the reason why a sole corporation cannot do this, is that such movable property is liable to be lost or embezzled, and would raise a multitude of disputes between the successor and executor.* A corporation sole may by statute take per- ' Overseers v. Sears, 22 Pick. 125. it for the benefit of the aggregate so- ' According to Blackstone, if a sole ciety of which he is in law the represen- corporation " be the representative of a tative. Whereas in the case of sole cor- number of persons, as the master of a porations which represent no others but hospital, who is a corporation for the themselves, as bishops, parsons, and poor brethren, an abbot or a prior by the like, no chattel interest can regular- the old law before the Reformation, ly go in succession ; and, therefore, if a who represented the whole convent, or lease for years be made to the bishop the dean of some ancient cathedral, of Oxford and his successors, in such who stands in the place of and repre- case his executors or administrators sents in his corporate capacity the and not his successors shall have it. chapter, such sole corporations as these. For the word successors when applied have, in this respect, the same powers to a person in his political capacity, is that corporations aggregate have to equivalent to the word heirs in his take personal property or chattels in natural This is not the case in succession. And, therefore, a bond to corporations aggregate, where the right such a master, abbot, or dean, and his is never in suspense ; nor in the other successors, is good in law; and the sole corporations before mentioned, successor shall have the advantage of who are rather to be considered as 64 KINDS OF CORPORATIONS. § 16 sonal property by succession. Mr. Kent mentions the case of a treasurer or collector who is sometimes created a cor- poration sole for the purpose of taking bonds and other per- sonal property to him in his official character, and of trans- mitting the same to his successor.^ § 16. Public corporations. — Corporations are public or pri- vate, according to the object of their creation, their charac- ter, and the nature and scope of their powers. Public cor- porations are such as are created wholly for public pur- poses.* They are invested with subordinate legislative powers, to be exercised for local purposes connected with the public good in the administration of civil government, subject to the control of the legislature, which may alter or repeal their charters at pleasure.^ Familiar examples of public corporations are counties, cities, towns, and villages. A corporation is public when it has for its object the gov- ernment of a portion of the State. Although in such case it involves some private interests, yet, as it is endowed with heads of an aggregate body than sub- 4 Wheat. 636. See Tinsman v. Belvi- sisting merely in their own right. The dere, etc., R.R. Co., 26 N. J. 148. chattel interest in such a case is really ' In England, according to Grant, and substantially vested in the hospital, such a body, if incorporated by public convent, chapter, or other aggreg9,te acts of Parliament, must be regarded' body, though the head is the visible as a public corporation. He defines person in whose name every act is car- public corporations as those that are ried on, and in whom every interest is established to serve great purposes therefore said in point of form to vest, of State, and which hold out advan- But the general rule with regard to tages and benefits either to the public corporations merely sole is that no without restriction, or to every one chattel can go to or be acquired by who chooses to comply with their con- them in right of succession." 2 Elk. ditions. He instances the Bank of Com., 430, 431, 432. See Terret v. England, the East India Company, the Taylor, 9 Cranch, 43. railway, light, water, coke, and Hud- '2 Kent's Com., 9th ed., 319, «(?/ religious society or corporation shall have exercised the franchises and privileges of a corporation for the term of ten succes- sive years, the same shall be presumed to have been legally organized in pursuance of the laws of the State.^ Where ' Ferraria v. Vasconcelles, 23 111. 456. partnership, or to an unincorporated ' Paddock V. Brown, 6 Hill, 530. association of persons. It must be * Trustees v. Bly, 73 N. Y. 323. something which in itself implies an * Van Buren v. Reformed Church, assertion of corporate existence ; that 62 Barb. 495 ; U. S. Bank v. Steams, shall inform those who know of it that 15 Wend. 314; Meth. E. Union Church corporate powers are claimed, so that V. Pickett, 19 N. Y. 482. the public authorities, if they dispute 5 Comp. L. of Mich., sec. 3089 ; the fact, may take proceedings to have Trustees v. Rechlin, 49 Mich. 515. it tried; otherwise, a corporation which " Before an act can be accepted and must owe its franchises to the grant of treated as the exercise of a corporate the State, might come into existence by franchise or privilege, it must be made mere lapse of time without a grant, and to appear that it is something which without the previous knowledge of the distinctly pertains to corporate powers, public or of the authorities, that any- It must not be an act ambiguous in it- thing was being done or asserted that self, and which as properly belongs to a implied a claim of such franchises." § 19 KINDS OF CORPORATIONS, 83 a religious corporation lias been dissolved by non-user or neglect to exercise the powers necessary for its preserva- tion, the question, upon re-incorporation, of identity, is one of intention, that is, whether the neW act creates a new body politic or corporate, or merely revives the old one.* The civil courts will not review the decision of a church tribunal on a question of discipline or church law ; ^ nor a mandamus lie to compel a religious society to restore to membership a person who has been expelled by a church court.* Where a person was expelled from a religious so- ciety of Shakers for refusing to conform and subject her- self to the counsels and directions of the elders and adher- ing to objectionable opinions and doctrines, it was held that a civil court could not try the question whether such opinions and doctrines were in reality inconsistent with the established belief of the society.* In this country no eccle- COOLEY, J., in Meth. Church of New- ark V. Clark, 41 Mich. 730. See Wil- lard V. Trustees of Meth. E. Church, 66 111. 55. As to mortgage of real estate by a religious society, see Scott v. First Meth. Church of Jackson, 50 Mich. 528. ' First Soc. of M. E. Church v. Brownell, 5 Hun, 464. ^Gaff V.Greer, 88 Ind. 122; Tigard V. Moffit, 13 Nebraska, 563. ' State V. Hebrew Cong., 31 La. Ann. 205. By the English common law an excommunicated person was disabled from doing any act that was required to be done by one who was probus et legalis homo. He could not serve on juries, be a witness in any court, or maintain an action to recover land or money. If within forty days after the sentence was published in the church the offender did not submit and abide by the sentence of the spiritual court, the bishop might certify such contempt to the king in chancery. Upon which there issued a writ to the sheriff of the county directing him to take the offender and imprison him in the county jail until he was reconciled to the church and such reconciliation certified by the bishop. 3 Blk. Com. 102. The reasonableness or propriety of a sentence of excommunication de- priving a party of all his rights and privileges as a member of a church cannot be inquired into by a civil court. Fitzgerald v. Robinson, 112 Mass. 371. But although a civil court cannot determine who ought to be members of a religious society, nor whether persons excommunicated have been regularly or irregularly cut off, but must accept the fact of excom- munication .as conclusive proof that the persons exscinded are not members, yet it may inquire whether the resolu- tion of expulsion was the act of the church or of persons who did not con- stitute it and who consequently had no right to excommunicate. Bouldin v. Alexander, 15 Wall. 131. ^Grosvenor v. United Soc. of Be- lievers, 118 Mass. 78. 84 KINDS OF CORPORATIONS. § 19 siastical body has power to enforce its decrees by temporal sanctions. Its decisions are advisory and addressed to the conscience, and, except where civil rights are dependent upon them, have no effect beyond the tribunal which pro- nounces them. Where, however, a civil right depends upon an ecclesiastical matter, it is of course determined by a civil court which tries the civil right.^ When rights of property or civil rights as contradistinguished from ecclesi- astical rights are involved, and such rights depend upon the religious faith or orthodoxy of citizens, or upon the rules, discipline, and practice of churches or religious denomina- tions, the courts of the State may hear evidence and deter- mine judicially all such questions so far as they affect the rights of persons or of religious denominations to property or civil rights.'' So, when rights of property which are se- cured to congregations and individuals by the organic law of the church are violated by unconstitutional acts of the ' Harmon v. Dreher, i Speer's Eq. 87 ; German Ref. Ch. v. Sibert, 3 Pa. St. 282. At a general meeting of the members of a religious society the plaintiff was elected sexton for a year at a fixed annual salary and entered into a contract with the trustees by which he became bound for the faith- ful performance of his duties and to obey the orders of the president. Af- terward, at a meeting of the board of trustees, it was resolved to discharge the plaintiff from his employment for alleged cause, and he was accordingly discharged before the end of the year. It was held no answer to ap action for the non-fulfilment of the contract that the board of trustees discharged him ; that the cause of the discharge must be shown and be such as the law would deem a sufficient one for dis- missing him ; and that it did not help the case that he was expelled from membership in the society upon the charges which cau.sed his discharge as sexton. Stern v. Congregation, etc., 2 Daly, 41 ;. " A sexton has been de- fined to be the keeper of the holy things belonging to the divine wor- ship. 3 Burns' Eccl. L. 342, 6 Lond. Ed. Where, as in England, the posi- tion may be for life, it is deemed an office in which the incumbent has a freehold of which he cannot be de- prived by ecclesiastical censures, though punishable thereby. i Blk. Com. 395; 2 Rolles Abr. 234; 3 Burns' Eccl. L., tit. Sexton, But it is otherwise where, by the usage, he holds at the pleasure of those who elect or appoint him, for in that case, those who appoint have also the power to remove him at pleasure. Rex v. Guardians, etc., i Stange, 115." Daly, F. J., in Stern v. Congrega- tion, etc., supra. "Ferraria v. Vasconcelles, 23 111. 456 ; Grimes v. Harmon, 35 Ind. 198 ; Feizel v. Trustees of German M. E. Soc, 9 Kansas, 592. § 20 KINDS OF CORPORATIONS. 85 higher ecclesiastical courts, the parties thus aggrieved are entitled to relief in the civil courts, as in the ordinary cases of injury resulting from the violation of a contract or of the fundamental law of a voluntary association.^ But, in deference to the rights of church tribunals, a civil judge should "lend a reluctant ear to a claim founded on the al- leged invalidity in view of the law of the church of an act done in the accustomed manner by the accustomed organ of authority." * § 20. Eleemosynary corporations. — Lay corporations are of two classes — eleemosynary and civil. The former are such as are constituted for the perpetual distribution of the free alms or bounty of the founder of them to such persons as he has directed.^ Of this description are hospitals for the maintenance and relief of the poor, sick, or impotent ; and colleges and schools for the promotion of learning by imparting assistance to the members of those bodies in order to enable them to prosecute their studies. In this country, Dartmouth College, which was founded by private benefactions, is an eleemosynary corporation.* Where an act of Congress reserved certain townships for the use of a seminary of learning, and subsequent acts incorporated the Vincennes University, and provided that the trustees in their corporate capacity, or a majority of them, might sell and convey any portion of the land, not exceeding four thousand acres, for the use of the university, and rent the remainder for the same use, it was held that the university was not a public corporation, but a private eleemosynary ' Watson V. Avery, 2 Bush. Ky. 332. chaser of a lot in a cemetery may re- ' Gibson v. Armstrong, 7 B. Mon. strain by injunction a violation of his 481. See Lucas v. Case, 9 Bush. 297. right to the use of it. Burke v. Wall, The trustees of a free church are enti- 29 La. Ann. 38. tied to control the places where per- ^i Blk. Com.471; l Kyd onCorp. 25 ; sons shall sit in the absence of proof Trustees of Phillips Academy v. King, that by usage or otherwise rights have 12 Mass. 546. been acquired to special seats. Shel- ''Dartmouth College v. Woodward, don V. Vail, 28 Hun, 354. A pur- 4 Wheat. 681. 86 KINDS OF CORPORATIONS. § 20 corporation in which the State had no property, and could exercise no power to defeat the trust.^ The charter of a college recited that the institution was founded and had been supported at the private expense of G. C. ; that for the purpose of giving it permanence, elevation, and exten- sive usefulness, he desired, with the aid of others, to endow and place it under the direction of a board of curators who should conduct it on the principle of its foundation, namely : as an institution purely literary, affording instruc- tion in ancient and modern languages, the sciences, and the liberal arts, and not including or supporting by its funds any cjepartment for instruction in systematic or polemic theology, nor instituting any regulations which should ren- der a place in its classes offensive to reasonable, liberal- minded persons, whatever might be their religious opinions. Provision was made for the organization of the board, for filling vacancies, and expelling members for cause, and other necessary and usual powers given for the ends of the organization. Ten years subsequently an act of the legis- lature amending the charter provided that the concurrence ' Vincennes University v. Indiana, intended by a public institution or cor- 14 How. 268, Taney, C. J., and Ca- poration. That a college, merely be- TRON and Daniel, JJ., dissenting, cause it receives a charter from the " That a college established for the government, though founded by private promotion of education and for in- benefactors, is not thereby constituted struction in virtue and piety, and in the a public corporation controllable by the liberal arts and sciences, is in some government, is clear beyond any rea- sense a public institution or corporation sonable doubt. Nor does it make any cannot be denied ; for it is for the ben- difference that the funds have been efit of the public at large, or at least generally derived from the bounty of for all persons who are suitable objects the government itself." Story, J., in of the bounty, and this is the popular Allen v. McKean, supra. See Story sense in which the language is com- on Contr., sec. 1392. It was held in monly used. And in this sense an in- Georgia that the State might constitu- stitution founded exclusively by private tionally pass an act controlling the donors for purposes of general charity, management of an eleemosynary cor- such as a hospital for the poor, the poration endowed wholly by the State, sick, the disabled, or the insane, may by changing the mode of electing trus- well be called a public institution. But tees and suspending those in ofifice. in the sense of the law, a far more lim- Dart v. Houston, 22 Ga. 506. ited as well as more exact meaning is § 20 KINDS OF CORPORATIONS. 8/ of the Missouri Annual Conference of the Methodist Epis- copal Church, South, should be requisite in filling all vacan- cies in the board, upon the Conference affording to the board satisfactory assurances for the maintenance and en- dowment of the college. It was held that the amendment, by requiring the concurrence in the choice of curators of an ecclesiastical body representing one of the religious de- nominations of the State, endangered in this regard the principles of the foundation, changed the character of the administrators of the trust, hindered the free choice of their successors according to the will of the founder by the men to whom he had entrusted his bounty, and essentially im- paired the obligation of the contract.^ Institutions of this character " are, strictly speaking, lay and not ecclesiastical, even though composed of ecclesiastical persons, and al- though they in some things partake of the nature, priv- ileges, and restrictions of ecclesiastical bodies." * A society incorporated " For the Propagation of the Gospel in For- eign Parts," endowed solely from the benefactions of those who chose to bestow them, empowered to purchase and receive real estate in fee to a certain annual value, estates for life and for years, and personal property, is a private eleemosynary corporation, although created by a charter from the crown for the administration of a public charity.^ A corporation exclusively devoted to the siipport and edu- cation of the deaf and dumb, and sustained by the donations of individuals and the public, those who are indigent being 'State-v. Pittman, 44 Mo. 570, constituted for public and others for 5 1 Blk. Com. 471. Such was the private charities. The former are not corporation created in the reign of subject to any founder or particular Queen Anne, under the name of " The statutes, but to the general laws and Governor of the Bounty of Queen statutes of the realm by which they are Anne for the Augmentation of the maintained and supported. But private Maintenance of the Poor Clergy." i charities are subject to the rules and Kyd. on Corp. 27. ordinances of the founder." Holt Ch. ' Soc. for Prop. Gospel v. New Haven, Anon. 3, Salk. I02. 8 Wheat. 464. Some corporations " are 88 KINDS OF CORPORATIONS. § 20 received and maintained gratuitously, while from such as are able to pay, compensation is required, is a corporation for charitable purposes.^ A corporation was created for the support of aged indigent females. Its funds were de- rived from voluntary donations, and it had no capital stock or provision for making dividends or profits, and the services of its managers were rendered without charge. The managers were authorized by vote to admit inmates on such terms as under the circumstances of each case seemed proper ; but excepting when otherwise ordered, each inmate was required to pay $150 before admission ; and inmates having property before, or acquiring it after admission, were obliged to make it over to the corpora- tion. It was held that the institution was a mere charity, and that an inmate who was removed for a violation of the rules, had no legal ground of complaint* But an association, the object of which was, by loans or advances of money, to aid its members in obtaining in- surances on their lives, to assist them in making payments thereon, and in providing their families with immediate funds in case of death, was held not within an act for the incorporation of benevolent and charitable societies.^ The ' Am. Asylum v. Phcenix Bank, 4 widows of deceased members was with- Conn. 172. in the scope of the general purposes of ' Gooch V. Assoc, for the Relief of the organization. Gundlach v. Ger- Aged and Indigent Females, 109 Mass. mania Mechanics' Assoc, 4 Hun, 339. 558. The money and property required In 1862, when the husband of the from the inmates went to supplement plaintiff, afterward deceased, became a the charitable fund, and fell short of member of a voluntary charitable asso- what they received, elation, the by-laws provided that each " People V. Nelson, 10 Abb. Pr. N. S. member paying the regular assessment 200. The act in question was " For should be entitled to twenty-five cents the incorporation of benevolent, char- a day during his sickness, and the itable, scientific, and missionary socle- widow of each deceased member the ties." Where a corporation was created same, so long as she should remain a for the " improvement and welfare " of widow. Before his death, the society the members, and particularly for their having been incorporated, the charter mutual relief " in times of sickness and provided that the society might alter or distress," it was held that a provision change the by-laws. Subsequent to his in the articles of association for the decease, the corporation adopted a by- § 20 KINDS OF CORPORATIONS. 89 National . Savings Bank of the District of Columbia "is not a commercial partnership, nor is it an artificial being, the members of which have property interests in it, nor is it strictly eleemosynary. Its purpose is rather to furnish a safe depositary for the money of those members of the community disposed to entrust their property to its keep- ing. It is somewhat of the nature of such corporations as church-wardens for the conservation of the goods of a parish, the college of surgeons for the promotion of medi- cal science, or the society of antiquaries for the advance- ment of the study of antiquities. Its purpose is a public advantage without any interest in its members. The title of the act incorporating it indicates its purpose, namely : an act to incorporate a national savings bank ; and the only powers given to it are those we have mentioned, — powers necessary to carry out the only avowed purpose, which was to enable it to receive deposits for the use and benefit of depositors, dividing the income or interest of all deposits among its depositors or their legal representatives. It is like many other savings institutions incorporated in Eng- land and in this country during the last sixty years intended only for provident investment, in which the management and supervision are entirely out of the parties whose money is at stake, and which are benevolent, and most useful, be- cause they hold out no encouragement to speculative deal- ing or commercial trading Among the earliest are some in Massachusetts, organized under a general law passed in 1834, which contained a provision like the one in the act of Congress, that the income or profit of all deposits shall be divided among the depositors with just deduction law providing that each widow should a general law, applicable to all, and receive twenty-five cents a day until she there was no suggestion of fraud, or had received $200, which sum the that the regulation was not wise and plaintiff had received. It was held salutary, the plaintiff was not entitled to that as the regulation limiting the wid- recover beyond the amount already paid ow's share in the charity was made by her. Fugure v. Mu. Soc, 46 Vt. 362. 90 KINDS OF CORPORATIONS. § 21 of reasonable expenses. Indeed, until recently, the p'rimary idea of a savings bank has been that it is an institution in the hands of disinterested persons, the profits of which, after deducting the necessary expenses of conducting the business, inure wholly to the benefit of depositors in divi- dends, or in a reserved surplus for their greater security." ^ § 21. Quasi corporations. — There is a distinction betweefi proper aggregate corporations, and such as are created with powers for a few specified purposes only. The latter, in the books, are sometimes called quasi corporations.* There are many instances in the laws of collective bodies of men, coming under one general description, endowed with a corporate capacity in some particulars expressed, but who have in no other respect the capacities incident to a corpo- ration.* The statutes 4 and 5 Wm. 4th, ch. 69, sec. 3, providing for suits against the West Cork Mining Com- pany, and I Vict., ch. 88, sec. 8, making it lawful, upon the recovery of judgment, to levy the amount on the prop- erty of the company, were held to constitute the company a quasi corporation.* A State "is a legal being, capable of transacting some kinds of business like a natural person, and such a being is a corporation." ^ Counties are mere quasi corporations, invested with corporate powers sub modo, and for a few specified purposes only, but deficient in many of the powers incident to the general character of corporations ;* though in substance and legal effect, the ' Huntington v. Savings Bank, 96 U. v. Myers, 15 Cal. 33 ; People v. Sacra- S. 388. mento County, 35 Id. 692 ; Goodnow " Adams v. Wiscasset Bank, i Me. v. Commrs. of Ramsey County, 1 1 361. Minn. 31 ; School Dist. v. Thompson, = Jackson v. Hartwell, 8 Johns. 422. 5 Id. 286 ; Louisville, etc., R.R. Co. v. * Harrison v. Timmins, 4 M. & W. County Ct. of Davidson, i Sneed, Tenn., 510. 637. A county is not liable, at com- ' State of Indiana v. Woram, 6 Hill, mon law, to a private action at the suit 33, peir Bronson, J. of a party injured, resulting in the non- « Hannibal & St, Joseph R.R. Co. v. performance by its officers of a corpo- Marion County, 36 Mo. 294 ; Ray rate duty. Granger v. Pulaski County, County V. Bentley, 49 Id. 236 ; Smith 26 Ark. 37. Counties and towns being § 21 KINDS OF CORPORATIONS. 91 board of supervisors of a county is the corporation, they being, so to speak, the board of directors and managing agents of the county.^ In Pennsylvania, the commission- ers of a county, who are the public agents of the county as to money matters, are a quasi corporation ; * and in Ohio, the board of commissioners of a county, being clothed by the statute with the capacity of suing and being sued, is a corporation for special purposes.^ At common law, every parish and town was a corporation for local necessities, and every collective body of men who, although not a body politic and corporate, with the general powers of a corpo- ration, yet having a corporate capacity for particular speci- fied ends, was deemed a quasi corporation, with limited powers, coextensive with the duties imposed upon it by statute.* In New York and Illinois, the supervisor of a town ; ^ and in South Carolina, the board of commission- ers of roads are quasi corporations.^ By the New York subdivisions of the State, their officers are its local agents ; and their powers may be revoked or enlarged, and their acts be set aside, at the pleasure of the legislature, without their consent, or even without notice. St. Louis v. Rus- sell, 9 Mo. 507; Russel y. Reed, 27 Pa. St. 170; Burns v. Clarion County, 62 Id. 425 ; People v. Pinkney, 32 N, Y. 393 ; Laramie County v. Albany County, 92 U. S. 307. ' Supervisors v. Bowen, 4 Lansing, 24 ; Lawrence County v. Chattaroi R.R. Co., 81 Ky. 225. "Van Kirk v. Clark, li Serg. & Rawle, 286. ^ Gommrs. v. Gherky, Wright R. 493 ; Board of Commrs. v. Mighel^, 7 Ohio St. 109. * Clarissy v. Metrop. Fire Dept., 7 Abb. Pr. N. S. 352. In New York, previous to the Revised Statutes, there were no incorporating acts for towns and counties. « Jansen v. Ostrander, i Cpwen, 670 ; Palmer v. Vandenbergh, 3 Wend. 193 ; Denton v. Jackson, 2 Johns. Ch. 325 ; Bradley v. Case, 4 Scam. 585. The colonial laws of New York considered towns as corporations. North Hemp-- stead V. Hempstead, 2 Wend. 109. " There is not any very close corre- spondence between the nature and ob- ject of the organization of towns in the State of New York and that of par- ishes in England." " While the former were exclusively political in their char- acter, the latter were primarily ecclesi- astical, and only incidentally political, through the connection in England be- tween the church and the government. But again, towns were known in Eng- land, and recognized as political bodies distinct from parishes. There the town and vill were synonymous, and a single parish might and did embrace a num' ber of towns." Morey v. Town of New- fane, 8 Barb. 645, per Selden, J. * Commrs. of Roads v. McPherson, I Speer, 218. 92 KINDS OF CORPORATIONS. § 21 Revised Statutes, county superintendents of the poor are declared to be a corporation by the name of the superin- tendents of the poor of the county in which they are ap- pointed, with the usual power of a corporation for public purposes, and some special powers.^ In the same State, and also in Mississippi, overseers of the poor of a town are a quasi corporation, being public agents and trustees of the town in respect to their poor, having necessarily, without express authority from the legislature, capacity to sue commensurate with their public trusts and duties, and pro tanto endowed with a corporate capacity.* School districts are quasi corporations with limited powers coextensive with the duties imposed upon them by statute or usage, but restrained from a general use of the authority, which belongs to their metaphysical persons by the com- mon law." In New Hampshire it was said : " School dis- tricts are quasi corporations of the most limited powers known to the laws. They have no powers derived from usage, their existence extending back but a few years. They have the powers expressly granted them, and such implied powers as are necessary to enable them to perform their duties, and no more. Among these are the power to vote money for specified purposes, and the power to ap- point committees to carry their votes relative to those pur- poses into effect. The district may, clearly, by their votes for building and repairing school-houses, limit the expense to a definite sum ; and they may limit the precise repairs, or the exact description of the school-house to be built, and it seems very clear that no committee can bind the dis- 'N. Y. Rev. Sts., 7th ed., p. 1855; « Inhabs. of School Dist. v. Wood, Pomeroy v. Wells, 8 Paige, ch. 406; 13 Mass. 192; Wharton v. School Di- Van Keuren y. Johnston, 3 Denio, rectors, 42 Pa. St. 358 ; Com. v. 183. Beamish, 81 Id. 389; Beach v. Leahy, « Rouse V. Moore, 18 Johns. 407; 11 Kansas, 23; School Dist. v. Will- Todd v. Birdsall, I Co wen, 260; Grant iams, 38 Id. 454; People v. Dupuyt, V. Fancher, 5 Id. 309; Governor v. 71 111. 651; People v. Trustees of Gridley, Walk., Miss. 328. Schools, 78 Id. 136. § 21 KINDS OF CORPORATIONS. 93 trict by exceeding those limits." ^ In New York and Mis- sissippi the trustees of a school district are a quasi corpora- tion.'' When a union free school district has been organ- ized in the former State, and trustees duly chosen pursuant to the statute of 1864, the board thus formed is created a body corporate.' The board of education of the city of Rochester is a corporation only to a qualified extent. It has continuity, although the commissioners who exercise its powers are changed annually. It can make no contracts except for the disbursement of money raised, received, and appropriated by law, and subject to its order for expendi- ture during each current school year, or which may remain in the treasury unappropriated by previous boards.* In Alabama an early statute provided that the school commis- sioners of each township and the trustees of each school district for the time being and their successors should be corporations.^ Where an act makes certain individuals with their successors public agents to receive and disburse the county school fund, and provides that all moneys due and to become due for the use of the school fund shall be pay- able to their order, and that they shall possess full and complete power and exclusive control over this fund, "to have, demand, receive, hold, vest, and reinvest the same in behalf and for the benefit of the primary schools and for the promotion of education in said county," they are a quasi corporation.® At common law qiiasi corporations might change their names and alter their boundaries with- out working a destruction of their rights or franchises or cancelling their duties and liabilities. In Wisconsin dis- tricts are made by statute corporations for certain specified Harris v. School District, 28 N. H. » Bassett v. Fish, 75 N. Y. 303. (8 Fost.) 58. ■* People v. Lathrop, 19 How. Pr. 2 Williams v. Keech, 4 Hill, 168; 358. Horton v. Garrison, 23 Barb. 176; 'School Commrs. v. Dean, 2 Stew. Carmichael v. Trustees, etc., 3 How. & Port. 190. Miss. 84 ; Littlewort v. Davis, 50 Miss. * O'Neal v. School Commrs., 27 Md. 403. 227. 94 KINDS OF CORPORATIONS, § 21 purposes, and their names and boundaries can be changed.* An act of the legislature which makes it the duty of the supervisors of a county to set apart a portion thereof as a levee district with corporate powers, constitutes the levee district when thus organized a corporation.* The Metro- politan Fire Department, embracing the cities of Ne\v York and Brooklyn, is a quasi corporation.^ The levy court of Washington county in the District of Columbia is a quasi corporation. Its functions are those which in the several States are performed by county commissioners, overseers of the poor, county supervisors, and similar bod- ies having other designations.* The General Assembly of the Presbyterian Church is not a quasi corporation. It is a segregated association which, though it is the reproductive organ of corporate suc- cession, is not itself a member of the body, and has no cor- porate quality.^ Manufacturing corporations under the ' School District v. Macloon, 4 Wis. 79- ' Dean v. Davis, 51 Cal. 406. * Clarissy v. Metrop. Fire Dept., 7 Abb. Pr. N. S. 352. * Levy Court v. Coroner, 2 Wall. 501. ' Com. V. Green, 4 Whart. 531. Mr. Brice speaks of j^aa^ municipal bodies, " including under this Head the various local government boards, the sanitary authorities, and the other authorities for local administrative purposes. The many bodies which have been called into being and incorporated for the carrying out or the supervision of works or other matters of general or national importance, such as the com- missioners for river, sewage, naviga- tion, and the like purposes, dock or turnpike trustees ; those whose aims are of a somewhat charitable nature, i. e., friendly, provident, benefit, and similar societies, which may be con- veniently grouped under one head as co-operative associations ; anomalous associations existing for worldly, as opposed to religious or charitable pur- poses, but not designed for gain, such as the council of law reporting, the corporation of foreign bondholders. Between these various and dissimilar societies there is no difference in legal consideration. Whatever be the aims of any group of men, in every case, if the group be endowed with the legal marks of a corporation, it is such, hav- ing the privileges, but also subject to the incapacities of a corporation. But besides these, various other bodies ex- ist, having some, but wanting others, of the characteristics of true corpora- tions aggregate. These are commonly designated quasi corporations. Such, for instance, are most of the commis- sioners instituted for public purposes, and which have been referred to above. These are either made corporations to § 21 KINDS OF CORPORATIONS. 95 act of New York of March ii, 1811, were in effect mere partnerships, with some of the powers and privileges of corporations. They resembled the corporations of the civil law, which were voluntary associations, and little more than limited partnerships.^ all intents, or so far erected into cor- porations that the powers given to them, the duties imposed on them, and the rights of action acquired by them, descend to their successors." He in- stances as quasi corporations sole the Lord Chancellor of England and the chief-justices of the king's and common bench. Green's Brice's Ultra Vires, 2d Am. Ed., 19, 20. ' Penniman v. Briggs, Hopkins Ch. R. 300. CHAPTER III. MODE AND EVIDENCE OF CREATION. 22. Power to create under the Roman law. 23. At common law. 24. Power to create in the United States 25. Constitutional provisions. 26. General legislative power. 27. Delegation of power. 28. Language of statute. 29. Statutory construction. 30. Materiality of corporate name. Wrongful adoption of name. Where there are two corporations of the same name. Essential preliminary steps. 3i. 32. 33 § 34. Exact conformity with provisions of act not required. Charter must be accepted. Mode of acceptance. Proof of acceptance. Evidence in general of corporate existence. Corporations by prescription. Corporations by necessary impli- cation. Admissions and declarations. Legislative recognition of corpo- ration. Date of incorporation. 35- 36. 37- 38. 39- 40. 41. 42. 43- § 22. Power to create under the Roman law. — By the civil law, according to Blackstone/ corporations were crea- ted by the mere act and voluntary association of their members, provided such convention was not contrary to law and the prince's consent was not necessary. Domat, however,* says that communities or assemblies of many per- sons united in one body could not be lawfully formed in Rome without the prince's permission ; and Browne con- tends ' that under the civil law, although common mercan- tile partnerships or temporary societies, formed to promote the interests of particular persons and to continue during their lives, were erected by the mere act and voluntary association of the members, yet public and permanent communities, intended to be perpetual like our corpora- 1 1 Blk. Com. 472. ' Civ. L., tit. 2, sec. 2. » Civ. L. 143, 144. § 23 MODE ANt) EVIDENCE OF CREATION. 97 tions, were formed by the permission or grant of the prince or by a decree of the Roman senate. § 23. At common law. — By the common law of England the power to create corporations with franchises belonged to the king as a branch of the royal prerogative, and the immediate creative act was usually performed by the king alone. Bacon says:^ "The king, by virtue of his preroga- tive, is the only person that can erect either an ecclesiasti- cal or lay corporation. Yet the king may give power to a common person to name the corporation and the persons it is to consist of ; but when he hath so done, this corporation does not take its essence from the common person, but from the king," By 39 Eliz., ch. 5, every person seized of an estate in fee simple may, by deed enrolled in the high court of chancery, erect a hospital or house of correction, which shall be incorporated and have perpetual succession, and shall be visited by such persons as shall be nominated by the founders thereof. Corporations created by royal charters "have existed in such various forms, and with so many combinations of powers, privileges, and immunities, that it is almost impossible to say what is or is not a cor- poration by the common law by merely referring to the ex- istence of any particular power, right, or privilege as apper- taining to an association or community of individuals." * Although Parliament sometimes granted acts of incor- poration, it was generally in those cases where some extra- ordinary powers and privileges were wanting not within the reach of the king's prerogative. Even then the rule held good that no corporation was valid without the royal sanction, for the assent of the king was necessary to every parliamentary act.^ Anciently the king was not the only 'Bacon's Abr., tit. Corp. B. See '^ Walworth, Chancellor, in Warner opinion of Caton, C. J., in St. Louis, v. Beers, 23 Wend. 103. Alton & Chicago R.R. Co. v. Dalby, ' Williams v. Bank of Michigan, 7 19 111. 353. Wend. S39. VOL. I.— 7 98 MODE AND EVIDENCE OF CREATION. § 24 person who might without the authority of the legislature have created corporations. During the latter part of the Saxon period, and for some time after the Conquest, the great nobles exercised prerogatives within their own de- mesnes similar to those which the king exercised, and, among these, the power of conferring corporate privileges on their towns.* At a later period, however, the king pos- sessed the exclusive prerogative of incorporating com- panies, and in the reign of Edward III. his assent to the creation of any corporation was held to have been long established as the settled law.^ § 24. Power to create in the United States. — It is the sovereign power alone which can create corporate fran- chises.^ In this country the people, the only legitimate sovereigns, have succeeded to the prerogatives which for- merly belonged to the crown. With us statutory incorpo- 1 I Kyd on Corp. 41, 42, quoting from Millar on the English Govem- ihent, 379, 380. "Cities and towns were first erected into corporate com- munities on the Continent and en- dowed with many valuable privileges about the eleventh century, to which the consent of the feudal sovereign was absolutely necessary, as many of his prerogatives and revenues were there- by considerably diminished." i Blk. Com. 472, »(?i'^, referring to I Robert- son's Chas. V. 30. = I Kyd on Corp. 44. " At the time of the Reformation, in consequence of the statute of Edward VI., which gave the colleges therein described to the king, it generally became a question whether the house claimed was a lawful college, the determination of which de- pended on the authority by which it was established. In the case of Greystock College, it appeared that Pope Urban, at the request of Ralph, baron of Grey- stock, fourided a college of a master and six priests resident at Greystock, and assigned to each of the priests five marks per annum, beside their bed and chamber, and to the master 40/. per annum ; and it was certified into the book of first-fruits and tenths that this college was in being within five years before the making of the statute ; and it was resolved by the justices that this reputative college was not given to the king by that statute, because it wanted a lawful beginning and the countenance also of a lawful com- mencement, for that the pope could not found or incorporate a college within this realm, nor assign, nor li- cense others to assign, temporal liv- ings to it ; but that it ought to be done by the king himself, and by no other." Ibid. 44, 45 ; Dyer, 81, PI. 64. ' Comyn Dig., tit. Franchises ; State V. Bradford, 32 Vt. 50 ; Stone v. Flagg, 72 111. 397. Acting as a corporation without right is an offense at common law. Kinder v. Taylor, 3 L. J. 68. See Duvergier v. Fellows, 5 Bing. 248 ; Josephs V. Peber, i Carr & P. 507. § 24 MODE AND EVIDENCE OF CREATION. 99 rations are legislative grants by the people through their representatives, rather than laws in the ordinary sense of the term.^ The power to create a corporation, though ap- pertaining to sovereignty, is not a substantial and inde- pendent power, but only the means of carrying into effect powers which are sovereign. When the exercise of such power is appropriate and not prohibited by the Constitu- tion, its propriety is a matter of legislative determination.^ The legislature cannot rightfully confer upon a corporation privileges or grant it exemptions which it cannot constitu- tionally confer upon or grant to a natural person. The person, whether natural or artificial, to whom the privilege is granted, is bound, upon accepting it, to render to the public the service which was the inducement of the grant ; and the express or implied undertaking on the part of the grantee to do so will uphold the grant, no matter how in- adequate the service may be. For the legislature being vested with power to make grants of that character when the public convenience demands it, the legislative judgment is conclusive, both as to the necessity of making the grant and the amount of service to be rendered in consideration therefor ; and the courts have no power to interfere, how- ever inadequate the consideration or unreasonable the grant may appear to them to be.* Where, therefore, a State con- stitution gives to . the legislature the power to create any corporations by special charter, the courts cannot review ' Williams v. Bank of Michigan, 7 corporations exclusive privileges, — Wend. S39 ; Atkinson v. Marietta & privileges denied to other citizens, — Cincinnati R.R. Co., 15 Ohio St. 21. privileges which do not come within ' Bell V. Bank of Nashville, Peck, any just definition of the word monop- Tenn. 269 ; McCuUoch v. State of oly Nor can it be truthfully de- Md., 4 Wheat. 316. See Thompson nied that some of the most useful and V. Pacific R.R. Co., 9 Wall. 579. beneficial enterprises set on foot for the 'Gordon v. Winchester Building general good have been made succes;- Assoc, 12 Bush, Ky. no. "The leg- ful by means of these exclusive rights islative bodies of this country have, and could only have been conducted to from time immemorial to the present success in that way.'' MiLLfiR, J., in day, continued to grant to persons and Slaughter-House Cases, 16 Wall. 36. lOO MODE AND EVIDENCE OF CREATION. § 24 the exercise of that discretion.^ To create an inviolable contract with the State by the passage and acceptance of a charter, it must invest the corporation with an absolute right of property, or confer such authority as, when exer- cised, vests the corporation with such rights of property or interest as are of some appreciable value, and which there- fore cannot be taken from the corporation by subsequent legislation against its consent. But the legislature has the power to enact any subsequent or amendatory law which regulates the remedy for enforcing corporate rights and privileges, or which only operates on the relations between the corporation and other persons before any contract be- tween them has been concluded, and interferes with no vested rights of the corporation.* Corporations are some- times created by the mere passage of a statute. But, more frequently, the statute declares and points out the mode in which the legal body may thereafter be brought into exist- ence.' • U. S. Trust Co. V. Brady, 20 Barb. 119. An act giving an association powers and privileges which it can ex- ercise and enjoy only as a body, incor- porates the association for that pur- pose. Nashville v. Ward, 16 Lea, Tenn. 27. '' Chattaroi R.R. Co. v. Kinner, 81 Ky. 221. When the Constitution of a State grants a privilege to a corpora- tion, it cannot be taken away by an act of the legislature. New Orleans v. Houston, 119 U. S. 265. To bind a corporation by acts alleged to amount to an adoption or accept- ance of new legislation affecting its charter, it must clearly appear that they were done in pursuance and rec- ognition of the same. Miss. & Rum River Boom Co. v. Prince, 34 Minn. 79. Where an attempt to become in- corporated is ineffectual upon any con- tract which the parties may be found to have authorized to be made, or which they may have ratified, although the contract in terms was made as that of the association or assumed corpora- tion, the members may be held to indi- vidual responsibility. Hess v. Werts, 4 Serg. & Rawle, 356 ; Pettis v. At- kins, 60 111. 454 ; Bigelow v. Gregory, 73 Id. 197; Garnett v. Richardson, 35 Ark. 144; Kaiser v. Lawrence Sav. Bank, 56 Iowa, 104; Abbott v. Omaha Smelting Co., 4 Nebraska, 416 ; Field V. Cooks, 16 La Ann. 153; Jessup v. Carnegie, 44 N. Y. Super. Ct. 260; Johnson v. Corser, 34 Minn. 335. ' Proprs. of Southold v. Horton, 6 Hill, 501. The power of municipal corporations may be increased or di- minished by the legislature, and this may be done by an act not professing in terms to amend their charters. Robertson v. City of Rockford, 21 111. 451 ; Coles V. County of Madison, § 25 MODE AND EVIDENCE OF CREATION. Id § 25. Constitutional provisions. — The Constitution of Tennessee^ confers upon the legislature exclusive power to create corporations to be exercised only when it may be deemed expedient for the public good. No corporation can be created or its powers increased or diminished by special laws, but provision is required to be made by gen- eral laws for the organization of corporations, which laws may at any time be altered or repealed.** Under the Con- stitution of Michigan no charters can be granted, but all private corporations must be organized under general laws and conform strictly to all the conditions imposed.^ Of course, a constitutional provision that the legislature shall pass a general law for the organization of corporations re- mains inoperative until the legislature acts upon it.* In Georgia, under the Constitution of 1868, it is competent for the legislature to incorporate by one act several sepa- rate and distinct corporations, or to revive by name sev- eral charters which have become obsolete.^ Where the Breese, 120; People v. Morrell, 21 manufacturing, and telegraph com- Wend. 679 ; Wilcox on Corp. 26, sees, panies." Section 1676 of the code II, 12; Story's Com. on Const., 260; prescribes the manner in which the People V. Wren, 4 Scam. 269; Sloan courts shall exercise the power of in- V. State, 8 Blackf. 361 ; City of St. corporating certain companies, and Louis V. Russell, 9 Mo. 503. section 1677 prescribes the manner ' Art. II, sees. 7, 8. in which certain other companies may ' See State v. Armstrong, 3 Sneed, be incorporated by the courts. See 634; Morristown v. Shelton, I Head, Matter of Deveaux, 54 Ga. 673. In 24. Pennsylvania the act of 1 79 1 provided ' Doyle V. Mizner, 42 Mich. 332. that when any number of persons, citi- * Virginia City v. Chollar Potosi zens of the State, desired to be incor- Mining Co., 2 Nevada, 86. porated for any literary, charitable, or ^Conner, ex parte, 51 Ga. 571; religious purpose, articles of associa- King v. Banks, 61 Id. 20. This is an tion should be prepared by them and exception to the general rule. Fal- submitted to the attorney-general, who, coner v. Campbell, 2 McLean, 195. after examining the articles, was re- The Constitution of Georgia declares quired to transmit them to the Su- that the legislature "shall have no preme Court, and the court was re- power to grant corporate powers and quired to indorse thereon a certificate privileges to private companies except touching the lawfulness of the objects banking, insurance, railroad, canal, of the articles and transmit the same navigation, mining, express, lumber, to the Governor, and if the attorney- I02 MODE AND EVIDENCE OF CREATION. § 25 Constitution of a State provided that corporations might be formed under general laws, but should not be created by special act except for municipal purposes, it was held that the restriction related not only to the grant of a char- ter, but also to the conferring on a corporation any powers and franchises by special act, and that an act granting to certain persons and their assigns powers and privileges in case they should organize themselves within a specified time into a corporation under the general laws, was a spe- cial act within the meaning of the prohibition.^ But such a constitutional prohibition would not be violated by an act prolonging the existence of a corporation.^ Under the clause in the Constitution of New York,^ which provides that " no private or local bill which may be passed by the legislature shall embrace more than one sub- ject, and that shall be expressed in the title," it is not nec- essary for the title of an act of incorporation to set forth all of the powers of the company. So long as the objects of the corporation are limited by the act to one body cor- porate, they constitute in mass the single subject which the act must contain, and it is sufficient that the title by recit- ing the name of the company thereby indicates its char- acter.* In New York, corporations may be formed under general laws, but cannot be created by special act except for municipal purposes and in cases where, in the judgment of the legislature, the objects of the corporation cannot be attained under general laws.^ general and the court certified a favor- 22 Minn. 372. Extending the time able opinion the Governor was required during which a corporation may exist to transmit the same to the master of is not the creation of a new corpora- the rolls, and the association thereupon tion. Ibid. became a body corporate. See Case of ' N. Y. Const., art. 3, sec. 16. Medical College, 3 Wharton, 445 ; " Freeman v. Panama R.R. Co., 14 Case of St. Mary's Church, 7 Serg. & N. Y. Supm. Ct. 122. Rawle, 517. ' Const, of New York of 1846, art. 8, 'San Francisco v. Spring Valley sec. l; Const, of 1881. There is a Works, 48 Gal. 493. similar provision in the Constitution of 'Cotton V. Miss., etc.. Boom Co., Oregon, art. 1 1, sec. 2. § 26 MODE AND EVIDENCE OF CREATION. IO3 § 26. General legislative power. — As a rule, whenever Con- gress or the legislature of a State has a constitutional right to accomplish a certain object which can best be attained by means of a corporation, it may create such a corpora- tion, and endow it with the powers necessary to effect the desired object.^ " The power of creating a corporation, though appertaining to sovereignty, is not, like the power of niaking war, or levying taxes, or of regulating commerce, a great substantive and independent power which cannot be implied as incidental to other powers, or used as a means of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished. No contributions are made to charity for the sake of an incorporation ; but a corporation is created to administer charity. No seminary of learning is instituted in order to be incorporated ; but the corporate character is conferred to subserve the purposes of educa- tion. No city was ever built with the sole object of being incorporated ; but it is incorporated as the best means of being well governed. The power of creating a corporation is never used for its own sake, but for the purpose of effect- ing something else." * Corporations originating according to the rules of the common law must be governed by it in their mode of or- ganization, in the manner 'of exercising their powers, and in the use of the capacities conferred ; and when a corporate body claims its origin from such a source, the rules of the common law must be regarded in deciding upon its legal existence.^ The legislature may, however, create a corpora- tion, not only without conforming to the rules of the com- 1 See McCuUoch v. State, 4 Wheat. " McCuUoch v. State, supra, per 316 ; Osborn v. Bank of U. S., 9 Id. Marshall, C. J. 738 ; Thomson v. Pacific R.R. Co., 9 * Penobscot Boom Corp. v. Lamson, Wall. 579; Williams v. Croswell, 51 16 Me. 224. Miss. 817 ; Farmers', etc., Nat. Bank V. Dearing, 91 U. S. 29. I04 MODE AND EVIDENCE OF CREATION. § 26 men law, but in disregard of them ; and when a corporation is thus created, its existence, powers, capacities, and the mode of exercising them must depend on the law of its creation.^ Of course the purpose of incorporation must be promotive of, and not hostile to, the public interests. The Legislature of North Carolina during the late civil war enacted that certain persons named and others who had contributed a certain sum, or might thereafter contribute a like sum, to be invested and the interest thereon expended for the education of the indigent orphans of such soldiers as had fallen or might thereafter fall or be disabled in the wars of the Confederate States, and when no such claim- ants existed, then of other orphan boys to be selected as far as practicable from the counties in proportion to the amount contributed by them, their assigns, and successors in office, should be a body politic and corporate, capable of taking by purchase, devise, or donation, real and personal estate, and of holding and conveying the same. It was held that the act of incorporation was void by reason of its manifest tendency to aid and encourage the then existing rebellion.* The legislature may make such police regulations as may be necessary for the preservation of the public health, and create a' corporation through which such police regulations may be enforced. Therefore an act giving to a corporation the exclusive right to maintain a slaughter-house, and to control the inspection of all animals slaughtered for the market in a city, without excluding any person from pur- chasing or butchering live stock and selling the meat in ' Penobscot Boom Corp. v. Lamson, contingent ; and that even if the par- 16 Me. 224. ticular trust for the orphans of soldiers ' Endowment Fund v. Satchwell, 71 could not be sustained, the other trusts N. C. III. Rodman and Reade, JJ., which were separable from that and dissented on the ground that the in- free from objection, ought to be upheld ducement held out to join or adhere to and the act of incorporation deemed the rebellion was trivial, remote, and valid. § 26 MODE AND EVIDENCE OF CREATION. IO5 the markets of the city, is not unconstitutional.^ A statute creating a corporation may be void because it is a special act, and for that reason linconstitutional, and yet operate as a legislative license or authority, and therefore a defense to the parties named in the act if prosecuted for doing what the language and plain intent of the act authorized them to do.*' A corporation cannot be created beyond the territorial limits of the State exercising such power. When, there- fore, an act was passed by the Legislature of Michigan, after the adoption of the Constitution of that State, and before her admission into the Union, attempting to create a corporate body in the territory then in dispute between Ohio and Michigan, which territory was afterward decided to belong to Ohio, it was held that the act was void.^ A corporation created by the State of Virginia did not be- come a corporation of West Virginia by its formation to carry on mining and manufacturing operations in territory which afterward became a part of West Virginia, but only by complying with the provisions of the act of the latter State recognizing corporations then existing there.'* A 1 State V. Fagan, 22 La. Ann. 545 ; the law ceases to have any force and Slaughter-House Cases, 16 Wall. 36. effect, this legal entity and mere crea- See Live Stock, etc., Assoc, v. Crescent ture of the law ceases to have any ex- City, etc., Co., I Abb. U. S. 388. istence. If the law should be abroga- " Brent v. State, 43 Ala. 297. See ted by the legislature creating it, it Purdy v. People, 2 Hill, 31 ; 4 Id. 384 ; would cease to exist in the jurisdiction People V. Morris, 13 Wend. 325 ; Atty. within which it was created, the law Genl. V. McArthur, 38 Mich. 204 ; bringing it into existence and uphold- Montgomery Mut. Building & Loan ing it being no longer in force ; and for Assoc. V. Robinson, 69 Ala. 413. the like reason it can never have any " Myers v. Manhattan Bank, 20 Ohio, legal being or existence extraterritorial, 283. In Day v. Newark India Rubber where the law creating it never had Manuf. Co., i Blatchf. 628, Nelson, any operation or force." J., said : " We think it quite clear that * Kanawha Coal Co. v. Kanawha a corporate body created by the law of & Ohio Coal Co., 7 Blatchf. 391. a sister State can have no corporate "Strictly speaking, a corporation can existence beyond the limits of the ter- have no local residence or habitation, ritory within which the law creating it Created by law, and known by the le- 'can operate ; and that when and where gal capa,cities conferred upoii it, it ex- I06 MODE AND EVIDENCE OF CREATION. § 26 State may make a corporation of another State as there organized and conducted, a corporation of its own as to any property within its territorial jurisdiction.* Where charters are granted to two canal companies of the same name by the legislatures of adjoining States, and subse- quently a union of their interests is effected by acts passed in each State, there is not a merger of the separate corpo- rate existence of the corporations, but simply the creation of a unity of stock and interest.* It was held that the Legislature of the Territory of Mis- souri had power to create a corporation,^ and it seems that the Legislature of Indiana possessed the same power.* It is now, however, provided by act of Congress that the leg- islative assemblies of the several Territories shall not grant private charters or special privileges ; but they may, by gen- eral acts of incorporation, permit persons to associate them- selves together as bodies corporate for mining, manufac- . turing, and other industrial pursuits, or for the construction or operation of railroads, wagon-roads, irrigating ditches, and the colonization and improvement of lands in connec- tion therewith, or for colleges, seminaries, libraries, or any benevolent, charitable, or scientific association.® " If a State have a right to make grants, it must of ne- cessity prescribe the terms upon which they shall be made. If it may limit their duration, it may also impose other re- strictions. It may determine how much or how little, how large or how small an estate or franchise it will grant. It ists only in the recognition of the rights 65 ; Railroad Co. v. Vance, 6 Otto, and franchises it may claim. Wher- 450. ever the law is recognized from which ' Farnum v. Blackstone Canal Corp., its franchises are derived, there it ex- i Sumner, 46. ists. It extends to the territorial limits ' Riddick v. Amelin, I Mo. 8 ; Doug- of the jurisdiction which granted its las v. Bank of Mo., lb. 24. charter, which, for judicial purposes, * Vance v. Farmers' and Mechanics' defines its locality." Glaise v. So. Bank, i Blackf. 80 ; Vincennes Univer- Car. R.R. Co., i Strobh. 70. sity v. Indiana, 14 How. 268. 'Railroad Co. v. Harris, 12 Wall. »U. S. Rev. Sts. 1873, 1874, sec. 1889. § 27 MODE AND EVIDENCE OF CREATION. I07 may grant absolutely or on condition. So it may grant during pleasure or until a certain event happens. And if a grant be accepted on the terms prescribed, it becomes a compact, and the grantees can have no reason to com- plain."^ The enjoyment of corporate rights maybe ex- tended by the legislature. Such an act would not give any new substantive rights, but would simply extend the time within which rights previously granted might be exer- cised.^ § 27. Delegation of power. — The creation of a corporation may be an act of sovereign power exercised either medi- ately or immediately. In England it was formerly consid- ered that the act of incorporation must be the direct act of the king, and that he could not authorize another to create a corporation. But the law has long been settled that he may not only grant a license to a subject to create a cor- poration, but give a general power by charter to create cor- porations indefinitely. It is said by Kyd that the chancel- lor of the University of Oxford had such a power, and that he had often exercised it in the incorporation of matricu- lated companies of tradesmen.^ In Maryland, before the American Revolution, municipal corporations were created by the lord proprietary.* Charters of incorporation were also granted by the proprietaries of Pennsylvania under a derivative authority from the crown, and those charters have since been recognized as valid." We have seen in the preceding section that Congress by virtue of its general legislative powers may regulate the creation of corpora- tions by the territories. In the absence of any constitu- ' Norton, J. , in Crease v. Babcock, ^ i Kyd on Corp. 50. This statement 23 Pick. 334. of Kyd seems to have been copied by "Matter of N. Y. Elevated R.R. Co., him from i Blackstone, 474, to which 70 N. Y. 327 ; Cotton v. Miss., etc., he refers. Boom Co., 22 Minn. 372 ; St. Paullns. ^McKirn v. Odom, 3 Bland Ch. Co. V. AUis, 24 Id. 75. See Atkinson v. 416. Marietta, etc., R.R. Co., 15 Ohio St. 21. ' 3 Wilson's Lects. 409. I08 MODE AND EVIDENCE OF CREATION. § 27 tional inhibition, it would doubtless be competent for a State legislature to give a general power to erect corpora- tions. This power might be vindicated on the principle that qui facit per alium, facit per se ; the persons to whom such power was delegated being only instruments in the hands of the Government.^ When the power delegated is simply ministerial, its exercise cannot be successfully ques- tioned.^ An act for the incorporation of a railroad, which gave commissioners power to determine the need of such a road, to designate the route, and to direct the plan of con- struction, was held valid.* In Missouri, a town having been incorporated by the county court pursuant to a gen- eral law, it was objected that the act conferring such power on county courts was unconstitutional, being a delegation of a political trust which could alone be exercised by the legislature. The court, in upholding the validity of the charter, said: "The duties imposed on the county courts in relation to this subject are judicial in their nature. They have no discretion. They have no authority to vest any power in the corporation. Their office is, upon the performance of certain acts by the inhabitants, to de- clare them incorporated if satisfied of the verity of the facts set forth, and then the law declares the powers of which the corporation shall be possessed. Such a mode of incorporation is becoming common."* In an early case in New York, it was said by the court that the legislature of that State had always exercised the right to pass general statutes authorizing associations of individuals to incorpo- rate themselves on complying with certain provisions, and that although these corporations had generally been for re- ' Green v. Graves, i Doug. Mich. ' Matter of N. Y. Elevated R.R. Co., 351. 70 N. Y. 327. "^ Franklin Bridge Co. v. Wood, 14 ^ Keyser v. Trustees of Bremen, 16 Ga, 80; Matter of Deveaux, 54 Id. Mo. 88. See People v. Nelson, 10 673 ; Matter of Spring Valley, etc., Abb. Pr. N. S. 200. Co., 17 Cal. 136. § 28 , MODE AND EVIDENCE OF CREATION. IO9 ligious, literary, or manufacturing purposes, yet that the same power must always have been understood to exist with reference to any other objects.^ The capacity to have perpetual succession under a spe- cial name, and in an artificial form, to take and grant prop- erty, contract obligations, and sue and be sued as an indi- vidual, is inalienable in the hands of the artificial being when created; but it has no power to transfer its own ex- istence into another body, nor can it enable natural persons to act in its name save as its agents, or as members of the corporation acting in conformity to the modes required or allowed by its charter.* In England, at an early period, cor- porations exercised the right to create other corporations. In the latter part of the sixteenth century the mayor, al- dermen, and sheriff of Newcastle-on-Tyne incorporated a fellowship of cooks, giving them perpetual succession and the power to sue and be sued ; and the mayor, aldermen, and sheriff of the same city incorporated a company of coopers.^ It is safe to presume that no such power would be conferred on a corporation at the present day. §28. Language of statute. — In general, no particular form of words is required to create a corporation. A grant to a person and his successors and a grant to a body of men to hold mercantile meetings were held to confer corporate capacity. Many instances are to be found in the books of grants to inhabitants of a town that they should be a free borough and enjoy various privileges, which have been considered as constituting them a corporate body.* It was said by Cowen, J., in an early case in New York, that he could not see the force of the argument that because ' Thomas v. Dakin, 22 Wend. 108, v. Estwick, Salk. 193 ; Fazakerly v. per Cowen, J. See Medical Inst. v. Wiltshire, Strange, 462. Patterson, i Denio, 61. *Bac. Abr., tit.. Corporations, B. See ''Atkinson v. Marietta, etc., R.R. Denton v. Jackson, 3 Johns. Ch. 320; Co., 15 Ohio St. 21. Com. v. Westchester R.R. Co., 3 ''Grant on Corp. 12. See Cudden Grant's Cas. 200. no MODE AND EVIDENCE OF CREATION. § 29 the legislature had constantly avoided to call certain asso- ciations or their machinery a corporation, therefore the court could not adjudge them to be so ; that if they had the attributes of corporations, if they were such in the na- ture of things, the court could no more refuse to so regard them than it could refuse to acknowledge John or George to be natural persons, because the legislature might, in making provisions for their benefit, have been pleased to designate them as belonging to some other species.* The word " corporation " was not used in the New York gen- eral banking act of 1838, yet the institutions organized un- der it were held to be corporations.' An act which pro- vides that certain persons named, with their associates and successors, " are hereby made and constituted a body poli- tic and corporate," and as such may sue and be sued, prose- cute and defend, hold real and personal estate not exceed- ing fifty thousand dollars at any one time, grant and vote money, and "have all the powers and privileges, and be subject to all the liabilities incident to a corporation of a similar nature," gives all the attributes of a corporation and none of a simple 'association. It may not have stock ; and, if not, it can have no stockholders. But that is not essen- tial to a corporation.^ As applied to corporations, every grant of franchises is a charter. It may be the grant of a mere franchise of being a corporation, or a grant of powers to a corporation already in existence. In either case the grant is the company's charter to exercise the rights and privileges and enjoy the immunities granted.* § 29. Statutory construction — The first question to be de- termined, if the alleged or assumed fact is controverted, will be whether or not a corporation has been created. A ' Thomas v. Dakin, 22 Wend. 9. ' Weymouth v. Penobscot Log Driv- ' See Case of Waterbury Union Ex- ing Co., 71 Me. 29. press Co., 3 Abb. Pr. N. S. 163; Ma- ''State v. Commr. of Railroad Taxa- honey v. Bank of Ark., 4 Ark. 620; tion, 37 N. J. 228. Liverpool Ins.Co. v. Mass., 10 Wall. 566. § 29 MODE AND EVIDENCE OF CREATION. Ill grant of corporate power should be expressed in plain and unequivocal language, showing that such was the intention of the legislature. If the intention be left doubtful, it will be construed against the claim of the parties setting it up.^ In Ohio an act to establish and maintain an agricultural and mechanical college created a board of trustees to be appointed by the Governor with the advice and consent of the Senate, and committed to the board the government, control, and general management of the affairs of the insti- tution ; authorized the board to make contracts for the benefit of the college, to maintain actions, and to exercise other powers similar to those conferred on bodies corpo- rate. It was held that the board of trustees did not thereby become a corporation. The court remarked that similar powers, but perhaps less extensive because less required, had been conferred on the trustees of the various hospitals for the insane, and on the board of managers of the Ohio soldiers' and sailors' orphans' homes and other institutions of the State.^ A general law providing that corporations may be created for " hunting, fishing, or lawful sporting pur- poses " does not authorize the incorporation of a company for the purpose of suing for infractions of the game laws.^ But a statute of California,* having provided for the forma- tion of corporations for manufacturing, mining, mechani- cal, wharfing, and dockage, or chemical purposes, or for the purpose of engaging in any species of trade or commerce, foreign or domestic, it was held that the business of supply- ' Pennsylvania R.R. Co. v. Canal Miller, 7 Lansing, 412. Tiie following Commissioners, 21 Pa. St. 9. See resolve of the executive council of Mas- Myers V. Irwin, 2 Serg. & Rawle, 368 ; sachusetts, " Advised that a company Gregory v. Shelby College, 2 Mete, of artillery be established at Watertown Ky. 589 ; Cass v. Manchester Iron & agreeably to the military law," was Steel Co., 9 Fed. Rep. 640 ; New Or- held not to constitute the company a leans Banking Assoc, v. Wiltz, 10 Id. corporation. Shelton v. Banks, 10 330. Gray, 401. ''Neil v. Board of Trustees, etc., 31 ^ Act of April 14, 1853, as amended Ohio St. 15. by act of April 30, 1855. ^ Ancient City Sportsman's Club v. 112 MODE AND EVIDENCE OF CREATION. § 20 ing the inhabitants of a city with water for an equivalent consideration to be received, was engaging in a species of trade or commerce within the meaning of the act.^ The first section of a law chartering a fire insurance company enacted that ten persons named and the subscribers to the stock of the company and their successors should be a body politic and corporate ; the second section fixed the amount of the capital stock and the number of shares into which it was to be divided ; the fourth section provided that as soon as three thousand shares were subscribed and paid or se- cured to be paid, the company should be competent to transact business ; the fifth section enacted that after the subscription of three thousand shares, ten persons named should be directors of the company until their successors were elected, and such of them as were present at the first meeting were required to proceed to organize the company by electing a president and secretary. By the fifteenth sec- tion the persons named in the first section were required, as soon as practicable after the passage of the act, to open books for subscription to the capital stock. It was held that the procurement of the requisite number of shares was essential to the existence of the corporation, and that pre- vious to this no officers could be chosen.* Crocker v. Crane ^ was in relation to the charter of a railroad com- pany under the act of New York of 1832, ch. 129, the first section of which provided that three persons named and such other persons as should thereafter become stock- holders were constituted a body corporate and politic. The capital stock was fixed at a certain amount, and by subse- quent sections provision was made for obtaining subscrip- tions through the agency of commissioners, who were to meet after a stated period, and if more than the given ' Honeyman v. Blake, 19 Cal. 579. " Franklin Fire Ins. Co. v. Hart, 31 Md. 59. 821 Wend. 218. § 29 MODE AND EVIDENCE OF CREATION. II3 amount had been subscribed, they were to distribute the stock to the several subscribers in such manner as they should deem for the best interests of the corporation. It was held that the awarding and distribution of the stock were conditions precedent to the existence of the corpora- tion. In construing the powers of corporations organized un- der statutory provisions, reference is to be had to the en- abling act and to the general laws applicable to the corpo- ration under consideration, and whatever can be fairly and reasonably implied as incidental to the objects for which the corporation is created may be taken as granted.^ " Undoubtedly the main business of a corporation is to be confined to that class of operations which properly apper- tain to the general purposes for which its charter was granted. But it may also enter into contracts and engage in transactions which are incidental or auxiliary to its main business, or which may become necessary, expedient, or profitable in the care and management of the property which it is authorized to hold under the act by which it was created." * When the corporate powers are enumera- ted, the exclusion of all others is implied ; but this will not exclude the exercise of such powers as are incident and essential to the enjoyment of the powers enumerated. A grant of special privileges in derogation of common right must be strictly construed.* The validity of acts per- formed by a corporation under a claim of the rightful ex- ercise of its powers when called in question can usually be 1 Thomas v. Railroad Co., loi U. ^ Richmond, etc., R.R. Co. v. Lou- S. 71 ; Relfe v. Rundle, 103 Id. 222; isa. R.R. Co., 13 How. 71 ; Fertilizing Green Bay & Minn. R.R. Co. v. Union Co. v. Hyde Park, 97 U. S. 659 ; Rug- Steamboat Co., 107 Id. 98. gles V. Illinois, 108 Id. 526 ; Tyng v. ^ Brown v. Winnisimmet Co., 1 1 Commercial Warehouse Co., 58 N. Y. Allen, 326, per Bigelow, C. J. See 308 ; State v. Krebs, 64 N. C. 604 ; Jones V. Guaranty, etc., Co., 100 U. S. Babcock v. N. J. Stock Yard Co., 20 622 ; Taylor v. Phila. & Reading R.R. N. J. Eq. 296. Co., 7 Fed. Rep. 386. VOL. I. — 8 114 M-ODE AND EVIDENCE OF CREATION. §' 3° readily determined from the obvious intention of" the legis- lature and the objects of the incorporation, asshown by the statutes upon which the corporation relies for- its existence, the general rule being to construe charters liberally. § 30. Materiality of corporate name. — Every corporation must have a name by which it may be known and distin- guished ; for the name is the " knot of its combination," without which it could not exercise its corporate functions.^ It is the only designation of the corporation or of the mem- bers composing it. The latter are sufficiently indicated by the corporate name, and any other designation or descrip- tion would be superfluous.* It was stated by Sir Edward Coke that a name was as essential to a corporation as the baptisrnal name to a natural person.^ But such a com- parison is not strictly correct ; for although every man arid woman must have a name by which they can be identified, and so must a corporation, yet, while the change or omis- sion of a letter in a Christian name, as Olive for Oliver, would materially alter the name, the name of a corporation frequently consists of several descriptive words, and the transposition of them, or an interpolation or omission, or alteration of some of them, might make no particular dif- ference in the sense.* Thus, a note made payable to "The ' I Blk. Com. 475 ; Bac. Abr., tit. C; it is provided by statute that " no joint Glass V. Tipton, etc., Turnpike Co., 32 stbck company shall adopt the same Ind. 367. In Connecticut, it is enacted name which is being used at the time that " the corporate name of every cor- by another corporation." Code of West poration hereafter organized othervirise Va. 1868, p. 395. than by special charter shall commence "Trustees, etc., v. Parks, 10 Me. 441. with the word The, and end with the " A bishop or person acting in a cor- word Company, or Corporation." Genl. porate capacity and holding property Sts. of Conn. 1875, p. 277. In Colorado, to him and his successor in right of the corporate name is required to com- his office, has no need of a corporate mence with the word The, and end name." Overseers v. Sears, 22 Pick. 122. with the word Corporation, Company, ' Co. 28, 29. See Glass v. Tipton Association, or Society, and indicate by Tump. Co., 32 Ind. 376. the name the business to be carried on •* See i Kyd on Corp. 227 ; Chadsey by the corporation. Genl. L. of Col. v. McCrary, 27 111. 253 ; Bac. Abr., tit, 1877, pp. 143, 144. In West Virginia, Corporations, C. §'■30 MODE ANt)' EVIDENCE OF CREATION. II5 President, Directors & Co., of the Newport Mechanics' Manufacturing Company," was held recoverable in an action brought by " The Newport Mechanics' Manufacturing Com- pany."^ So, where a bequest was made to " The Franklin Seminary of Literature and Science, Newmarket, N. H.," and the only seminary at Newmarket was incorporated by the name of "The Trustees of the South Newmarket Methodist Seminary," it was held that parol evidence was admissible in explanation.* Where land was dedicated to the use of a religious society, and an edifice for public worship erected thereon, and the grant was made to " The Particular Baptist Church," it was held that the society by afterward changing its name to " The United Baptist Church," did not impair its right to the property.^ Less strictness as to the exact name is required in con- tracts, leases, bonds, and grants made by or to corporations, than in actions brought by or against them ; and still less in a devise or bequest.* "The general rule to be collected from the cases is, that a variation from the precise name of the corporation, when the true name can be collected from the instrument, or is shown by proper averments, will not ' Newport Mech. Manf. Co. v. Stair- ford, etc.. Tump. Co. v. Brush, 10 Ohio, bird, 10 N. H. 123. ill ; Pendleton v. Bank of Ky., i Mon. « Trustees, etc., v. Peaslee, 15 N. H. 177 ; Middletown v. McCormick, Penn- 317. Describing the Union Bank of ington Rep. 2d ed. 378; Inhabs. v. Calcutta, a joint stock copartAcrship, in String, 5 Halst. 323. When in a con- a promissory note, as " The Proprietors veyance to a corporation the name of of the Union Bank of Calcutta," was the corporate body is not correctly held immaterial. Forbes v. Marshall, stated, the deed is valid, notwithstand- 22 Eng. L. & Eq. 589. ing the grantor was ignorant that the ^Cahillv. Bigger, 8 B. Mon. 211.' grantee was a corporation. Ashville ••Northwestern Distilling Co. v. Bry- Div., No. 15, v. Aston, 92 N. C. 578. ant, 69 111. 658 ; Insane Asylum v. Where the charter of a turnpike com- Higgins, 15 Id. 185; Preachers' Aid pany required subscriptions to the stock Soc. V. Rich, 45 Me. 552; First Parish to be made to "The President, Man- in Sutton V. Cole, 3 Pick. 322 ; Institu- agers, and Company," and they were tion for the Blind V. Ho\y, 10 N. Y. 84; made to the "Managers and Corn- Hammond V. Shepard, 29 How. Pr. 188 ; pany," omitting the word " President," Clement v. Lathrop, 18 Fed. Rep. 885 ; it was held sufficient. Hagerstown Co. Romeo v. Ayer, 60 Pa. St. 430 ; Mil- v. Creeger, 5 Har. and Johns. 122. Il6 MODE AND EVIDENCE OF CREATION. § 3O invalidate a grant by or to a corporation, or a contract with it ; and the modern decisions show an increased liberality on the subject. For a corporation to attempt to set aside its own grant, by reason of a misnomer in its own name, was severely censured, and in a great measure repressed, as early as the time of Lord Coke." ^ If a corporation cannot avail itself of such misnomer, neither can a member of the corporation.* The objection that a promise in writing was to pay a certain sum to the " New York Central College," while the name of the corporation was the " New York Central College Association," was held untenable, it hav- ing been proved that the college was known by both names.^ An obligation or promise was to pay to " The Branch Bank of the State of Arkansas at Arkansas." The true name of the corporation was " The Bank of the State of Arkansas." The question was whether the words added before and after the true name were such as varied it sub- stantially, and constituted in fact a different obligee, or were such as only made a mere verbal difference, but were in substance and effect the same as the true name of the corporation. Held the latter, and that therefore the promise was binding upon the parties.* If J. S. Abbot, ' 2 Kent's Com., 8th ed., p. 341. See corporation. Consequently, everything Hoboken Building Assoc, v. Martin, 13 done by or to those intrusted with the N. J. Eq. 427 ; Franklin Av. Savings management of its business at said Inst. V. Board of Education, 75 Mo. branch in respect thereto, must be 408. considerad as done by or to the cor- ' Hyatt V. McMahon, 25 Barb. 457. poration, because being but aa integral * Hammond v. Shepard, 29 How. part of the whole, it can have no ex- Pr. 191. istence separate from and independent * Bower v. Bank of the State, 5 Ark. ot the corporation of which it is a 234. In this case the couTt said : member only, and therefore those who " The law incorporating the Bank of act therein cannot act for or as the the State of Arkansas has been held agents of that particular branch only, by this court to be a public law and the but must act for and as the agents of bank to be at least a quasi public cor- the whole corporation, notwithstand- poration. We are, therefore, bound to ing their powers may be restricted, so know judicially that there is a branch that they can only act in reference to of said bank at Arkansas, and that it is such portion of the business thereof as but a portion or integral part of said shall be transacted at that particular § 2,0 MODE AND EVIDENCE OF CREATION. II 7 of B., make a lease in the name of J. S. Clericus, of B., it is good.^ A grant of John Abbot, of N., by the name of William Abbot, of N., was held valid.^ The corporate name of a grantor was the Kentucky Seminary. The deed was made in the name of the Kentucky Academy. It was executed by the chairman of the board of trustees of the Kentucky Seminary. There was no such corporation in existence as the Kentucky Academy at the time the deed was executed. It was held that the variation was insufifi- cient to invalidate the conveyance.^ The name of a corpo- ration was "The Chartered Fund of the Methodist Epis- copal Church in the United States of America." Property was devised to " The Trustees of the Chartered Fund of the Methodist Episcopal Church located in Philadelphia." It was held that as the corporation was located in Phila- delphia, and no claim to the property was set up by any other institution, the corporation was entitled to take un- ,der the will.* In ascertaining the intent of the contracting branch or place. This the parties which accrued under the first act. It were bound to know and must be pre- was held that the new corporation was sumed to have known when the obliga- not in a situation to deny its identity tion or promise was made." with the original one. Episcopal, etc., ' Bac. Abr., tit. Corporations. Soc. v. Episcopal Church in Dedham, ^ Ibid. I Pick. 372. Where a mortgage on ' Ky. Seminary v. Wallace, 1 5 B. real estate was executed in the name of Mon. 35." a religious society by the president, ••Vansant v. Roberts, 3 Md. 119. secretary, and trustees, but it was not In 1794 an act was passed incorporat- shown what name had been given to ing the rector, wardens, and vestry of the corporation, it was held that it the Episcopal church in Dedham. In would be presumed that the corporate 1818 a new act was passed incorporat- name was the one in which the mort- ing certain persons therein named and gage was given. Meth. Epis. Church the proprietors of pews in the same of Kendallville v. Shultze, 61 Ind. 511. church, giving them control over the The terms "Congregational persua- property, and repealing all other acts sion " and " Congregational denomina- relating to the same subject. This tion," when used in connection with latter corporation took the name of the the denominational name of a religious Dedham Episcopal Church, and as- society, signify the church polity, and sumed the payment of all unsettled not any system of doctrine. Case of and outstanding accounts and claims, Town of DubUn, 38 N. H. 459. either in favor of or against the church. Il8 MODE AND EVIDENCE OF CREATION. § 3O pgfrties or testator, it is proper to show by what name th,e corporation was generally known and called by the parties, upon the same principle as evidence given to show in what sense particular terms are used in a will or other instru- ment.^ If a deed be made to a corporation by a name varying from the true name, the plaintiffs may sue in their true name, and aver in the declaration that the defendant made the deed to them by the name mentioned in the deed. An allegation in the declaration that the defendants ac- knowledged themselves to be bound unto the plaintiffs by the description, etc., is equivalent to such an averment.^ A corporation having been sued by a correct name, and judgment entered up against it in that name, but execution issued thereon in a different name, it was held that the vari- ance was material.^ Where in an indictment for arson the building burned was described as the property of the " Phoenix Mills Company," and it was proved that the name of the corporation was " The Phoenix Mills of Sen- eca Falls," it was Jield that the defect was fatal.* The name of a corporation may be acquired by usage.^ A corporation may have more than one name.® It may have one name in which to contract, grant,, etc., and another in which to sue and be sued. So it may be known by two different names, and be sued by either.'' It has been said ' McGary v. The People, 45; N. Y. Co., 5 ,Cnsh. 158 ; Hammond v. Shep- 153. ard, 29 How. Pr. 188. " A corporatitm 'N. Y. African ,Soc, v. Varick, 13 created within memory can regularly Johns. 38. ,have but one name, and in all legal ' Bradford V. Water Lot Co., 58 Ga. proceedings the true name must be 280. used." Allen, J., in McGary v. Peo- * McGary v. The People, supra. pie, 45 N. Y- 153- The fact that a vol- ' Smith V. Plank R. Co., 30 Ala. untary religious society constituted un- 650. der the laws of a State without a spe- ^ Knight V. Wells, i Ld. Raym. 80 ; cial legislative act of incorporation has Shrewsbury V. Hart, i Car. & P. 113; borne different names, does not affect Minot V. Curtis, 7 Mass. 441 ; Medway its identity. Wardens, etc., v. Hall, 22 Cotton Manuf. Co. v. Adams, 10 Id. Conn. 125. * 360 ; Commercial Bank v. French, 21 ,' Thomas v. Dakin, 22 Wend. 73, Pick. 486 ; Milledge v. Boston Iron per Nelson, C. J. § 30 MODE AND EVIDENGE ^OF CREATION. II9 that " there seems to be no reason why an act of Parliament might not empower a corporation by charter to use two names for the same purpose." ^ The only material circum- stance is a name or names of some kind by which it is known, and in which all its affairs may be conducted. Although the name of a corporation may seem to express only a certain number of individuals by their name of office, yet in all lawful acts and legal proceedings it must he taken to mean the whole corporate body.^ A corporation cannot of itself, like a partnership, or simple joint stock trading company, take a new name ; such a change requiring the same power that created the corpo- ration. It might perhaps so adopt a name in the transac- tion of its business as to be made liable in its true name upon transactions in its assumed name ; but it must then be sued by its true name.^ The identity of name is the prin- cipal means for effecting the perpetuity of succession, which is an important purpose of incorporation. The title to shares, the liability on contracts, and the right to assets, would be in danger of confusion if the name were subject to such change.* Notwithstanding a clause in the constitution of a State that " corporations may be formed under general laws that shall not be created by special acts except for municipal purposes," the legislature may change the name of a cor- poration, and give it power to purchase additional property, no new corporate powers or franchises having been created.^ In a case in California,^ .this q.uestioji was -considered, but ' I Kyd on Corp. 230. See College xg Minn. 5?8 ; Dubuque & Minn. R.R. of Physicians v. Salmon, 3 Salk. 102 ; Co. v. Keisel, 43 Iowa, 39. A mere Conro V. Port Henry Iron Co., i2'Barb. xhange or abbreviation of the name 27. See Wells v. Oregon R.R., etc., would not necessarily destroy the iden- Co., 15 Fed. Rep. 561. tity of the corporation. Girard v. Phila., « Ibid. 7 Wall. I. ' McGary v. People, supra. ' Wallace v. Loomis, 97 U. S. (7 ■> Regina v. Registnir, 10 Adol. & Ell. Otto) 146. 839 ; Morris v. St. Paul, etc., R.R. Co., ' Padiic Bank v. De Ro., 37 Cal. 538. I20 MODE AND EVIDENCE OF CREATION. § 31 not determined. The court said : " The mere changing the name of a corporation is not, as it appears to us, the crea- tion of a corporation in the sense of the constitution. As suggested by the counsel for the plaintiff, it would seem that the changing of the name of a corporation is no more the creation of a corporation than the changing of the name of a natural person is the begetting of a natural person. The act, in both cases, would seem to be what the language which we use to designate it imports, a change of name and not a change of being." Where, after a corporation was created, a subsequent legislature changed its name without altering its powers, it was held not a valid objec- tion as between the company and third persons, as the identity of the corporate body could be shown.^ In Tennessee, courts of chancery are clothed by statute with authority to change the name of any private corpora- tion upon application and good reason shown by the directors.^ In Maine, a corporation may, at a legal meet- ing of stockholders, vote to change its name and adopt a new one ; and when the proceedings of such meeting, certified by its clerk, are returned to the office of the Secre- tary of State, to be recorded by him, the name will be deemed changed.^ § 31. Wrongful adoption of name. — Property in a name is a well-recognized right of the civil law, and suits are said to be common in France and Scotland to enforce such rights and prohibit their infringement. The name of a corpora- ' Rosenthal v. Madison, etc., Plank 577 ; In re First Presbyterian Church R. Co., lolnd. 538. An act permitting of Bloomfield, iii Pa. St. 156. The a railroad company to change its name New York Code, sec. 1777, provided and extend its road does not create a that in an action or special proceeding new corporation. Atty. Genl. v. Joy, by or against a corporation, a mistake 55 Mich. 94. in the corporate name would be deemed '^ Act of Tenn. of 1871, sec. 11. to have been waived, unless the mis- 'Rev. Sts'. of Me., ed. of 1871, p. nomer was pleaded by the defendant in 394, sec. 5. See Trustees of North- the answer or other pleading, western College v. Schwagler, 37 Iowa, § 31 MODE AND EVIDENCE OF CREATION. 121 tion will be protecfed upon the same principle that protec- tion is afforded in the use of a trade-mark. The ground of relief is the injury to the party aggrieved, and the imposi- tion upon the public. This does not necessarily depend upon the question of fraud or evil intent, the quo animo not being material ; for the natural and necessary conse- quence of the wrongful appropriation of a corporate name must be, in some degree at least, to injure the business and rights of the corporation by destroying or confusing its identity.^ "The act is an illegal one, and must, if neces- sary, be presumed to have been done with an intent to cause the results which naturally flow from it. Nor will a court of equity refuse to enjoin the wrongful appropriation of a corporate name, until the right of the first corporation to the name has been established by the verdict of a jury in an action at law. Such right does not rest in parol, but is shown by the record, if at all, and is determined by the court in any form of proceeding. Neither in such case has the party injured an adequate and complete remedy at law. As in the case of patents for inventions and copyrights, the remedy at law can only give redress for the past injury, and that often inadequately. But to protect the injured corporation frbm the mischief arising from the continued violation of its rights and from perpetual litigation concern- ing them, resort must be had to the equitable remedy by injunction."* The petitioners stated that they wished to organize as a corporation for charitable and benevolent purposes, under the name and style of " The Ladies' Good Samaritan Society of Nashville." The application was op- posed by a corporation previously chartered under the name of "The Nashville Ladies' Good Samaritan Society, No. 2," which did not object to the incorporation of the peti- tioners under any other name t;han the one chosen, but ' Holmes v. Holmes Manf. Co., 37 ^ Deady, J., in Newby v. Oregon Conn. 278. Centr. R.R. Co., Deady R. 609. See Story's Eq. Juris., sec. 930. 122 MODE AND EVIDENCE OF :CREATION. §3:2 contended that to allow them to be incorporated under the name sought would lead to confusion and dispute, and prove an injury to both. The court of chancery, to which the petition was presented, and which, under the statute of Tennessee, was clothed with power to organize corpora- tions, held that the petitioners, if they wished to be incor- porated, must take a different name, but that a slight change in the name would be suflficient.^ Of course, when in such a case there is a complete remedy at law, an injunction will not be granted.^ A court of equity will not lend its aid to restrain a company from using a name in the transaction of its business, which name it adopted as that of a corporation before the complainant was organized as a corporation under the same name, although the defendant no longer acts in the capacity of an incorporated body, but continues its business as a partnership.^ Where a corporation takes the name of four of its principal stockholders, a corpora- tion afterward organized cannot lawfully adopt the same name, although the principal stockholders in the first com- pany are also members of the second.* § 32. Where there are two corporations of the same name. — Similarity of name of officers or of members, or even of objects, cannot of itself establish the identity of corpora- tions created at different times by different charters. To . ascertain whether a charter creates a new corporation or merely continues the existence of an old one, its terms must -be considered, and a construction given them consistent -with the legislative intent, and the intent of the corpora- tors. The existence of a bank was limited by its charter. Afterward, while the old bank was still in existence, a bank of -the same name was incorporated, with a capital less in amount by several thousand dollars than that of the old ' Walker, eye parte, i Tenn. Ch. 97. * Ottoman Cahvey Co, v. Dane, 95 'London Soc. v. London Ins. Co., 11 111. 203. Jur. 938. ■* Holmes v. Holmes Manf. Co., supra. § 33. MODE AND EVIDENCE OF CREATION. 1 23 bank. The second charter referred to the old bank as an existing corporation, and declared that " any director of the old bank may be eligible as a director of the bank hereby established." It further declared that the new bank might take, receive, and hold, by assignment, any mortgages pos- sessed by the old bank, which might be assigned and taken by agreement between the two corporations. It was held that there was abundant evidence that the legislature con- templated the erection of a new corporation, although the same persons were president, cashier, and directors in both banks.* Notwithstanding a corporation is chartered in two differ- ent States by the sanrie name and style, with the same capacities and powers, and intended to accomplish the same objects, there is a distinct and separate corporate body in each State** Where two companies were chartered with the same name in adjoining States, to construct a canal in each State ; and afterward, by virtue of several acts, the corporations acquired a unity of interests, it was held that they did not cease to exist as distinct corporations ; the union being merely of interests and stocks, and not a sur- render of personal identity by either corporation.^ § 33" Essential preliminary steps. — When the statute creat- ing a corporation provides that, to entitle it to exercise cor- porate powers, something shall be done by it in futuro to establish the existence of the corporation, it must be shown that the act has been performed, or there must, at least, be proof of user under the charter.^ If a corporation be organized under a general law, the articles of association must conform strictly to the law in specifying the objects of the incorporation, and all of the conditions be observed." •Bellows V. Halloyrell & Augusta * Farr)um v. Blaqkstone Canal Corp., Pank, 2 Mason, 31. And see Wyman i Suniner, 46. V. same, 14 Mass. 58. ' '•Fijce Department of N. Y. v. Kip, 2 Ohio & Miss. R.R. Co. y. -Wheeler, 10 Wend. ?66. 1 Black. 286. ' West v. Bullskin Prairie Ditching 124 MODE AND EVIDENCE OF CREATION. § 33 Where a statute authorized three or more persons who had entered into articles of agreement in writing for the transaction of certain kinds of business, to organize in a prescribed manner, and thereby become a corpo- ration, it was held that written articles of agreement were necessary to constitute a corporation, and that these arti- cles must fix the amount of the capital stock, and set forth distinctly the purpose for which, and the place in which, the corporation was established.^ " There is an obvious reason for making such organization by written articles of agreement a condition precedent to the exer- cise of corporate rights. It is the basis on which all subse- quent proceedings are to rest, and it is designed to take the Co., 32 Ind. 138 ; O'Reiley v. Kankakee Draining Co., lb. 169. ' Utley V. Union Tool Co., 11 Gray, 139. In Texas, corporations may be created by the voluntary association of three or more persons. A charter must be prepared, setting forth the name of the corporation ; the purpose for which it is formed ; its place of business ; the terra for which it is to exist ; the num- ber of its directors or trustees, and the names and residences of those ap- pointed for the first year ; the amount of its capital stock, if any, and the num- ber of shares into which it is divided. The charter must be subscribed by three or more persons, two of whom at least must be citizens of the State, and be acknowledged by them, and be filed in the office of the Secretary of State. Rev. Sts. of Texas, ed. of 1879, pp. 95, 96, arts. 565, 567, 568, 569. In Con- necticut, any number of persons not less than three may associate and be- come a body corporate where no capital stock is created. Genl. Sts. of Conn. 1875, p. 277. The same number is re- quired in Arkansas. Rev. Sts. of Ark. 1874, pp. 626, 627, sec. 3333. In Illi- nois, there must not be less than three nor more than seven persons. Rev. Sts. of 111. 1874, p. 285. In Ohio, cor- porations may be formed for any pur- pose for which individuals may lawfully associate themselves, except for deal- ing in real estate, or carrying on pro- fessional business ; and if the organiza- tion is for profit, it must have a capital stock. Any number of persons, not less than five, a majority of whom are citizens of the State, desiring to be- come incorporated, must subscribe and acknowledge, before an officer au- thorized to take acknowledgments of deeds, articles of incorporation, which must contain : i. The name of the cor- poration ; the place where it is to be located, or where its principal business is to be transacted ; the purpose for which it is to be formed ; the amount of its capital stock ; and the number of shares into which the stock is divided. When an improvement is to be con- structed, which is not to be located at a single place, the articles must set forth the kind of improvement intend- ed, its termini, and the counties in which it or its branches will pass. Rev, Sts. of Ohio, ed. of 1880, sees. 3235, 3236. 3237- § ^S MODE AND EVIDENCE OF CREATION. 1 25 place of a charter or act of incorporation by which corpo- rate rights and privileges are usually granted. If there were no such requirement, there would be an absence of any provisions by which the right to exercise corporate power could be definitely fixed and established, and there would be no means of ascertaining the rights of stockhold- ers or of persons dealing with such associations It is not a case of defective organization under a charter or act of incorporation, nor of erroneous proceedings after the necessary steps were taken to the assumption of corporate powers, but there is an absolute want of proof that any corporation was ever called into being which had the power of contracting debts or of rendering persons liable therefor as stockholders." ^ The members of an insurance company, formed under the provisions of the statute, not having subscribed the ar- ticles of association or given public notice of its formation, name, and object pursuant to law, it was held that it had not become a corporation.* Under the Code of lowa,^ pro- viding that a corporation may commence business as soon as its articles are filed in the recorder's office, and that its doing so shall be valid if publication be made in a newspa- per within three months, it was held that the publication of a notice of incorporation was material, and that without it the doings of the company would not be valid as corporate acts.* ' Utley V. Union Tool Co., 1 1 Gray, liability, there is much reason for pro- 139, per BiGELOW, J. viding not only that they shall provide ' Union Ins. Co. v. Grain, 43 N. H. for individual exemption by recorded 636. articles, but shall publish to the world ' Sec. 1064. the fact that they claim such exemp- * Eisfield V. Kenworth, 50 Iowa, 389, tion. It is true that the publication Adams, J. : " It is objected to this could not be presumed to give actual view that it is unreasonable to sup- notice to a, very large number of those pose that the legislature would attach who may deal with the corporation, so much importance to the publication The publication need continue only of notice. But where a body of men, four weeks, while the corporation may larg'e or small, contract a liability, but by renewal continue indefinitely. Still, with the design of escaping individual the publication would tend to fix the 126 MODE AND EVIDENCE OF CREATION. § 33 The Code of California^ requires that the articles of in- corporation shall, among other matters, set forth that a majority of the members of the association voted at the election. Where the certificate omitted any statement to that effect, it was held insufficient to constitute the asso- ciation a corporation, and that the defect was not aided by an averment in the answer that in point of fact a majority of the members of the association did vote at the election.* In New York it was held that a railroad corporation was not legally constituted until all the requirements of the statute had been complied with and the articles filed in the office of the Secretary of State ; that, until this was done, the subscription to the articles was a mere proposition to take the number of shares indicated by the subscription of the capital stock of the corporation thereafter to be formed, and not a binding promise to take and pay.' Under the act of Illinois,* relative to the formation of manufacturing corporations, providing that when the cer- tificate of incorporation shall have been filed with the clerk of the court and a duplicate filed in the office of the Secre- tary of State, the clerk shall issue a license to the persons who signed and acknowledged the certificate, on the recep- tion of which they and their successors shall be a body cor- porate, the signers of the certificate do not become a cor- poration by the making of the certificate, but only upon the reception of the license.'' Parties made and filed a cer- tificate of incorporation, and entered into a written agree- ment to associate themselves for manufacturing purposes, and to contribute to the corporation certain property as capital stock. Subsequently a license was issued pursuant to the statute, but no stock-book was opened, nor any sub- character of the corporators as doing ' Sec. 594. business under a claim of individual » People v. Selfridge, 52 Cal. 331. exemption, and those who deal with 'Burt v. Farrar, 24 Barb. 518. thenn may properly enough be required * Laws of 1857, p. 161. to take notice of it. " ' Stowe v. Flagg, 72 111. 397. §34 ' MODE AND EVIDENCE OF CREATION. 1 27 scription for stock made more than the written agreement, which, so far as it related to stock, was executory to take and put in stock at a future time. Stock was essential to the existence, of a manufacturing corporation under the statute. It was held that the property had never been changed into corporate property, but belonged to the par- ties as an association of individuals under their written agreement.^ § 34. Exact conformity with provisions of act not required. — A substantial compliance with the requirements of the statute will be sufficient to show a corporation de jure in an action between the corporation and a private person.^ A statute provided that " any number of persons, not less than' three, who, by articles of agreement in writing, have associated or shall associate according to the provisions of this chapter, and who shall comply with all the provisions of this chapter, shall constitute a body corporate. Before any corporation, formed and established by virtue of the provisions of this chapter, shall commence business, the president and directors thereof shall cause their articles of association to be published," etc. It was held that the body might be a corporation for all the purposes of bring- ing an action without publication ; that if the pubHcation were omitted, the corporation might be restrained or wound up, but it would not enable a debtor to escape payment.^ A number of persons signed articles of asso- ciation for a certain purpose, but did not describe them- selves as inhabitants of any town or make any reference to the statute. They, however, provided in their articles for the annual election of a president, vice-president, secretary, ' Stowe V. Flagg, 72 111. 397. ness of a corporation as the "principal Oroville & Virginia R.R. Co. v. place of business " is a mere technical Plumas Co., 37 Cal. 354. error, which does not avoid the char- Holmes V. Gilliland, 41 Barb. 568, ter. Spring Valley Water Works, ex Sutherland, J., dissenting. The parte, 17 Cal. 132. failure to describe the place of busi- 128 MODE AND EVIDENCE OF CREATION. ' § 34 treasurer, trustees, prudential committee, etc., to hold office until others should be elected, subject to removal by a vote of two-thirds of the members. As the object of the asso- ciation was one expressly contemplated in the statute, the form adopted substantially conformed to the one pre- scribed, and no words were inserted indicating an intention not to form itself into a corporate body,- it was held that it was a corporation under the statute.^ In Massachusetts the object of a joint stock company, stated in the articles of association, was : " Manufacturing and selling daguerre- otype mattings and preservers, and all other goods, wares, merchandise, and articles made of brass, silver, gold, iron, or other metals, or any compounds thereof." It was con- tended that the purposes of the association were not " dis- tinctly and definitely specified," as required by the act un- der which it was organized, so that it never became a cor- poration. The objection, however, was not sustained, there being no legal objection to the manufacture by a single corporation of a great variety of articles.^ Where all of the requirements of the statute were followed, except naming the directors in the articles of association, and that was done in effect by the adoption of the articles when the directors were elected, it was held sufficient ; the provision that the directors be named in the articles being merely di- rectory.^ The giving of a bond by the treasurer of the company for the faithful discharge of his duty is not es- sential to the creation of the body politic, but rather a pre- caution to be subsequently adopted for the benefit of the stockholders. It would seem indeed to be a security which could only be obtained after the corporation had come into existence, for if a bond is to be taken from one of its offi- cers, the corporation must first act upon the subject and determine what shall be its terms and to whom it shall be ' Rogers v. Danby Universalist Soc, ° Eakright v. Logansport, etc., R.R. 19 Vt. 187. Co., 13 Ind. 404. ' Bird V. Daggett, 97 Mass. 494. § 35 MODE AND EVIDENCE OF CREATION. 1 29 given.* The grant of a charter to a person and his asso- ciates does not necessarily make it incumbent on him to take associates.^ The term "associates" may mean those who are already associated with the persons named or those who may come in afterward. When the language is am- biguous, the question is one of construction as to legisla- tive intent. If the grant be to one person who is at liberty to associate others and no provision is made for a division of the property into shares, for the call of a meeting, the choice of a clerk or other officer, or the keeping of records or any mode of organization, the inference will be that it was the intention of the legislature to permit one person or his successor to exercise all of the corporate powers.^ On the other hand, where persons are included in the act as recipients of the charter under the name of "associates," they must be actual associates and capable of being desig- nated, identified, and ascertained to be such at the time of the granting of the charter. If articles of association were drawn and signed, the parties to it agreeing to unite in ap- plying for an act of incorporation, and an act were passed conferring corporate powers on two or three of them and their associates, referring to the articles, the act would be deemed to apply to all who were named in the articles.* § 35. Charter must be accepted. — The charter of a private corporation, being in the nature of a contract, cannot be forced upon a body of persons who do not choose to accept it. Consequently, the mere enactment of a charter with- out acceptance does not create a corporation ; and an offer of a charter until accepted may be withdrawn.^ " That a ' Boston Acid Manuf. Co. v. Stetson, receive associates presupposes a corpo- 8 Me. 365. The recording of an offi- rate organization. Lechmere Bank v. cial bond is not essential to its validity Boynton, 1 1 Cush. 369. unless it be so expressly declared. ' Penobscot Boom Corp. v. Lamson, Burgess v. Pue, 2 Gill, 254. 16 Me. 224. ^Hughes V. Parker, 19 N. H. 181; ^Lechmere Ba.nk v. Boynton, supra. S. c. 20 Id. 58; Frost V. Frostburg *Rex v. Vice-Chancellor, 3 Burr, Coal Co., 24 How. 278. The right to 1661 ; Rex v. Askew, 4 Id. 2200 ; Rex VOL. I.— 9 I30 MODE AND EVIDENCE OF CREATION. §35 man may refuse a grant, whether from the governm'ent or an individual, seems to be a principle too clear to require the support of authorities." ^ Where, by an act of the legis- lature, a corporation was created to be composed in the first instance of the members of several pre-existing com- panies, it was held that a member of one of the old com- panies, who did not expressly assent to the act, was not, by V. Pasmore, 3 Term Rep. 240 ; Rutter V. Chapman, SMee's. & Welsh, i ; York & North Midland R.R. Co. v. Regina, 18 Eng. L. & Eq. 109; Dartmouth College V. Woodward, 4 Wheat. 688 ; Falconer v. Campbell, 2 McLea^n, 196 ; Canal Co. y. Railroad Co., 4 Gill & Johns. I ; Bailey v. The Mayor, 3 Hill, 543 ; Haslett v. Witherspoon, I Strobh. Eq. 209 ; Riddle v. Props., etc., 7 Mass. 187 ; Goshen & Sharon Turnpike Co. V. Sears, 7 Conn. 86 ; State v. Bull, 16 Id. 179; Alton R.R. Co. v. Dietz, 50 111. 210; Green v. Seymour, 3 Sandf. Ch. 285. The charter of a private cor- poration "is something more than a law, in that it contains stipulations which are terms of compact between the State as one party, and the corpo- rators as the other, which neither party is at liberty to disregard or repudiate." COOLEY, J., in Flint, etc., Plank R. Co. V. WoodhuU, 25 Mich. 99. An amend- ment or modification of a charter of a private corporation must be made by the parties to the contract, the legisla- ture on the one hand, and the corpora- tion on the other ; the former express- ing its intention by a legislative act, and the latter assenting thereto by a vote of a majority of the stockholders, or by other acts showing its accept- ance. Yeaton v. Bank of the Old Dominion, 21 Gratt. 593. The charter of a municipal corporation goes into operation without acceptance, unless it is otherwise provided by the act of in- corporation. Warren v. Charleston, 2 Gray, 84; Blessing v. Galveston, 42 Texas, 641 ; Alcorn v. Horner, 38 Miss. 652 ; City of Clinton v. Cedar Rapids, etc., R.R. Co., 24 Iowa, 45^5 ; People y. Salomon, 51 111. 53; Smith v. McCarthy, 56 Pa. St. 359; Barnes v. District of Columbia, 91 U. S. 540 ; Berlin v. Gorham, 34 N. H. 266 ; Mayor, etc., of Bait. v. State, 15 Md. 376. An indefinite number of inkabited houses near each other constitute a town, and a town may exist without or before either houses or people. Besides peo- ple and houses, and the territory on which they are located, the authority of law under which the affairs of the town may be regulated is necessary, and this must be derived from the legis- lature. The power of the legislature to provide a government for a town which is without one, does not neces- sarily depend upon the consent of even a majority of its inhabitants. What- ever assent might in theory or in prin- ciple be deemed requisite as the basis of legislation would be implied from the fact that the individuals concerned had placed themselves in a condition which required it. Cheaney v. Hooser, 9 B. Mon. 330. ' Parker, J., in Ellis v. Marshall, 2 Mass. 268. See City of Paterson v. Society, etc., 4 Zab. 385. The offer may be withdrawn by an amendment of the constitution prohibiting both the State and corporators from giving as- sent to such a corporation. State v. Dawson, 16 Ind. 40. See Aspinwallv. Daviess County, 22 How. 364 ; State v. Roosa, 1 1 Ohio Sts. 16. § 35 MODE AND EVIDENCE OF CREATION. I3I the mere force of the act, constituted a member of the new organization.^ The act must be accepted, if at all, unconditionally.* Whether the charter be one of creation, or one granted to a pre-existing corporation, or the charter be amended, part of it, or part of the amendment, cannot be accepted and not thp whole ; unless it is clearly the intention of the act that the grantees shall have the option to accept in part and re- ject in part.® If there once be a valid acceptance of the charter, and the company organized thereunder, it cannot afterward be contended that there was no acceptance ; and a subsequent withdrawal of any of the corporators will not affect its vitality.* The same principle of law applies to an act continuing a charter beyond its original term, as to the act which granted the charter ; that is, in both cases, the grant of chartered powers must be accepted.^ The rule that a charter, or an amendment thereto, must be either accepted or rejected, as offered, and without con- dition, and that, in accepting the privileges conferred, the grantees will be required to perform the conditions imposed, is applicable to subsequent conditions to be performed after the organization of the corporation, and not to conditions ' Gardner v. Hamilton Ins. Co., 33 N. stance in which I have ever heard it Y. 421. contended that a charter could be ac- ' Green v. Seymour, supra. The cepted in part only, is where the king general principle is that he who accepts has granted two distinct things both a charter, consents to whatever is con- for the benefit of the grantees. There, tained in it. Lord Eure v. Strickland, I know, that some have thought that Cro. Jac. 240 ; Bret v. Cumberland, Id. the grantees may take one and reject 399 ; Mayor of Lynn v. Henley, i Scott, the other. However that may be, it 39, affi'd 2 CI. & Fin. 331 ; Bushwick, cannot extend to this case. This cor- etc, Co. V. Ebbets, 3 Edw. Ch. 353. poration must either have accepted in ' Rex V. Westwood, 4 Bam. & Cress, toto or not at all. If they could have 781 ; Kenton County Ct. v. Bank Lick accepted a part only of the charter, Turnpike Co., 10 Bush. Ky. 529. In they would have been a corporation King V. Amery, I Term .Rep. 589, created by themselves and not by the BULLER, J., said : " The averment pro- king." ceeds on a mistake by supposing that a *Busey v. Hooper, 35 Md. 15. charter may be accepted in part and ' Lincoln & Kennebec Bank v. Rich- rejected as to the rest. The only in- ardson, i Me. 79. 132 MODE AND EVIDENCE OF CREATION. § 35 precedent upon the strict performance of which the very- existence of the corporation depends. By conditions pre- cedent, are meant anything which, by the express provisions of the statute, is made a condition to be performed on the part of the corporators before and as a foundation for the exercise of powers and privileges under the charter.^ The law protects a stockholder who, his assent being req- uisite to the amendment of a charter, has not assented. If a personal charge is sought to be fixed upon him by virtue of such amended charter, he will not be concluded by any presumption arising from the acts of the other corporators or of the corporate body. " But it cannot be permitted that a corporator, though his assent be in the first instance required, shall stand by consenting to the progress of a cor- poration under a charter, and then, when his interest may thus be promoted, set up either as a claim or defense that for want of his direct assent the grant of the charter was not effective, and that the acts done are illegal."' Where the powers of a corporation are enlarged by the legislature, with the assent of the members, one of them cannot, by with- holding his consent, prevent the exercise of the enlarged powers.^ A reservation by the legislature of the power to amend a charter, does not imply the right to add new parties without the consent of the corporation.* " Although moneyed corporations, composed of shareholders for whose use and benefit the charter is granted, may in general accept amendments, yet in charities, the corporators do not own the fund, neither is it held to their use ; their consent would affect the property of others ; and their office of visitors, so far from giving them power to authorize any change in its management and control, contrary to the will of the founder. ' Lyons v. Orange, etc., R.R. Co., 32 Ohio St. 73. See Logan v. McAllister, Md. 18. 2 Del. Ch. 176. "JHOLSON, J., in Owen v. Purdy, 12 = Curry v. Scott, S4Pa. St. 270. * Sage V. Dillard, 1 5 B. Men. 340. § 36 MODE AND EVIDENCE OF CREATION. 1 33 imposes upon them rather the obligation to see that that will is made paramount." ^ § 36. Mode of acceptance. — The grant must be accepted by a majority of the members of the proposed corpora- tion.* Where an act constitutes several persons therein named a corporation, it is sufficient that a majority of such persons accepted the charter, those afterward uniting with the company signifying their assent by becoming members.^ The acceptance may be by the directors if assented to by the company.* Where a railroad company by its directors voted to make an extension authorized by an act of the legislature amending their charter and caused the same to be recorded, it was held that these proceedings clearly showed an acceptance of the act.® When the corporate existence is devolved on a board of officers, they not only wield the whole corporate authority, but may apply for and agree to radical changes in the instrument of their crea- tion. If such a board be divided into integral parts occupy- ing distinct positions, both must concur in any act having ' State V. Adams, 44 Mo. 570 per Wales, and provided for the transac- Bliss, J. tion of business at meetings in a hall = Com. V. Huston, 7 Serg. & Rawle, in London or within three miles of that 460; St. Paul Division v. Brown, 11 city, and authorized the master, war- Minn. 356; Taylor v. Commissioners dens, etc., to make by-laws for the of Newberne, 2 Jones Eq. 141. Al- government of the society, of every though a legislative alteration of the member of it, and of every person us- charter of a private corporation when ing the art or mystery of making to- rn erely auxiliary and not fundamental bacco-pipes in London and Westmin- may be accepted by a majority of the ster and any other places in England corporators, and such acceptance will or Wales. It was held that though bind the whole, yet if such alteration the charter was inadequate to bind all be fundamental, the acceptance must the tobacco-pipe makers in the king- be unanimous. State v. Accommoda- dom, it was competent to bind such of tion Bank, 26 La Ann. 288. them as became members of the com- ^ Rex v. Amery, I Term Rep. 575 ; pany. Tobacco-Pipe Makers Co. v. Day v. Stetson, 8 Me. 865 ; Penobscot Woodroffe, 7 Barne & Cress. 838. Boom Corp. v. Lamson, 16 Id. 224; * Lincoln & Kennebec Bank v. Rich- Charter of Nat. Military Asylum, 1 1 ardson, i Me. 70 ; Mutual Ins. Co. v. Opin. Atty. Genl. 261. The king in- Stokes, 9 Phila. 80. corporated the tobacco-pipe makers in " Bangor, etc., R.R. Co. v. Smith, London, Westminster, England, and 47 Me. 34. 134 MOBE AND EVIDENCE OF CREATION. § 3^ for its object an alteration of the fundamental law, though in the exercise of the ordinary powers of the corporation they act jointly and are governed by a majority of the united bodies. But where the whole body of stockholders or other persons in interest compose the corporation, the right of assenting to any proposed change in the charter resides in them, though ordinarily i:epresented by a board of directors charged with the exercise of corporate powers.^ There need not be a formal declaration of acceptance ; but assent may be inferred from the conduct of the per- sons interested, as, for example, from the exercise of corpo- rate powers under the statute, the election of officers, the holding of meetings, the adoption of by-l9,ws, and other corporate acts.* It is customary at a meeting of the corpo- rators called and held according to the provisions of the charter, after choosing a chairman and secretary of the meeting, to take a vote upon the question whether or not they will a,ccept the charter. If the vote is in the affirma- tive, an organization takes place by the election of perma- nent officers and other acts important to carry into effect the objects of the company and a record thereof made.^ To make a vote of acceptance valid as the act of a corpora- tion, it should be passed at a meeting duly convened after notice to all the members. The private procurement of a written assent signed by a majority of the members will not supply the want of a meeting.* But a written accept- ance of the charter, though not executed at a rneeting, may ' Com. V. CuUen, 13 Pa. St. 133. 56 Miss, 733; Atlanta v. Gate City »Rex V. Hughes, 7 B. & C. 708 ; Gaslight Co., 71 Ga. 106; State v. Russell V. McLellan, 14 Pick. 63 ; Mu. Sibley, 25 Minn. 387 ; Hammond v. Ins. Co. V. Stokes, supra; Logan v. Strauss, 53 Md i. The question McAllister, 2 Del. Ch. 176; Bank of whether or not the charter has been y. S. V. Dandridge, 12 Wheat. 64; accepted is pne of fapt to be determined^ Same v. LjTnan, i Blatchf. 297 ; 20 by the jury. lb. Vt. 666; Bangor, etc., R.R. Co. v. 'Hudson v. Carman, 41 Me. 84. Smith, 47 Me. 34; McKay v. Beard, *Com. v. CuUen, 13 Pa. St. 133. 20 S. C. 156. See Perkins v. Saunders, § 37 MODE AND EVIDENCE OF CREATION. 1 35 be sufficient if signed by all the stockholders or parties in interest.^ In Pennsylvania it has been held that before a charter can be regarded as accepted by a religious society, the members must have acted unitedly and signified their assent or dissent in their associate capacity. **' An alteration of a charter may be agreed to either before or after the pas- sage of the act, the assent of the stockholders relating back to the date of the law.* § 37. Proof of acceptance. — The acceptance of the charter, like every other controverted fact, is to be proved by the best evidence in the power of the party who relies upon it. The books of a corporation are the regular evidence of its doings. If books have not been kept, or have been lost or destroyed, or are not accessible to the party upon whom the affirmative lies, an acceptance of the charter may be proved by implication from corporate acts.* Where private corporations are chartered for the benefit of individuals, the presumption is that they are chartered at the instance and on the request of the parties to be benefited thereby, and consequently accepted by them. If, therefore, they are found exercising the privileges granted, it will be almost conclusive evidence of the fact of acceptance.^ Where an act of incorporation was read in evidence, and it was proved that meetings were held under it, by-laws adopted, officers chosen, and other important corporate acts done, it was held sufficient to establish the fact of the existence of a corporation, although no legal record of the first meeting and acceptance of the charter could be produced.* The ' Davies v. Hawkins, 3 Maule & * Hudson v. Gartnan, 4.1 Me. 84 Selw. 488 ; Stow v. Wyse, 7 Conn. Palfrey v. Paulding, 7 La. Ann. 363 214 ; Livingston v. Lynch, 4 Johns. Ch. Russell v. McLellan, 14 Pick. 63 ; Ly- 573 ; In re St. Mary's Church, 6 Serg. ons v. Orange, etc., R.R. Co., 32 Md & Rawle, 498. 18 ; Logan v. McAllister, 2 Del. Ch. 176- ' Short V. Unangst, 3 Watts & Serg. ' Talladega Ins. Co. v. Landers, 43 45. Ala. 115. ^ Ehrenzeller v. Union Canal- Co., I * Trott v. Warren, 11 Me. 227 ; Bow Rawle, 181. doinham v. Steam Mill Corp., 36 Me. 78 136 MODE AND EVIDENCE OF CREATION. §37 cases are numerous in which it has been held that the actual use of the powers and privileges given furnish, in the ab- sence of an authenticated record of acceptance, sufficient evidence of it. A minority cannot bind the majority by acceptance. But if the members of a company have, in combination, pursued a uniform and harmonious course of conduct which is consistent with no other hypothesis than an acceptance of the charter, the strongest inference of acceptance arises.^ It did not appear, by the records of a society, that the act of incorporation had been accepted by an express vote to that effect, nor that a notice of the first meeting was published in a newspaper as the act required. But the books showed that, at a certain time, a committee was appointed to petition the legislature for a charter ; that subsequently the society met and appointed a day on which to hold the first meeting under the act of incorporation ; that on that day a meeting was duly held and officers chosen ; that, sixteen years thereafter, the president of the society was authorized and directed to apply to the legisla- ture to alter the corporate name of the society, which, hav- ing been done, and an act passed, the recording secretary had uniformly designated the society by the name given to it by that act. It was held that the presumptive proof, both of the acceptance of the charter and of the legal or- ganization of the corporation, was as satisfactory as direct evidence would have been.^ Where the act of incorporation does not require a vote of acceptance, every formality may be presumed from a continual exercise of . the corporate powers. This is also true of assent to a new or additional charter by an existing • Mu. Ins. Co. V. StcJies, supra ; Gordon, i Pick. 297 ; Dunn v. St. An- King V. Amery, I Term Rep. 595 ; S. C. draw's Church, 14 Johns. 118; Bank 2 lb. 515; Wood V. Tate, 5 Bos. & of U. S. v. Dandridge, 12 Wheat. Pull. 246 ; Doe v. Woodman, 8 East. 439. 228 ; Magill v. Kauffman, 4 Serg. & « Soc. of Middlesex v. Davis, 3 Mete. Rawle, 317 ; Props, of Canal Bridge v. 133. § 37 MODE AND EVIDENCE OF CREATION. 1 37 corporation, which may, in like manner, be inferred from acts or omissions inconsistent with any other hypothesis. A single unequivocal act may be sufificient to establish as- sent ; as if a suit be brought and carried on when it could only be maintained under the provisions of the amended charter.^ "All the acts of private persons, even of the most solemn nature, may be presumed or proved by pre- sumptive evidence ; so as to the acts of a corporation, if they cannot be reasonably accounted for but on the suppo- sition of other acts done to make them legally operative and binding, they are presumptive proofs of such other acts. Thus, as deeds and grants to private persons which are beneficial to them are presumed to have been accepted, so also may the acceptance of an act or charter of incorpo- ration beneficial to the corporation be presumed for the like reason. And a long lapse of time, and the continued exercise of the corporate powers granted to a corporation, sufficiently justify the presumption of the acceptance of the charter. So if a particular charter is applied for and it is granted, the assent may be presumed from such previous ap- plication."* If a legislative grant enlarges the power of a corporation and increases its facilities for the transaction of business, the exercise of the power by the corporation is conclusive to show that the grant was accepted ; ^ and it will, of course, be the same when the additional powers are conferred by a general law applicable to all similar corpo- rations.* Where it appeared that two corporations, in the exercise of such powers, contracted with each other, and were authorized to do so at a stockholders' meeting con- vened for the purpose, it was held, in the absence of any averment or evidence to the contrary, sufficient ground for 'Com. V. CuUen, 13 Pa. St. 133; ^ Soc. of Middlesex v. Davis, ja^ra, Bang-or, etc., R.R. Co. v. Smith, 47 per WiLDE, J. Me. 34. See Taylor v. Commissioners ^ Watumpka, etc., R.R. Co. v. Bing- of Newberne, 2 Jones N. C. Eq. ham, 5 Ala. 657. 141. *Goodinv. Evans, 18 Ohio St. 150. 138 MODE AND EVIDENCE OF CREATION. §37 assuming that the corporations had accepted these powers as a part of their organic law, especially as no member had ever interposed any protest or objection.* The assent of a corporation to an amended charter will be presumed from any acts or omissions inconsistent with any other conclu- sion.^ Where an amended charter of a bank required the assent of the stockholders by a written declaration filed with the auditor of the State, it was held that an accept- ance might be presumed from the acts of those interested, although the prescribed form of acceptance was not pur- sued ; and that such acts might constitute an estoppel con- clusive upon those who participated in them.* When a party contracts with a railroad company in the name it is authorized by its amended charter to take, he cannot after- ward deny that such amended charter was legally accepted.* A certificate of acceptance of an amendment is sufficient though it be not filed, the certificate being mere proof of the acceptance.^ The election of corporate officers in pursuance of a new, or the alteration of an old, charter is but presumptive evi- dence of prior acceptance.^ If officers of a corporation openly exercise a power which presupposes a delegated au- ' Vt. & Canada R.R. Co. v. Vt. the acquiescence of the Board could not Cent. R.R. Co., 34 Vt. 2. be construed into an approval of the act. " Hope Mu. Fire Ins. Co. v. Beck- An act of the legislature authorized a man, 47 Mo. 93, affi'd Same v. Koeller, turnpike company to resurvey and ibid. 1 29 ; Covington v. Covington alter their road, and permitted certain Bridge Co., 10 Bush. 69 ; Kenton of the inhabitants to pass the gate free County Court y. Bank Lick Turnpike of toll. The company, after the act Co., Ibid. 529 ; Sumrall v. Sun Mut. was passed, proceeded to survey the Ins. Co., 40 Mo. 27. ground, but made no record of the ' Owen v. Purdy, 12 Ohio St. 73 ; survey, or any, alteration in the road. Callender. v. Painsville, etc., R.R. Co., It was held that there bad been no ac- II Id. 516. ceptance of the amendment on the part * Eppes v. Mississippi, etc., R.R. Co., of the company. Pingry v. Washburn, 35 Ala. 33. In Allen v. McKean, i Sum- i Aiken, 264. ner, 276, it was claimed that the Board of ' Cincinnati, etc., R.R. Co. v. Cole, Bowdoin College had assented to an 29 Ohio St. 126. amendment of the charter because they " Com. v. CuUen, supra, had ' ' acquiesced in it." It was held that § SS MODE AND EVIDENCE OF CREATION. 1 39 thority for the purpose, and other corporate acts show that the corporation must have contemplated the legal existence of such authority, the acts of such officers will be deemed rightful, and the delegated authority will be presumed. If a person acts notoriously as the cashier of a bank, and is recognized by the directors, or by the corporation, as an existing officer, a regular appointment will be presumed ; and his acts as cashier will bind the corporation, although no written proof is or can be adduced of his appoinfmetit.* Where the charter of a bank provided that the cashier should execute a bond with two sureties for the faithful discharge of his duties, thebond to l?e approved by the di- rectors, it was held that the vote of the directors to accept the sureties, and the fact that the bond was in the possession of the president of the bank, were sufficient proof of the acceptance of the bond by the corporation.' § 38. Evidence in general of corporate existence. — Acting as a corporation for any length of time not being sufficient to create a corporation, it is necessary to show a charter or law which, upon its acceptance, created a corporate body ; ^ or, if the law provides that a corporation may be formed upon a subsequent compliance with prescribed regulations and forms, to prove that such regulations and forms were observed. If the law exists, and the record shows a dojta fide attempt to organize under it, slight evidence of user is sufficient. Acts to show user must be corporate acts, or such as would have been corporate acts if the attempted incorporation had been perfected.* Doing the very busi- ness in the manner pointed out by the statute in the corpo- ^ Bank of U. S. v. Dandridge, 12 thereof, duly certified by the Secretary Wheat. 439. of State, under the great seal of the ' Dedham Bank v. Chickering, 3 State, shall be evidence of the creation Pick. 355. of the corporation." Comp. Laws of 'Ernst V. Bartle, i Johns. Cas. 319 ; Kans. of 1879, ch. 23, sec. 9. McCune Utley V. Union Tool Co., 11 Gray, 139. Mining Go. v. Adams, 35 Kansas, 193. The statute of Arkansas provides that * Dewitt v. Hastings, 40 N. Y. Super. " a copy of the charter, or a record Gt. 463. 140 MODE AND EVIDENCE OF CREATION. § 38 rate name would be direct evidence of user.^ The produc- tion of a charter of an insurance company, and proof that the company kept an ofifice, issued poHcies of insurance, had a secretary, etc., was held sufficient evidence of the exist- ence of the corporation.* The books of a corporation con- taining entries of such acts as the charter prescribes, are admissible to prove the organization and existence of the corporation.* Where certain steps are required to be taken before' a corporation has an existence, such as the opening of books, subscription of the capital stock, and the choice of directors, the production of the corporate books showing the election of officers, is prima facie sufficient to prove that the requisites of the statute have been complied with, and that the corporation has an existence.* To make the books admissible in evidence, it must, of course, be proved that they are the corporate books, that they have been kept as such, and that the entries were made by the proper officer, or by some person in his necessary absence.^ The plaintiff put in evidence a charter, and advertisements in two newspapers, purporting to have been signed by one of the corporators, giving notice of a meeting of the persons named in the act, to be held at a designated time and place, to pass upon the following matters : " ist. To choose a chairman and secretary of the meeting ; 2d. To see if the persons named in the act will accept the same ; 3d. To make choice of such officers as may be authorized by law for such corporations," etc. The plaintiff then offered in evi- ' Cahill V. Kalamazoo Mu. Ins. Co., corporation, this presumption has its 2 Dong. Mich. 124; People v. Beigler, eflfect." Ibid., per Shaw, C. J. Hill & Denio, 133; Eaton v. Aspin- ^ Way v. Billings, 2 Mich. 397. wall, 19 N. Y. 119; Narragansett Bank ' Buncombe Turnpike Co. v. McCar- V. Atlantic Silk Co., 3 Mete. 282. " The son, i Dev. & Batt. 306 ; Crump v. U. maxim of law is, that all things shall S. Mining Co., 7 Gratt. 352. be presumed to have been rightly and ^ Ryder v. Alton, etc., R.R. Co., 13 correctly done until the contrary is 111. 516. proved. As the corporation could not » Highland Turnp. Co. v. McKean, proceed lawfully until duly organized, 10 Johns. 154. and as they did proceed to act as a § 3^ MODE AND EVIDENCE OF CREATION. I41 dence a book, and called a witness who testified that he was the acting clerk of the company, and as such had the custody of the book ; that he knew that the book was the one in which the records of the company were kept ; that he received by mail the written appointment of clerk pro tern., signed by the president, which was read in the case ; that afterward he received the book of records from one of the corporators, and had since that time made entries in it for the records of the corporation as clerk of the same, and signed the entries as such ; and that he had kept the book in the com- pany's office. The book was excluded on the ground that the existence and organization of the corporation must first be proved by evidence aliunde, before the corporate books could be received. Held error.^ To establish the fact of the incorporation of a plankroad company, the proof showed that notice of the opening of the books of subscrip- tion as required by law was properly given ; that stock was subscribed to the original articles of association ; that di- rectors were elected on due notice ; that the articles of association properly indorsed were filed in the office of the Secretary of State ; and that the company had constructed its road and put it in operation. It was held sufficient evi- dence of a corporation de facto if not de jure?' Where it is shown that a charter has been granted, those in posses- sion and actually in the exercise of corporate rights will be considered as rightfully there against wrong-doers and per- sons who have treated or acted with them in their corpo- rate character. In a suit in which the plaintiffs claimed to be a body corporate, it appeared that a charter was granted for an academy, and that immediately thereafter the insti- tution was organized and conducted as a corporation. The defendant proved that all but one of the original ten corpo- rators had either died or gone away, and he urged that the ' Hudson V. Carman, 41 Me. 84. ' Eastern Plank Road Co. v. Vaughan, 20 Barb. 155. 142 MODE AND EVIDENCE OF CREATION. § 38 plaintiffs could not recover because a continuance of the corporation had not been shown ; that the places of the original nine trustees should be proved to have been regu- larly filled according to the provisions of the charter ; and that it was not sufficient to show that persons calling them- selves trustees acted as such. This objection was over- ruled and judgment for the plaintiffs affirmed on appeal.^ Even where it is shown that the charter has been granted upon a precedent condition, if persons are found in the quiet possession and exercise of the corporate rights as against all but the sovereign, the precedent condition will be taken to have been performed.* In Massachusetts, by the statute ^ allowing corporations for certain purposes to be organized without a special act of the legislature, it is required that before the corporation commences business certificates of its officers setting forth the corporate name and other particulars shall be deposited by them with the Secretary of State and published and recorded. In a suit ' Elizabeth City Academy v. Lind- v. Deeds, supra. Where an attempt sey, 6 Ired. 476. was made to organize a corporation 2 Tar River Nav. Co. v. Neal, 3 under the general incorporation law of Hawks, 520 ; Duke v. Cahawba Nav. a State, a name selected, trustees ap- Co., 10 Ala. 82 ; Grand Gulf Bank v. pointed, a president and other officers Archer, 8 Smed. & Marsh, 151 ; elected, and the trustees had the gen- Thompson V. N. Y. R.R. Co., 3 eral management of the property for Sandf. 625 ; Meth. Epis. Church v. years, leased and mortgaged it, and Pickett, 19 N. Y. 482; Mitchell v. expended a large amount of money, it Deeds, 49 111. 416, and cases cited, was held that there was a corporate Although a user of franchises raises a body de facto, the regularity of whose presumption in a collateral proceeding organization could not be questioned that the corporation is in the rightful collaterally. Thompson v. Candor, 60 exercise of such power, yet in proceed- 111. 244. See Hunt v. Kansas & Mo. ings by scire facias or quo warranto Bridge Co., 11 Kansas, 412. to terminate the existence of a body on 'Genl. Sts. of Mass., ch. 61. In the ground that it has usurped its fran- Massachusetts acts of incorporation are chises, it is bound to show a sufficient deemed public acts, and printed copies grant to authorize its organization, and of them published under the authority also that it has conformed to all of the of the Government are admitted in evi- material requirements imposed by its dence. Rev. Sts. of Mass., ch. 2, sec. charter, or if not, that its organization 3 ; ch. 94, sec. 58. has been properly legalized. Mitchell §38 MODE AND EVIDENCE OF CREATION. H3 against a corporation by a creditor, it having been proved that all the acts of the corporation preceding the certificates were regular and legal, it was held no defense that the cer- tificates were not signed, published, or recorded.^ Parties signed and acknowledged articles of incorporation stating the object, name, duration, amount of capital stock, place of business, and the number of trustees, and named those who were to act for the first three months. By mistake, the articles were filed with the wrong officer. The association took possession of the property and did the business named in the articles. It was held that the question of the due incorporation of the association or its right to exercise corporate powers could not be inquired into in an action brought by the association.*' It should be 1 Merrick v. Reynold Co., loi Mass. 381. ^Bakersfield Town Hall Assoc, v. Chester, 55 Cal. 98. Where a corpo- ration has g^ne into operation, and rights have been acquired under it, every presumption should be made in favor of the legality of its existence. Hagerstown v. Creeger, 5 Har. & Johns. 122; Busey v. Hooper, 35 Md. 15. In Bank of Toledo v. The Inter- national Bank, 21 N. Y. 542, the ques- tion was whether the plaintiff suffi- ciently proved itself to be a corpora- tion under the laws of Ohio. The statute of that State authorized indi- viduals to associate and form banking companies by signing and acknowledg- ing a certificate, and causing it to be recorded in the office of the recorder of the county. The act further provided for an examination of the institutions which had recorded certificates by the bank commissioners, or by a special agent appointed by them, to ascertain whether or not they had complied with the act ; and the commissioners were to certify to the Governor as to such as were approved of, and he, if satisfied that the law had been complied with, was to issue his proclamation setting forth that they were authorized to com- mence and carry on the business of banking. The plaintiff proved that a certificate containing the requisites mentioned in the act had been recorded in the proper county, and that the in- stitution had been doing business as a bank under its articles of association for several years, and that the defend- ant during that time had acted as its collecting agent, corresponding with it under the corporate name. It was held that the proof was sufficient. See Eaton v. Aspinwall, 19 N. Y. 119; Meth. Epis. Church v. Pickett, lb. 482. In a suit between a corporation and an individual the question of fraud in ob- taining the charter cannot be inquired into, whether the corporate functions are consummated by an act of the legislature, or there is some condition precedent which the Governor or some other officer must certify has been per- formed. Such an inquiry can only be made at the instance of the public. Duke V. Cahawba Nav. Co., 16 Ala. 372. In Centre, etc.. Turnpike Co. v. 144 MODE AND EVIDENCE OF CREATION. §38 observed, however, that the general rule that the existence of a corporation may be proved by producing the charter and showing acts of user under it, has no application to a corporation formed under the provisions of a general McCanaby, 16 Serg. & Rawle, 140, which was an action against a sub- scriber, it appeared that an act of the legislature provided that when six hundred shares had been subscribed, the commissioners should certify that fact to the Governor, who should in- corporate the subscribers. The cer- tificate was made and the charter granted ; whereupon the State sub- scribed twenty thousand dollars. The defense was that the charter was ob- tained by means of the subscription of three hundred shares of fictitious stock to make up the number of sub- ^ scribers required by law. The court said : " If this charter was deceptively obtained, obtained by false representa- tions, it could not in a collateral action, in an action brought by the company to compel the performance of contracts entered into with it, be declared void. But if this had been fraudulently ob- tained, on which I am not called upon to give any opinion, still, until that question had been directly decided in a proceeding instituted in this court, which alone has jurisdiction, by scire facias, to repeal the charter or declare it forfeited, or by writ of quo warranto at the suit of the State, in which the State must be a party, and a party to the judgment for the seizure of the franchise, there is no instance of call- ing in question the right of a corpora- tion for the purpose of declaring its charter void, but at the instance and on behalf of the government, and never on the relation of any individual." And see State v. Carr, 5 N. H. 371 ; Tar River Nav. Co. v. Neil, 3 Hawks, 520 ; Chas. River Bridge v. Warren Bridge, 7 Pick. 344. But when the organization is effected by members associating themselves under a general law authorizing them thus to associate, the charter is the mere ministerial rati- fication of their act founded on the assumption that the actual organization has been conducted according to law. Such a charter is no cover of fraud in procuring it, and creditors may show fraud in order to set aside the immu- nity which a charter fairly obtained is intended to furnish. Paterson v. Ar- nold, 45 Pa. St. 410. When a private corporation is charged with interests of a public nature, its chartet may thereby be rendered a public act. State v. Vincennes University, 5 Ind. T] ; other- wise the court will not take judicial notice of its charter. City Council v. Montgomery, etc.. Plank R. Co., 31 Ala. 76. The charter of a bank which reserves a certain number of shares of the capital stock for the use and bene- fit of the State, to be subscribed for in such manner as the legislature may di- rect, and provides that any director, officer, or other person holding any share who shall commit any fraud or embezzlement touching the money or property of the bank, shall be liable to prosecution by indictment in the name of the State, is a public law to be taken notice of judicially. Townson v. Havre de Grace Bank, 6 Har. & Johns. 47. When an act of incorporation is a pub- lic act, a subsequent act enlarging the powers of the corporation must neces- sarily be a public act of which every person must be deemed to have taken notice. Bank of Utica v. Magher, 18 Johns. 341 ; Stephens, etc., Transport- ation Co. V. Central R.R. Co., 33 N. J. 229. § 39 MODE AND EVIDENCE OF CREATION. I45 Statute requiring certain acts to be performed before the corporation can be considered in esse, or its transactions possess any validity. The existence of a corporation thus formed must be proved by showing at least a substantial compliance with the requirements of the statute. " But there is a broad and obvious distinction between such acts as are declared to be necessary steps in the process of in- corporation and such as are required of the individuals seeking to become incorporated, but which are not made prerequisites to the assumption of corporate powers. In respect to the former, any material omission will be fatal to the existence of the corporation, and may be taken ad- vantage of collaterally in any form in which the act of in- corporation can properly be called in question. In respect to the latter, the corporation is responsible to the Govern- ment in a proceeding to forfeit the charter." ^ § 39. Corporations by prescription. — A corporation by prescription is one which has existed from time immemo- rial and of which it is impossible to show the commence- ment by any particular charter or act, the law presuming that such charter or act once existed, but that it has been lost by such accidents as length of time may produce. '^ A question arose whether between the 5th of Richard II. and the year 1441, Kingston-upon-Hull had a charter from the king creating and giving certain port duties to the corpo- ration. For three hundred and fifty years subsequent to the year 1441, the duties had been exacted and submitted to. Lord Mansfield said that he had taken it to be estab- lished in point of law that though the record be not pro- duced, nor any proof given of its being lost, yet under certain circumstances it may be left to the jury whether ' Mokelumne Hill Mining Co. v. and exercising the franchises and pow- Woodbury, 14 Cal. 424. In an action ers granted by its charter. Wilming- by a corporation, a witness may be ton & Manchester R.R. Co. v. Saun- called to testify that the plaintiff is a ders, 3 Jones N. C. 126. corporate body, regularly organized, '^ i Kyd on Corp. 41 ; i Blk. Com. 473. VOL. I.— 10 146 MODE AND EVIDENCE OF CREATION. § 39 there is not sufficient ground to presume a ciiarter.^ In this country a municipal or quasi corporation may exist by prescription which presupposes an authorized and legitimate creation.* The defendants, who were assessors of the North Parish in Harwich, proved by a resolve of the Gen- eral Court and by a certificate of the Secretary of State, that no act of incorporation could be found. They then showed the establishment of a separate parish in Harwich in 1 746, and, by the records since kept of their meetings and proceedings, that the parish had taken successively and at different periods the names of " The First Precinct in Harwich," "The Precinct," "The Parish," "The North Parish," and " The North Parish lying in Harwich and Brewster "; and also that a certain boundary line had ex- isted for over forty years between the north and south parishes, and had been observed as such. The Supreme Court held that as no act of incorporation could be found, proof of a parish by reputation was proper.^ When no charter or act of incorporation of a town can be found, it may be proved to be a town by reputation, or it may be shown to have claimed and exercised the powers of a town with the knowledge and assent of the legislature, and with- out objection or interruption for so long a period as to furnish evidence of prescriptive right. A subsequent act of incorporation does not raise a conclusive presumption that the town was not previously incorporated, but is evi- dence to be weighed by the jury.* In Massachusetts a region was organized as a district, and for thirty years exer- cised the powers and privileges of a town, sent representa- tives, \Yas assessed for all taxes, and in many acts and pro- ' Mayor of Kingston v. Horner, ^ Dillingham v. Snow, 5 Mass. Cowp. 102. 547. 'Charles River Bridge v. Warren *New Boston v. Dunbarton, 12 N. Bridge, 7 Pick. 344; Robie v. Sedg- H. 401 ; 15 Id. 201; Bow v. AUens- wick, 35 Barb. 319; Londonderry v. town, 34 Id. 351. See Jameson v. Peo- Andover, 28 Vt. 416 ; White v. State, pie, 16 III. 257 ; People v. Maynard, 15 69 Ind. 273. Mich. 463. § 39 MODE AND EVIDENCE OF CREATION. 1 47 ceedings was recognized by the legislature as a town ; but no charter could be found. A witness testified that he re- moved there several years previous to its presumed incor- poration ; that he remembered talking with the governor of the province relative to the incorporation, and that he believed he obtained an act for that purpose, and carried the same home with him, although' he had no particular recollection of that fact. It was held sufficient proof of in- corporation.^ In the same State, there being no evidence of any geographical laying out or defining of the limits of school districts in T., proof was offered that in point of fact there was a school district number one in T., that this district had certain limits, and that it had so existed for many years. It was held unnecessary to produce a record of the laying out of the district, or any direct and positive evidence of such laying out ; proof of the fact that such a district had long been known and acted as such being suffi- cient.* In Vermont it was held well settled that the mere fact that a school district has maintained its existence and operation a number of years, say fifteen, is sufficient procff of its regular organization.^ In New York, in an action by the trustees of a school district, no record of the original organization of the district could be found. It was proved that the original powers pertaining to ordinary school dis- tricts in the several towns of the State had been exercised by trustees in the same locality ever since 1819. School meetings had been held, trustees chosen, a school kept, and school-houses built in the ordinary manner. It was held that there was sufficient to raise the presumption that the district was duly organized at an early day after such organ- izations were authorized by the revised laws of 1813 ; that consequently the district had all the powers belonging to ' Stockbridge v. West Stockbridge, ' Sherwin v. Bugbee, 16 Vt. 439. 12 Mass. 399. See Barnes v. Barnes, 6 Id. 388. ' Bassett v. Porter, 4 Cush. 487. 148 MODE AND EVIDENCE OF CREATION. § 4° corporations of that character, and was capable of owning and holding real estate suitable to the purposes and objects of its creation.* § 40. Corporations by necessary implication. — When rights, privileges, and powers are granted by law to a body of per- sons by a collective name, and there is no mode by which such rights can be enjoyed or powers exercised except by their acting in a corporate capacity, such bodies are deemed by necessary implication to be so far corporations as to en- able them to exercise and enjoy the rights and powers thus granted.* This was held to be the case where a statute simply declared that a bank designated by name should be established. There were no express words incorporating any particular persons ; but the fund was placed under the management of a given number of directors, and the usual powers of banking conferred upon them.^ So, where it was provided that several persons named and their heirs, the resident burgesses for the time being, and all persons who should at any time thereafter be burgesses and their heirs, should be trustees for inclosing, improving, and dividing a certain marsh, it was held that they necessarily became a corporation, though not expressly made so by the act* A long-continued exercise of authority, bearing on its face the impress of corporate acts, such as individuals cannot, and a corporation alone is competent, to perform, affords pre- sumptive evidence of a grant or charter.^ The defendant, an alleged corporation, having denied that it was duly or- ganized and liable to be sued on its promissory notes, the plaintiff gave the defendant's attorney notice to produce the corporate books containing the record of the organiza- tion, which not being done, he offered to prove corporate ' Robie V. Sedgwick, supra. Ark. 620 ; Murphy v. State Bank, 7 Id. ' Stebbins v. Jennings, 10 Pick. (2 Eng.) 57. 172. * Newport Marsh Trustees, ex parte, ' Mahony v. Bank of the State, 4 16 Sim. 346. ' Greene v. Dennis, 6 Conn. 293. § 40 MODE AND EVIDENCE OF CREATION. 1 49 acts, and copies of certificates in the form required by tiie statute authorizing the formation of corporations in certain cases by voluntary associations. It was held that this evi- dence was competent.^ That a town was duly organized before a specified time, may be presumed from the fact that at that time town officers had been appointed and were dis- charging the powers and duties belonging to officers of towns.^ Where a church had been a body corporate de facto, holding and enjoying property as such for the pre- vious four years, it was held that it would be presumed that every formal requisite to the due creation of the corporation had been complied with.^ A grant of the power to perform corporate acts implies a grant of corporate powers.* By an act for making and keeping the river Tone navigable, it was provided that thirty persons therein named and their successors should be conservators of the river during their lives unless removed, and that when by death or removal they were reduced in number to twenty, the survivors should choose other persons to make up the original num- ber. They were empowered, in the name of conservators of the river Tone, to receive any gift, legacy, or grant of goods, chattels, money, or land, in fee, or for any other es- tate or term, " for the uses aforesaid "; and it was made lawful for any persons to convey any estate to the conser- vators and their successors. It was held that although they were not created a corporation by express words, they were so by implication, and that they were entitled to sue in their corporate name for an injury done to their real ' Dooley v. Cheshire Glass Co., 15 for the term of ten successive years, Gray, 494. must be presumed to have been legally 'Londonderry v. Andover, 28 Vt. incorporated. How. Sts. of 1869, sec. 416. See New Boston v. Dunbarton, 4649 ; Trustees of First Cong. Church 15 N. H. 201. V. Webber, 54 Mich. 571. 3 All Saints' Church v. Lovett, I * Com. v. Westchester R.R. Co., 3 Hall, 191. In Michigan, a religious Grant's Gas. 200; Dean v. Davis, 51 society which has exercised the fran- Cal. 406. chises and privileges of a corporation 150 MODE AND EVIDENCE OF CREATION. §41 property.^ A statute of Connecticut provided that any number of persons not less than three, who by articles of agreement in writing should associate according to the statute, and comply with all the provisions of the same, should become a body politic and corporate. One of the requirements of the statute was that before the corporation thus formed commenced business, the president and direct- ors should cause the articles of association to be published. It was held that there might be a corporation for all the purposes of maintaining an action without publication ; general reputation that the plaintiffs were conducting busi- ness as a corporation being sufficient.^ Where there is evidence showing the incorporation and organization of a company, a continued user of its franchises by persons in their actual possession, who assume to act as its directors and officers, have control of its records, and carry on its business, it is competent to show continued corporate exist- ence, and that the persons claiming to be and acting as directors are such lawfully.^ § 41. Admissions and declarations. — A person who has en- tered into a contract with a corporation in its corporate name, thereby admits it to be a duly constituted body pol- itic and corporate under that name.* The general rule is, that a person dealing with a company which is in the user of corporate franchises, cannot set up that it has no corporate existence, either in consequence of acts which would cause a forfeiture of its charter, or of the omission of acts which should have been performed before it could acquire a title as against the State.^ One who borrows money from a ' Conservators of River Tone v. Ash, Deeds, 49 III. 46 ; Worcester Medical 10 Barn. & C. 349. Inst. v. Harding, 11 Cush. 285 ; Hen- » Holmes v. Gilliland, 41 Barb. 568. riques v. Dutch Wes^ India Co., 2 Ld. 2 St. Paul Fire and Marine Ins. Co. Raym. 1535; All Saints' Church v. v. Allis, 24 Minn. 75. Lovett, i Hall, 191 ; Tar River Nav. '' Dutchess Cotton Manf. v. Davis, Co. v. Neal, 3 Hawks, 520. 14 Johns. 238 ; Jones v. Bank of Ten- ' Abbott v. Aspinwall, 26 Barb. 202 ; nessee, 8 B. Mon. 122; Mitchell v. Cowell v. Colorado Springs Co., 3 § 41 MODE AND EVIDENCE OF CREATION. I5I corporation, and gives back a mortgage as security, is es- topped from denying the existence of the corporation.^ Where, in a suit by the receivers of a bank, the defense was that the bank had no legal existence for the reason that a majority of the eommissioners named in the charter did not attend to open the books for subscription to the capital stock, and that a commissioner was not appointed by the Governor, as the charter required, to examine into the con- dition of the bank and report thereon to him who was to issue his proclamation that the law had been complied with, it was held that as the defendant had admitted the exist- ence of the bank by receiving its funds, and transacting business with it as a corporation, he could not deny that it had acquired rights as such.^ A bank which in its long transaction of business with another bank has recognized the incorporation of the latter, cannot, after receiving assets of such other bank as a preferred creditor, which preference was unlawful for an incorporated bank to make, set up as a defense to an action by a receiver to recover back these assets, that the bank was not duly incorporated.^ Where a certificate of incorporation has been executed under a general law authorizing the formation of corporations in that manner, and there has been a user of corporate powers Col., 82 ; Meth. Epis. Church v. Pick- fense to an action on a promissory ett, 19 N. Y. 482. In Trustees of Ver- note was that the corporation was non Soc. v. Hills, 6 Cowen, 23, which never duly organized, Oakley, C. J., was an action brought by the trustees said : " The defendant as a contracting of a religious corporation. Savage, party with this corporation cannot ob- Ch. J., said : " The plaintiffs have acted ject to the want of the requisite organ- as trustees upon the matter in question, ization, and any defect in that respect, and in bringing their suit colore officii ; if valid, is only available in behalf of and before an objection to their right the sovereign power of the State.'' can be sustained by the defendant on See Eaton v. Aspinwall, 19 N. Y. 119. the ground that they were not regularly 'People's Savings Bank v. Collins, elected, he must show that proceedings 27 Conn. 142. have been instituted against them by * Bank of Circleville v. Renick, 1 5 the government, and carried on to a Ohio, 322. judgment of ouster." In Brouwer v. ' Rafferty v. Bank of Jersey City, 33 Appleby, i Sandf. 158, where the de- N.J. 368. 152 MODE AND EVIDENCE OF CREATION. § 4I under color of the certificate, and the party setting up the want of corporate existence has recognized the corporation' by transacting business with it as such, the proof is prima facie sufficient.^ Subscribers may be estopped by their acts from saying that a corporation has not been legally estab- lished.'' But a subscription to the preliminary articles of association not purporting to be with an existing corpora- tion will not have that effect.^ Where, however, in an ac- tion upon a subscription to the capital stock of a company, it is agreed that " fifty per cent, of the defendants' subscrip- tion to the capital stock of the company has been paid, and that the assessment and calls for the balance in five instal- ments of ten per cent, each have been duly and legally made in accordance with the by-laws of the company and the laws of the State, the last of which assessments was made more than a year previous, the defendant duly noti- fied of the same, and a demand made upon him by the proper authority that he pay the assessments, which he promised to do, but has not done, it is an admission of the organization of the corporation.* Filing an information against a corporation in its corpo- rate name is an admission of the existence of the corpora- tion, or that it once had a legal existence.'' But the rec- ognition by the plaintiff in a suit that the defendants are members of a company designated and known by a certain name, and administered as a company, does not preclude them from showing that the company has no legal corpo- rate existence. In order to estop the plaintiffs there should be an admission that the company is entitled to exercise corporate rights ' and privileges.^ A stockholder who has ' Leonardsville Bank v. Willard, 25 Brown's Rotary Shuttle Sewing Ma- N. Y. 574. chine Co., 68 Id. 38S. " Cabot, etc., Bridge Co. v. Chapin, ^ Ibid. 6 Cush. 50 ; New Hamp. Cent. R.R. ' People v. Saratoga & Rensselaer Co. V. Johnson, 30 N. H. 390. R.R. Co., 15 Wend. 113. * Indianapolis Furnace, etc., Co. v. 'Field v. Cooks, ,16 La. Ann. Herkimer, 46 Ind. 142 ; Rikoff v. 133. §41 MODE AND EVIDENCE OF CREATION. 1 53 dealt with the corporation, when sued on his subscription, cannot deny the validity of the proceeding by which the name of the corporation was changed, although the old name was recognized by the subscription.^ The existence of a corporation and its capacity to sue are admitted by a plea to the merits. '^ So a person who has obtained a judgment against a company as a corporation, is afterward estopped from denying its corporate capacity, it being an admission by him of the existence of the corporation which has been acted on by the court.^ The doctrine that a recognition of corporate existence by dealing with the corporation, will estop from question- ing it, rests on the ground that such recognition creates relations and encourages conduct which there may be diffi- culty in undoing. The rule is not applicable when no new rights have intervened, and such recognition has itself been brought about by fraudulent dealings carried on by the company for the purpose of entrapping a party into the act on which such recognition depends.* After a company has exercised the franchises conferred by its charter, it will not be permitted to deny the validity of contracts entered into by the de facto officers.^ In Mas- sachusetts it was held that a corporation organized under the joint stock act of 1851 was estopped to set up, in de- fense to an action, the falseness of a certificate of its organ- ization filed by its officers in the office of the Secretary of State pursuant to the statute.^ A., with others, formed an association, and proclaimed themselves a corporation under the statute, taking what they supposed were necessary measures to perfect their organization according to law. ' Greenville, etc., R.R. Co. v. John.- * Doyle v. Mizner, ifl Mich. 332. son, 8 Baxter, Tenn. 332. ' Heath v. Silverthorn Lead, etc., Co., ' West Winsted Savings Bank, etc., 39 Wis. 146. V. Ford, 27 Conn. 282. ' Dooley v. Cheshire Glass Co., 1 5 ^Pochelu V. Kempqr, 14 La,. Ann. Gray, 494. 308 ; Schaeffer v. Missouri Home Ins. Co., 46 Mo. 248. 154 MODE AND EVIDENCE OF CREATION. § 42 A. influenced persons to become members of the company, and to form contracts with it as duly incorporated. Dur- ing this time the company, with the concurrence and co- operation of A., did business as a corporation, admitting new members, choosing ofificers and agents, borrowing and loaning money, receiving money on deposit, and the like. It was held that A. was estopped from denying the exist- ence of the corporation.^ Although a company has not created any shares of stock, or organized in any way, or the members paid into the cor- porate fund the capital required by law, yet if it pretends to be incorporated it will be estopped to deny the existence of the corporation as to those who deal with it on the faith of such representations.* On the other hand, a denial by a company that it is incorporated may prevent its afterward claiming the contrary. Where, upon an information filed against the owners of a toll-bridge, alleging among other things that they were exercising the franchise of being a body politic and corporate having usurped the same, and calling on them to show by what warrant they claimed to use and exercise such franchise, they averred in their plea that they never used the franchise of a corporation, where- upon judgment of preclusion was entered, it was held that they were thereby prevented from claiming that they were a body corporate.^ § 42. Legislative recognition of corporation. — When the existence of a corporation has been recognized by acts of the legislature, all inquiry into the original creation of the corporation is precluded.* It becomes by such recognition 1 W^est Winsted Savings Bank, etc., etc., Canal Co. v. Valette, 21 How. V. Ford, supra. 414 ; Kanawha Coal Co. v. Kanawha & '' Atty. Genl. v. Simonton, 78 N. C. 57. Ohio Coal Co., 7 Blatchf. 391 ; Mcln- ' Thompson v. N. Y. & Harlem R.R. tyre Poor School v. Zanesville Canal, Co., 3 Sandf. Ch. 625. ' etc., Co., 9 Ohio, 203 ; Williams v. * Soc. for the Propagation of the Gos- Union Bank, 2 Humph. 339 ; Jameson pel v.Pawlet, 4 Pet. 480; Whitewater, v. The People, 16 111. 257; People v. § 42 MODE AND EVIDENCE OF CREATION. 1 55 ipso facto a legal corporation, and any defect or irregularity in the proceedings required by law to be taken for its or- ganization will be deemed to have been waived ; ^ the legis- lature having the same power to confirm and validate an irregularly organized corporate body that it has to bring into existence a new one.* The Farmers' and Mechanics' Bank of Indiana, at the commencement of the State gov- ernment, was recognized by the constitution as a corpo- ration under the charter granted to the bank by the terri- torial legislature.^ In the same State, in 1838, a statute recognized a territorial act passed in 1806 incorporating a board of trustees of the Vincennes University.* Of course an act of the legislature recognizing a company as a corpo- ration will not constitute it such, if the constitution forbids the creation of corporations except under general laws.^ The validity of a corporation proceeding under color of law, and recognized by the sovereign power, cannot be called in question collaterally, although the act recognizing the corporation is unconstitutional. The objection must be made by quo warranto.^ Defects in a charter may be cured by an act recognizing the company as a corporation, notwithstanding the rule that statutes are not to be con- strued so as to give them a retrospective operation.'' An act amending a charter is a legislative recognition of the validity of the existing corporation, and cures a defect, if any such existed, of combining two kinds of corporations Famham, 35 Id. 562 ; Cowell v. Col- tained. Turnpike Co. v. Davidson Co., orado Springs Co., 3 Col. 82 ; Matter 3 Tenn. Ch. 396. of N. Y. Elevated R.R. Co., 70 N. Y. '^ Mitchell v. Deeds, 49 111. 416. 338. 'Vance v. Farmers' & Mechanics' ■ Black River & Utica R.R. Co. v. Bank, i Blackf. 80. Barnard, 31 Barb. 258 ; Basshor v. * Vincennes University v. State, 14 Dressel, 34 Md. 503 ; Atlantic & Pa- How. 268. cific R.R. Co. V. St. Louis, 66 Mo. 228. ' Oroville, etc., R.R. Co. v. Super- After repeated legislative recognitions visors of Plumas Co., 37 Cal. 354. of a corporation, a collateral impeach- ^ Commrs. v. Shields, 62 Mo. 247. ment, based upon facts touching its in- ' St. Louis R.R. Co. v. Northwestern, temal organization, cannot be sus- etc., R.R. Co., 2 Mo. App. 69. 156 MODE AND EVIDENCE OF CREATION. § 43 in one charter, the corporation upon accepting the amend- ment becoming valid ab initio} A statute of Illinois pro- vided that all of the acts and proceedings for the purpose of incorporating the town of C. should be legal and valid, and that all ordinances passed by the president and trustees of the town, not inconsistent with the constitution of the State or of the United States, should also be legal and binding. The statute further authorized the president and trustees to fix the boundaries of the town so as to include any land laid out in town lots. It was held that the statute fully recognized the previous organization of the corpora- tion, and cured all defects.* Where an act regulated the rate of speed of railroad trains passing through a city, it was held a legislative recognition of the existence of the company, and of its right to construct a railroad within the city.^ The consolidation of two railroad companies, so as to form a single corporation, may be legally effected by an act of the legislature recognizing the existing con- solidated corporation.* An act authorizing the purchase of property from a corporation thereby recognizes the ex- istence of the corporation.^ § 43. Date of incorporation. — When a corporation is or- ganized under a general law, its life dates from its organi- zation, and not from the time it begins to do business.^ ' Basshor v. Dressel, supra. A stat- nized its corporate existence by becom- ute enacted that the certificate of in- ing the owner of a portion of its stock, corporation should contain, among and continuing to hold it until the other things, the number of trustees company was dissolved. Mead v. Keelr and their names, who should manage er, 24 Barb. 20. the concerns of the company for the '' Toledo R.R. Co. v. Chenoa, 43 111. first year. The certificate omitted such 209. statement. It was held that the fore- ' McAuley v. Columbus, etc., R.R. going provision might be regarded a^ Co., 83 111. 348. directory, especially as the company * Mead v. N. Y., Housatonic & Nor- had been recognized by the court as a them R.R. Co., 45 Conn. 199. duly constituted corporation under the ' Mclntyre Poor School v. Zanesville statute, had claimed to be and acted Canal & Manuf. Co., 9 Ohio, 203. as such, and the defendant had recogr ' Hanna v. International Petroleum § 43 MODE AND EVIDENCE OF CREATION. 1 57 Articles of association were drawn up and signed by a number of persons for the purpose of organizing under the act of New York of 1838 authorizing the business of banking, each taking the number of shares of stock set op- posite his name. A president and directors were elected in July, 1838, but the certificate was not signed by the stockholders as required by law. Afterward, during the same month, C. subscribed the articles for twenty shares of stock, and he and his wife gave their bond and mort- gage for his subscription payable to the president of the bank in accordance with the articles of association permit- ting payment for stock to be made in that way. In the subsequent September stockholders owning a large amount of the capital signed and sealed a certificate which con- formed to the provisions of the act. C. did not sign this certificate, but he paid interest on his bond and mortgage at the end of each six months to January, 1841. It was held that as the bank when the mortgage was given had not been organized under the statute, it did not exist as a corporation, but that the payment of interest by C. was a recognition of the bond and mortgage in the hands of the president of the bank, and a redelivery of them by C. after the bank became a legal corporation might be inferred.^ As already stated,* an act incorporating certain persons who have applied for a charter, and their associates, may constitute the persons named a corporation without further action on their part, either in the admission of associates, the choice of officers, or the division of the capital stock. By the statute of Massachusetts^ three or more persons who shall have associated themselves by articles of agree- ment in writing for the purpose of carrying on specified kinds of business, and shall have complied with the provi- Co., 23 Ohio St. 622. See Chicago, ' Valk v. Crandall, i Sandf. Ch. 179. etc., Co. V. Putnam, 12 Pacific Re- ' Ante, stc. 24. porter, 593. ' Genl. Sts., ch. 61, sec. i. 158 MODE AND EVIDENCE OF CREATION. § 43 sions of the act, become a corporation. The intent is " that a corporation shall exist at least as soon as the first meeting has been held and officers elected, if not immedi- ately upon the signing of the fundamental articles of asso- ciation by which the intention of the associates to avail themselves of the privileges conferred by the legislature is manifested, and the name of the corporation determined, the amount of capital stock fixed, and the place in which and the purpose for which the corporation is established, are specified."* It was objected to the validity of a deed to a corporation that it contained a grant of a freehold estate in land upon certain conditions ; that as the company at the time of the execution of the deed was not organized, and therefore not in being for the purpose of accepting the grant upon the terms mentioned in it, the deed could not have any immediate operation for want of the assent of the grantee; and that the deed could not have any future operation so as to pass the title to land, because it would violate the rule of law that a freehold estate can- not be created by a deed to commence in futuro. It was held that the subscribers for stock whose names were pre- sented to the Governor as such, became incorporated im- mediately upon the execution of the letters patent by him, although their organization was not complete until the offi- cers were appointed, and that therefore the grant contained in the deed was effectual.^ If the charter provides that such persons as shall thereafter become stockholders of the company are constituted a body corporate, the corpora- tion in the eye of the law is regarded in esse before it has the right to organize, so far at least as the validity of con- tracts in favor of the corporation is concerned. It is the statute which creates the subscribers to the stock a corpo- ration, and not their organizing under it. Each subscriber ' Hawes v. Anglo-Saxon Petroleum " Rathbone v. Tioga Navigation Co., Co,, loi Mass. 385, per Gray, J. 2 W^atts & Serg. 74. § 43 MODE AND EVIDENCE OF CREATION. 1 59 for Stock per se becomes a member of the corporation, and all as fast as they .subscribe become corporators under the provisions of the act.^ Where a general law provides that all public statutes shall take effect in thirty days from the recess of the legislature passing the same, unless it should otherwise be ordered in the act, the words " be, and the same hereby is incorporated " in a charter do not afford any indication of an intention that the act shall take effect immediately.* 1 Vt. Centr. R.R. Co. v. Clayes, 21 Vt. 30. ''Graham v. Springfield, 21 Me. 58. CHAPTER IV. MEMBERS AND OFFICERS — HOW CONSTITUTED. i 44. General rule as to admission of members. 45. Membership in joint stock com- panies. 46. Subscribing for stock. 47. Effect of subscription. 48. Proof of membership. 49. Time and mode of electing mem- bers and officers. 50. Who entitled to vote. § 51. Voting by proxy. 52. Special qualifications of voters. 53. Number of votes allowed to each share. 54. Corporation not allowed to vote on its own stock. 55. Keeping polls open. 56. Proof of result of election. 57. Validity of election. 58. Failure to hold election. § 44. General rule as to admission of members. — In ad- mitting members, regard must be had to the language of the act of incorporation, and when the charter or act is silent on the subject, to the common law, and to the nature and object of the corporation.^ Authority to prescribe the mode of admitting members implies the power to determine whether or not they shall be admitted. Where a party having a clear presumptive right, applies to be admitted a member of an incorporated society, the application should not be denied unless the right of immediate expulsion be plain and unquestioned.'' At common law, as a married woman cannot make a binding contract, she cannot, in general, become a corporator ; and the same is true of an infant, who can at his election disaffirm his contract upon coming of age. But a married woman may be a share- ' Spaulding v. Gary, 23 Pick. 71 ; Aurora v. West, 9 Ind. 74 ; Diligent Fire Ins. Go. v. Gom., 75 Pa. St. 29, ^ People v. 187. Medical Soc, 32 N. Y. § 44 MEMBERS AND OFFICERS. l6l holder in respect to her separate estate.^ So, an infant may, by devolution or devise, become a member of a joint stock company.* When a person is insured by a mutual insurance corporation, he thereby becomes a member.^ If the number of members is limited by the charter, a vacancy is usually filled by a vote of the corporation. Of course no person can be made or become a member of a private corporation without his consent.* Where an act constituting the members of several mutual insurance com- panies a new corporation, provided that the act should not affect the legal rights of any person, and take effect " when accepted by the members of said corporations," it was held that a person who belonged to one of the original companies did not become a member of the new corporation, unless he expressly assented to it, although expressly assented to by a majority of the members of each of the old companies.® Members of a religious society may be admitted by a vote of the parish ; or power to admit them may be dele-- gated by proper by-laws to a committee, or to certain officers of the society ; ^ or a person may become a merhber of such a society by regular attendance on its worship, and contributing to its support.'' Where, by an act of incorpo- ration, certain persons "with their families " were constitu- ' Mathewman's Case, L. R. 3, Eq. man, 30 Mo. 118; Kansas City Hotel 781 ; Howard v. Bank of England, 19 Co. v. Hunt, 57 Id. 126; Reed v. Rich- Id. 295 ; Matter of Richardson, lb. 588 ; mond Street R.R. Co., 50 Ind. 342; Pugh & Sharman's Case, L. R. 13, Eq. Bucher v. Dillsburg, etc., R.R. Co., 76 566 ; Roman v. Fry, 5 J. J. Marsh, Pa. St. 306 ; Belfast, etc., R.R. Co. v. 634; Matter of the Reciprocity Bank, Moore, 60 Me. 561; Ticonic Water 22 N. Y. 9. Power, etc., Co. v. Lang, 63 Id. 480 ; 2 Leeds, etc., R.R. Co. v. Feamley, Dutchess, etc., R.R. Co. v. Mabbett, 58 18 L. J. N. S. Exch. 330. N. Y. 397. ^Sullivan v. Mu. Ins. Co., 2 Mass. * Hamilton Mu. Ins. Co. v. Hobart, 2 318; Mitchell V. Lycoming Mu. Ins. Gray, 543. Co., 58 Pa. St. 402; Georgia, etc.. Life ^ First Parish in Sudbury v. Stearns, Ins. Co. V. Gibson, 52 Ga. 640; Cum- 21 Pick. 148. ings V. Sawyer, 117 Mass. 30. 'Cammeyer v. United German Lu- "SeeMcClelland V. Whitely, 15 Fed. theran Churches, 2 Sandf. Ch. 208; Rep. 322 ; Southern Hotel Co. v. New- People v. Nuthill, 31 N. Y. 550. VOL. I.— 11 1 62 MEMBERS AND OFFICERS. § 45 ted a religious society, it was held that minor sons became members of the corporation, and continued to be such after attaining full age until they changed their membership.^ After members of a religious society withdraw from it, they do not continue members, although they are of the same religious faith and tenets with the members.'' What constitutes the volun;tary withdrawal of members from a re- ligious society is a question of law, and the rejection of evidence from which the legal inference may be drawn is error.^ The following note sent to the trustees of a re- ligious society, " We, the undersigned, hereby resign our membership in the congregation of," etc., " until another reader of the said congregation is elected," was held not a resignation, but an attempt to create a suspension of mem- bership until the happening of the contingency named.* § 45. Membership in joint stock companies. — In the case of trading and joint stock companies, a vote of admission is not required ; the ownership of stock, either by original subscription or conveyance, in general entitling to member- ship ; though, as we shall presently see, the charter may create an exception to this rule. In all bridge, railroad, turnpike, banking, insurance, and manufacturing companies, and generally in corporations having a capital stock and looking to profits, membership is constituted by a transfer of shares according to the by-laws, without an election on the part of the corporation ; the transferee being subrogated to the rights and assuming the liability of an original sub- scriber.^ " A railway act invariably empowers the company ' Bradford v. Cary, 5 Me. 339. Ins. Co., 8 Pick. 90 ; Overseers of the ' Den V. Bolton, 12 N. J. (7 Halst.) Poor v. Sears, 22 Id. 122 ; Downing v. 206. See Groesbeck v. Dunscomb, 41 Potts, 3 Zab. 66 ; Gregory v. Dubois, 3 How. Pr. 302. Sandf. Ch. 466 ; Agricultural Bank v. 2 Perry v. Tapper, 74 N. C. 722. Burr, 24 Me. 256 ; State v. Ferris, 42 * Marks v. Cong. Daruch Amuno, 5 Conn. 560. A shareholder in a corpo- Daly, 8. ration sustains a threefold relation : ist. ^ Gilbert v. Manchester Manf. Co., To the corporation ; 2d. To his fellow- n Wend. 627; Sargent v. Franklin stockholders; and, 3d. To the creditors § 45 MEMBERS AND OFFICERS. 1 63 to raise a certain amount of capital by the mutual subscrip- tion of its members. This capital is divided into shares, which are made to vest in the subscribers, according to their respective contributions, and entitle them to a correspond- ing proportionate part of the profits of the undertaking. Such shares are transferable by the proprietor, and in case of his death, bankruptcy, etc., pass to his legal representa- tive. A party can in general not otherwise become a member of such a company than by himself subscribing to the undertaking, or stepping into the place of an original subscriber." ^ But where an act incorporated certain per- sons by name and others who might thereafter become members, to receive money and pay the depositors such in- terest as the directors should agree to pay, and provided that for the security of the depositors a certain amount should be raised to be divided into shares ; that annual meetings should be held for the election of directors from among the members ; that the directors might provide for the admission of members ; and they were required to ap- point from among the members five persons as a committee of examination, to declare a dividend of profits, and to pay the same to the stockholders ; it was held that the stock- holders were not members, and that the original members remained such, whether or not they possessed stock.* By the deed of copartnership of a joint stock company, certain forms were to be observed by transferees of shares before they could become members of the company. A. bought shares, and did some of the things that were required to con- stitute him a member of the company, but left one of them undone. It was held that the observance of these forms was a duty cast on purchasers of shares for the benefit of the company, and that A.'s disregard of one of them did not enable him, as respected the company, to retire from his of the corporation. Upton v. Hans- ^ Phila. Savings Institution, i Whar- brough, 3 Biss. 417. ton, 461. ' Walford on Railways, 252, 253. 164 MEMBERS AND OFFICERS. § 46 contract ; that from A.'s default the company might say that he was not entitled to exercise any of the rights of a mem- ber ; but that he could not avail himself of his neglect.^ If a contract to take stock in a corporation is induced by fraud, it creates no obligation, and the injured party will be entitled to have the contract abrogated." So, if a person is induced, without fraud, to enter into a contract of this description by a promise in behalf of the corporation, that the corporation will aid him in a specified way to pay his subscription, and the promise is not kept, his contract will not be enforced.^ § 46. Subscribing for stock. — Under a charter authorizing the corporators to open books of subscription for capital stock, the contract must be in writing, and a contract can- not be establislied by parol evidence if a written contract has not been made ;* but mere formal irregularities will not invalidate the contract.® Subscriptions having been taken on a sheet of paper which was afterward placed in the record book of the company, and the names of the sub- scribers and the amount subscribed by them entered in the book by commissioners appointed to open books of subscrip- tion, it was held that the subscription was sufficient.® The articles of association need not have been subscribed by a person to constitute him a member, A subscription to any legal and valid instrument by which a party engages to be- come a member of the corporation when organized, and to ' Burnes v. Pennell, 2 House of Lds. Improvement Co., 57 Ind. 135 ; Cayuga Cas. 497. Lake R.R. Co. v. Kyle, 64 N. Y. 185 ; ' Vreeland v. N. J. Stone Co., 29 N. Nulton v. Clayton, 54 Iowa, 425 ; Bos- J. Eq. 188. ton, etc., R.R. Co. v. Wellington, 113 * Burrows v. Smith, 10 N. Y. 550. Mass. 79. * Pittsburg, etc., R.R. Co. v. Clarke, ° Woodruff v. McDonald, 33 Ark. 97. 29 Pa. St. 146 ; Same v. Gazzam, 32 The subscription may be put in form Id. 34CJ ; Fanning v. Ins. Co., 37 Ohio from disconnected memoranda by a St. 339 ; Vreeland v. N. J. Stone Co., person authorized by the subscribers 29 N. J. Eq. 188. to act in their behalf for that purpose. ' Ashtabula, etc., R.R. Co. v. Smith, Iowa, etc., R.R. Co. v. Perkins, 28 15 Ohio St. 328 ; Clark v. Continental Iowa, 281. § 47 MEMBERS AND OFFICERS. 1 65 pay a given sum which is to be a part of the capital stock, followed by an acceptance of a certificate for the stock, will make the subscriber a member. The acceptance of the stock certificate is a waiver of any informality that may have intervened short of an absolute defect of jurisdiction.^ A stipulation that the subscribers are to pay the sums an- nexed to their names as they may be required by the presi- dent and directors of the corporation, is not necessary under a charter creating and defining the terms of the contract of subscription. It is sufficient for the writing to indicate an intention to become a stockholder, and the number of shares taken.^ An undertaking to subscribe a certain amount of stock when the subscription books shall be opened, does not make a party a stockholder ; his promise being like any other agreement to purchase a specific article where the property contracted for is retained by the vendor.^ § 47. Effect of subscription.— {^Signing an offer or request to become a stockholder, not accepted or assented to by the corporation, does not make one a stockholder.^ So a person by the mere act of subscribing for stock for which he has paid nothirig and received no certificate, cannot be regarded as a member of the corporation, especially if his subscription is conditional.^ When the articles in an in- complete state are circulated in order to procure subscrip- tions, the signing of them will not bind the signer to abide by such filling up of blanks and supplying of provisions as any one may choose to insert. In such a case the signing is preliminary in character, and can only become binding upon the signer by his assent to the completed paper. If ' Hamilton, etc., Plank R. Co. v. Bush. Ky. 429 ; Quick v. Lemon, 105 Rice, 7 Barb. 157. 111. 578; Ontario, etc., R.R. Co. v. ^ Fry V. Lexington, etc., R.R. Co., 2 Curtis, 80 N. Y. 219. Mete. Ky. 314. * Gray v. Portland Bank, 3 Mass. 3 Thrasher v. Pike County R.R. Co., 364 ; Sewall v. Eastern R.R. Co., 9 25 111. 393. See Rhey v. Ellensburg, Cush. 5. etc., Plank R. Co., 27 Pa. St. 261 ; Mt. ' Chase v. Sycamore, etc., R.R. Co., Sterling Coalroad Co. v. Little, 14 38 111. 215. 1 66 MEMBERS AND OFFICERS. § 47 signed without any designation of directors, or of other material particulars, it must be understood that the signers are to be consulted respecting such matters. Whether the preliminary consent is given upon a separate and different paper from that which is to become the articles of associa- tion, or whether the paper signed is that which when com- pleted is to be the actual articles of association, will make no difference.^ A valid and binding subscription constitutes a contract between the subscriber and the corporation, and secures certain rights which the respective parties may enforce. It enables the subscriber to compel the corporation to give him the legal evidence of his being a stockholder upon his complying with the terms of his subscription ; and, on the other hand, it puts it in the power of the corporation to compel him to pay for his shares, and thereby to become a shareholder in fact to that amount ; neither party being permitted to escape from the obligations created by the subscription.* Where a person subscribes to the capital stock before the incorporation of the company, his subscription may be withdrawn at any time before the incorporation is com- pleted. But if the subscriber suffers his subscription to re- main unrevoked, the contract takes effect on the day the corporation comes into existenceX In such a case, there being no corporation when the party subscribed, th^re was at that time no consideration for his promise, nor mutuality in the contract ; but by suffering his subscription to stand unrevoked until the corporation came into existence, it was the same in effect as if the subscription was then made for ' Troy, etc., R.R. Co. v. Tibbits, 18 ^'' Spear v. Crawford, 14 Wend. 20 ; Barb. 297 ; Same v. Warren, lb. 310 ; Beecher v. Dillsburg, etc., R.R. Co., Poughkeepsie & Salt Point R.R. Co. 76 Pa. St. 306 ; Marsh v. Burroughs, i V. Griffin, 24 N. Y. 150; Matter of Woods, 463 ; Busey v. Hooper, 35 Md. Dutchess & Columbia Co. R.R. Co., 15 ; Cass v. Pittsburg, etc., R.R. Co., 58 Id. 397. 80 Pa. St. 31. § 47 MEMBERS AND OFFICERS. 1 67 the first time.^ If the contract to pay for and take stock, before the .incorporation of the company, is valid, and made upon a sufficient consideration, the subscription cannot be revoked. The advantages to be derived from being a member, and the right to participate in dividends, may be a positive benefit ; and where the agreement secures to the subscriber these advantages, the objection of a want of con- sideration cannot be maintained.^ A subscription for shares of stock in a turnpike company was taken by commission- ers authorized to receive it, and in the form prescribed by the act, which form contained a promise to pay the amount subscribed to the president, directors, and company. It was held that on the one side the interest of the company in selHng the shares, and the public advantage to be derived from the success of the enterprise, and on the other, the expected profits to accrue from the stock, were a sufficient consideration to uphold the promise.^ A subscription for stock fraudulently and collusively made is not necessarily void. Notwithstanding the fraud 'Stanton v. Wilson, 2 Hill, 153; resent the association of individual Buffalo, etc., R.R. Co. v. Dudley, 14 rights in accepting and acting upon N. Y. 336 ; Ashuelot, etc., Co. v. Hoit, the propositions offered by the several 56 N. H. 548. " In agreements of this subscriptions. When thus accepted, nature, entered into before the organ- the promise may be construed to have ization is formed, or the agent consti- legal effect according to its purpose tuted to receive the amounts subscribed, and intent and the practical necessity the difficulty is to ascertain the prom- of the case ; to wit, as a contract with issee in whose name alone suit can be the common representative of the sev- brought. The promise of each sub- eral associates." Athol Music Hall Co. scriber to and with each other is not a v. Carey, 1 16 Mass. 473, per Wells, J. contract capable of being enforced, or '' Lake Ontario, etc., R.R. Co. v. intended to operate literally as a con- Mason, 16 N. Y. 451; Hamilton & tract to be enforced between each sub- Deansville Plank R. Co. v. Rice, supra ; scriber and each other who may have Stanton v. Wilson, supra ; Barker v. signed previously, or who should sign Bucklin, 2 Denio, 45 ; Schenectady, etc., afterward, nor between each subscriber & Saratoga Plank R. Co. v. Thatcher, and all the others collectively as indi- i Kernan (11 N. Y.), 102; Barnes v. viduals. The undertaking is inchoate Ferine, 12 N. Y. 18. and incomplete as a contract until the ^ Union Turnpike Co. v. Jenkins, i contemplated organization is effected, Caines, 381. See Cottage St. Church or the mutual agent constituted to rep- v. Kendall, 121 Mass. 528. 1 68 MEMBERS AND OFFICERS. § 48' or collusion, the law will hold the party bound by his sub- scription, and compellable to comply with all the terms and responsibilities imposed upon him thereby. These respon- sibilities cannot be evaded by a notice to the officers of the corporation that the subscriber does not choose to take the stock in accordance with his subscription.^ But fraudulent representations made by an agent of a corporation inducing a subscription would vitiate the contract.* § 48. Proof of membership. — The records of a corporation determine who are its stockholders for the time being, al- though the stock may have been pledged.^ To prove that a person is a stockholder in a company, it is competent to show that his name was entered on the records of the cor- poration ; that he afterward stated that he had taken shares therein ; and that the treasurer of the company offered him a certificate for his shares.* It is not essential to constitute one a member that he have such a certificate, though the act provide that the stock shall be divided into shares and certificates be issued to the stockholders ; a certificate being the mere evidence of title which the court will compel the corporation to deliver to the person having a right to it.^ 1 Schaeffer v. Mo. Home Ins. Co., Buffalo & N. Y. City R.R. Co. v. Dud- 46 Mo. 248. ley, 14 N. Y. 336 ; Beckett v. Houston, ' Hays V. Ottawa, etc., R.R. Co., 61 32 Ind. 393 ; Farrar v. Walker, 3 Dil- III. 422. Ion, 506 ; First Nat. Bank v. Gifford, * State V. Ferris, 42 Conn. 560; 47 Iowa, 575; Hawley v. Upton, 102 Evans v. Bailey, 66 Cal. 112. U. S. 314. A subscriber to stock be- ' N. H. Cent. R.R. Co. v. Johnson, comes a shareholder by virtue of the 30 N. H. 390; Dows V. Naper, 91 111. subscription and before the issuance 44 ; Minneapolis Harvester Works v. of any certificate of stock, in the ab- Libby, 24 Minn. 327 ; Wheeler v. sence of a provision requiring payment Walker, 45 N. H. 355 ; Strong v. as a condition of membership. Wau- Smith, 15 Hun, 222; Com. v. Wood- kon & Miss. R,R. Co. v. Dwyer, 49 ward, 4 Phila. 124; In re Election of Iowa, 121; Cocjuard v. Marshall, 14 St. Lawrence Steamboat Co., 44 N. J. Mo. App. 80. Where a religious soci- 529 ; TurnbuU v. Payson, 95 U. S. ety, supposing that its corporate papers 418. and record had been lost, in order to ' Chester Glass Co. v. Dewey, 16 preserve its property and corporate Mass. 94 ; Agricultural Bank v. Burr, rights, filed a new certificate of incor- 24 Me. 256 ; Same v. Wilson, lb. 273; poration under a later act and held a § 49 MEMBERS AND OFFICERS. 1 69 Where a statute provided that members of a certain corpo- ration should not be liable to jury duty, and that a certifi- cate of membership, to be only given to active members, should be evidence of the fact of membership, it was held that such a certificate was proof of the mere fact of mem- bership, and not that the holder was an active member.^ The owner of shares in the capital stock of a bank trans- ferred his shares and surrendered his certificate of stock to the bank as collateral security for the payment of his note to the bank, and at the same time left with the cashier a written agreement in which it was covenanted that the shares should be held as collateral security for the payment not only of that note, but also of any other note which he might give to the bank, and that in case he did not pay any note given by him, the bank might sell the shares, and, after paying the note with the avails, hold the balance sub- ject to his use. He had received dividends on the stock and paid interest on the note from time to time, which, however, remained unpaid. It was held that he continued to be a member of the corporation.^ § 49. Time and mode of electing members and officers. — The power to elect both officers and members, and the con- duct of the corporate business through the agency of such officers, pertain to the condition and nature of an aggregate corporation, and need not be expressly conferred by the charter. When this power is not lodged in other hands, it must be exercised by the corporation itself. It rnay, however, be taken from the corporation at large and be re- posed in a board of directors.^ If the time and manner of new election for trustees, it was de- ilton, 85 N. Y. 453; S. C. 20 Hun, 355 ; cided that the new corporation was a McHenry v. Jewett, 26 Hun, 453 ; continuance of the old one. Miller v. Hoppin v. Buffum, 9 R. I. 513. English, I Zab. 317. ' Com. v. Gill, 3 Whart. 228. " Cor- ' State V. Primm, 50 Mo. 87. porate powers are usually distinguished ' Merchants' Bank v. Cook, 4 Pick, into legislative, electoral, and adminis- 405. See McDaniels v. Flower Brook trative in private corporations aggre- Manuf. Co., 22 Vt. 274 ; Vail v. Ham- gate, though sometimes all of the 170 MEMBERS AND OFFICERS. §49 holding corporate elections be not prescribed in the char- ter, such matters fall within the province of the corporation through its by-laws.^ When the charter provides that the mode of electing directors shall be prescribed in the by-laws of the corporation, and the by-laws name a time and place for such election, and make it the duty of the secretary of the corporation to give notice of the same, but do not state how or when the notice shall be given, the notice must be according to the general law relating to corporations.* members act immediately in the ad- ministration of its affairs. Usually, for the sake of convenience, the direct management is intrusted by the char- ter to certain officers or- board of man- agers elected by the members at large, though deriving their ordinary powers from the act of incorporation. These officers exercise the legislative and ad- ministrative functions ; the former in the institution of by-laws for the gen- eral government of the company, the latter in the superintendence and exe- cution of its general business. In other instances a select few, repre- senting all those interested in the ob- ject of the association, are erected into and invested with all the powers of a corporation ; and sometimes selected branches are divided into distinct classes. When the corporate exist- ence is devolved on a board of officers, they not only wield the whole corpo- rate authority, but may apply for and agree to radical changes in the instru- ment to which they owe the corporate being. When such a board is separa- ted into integral parts occupying dis- tinct positions, both must concur in any. act having for its object an alteration in the fundamental law, though in the exercise of the ordinary powers of a corporation they act jointly and are governed by a majority of the united bodies. These in their capacity of managers have no authority either to call for or assent to a change in the corporate constitution but by the agreement of a majority of the corpo- rators." Bell, J., in Com. v. CuUen, 13 Pa. St. 113. Where the charter of a railroad company provided that the government and affairs of the company should be vested in a board of direct- ors chosen by the members at their annual meeting, it was held that this provision was merely directory, the act not implying that elections held at other times should be void. Hughes V. Parker, 20 N. H. 58. The charter of an insurance company provided that the affairs of the company should be managed by twenty-three directors to be chosen annually on a specified day and hold their positions for one year. At the election twenty-two persons only were chosen. It was held that the election was vahd, and the court ordered a new election to supply the vacancy of one in the board. Matter of Union Ins. Co., 22 Wend. 591. ' Newling v. Francis, 3 Term Rep. 189; Matter of Long Island R.R. Co., 10 Wend. 37. ^ Ibid. Where the notice of a meet- ing for the election of directors speci- fied the hour of twelve o'clock M., and the meeting was organized a quarter before twelve, it was held that the election thus held was void, although § 49 MEMBERS AND OFFICERS. 17I Where the act of incorporation provides that after the first election all other elections must be held annually at such time as the by-laws shall direct, until the by-laws spe- cify a time no election can be held; and a provision that the directors may designate a time, can only be operative when, the by-laws having fixed the time, no election is held on that day.^ The statute having provided that the board of trustees should be annually elected by the stockholders at such time and place and upon such notice as should be directed by the by-laws of the corporation, it was held that unless all of the stockholders were actually present, either in person or by proxy, such annual meeting could not be held until after notice, and that under a by-law directing that annual meetings should be held on the third Monday in April, a notice of a meeting which did not specify the time of day at which the meeting would be held was insufficient.^ Where stockholders were restrained from holding their annual election for directors at the time fixed, and the election was held several hours after- ward by a minority of the stockholders, without notifying the others, who were near by, and deeply interested in the result of the contest, it was held that the law would not uphold an election conducted in that way.* An act to in- corporate a bank having authorized commissioners ap- pointed by the act, as soon as two thousand shares should be subscribed, to call a meeting for the election of directors by publishing three weeks previous notice in certain news- papers, it was held that the call need not be in a formal order of the commissioners. In such case, a notice pub- lished by the secretary of the commissioners, he being one of them, and the names of the others signed by him, will the meeting was reorganized at twelve. San Buenaventura Manuf. Co. v. People V. Alb. & Susquehanna R.R. Vassault, 50 Cal 534. Co., 55 Barb. 344. » State v. Bonnell, 35 Ohio St. 'Johnston v. Jones, 23 N. J. Eq. (8 10. C. E. Green) 216. 172 MEMBERS AND OFFICERS. § 49 be deemed their act if not disavowed by them. After the commissioners have advertised a meeting, they cannot ad- journ the same at their pleasure (though circumstances may occur in which the exercise by them of the power of ad- journment would be justifiable) ; and if, notwithstanding an adjournment of the meeting by the commissioners, the subscribers proceed to elect their officers, the election will not be avoided unless, in the opinion of the court, a post- ponement was clearly necessary.^ A by-law cannot exclude an integral part of the electors, nor impose upon them a qualification inconsistent with the charter, or disconnected from their corporate character.^ By a charter, the active members of the corporation were restricted to the number of one hundred, and it was provided that active members might be made honorary members. It was held that hon- orary members must be elected from active members, and that a by-law that contributing members might be elected in the same way as active members, was void.^ The by- laws of a religious corporation provided that the president should convene the board of trustees at least once a month, and might call extra meetings whenever, in his opinion, or in the opinion of three members, it should be deemed for the interest or welfare of the congregation, and that a ma- jority of the board might admit new members. The presi- dent refused to call a meeting, although asked to do so by four members ; whereupon, a majority of the board assem- bled without such call, after notifying the president of the time and place of such meeting. It was held that the board, thus convened, had no power to elect new members.* ' Hardenburgh v. Farmers' & Me- enjoins upon them as a duty pertaining chanics' Bank, 2 Green Ch. 68. to their office, as, for instance, to hold '' Willcocks, ex parte, 7 Cowen, 402. the annual election, need not be made ^ Diligent Fire Co. v. Com., 75 Pa. upon the board of trustees in session. St. 291. A demand upon each trustee separately * State V. Ancker, 2 Rich. 245. A is sufficient. State v. Wright, 10 Ne- demand that trustees of a corporation vada, 167. See Flagg v. Lady Bryan shall do an act which the law especially Mining Co 4 lb. 400. § 49 MEMBERS AND OFFICERS. 1 73 Where an act of incorporation provided that there should be three directors, out of whom a president should" be chosen, it was held sufficient that the president was elected by a legally constituted meeting at the same time with the other directors, without his previous appointment as a di- rector.^ If the charter of a religious society does not pro- vide a mode of electing the trustees, and there is no by-law on the subject, the usage of the corporation in holding elections for that purpose will govern. Where two meet- ings are held for the election of trustees on the same day, one at the usual place and in the customary manner, and the other at a different place, the persons voted for who have a majority of votes at the election held at the usual place will be deemed elected, though the candidates voted for in the other place received a majority of all of the votes cast at both places.^ The act incorporating a religious so- ciety having provided that one-third of the trustees should be chosen annually, at least six days before vacancies, it was held that an election the first Monday after Whitsunday in each year, though a movable holyday, was valid. The court said : " The church having fixed upon a yearly relig- ious epoch for the election of trustees, it would be very re- volting to hold the corporation absolutely dissolved from the very first time the elections were so held, and that all its subsequent elections and acts were void merely because the holyday selected for the election did not correspond with the solar year. We cannot, with propriety, have any election that will so correspond, because the calendar day will frequently be the day of the Christian Sabbath, and a given day of the week in any month would not agree pre- cisely with the solar year. We must give the statute a reasonable and liberal construction for the benefit of the churches. Neither a precise day of election, or of entering ' Currie v. Mu. Assoc. Soc, 4 Hen. & Munf. 315. ' Juker V. Com., 20 Pa. St. 484. 174 MEMBERS AND OFFICERS. § 50 upon office, is given. There are many decisions in the books, showing that the election in such cases will be valid if made after the year, and especially if an integral part of the corporation remains."^ An information to remove a corporate officer on the ground that he was elected at an illegal meeting, and deceived the relators as to the time it was to be held, need not allege that they would have voted against him if they had been present.* § 50. Who entitled to vote. — The object of a stock-book, and of requiring transfers of stock to be entered in it, is to enable the corporation to know who its members are in making dividends, and who have a right to vote in case of an election.^ A person in the lawful possession of a reg- ' People V. Runkel, 9 Johns. 147. In England, under the statute of 13 Chas. 2d, a person was disqualified for elec- tion to a corporate office, who had not, within a year previous to his election, partaken of the sacrament according to the rites of the Church of England, whether or not such disqualification were made known to the electors at the time of the election. If the electors had been apprised of the disqualifica- tion before the election, their votes given in favor of the disqualified per- son were thrown away, and the candi- date who had the next greatest num- ber of votes was entitled to the office. But the statute of 50 Geo. 3d, com- monly called the indemnity act, pro- vided that if such person afterward qualified himself within the time al- lowed, he should be regarded as if qualified at the time of the election, provided the office had not been avoid- ed by judgment, or filled by another person. See Rex v. Parry, 14 East. 549- ^ Armington v. State, 95 Ind. 421. 'Gilbert v. Manchester Iron Co., 11 Wend. 627 ; Bank of Utica v. Smalley, 2 Cowen, 770, 778 ; Commercial Bank of Buffalo V. Kortright, 22 Wend. 348, 362 ; Fisher v. Essex Bank, 5 Gray, 373. 380; Hoagland v. Bell, 36 Barb. 57, 58 ; Manning v. Quicksilver Mining Co., 24 Hun, 360; Johnston v. Jones, 23 N. J. Eq. 216 ; State v. Pettinelli, 10 Nevada, 141 ; Beecher v. Wells Flour- ing Mill Co., I McCrary, 62. In New York it has been held that a blank transfer on the certificate of stock, to which the holder has affixed his name, is a good assignment, and that a party to whom it is delivered may fill it up by writing a transfer and power of at- torney over the signature. As between the parties, the delivery of the certif- icate, with the assignment and power indorsed, passes the entire title in the shares, notwithstanding the stock is declared by the charter or by-laws' of the corporation to be transferable only on the books ; such a provision being solely designed for the protection of the corporation. McNeil v. Tenth Na- tional Bank, 46 N. Y. 325 ; N. Y. & N. H. R.R. Co. V. Schuyler, 34 Id. 30; Fatraan v. Loback, i Duer, 354. See Jarvis v. Rogers, 13 Mass. 105 ; Duke v. Cahawba Nav. Co., 10 Ala. 82. But by " omitting to register his transfer, § 50 MEMBERS AND OFFICERS. 175 ular certificate is entitled to have his stock transferred and to vote, although he may have paid nothing for his stock.^ But where the act of incorporation provides that no transfer of stock shall be binding on the company until made in the stock-book, and no stockholder shall be permitted to vote at any meeting unless he became a stockholder on the books of the company previous to the meeting, the right to vote is not to be tested by the mere ownership of stock, but by its entry in the stock-book.^ If the right to vote be disputed, the corporate books "dst prima facie evidence, and the corporation cannot be required to decide the ques- tion otherwise.^ When the directors of a corporation can- the holder of the certificate and power fails to obtain the right to vote, and may lose his stock by a fraudulent transfer on the books of the company by the registered holder to a bona fide purchaser ; but in this respect he is in a condition analogous to that of the holder of an unrecorded deed of land, and possesses a no less perfect title as against the assignor and others. And he would have an action as against the corporation for allowing such a transfer in violation of his rights. He also takes the risk of the collection of divi- dends by his assignor, or any lien the corporation may have on the shares. But in other respects his title is com- plete." McNeil V. Tenth Nat. Bank, supra, per Rapallo, J. 1 Downing v. Potts, 3 Zab. 66 ; State V. Leele, 16 Nevada, 242. See Savage v. Ball, 17 N. J. Eq. 142; Greenville, etc., R.R. Co. V. Coleman, 5 Rich. 118; Bailey v. Railroad Co., 22 Wall. 604 ; Laws of N. Y. of 1880, ch. 510. ^ Mousseaux v. Urquhart, 19 La. Ann. 482. In Vermont the capital stock of a corporation may be transferred in the mode provided by its by-laws. Rev. Laws of Vt. of 1880, p. 62s, sec. 3258. 2 Matter of Long Island R.R. Co., 19 Wend. 37 ; Smith v. American Coal Co., 7 Lansing, 317; Matter of North Shore Staten Island Ferry Co., 63 Barb. 556; Johnston v. Jones, 23 N. J. Eq. 216 ; In re Election of St. Lawrence Steamboat Co., 44 N. J. 529 ; People v. Robinson, 64 Cal. 373. The person who appears to be the owner of shares on the books of the corporation has the right to be treated as a stockholder, and to vote as such, although his stock has been sold. State v. Ferris, 42 Conn. 560. In New York it is pro- vided by law that " in all cases where the right of voting upon any share or shares of the stock of any incorporated company of this State shall be ques- tioned, it shall be the duty of the in- spectors of the elections to require the transfer books of said company as evi- dence of stock held in the said com- pany ; and all such shares as may ap- pear standing thereon in the name of any person or persons, shall be voted on by such person or persons directly by themselves, or by proxy, subject to the provisions of the act of incorpora- tion." 2 N. Y. Rev. Sts., 7th ed , 1535. In the same State the act concerning directors of moneyed corporations (lb. 1369, 1370) provides that "every per- 176 MEMBERS AND OFFICERS. § 50 not get possession of the stock-book, it is their duty to prepare a new one ; and when prepared and adopted, it becomes the proper place for entering subsequent transfers of stock. The old book does not, however, cease to be a stock-book of the corporation on the making of a new one. In ascertaining who are voters, the old book must still govern as to transfers recorded there before the new book was opened.^ In case the real owner wishes to have his name or the true state of facts appear on the books, he has his remedy in equity to compel a proper transfer. If a pledgor and pledgee, or a trustee and cestui que trust, agree that either shall represent the stock, or if the facts are ad- mitted, that may answer. But when the real owner acqui- esces in the control of stock by the person in whose name it stands on the books without informing the corporation of the facts until a contested election occurs, a court of equity will not interfere with the result.^ Where stock stands on the books of the corporation in the name of a trustee, the entry showing on its face that he is only a nominal holder, the real owner of the stock is the proper person to vote, especially if his name is truly ex- pressed in the books ; though it would be otherwise, if he chose to have the entry simply in the name of another, son offering to vote may be challenged tracted to sell or transfer them upon by any other person authorized to vote any condition, agreement, or under- at the same election ; and to every per- standing in relation to your manner of son so challenged, one of the inspect- voting at this election." In Virginia, ors shall administer the following virhen a vote is offered to be given upon oath : You do swear (or affirm) that stock transferred within sixty days be- the shares on which you now offer to fore ihe meeting, if any person present vote do not belong and are not hypoth- object to the vote, it cannot be counted, ecated to (naming the corporation for unless the stockholder make oath that which the election is held), and that the stock on which such vote is to be they are not hypothecated or pledged to given is \\€i^\yj\\vai bona fide. Code any other corporation or person what- of Va. 1873, p. 548. ever; that such shares have not been 'Schoharie Valley R.R. Case, 12 transferred to you for the purpose of Abb. Pr. N. S. 394. enabling you to vote thereon at this ' Hoppin v. Buffum, 9 R. I. 513. election, and that you have not con- § 51 MEMBERS AND OFFICERS. 177 without Stating any trust.^ Upon the death of a stock- holder in a corporation, his administrator becomes, by operation of law, vested with the legal title to the stock and entitled to vote at elections of directors. To give this right, there need not be a formal transfer on the corporate books. The fact that the decedent held the stock subject to a trust would not affect the question. Upon the death of a trustee of personal property, the trust devolves upon his representative, and as to every one except the cestui que trust, he is the absolute owner. The right to vote follows the legal ownership, and the corporation has nothing to do with the equities between the owner and third persons.* If stock be hypothecated, so long as it remains in the pledgor's name on the books of the corporation, he is enti- tled to vote. It is a question between him and the pledgee with which the corporation has nothing to do.^- Where stock had been transferred to the plaintiff as collateral se- curity, a decree was made requiring the pledgee to give the pledgor a proxy to vote on the stock.^ § 51. Voting by proxy. — At common law members cannot vote in this manner.^ There is usually an express provision, 1 Wilson V. Proprs. of Cent. Bridge, See McDaniels v. Flower Brook Manf. 9 R. I. 590. In State v. Hunter, 28 Co., 22 Vt. 274. The general property Vt. 594, the stock proposed to be voted which the pledgor is said to retain is a upon was bank stock held in trust for legal right to the restoration oi tiie a person not a citizen of the State, and thing pledged on payment of the debt, who for that reason was prohibited by Wilson v. Little, 2 N. Y. 443. statute from holding stock in a bank in ^ Vowell v. Thomson, 3 Cranch C. Vermont. It was held that the statute C. 428. could not be evaded by putting the ° Taylor v. Griswold, 14 N. J. (2 stock in the name of another. Green) 222 ; Craig v, First Presbyte- ' Matter of North Shore Staten Isl- rian Church, 88 Pa. St. 42 ; Com. v. and Ferry Co., 63 Barb. 556. In Wis- Bringhurst, 103 Id. 134 ; S. C. 49 Am. consin it is provided by statute that Rep. 119. By the civil law members " every executor, administrator, guard- could not vote by proxy " unless custom ian, or trustee shall represent the shares had ruled it otherwise ; because of the of stock in his hands at all meetings of mischief and inconvenience that might the stockholders, and may vote thereat attend such a practice by having only a as a stockholder." Rev. Sts. of Wis. few of its members assembled in coun- 1878, p. 513, sec. 1760. cil, and likewise to restrain the contu- » Willcocks, ex parte, 7 Cowen, 402. macy of others." Ayliffe Civ. L. 202. VOL. I.— 12 178 MEMBERS AND OFFICERS. §' 5 I either in the charter or in some general statute, permitting it to be done. It was held, however, in an early case in Connecticut, that the right to vote by proxy, in the case of moneyed corporations, might be delegated by the by-laws when the charter was silent. On an information in the nature of a quo warranto, alleging that the defendant had usurped the office of director of the Hartford Bridge Com- pany, the principal question was whether it was competent for the members of the company to vote by proxy in the choice of its officers. There was no clause in the act of in- corporation empowering the members to do so, but power was given to establish such by-laws and regulations as the company deemed necessary for its government, not contrary to the charter or laws of the State. The court below charged the jury that votes given by proxy were illegal. The Supreme Court, in taking the opposite view, said : "Those incorporated societies whose object is the acquisition of property, stand on a different ground on this question from those of every other kind. That is to say, it is not so clear that every vote given in a corporation of the former kind must be personal, as it is that it must be so in the latter. I agree most fully that by the common law every vote given in a corporation instituted for the public good, — either the good of the whole State, or a particular town or society, — must be per- sonally given. So also every vote given by a freeman for his representative must be given by him in person. There is no deviation from this rule. The authorities on this subject are uniform. But from the very nature of a moneyed institutio^i, the mere owning of shares in the stock of the corporation seems, of course, to give a right of voting. But whatever might have been the result of reasoning on the nature of moneyed institutions, still, since the passing of the by-law above mentioned, I am very clear that the votes for the officers of this corporation, as well as all other votes in relation to it, may be given by §51 MEMBERS AND OFFICERS. 179 "1 proxy. " '■ But in New York, in the case of a corporation for the draining of certain lands, the chancellor, with reference to a claim of members to vote by proxy, though the question did not necessarily arise, said : " The right of voting by proxy ' State V. Tudor, 5 Day, 329. See 2 Kent's Com., 9th ed., 358. In New- Jersey, on an application, which was denied, to set aside an election for directors of the Passaic and Hacken- sack Bridge Company, on the ground, among others, that the inspectors acted contrary to law in rejecting votes which were offered by proxies. Chief Justice HoRNBLOWER said: "If corporations have a right to dispense with the per- sonal attendance of their members to conduct their affairs, and decide their elections by the instrumentality of proxies or attorneys, we must find it in the elementary principles of the in- stitution ; in the nature, design, and fundamental constitutions of corpora- tions ; or in some new and positive en- actment or grant of the creating power. In other words, we must find such au- thority among the incidental rights and attributes of all corporate bodies, or in some special power granted by the government to the particular corpora- tion in question Such a power is not essential, nor even apparently necessary, to carry into effect the ob- jects for which corporations are gener- ally created What, then, were the object and design of the legislature in creating this corporation ? That it was not for the purpose of instituting a stock company merely, or principally for the acquisition of property, will ap- pear in the sequel of this investigation. It wa,s to enable the owners or lessees of certain existing property, in the pres- ervation and good management of which the public had a deep and im- portant interest, to adopt such measures as would give permanency and security to the institution, and be calculated to promote their own and the public bene- fit. If, from the nature of things, this charter would be inoperative, or in any measure fail to effect or secure the benign objects the legislature had in view, unless we annex to it the power of making such a by-law as the one under consideration, then it follows that the corporation has the power by implication and. as incident to the charter. But that the right of voting by proxy is essential to the attainment of the objects and design of the charter will not be seriously pretended. If we test the validity of the by-law in ques- tion, or the incidental right of the cor- poration to make it by the latter branch of the rule just quoted, viz., the apparent good of the corporation, the claim will be found equally untenable. It may be for the personal convenience of mem- bers, but it cannot be for the good of the corporation that its business or election should be conducted by proxies. The interest of the company and the good of the public would be better pro- moted and more effectually secured by the personal attendance of, and mutual interchange of opinions among, tlie members, than by the action of proxies. At least, this is the fair and legal pre- sumption. If one member may appear and vote by proxy at elections, and on other matters of vital importance to the institution, then all may, and so the' welfare and interest of the company and of the public be utterly neglected. In short, so far from being incident to a corporation to make such a regulation, it is at variance with the spirit and with the fundamental principles of our civil and political institutions In religious, literary, and benevolent l8o MEMBERS AND OFFICERS. § 5^ is not a general right, and the party who claims it must show a special authority for that purpose. The only case in which it is allowable at common law is by the peers of England, and that is said to be in virtue of a special per- mission of the king. And it is possible that it might be delegated in some cases by the by-laws of a corporation where express authority was given to make such by-laws regulating the manner of voting. I am not aware of any other case in which the right was ever claimed ; and the express power which is generally given to the stockholders of moneyed and other private corporations is opposed to the claims in this case, where there is no express or implied power contained in the act. I therefore think the decision of the inspectors correct in rejecting the votes offered under the proxies." ^ It is provided by statute in Maine, Michi- gan, Indiana, Rhode Island, and Delaware, that corpora- tions may determine by their by-laws the mode of voting by proxy.^ In Wisconsin, stockholders may vote either in person or by proxy at every election of officers, and at societies, no such right has ever been distinction between such corporations lawfully exercised so far as I can learn, as are instituted for the acquisition of We must look for it then among that property, and such as are created for class of private corporations which con- the public good, or the good of a par- sists of canal, railroad, bridge, turnpike, ticular town or society, as will justify banking, and trading companies. But the court in allowing to the one, and public good is the avowed object of all refusing to the' other, a course of pro- such institutions ; and however private ceedings unknown to the common law property and emolument may be in- and at variance with its salutary prin- volved, the public have a deep and im- ciples on this subject." Taylor v. portant interest in the government and Griswold, 2 Green, 222. See opinion success of every one of them. In short, of FORD, J., in the same case, coincid- they are all, in an important sense, ing with the foregoing views, public institutions. A bank, whose 1 Phillips v. Wickham, i Paige Ch stock is exclusively owned by indi- 500. See People v. Twaddell, 18 Hun, viduals, is, in a legal sense, a private 427 ; Craig v. First Presb. Church, 88 corporation ; but its objects and opera- Pa. St. 42. tions partake of a public nature, and = Rev. Sts. of Me. 1 871, p. 394, sec. the same maybe affirmed of insurance, 5 ; Comp. Laws of Mich. 1 87 1, p. 1 148; canal, bridge, turnpike, and railroad Sts. of Ind. 1870, p. 268 ; Pub. Sts. of companies. ..... There is then, in my R. I. 1882, sec, 3; Rev. Code of Del. opinion, no such plain and palpable 1874, p. 376. § 51 MEMBERS AND OFFICERS. l8l Other meetings, when the by-laws so provide.^ In Virginia each stockholder may vote either in person or by proxy.* In New York the statute provides that " No person shall be permitted to vote upon the proxy of a stockholder un- less he shall produce, annexed to his proxy, an affidavit of such stockholder, stating the same facts to which the oath of such stockholder might have been required upon a chal- lenge had he offered to vote in person on the shares men- tioned in the proxy. If any person offering to vote upon a proxy shall be challenged by an elector, he shall be re- quired to take the following oath, to be administered to him by one of the inspectors : You do swear (or affirm) that the facts stated in the affidavit annexed to the proxy under which you now offer to vote, are true according to your belief, and that you have made no contract or agreement whatever for the purchase or transfer of the shares, or any portion of the shares mentioned in such proxy. "^ Where the charter provided that each person being present at the election should be entitled to vote, and there was no pro- vision in relation to voting by proxy, it was held that the word " present " was to be taken to mean an actual, not a constructive presence.* A power of attorney to vote upon stock, with the addition that the power is irrevocable, and that there are certain privileges reserved to the owners of the stock in regard to the manner of dealing with it and withdrawing from the arrangement, is not contrary to pub- lic policy, or open to objection.^ ' Rev. Sts. of Wis. 1878, p. 513, sec. each affects the interest of the others in 1760. the management of the concern, the 'Code of Va. 1873, p. 548. election of directors shall take place *2 N. Y. Rev. Sts., 7th ed., 1369, under circumstances favorable to a con- 1370. See Matter of Election of St. sulfation with each other, so that they Lawrence Steamboat Co., 44 N. J. 529. may have the benefit of each other's ^ Brown v. Com., 3 Grant's Cas. 209. views and information relative to the Lewis, C. J., said : " It seems reason- common interest. This can only be able to hold that in a case where the done by requiring the stockholders to shareholders are embarked in a com- be present when voting." mon enterprise, and where the vote of * Brown v. Pacific Mail Steamship 1 82 MEMBERS AND OFFICERS. § 5.2 § 52. Special qualifications of voters. — If the power to elect directors be given to the stockholders by statute, the corporation cannot, by its by-laws, either give or take the power away. Were the statute silent on the subject, the election of the directors would be subject to the regulation and control of the corporation. But where the statute de- clares who shall be entitled to vote, its provisions are im- perative upon the corporation constituting the law of its being, and the corporation cannot extend or limit the right.^ When the qualifications of voters are named in the char- ter, the right to vote in a given case will, of course, depend upon the language and construction of the charter. The act incorporating a religious society provided that members who had subscribed to the building of the church, or who should thereafter contribute any sum of money not less than ten shillings annually toward the support of the church, should be entitled to vote. It was held that those who had contributed the sum named shortly before the election, or less than a year previous, were not annual con- tributors within the meaning of the act, and had no right to vote, although they contributed with the intention of becoming members of the society.* An act for the incor- poration of religious societies which provides that no person shall be entitled to vote at an election held by any such society until he shall have been a stated attendant on divine worship in the congregation or society at least one year before the election, means regular attendance at the stated times for worship, as distinguished from occasional Co., 5 Blatchf. 525. See I'isher v. 'Brewster v. Hartley, 37 Cal. 15. Bush, 35 Hun, 641. A by-law of a The right to judge of the qualification benevolent society authorizing its mem- and election of its members is a power bers to vote by proxy, was held valid, necessarily incident to a State medical and it was held that the proxies would society. State v. Medical Society, 38 be presumed regular, no objection hav- N. J. 377. ing been made to their form, execution, ' Juker v. Com., 20 Pa. St. 484. or validity. People V.Crossley,69 111. 195. § 53 MEMBERS AND OFFICERS. 1 83 attendance. The attendance must be personal, that of the wife or other member of the family not being sufficient, and no amount of contribution to the support of the church or society can be accepted in lieu of the requirement.^ By the original charter of a religious corporation the right of voting was given to " the contributing members being com- municants." A subsequent act confirmed this charter, with some amendments, one of which was, that no person should have a right to vote who was under the age of eighteen years. It was held that a member was not entitled to vote unless he had partaken of the sacrament after the age of eighteen years.^ § 53. Number of votes allowed to each share. — At com- mon law each corporator is only entitled to a single vote, notwithstanding he may own a number of shares ; ^ but, as a rule, in joint stock corporations, each member is allowed as many votes as he has shares. In Wisconsin it is pro- vided that "every stockholder of any corporation shall be entitled to one vote for each share of stock held and owned by him at every meeting of the stockholders and at every election of the officers thereof."* In Maine, Michigan, Delaware, and Rhode Island corporations may by their by-laws determine, where no other provision is specially ' People V. Tuthill, 31 N. Y. 550. made by a select number of the princi- * Weckerly v. Geyer, 11 S^erg. & pal persons of the commonalty or Rawle, 35. It was determined in an burgesses, and not by the commonalty old case that literal compliance with or burgesses at large. It was held, 'the charter of a municipal corporation after great deliberation and conference as to the persons who took part in an among all the judges, that the elections election would be dispensed with when were lawful, because the regulations the public good would thereby be pro- under which they were conducted inoted. In the case of The Corpora- tended to prevent disorder and confu- tors, 4 Co. 78, decided in the reign of sion, and was therefore for the benefit Elizabeth, several towns had been of the corporation, incorporated by charter which directed 'Taylor v. Griswold, 14 N. J. (2 the election of mayor, bailiff, aldermen. Green) 222 j Com. v. Conover, 10 etc., to be by the commonalty or Phila. 55. burgesses generally ; but by long con- ■* Rev. Sts. of Wis. 1878, p. 513, sec. tinued usage those elections had been 1760. 184 MEMBERS AND OFFICERS. § 53 made, the number of shares that shall entitle the members to one or more votes.^ In Indiana it is provided by stat- ute that each stockholder shall have one vote for each share owned and held by him for ten days previous to the meeting of the corporation.* In Virginia, in a meeting of stockholders of an incorporated joint stock company, each stockholder may, in person or by proxy, give the following vote on whatever stock he may hold in the same right, to wit : one vote for each share of said stock not exceeding ten, and one vote for every four shares exceeding ten.^ In Pennsylvania, section 4, article 16, of the new constitution provides that " in all elections for directors or managers of a corporation each member or shareholder may cast the whole number of his votes for one candidate or distribute them upon two or more candidates as he may prefer." This section is understood to confer upon an individual stockholder the right to cast all the votes his stock repre- sents, multiplied by the number of directors to be elected, for a single candidate, should he think proper. Thus, a stockholder who owned one share would have ten votes for any one of ten candidates or five for each of any two he might choose to select* By the common law a casting vote sometimes signifies the single vote of a member who never votes but in the case of an equality ; sometimes the double vote of a person who first votes with the rest, and then, upon an equality, creates a majority by giving a sec- ond vote. A casting vote neither exists in corporations nor elsewhere, unless it is expressly given by statute or charter, or, what is equivalent, exists by immemorial usage, and in such cases it cannot be created by a by-law.^ A charter creating a corporation gave the bailiffs and alder- I Rev. Sts. of Me. 1871, p. 394, sec. " Code of Va. 1873, p. 548. 5; Comp. L. of Mich. 1871, p. 1148; ''Hays v. Com., 82 Pa. St. 518; Rev. Code of Del. 1874, p. 376; Pub- Pierce v. Com., 104 Id. 150. lie Sts. of R. I. 1882, p. 368, sec. 3. ' I Blk. Com. 181, n ; Jac. L. Diet. «Sts. oflnd. 1870, p. 268. § 54 MEMBERS AND OFFICERS. 185 men, or a major part of them, power to choose a senior baiHff. A by-law was passed giving to the senior bailiff the casting voice in cases wherein the election of bailiffs, aldermen, or other officers the voices should happen to be equal. The by-law was held void ; but it was stated by Lord Kenyon, Ch. J., and Lawrence, J., that if the pro- vision of the by-law had been incorporated in the charter, the senior bailiff would have had, in case of an equality of votes, a double vote.^ § 54. Corporation not allowed to vote on its own stock. — Stock cannot be held by a corporation for the purpose of being voted upon, though held in the name of trustees. "This necessarily follows, unless it can be shown that a corporation can become a stockholder of its own stock, receive from itself dividends, respond to calls for assess- ments, and be responsible for the debts, first as a corpo- ration, and second as a stockholder."^ The capital stock of a railroad company was divided into two thousand shares, which were issued to the original stockholders ; and afterward four hundred of these shares were trans- ferred by some of the stockholders to C, "to hold for the benefit of the corporation." It was held that until the shares were sold and transferred by authority of the company, the right of voting upon them was suspended.^ An election of directors of an insurance company was set aside because a trustee had been allowed to vote upon stock belonging to the company ; the principle being that it could not be tolerated that the officers of a mon- eyed institution should wield such stock, however ob- tained, to control the result of an election of directors. ' Rex V. Gniver, 6 Term Rep. 732. Ann. 482 ; Brewster v. Hartley, 37 See Rex v. Bumpstead, 2 Stew. 231 ; Cal. 15; Vail v. Hamilton, 85 N. Y. State V. Adams, 2 B. & Ad. 699; Peo- 453; 20 Hun, 355 ; Am. Railway Frog pie V. Rector, etc., of Church of the Co. v. Haven, loi Mass. 398. Atonement, 48 Barb. 603. ' Brewster v. Hartley, supra. ' Mousseaux v. Urquhart, 19 La. 1 86 MEMBERS AND OFFICERS. §§55.56 It was said in this case, "The court never could have doubted the right of a person to vote upon stock stand- ing in his name, although held by him in trust for another ; the legal estate is in him, and until divested by assignment, either voluntary or compulsory, he is the only person enti- tled to vote."^ Where the court were satisfied by affi- davits that thirteen of the persons returned as duly elected directors were elected by a vote upon stock owned by the company, and that other persons were elected directors by a large majority of votes upon outstanding stock, the elec- tion of the thirteen was vacated and the others declared duly elected.* But a corporation may from necessity take its own stock in pledge or payment and keep it outstand- ing in trustees to prevent its merger. § 55. Keeping polls open. — When no time is specified by law within which the polls are to be kept open, the dura- tion of the time must be left to the sound discretion of the inspectors.^ The time should, of course, be long enough to afford all of the stockholders present an opportunity to vote.* § 56. Proof of result of election. — The certificate of the in- spectors of election as to what was done on that occasion is admissible ; and it may also be proved who were elected by those who were present at the time, the books of the corporation not being the sole evidence on that point. So, the fact that certain persons have acted as directors may be proved by witnesses to show that they are such.° The pre- sumption of law is, that an officer of a corporation was le- gally chosen when there is nothing in the record to show the contrary.® The plaintiff had performed services as clerk ' Am. Railway Frog Co. v. Havea, ^ Partridge v. Badger, 25 Barb. 146. supra. As to inspectors of election to choose 'Holmes, ex parte, 5 Cowen, 426. directors, see State v. Merchant, 37 See Matter of Barker, 6 Wend. 509. Ohio St. 251. ' Matter of Chenango County Mu. * Mussey v. White, 3 Me. 290 ; Ins. Co., 19 Wend. 635. Blanchard v. Dow, 32 Id. 557; U. S. * People V. Albany & Susquehanna v. Dandridge, I3 Wheat, 64. R.R. Co., 55 Barb. 344. § 57 MEMBERS AND OFFICERS. 1 87 of a religious corporation for which he had received some payments. The records of the society contained entries of the payment of money to the plaintiff for his services on several occasions. But no resolution was entered on the minutes or records of the corporation, appointing him clerk of the church. It was held that evidence of such a vote or resolution was unnecessary.^ By an act authorizing the in- corporation of a religious society, it was provided that at the first election of the vestry, the rector, or if there were none, or he was necessarily absent, one of the wardens or other person, should preside, who should unite in the certif- icate filed under the act. The certificate showed that the rector did not preside at the election, and it did not appear from the certificate or in any other way that he was neces- sarily absent. It was held that the fact that he was neces- sarily absent would be presumed, if required to give valid- ity to the act of incorporation.' Where, under the act of New York for the incorporation of religious societies re- quiring that the presiding officers should be nominated by a majority of the members present, the certificate stated that they were chosen by a plurality of votes, without neg- ativing that they were nominated by a majority, it was held that, in the absence of evidence to the contrary, it would be presumed that they were chosen in accordance with the statute.^ § 57. Validity of election.— When a stockholder omits to vote, he virtually consents that the election shall be made ■ Dunn V. St. Andrew's Church, 14 ^ Meth. Epis. Church v. Picket, 23 Johns. 118. The minutes ought to be Barb. 436 ; s. C. 19 N. Y. 436. Votes entered at the meeting, and not after given for a candidate who is ineligible it separates. Such entries are not evi- will not be thrown dut so as to give dence of an appointment, or of any the election to the opposing candidate other act or thing that ought to be unless it was known by those who vo- done under the common seal. Reg. v. ted that the candidate voted for was Mayor, etc., of Stamford, 6 Q. B. 433. ineligible. In re St. Lawrence Steam- "^ All Saints' Church v. Lovett, i boat Co., 44 R J. 529. Hall, 191. l88 MEMBERS AND OFFICERS. § 57 by those who think proper to exercise their privilege, and he cannot afterward object that they have selected officers of whom he does not approve ; the presumption being that all of the members present who remain silent when a question is distinctly put, concur with those who vote.* If a member vote for part only of the officers to be chosen, he waives his privilege as to the residue, and tacitly consents that the other members may select such persons as they deem proper.* A member will not be permitted to impeach a title conferred by an election in which he was concerned ; it being presumed that every corporator was cognizant of that which has recently taken place in the corporation, unless he shows the contrary. The principle is, that whatever may have been the conduct of the corporate body, if the corporator has acquiesced — if he has in any way knowingly sanctioned it, or done or assisted in doing anything at all affected by the objectionable mat- ter — he will be concluded by his acquiescence, and the court will not relieve him.^ Whoever has a majority of those who vote, the assembly being sufficient, is elected, although a majority of the entire assembly abstain from voting, be- cause their presence suffices to constitute the elective body ; and if they neglect to vote, it is their own fault, and will not invalidate the act of the others, but be construed an assent to the determination of the majority of those who ' Worrell v. First Presby. Church, re-election, of which such stockholders 23 N. J. Eq. 96. had information sufficient to put them ^ Matter of Union Ins. Co., 22 Wend, upon inquiry. Ramsey v. Erie R.R. 521. But see State v. Petiiielli, 10 Ne- Co., 7 Abb. Pr. N. S. 156. An objec- vada, 141. Owners of less than half tion to an election cannot be made by of the stock of a corporation may elect one who was not a stockholder at the directors when the other shareholders time of the election, and received his are restrained from voting. Brown v. stock from a person who took part in Pacific Mail Steamship Co., 5 Blatchf. the proceeding. In re Syracuse, etc., 525. Stockholders who do not vote R.R. Co., 91 N. Y. i. against the re-election of directors must ' Rex v. Slythe, 6 Barn. & Cress. 240 be deemed to have acquiesced in the (13 Eng. Com. L.). acts of the directors done prior to their § 57 MEMBERS AND OFFICERS. 189 do vote. Such an election is valid, although those who do not vote protest against any election at that time, or against the election of the individual who has the majority of the votes. The only way in which they could have prevented his elec- tion was by voting for some other qualified person.^ A rule was granted against commissioners to receive subscrip- tions to the capital stock of a bank to show cause why a mandamus should not issue directing them to reapportion the stock, and also a rule against the president and directors of the bank to show cause why an information in the na- ture of a writ of quo warranto should not be exhibited against them for exercising their respective offices. It ap- peared that the election was conducted pursuant to direc- tions made by a public meeting, and according to the scale of votes adopted by the meeting ; that no vote was chal- lenged ; and that the result of the election in favor of the respondents was reported to a meeting of the stockholders, without objection from any one. The respondents further showed that the relators confirmed the apportionment of the stock by their acquiescence in the proceedings of the meeting, by receiving repayment of the surplus shares, by voting according to the scale of votes made by that apportion- ment, and by consenting to the votes of others ; that the election produced great excitement between the rival par- ties, in which the relators .and respondents were adversary 1 Willcock on Corp., sec. 546. See objection. He was bound as a corpo- Booker v. Young, 12 Gratt. 303. In rator to have known that the title of Rex V. Slythe, supra, Abbott, C. J., the candidate to the office of alderman said : " It has generally been consid- was bad, and his having concurred in ered a rule of corporation law, that a an act which depended for its validity person is not to be permitted to im- upon the circumstance that the incum- peach a title conferred by an election bent was at that time an alderman, in which he has concurred, or the title prevented him from having the right to of those mediately or immediately de- impeach that title ; the principle gov- rived from that election." In Rex v. erning all such cases being acquies- Treveneu, 2 B. & A. 343, it was held cence in the objectionable election at that, as to the defendant, his having the time, concurred in the election was a fatal ipO MEMBERS AND OFFICERS. § 57 to each other ; that the relators' friends resorted to five- share subscriptions, under powers of attorney, and voted on those shares, which the relators now alleged to be ille- gal ; and that it was not until after the relators had been defeated that they discovered any objection to the proceed- ings which they sought to impeach. The decision of the circuit court in favor of the respondents was affirmed on appeal.^ The rule as to the waiver of the privilege of voting may of course be changed by law. A statute provided that the county superintendent of schools should be chosen viva voce by a majority of the wht)le number of directors present. The certificate of the proceedings recited that S. was de- clared duly elected viva voce by a majority of the members voting, and then proceeded to declare that the whole num- ber of directors was 1 12, of whom 56 voted for S., and that K. received 55 votes, one member refusing to vote. It was held that there was no election. ** To warrant setting aside an election, on the ground that improper votes were received, it must be shown affirmatively that the successful ticket received improper votes, which if rejected would have reduced it to a minority ; the mere circumstance that improper votes were received not being sufficient to vitiate an election.^ Fraud will of course vitiate the proceedings. Where a true list of the stockholders entitled to vote, and of the shares held by each was not exhibited at the meeting, and the list was false and known to be so by the parties who ex- hibited it, it was held that the election was illegal.* Where ' State V. Lehre, 7 Rich. 234. An election of A. to a corporate office ^ Com. V. Wickersham, 66 Pa. St. 134, in place of a supposed vacancy created See Everett v. Smith, 22 Minn. 53. by B., cannot be referred to an existing 'Murphy, ex parte, 7 Cowen, 153; vacancy created by C. Rex v. Smith, M'Neely v. W^oodruff, 13 N. J. L. (i 2 Made & Selw. 406. Green) 352 ; Madison Avenue Baptist ■* Johnston v. Jones, 23 N. J. Eq. (8 Church V. Baptist Church in Oliver C. E. Green) 216. In Campbell v. Street, 5 Robt. 649 ; Craig v. First Poultney, 6 Gill & Johns, 94, it wras Presbyterian Church, 88 Pa. St. 42. alleged that transfers of stock had been § 57 MEMBERS AND OFFICERS. 191 the majority of the corporators propose to benefit them- selves at the expense of the minority, the court may inter- fere to protect the minority.^ The following agreement, entered into by ten persons, was held in restraint of trade, against public policy, and void : For value received, we, the undersigned, stockholders of, etc., mutually agree that we will not sell, pledge, or give power of attorney to vote, or agree to sell, etc., the stock we respectively and individually own, without the consent of all the signers to this instru- ment. This agreement is made for mutual protection, and to prevent the sale of the company's franchise by a majority of the present board of directors, who represent a minority of the capital stock.^ But an agreement to combine stock for the purpose of terminating mismanagement, and effect- ing a change in the direction through the instrumentality of a majority of votes at a regular election, is not in conflict with the requirements of the law, and in no wise derogates from its policy.^ colorably made for the fraudulent pur- pose of increasing the number of votes in violation of the provisions of the charter of the company, and an injunc- tion was asked to restrain the fraudu- lent transferees from voting. It was held that the facts set forth in the bill were a violation of the principles and spirit of the charter, and if carried into effect would be a practical fraud upon the complainants, and in derogation of their chartered rights for the protection of which an injunction was the appro- priate remedy. On a similar state of facts, the same was held in Webb v. Ridgely, 38 Md. 364. But an injunc- tion will not be granted upon the com- plaint of a minority of a board of directors to restrain a stockholder from voting upon an alleged excess of stock held by him, before the company has taken steps to cancel the stock. Reed V. Jones, 6 Wis. 680. ' Menier v. Hooper's Tel. Works, L. R. 9, Ch. 350 ; Barr v. N. Y., etc., R.R. Co., 96 N. Y. 44.4. ° Fisher v. Bush, 35 Hun, 641. See Currier v. N. Y., etc., R.R. Co., lb. 355 ; Goodin v. Cincinnati, etc., Canal Co., 18 Ohio St. 169. ' Havemeyer v. Havemeyer, 43 N. Y, Super. . Ct. 506. A majority of the owners of stock in a mining corpora- tion may lawfully agree that they will elect the directors, and determine as to the officers and management of the corporation, and that if they cannot agree they will ballot among themselves for directors and officers, and their vote be cast as a unit, so as to control the election. Faulds v. Yates, 57 111. 416. A majority of the corporators cannot by their votes authorize the ofiScers of the corporation to lease its property to themselves. Meeker v. Winthrop Iron Co., 17 Fed. Rep. 48. See Reilly v. 192 MEMBERS AND OFFICERS, § 57 A court of equity has not jurisdiction to pass upon the validity of the election of the officers of a private corpora- tion, and pronounce judgment against them.^ But when the question of the right or power of an officer to represent or bind a corporation arises incidentally in the course of a suit of which equity may properly take cognizance, and it becomes necessary to look into the legality of his election, in order to properly determine the rights of the parties, the court will pass upon his title and capacity as it would upon any other question of law or fact necessarily arising. The decision would not, however, settle the right to the office, or vacate it if the party were in actual possession.^ In New York, the revised statutes'^ provide that if any person shall conceive himself aggrieved by an election of directors or officers in a moneyed corporation, he may apply to the Supreme Court for redress, giving a reasonable notice of his intended appHcation to the party to be affected thereby. The Supreme Court is thereupon required to proceed in a summary manner to hear the proofs and allegations of the parties, or otherwise to inquire into the causes of complaint, and to make such order, and grant such relief, as the cir- cumstances and justice of the case may seem to require. If the election be set aside, the court may order a new election, and appoint a time and place therefor. The court, if it cannot otherwise arrive at a satisfactory result, may order an issue between the parties, to be made up in such manner and form, and to be tried in such court as they shall select ; or may permit or direct the attorney-general to file an in- formation in the nature of a quo warranto, if the case is Oglebay, 25 W. Va. 36 ; Ervin v. Wright v. Oroville Mining Co., 40 Cal. Oregon R.R. & Nav. Co., 20 Fed. Rep. 20. 577. A court of equity will not de- ' Owen v. Whitaker, 20 N. J. Eq. (5 cree the specific performance of an C.E.Green) 122. agreement to sell certain shares of stock ' Johnston v. Jones, supra ; Me- in a bank which the complainant seeks chanics' Nat. Bank of Newark v. Burnet to obtain in order to control the bank. Manf. Co., 32 N. J. Eq. (5 Stewart) 236. Foil's Appeal, 91 Pa. St, 434. See ' 7th ed., vol. 2, pp. 1370, 137 1. § 57 MEMBERS AND OFFICERS. 1 93 one in which that proceeding would be appropriate. If an issue is ordered, or information filed, it is the duty of the Supreme Court to make such further order in relation to the time and mode of pleading, the examination of witnesses, or the parties, the production of books and papers, and the time and place of trial or hearing, as will in its judgment be effectual in saving the parties expense, and causing a final determination to be had with the least possible delay. Under the foregoing provisions, the court is not concluded by the entries in the transfer book, but may go behind it to try the rights of the respective claimants.^ The taking of an oath may or may not in a given case be deemed essential to the validity of an election. It was held in New York that an election of directors would not be set aside on the ground that the inspectors of election were not sworn according to law.* But in England, where an alder- man omitted to take the oath and subscribe the declaration of renunciation of the solemn league and covenant required by the act of 13 Chas. 2d, until four years afterward, it was held that his election to the office was void, although the oath and declaration were not tendered to him.^ It was decided not a valid objection to the admissibility in evidence of the records of a manufacturing company that they were kept by a clerk who was not sworn to the faith- ful discharge of his duty, pursuant to the statute. The court said : " In this particular, as in many others of a like character, the statute must be deemed to be directory only. 1 Strongv.Smith,i5Hun,222; Thomp- tion at the time the alderman took the son V. Soc. of Tammany, 17 Id. 305. oath. But by 5th Geo. ist, ch. 6, the ' Matter of Mohawk & Hudson R.R. disability for the foregoing cause was Co., 19 Wend. 135; Matter of Che- taken away, and also for omitting to nango Co. Mu. Ins. Co., lb. 635. take the sacrament, unless removal 2 Rex V. Sanchar, 2 Shower, 66. from the office by the corporation or Under the statute referred to in the prosecution was resorted to within six text, the election to the office was void months after the election. lb. 67, note. by the non-description of the declara- See Rex v. Courtney, 9 East. 246. VOL. I. — 13 194 MEMBERS AND OIFICERS. § 58 It confers the power of electing a clerk, and gives the sanc- tion of an oath as a security to the corporation for the faith- ful performance of his duties. Such a provision is similar in its nature to those requiring ofifjcers to be chosen on a certain day, and treasurers and cashiers to give bonds. They are required only for the security of the corporation, and to insure its due regulation and government, and fidelity on the part of its officers, but not as essential to the validity of corporate acts or the performance of official duties. They cannot be construed as conditions precedent, unless they are made so by the express terms of the statute. The breach or neglect of such provisions of law, although only directory in their character, may render officers personally liable for violation of duty, or subject a corporation to pro- ceedings on the part of the government for a disregard of the requisitions of its charter ; but it does not impair the validity of its recorded acts so far as to affect the rights of third parties." * § 58. Failure to hold election. — So long as the capacity to elect remains in the members, a corporation does not be- come defunct from a simple neglect to elect officers, and, notwithstanding a clause in the charter that they shall be elected annually, they may be elected afterward.^ " The • Stebbins v. Merritt, 10 Cush. 27. boat Co., 2 How. Miss. 478 ; Blake v. See Hastings v. Blue Hill Turnp. Corp., Hinkle, 10 Yerg. Tenn. 218 ; Nashville 9 Pick. 80 ; Bank of U. S. v. Dan- Bank v. Petway, 3 Humph. 524 ; Com. dridge, 12 Wheat, (ij, 87, 88. v. CuUen, 13 Pa. St. 133. A neglect of ^ People V. Runkin, 9 Johns. 147 ; the corporation to hold annual meet- Vernon Soc. v. Hills, 6 Cowen, 23 ; ings will not dissolve the corporation — Kelly V. V^right, i Root, 83 ; McCall State v. Barron, 58 N. H. 370. See V. Byram Manf. Co., 6 Conn. 428 ; Barron Creek Ditching Co. v. Beck, 99 Evarts v, Killingworth Manf. Co., 20 Ind. 247 ; — nor a cessation of active Id. 447 ; Rose v. Turnpike Co., 3 business. Kansas City Hotel Co. v. Watts, 46 ; Lehigh Bridge Co. v. Le- Sauer, 65 Mo. 279 ; Lockwood v. Nat. high Coal Co., 4 Rawle, 9 ; Russell v. Bank, 9 R. I. 308 ; State v. Young, 51 McClellan, 14 Pick. 63 ; Knowlton v. 111. 149. Neglect to choose officers Ackley, 8 Cush. 94 ; Wier v. Bush, 4 does not dissolve a private corporation, Litt. Ky. 433 ; Smith v. Natchez Steam- but as a general rule the old officers § 58 ■ MEMBERS AND OFFICERS. I95 non-existence of the managers does not suppose the non- existence of the corporation. The latter may be dormant, its functions may be suspended for the want of the means of action, but the capacity to restore its functionaries by means of new elections may remain. When, therefore, the election of its managers, directors, or other officers is by the charter to be conducted solely by the stockholders, the charter or act of incorporation not requiring the managers, directors, or other officers to preside at, or to do any act in relation to, the election, a failure to elect such officers on the charter day will not dissolve the corporation, but the election of the officers may take place on the next charter day."^ In England, previous to the statute of ii Geo. I., ch. 4, which provided that a municipal corporation should not be dissolved by a neglect to elect its annual officers on charter day, it was doubted whether such failure would have that effect ; and after the passage of that act, it was questioned whether it introduced a new rule, or was only declaratory of the common law.** A mayor was to be hold over until new ones are chosen. ' See opinion of BuLLER, J., in Rex St. Louis Domicile Assoc, v. Augiistin, v. Pasmore, 3 Term Rep. 199, 245, 2 Mo. App. 123; Harris v. Miss., etc., 256; and also opinion of Church, J., R.R. Co., 51 Miss. 602. In Phillips v. in Bethany v. Sperry, 10 Conn. 200. Wickham, i Paige Ch. 595, the Chan- Officers de facto are in colore officii, cellor said : " I am not aware of any and their acts will be valid and binding general principle of the common law on the corporation until they are law- which authorizes all civil or corporate fully removed. Doremus v.- Dutch Re- officers to hold over after the expiration formed Church, 2 Green's Ch. 332; of the time for which they were elected Cahill v. Kalamazoo Mu. Ins. Co., 2 until their places were supplied by Doug. 124; Mechanics' Nat. Bank of others ; and the numerous statutes Newark v. Burnet Manf. Co., 32 N. J. both here and in England giving such Eq. 236. W^here directors have been authority in express terms, seem wholly regularly elected and entered upon the inconsistent with any such common duties of their office, they will continue law principles." People v. Runkin, su- to be directors until their successors pra, contra. are duly elected and qualified, though ' People V. Twaddell, 18 Hun, 427, they may for a time be interrupted in per Daniels, J. ; Reilly v. Oglebay, 25 the discharge of their duties. State v. W. Va. 36 ; Smith v. Silver Valley Bonnell, 35 Ohio St. 10. Mining Co., 64 Md. 85. 196 MEMBERS AND OFFICERS. § 58 chosen among aldermen who were to be elected annually. It appeared that the aldermen present at his election had been in office several years, and that none of them had been re-elected within a year. On a bill of exceptions it was held that the election of the mayor was void for want of an annual election of the aldermen. But upon error to the Exchequer Chamber the judgment was reversed, and the reversal was affirmed in Parliament. The court com- pared it to the case of a constable or other annual officer who remains in office after the expiration of the year.^ In an early case^ it was said : " If the king create a corporation of a mayor and eight aldermen, with a clause in the charter that on the death or removal of any one of the aldermen, the mayor and the other aldermen may within eight days elect another in his place, in such a case, though no election be made within eight days, yet they may elect one at any time afterward ; for the power of election is incident to the corporation, and the affirmative power to elect within eight days does not take away the power implied as incident to the corporation." But if an officer be eligible for one year only,. his office will expire at the end of the year.^ Where a city charter provided that certain officer's therein desig- nated should hold their offices until others were chosen and qualified, but there was no such provision in relation to the city marshal, it was held that after the expiration of the termfor which he was elected, he did not hold over until another was elected in his stead.* If the charter fix the election on a day certain without any power to hold over, the election cannot be adjourned.* ' Foot V. Mayor of Truro, 2 Strange, a successor is duly elected and quali- 625. See Prowse v. Foot, 2 Bro. P. C. fied. Sparks v. Farmers' Bank, 3 Del. 282. If the term of an officer is not Ch. 274. limited to expire at a fixed time or ^ Hicks v. Launceston, referred to l upon a specified event; but there is Roll. Abr. 512. simply a direction for the annual elec- ' Regina v. Durham, 10 Modern, 146. tion of the officer, his original term * Beck v. Hanscom, 29 N. H. 213. continues, though after the year, until " Rex v. Pole, 7 Modern, 194. CHAPTER V. CORPORATE MEETINGS. 59. Importance of. 60. Who to call. 61. Different kinds of meetings. 62. Rule as to notice of meeting. 63.1H0W notice should be gjiven. 64. Requisites of notice. 65. Rule as to meeting in the State granting charter. § 66. Organization of meeting. 67. Expression of corporate will. Rule with reference to a quorum. When all are required to be present. Separate private action of mem- bers invalid. Limitation of power of majority. 68. 69. 70. 71- § 59. Importance of. — -The wishes of the corporation, manifested as they must be by and through the individ- uals composing it, respecting its organization, internal pol- icy, and the general conduct of its affairs, could not be very well ascertained and authoritatively expressed other- wise than at a meeting of the members held for that pur- pose, where would be afforded an opportunity for an inter- change of views and mutual discussion. Officers must be appointed or elected, by-laws passed, and vacancies filled, not to mention the numerous other proceedings calling for united action. It has been said with reference to corpo- rate directors that in general the governing body of a cor- poration as such are agents of the corporation only as a board, and not individually ; that they have no authority to act except when assembled at a meeting of the board ; and that the separate action individually of the persons composing such governing body is not the action of the constituted body of men clothed with corporate powers.^ ' Baldwin v. Canfield, 26 Minn. 43 ; 45 Pa. St. 386 ; Corn Exch. Bank v. Harrington v. Liston, 47 Iowa, 11; Cumberland Coal Co., i Bosw. 436; Stoystown, etc.. Tump. Co. v. Craver, Doyle v. Mizner, 42 Mich. 332. " We 198 CORPORATE MEETINGS. §60 Corporate meetings being tiierefore indispensable, it be- comes necessary to consider how they may be called, at what place, and how the will of the members may be indi- cated so as to bind the entire body, § 60. Who to call. — It is scarcely necessary to say that special directions on the subject in a statute should in gen- eral be followed. Where a statute provided that the no- tice to call a meeting of the members should be signed by the secretary, or president, or other principal officer or concur," said the court in Edgerly v. Emerson, 23 N. H. 555, "in the doubt suggested as to the validity of any ac- tion of a majority, or even of all of the board of directors, where there has been no meeting or consultation, each giving his assent at a different time and place from the others. We think that the learned judge who delivered the opinion in that case (Rex v. Win- wich, 8 D. & E.), that there are safe- guards in consultation, and considera- tions of policy as well as of construction, which, in the absence of special author- ity authorizing a different course, fur- nish an argument in favor of the position that an authority to two or more offi- cers or agents of a corporation in their discretion to do certain acts is not well executed by the assent of all if given separately." But in Bank of Middle- bury v. Rutland, etc., R.R. Co., 30 Vt. 159, Redfield, Ch. J., in delivering the opinion of the court, said that it was not important that authority to contract in behalf of a corporation should be conferred at a meeting of the dirctors unless that was the usual mode of their doing such acts ; that if they adopted the practice of giving a separate assent to the execution of con- tracts by their agents, it was of the same force as if done at a regular meeting of the board ; that if this were not so, it would, lead to very great injustice, for it was notorious that the transaction of the orHinary business of railroads, banks, and simi- lar corporations in this country was without any formal meetings or votes of the board ; that there hence followed a necessity of giving effect to the acts of such corporations according to the mode in which they chose to allow them to be transacted ; that if this were not done, it would become im- possible to dispose of such contracts with any hope of reaching the truth and justice of the rights and duties ot the several parties involved; that the cases were numerous in which the eonsent of a majority of the'directors given separately had been held binding upon the corporation ; that if it were not so held, it would enable the major- ity of the business corporations of the country to escape from many contracts which required the action of the direct- ors for their execution whenever they chose to do so. See Goulding v. Clark, 34 N. H. 148. Although the term " the president and directors " is a convenient and very common mode of designating the board of directors in their aggregate capacity, yet it does not render the presence of the presi- dent essential unless otherwise re- quired by the charter or by-laws. Sar- gent v. Webster, 13 Mete. 497. § 6o CORPORATE MEETINGS. 1 99 clerk, it was held that one of the officers named was bound to sign the notice.^ A religious corporation, hav- ing no by-law directing the manner in which meetings should be warned, a meeting, though called as other meet- ings of the society had been, was not called by a board of assessors or standing committee of the society, nor by a justice of the peace upon the application of five or more qualified voters pursuant to the statute, and a vote was passed at such meeting to sell real estate belonging to the society. It was held that a conveyance of the land was void. It was urged that as there was no by-law, a reason- able notice to the members of an intended meeting was sufficient, especially as it was in conformity with the usage of the corporation during the greater part of its existence, and that it was to be assumed as a fact, where nothing ap- peared to the contrary, that all the members had notice. The court said: "Though corporations, where no rule is prescribed, may act by majorities, yet before such majority can be authorized to act, all of the members should be no- tified. And in regard to the usage relied on in this case of notification by the clerk without by-law or direction of any committee, however that might avail as to unimportant and ordinary meetings, yet, where business of the greatest importance is to be transacted, and ranch of the property of the company proposed to be sold whereby the rights of third parties may be affected, we can neither presume that all of the members of the corporation were notified, nor legally infer that they ever agreed to such a mode of warn- ing their meetings. We should rather say that such a mode ' Regfina v. Aldharti, 5 Eng. X. & called and conducted. Rev. Code of Eq. 365. In Delaware, Indiana, Del. 1874, p. 376; Sts. of Ind., Eds. of Maine, Michigan, and Rhode Island, 1862 and 1870, p. 268; Rev. Sts. of it is expressly declared by statute that Me. 1871, p. 394; Comp. L. of Mich, corporations, when no oth-er provision 1871, p. 1148 ; Public Sts. of R. I., Ed. is specially majde, may determine by of 1882, p. 368, sec. 3. their by-laws how meetings shall be 200 CORPORATE MEETINGS. § 6o of calling had crept in through inadvertence and negligence, without the sanction of a majority of the members, and is such as this court will be slow to confirm."^ But where the statute provided that as soon as ten per cent, of the capital stock should be subscribed, the persons named in the certificate of incorporation, or any three of them, might give notice for the stockholders to meet for the purpose of choosing directors, it was held that the statute was directory, and that it was not indispensable to the le- gality of the election that the notice for it should be given by the persons named in the certificate." So, likewise, the only defect suggested in the organization of a corporation being that the call for the first meeting was signed by only one of the persons named in the act of incorporation, and not by a majority of them as required by the statute, it was held that this requirement was merely directory, and only designed to secure the rights conferred by the charter by providing an orderly method of organization.^ Where, however, a by-law provided that meetings of the stock- holders should be called by the trustees, it was held that a legal meeting could not be convened by the president un- less all of the stockholders consented.* So, under a by-law that meetings should be called upon a petition signed by twelve proprietors at least, it was held that it could not be done by a less number than twelve.^ When no one is em- powered by statute or by any by-law to call meetings, it may be done by the general agent of the corporation whenever he deems that the interests and business of the corporation require it.^ The trustees of a religious society cannot lawfully determine when the meetings shall be held, ' Wiggin V. Free - Will Baptist ' Newcomb v. Reed, 12 Allen, Ciiurch, 8 Mete. 301. 362. ' Chamberlain v. Painesville & Hud- ■* State v. Pettinelli, 10 Nevada, 141. son R.R. Co., 15 Ohio St. 225. See See Reilly v. Oglebay, 25 W. Va. 36. Citizens' Mu. Fire Ins. Co. v. Sortwell, 'Evans v. Osgood, 18 Me. 213. 8 Allen, 217. ' Stebbins v. Merritt, 10 Cush. 27. § 6t corporate meetings. 20I or who shall officiate, unless such power is given them by the rules and discipline of the denomination to which they belong.' § 6i. Different kinds of meetings. — These are ordinary, held at regular or stated times, for the consideration of matters in general ; and extraordinary or special, called un- expectedly for the transaction of particular business.^ A meeting may be ordinary as respects time and place, and extraordinary as to the business to be transacted. But al- though' stated meetings may be special, that is, limited to particular business, yet they are usually general, that is, for the transaction of all business within the corporate powers. Unless the object of such a meeting is restricted by express provision of the by-laws, it would ordinarily be understood to be general, and so every corporator would be bound to understand it.* The proceedings of an extraordinary meet- ing frequently require confirmation at some subsequent meeting.* In some corporations the whole authority vests in a se- lect body, with power to perpetuate its own corporate existence by filling vacancies. Such body constitutes the corporation itself, and the meetings and the acts done thereat are those of the corporation. There are other corporations where the aggregate body of corporators meet to discharge corporate functions, and have authority also to perform certain acts and duties by means of agents. Of this character are townships, the inhabitants of which are corporators, and appoint officers to discharge public duties under the guidance and direction of the corporation. Such, likewise, are selectmen for ordinary municipal concerns, overseers of the poor, school committees, assessors of 'Am. Primitive Soc. v. Pilling, 4 * Warner v. Mower, 11 Vt. 385. Zab. 563. * See Clinch v. Financial Corp., L. R. * Brice's Ultra Vires, by Green, 2d 5, Eq. 450 ; Dean v. Bennett, L. R. 6, Am. Ed. 441. Ch. 489. 202 CORPORATE MEETINGS. § 62 taxes, and other functionaries. In tiie latter cases, the rec- ords of the officers are proper records of their own pro- ceedings, but not of the proceedings of the corporation itself.i § 62. Rule as to notice of meeting. — It is a general rule of law that no power or function entrusted to a body con- sisting of a number of persons can be legally exercised with- out notice to all of the members composing the body so as to give them an opportunity to participate in the proceed- ing ;* and if the meeting be special, each member must be personally notified.^ When a regular stated time is fixed in the charter or by-laws or by usage for the election of officers or transaction of business, it will be presumed that every member has notice.* It is immaterial in what way the day of the regular meetings is fixed. The only effect of a stated day is to dispense with the necessity of proving that notice of the meeting was given to the absentees. Proof that a day was fixed by common consent, is sufficient 'Bank of U. S. v. Dandridge, 12 *Rex v. Hill, 4 B. & C. 441, 443; M^heat. 64. Rex v. Carmarthen, i M. & S. 702 ; '^People V. Batchelor, 22 N. Y. 128; Warner v. Mower, supra; State v. People's Ins. Co. V. Westcott, 14 Gray, Bonnell, 35 Ohio St. 10. "The only 440 ; Burgess v.Pue, 2 Gill, 254 ; Smith meetings for which no summons is V. Erb, 4 Id. 437 ; State v. Ferguson, necessary, without it be expressly re- 31 N. J. 107; People V. Alb., etc., R.R. quired by the constitution of the cor- Co., 5 5, Barb. 344; S. C. 7 Abb. Pr. N. poration, are the meetings for which S. 265 ; 38 How. Pr. 228 ; San Buena- set days are appointed by the constitu- ventura Manf. Co. v. Vassault, 50 Cal. tion ; because as every member is in- S34. The fact that the directors of a tended to be cognizant of the constitu- railroad comi)any own a majority of tion of the corporation to which he be- the stock does not obviate the necessity longs, he must be taken to be aware of of submitting to the stockholders, at a what are the set days, and what sub- meeting, a proposition to execute a jects are ordained to be brought before lease of the road and property. Martin the meetings on those days. If, how- V. Continental, etc., R.R. Co., 14 Phila. ever, it is proposed to transact any other 10. business at one of the set day meetings " Smyth V. Darley, 2 House of Lords' than such as is ordained by the consti- Cas. 789 ; Pike County v. Row^land, 94 tution to be transacted thereat, sum- Pa. St. 238. See Genesee District v. mons must be made as in other McDonald, 98 Id. 444. cases." Grant on Corp. 157. § 62 CORPORATE MEETINGS. 203 to show notice of all of the meetings held on that day} The want of notice of a meeting will be waived if the party was present at it, either in person or by proxy, and did not object to it on the ground of informality ;^ unless the char- ter requires a special notice, in which case it has been held that it cannot be omitted even by consent.^ Although certain members are not present in consequence of not re- ceiving notice, yet if they afterward acquiesce in what was done at the meeting, they will be bound thereby.* When it does not appear to the contrary, it will be presumed that notice of a meeting was given to all of the members, the burden of proof being upon those who deny the regularity of a meeting for want of due notice."* Where it was provided that two-thirds of the members should assemble for the transaction of ordinary business, and the minutes simply recited that the members " after due invitation," met, it was held tantamount to saying that two-thirds met after due notice, it not having been customary to mention in the minutes the names or numbers of the members who at- tended.^ Any business which may properly be transacted 1 Atlantic Fire Ins. Co. v. Sanders, Where a meeting of the board of di- 36 N. H. 252 ; Lane v. Brainerd, 30 rectors is held and a quorum present, Conn. 565. it will be presumed, in the absence of ^ Rex V. Chetwynd, 7 B. & C. '695 ; evidence to the contrary, that proper Matter of British Sugar Refining Co., notice was given, and every essential 3 K. & J. 408 ; 26 L. J. Ch. 369 ; Jones thing done to constitute a valid meet- v. Milton, etc., Turnpike Co., 7 Ind. ing of the board. Chouteau Ins. Co. 547 ; Samuel v. Holliday, I Woolw. C. v. Holmes, 68 Mo. 601. The certificate C. 400 ; People v. Peck, 1 1 Wend. 604 ; of a majority of a school committee as Stebbins v. Merritt, 10 Cush. 27. to the qualifications of a teacher, is ' Rex V. Theoderick, 8 East. 543 ; frima facie evidence that they notified U. S. V. McKelden, 4 McArthur, 162. the members who did not sign the * Turquand v. Marshall, L. R. 4, Ch. certificate, and that they made the 376; Smallcombe v. Evans, 3 House necessary examination. Jackson v. of Lords' Cas. 249; Bryant v. Good- Hampden, 20 Me. 37. now, 5 Pick. 228. See Phosphate of « Com. v. Woelper, 3 Serg. & Rawle, Lime Co. v. Green, L. R. 7, C. P. 43 ; 29. And see Grays v. Turnpike Co., 4 Ramsey V. Erie R.R. Co., 38 How. Pr. Rand, 578; Clarke v. Imperial Gas- 193 ; s. C. 7 Abb. Pr. N. S. 156. light, etc., Co., 4 Bam. & Adol. 315. * Sargent v. Webster, 13 Mete. 497. 204 CORPORATE MEETINGS. § 62 at a regular meeting, may, if commenced but not completed at the regular meeting, be done at an adjourned meeting, which is simply a continuation of the regular meeting ; and notice need not be given to the stockholders of the holding of such adjourned meeting, whether the adjournment be from day to day, or from time to time, many days inter- vening.' But of course, in order that notice of a prior meeting should extend to one which is subsequent, the lat- ter must be held for the same purpose and as a continuation of the first meeting.* The question being as to the validity of a tax or poor rate imposed by the vestry of a parish at an adjourned meeting, the notice of which omitted to state the purpose for which such adjourned meeting was to be held, the court said : " We are unanimously of opinion that the rate was not rendered invalid by reason of the alleged defect in the notice of the adjourned meeting. It was suf- ficient to give notice on the church door of the purpose for which the first meeting was to be held, and that notice hav- ing been duly given, we think that the notice so given ex- tended to all the adjourned meetings, such adjourned meet- ings being held for the purpose of completing the unfinished business of the first meeting, and being in continuation of that meeting."^ 1 Warner v. Mower, 1 1 Vt. 385 ; every meeting of a corporate body." State V. Bonnell, 35 Ohio St. 10. Grant on Corp. 157, 358. Where the ^ People V. Batchelor, 22 N. Y. 128 ; charter of a bank provides that the first Kimball v. Marshall, 44 N. H. 466 ; meeting for the choice of officers shall People V. Rochester, 5 Lansing, 142. be held upon a call made by commission- " When business that has been duly ers appointed by the act of incorpora- and regularly commenced at a meeting tion as soon as lawful notice of the duly convened, etc., for the purpose, meeting is given, the subscribers ac- cannot be brought to a close at that quire rights under it, and the commis- meeting, it seems, though the point is sioners cannot adjourn or postpone the not quite clear from doubt, that to meeting at their pleasure. Harden- every such meeting the power of ad- burgh v. Farmers' & Mechanics' Bank, journment is incident for the purpose 2 Green's Ch. 68. of finishing the business so begun. * Scadding v. Lorant, 5 Eng. L. & .... The power of adjournment ap- Eq. R. 16. pears to be at common law incident to § 63 CORPORATE MEETINGS. 205 § 63. How notice should be given.— When no particular mode of notifying the members is prescribed by the charter or by-laws, there should be personal written or printed no- tice signed by some person authorized to designate the time and place of the meeting ; though a verbal notice, if all of the members thereby obtained full information of the proposed meeting, would answer every practical purpose, and would doubtless be deemed sufficient.^ If no one has authority to call a meeting, the powers of the corporation in this respect will be suspended until a new or amended charter is obtained, unless there is a general law furnishing a remedy.* Where the act of incorporation directs the manner in which the first meeting for the choice of officers shall be convened, the corporation has an implied right to provide for the calling of subsequent meetings.'^ When the statute provides that meetings shall be convened in a par- ticular manner, the mode directed must, of course, be fol- lowed.* Where the clerk of the corporation was authorized 1 Stow V. Wyse, 7 Conn. 214; Sav- otherwise in the State paper, seven ings Bank v. Davis, 8 Id. 191 ; Bethany days before the meeting. Rev. Sts. of V. Sperry, 10 Id. 200; Stevens v. Eden Me. 1871, p. 393, sec. 2. In Massa- Meeting-House Soc, 12 Vt. 688 ; Wig- chusetts, the statute is similar, except- gin V. Free-Will Baptist Church, 8 ing that the notice may be published Mete. 301 ; Evans v. Osgood, 18 Me. in a newspaper of an adjoining county 213; Jones V. Milton, etc., Co., 7 Ind. when no paper is published in the 547; Johnston v. Jones, 23 N. J. Eq. county. Public Sts. of Mass. 1882, p. 216. In Delaware, when not otherwise 566, sec. 10. In Michigan, the first provided, the first meeting is to be meeting is to be called by a notice of called by one or more of the persons twenty days to be delivered to each named in the act of incorporation, by member, or pubhshed in a newspaper publishing in a newspaper of the State in the county or adjoining county, or in a ten days' notice of the time, place, the city or district. Comp. Laws of and purpose of the meeting ; or, incase Mich. 1871, vol. i, p. 1 149. of a religious society, by advertisement ''Goulding v. Clark, 34 N. H. 148. at the front door of its usual place of ' Taylor v. Griswold, 2 Green, N. J. worship. Rev. Code of Del. 1874, p. 222. 377. In Maine, the first meeting of a ■* Bethany v. Sperry, supra ; Shelby corporation is to be called by a notice R.R. Co. v. Louisville R.R. Co., 12 served on each member, or published Bush. 62. in a newspaper of the county, if any. 2(?6 CORPORATE MEETINGS. § 63 to warn a meeting by posting up a written notice, it was held that no other mode could be given in evidence, and that it could not be proved by parol, until after proof of the loss of the notice.^ But under a by-law requiring a meeting to be called by the president upon the application of a given number of members, it was held that the direct- ors might issue the call without such application.* It is obvious that the medium of publication may be material as likely to be more or less effective in informing members of the proposed meeting. Thus, where notice of a meeting was required to be published in the newspaper printed at H., if a paper was printed there, otherwise in a newspaper printed at C, and it appeared that the notice was published at C, it was held insufficient, in the absence of proof, that a newspaper was not printed at H.* The fact that a mem- ber is away from home will not excuse the want of notice. In such a case the notice should be left with some one of the member's family, or at his house, or last place of abode, if the family be absent.^ It is not a valid objection to the call of a meeting, that one of the stockholders, by reason of physical or mental imbecility, was incapable of receiving notice in fact ; the law not looking into the capacity of the stockholders to transact business, but only regarding the capacity of the aggregate body when duly assembled.® The carrying of the charter of a religious corporation around among the members, and privately obtaining their signatures, without a notice, or meeting, will not bind them.® A pledgee of stock is not, for the purpose of notice of meetings, to be regarded as an owner of the stock.'' ' Stevens v. Eden Meeting House ' Stebbins v. Merritt, 10 Cush. 27. Soc, supra. Notice of meeting may be waived by ' Citizens' Mil. Fire Ins. Co. v. Sort- stockholders. Kenton Furnace, etc., well, 8 Allen, 217. See Farwell v. Co. v. McAlpin, 5 Fed. Rep. 737. Hougton Copper Works, 8 Fed. Rep. ^ Shortz v. Unangst, 3 Watts & 66. Serg. 45. ' Goulding v. Clark, supra. ' McDaniels v. Flower Brook Manf. * Jackson v. Hampden, 20 Me. 37. Co., 22 Vt. 274. § 64 CORPORATE MEETINGS. 207 § 64. Requisites of notice. — -The notice should contain the date, time of day, place, and business proposed to be trans- acted at the meeting ; though the omission from the notice of the object will not render the whole meeting irregular.^ When there is no provision in the statute as to the length of notice, it must be given a reasonable time before the meeting.^ If sent by mail, it will be presumed that the person to whom it was addressed received it.^ A statute which provides for a long notice of a meeting given to stockholders for the election of directors, should be liber- ally construed, as it enables them to qualify for the election, tends to promote a full attendance, and guards against con- trivance and the ill effects that might result from partial representation.* A provision of law that the corporation shall meet once in every year, means the year commencing the first of January, and terminating with December.^ Un- der a statute providing that the board of trustees shall be 1 Matter of British Sugar Refining be held, go to C, and get back the Co., 3 K. & J. 408 ; Graham v. Van night of the next day. The court, in Dieman's Land Co., i H. and N. 541 ; holding that sufficient time was given, 26 L. J. Exch. 73 ; Fox's Case, L. R. 6, said : " Corporations have power under Ch. 176; Clave v. Financial Corp., L. the statute to make specific provision R. 16, Eq. 363. See Granger v. Orig- fixing the time and manner of giving inal Empire Mill, etc., Co., 59 Cal. 678 ; notice of special meetings, and, if they Johnston v. Jones, 23 N.J. Eq. 216. do not avail themselves of the power ' Rex v. May, 5 Burr, 2681 ; Rex v. thus given, but leave the entire matter Hill, 4 B. & C. 426 ; Wiggin v. Free- to the discretion of one of their princi- will Baptist Church, 8 Mete. 301 . pal officers, they have no right to com- ' Covert v. Rogers, 38 Mich. 363. In plain of the insufficiency of the notice this case a written notice, signed by given, so long as it appears that suffi- the treasurer of the corporation, calling cient time was given to enable the par- a meeting of the directors for June 23d, ties to be present if they so desired." at one o'clock in the afternoon, for the ■* Matter of Long Island R.R. Co., 19 transaction of important business per- Wend. 37. See U. S. v. McKelden, 4 taining to the finances of the corpora- McArthur, 162. tion, was on the morning of June 20th ^ Gibson v. Barton, L. R. 10, G. B. sent by mail to one of the directors 329. When the charter requires an- who resided at C, in Ohio. It was nual meetings for the election of direct- proved that a person could, start from ors, a by-law cannot change the time. H., the place where the notice was Elkins v. Camden & Atlantic R.R. Co., mailed and where the meeting was to 36 N. J. Eq. 467. 208 CORPORATE MEETINGS. § 64 annually elected by the stockholders at such time and place as shall be directed by the by-laws of the company, unless all of the stockholders are actually present and consenting in person or by proxy, the annual meeting cannot be legally held until after notice has been given of time and place ; and a by-law naming a day for such meeting, without speci- fying the hour, will not constitute a sufficient notice.' When a society may lawfully meet for the transaction of its business on Sunday, a member attending a meeting held on that day may then and there be served with a no- tice to attend the next meeting.* Regularly the notice ought to mention the place of meeting, and this is indis- pensable if it is proposed to meet at an unusual place.'' A writer observes that the notice should contain the time and place of meeting, " unless there be some standing rule or established custom known to all the members which fixes these, and even then it will be more advisable to issue a proper notice to remind forgetful members."* A by-law having provided that a regular meeting of the directors should be held at the principal office of the company on the first Saturday in December, and that special meetings might be called by the president at any time by giving written notice of the time and place to every director, it was held that the plain inference from this was that the president was authorized to name the place as well as the time of a special meeting, and that in the exercise of his judgment he might name some other place than the prin- ' San Buenaventura Manuf. Co. v. as, if all of the members were present Vassault, 50 Cal. 534. In an English at and concurred in the election, such case it was held on demurrer that the notice would have been unnecessary, replication was bad, because it as- Rex v. Chetwynd, 7 B. & C. 695. sumed, as a general proposition of law, " People v. Young Men's, etc., Soc, that there could not be a lawful assem- 65 Barb. 357. bly for the purpose of electing a bur- ' Miller v. English, 21 N.J. 317. gess without a previous notice of the * Green's Brice's Ultra Vires, 2d purpose of the meeting given to every Am. ed. 440. member of the common council; where- § 64 CORPORATE MEETINGS. 209 cipal office of the company.^ Where the statute directed that the place of meeting should be the counting-room of the corporation, and the meeting was held at the dwelling- house of the general agent and clerk, it was held that in the absence of proof to the contrary it would be presumed that the counting-room of the company was there.^ Al- though where a particular kind of business is always trans- acted on a set day, notice need not be given if that alone is to be done, yet it will be otherwise if it is intended to pro- ceed to some other business of importance.^ When offi- cers serve for a year, and until others are chosen, a warrant calling the annual meeting need not state that the officers are to be chosen, although a by-law provides that the war- rant shall "specify the business to be transacted."* A meeting of the directors of a bank in New Haven was warned by the cashier, under instructions from the presi- dent then in New York, by giving personal notice to all of the directors in New Haven that the meeting was to be for the transaction of important business, without specify- ing the kind of business. The notice was held sufficient for ordinary transactions, and it was held that securing a debt of the bank by mortgaging its real estate was of this description.^ But notice of a meeting for the transaction of important business should name the object so as to call the attention of each member to the special matters to be considered.^ Notice was given of a meeting of the stock- holders of a company " for the purpose of considering, and, if so determined, of passing a resolution to wind up the com- pany voluntarily." Such a resolution having been passed, it was held (reversing the decision of the Master of the 1 Corbett v. Woodward, 5 Sawyer * Sampson v. Bowdoinham Steam C. C. 403. Mill Corp., 36 Me. 78. ' McDaniels v. Flower Brook Manuf. ' Savings Bank v. Davis, 8 Conn. 191. Co., 22 Vt. 274. ' Shelby R.R. Co. v. Louisville, etc., » Willcox on Corp. 42, 43. R.R. Co., 12 Bush. Ky. 62. VOL. I.— 14 2 TO CORPORATE MEETINGS. § 65 Rolls) that the resolution was invalid, the notice not show- ing that it was designed to propose a resolution that the company was unable by reason of its liabilities to continue its business, nor contain anything to show that it was pro- posed to pass such a resolution for winding up the com- pany as would not require confirmation by a subsequent meeting.^ In the call for a meeting in which new directors were chosen, there was no intimation of a purpose to hold such an election. The notice was of a meeting for the purpose of making alterations in the by-laws, and for the transaction of such business as might come before them. It was held that the notice did not fairly embrace a meas- ure of such importance to the members of the corporation as the transferring of the corporate power to new hands.* The notice of a meeting of a school district need not be drawn with special formality. All that is required is that it shall be so expressed that the inhabitants of the district may fairly understand the object for which they are to be convened.^ § 65. Rule as to meeting in the State granting charter. — Corporations cannot migrate from one sovereignty into another so as to become legal local existences within the latter.* Consequently corporate acts performed by the body of the corporation while sitting out of the State which creates it are wholly void.^ As a corporation exists by force of its domicile, it is obvious that where that law ' Matter of Bridport Old Brewery Ohio & Miss. R.R. Co., 20 Ind. 497 ; Co., L. R. 2, Ch. 191. See Matter of Wood & Hydraulic Hose Mining Co. Silkstone Fall Colliery Co., L. R. I, Ch. v. King, 45 Ga. 34; Franco-Texan D. 38. Land Co. v. Laigle, 59 Texas, 339 ; ' People's Mu. Ins. Co. v. Westcott, Smith v. Silver Valley Mining Co., 64 14 Gray, 440. Md. 85 ; Plimpton v. Bigelow, 93 N. Y. * South School Dist. v. Blakeslee, 13 592; Reichwald v. Commercial Hotel Conn. 227 ; Merritt ■z/. Farris, 23 111. 303. Co., 106 111. 439; Camp v. Byrne, 41 < Wright V. Bundy, n Ind. 404. Mo. 525. See Copp v. Lamb, 12 Me. " Freeman v. Machias Water Power 3J2 ; Heath v. Silverthorn, etc., Co., 39 & Mill Co., 38 Me. 343 ; Aspinwall v. Wis. 146. § 65 CORPORATE MEETINGS. 211 is not obligatory, the corporation can have no existence.^ The charter of a corporation created by the Legislature of Vermont authorized the sale of shares when the owner of them neglected or refused to pay an assessment duly laid thereon. A. and B., being owners of shares which were issued as fully paid, the stockholders, at a meeting held in the city of New York, at which A. and B. were not pres- ent, passed a resolution authorizing the assessment of the stock to pay debts, and to raise funds to defray current expenses, and the sale of the shares of such owners as re- fused or neglected to pay the assessment. A. and B. had notice of the meeting and of the assessment, but did noth- ing to assert their rights, and their shares were sold. It was held that no corporate act could be done out of the jurisdiction creating the corporation which would bind members not participating in it, and that the mere neglect of A. and.B. to take action for a time short of that pre- scribed by the statute of limitations would not preclude them from maintaining an action for damages.^ When, a corporation is created by the concurrent legislation of two States, it may hold its meetings in either.^ There is a wide difference between a corporation, as such, holding meet- ' Hilles V. Parish, 14 N. J. Eq. (i '' Ormsby v. Vt. Copper Mining Co., McCarter) 380 ; Wright v. Bundy, su- 56 N. Y. 623, reversing S. C. 65 Barb. pra. The same principle is applied in 360. And see Mitchell v. same, 40 N. analogous cases to persons upon whom Y. Supr. Ct. 406. the law has conferred some power or ' Covington, etc.. Bridge Co. v. Mayer, faculty which, as natural persons, they 31 Ohio St. 317, approving Sebastian v. do not possess; as, for instance, the Covington, etc., Bridge Co., 21 lb. 451. power conferred by law upon execu- Where the resolutions of the board of tors, administrators/ and guardians, directors of a corporation authorizing It is no objection to the corporate acts the transfer of stock were passed at a of a foreign corporation that they are meeting held out of the State, it was authorized by a meeting of the direct- held that they were void, and that the ors held in the State, when the acts transfer of stock in pursuance of such thus authorized are not repugnant to resolutions to the directors who partic- the policy of the laws of the State, ipated in the illegal proceedings vested Smith V. Alvord, 63 Barb. 415. no title in them. Hillesv. Parish, Mg^ra. 212 CORPORATE MEETINGS, § 65 ings, passing votes, and exercising corporate powers outside the boundaries of its creation, and the making of a contract outside of the State by the persons intrusted with the man- agement of the affairs of such corporation ; such persons not being the corporation, but its mere agents. In the latter case, the courts allow actions to be sustained by and against a foreign corporation the same as in the case of a corporation created by their own legislature.* This rule applies to the directors of a corporation, who are not a corporate body when acting as a board, but a board of offi- cers or agents.* The directors of a corporation, in confer- ring authority upon an agent to execute a deed, do not act as a corporation, but as agents of the corporation ; and this authority may be conferred by a vote passed at a meeting of the directors without the State where the corporation was created.^ It is, therefore, not a valid objection to a mortgage, given by a railroad company to secure, its bonds, that the meeting of the directors by which the mortgage was authorized was held out of the State ; it being admitted that the mortgage was executed properly and in good faith, and duly recorded in the office of registry in the State in which the company was incorporated and had its railroad.* Upon a writ of entry for a tract of land to which the de- mandants derived their title from a company incorporated by the Legislature of Maine, it appeared that a meeting was called for the organization of the corporation to assemble ,in the city of New York ; that the charter was there accepted .and the officers chosen ; and that at a meeting of directors, ^hus elected, in New York, a resolution, was passed author- izing the president and secretary to execute the conveyance ' Bank of Augusta v. Earle, 13 Pet. Co., 6 Conn. 428 ; Reichwald v. Com. 521. Hotel Co., 106 111. 439 ; Bassett v. " Galveston R.R. v. Cowdrey, 1 1 Mining Co., 1 5 Nevada, 293. Wall. 476 ; Wright v. Bundy, supra ; ' Bellows v. Todd, 39 Iowa, 209. Newburg Petroleum Co. v. Weare, 27 * Galveston R.R. v. Cowdrey, supra. Ohio St. 343 ; McCall v. Byram Manf. And see Arms v. Conant, 36 Vt. 744. § 66 CORPORATE MEETINGS. 213 under which the demandants claimed title. It did not ap- pear that there had ever been a meeting in Maine, though the company had an agent in that State. It was held that the conveyance was void, on the ground that the election of the directors took place out of the State. It was con- ceded that if the company had been legally organized, and the directors legally elected, the fact that they made the appointment of the agent out of the State would not have rendered the conveyance invalid,^ § 66. Organization of meeting. — A meeting should be opened and called to order within a reasonable time of that specified in the notice. What is a reasonable time will de- pend in some measure upon the circumstances of each case. A delay will be proper when it is necessary to enable all of the members to assemble ; but not such a delay as to create a general belief that no meeting will be held, and thereby to induce the larger part of the members to disperse, where a few afterward open the meeting, and adopt a measure which could not have been done except for the delay.* Part of the members of a corporation assembled a quarter of an hour before the time appointed for an election, or- ganized a meeting, chose inspectors, and passed resolutions to proceed with the election, which they did, after confirm- ing the choice of inspectors. Other members in a different room, at or shortly after the hour fixed, organized a meeting, appointed inspectors, and also had an election. It was held ' Miller v. Ewer, 27 Me. 509. Where the corporation not being available in a call for payment upon the subscrip- a collateral suit, without showing a tion to tJie stock of a corporation was judgment of ouster against them in a ordered by a board of directors, chosen direct proceeding by the government at a meeting held beyond the bounda- for that purpose. Ohio & Miss. R.R. ries of the State granting the charter, Co. v. McPherson, 35 Mo. 13, BATES, it was held that a subscriber in an ac- J., dissenting. See Franco-Texan Land tion against him for the call thus made Co. v. Laigle, 59 Texas, 339. could not object to the legality of the ' South School Dist. v. Blakeslee, 1 3 election ; objection to the authority of Conn. 227. See State v. Bonnell, 35 directors de facto to act in behalf of Ohio St. 10. 214 CORPORATE MEETINGS. § 6/ that the first-named meeting was irregular and void as to the members who did not participate in it, and that the ir- regularity was not cured by reorganizing the meeting at the proper time, it being in fact and legal effect a continuation of the first meeting ; but that the second meeting was val- id.^ The presumption of law is, that the meeting was held at a suitable time in the day, and in pursuance of the no- tice.* A moderator who, in the absence of the president or other regular presiding officer, merely presides, and sees that the proceedings are conducted in a legal and orderly manner, acts only as an agent of the corporation. It is not necessary that he should be a stockholder, although, for convenience, it is customary to choose one of the stock- holders to perform the duty. But the moderator's duties, like those of clerk, are simply ministerial, and can in no way affect the validity of the transactions of the corpora- tion or the rights of others.' When the statute does not require that the subject matter of business to be transacted at a meeting shall be named in the notice, the meeting may entertain and pass upon "anything essential to the corporate mterests.* But it has been held that if the members of a corporation are summoned to appear for one particular purpose, they cannot proceed to the consideration of any other matter, without the consent of the whole body.® § 67. Expression of corporate will. — Corporations are sub- ject to the principle that the members are bound by the acts of the majority when such acts are conformable to the charter ; each one having tacitly agreed to subordinate his individual will to the will of the corporate body duly as- certained according to law." The majority here means the 'People V. Alb., etc., RR. Co., 55 * Schoff v. Bloomfield, 8 Vt. 472. Barb. 344. » Machel v. Nevinson, 1 1 East. 84. ' South School Dist. v. Blakeslee, « Durfee v. Old Colony, etc., R.R. supra. Co., 5 Allen, 242 ; State v. Wilmington, 'Stebbins v. Merritt, 10 Cush. 27. 3 Harring. Del. 294; Faulds v. Yates, §67 , CORPORATE MEETINGS. 215 major part of those who are present at a regular corporate meeting. The following is the language of a few of the authorities on the subject : "The will of a corporation is not merely the concurring will of all its members, but that of even a bare majority of them. Therefore, the will of a bare majority of all its existing members is regarded as having the disposal of, and being invested with, all the rights of the corporation. This rule is founded on the law of nature, inasmuch as if unanimity were demanded, it would be quite impossible for any corporation to will and to act. It is also confirmed by the Roman law." ^ " In general, it would be the understanding of a plain man, that when a body of persons is to do an act, a majority of that body would bind the rest." * "' The act of the majority binds the whole, so much so, that the court will compel the person who has the custody of the corporate seal to affix it to any act according to the vote of the majority, though against the consent of such person."^ "The fundamental princi- ple of every association for the purposes of self-government, is, that no one shall be bound except with his own consent expressed by himself or his representatives. But actual assent is immaterial, the assent of the majority being the assent of all ; and this is not only constructively, but actually true ; for that the will of the majority shall in all cases be taken for the will of the whole, is an implied, 57 III. 416; Dudley v. Ky. High School, the minority is limited by law to such 9 Bush. 576 ; Mowrey v. Ind. & Cin. cases as are clearly provided for and R.R. Co., 4 Biss. 78 ; Neate v. Den- defined by the statute which prescribes man, L. R. 18, Eq. 127; Treadwell v. the powers of these corporations. Stet- Salisbury R.R. Co., 7 Gray, 393 ; Gif- son v. Kempton, 13 Mass. 272. ford V. N. J. R.R. Co., 10 N. J. Eq. ' Savigny's System of the Roman 174; New Orleans, etc., R.R. Co. v. Law, vol. 2, p. 329, sec. 97. Harris, 27 Miss. 537 ; Eggleston v. ^ Lawrence, J., in Withnell v. Gar- Doolittle, 33 Conn. 396 ; Howell v. tham, 6 Term R. 388. Chicago & N. W. R.R. Co., 51 Barb. ' Kenyon, C. J., in Rex v. Beeston, 378 ; Rogers v. Lafayette Agricultural 3 Term R. 592. See case of Wadham Works, 52 Ind. 304. In the case of College, Cowp. 377. towns, the power of the majority over 2l6 CORPORATE MEETINGS. § 6/ but essential stipulation in every compact of the sort ; so that the individual who becomes a member assents beforehand to all measures that shall be sanctioned by a majority of the voices."^ "Religious societies, act- ing as corporate bodies under the statute, must be governed by majorities, and minorities must submit or secede. '. . . . In the regulation of the temporal concerns of the society, I know of no exception where the minority must not yield to the majority acting within the scope of their authority, and proceeding according to law. It must be so in the nature of things, else, upon any change of af- fairs in a church, a very small minority would have power to turn out a very large majority." * It is scarcely necessary to say that it makes no difference what may be the nature of the corporation, whether for public or private, religious or secular purposes, contracts entered into and arrangements made or sanctioned by a majority of the members, with due regard to formalities, if the questions be such as the general body is competent to determine are valid, notwithstanding the opposition or dis- sent of some of the corporators. And it forms no legal ground of complaint that some resolution or regulation of the company, which existed at the time a person became a member, and upon faith in the continuance of which he was induced to subscribe for stock, was afterward changed ; it being the right and duty of the majority to make such change when demanded by the interests of the company.^ ■ Gibson, J., in St. Mary's Church, tioh does not otherwise provide. The 7 Serg. & Rawle, 517. majority would not be permitted to ex- ' Randolph, J., in Miller v. Eng- elude their fellow - corporators. But lish, I Zab. 317. Where land becomes they may occupy and manage the prop- the absolute property of a religious cor- erty as they please, admitting the mi- poration, subject to no use except for nority to the same benefits as them- its general purposes, it is incident to its selves. Keyser v. Stansifer, 6 Ohio, 363. nature to hold such property at the will ^ See Green's Brice's Ultra Vires, 2d of the majority, if the act of incorpoira- ed., 663 et seq., and cases there cited. § 67 CORPORATE MEETINGS. 21/ In an action to recover the amount of subscription to the stoci< of a railroad company, it appeared that when the de- fendant subscribed for the stock, and previous thereto, an agent of the company stated in a public address, and also privately to the defendant, that all of the stockholders should have a direct vote in the location of the road, and that the defendant subscribed on that express condition, , and refused to do so until this assurance was given ; that different routes had been contemplated, and there was a deep interest and feeling in the community on the subject ; but that afterward, at a meeting of the stockholders, it was resolved by a large majority that the location of the road should be made by the president and directors of the com- pany, on the route selected by the engineer. It was held that the foregoing did not constitute a defense.^ The strictness with which courts adhere to the principle that the will of the majority is the will of the corporation, was illus- trated in a case where a bill in equity having been filed for relief against what was alleged to be a fraud committed by certain of the directors of an incorporated company in the sale to themselves, as representatives of the company, of lands in which they were personally interested, Vice-Chan- cellor WiGRAM declined to interfere, saying that while the court might be declaring the acts complained of void at the suit of the plaintiffs, a majority of the members might at a ' East Tenn. & Va. R,R. Co. v. Gam- obtaining a surrender of the lands of mon, S Sneed, 367. Blackstone (vol. ecclesiastical corporations, it was there- I, p. 478) says : " With us a^y majority fore enacted, by statute 33 Hen. VIII., is sufficient to determine the act of the ch. 27, that all private statutes shall be whole body. And whereas, notwith- utterly void whereby any grant or elec- standing the law stood thus, some tion made by the head, with the con- founders of corporations had made currence of the major part of the body, statutes in derogation of the common is liable to be obstructed by any one law, making verj' frequently the unani- or more, being the minority ; but this mous assent of the society to be neces- statute extends not to any negative or sary to any corporate act, which King necessary voice given by the founder to Henry VIII. found to be a great ob- the head of any such society." struction to his projected scheme of 2l8 CORPORATE MEETINGS. § 68 meeting confirm the sale.^ The rule that the acts of the majority are binding on the whole is to be understood as confined to a majority of those who, by the constitution of the corporation, have a voice in the corporate deliberations. For it frequently happens that the power of action does not extend to the corporation at large, but is confined to a select body ; and then the act of the majority of that select body binds not only the whole of the select body, but the whole corporation.** § 68. Rule with reference to a quorum.— There is a dis- tinction between a corporate act to be done by a select and definite body, as by a board of directors, and one to be per- formed by an indefinite number. In the latter case, a ma- jority of those who appear, if all be properly summoned, may act, however small the number, it being presumed that those who do not appear mean to abide by whatever is done.^ But to constitute a quorum of a select and definite ' Foss V. Harbottle, 2 Hare, 461. Church in Oliver Street, 5 Robt. 649 ; M Kyd on Corp. 308, 309. "Indif- Sargent v. Webster, 13 Mete. 497. ferent corporations, too, the manner in The provision of the constitution of which the majority shall be reckoned, Minnesota, sec i, art. 1 1 , declaring that varies according to the provisions of the all laws for removing the county seat constitution. Sometimes the act that is should, before taking effect, be submit- to bind the corporation must be sane- ted to the electors of the county to be tioned by the assent of an absolute affected thereby, and be adopted by a majority of the whole body empowered majority of such electors, was held to to act ; sometimes it is sufficient if a mean, not a majority of the actual majority of the whole body be assem- electors of the county, but a majority bled, and the majority of those assem- of the electors voting. Taylor v. Tay- bled agree to the act; and sometimes lor, 10 Minn. 107; Bayard v. Klinge, a majority of those assembled, whether 16 lb. 249 ; Everett v. Smith, 22 lb. those assembled be a majority of the 53. See Craig v. First Presbyterian whole or not, may bind the whole cor- Church, 88 Pa. St. 42. A minority of porate body. In all those several cases, the members of an unincorporated the act of the major part which is to religious society, owing to dissensions bind the rest, must be done at one and in the society, discontinued their at- the same time, and at a regular meet- tendance at the church, and held their ing held for that purpose." Ibid. religious exercises at the house of R. ; " Field V. Field, 9 Wend. 394 ; Madi- the society thus maintaining services in son Avenue Baptist Church v. Baptist two places with separate ministers, but § 68 CORPORATE MEETINGS. 2I9 body of persons, a majority at least must be present, and then a majority of the quorum may decide. By an act for draining a particular district, commissioners were authorized to assess and tax upon the whole district such sums as should be necessary for carrying into effect the objects of the act, and to elect assessors to apportion such sums of money among the several parishes, townships, and places within the district. The commissioners having appointed three assessors, the three met to agree upon an apportion- ment. Two out of the three agreed, but the third did not concur. It was held that the apportionment thus made was valid. Lord Tenterden, after consulting with the other judges, said : " Perhaps it may not be necessary that all should meet ; certainly a majority must meet. In this case all the three had met. Where it is granted by charter that a corporation shall have so many aldermen, and so many capital burgesses, and that when one of the latter shall die, depart, or be removed, another shall "be elected in his place by the mayor and aldermen and other capital burgesses then surviving or remaining, or the greater part of them, the election must be made by a majority of the full numbers of aldermen and of capital burgesses ; a mere majority of members of both bodies who happened to survive is not suf- ficient."^ In another case, Littledale, J., said: "It is a neither excluded from participating in exclude the former. In an action of the services of the other. Afterward ejectment by the minority to recover the minority gave the requisite notices possession of the church property, it was for a meeting to organize a corporation, held that they were vested with all of which were read in the church and at the temporalities of the society ; though the house of R., and the meeting was since, at future elections all of the duly held, and the necessary legal for- members might participate in a contest malities observed to incorporate the so- for trustees, the majority would then of ciety. The trustees of the corporation course prevail. Trustees v. Bly, 73 N. thus formed took possession of the Y. 323. church edifice, and while holding re- ' Rex v. Whitaker, 9 Barn. & Cress, ligious services were compelled by the 648. See Palmer v. Doney, 2 Johns, majority to withdraw from it, the latter Cas. 346. continuing to assert their right, and to 220 CORPORATE MEETINGS. § 68 well-established rule, that in order to constitute a good corporate assembly in the case of a corporation con- sisting of a definite and indefinite body, there must be present a majority of that number Of which the definite body consists, although it is not necessary that there should be a majority of the indefinite body. Now, a select vestry is a definite body, consisting of persons hav- ing a special public trust reposed in them. They, there- fore, resemble in their functions a definite body in a corporation." It was said by the court in an English case that " the rule laid down that a majority of a definite body must be present to constitute a good corporate assembly, is one deduced by construction from the terms of the char- ter and the presumed intention of the grantor. It may, however, be fairly supposed that the king would grant to corporate bodies powers consistent with the general rules of law. There may be two objects in appointing a select vestry : one may be to prevent tumultuous meetings which might otherwise occur in populous parishes if the whole body of the parishioners were called upon to meet ; another may be that in all cases there should be a sufficient num- ber of persons to execute the duties reposed in the vestry. The latter object can only be attained by requiring that some specific number of the select vestrymen should be present to constitute a good assembly. The statute of 58 Geo. 3d, ch. 45, sec. 60, has in one instance required the concurrence of four-fifths of the select vestrymen, but in other cases it does not in terms require any specific num- ber. I am of opinion that in analogy to corporations and Other cases where public in contradistinction to private trusts are to be executed by definite bodies there ought, to constitute a good assembly of a select vestry, to be pres- ent a majority in number of the persons who constitute the select vestry." ^ Where there were but two out of nine di- 1 Blacket v. Blizard, 9 Barn. & Cress. 851. § 68 CORPORATE MEETINGS. 221 rectors composing the board present, the election was set aside on that ground.* As a body corporate can only act in the mode prescribed by the law creating it, when it is expressly provided that no meeting shall have the power of acting at which a certain number shall not be present, the special provision of course governs and must be fol- lowed. Where the charter of an insurance company pro- vided that no money or losses should be paid unless with the approbation of at least four of the directors with the president and his assistants, or a majority of them who had met for that purpose, it was held that an adjustment of losses not made at a board of directors constituted accord- ing to the act of incorporation would not be binding on the corporation.^ In Connecticut the charter of a railroad company provided that four directors should be present to constitute a quorum for the transaction of business. Sub- sequently the company was united with a company char- tered in Rhode Island under authority from the legislatures of the two States, the new company taking the name of the company originally chartered in Connecticut. The Rhode Island charter made no provision as to the number of directors that should constitute a quorum. But by the agreement of the two companies, which was sanctioned and confirmed by a statute of the last-named State, the Rhode Island company was to "surrender its franchises, powers,, and privileges " to the Connecticut company, and the Leg- islature of Connecticut, by an act confirming the union, expressly preserved to the united company all the powers, rights, privileges, and franchises which had been granted to the original company. It was held that four directors only continued to constitute a quorum.^ In England, 'Willcocks, ex ^arte, 7 Cowen, 402. 109. See Rogers, ex parte, 7 Cowen, And see Price v. Grand Rapids, etc., 531 et seq., note. R.R. Co., [3 Ind. 58. *Lane v. Brainerd, 30 Conn. 565. ^ Beatty v. Marine Ins. Co., 2 Johns. 22 2 CORPORATE MEETINGS. § 68 where the articles of association did not prescribe the number of directors required to make a quorum, it was held constituted by the number who usually acted in con- ducting the business of the company. Lord Romilly, M.R., said : " I have considered very carefully the question whether two directors were a sufficient quorum for the pur- pose of forfeiting the shares. The total number of direct- ors was six. The largest number who attended was four, and the usual number who attended was two ; that is to say, a third of the directors, and most of the acts were done by that number of directors. Then I find that, though the articles of association specify certain cases in which a committee may form a quorum, they nowhere spec- ify what number shall form a quorum of directors. It is suggested that in the absence of any stipulation to that effect it requires the total number to be present. But I do not think that that follows. I think that what follows is this : that it is the duty of the court to find out what was the usual number of directors who conducted the business of the company. I find the usual number was two, and that being so, in order to prove that the forfeiture was in- valid, it is necessary to establish that it was a wrong and improper exercise of their functions."^ It has been held that when the corporation is composed of several distinct parts or classes of persons, every integral part must be represented at a corporate meeting by a majority at least of its proper members, though the major part of all present when assembled are competent to do a corporate act.* But this rule is only applicable where each integral part is composed of a definite number. If one of them be ' L. R. 4, Eq. 233. Lyster's Case. tions being now of minor importance, ^ In re St. Mary's Church, 7 Serg. & it will suffice to refer briefly to the Rawle, 517. Grant (Corp. 68) says : cases in which they have arisen, ob- " Various questions have arisen in for- serving that the general rule with refer- mer times as to what is a legal assem- ence to corporate bodies consisting of bly of a corporate body consisting of different integral parts of a specified several definite parts ; but these ques- number of members is, that where the §69 CORPORATE MEETINGS. 22 • indefinite, it is. sufficient if any of the persons composing it are present.^ § 69, When all are required to be present. — If it be pro- vided by statute that every member shall participate in the deliberations and determination of matters properly before them, all must be present at the consummation of any act ; and it will not be an excuse that one who was present when act is to be done by the body for the time being, or the major part of them, the majority of the whole must meet for the purpose." Referring to Rex v. Miller, 6 Term Rep. 268 ; Rex v. Bell- ringer, 4 Id. 810 ; Rex v. Bower, i B. & C. 497 ; Rex v. Headley, 7 Id. 496 ; Rex V. Great, 8 Id. 363 ; Rex v. May, 4 B. & Ad. 843. Where the charter created two bailiffs and twelve assist- ants, and enacted in effect that the two and the twelve for the time being, or the greater part of them, of whom the bailiffs should be two, might do corpo- rate acts, it was held that a meeting at which two bailiffs and six assistants were present, was not a good meeting to do a corporate act. Bailiffs of God- manchester v. Phillips, 4 A. & E. 550. A charter provided that the city gov- ernment should be vested in a mayor, one council of seven to be denominated the board of aldermen, and one council of twenty-one to be called the common council, which boards should in their joint capacity constitute the city coun- cil, and that a majority of each board should constitute a quorum for the transaction of business. The board of aldermen designated by vote the 12th of June as the time for going into con- vention for the choice of city officers, which was concurred in by the common council. When, however, the city coun- cil met, only a minority of aldermen appeared. It was held that as the pre- liminary step had been properly taken the mere neglect of one of the constit- uent bodies to carry its vote into effect did not hinder the city council from proceeding with the election of officers. Beck V. Hanscome, 29 N. H. 213. In Whiteside v. People, 26 Wend. 634, appointment to office was vested in two bodies, each of which was sepa- rately to assemble and make a nomina- tion. Both bodies were then to meet, and, if the nominators agreed, the per- son nominated was to be appointed, but if not, there was to be an election by joint ballot. The two bodies met, and one of them declared it had made a nomination ; but the other made none, refused to act, and left the meet- ing. It was held that the appointment of the officer by a majority of the whole number of both bodies was valid. In Humphrey, ex parte, 10 Wend. 612, the judges of the Court of Common Pleas and the supervisors were sepa- rately to nominate superintendents of the poor, and then to meet for the pur- pose of comparing the nominations, and, if they disagreed, they were to elect by joint ballot from the persons nominated. The supervisors met, but refused to make a nomination. The two bodies then met, and a majority of the whole number, in joint meeting, elected superintendents by ballot, and it was held that the election was valid, the court remarking that it could not be in the power of one board thus to violate their duty. ' Rex v. Whitaker, 9 B. & C. 648. 224 CORPORATE MEETINGS. § ^0 the act was begun, left wrongfully before its conclusion,* When an officer who, under the charter, is an integral part of the corporation, leaves the meeting after it has been regularly convened and the election entered upon, but be- fore it has been completed, the election thus held is void.* There are many cases where authority is granted to a board, or to several persons or a majority of them, or to a certain limited number either more or less than a majority, who are thereby constituted a quorum. Thus, in the usual form of bank charters there is a provision that not less than four directors shall make a board for the transaction of business. The effect of this clause is the same as a provision that the directors, or any four of them, shall be competent to trans- act any business of the bank ; and four, when assembled, possess all the powers of the entire board.* Designating the board of directors as the " president and directors," does not render the presence of the president indispensable to a meeting, unless required by the charter or by-laws.* § 70. Separate private action of members invalid. — When the charter provides that corporate functions shall be exer- cised by a select class or body, it must meet as a board, so that it may hear the views of each, and deliberate. The separate action of the individuals composing it without consultation, although a majority of them should in this way agree upon a certain measure, would not be sufficient. Nor would their action in a meeting of the whole body of corporators be a valid corporate proceeding. In thus act- ing they are not distinguishable from their associates, and their decision is united with that of others who have no proper or legal right to join with them in its exercise. All proper responsibility is lost. The result may be the same ' Palmer v. Doney, 2 Johns. Cas. 346 ; ' Edgerly v. Emerson, 3 Foster (23 Rogers, ex parte, 7 Cowen, 526. N. H.), 555. ' Rex V. BuUer, 8 East. 389 ; Rex v. * Sargent v. Webster, 13 Mete. Williams, 2 Maule & Selw. 141. 497. § 71 CORPORATE MEETINGS. 225 that it would have been if they had met separately, and it may be different. In the general assemblage, influences may be brought to bear upon them which in their proper board would be unheeded ; and no one can say with cer- tainty that their vote in the latter would have been the same.^ Where the directors were authorized with the con- sent of a majority at a meeting of the subscribers, to amal- gamate the undertaking with another similar one, and a majority of the subscribers consented to the amalgamation, but no meeting was called, it was held that the amalgama- tion was not binding on those who had not assented to it.^ The prescribed quorum of directors in a railroad company being three, the secretary affixed the seal of the company to a bond, with the written consent of two directors ob- tained at a private interview, and the verbal authority of a third obtained in the same way. In an action against the company on this bond, it was held that the defendant was not liable.^ But, on the other hand, it is not necessary that the whole board should consult and pass upon every trifling detail of business, which would be very inconvenient and often detrimental. In this country numerous transactions of railroad companies, banks, and similar corporations are conducted without any formal meeting.* ' § 71. Limitation of power of majority. — It is an implied and essential stipulation of every association formed for the prosecution of a private enterprise that no one shall be bound except with his own consent expressed by himself or his representatives, and that the acts of a majority of the body are binding on the whole only when confined to its ordinary transactions and consistent with the original ' Cammeyer v. United German Lu- ' Johnson, ex parte, 31 Eng. L. & theran Churches, 2 Sandf. Ch. 186 ; Eq. 430. Dispatch Line, etc., v. Bellamy Manf. ' D'Arcy v. Tamar, etc., R.R. Co., Co., 12 N. H. 205 ; Ross v. Crockett, L. R. 2, Ex. 158. 14 La. Ann. 811. See ante, sec. ''Bank of Middlebury v. Rutland, 59. etc., R.R. Co., 30 Vt. 1 59 ; Bradstreet VOL. I.— 15 V. Bank of Royalton, 42 Id. 128. 226 CORPORATE MEETINGS. § 7 1 objects of its formation.' The principle that the minority are bound by the acts of the majority when those acts are within the charter, and not inconsistent with the object of the corporation, does not apply to acts of the majority incon- sistent with the continued existence of the corporation and the purpose for which it was organized ; and a stockholder does not consent to such acts by becoming a member. No majority, however large, can compel an individual stock- holder to submit to a material change in the powers and purposes of the corporation not in aid of the original ob- ject, such an attempted exercise of power, even if sanc- tioned by the legislature, being an attempt to destroy one private contract and to compulsorily create another in its stead.* In Matter of Phoenix Life Ass. Co.^ the company had been established for granting insurances on lives, and at an extraordinary general meeting it was resolved to ex- tend the business to marine insurance. A supplemental deed, professing to confirm this extension of business, was executed by several of the shareholders ; and in the annual return to the joint stock companies' registry office, the extension was notified. The reports of the directors several times alluded to the extension, and on one occasion such a report accompanied the dividend warrant. The business as extended was carried on a year and a half, when the company was ordered to be wound up. The vice-chancellor, in holding that these circumstances v/ere not sufficient to bind the general body of shareholders by acquiescence to '/« re St. Mary's Church, 7 Serg. &; 177 ; McCrary v. Junction R.R. Co., 9 Rawle, 543 ; Mowrey v. Ind. & Gin. Ind. 358 ; Winter v. Muscogee R.R. R.R. Co., 4 Biss. 78. Co., ii G. A. 438 ; Central R.R. Co. v. ■^Zabriskie v. Hackensack &; N. Y. ColUns, 40 Id. 617 ; Hartford & New R.R. Co., 18 N. J. Eq. (3 C. E. Green) Haven R.R. Co. v. Croswell, 5 Hill, 178; Black V. Delaware, etc., Canal 383; Clearwater v. Meredith, i Wall. Co., 22 N. J. Eq. (7 C. E. Green) 130; 25. S. C. 24 N. J. Eq. (9 C. E. Green) 455 ; ' 2 J. & H. 441 ; 31 L. J. Ch. 479, Middlesex Tump. Co. v. Locke, 8 Mass. cited in Bribe's Ultra Vires, 2d Am. 298 ; Sprague v. 111. R.R. Co., 19 III. Ed. 85. § 7l CORPORATE MEETINGS. 22 7 the extension which could be effected only by a new deed, executed by all, said : " I need not refer to the cases that show that you cannot bind a single dissentient shareholder to any purpose which is not the original purpose of the company ; and that if there was a single dissentient share- holder, it would be quite sufficient- for the official manager, appearing for all the shareholders, to say that no such claim could be supported against the company." An act which compels a corporation to change its business is no less in- valid and repugnant to its charter than an act that directly makes the change.^ In a comparatively recent case the court laid down the following propositions: " ist. As a general rule the acts of a majority of a corporation are binding on the whole when confined to ordinary transac- tions and consistent with the original objects of its forma- tion ; 2d. In all cases where, at the time of subscribing for stock in a corporation, there are existing laws by which the charter of such corporation may be fundamentally changed, the subscription must be presumed to have been made with a view to such laws and to changes which may pos- sibly be made conformably to them, and in such case a majority of the stockholders may adopt changes against the will of a minority ; 3d. In cases not falling within the proposition last above stated, no fundamental change, even though authorized by subsequent legislation, can be made in the charter of a private corporation without the consent of all the stockholders, unless the legislature has provided otherwise in the charter."'' In a case in Massachusetts it was claimed, as a principal ground of demurrer to a bill in equity against directors, that, conceding that a railroad company entered into a conspiracy to defraud a minority of the stockholders, and so dealt and managed as to destroy ' Abbott V. Am. Hard Rubber Co., Detroit & Milwaukee R.R. Co., 8 Mich. 33 Barb. 578. And spe Dyckman v. 100. Valiente, 43 Id. 131; M'Laughlin v. ' Mowrey v. Ind. & Cin. R.R. Co., 4 Biss. 78, per McDonald, J. 2 28 CORPORATE MEETINGS. § 71 the value of the stock, yet the only relief which the mi- nority had was to sell their stock. This doctrine was said to result from the nature of corporate property which, being owned by the corporation, was under the absolute control of a majority of the stockholders, and that their decisions and acts were final. It was held, however, that the objection was untenable^^ Any stockholder may have an injunction against the other corporators to restrain a fundamental change in the original purpose of the act of incorporation, though the proposed change be authorized by an act of the legislature ; the relation between a stockholder and the corporation being one of contract which cannot be impaired without a violation of the Constitution of the United States.® If, where the charter had made no provision on the subject, the legislature could confer upon the owners of a majority of the stock of a corporation power to accept proposed amend- ments to the charter, and by such acceptance to bind the re- mainder of the stockholders, the charter might be altered in its most essential stipulations, not only without the approval, but against the consent of a large number of the corporators, and they thus be subjected to duties and responsibilities not imposed by their contract with the corporation. A major- ity of the stockholders of a corporation cannot, at their own mere caprice, sell out the whole source of their emoluments, and invest their capital in other enterprises contrary to the wishes of the minority. When the duration of the busi- ness is fixed by the charter, until the time has expired, it must continue. If no period be designated by the charter ' Peabody v. Flint, 6 Allen, 52. See 46 ; Laumon v. Lebanon Valley R.R. Ward V. Salem Street R.R., 108 Mass. Co., 30 Pa. St. 42 ; New Orleans, etc., 332. R.R. Co. V. Harris, 27 Miss. 517 ; Cur- 2 Stevens v. Rutland & Burlington tiff v. Manchester & Bolton Canal Co., R.R. Co., 29 Vt. 545; Sparrow v. 13 Eng. Ch. 131 ; Ware v. Grand Junc- EvansviUe, etc., R.R. Co., 7 Ind. 369; tion Water Co., 2 Russ.& Mylne, 461 ; McCrary v. Junction R.R. Co., 9 Id. Stevens v. Rutland & Burlington R.R. 358. And see State v. Bailey, 16 lb. Co., i Am. Law Reg. 154. § 71 CORPORATE MEETINGS. 229 at which the proposed use of the capital shall cease, the contract between the parties is, that so long as the affairs of the company are prosperous, it shall go on, unless all consent to the contrary.^ An injunction was granted, on the application of a member of a company, organized for the purpose of carrying on the business of fire and life in- surance, restraining the company from also embarking, as they proposed to do, in marine insurance, although the plaintiff had only paid one hundred and fifty pounds to the funds, and the whole capital was five hundred thousand pounds, divided among more than six hundred stockhold- ers ; notwithstanding the defendants had offered to return all that the complainant had paid, with interest, and to fully indemnify him against loss by the transactions of the com- pany in the business which was beyond the original articles. Lord Eldon stated, in substance, that it was not compe- tent for any number of persons, in a company formed for specified purposes, to affect that formation, by calling upon some of the members to receive back the capital stock and interest, and quit the concern ; which, in effect, would be compelling them to retire upon such terms as should be dictated to them, so as to form a new company.^ In another case, an injunction was granted on the applica- tion of a single shareholder, restraining the corporation from employing its funds and credit in getting water by an aqueduct from the river Colver, instead of from the Thames, as originally intended.^ When a corporation is authorized by an act to raise ' Kean v. Johnson, i Stockt. 401. of a majority, and against his consent, ' Natusch V. Irving', Appendix to be constituted a member of another Gow on Part. 576. corporation. But it has been held not 2 Ware v. Grand Junction Water Co., to violate the private right of a dissent- supra. Although the details of the ing stockholder when the others unite business of the corporation, and the in selling all the corporate pi-operty, making of its contracts must necessarily even though such sale be equivalent to be under the control of a majority, yet a dissolution of the corporation. Lau- a dissenting member cannot, by a vote mon v. Lebanon Valley R.R. Co., supra. 230 CORPORATE MEETINGS, §71 money for a specific purpose only, a majority of the share- holders cannot divert such money to another purpose against the will of a single shareholder ; nor could all of the shareholders lawfully make such a diversion.^ Al- though majorities may bind in the conduct of the corporate affairs, they cannot determine rights in the act of settle- ment and distribution. Even when the by-laws or arti- cles give the largest control to majorities, they mean this only as a power in carrying on the business, and not in its dissolution and distribution among the members.^ Where members of a corporation gave their notes and obligations to the corporation as collateral security against debtors of the company, on which notes and obligations they were only to be liable for the balance remaining due after other securities had been collected, it was held that a vote of the corporation to compromise the claims could not be re- garded as assented to by the members so liable, if they were not present at the meeting at which the vote was passed, although they had legal notice of the meeting.^ But the legislature may give additional powers from time to time to corporations ; and acts of the corporation in pursuance of such authority, are binding, unless they con- flict with vested rights or impair the obligation of con- tracts.'* " It will not do to say that the subscriber is only presumed to consent to such changes or acts as are ex- pressly authorized by the charter as it exists when he sub- scribes, and that he is always to be considered as protesting to any change of that charter, or enlargement of the pow- ers of the corporation, no matter how manifestly it may promote the common good of all. Such a rule would, in all cases, preclude the possibility of ever altering the charter of any corporation without the express assent of ' Bagshaw v. Eastern Union R.R. ' Am. Bank v. Baker, 4 Mete. Co., 7 Hare, 114. 164. = North Am. Mining Co. v. Clarke, ■> Giibrd v. N, J. R.R. Co., 3 Stockt. 40 Pa. St, 432. 171. § 71 CORPORATE MEETINGS. 23 1 all the shareholders There must be a palpable abuse of power by the majority, or governing authority, to the prejudice of the minority, or dissenting portion, before the courts would be authorized to declare its exercise illegal. If the act is performed in good faith, and with the real in- tent to promote the best interests of the concern, though it might turn out disastrously, the act would be none the less legal It is true that the original purpose or ob- ject of the corporation may not be entirely changed or abandoned, and a new one undertaken ; but we know of no instance where the mere limitation or enlargement of the original plan or purpose has been held not to be within the implied powers of the majority or controlling au- thority." * ' Caton, C. J., in Sprague v. III. members of the society to agree to a River R.R. Co., 19 III. 174. Where a compromise which should secure to the controversy was pending in relation to society a substantial benefit consistent a devise to a church and society as an with the provisions of the will, notwith- existing organized association in a col- standing the dissent of the minority. lective quasi corporate character, it was Horton v. Baptist Church, 34 Vt. held competent for a majority of the 209. CHAPTER VI. BY-LAWS. i 72. Definition and importance. 73. By whom made. 74. Must not be contrary to law. 75. Must be reasonable. 76. By-laws which are proper. 77. Validity of regulations. 78. Must not be in restraint trade. 79. Cannot impose a forfeiture. 80. Creating lien on shares. of §81. Lien created by usage or agree- ment. Lien under the National Currency Act. Restraining transfer of stock. 84. How by-laws may be proved. 85. How far binding. How construed. How validity of by-law deter- mined. 82, 83 86 87 § 72. Definition and importance. — A by-law may be de- fined a rule of a permanent character adopted by a corpo- ration for its internal government, obligatory upon all of its members, and also upon others who are acquainted with the method of the corporation in doing business.^ The po\yer of a body politic to make fixed and known rules for the orderly and efficient conduct of its affairs, is necessary to enable it to accomplish the objects of its creation, which rules must, from the nature of the case, be for the most part left to the discretion of the corporation as being rea- sonably supposed to know what is most conducive to its own interests.* This power is, therefore, "included by law in the very act of incorporation ; for as natural reason is given to the natural body for governing it, so by-laws or statutes are a sort of political reason to govern the body politic." ^ It was said in an early case with reference to ' Grant on Corp. 76 ; Cummings v. ' i Blk. Com. 476 ; State v. Tudor, 5 Webster, 43 Me. 192; Drake v. Hud- Day, 329; State v. Guille, 3 Ala. 137; son River R.R. Co., 7 Barb. 508. Came v. Brigham, 39 Me. 35 ; People ^ Green's Brice's Ultra Vires, 2d Am. v. Sailors' Snug Harbor, 54 Barb. 532 ; Ed. 1 5. Poultney v. Bachman, 39 Hun, 49 ; § 12> BY-LAWS, 233 municipal bodies that " all corporations as such have power to make laws and ordinances, and need not special words in their patents to enable them thereunto. And if they have power to make laws of necessary consequence, they must have a power to inflict a penalty for the enforcing of that law. And surely it can be no exception that this pen- alty goes to the use of the body politic, for it is most rea- sonable that it should be so, for it is in the nature of dam- age for an injury done, and that injury is done to the body politic." ^ A by-law adopted under express authority given in the charter and in conformity therewith has the same binding force as though it was enacted by the legislature.^ Although the common law annexes to a corporation certain incident- al rights, anaong which is the right to adopt by-laws as pri- vate statutes for its government, yet when the charter ex- pressly declares that the corporation shall have power to make by-laws in certain cases and for certain purposes, its power of legislation is limited to the cases and objects spec- ified.^ The by-laws of municipal corporations are usually termed ordinances. § 73. By whom made. — In the absence of some law, or of immemorial usage to the contrary, the power to make by- Kearney V. Andrews, 2 Stockton (10 Trust Co., 4 Ala. 652 ; State v. Fergu- N. J. Eq.), 70 ; Harrington v. Work- son, 3 N. H. 424 ; State v. Morristown, ingmen's Benevolent Assoc, 70 Ga. 33 N. J. 57; Child v. Hudon's Bay 340; German Evangelical, etc., Cong. Co., 2 P. Wms. 207. In the last-named V. Pressler, 17 La. Ann. 127 ; Martin case the company was empowered to V. Nashville Building Assoc, 2 Coldw. make by-laws for the better govern- Tenn. 418. ment of the company, and for the man- ' City of London v. Wood, 12 Mod. agement and direction of the trade to 669. See Ayliffe Civ. L. 202, 203. Hudson's Bay, which it- was said im- ' Presbyterian Church v. New York, plied a negative that it could not make 5 Cowen, 538; Cummings V. Webster, any other by-laws, much less by-laws 5«/ra/ McDermott V. Board of Police, in relation to projects of insurance 5 Abb. Pr. 422 ; Kent v. Quicksilver which by act of Parliament were de- Mining Co., 78 N. Y. 1 59. Glared to be illegal. See 2 Kyd on ^Cunningham v. Ala. Life Ins. & Corp. 102. 234 BY-LAWS, § TZ laws belongs to the members of the corporation at large.* It may, however, be vested in the corporation by the char- ter, or be reposed by the members in some particular part or body of the corporation, as, for instance, in the direct- ors.^ If special authority to make by-laws be given by the charter, such as purport to be made under it must fall within the scope of that authority.* But when the charter confers power on a select body to make by-laws concerning certain specified objects, the body at large still has an inci- dental power to make by-laws as to matters not so speci- fied.* The power to adopt by-laws implies also the power to repeal them.® Although voluntary associations frequently make constitutions and pass by-laws which they declare are not to be altered except in a certain way or manner, as by the concurrence of two-thirds or at two different meetings, yet their constitution and by-laws may at any time be al- tered or abrogated by the same power which created them ; and the vote of any subsequent meeting altering or abro- gating such constitution, though passed only by a major- ity, has as much efficacy as a previous vote establishing it.^ But notwithstanding a by-law provides that the board of directors may alter or amend any of their by-laws, they have no authority to disregard or alter a by-law which in- volves a limitation of their powers.'' As a general rule, mutual fire insurance companies have power to waive pro- visions of their by-laws which have been introduced for the ' Rex V. Westwood, 2 Dow & C. 21 ; ' Calder, etc., Nav. Co. v. Pilling, 14 7 Bing-. I ; Union Bank of Md. v. M. & W. 81, 87. See Richmond St. Ridgely, I Harr. & Johns. 334 ; Salem R.R. Co. v. Reed, 83 Ind. 9. Bank v. Gloucester Bank, 17 Mass. * Per Parke B., 16 M. & W. 228. 129; Morton Gravel Road Co. V. Wy- » Rex v. Ashwell, 12 East. 22; song, 51 Ind. 4. Smith v. Nelson, 18 Vt. 511. ' Rex V. Spencer, 3 Burr. 1827 ; Rex ' Smith v. Nelson, supra, V. Head, 4 Id. 2521; Willcocks, ex 'Stevens v. Davison, 18 Gratt. parte, 7 Cowen, 402 ; Cahill v. Kala- 819. mazoo Ins. Co., 2 Doug. Mich. 124. § "Jl by-laws; 235 benefit and protection of the company. Although their action in this respect may have been irregular, contrary to the established usage, and in violation of their own rules and by-laws, yet, if within the scope of their authority, they are bound by it.^ When authority is given by the charter to make by-laws in a certain form and in a particular manner, the power must be strictly followed, and a by-law made differently will not be binding.^ So, if the act of incorporation directs the mode of enforcing by-laws, no other mode of enforcing them can be adopted ; for where the right and remedy are both created by law, the corporation must pursue the rem- edy provided by it.^ A person who has voluntarily become a member of a corporate body cannot object that the cor- poration had no power to make a by-law.* Eleemosynary corporations differ from others with respect to the power to make by-laws. For the founder prescribes the rules and statutes, which the members cannot alter, modify, or amend.* And the founder himself, after giving a body of statutes, cannot afterward give new statutes, or alter the old, without authority expressly reserved for that purpose, unless the corporation consent.® But the trustees of the corporation may have power given them to make new statutes or amend the old ones.'^ ' Union Mut. Ins. Co. v. Keyser, 32 Bentley v. Bishop of Ely, Fitzgib. 305 ; N. H. 313 ; Hale v. Mut. Ins. Co., lb. Strange, 912 ; St. John's College, Cam- 295. bridge, v. Toddington, I Burr. 158, "^ Dunston v. Imperial Gas, etc., Co., 197, 201 ; Green v. Rutherforth, i Ves. 3 B. & Ad. 125. A by-law adopted at Sen. 462 ; Phillips Academy v. King, a meeting at which a quorum is not 12 Mass. 546; Dartmouth College v. present is invalid. Lockwood v. Mech. Woodward, 4 Wheat. 660 ; Regina v. Nat. Bank, 9 R. I. 308. Dulvvich College, 8 Eng. L. & Eq. 385 ; « Dundalk Western R.R. Co. v. Tap- 17 Q. B. 600. ster, I Q. B. 670 ; Rex v. Head, 4 Burr, ^ Ibid. ; 2 Kyd on Corp. 103. 2515; Shep. Touch. 83; Rex v. Gine- 'Eden v. Foster, 2 P. Wms. 325. ver, 6 Term R. 732. Where a usage of election contrary to ^ King V. Gierke, Salk. 349 ; Piper v. one of the statutes was proved to have Chappell, 14 M. & W. 640. existed for a considerable period, a ' Phillips V. Bury, i Ld. Rayra. 8 ; grant of liberty to depart from the 236 BY-LAWS. § 74 § 74. Must not be contrary to law.^It is essential to tlie validity of a by-law that it should conform to the Constitu- tion of the United States and the acts of Congress pur- suant thereto, to the constitution and statutes of the State in which it is located, and to the general principles and policy of the common law as it is there acknowledged.^ The Constitution being the supreme law of the land, and all enactments contrary to it void, it follows that no act of Congress or of a State legislature can give power to make unconstitutional laws and regulations.* " If," remarks an English writer, " a by-law be contrary to the general laws of the kingdom, it is void, though justified by the terms of the charter ; for all by-laws, says Hobart, must ever be sub- ject to the general law of the realm, and subordinate to it ; and if the king, in his letters patent of incorporation, make ordinances himself, they are subject to the same rule of law." ^ A by-law or regulation can only be a rule for future action. An amendment of the constitution of a corporation, enforcing a new penalty beyond those existing at the time of default, is not a valid regulation, but an ad- judication on existing defaults, analogous to a foreclosure decree fixing a short time of payment, and clearly ex post facto.^ Where an act authorizing free banks declared that the shares should be personal property, and be transferable on the books of the corporation in such manner as the by- laws might direct, it was held that a by-law, adopted after statutes in that particular was pre- N. Y. 655 ; State v. Williams, 75 N. C. sumed. Atty. Genl. v. Middleton, 2 134; Mount Moriah Cemetery Assoc. Ves. Sen. 330. v. Com., 81 Pa. St. 235. See Presby- ' See Cunningham V.Ala. Life & Trust terian Church v. City of New York, 5 Co., 4 Ala. 652, per Collier, C. J. Cowen, 538 ; People v. Crossly, 69 111. ^ U. S. V. Hart, i Peters C. C. 390 ; 195 ; Seneca County Bank v. Lamb, 26 Stuyvesant v. New York, 7 Cowen, 585 ; Barb. 595. State V. New York, 3 Duer, 119 ; Peo- *2 Kyd on Corp. 109; Norris v. pie V. Crockett, 9 Cal. no; Bullard v. Staps, Hobart, 210. Bank, 18 Wall. 589 ; Evansville Nat. " Pillford v. Fire Dept., 31 Mich. Bank v. Metrop. Nat. Bank, 2 Biss. 458. See Kent v. Quicksilver Mining 527 ; Conklin v. Second Nat. Bank, 45 Co., 78 N. Y. 159, 178. § 74 BY-LAWS. 237 the issuing of the stock, that no transfer of stock should be made when the owner was indebted to the bank, did not bind the judgment creditors of the stockholder.^ In an- other case, no lien having been given by the act of incor- poration, and a by-law prohibiting the transfer of stock adopted after the death of a stockholder who was indebted to the company and insolvent, of which the purchaser of his shares had no notice, it was held that the purchaser was entitled to the stock. The. court remarked that if, by such an ex post facto by-law the corporation could increase its rights in the distribution of the assets of the estate, it would not only work a wrong to the purchaser of the stock with- out notice, but diminish what was legally distributable to creditors upon the decease of the testator.^ Where an act provided that payment of assessments might be enforced by sale of the shares, it was held that a by-law permitting an action against a stockholder for a deficiency after the sale, was repugnant to the statute and void.^ It is not in the power of a corporation to impose, by its by-laws, on third persons, nor on its own members in respect to third persons, any liability beyond what is specified in the charter or statutes of the State.* Where the charter of a bank ' Byron v. Carter, 22 La.. Ann. 98. edness of the corporation by the act of ^Steamship Dock Co. v. Heron, 52 a majority of those convened at a meet- Pa. St. 280. ing of such corporation. Take the " Jay Bridge Co. v. Woodman, 31 case of a bank in doubtful credit, and Me. 570. See Auburn Academy v. its managers deem it useful to sustain Strong, Hopk. Ch. 278. it by pledging the individual responsi- * Mechanics' Bank v. Smith, 19 bility of some of its more wealthy stock- Johns. 115; Marietta v. Fearing, 4 holders. Can they, by a corporate vote, Ohio, 427 ; Flint v. Pierce, 99 Mass. impose upon all the stockholders a per- 68 ; Susquehanna Ins. Co. v. Perrine, sonal liability for all the debts of the 7 Watts & Serg. 348 ; Smith v. Smith, corporation ? We think not, and are 52 111. 174. See State v. Curtis, 9 Ne- of opinion that each stockholder, by vada, 325. Such a power over mem- becoming such, subjects himself to no bers " would be liable to great abuse, Uability beyond that created by the and would subject every member of a force of the charter itself, or declared corporation, however liberal its charter by other statutes." Dewey, J., in Free in excluding individual liability, to be Schools v. Flint, 13 Mete. 539. made responsible for the entire indebt- 238 BY-LAWS. § 74 gives the directors power to make such by-laws, rules, and regulations as shall be needful touching the time, manner, and terms at and upon which discounts and deposits shall be made and received by the bank, their authority is limited to the making of by-laws, rules, and regulations to operate upon and control the internal conduct of the business of the bank, — to restrain its own officers and servants in the management of its affairs, and not the public at large, nor the rights and interests of third persons.^ A by-law of a merchants' exchange, providing that members should sub- mit their controversies to arbitration, on pain of expulsion if they brought suit, was held void as being contrary to public policy ; every person having a right to resort to the courts, rather than to arbitrate, if he chose to do so.* A by-law of a municipal corporation forbid- ding the interment of dead bodies in a city is valid, although the right had been exercised one hundred years under grants of land held in trust for that pur- pose to which fees for interment were incident.* An act of incorporation authorized the corporate body to es- tablish such rules and regulations for the management of its business, and the mode in which it should be transacted, as it might deem proper, and conferred upon it express power to admit, and to suspend or expel members, as it might see fit in the manner prescribed by the rules and by-laws. It was held that a by-law was good which pro- vided that if a member should be found guilty of a failure to comply promptly with the terms of any contract, either verbal or written", it should constitute a ground for the sus- pension or expulsion of such member from the privileges and benefits of the corporation, notwithstanding the con- tract not fulfilled was void by the statute of frauds.* A ' Seneca County Bank v. Lamb, ' Coates v. Mayor, etc., of New supra. ' York, 7 Cowen, 585. '' State V. Merchants' Exchange, 2 •• Dickenson v. Chamber of Com- Mo. App. 96. merce, 29 Wis. 45. § 75 BY-LAWS. 239 by-law is not void because the same subject has been regu- lated by statute.^ When a by-law is entire, each part having a general re- lation to the rest, if one part is void the whole is void. But where a by-law consists of several distinct and inde- pendent parts, though one or more of them be void, the rest may be valid. And this rule is applicable to the dif- ferent clauses of the same by-law. For where a by-law con- sists of several particulars, it is, for all practical purposes, like several by-laws, though the provisions are thrown to- gether in the fqrm of one.* A by-law need not recite that it is necessary, such neces- sity being implied.^ But in every question in relation to corporate right should be manifest ; if involved in any doubt, this circumstance alone is a strong legal objection to it.* § 75. Must be reasonable. — The power to make by-laws must be exercised reasonably, and with sound discretion, without oppression or vexation, strictly within the charter, and consistently with the general law of the State.' A by-law which provided that on the annual appointment of the officers of the corporation they should provide a dinner for the members, and that any one who was absent should ' Rogers v. Jones, i Wend. 237. In ■• Zlystra v. Charleston, i Bay. 382 ; this case Woodworth, J., said : " As McMuUan v. Charleston, lb. 46. See to storing gunpowder in New York, Barter v. Com., 3 Pen. & W. 253. the legislature and corporation have 'Mobile v. Yuylle, 3 Ala. 137; Pax- each imposed the same penalty. Suits son v. Sweet, I Green N. J. 196 ; Peo- to recover the penalties have been sus- pie v. N. Y. Commercial AssoR, 18 tained under the corporation law. It Abb. Pr. 271, 279; Hibernia Fire En- is believed that the ground has never gine Co. v. Harrison, 93 Pa. St. 264. been taken that there is a conflict with " The unreasonableness of a by-law the State law." should be demonstrably shown. Courts ' Amesbury v. Bowditch Mut. Fire in construing by-laws will interpret Ins. Co., 6 Gray, 596 ; Rogers v. Jones, them reasonably if possible, not scru- I Wend. 237 ; State v. Curtis, 9 Ne- tinizing their terms for the purpose of vada, 325. making them void, nor holding them 3 Coates V. New York, 7 Cowen, 585 ; invalid if every particular reason for Tuttle v. Walton, i Ga. 43. them does not appear." lb. 240 BY-LAWS. § 75 pay his proportion of the expense under a penalty, was held good.^ A by-lav/ providing that two members of the corporation shall be annually chosen stewards for the ensu- ing year, and that the stewards shall furnish a dinner for the masters, wardens, and assistants, under a penalty of ten pounds, is bad, it not appearing what is the object of the dinner. " But if it had been to make the dinner to the end that the company might assemble and choose officers, or any other thing for the benefit of the corporation, it had been well enough. But in the case of oM corporations by prescription, a by-law to make a customary feast has been held good."* A similar by-law was held bad, not only because a burden was cast on the steward for which no suf- ficient reason was alleged, but on account of the impolicy of multiplying oaths ; the by-law providing that the pen- alty should be enforced, unless the person in default would swear that he was not worth three hundred pounds.^ A by-law of a company of artisans, that every member, whether he use the trade or not, shall pay a given sum quarterly for the benefit of the company, there being nothing to show that the rightful expenditures of the company require any such contribution, is bad.* Where a by-law of a medical society established a tariff of fees to be charged by mem- bers for medical services, and provided that any member who refused to comply with it should be expelled upon a vote of a majority of the members present, it was held that such a regulation was unreasonable, against public policy, and in conflict with well-settled principles of law.^ A by-law of a benevolent society providing that 'Lutw. 1324. •'Tobacco-Pipe Makers v. Wood- ' Framework Knitters v. Green, i rofFe, 7 Bam. & Cress. 838. Ld. Raym. 114. See Wallis' Case, cited "People v. Medical Soc, 24 Barb. Lutw. 1320. 570. "The only implied means for the ' Carter v. Anderson, 5 Bing. 79. enforcement of corporate charges and See Scriveners' Co. v. Brooking, 3 Q. penalties is by action. Summary means B. 95. and methods unknown to the common §7^ BY-LAWS. 241 any member who shall be three or more months in arrears, may have a voice in the society on the payment of the whole amount due, but shall be deprived of benefits for three months after liquidating the same, is unreasonable and void. Such a by-law subjects a member to a quasi penalty after the payment of his dues and the perform- ance of his duty, and for a prospective period. The deprivation to which he is subjected is therefore based upon the omission of a duty which has been discharged. The court remarked that it was not only unreasonable, but oppressive, and detrimental to the interests of the corpora- tion.^ There is no power in a corporate body, nor in a majority of the stockholders, to provide, by by-law, for the creation of a preferred stock, so as to bind a minority of the stockholders not assenting thereto.^ A by-law disturb- ing a vested right is unreasonable, and inconsistent with the principles of law ; and it makes no difference that power to make and alter by-laws is expressly given to a majority of the stockholders, and that the by-law is passed in due form.^ . § 76. By-laws which are proper. — By-laws imposing penal- ties for non-attendance at corporate meetings, and for re- fusal to accept office, and providing for the transfer of shares, are valid.* Where the by-laws of a benevolent so- ciety were adopted and acted under before the society was incorporated, it was held that a by-law was not so unrea- law must be authorized by express au- ' Ibid. 182, 183, per Folger, J. thority, and it would not be reasonable * Pipe-Makers v. Woodroffe, 7 Barn, to enforce a pecuniary obligation or & Cress. 838 ; Farmers', etc., Bank v. penalty by means disproportionate to Wasson, 48 Iowa, 336. See Weston's its importance." Campbell, J., in Pul- Case, L. R. 4, Ch. 20; Gilbert's Case, ford V. Fire Department, 31 Mich. 458. L. R. 5, Ch. 559. Under a custom to ' Cartan v. Father Mathew Soc, 3 exclude foreigners from exercising a Daly, 20, per Brady, J. See Pentz v. trade within a city, a by-law giving the Citizens' Fire Ins., etc., Co., 35 Md. 73. penalty to any but the corporation is " Kent V. Quicksilver Mining Co., 78 bad. Totterdell v. Glazby, 12 Mod. N. Y. 159. 266. VOL. I. — 16 242 BY-LAWS. ^76 sonable as to require a court of equity to declare it void, which provided that the members should be dropped unless they paid the fines imposed for delinquencies ; that a trial should be had before a council composed of a select num- ber of members, without right of appeal ; and that only members should be permitted to testify.* The objects of a society set forth m its charter were "to afford relief to the members thereof, and their families, in cases of sick- ness, to defray the expenses of their funerals, or such other cases of distress as may be defined by the by-laws." One of the by-laws provided that at the death of a member, there should be paid to his widow, or legal representative, the sum of sixty dollars. Another by-law directed that the stewards should withhold all benefits, when intemperance, debauchery, fighting, dueling, or other disgraceful practices were the cause of disease or death. Held not an unreason- able regulation.* A mutual insurance company, under a ' Hussey v. Gallagher, 61 Ga. 86. ° St. Mary's Beneficial Soc. v. Bur- ford, 70 Pa. St. 321 ; 4 Am. Corp. Cas. 125. Agnew, J. : "An association of tliis kind is formed for the benefit of its members. Being a purely voluntarj- association, it may adopt such reason- able regulations as are conducive to their .interests. Now, unless we deny that temperance and regularity of hab- its have much to do with health and long life, we must concede that the value of the benefits to be derived from such an association depends greatly on the good conduct of its members. Then, clearly, the members have not only the right to choose their associ- ates, but to stipulate, also, for the power to prohibit their indulgence in those vices and crimes which multiply disease and death among them, and thus diminish the general fund. It is not the purpose of the by-law to reg- ulate beliavior. Were that its true character, it might be said with reason that it was no purpose of the charter to regulate conduct, and that it must be left to divine and human laws. But this law strikes only at those acts which are the causes of disease and death. These being the events on which relief is made to depend, the law says to the member : It is only to your misfortunes that the purpose of the association ex- tends, and if, by your guilty or dis- graceful fault, you bring upon yourself disease and death, you exclude yourself from the provided relief The motive it presents to good conduct is worthy of notice. What more power- ful incentive than a knowledge, on the part of the member, that by a course of debauchery and crime, he cuts himself off from the relief? The by-law, there- fore, appears to be reasonable, and to promote the well-being of all the asso- ciates collectively and individually." § 7^ BY-LAWS. 243 charter authorizing it to establish such by-laws and regula- tions for the transaction of business as the company might deem expedient, adopted a by-law that if a person insured, at the time of receiving, his policy, gave the company his premium note, promising to pay the amount named in it at such times and in such portiori,s as the directors of the company might require, to meet his proportion of the losses and expenses of the company, and should not pay the sum assessed on such note in thirty days after published notice of the assessment, the directors might bring an ac- tion and recover the whole amount of his premium note ; the balance, if any remained after the payment of such as- sessment, to be returned after the expiration of his policy. The by-law was held valid, it being a contract to which the insured was a party, and therefore binding on him.^ A by- law of a mutual fire insurance company which was made a part of a policy, provided that " it shall be the duty of the in- sured to give notice to the secretary of the corporation of such material and manifest increase of the risk as may have happened without his agency or consent after the reception of his policy, whereupon the officers of the com- pany may agree with the insured on such increase of the premium as the said officers may deem sufficient to cover said increased risk ; or they may withdraw the insurance altogether should they deem such increased risk too great to be taken according to the rules and regulations of the company ; and, in case the insured shall neglect to give notice aforesaid, his policy from that time shall be void." It was held that the not giving the company notice of an ' Cahill V. Kalamazoo Mu. Ins. Co., unless such previous insurance was in- 2 Doug. 124. See Wellcorne V. People's dorsed on the policy when it issued. Ins. Co., 2 Gray, 480; Bowditch Mu. It was held that an express approval Ins. Co. V. Winslow, 3 lb. 41 5. A by- . and consent to such previous insurance law of a mutual insurance company in the policy itself, was a sufficient provided that all policies which might compliance with the by-law. Philbrook issue from the company should be void v. New England Mu, Ins. Co., 37 Me.137. 244 BY-LAWS. § 76 increased risk rendered the policy void, notwithstanding the loss did not arise from such increased risk, and that it was not competent for the court to relieve the insured from the consequences of his own contract.^ A bank was empow- ered by its charter to ordain, establish, and put in execution such by-laws, rules, and regulations, as should seem neces- sary for the government of the corporation. A by-law was held valid which provided that it should be the duty of every other officer to perform such services as might be re- quired of them from time to time by the president or cashier.* By-laws which are reasonable, and beneficial to the cor- poration, have been sustained although they reduced the number of the electors to narrower bounds than were marked out by the charter. Where the act incorporating a religious society declared that no person should vote who had not been a member of the church twelve months pre- ceding the election, a by-law which provided that, although he had been a member during that time, he should not vote if his pew had been in arrears more than two years, was held valid. Tilghman, C. J. : " In the present case, no person is excluded from voting unless he is in default in a matter essential to the support of the church ; and he may reinstate himself in his privilege by paying his debt. Noth- ing is more manifestly for the good of the church than this by-law. Without funds the church cannot exist, and it will be torn to pieces by dissension if the funds are to be collected by suits at law against those who are in arrears. So that this rule is calculated to support the corporation, and preserve harmony among its members." ^ In order to avoid a by-law on the ground of its being un- ' Gardiner v. Mu. Ins.Co., 38 Me. 439. which provides that if, at an election, a " Planters' Bank v. Lamkin, R. M. ballot contains anything besides the Charlt. 29. name of the candidate, it shall not be 'Com. V.Cain, 5 Serg.&Rawle, 510. voted. Com. v. Woelper, 3 Serg. & A by-law of a religious society is valid Rawle, 29. § 17 BY-LAWS. 245 reasonable, because of some inconvenience that may result from it, it should appear to be a probable inconvenience ; for one can hardly predicate of any by-law that some possi- ble inconvenience may not result from it.^ The fact that the by-law has been in force some time, is evidence to show that it has no intrinsic inconvenience.^ § 77. Validity of regulations. — Rules or regulations of cor- porations which affect the rights of third persons who are not members, though not properly speaking by-laws, are somewhat similar in their nature, and require mention under the same head. Of this character are all regulations of rail- road companies, touching the comfort, convenience, and safety of travelers, or prescribing rules for their conduct to secure the just rights of the company. It is a reasonable regulation to set apart a particular car for ladies, and gen- tlemen with ladies ; ^ but not to exclude a gentleman from the ladies' car when there is a seat in it and no unoccupied seat in another car, or to put him out after he has taken a seat without knowledge of the regulation.* The validity of a regulation that passengers shall purchase their tickets beforehand, exhibit them when reasonably requested, and surrender them when asked to do so, by the person in charge, cannot be questioned.^ " But it would scarcely be contended that a regulation requiring passengers con- tinually, or as often as the caprice or malice of a conductor might require it, to exhibit their tickets, forbidding them to speak or change their seats from one part of the car or saloon to another, when the right of no other passenger was affected, was a regulation lawful in itself, or which might safely be enforced. This latter class of regulations are no iRex V. Ashwell, 12 East, 22, per *Bass v. Chicago, etc., R.R. Co., 36 Ellenborough, C. J. Wis, 450. 2 Ibid. ' 111., etc., R.R. Co. v. Whittemore, 3 Chicago, etc., R.R. Co. v. Williams, 43 111. 420 j Pullman Palace Car Co. v. 55 111. 185. See Holden V. Hoyt, 134 Reed, 75 lb. 125. See Jennings v. Great Mass. 181. Northern R.R. Co., L. R. i, Q. B. 7. 246 BY-LAWS. § ^^ more in violation of the charter of the company, or of any particular statute, than the former. But they would be held unlawful, because they are unreasonable, and an unneces- sary infringement of the rights and liberty of travelers. The distinction between such regulations as are necessary to the comfort and convenience of travelers, or to protect the rights of the company, must, from its very nature, be a question of fact rather than of law." ^ A railroad company may discriminate in charges in favor of those who buy their tickets before entering the cars, subject to an obligation on the part of the company to afford passengers an oppor- tunity to purchase tickets.* A regulation that passengers not producing or delivering up their tickets on leaving the company's premises, should pay fare from the place where the train originally started was held reasonable.^ But an additional provision that any such passenger should also forfeit a given sum, not exceeding a specified amount, was held only applicable to a passenger who had a ticket and refused to give it up, and not to one who had not procured a ticket, and had no intent to defraud the company.* A rule that tickets shall be capable of being used only on the day they are issued, is proper.® A regulation of a canal company that no boat would be allowed to pass a lock on Sunday without a written permit from the superintendent or his assistant, which would only be granted in case of actual necessity, was held unreasonable and void, as it made the superintendent or his assistant the judge of the exist- ' State V. Overton, 4 Zab. 435, per * Dearden v. Townsend, L. R. i, Q. Green, Ch. J. In Vedder v. Fellows, B. 10. 20 N. Y. 126, the reasonableness of a 'Boice v. Hudson River R.R. Co., regulation that passengers on a rail- 61 Barb. 611; Elmore v. Sands, 54 N. road should surrender their tickets, w^as Y. 512; McClure v. Phila., etc., R.R. held to be a question of law. Co., 34 Md. 542. But see Pier v. Finch, 'Indianapolis, etc., R.R. Co. v. 24 Barb. 514; S. C. 29 Id. 170; Beebe Rinard, 46 Ind. 293 ; Jeffersonville v. Ayres, 28 Id. 275 ; Northern R.R. R.R. Co. V. Rogers, 28 lb. I. Co. v. Page, 22 Id. 130. 'Chilton V. London R.R., 16 M. & W. 212. ^ yj BY-LAWS. 247 ence of the necessity, whereas that was a question to be determined by the person in charge of the boat, subject only to his liability under the law.^ Although a regulation of a telegraph company, the design of which is to protect the company from responsibility on account of the gross negligence or fraud of its agents or employes in the trans- mission or delivery of a message which the company under- takes, for a valuable consideration, to send, is unreasonable, against public policy, and void.^ Yet, there is no good ground why the liability of a telegraph company may not be limited by reasonable stipulations expressed in its con- tracts with the senders of messages. A regulation that the liability of a telegraph company for any mistake or delay in the transmission or delivery of a message, or for not de- livering the same, shall not extend beyond the sum received for sending it, unless the sender orders the message to be repeated by sending it back to the office which just received it, and pays half the regular rate additional, seems to be -a justifiable precaution on the part of the company, binding upon all who assent to it.^ But the contrary has been held in Illinois.* 1 McArthur v. Green Bay, etc., Canal cordingly, and his liability in damages Co., 34 Wis. 139 ; Am. Corp. Cas. 625. is measured by the value of the goods. ^ Tyler v. Western Union Tel. Co., A telegraph company is intrusted with 60 II]. 421 ; Redpath V. Western Union nothing but an order or message, which Tel. Co., 112 Mass. 71. is not to be carried in the form in which = Grinnell v. Western Union Tel. it is received, but is to be transmitted Co., 113 Mass. 299; 5 Am. Corp. Cas. or repeated by electricity, and is pe- 447. Gray, Ch. J. : " The liability of culiarly liable to mistake ; which cannot a telegraph company is quite unlike that be the subject of embezzlement ; which of a common carrier. A common car- is of no intrinsic value ; the importance rier has the exclusive possession and of which cannot be estimated except by control of the goods to be carried, with the sender, not ordinarily disclosed by peculiar opportunities for embezzlement him without danger of defeating his or collusion with thieves ; the identity own purposes ; which may be wholly of the goods received with those de- valueless if not forwarded immediately ; livered cannot be mistaken ; their value for the transmission of which there is capable of easy estimate, and may be l-^'"' continuation o/note see nextpage.i ascertained by inquiry of the consignor, * Western Union Tel. Co. v. Tyler, and the carrier's compensation fixed ac- 60 111. 421; 74 lb. 168; Am. Corp. 248 BY-LAWS. §78 § 78. Must not be in restraint of trade. — At common law any man might exercise whatever trade he pleased without limitation or control, and in England a number of statutes were passed at a very early period to protect that right.^ It was anciently laid down that all charters in hindrance of trade were void,* and it was said that a settled usage would [Continuation of note 8 on preceding page.^ must be a single rate of compensation ; and the measure of damages for a failure to transmit or deliver which has no relation to any value which can be put on the message itself." In Mas- sachusetts it is provided (Genl. Sts., ch. 64, sec. 10) that a telegraph company shall receive dispatches from and for other telegraph lines, companies, and associations, and from and for any per- son ; and, on payment of the usual charges for transmitting dispatches, ac- cording to the regulations of the com- pany, shall transmit the same faithfully and impartially. The restricted liability of the company, as mentioned in the text, is maintained in the following cases : Ellis v. Am. Tel. Co., 13 Allen, 226 ; Redpath v. Western Union Tel. Co., 112 Mass. 71 ; Mc Andrew v. Elec- tric Tel. Co., 17 C. B. 3 ; 33 Eng. L. & Eq. R. 180 ; Breese v. U. S. Tel. Co., 45 Barb. 274; 48 N. Y. 132 ; Wann v. West. Union Tel. Co., 37 Mo. 472 ; Camp V. Western Union Tel. Co., I Mete. 164 ; Western Union Tel. Co. v. Buchanan, 35 Ind. 429 ; 4 Am. Corp. Cas. 372. [Continuation of note * on preceding page ?^ Cas., vol. 5, 317. Breese, J. : " On the question " (in the court below) " whether a regulation requiring mes- sages to be repeated, printed on the blank of the company on which a message is written, is a contract, we held It was not a contract binding in law, for the reason the law imposed upon the companies duties to be per- formed to the public, and for the per- formance of which they were entitled to a compensation fixed by themselves, and which the sender had no choice but to pay, no matter how exorbitant it might be. Among these duties we held was that of transmitting messages correctly ; that the tariff paid was the consideration for the performance of this duty in each particular case, and when the charges were paid, the duty of the company began, and there was therefore no consideration for the sup- posed contract requiring the sender to repeat the message at an allditional cost to him of fifty per cent, of the original charge." Referring to Bartlett V. Western Union Tel. Co., 62 Me^ 209; Candee v. Western Union Tel. Co., 34 Wis. 471; In Sweatland v. 111. & Miss. Tel. Co., 27 lovva, 433 ; 3 Am. Corp. Cas. 306, it was held that while the company might Hmit its liability by conditions or stipulations, it was not- withstanding responsible for the want of ordinary care on the part of its operators ; but that where the condi- tion as to repeating existed, and was known to the sender, or where he was bound to take notice of it, and a mis- take occurred in an unrepeated mes- sage, the mere proof of such mistake, without some other evidence of care- lessness or negligence on the part of the company would not make it liable. See True v. International Tel. Co., 60 Me. 9. ' 2 Kyd on Corp. 125 et seq. » Rex v. Hanger, i Rol. R. 14S. § 78 BY-LAWS. 249 be a ground for presumption against very strong words of a charter if the charter was in restraint of trade.^ By-laws against trade are opposed to the common law which favors trade, and are not allowed except by particular custom. No one is required to depend for the fair and innocent ex- ercise of his business on the will of a corporation by its licensing his trade at its pleasure, prohibiting it altogether, or crippling it by heavy charges and penalties.^ Although by-laws in general restraint of trade are void, yet trade may be regulated and restrained to a certain ex- tent in a particular place if such restraint be for the good of the inhabitants ; as when, for the prevention of nui- sances, certain trades are confined to the suburbs of a city, or where the by-law is for the benefit of the trade and im- provement of the commodity.^ In England by-laws founded on custom have been supported as good, which, without such custom, would have been void ; and on this principle depends the distinction with respect to the force ' Berwick v. Johnson, Lofft. 334. place, and there is a good considera- '' Dunham v. Rochester, 5 Cowen, tion given to the person restrained, a 462. contract or agreement upon such con- ' Mobile V. Youille, 3 Ala. 141, and sideration so restraining a particular cases cited ; Cunningham v. Ala. Life person may be good. So likewise, if Ins. & Trust Co., 4 lb. 562. " Of by- the restraint appear to be of manifest laws which affect trade, a distinction benefit to the public, such a restraint runs through all the books between by a by-law or otherwise may be good, those which impose a restraint on it For it is to be regarded rather as a and those which introduce a reason- regulation than a restraint, and it is able regulation of it ; those which are advantageous to trade that proper decided to be of the first kind are uni- regulations should be made in it. formly held to be void, and those of the Gunmakers v. Fell, Willes, 384. In latter are good ; but it is not always the foregoing case, a by-law that no easy to agree with the courts in their member of the company should sell decisions as to what shall be consid- the barrel of any hand gun to any per- ered a restraint and what only a rea- son of the trade not a member, in Lon- sonable regulation of trade." 2 Kyd don or within four miles of it, and that on Corp. 131. The general rule is no member should stamp or mark a that all restraints of trade are bad. gun-barrel of any person not a member But to this general rule there are some of the company, under a penalty of ten exceptions. At first, that if the re- shilhngs for each offense, was held bad straint be particular as to time and as being in restraint of trade. 250 BV-LAWS. § 78 < and validity of some by-laws which have been held good in London, but void in other places. A custom that " no stranger shall intermeddle in London or Southvvark with the trade of the company of weavers in London, the com- pany being a corporation by prescription," was held good ; but it was also held that it was not an infringement of this custom that a stranger bought silk, or linen yarn, or wool, took it to the country, wove it, and then returned to Lon- don and sold the cloth.^ But a custom to make by-laws in restraint of trade will not be favored, and must be strictly proved.* A modern writer says: "Almost any by-law, if founded on immemorial custom, may be supported, al- though it be in itself idle or unreasonable. However, it may be doubtful if the spirit of the decision of which the above is the effect would be adhered to at present ; for the tendency of the courts has been of late to declare void all customs which are not in themselves reasonable, without regard to the question whether they might once have been reasonable, although the older authorities held that customs could not be deemed to be void for unreasonableness un- less it could be shown that they never could have been rea- sonable." ^ A by-law against common right will be void. The tailors and cloth-workers of Ipswich having been in- corporated with power to make reasonable by-laws, adopted a by-law that " no person exercising any of these trades within the town of Ipswich should keep any shop or chamber, or exercise the said faculties, or either of them, or take an apprentice or journeyman until he had presented himself to the master and wardens of the said society for ' Corporation of Weavers in London dock, 3 Burr, 1858; Colchester v. V. Brown, i Cro. 803, cited in 2 Kyd Goodwin, Carter, 117, 120. on Corp. 141. See Harris v. Wake- ' Grant on Corp. 82, referring to man, Sawyer, 255; Shaw v. Poynter, Wallis' Case, Cro. Jac. 555; Hix v. 2 A. & E. 324; Broad v. JoUyfe, Cro. Gardiner, 2 Bulst. 195, 196; Rogers Jac. 597. V. Brenton, 10 Q. B. 26 ; Cudden v. 'Winton v. Wilks, Salk. 203, per Estwick, 6 Mod. 124. LiTTLEDALE, J.; Hesketh v. Brad- § 78 BY-LAWS. 251 the time being, or some three of them, and should prove that he had served seven years at the least as an appren- tice, and before he should be admitted by them to be a sufficient workman." It was held that as the statute had not restrained a person who had served as an apprentice for seven years from exercising the trade of a tailor, the by-law could not prohibit him from exercising his trade until he had presented himself before the company, or un- til they allowed him to be a workman, for that these were against the liberty and freedom of the subject, and enabled the old and rich of the same trade to oppress the young tradesmen by delay or the extortion of money.^ A by- law of a town restricting the privilege of taking shell-fish in a navigable river within its limits to its own inhabitants is bad,^ unless the town has the exclusive right of fishing in its waters.^ A by-law of London that no cartman within the city should go with his cart without a license from the wardens of a certain hospital under a penalty for each offense, was held void because it was in restraint of the liberty of the trade of a cartman, and unreasonable be- cause it went to the private benefit of the wardens of the hospital and was in the nature of a monopoly.* A by-law adopted by an association of common carriers providing that any member who should carry freight for less than a certain fixed rate should be liable to a fine, is void as against publip policy.^ The right of alienation is an incident of property, and a by-law prohibiting this right, or imposing any restriction on its exercise, would be in restraint of trade, and against public policy, and void.^ Where a company of oystermen prohibited any member from being engaged in the trade of ' Case of Tailors of Ipswich, 1 1 Co. ' Sayre v. Louisville, etc., Assoc, 53, 54- I Duvall, Ky. 143. ' Hayden v. Noyes, 5 Conn. 391. ' Moore v. Bank of Commerce, 52 ' Rogers v. Jones, I Wend. 237. Mo. 377. < I Rol. Abr. 364, PI. 5. 252 BY-LAWS. § 79 sending oysters to market from any other ground on the Kentish shore than the oyster ground of the company un- der a penalty of ten pounds, and in case of refusal to pay the same, that such member should thenceforth, and until the fine was paid, be excluded from all share of the profits to be thereafter made by the joint trade of the company, the by-law was held void.^ A by-law of a city prohibiting under a penalty any per- son without a license from removing house-dirt and offal from the city, is not in restraint of trade, but reasonable and proper ; ^ and the same is true of a by-law of a city which prohibits fast driving in the streets.^ § 79. Cannot impose a forfeiture. — A corporation, without authority expressly given by the charter, cannot adopt a by-law subjecting to forfeiture the shares of stockholders for the non-payment of instalments due on such shares.* When a corporation is empowered to enforce its by-laws by fine, or in any other prescribed manner, it is by impli- cation precluded from adopting any other punishment for disobedience to them.^ In England a by-law imposing a forfeiture of goods is void, though authorized by letters patent.® And a power granted to a corporation of dyers to search, and if they found cloth dyed with logwood to seize and forfeit it, was adjudged void as contrary to Magna 1 Adley v. Reeves, 2 Maule & Selw. ^ Vandine's Case, 6 Pick. 187. 53. Lord Ellenborough, C. J. : * Com. v. Worcester, 3 Pick. 462 ; " It is true, undoubtedly, that if the City Council v. Dunn, i McCord, 333. law give a power of inflicting a penalty, ■* Matter of Long Island R.R. Co., 19 where it gives the end, it also gives the Wend. 37 ; Cotter v. Doty, 5 Ohio, common means of attaining it by ac- 393 ; Small v. Herkimer Manuf. Co., 2 tion ; but it does not give any extraor- N. Y. 330 ; Eastern Plank Road Co. v. dinary means. On this ground alone Vaughan, 20 Barb. 155; Downing v. the case may be decided ; and it be- Potts, 23 N. J. 66. comes unnecessary to determine how ' Hart v. Mayor, etc., of Albany, 9 far, if the by-law had not contained Wend. 571. these extraordinary means of compel- ' 2 Kyd on Corp. 109 ; Clark v. Tuck- ling payment of the penalty, it might in et, 3 Lev. 281. some respects have been good." § 79 BY-LAWS. 253 Charta.^ So a by-law which is lawful cannot be enforced by an extraordinary penalty, such as imprisonment or for- feiture of goods, or by distress and sale of goods ; for no man can be imprisoned or dispossessed of his goods and chattels, except by the verdict of his peers, or the law of the land. If such penalties were allowed, corporations would be enabled to set up private particular laws in con- tradiction to the law of the land, which is against the nature and essence of a by-law. An act of the legislature does not by implication invest the corporation with any extraordinary, authority ; and if such authority is intended to be given, it must be by express words to that effect. In Kirk V. Nowill,*' which was an action of trespass for seiz- ing a quantity of forks under a by-law, the defendant justi- fied under an act of Parliament incorporating the inhabitants of the liberty of H. into a company of cutlers. The act authorized the adoption of such by-laws as appertained to good regulation and workmanship in the manufacturing of cutlery wares, with power to impose reasonable pains, pen- alties, and punishments by fine or amercement in case of violation, to be levied to the use of the corporation for the benefit of the poor. The company ordained that the searchers (officers recognized in the act) should search for unworkmanlike wares and seize, carry away, and destroy them. The property was seized by virtue of this by-law. Lord Mansfield observed that a corporation, in the defini- tion of it, was a creature of the crown created by letters patent ; that such a corporation with the power of making by-laws, could not make a law imposing a forfeiture ; that those corporations which were created by act of Parliament had no more power than those which were created by charters, unless additional power was expressly given ; and that as no such extraordinary power as the making of by- laws to impose a forfeiture appeared to have been conferred. ' Waltham v. Austin, i Bulstr. n, 12. * i Term Rep. 118. 254 BY-LAWS. § 80 it was impossible for the court to say that the by-law in that case could be supported by the act. Duller, j., said that taking it generally as a by-law creating a forfeiture, the act of Parliament not having given the corporation power to make such a by-law, it was bad on that ground ; and that in all of the cases in which power to declare a forfeiture of stock had been incidentally noticed by the courts, as expressly given by the charter, it had been regarded as a new and cu- mulative remedy to the one existing at common law.^ An act incorporating a religious society gave the society power to provide for the sale or forfeiture of the shares or rights of pewholders for the non-payment of assessments. The only article in the constitution of the society bearing upon the subject provided that the proprietors might, at a meet- ing called for that purpose, by a two-thirds vote tax them- selves to raise money to repair their meeting-house when necessary. It was held that the society had no right to enforce payment of assessments by a sale or forfeiture of the pews of delinquent members.* In Massachusetts a by- law of a religious society that the owner of a pew should forfeit it to the society if he left the church without first offering to sell the pew to them, was held not in violation of the rule against perpetuities ; the doctrine in that State that conditions against alienation in a conveyance in fee simple are void, not being applicable to conveyances of pews.^ § 80, Creating lien on shares. — There is no lien at com- mon law against stock for indebtedness of the stockholders to the corporation. A different rule would be contrary to the doctrine of that law against secret liens. When such a lien exists, it is either expressly provided for in the act of ' See opinion of Nelson, Ch. J., in ' Perrin v. Granger, 30 Vt. 595. Matter of Long Island R.R. Co., su- ' French v. Old South Soc, 106 Pra. Mass. 479. , § 8o BY-LAWS. 255 incorporation, or through by-laws adopted pursuant thereto.^ " The quality of transferability being attached to the shares, the corporate body has not authority to interfere with the disposition of them which any shareholder may see fit to make, except so far as such authority is conferred by the act itself, or by some general law applicable to the case." * The rule has long prevailed that a corporation has no im- plied lien on. the shares of a stockholder for debts due from him, and cannot hold them against a purchaser or attaching creditor ; but that the company deals with its stockholders in the same manner it does with its general customers, tak- ing the same security, and not relying upon its stock.^ A different rule has been adopted in relation to dividends de- clared. They are regarded as so much money in the pos- session of the corporation belonging to the stockholder, which are to be considered as pledged to the payment of any just debt then due from him.* Although, under the ' Heart v. State Bank, 2 Dev. Eq. Ill; Dana v. Brown, i J. J. Marsh, 306 ; Utica Bank v. Smalley, 2 Cowen, 770 ; Farmers' Bank of Md. v. Iglehart, 6 Gill, 50 ; Mass. Iron Co. v. Hooper, 7 Cush. 183 ; Steamship Doek Co. v. Heron, 52 Pa. St. 280. It was said by the court in the last-named case that it had not only been doubted but gener- ally denied that a mere by-law would be sufficient to create a lien on stock for a general balance due the company in the cases of trading, manufacturing, or other corporations not engaged in loaning money, and that it certainly would not be, unless notice of the by- law were brought home to a purchaser of stock before the purchase. ' Bank of Attica v. Manf. & Traders' Bank, 20 N. Y. 501. * Sargent v. Franklin Ins. Co., 8 Pick. 90 ; Bank v. Lanier, 1 1 Wall. 369 ; Bullard v. Nat. Eagle Bank, 18 Id. 589 ; Pendergast v. Bank of Stock- ton, 2 Sawyer, 108 ; Evansville Nat. Bank v. Metrop. Nat. Bank, 2 Biss. 527 ; Matter of Long Island R.R. Co., 19 Wend. 37 ; McCready v. Ramsey, 6 Duer, 574 ; Anglo-California Bank v. Grangers' Bank, 63 Cal. 359 ; Steam- ship Dock Co. V. Heron, 52 Pa. St. 280 ; Merchants' Bank v. Shouse, 102 Id. 488 ; Planters', etc., Co. v. Selma Savings Bank, 102 Pa. St. 488 ; New Orleans Nat. Banking Assoc, v. Wiltz, 10 Fed. Rep. 330; 4 Woods, 43 ; Byron V. Carter, 22 La. Ann. 98. See Young V. Vough, 23 N. J. Eq. 325 ; Farmers', etc.. Bank v. Wasson, 48 Iowa, 336 ; Lockwood V. Mechanics' Nat. Bank, 9 R. I. 308; Spurlock V. Pacific R.R. Co., 61 Mo. 319 ; Carroll v. MuUanphy Savings Bank, 8 Mo. App. 249 ; Bank of Holly Springs v. Pierson, 58 Miss. 421 ; Geyer v. Western Ins. Co., 3 Pittsb. 41. * Rogers v. Huntingdon Bank, 12 Serg. & Rawle, Tj ; Hagar v. Union Nat. Bank, 63 Me. 509. 2S6 BY-LAWS. § 80 general banking law of New York, when the articles of association provided for a lien upon stock until the share- holder's debt to the bank was paid, such a lien was valid and bound the stock, yet a lien could not be created by a by-law in the absence of a provision on the subject in the articles of association.^ The New York Court of Appeals held that the by-law of a bank was void which declared that no transfer of shares of stock could be made unless the person making the same should previously discharge all debts and demands due or contracted by him or her to the bank, unless by consent of the board of directors ; on the ground that the general banking law under which the bank was incorporated provided that the shares should be trans- ferable on the books in such manner as might be agreed upon in the articles of association, and this excluded the right of the directors, who are usually but a small portion of the parties interested and mere agents, to interfere with the transfer by a by-law. The bank in that case was incor- porated under the act of 1838,* the language of which was : " The shares of said association shall be deemed personal property, and shall be transferable on the books of the association in such manner as may be agreed on in the articles of association."^ Subsequently it was decided in ' Leg-gett V. Bank of Sing Sing, 24 afford any countenance to the position N. Y. 283 ; Arnold v. Suffolk Bank, 27 that it could be contafned in any other Barb. 424 ; Rosenback v. Salt Springs form. If we concede that the power Nat. Bank, 53 Id. 495 ; Conklin v. to determine the manner in which a Second Nat. Bank, 45 N. Y. 655 ; S. C. transfer on the books may be made in- 53 Barb. 512. eludes a power to forbid it in a case ^ Sts. of N. Y. of 1838, p. 249, sec. in which the shareholder is indebted to 19. the association, the act prescribes very ^ Bank of Attica v. Manf. & Traders' distinctly that it is to be contained in Bank, supra — Allen, J., dissenting, the articles. The manner of the trans- Denio, J., in delivering the opinion of fer, including, according to the assump- the court, Said : " Assuming, without tion, any quaUfications or restraint at present deciding, that this provision which it may be thought expedient to would allow a restraint to be inserted attach to the right to transfer, is to be in the articles of the character of that such as may be agreed upon, not by a contained in this by-law, it does not by-law or by any act of the directors, § 8o BY-LAWS. 257 the same State and by the same court, that power given to a corporation by a statute to make by-laws not inconsistent with any existing law for the management of its property, the regulation of its affairs, and for the transfer of its stock, did not authorize a by-law that no stock should be transferred on the books of the corporation when the person in whose name the stock stood, was indebted to the company without the consent of the president or treas- urer, or by a vote of the board of trustees. Folger, J., in delivering the opinion, said : " Every by-law made in pur- suance of a general or incidental authority must be a rea- sonable one. It is not a reasonable by-law which, without authority, express or clearly to be implied, interferes with the common rights of property and the dealings of third persons, and prevents the purchase and transfer or delivery 'of property. It is not insubordination to the constitution and general law of the land, and the rights dependent thereon, for the reason just given. Moreover, if the law is potential, it gives a summary remedy to the defendant unknown to the law, subjecting the stock to what is equiv- alent to an attachment or an execution without judgment or suit. Hence, if the defendant is to maintain this by- law, it must point out the authority, either in its articles of association, and show that they are authorized by law, or but in the articles of association. It must be bound, and a like restraint was not necessary to insert negative imposed by the agents of the associa- words to exclude any other manner of tion in the form of a by-law, which performing the same thing ; for, by the may or may not come to the knowl- common rules of construction, where a edge of the shareholders, and which, if matter is authorized to be done in a known, may be disapproved of by particular way, every other different them, is marked. A person may gen- method of doing it is excluded. And erally agree by express contract to any the difference between a restraint upon qualification of his rights of property alienating the shares in these associa- not repugnant to the rules of law ; but tions contained in the articles which if another person undertakes to attach must receive the assent of all the pri- such qualifications in his behalf, he mary shareholders, and by which all must show his authority for the persons holding derivative interests ant," VOL. I.— 17 258 BY-LAWS. § 80 in some statute We think that it is entirely safe to say that the terms of this provision do not give express power to the defendant to enact such a by-law as that relied on. Certainly, the power is not specified therein, nor do we think that the existence of the power can be implied therefrom. It would be an implication in opposition to the policy of the common law, which, as before observed, is against the existence of secret liens. It is also one in opposition to the policy of the law in its particular dealings with this kind of property. Shares of stock are in general personal property, to be dealt with as such, and with as. much freedom and ease. The right to them is a chose in action, and though not transferable so as to give the same safety in dealing as is given to a bona fide taker of negotia- ble paper, the current authority in this State is to the pro- tection of the bona fide vendee against secret or equitable' claims thereto of one who has indued the vendor with the indicia of ownership. It is evident that such a by-law as this in question, not made known upon the certificate of stock issued by the corporation, if it is to be upheld, is a very serious hindrance to the ease and safety with which sellers and buyers of shares of stock may deal therewith. It is not a by-law regulating the exercise of a right, merely pointing out or prescribing the manner in which a right may be exerted, so that protection may be mutually secured to the corporation and to incoming stockholders ; but it is an abridgment, nay, it may be a destruction, of a right.. Now, we do not assert that it is not possible to legally abridge this right. There may be power given by statute so to do. There may be, in some cases, an agreement of the original stockholders among themselves, by their arti- cles of association, that such power shall exist Of a certainty, it is not to be implied from statutory phrases which may have ample satisfaction in a by-law which shall regulate, without abridging, the exercise of the right. The § 8o BY-LAWS. 259 Statutory provision looks to the effectuating a transfer when the holder of stock has found a purchaser therefor ; but it enables the prescribing of such rules as to the mode, as shall guard the corporation and its actual stockholders, and those intending to become such, against imposition, while they set up no real hindrance to the transfer ; such rules as may easily be complied with by persons who have com- pleted their private bargain. This by-law sets up an ob- stacle to the transfer unless something is done for the pe- cuniary benefit of a third party not immediately concerned in the sale and purchase of the shares, which was not con- templated by the parties to the sale, and which one of them is not, upon any abstract rules of justice, bound to do. We do not think that a power so to hinder the act of formal transfer is so plain and necessary an inference from a power to effectuate that act in a prudential manner, as that one can be implied from the other."^ A view contrary to the foregoing decision seems to have been taken in sev- eral cases. Under a charter empowering the corporation to make by-laws for its better government, and for the management and direction of its trade to Hudson's Bay, a by-law was adopted, providing that if a member should be indebted to the corporation, his stock in it should, in the first place, be liable for such indebtedness, and that the cor- poration might seize and detain his stock therefor. It was objected to the by-law, that the corporate stock ought not to be liable to the payment of any one debt in preference to another, and that a. by-law could not be made to the preju- dice of a third person ; that it was as if copartners, on en- tering into partnership, should covenant that the stock of each partner should be first liable for the debts he owed the other partner, before the debts he owed to any other per- son. The Lord Chancellor said : " This is a good by-law ; for the legal interest of all the stock is in the company, ' DriscoU V. West Bradley, etc, Manf. Co., 59 N. Y. 96. 26o BV-LAWS. § 80 who are trustees for the several members, and may order that the dividends to be made shall be under particular re- strictions or terms ; and, by the same reason that this by- law is objected to, the common by-laws to deduct the calls out of the stock of members refusing to pay their calls, may be said to be void. As to the other part of the by-law, empowering the company to detain and seize the stock of such member, that is also good ; but then there ought to be some act done by the company to order or declare that the stock of such member is seized for the debt due to the said company."^ An act incorporating an insurance and banking company, declared that the stockholders in said institution " may make, ordain, and establish such by-laws and regulations as they may deem expedient and nec- essary to carry into effect the objects of the institution ; provided such by-laws, rules, ordinances, and regulations be not repugnant to the laws or constitution of this State, or the United States." A by-law was adopted that no stock- holder who might be indebted to the corporation as payer or indorser on any note or notes lying over and dishonored, should be permitted to transfer his stock ; that the com- pany should, in that case, be considered a creditor in pos- session, and such possession and such dishonored note or notes should constitute a lien on the stock, which should be subject to the payment of such note or notes. It was held that the by-law was valid, and that a purchaser under execution, with notice of the by-law, of the shares of the stockholder indebted to the company,, was not entitled to a transfer of the stock so purchased without first discharg- ing the lien.' Under a charter which provided that the 'Child V. Hudson's Bay Co., 2 P. ton Bank, 6 Pick. 324 ; Plymouth Bank Wms. 207. Banks have sometimes v. Bank of Norfolk, 10 Id. 454 ; Mass. provided by a special by-law that all Iron Co. v. Hooper, 7 Cush. 183. See shares of stock shall be deemed hy- Heart v. State Bank, 2 Dev. & Batt. pothecated to the bank for any debt, Eq. in; Rogers v. Huntingdon Bank, the bank to hold the shares without any 12 Serg. & Rawle, 77. specific pledge. Nesmith v. Washing- ' Tuttle v. Walton, 1 Ga. 43. In § 8o BY-LAWS. 261 Stock should be assignable on the books of the corporation under such regulations as the board of trustees should es- tablish, a by-law was held good which declared that no stockholder should be permitted to transfer his stock this case Lumpkin, J., in delivering the opinion of the court, said : " It seems to be admitted on all sides that, as between the corporators themselves, a by-law would be good which asserts a hen on the stock of the members for the debts of the company. A provision to this effect is frequently contained in the statutes conferring charters, and is a standing by-law in almost all corpo- rations. Tuttle, the plaintiff in error, purchased at sheriff's sale, with full and explicit knowledge of the exist- ence of this lien. Does it lie in his mouth to contest its validity, or to claim exemption from its operation? I think not. As the judgment creditor and plaintiff in execution, had he dis- continued the sale when the notice was given by the bank and gone into equity, as it was clearly competent for him to have done, my impression is that he would have been entitled to a decree for a sale unincumbered by the lien, unless notice could have been brought home to him of the by-law at the time he contracted with Glendenning; or, had he gr any one else bought the stock publicly or privately without such notice, theirs, I think, would have been the better equity." NlS- BET, J., dissenting, said: "To make this by-law and the lien created by it good, notice of the law to the world, and, in this case, notice to Tuttle at the time he gave credit to Glendenning, was indispensable. Without such no- tice, it is a fraud upon creditors) and void. But this by-law in its terms cre- ates the lien of a creditor in possession to secure a contingent indebtedness — by which is meant, I suppose, a general balance which at any time may be found due by the stockholder to the company. Creditors in possession at common law have a hen under certain circumstances. The facts of this case do not give the company the position of creditors in possession. The lien of creditors in possession arises in cases where property is placed in possession of an individual or company, upon which labor or expense is to be be- stowed by agreement made between the parties or implied in law. The de- pository has a lien upon it for his lator and expense. Also, in other cases, when a contract is made or implied that the property is to be retained to secure a present or continuously recur- ring indebtedness. Now, in this case, at the time of making the by-law, there is no labor to be bestowed on or ex- pense to be incurred about the stock. The lien is not claimed on account of either. Nor is there any present in- debtedness or running account between the parties. It is admitted that at the time the by-law was made, and at the time Glendenning became a stock- holder, he owed the company noth- ing, nor did he become its debtor un- til about eighteen months afterward ; so that the declaration in the by-law that the company shall be a creditor in possession does not in fact make them so. They cannot be by their own act remitted to the rights of a creditor in possession; on the contrary, the facts in the case show the by-law to be re- pugnant to those principles of the com- mon law which recognize the lien of creditors in possession, and is on that account void. Nor can this be looked upon as a pledge of stock which creates a lien upon it. Pledges may 262 BY-LAWS. § 8o while' he was indebted to the company. Collier, C. J., said : " The by-law in question is in conformity to the charter and dictated by expediency. It is calculated to enable the stockholders to obtain accommodations from the trustees upon security less satisfactory than the trus- tees would advance upon if the stock of members was not pledged for their individual indebtedness. And so, much as it restricts the transfer of the stock, probably to an equal or greater extent does it facilitate the obtaining of money by the stockholders, and thus adds to the capital actively employed ; so that the inconvenience which results from such a by-law, so far as the public is concerned, is entirely neutralized by the private as well as public benefit which pro- ceeds from it." ^ The charter of an insurance company de- clared that the shares should be assignable and transferable on the books of the company or otherwise, according to such rules and by-laws and subject to such restrictions and limita- tions as the stockholders at a regular meeting might from time to time adopt. It was held that the company had power to pass a by-law prohibiting a stockholder, in any way in- debted to the company or liable for the indebtedness of an- other, from assigning and transferring his stock, except by create a lien to secure precedent or Trust Co., 4 Ala. 652. In McDowell contemporary debts, or existing debts v. Bank of Wilmington, i Harr. Del. and future advances. But I believe no 27, on the question whether the by-law case can be found of a lien created by of a bank giving the bank a lian on pledge without an existing debt to se- stock for the debts of the holder was cure payment of a future debt which valid, the court said : "It does not affect may or may not exist. The same doc- other than members of the corpora- trine holds as to mortgages, only with tion, whose privilege and duty it is, be- greater strictness. There can be no fore they become such, to acquaint mortgage without a present indebted- themselves with the rules of the insti- ness, or liability on the part of the tution, so far as they would affect their mortgagee for the mortgagor. And, interests. In reference to the institu- although a mortgage may be good for tion, it is a very salutary rule, greatly debts to be contracted as well as for to the security and advantage of the debts due, yet notice of such intent be- stockholders and the public, by facili- tween the parties has been held neces- fating loans. It is, therefore, in our sary." opinion, a valid by-law." ' Cunningham v. Ala. Life Ins. & § 8o BY-LAWS. 263 the special permission of the directors ; that the company would have had such power in the absence of any provision in the charter on the subject ; that the company had a lien on the stock for the indebtedness of a firm of which the stockholder wa^ a member, and that such lien was not lost because the company's right of action for the partnership indebtedness was barred by the statute of limitations.^ The language of the charter may of course be such as to leave no doubt of the power of the corporation to create a lien on its shares. Where the act of incorporation provided that the company might make by-laws for the management of its property, the regulation of its affairs, and the transfer of its stock, and that the stock should be transferable in such manner as should be prescribed by the by-laws, it was held that the corporation was authorized to adopt a by-law that a stockholder on the corporate books should not be entitled to have his stock transferred, until he had paid all of his indebtedness to the corporation.'' ' Geyer v. Western Ins. Co., 3 Pittsb. v. Suffolk Bank, 27 Barb. 424. Where 41. the charter declared that the stock ^ Pendergast v. Bank of Stockton, 2 should be assignable according to such Sawyer, 108. See Nat. Bank v. Wat- rules, and subject to such regulations sontown Bank, 105 U. S. 217; Kahn as the directors should establish, and a V. Bank of St. Joseph, 70 Mo. 262 ; by-law provided that no transfer would First Nat. Bank v. Hartford, etc., Ins. be valid unless made on the books, it Co., 45 Conn. 22 ; Bishop v. Globe Co., was held that the purchaser, before re- 135 Mass. 132 ; Pittsburgh, etc., R.R. cording, took only an equitable title, Co. V. Clarke, 29 Pa. St. 146. A nura- subject to any prior equity of the com- ber of the authorities hold that where pany. Stebbins v. Phoenix Ins. Co., 3 power is given to a corporation to regu- Paige, 361. See comments of Allen, late the transfer of stock, it may adopt J., on this case in Bank of Attica v. a by-law providing that the transfer Manf. & Traders' Bank, 20 N. Y. 512. shall be made on the books, and that By the charter of a bank, the stock was in that case the title of a purchaser, made transferable in such manner as before entry pn the books, although the by-laws should direct. The by- good as between him and the vendor, laws provided, and the certificate ex- is not a legal, but merely an equitable pressed, that it was transferable on the title, and, being only an equity, will be books on surrender, etc. The court, subject to the prior equity of the corpo- after a full examination of the nature of ration. See Union Bank of George- bank stock and certificates, and corn- town v. Laird, 2 Wheat. 390 ; Arnold paring the latter with bills of lading. 264 BY-LAWS. § 81 The word " indebted," when employed in a by-law or charter, restraining a stockholder from transferring his stock while indebted to the corporation, applies as well to debts to become due, as to those which are actually due, and as well to those owing by the stockholder as surety or indorser, as to those in which he is the principal debtor.* In common acceptation, a debt is due and payable to a per- son though the time of payment has not elapsed.* § 81. Lien created by usage or agreement. — A course of usage — an understanding — a contract express or implied, may constitute a lien and a law to the parties, provided they are not repugnant to the charter or the laws of the land. A stockholder of a bank who creates a debt to the bank, with notice of a usage that shares will not be transferred while the holder is indebted to the bank, is bound by such usage, as are also his assignees, under a voluntary general assign- ment ; custom giving a lien independently of any by-law. In Wain v. Bank of North America,^ it appeared that Wain was a stockholder and had been a director of the bank ; that he was legally indebted to the corporation, and exchequer bills, etc., said that the cor- on the books conformably to the char- poration had the right so to frame the ter and by-laws. The court, while it certificate, that it should not be negoti- held the assignment good between the able in the commercial sense so as to vendor and vendee, and that it con- give the purchaser a title superior to veyed all the vendor's right to the the vendor; but that this would not vendee, held that the words of the prevent the owner from selling outside, charter justified the by-law, and that so that the vendee could acquire in what was sufficient to put the pur- equity the equity of the vendor. Mech. chaser upon inquiry was notice to him. Bank v. New Haven R.R. Co., 13 N. ' St. Louis Perpetual Ins. Co. v. N. 622, 624, 626. In St. Louis Per- Goodfellow, ja/riar. petual Ins. Co. v. Goodfellow, 9 Mo. ' " We speak of debts due and pay- 149, Goodfellow was assignee for value, able to us, without thinking of the time By the charter, the stock was trans- of credit. We secure a debt due by ferable according to such rules and mortgage, though it have years to run." restrictions as the directors should es- Wright, J., in Downer v. Zanesville tablish. They made a by-law prohibit- Bank, Wright, Ohio Rep. 477. ing any transfer by a person indebted ' 8 Serg. & Rawle, 73, referred to by to the company; and the certificate Baldwin, J., in Brent v. Bank of Wash- stated that the stock was transferable ington, 10 Pet. 596. § 8l BY-LAWS, 265 made a general assignment, including his bank stock, for the benefit of his creditors, although he knew at the time his indebtedness was incurred that there was a usage of the bank not to permit a transfer of stock while the holder owed the bank. The court said : " The stock passed into the hands of his assignees, subject to all the rights and all the qquities of the bank ; and this without taking into con- sideration the evidence of at least the knowledge of one of the plaintiffs of the restriction on transfers where the stock- holder was debtor to the bank. It is reduced to the narrow question, was this regulation of the bank — this usage to retain — this course of dealing between the bank and her customers, unquestionably known as it was to Mr. Wain, binding on him ? " The certificate of stock of a bank re- cited that the stock was transferable at the bank, subject, nevertheless, to the holder's indebtedness and liability to the bank, according to the charter and by-laws. There was, however, nothing, either in the charter or by-laws, in rela- tion to the liability of stockholders. But the charter author- ized the stockholders to establish by-laws and regulations for the well-ordering of the concerns of the bank, and to make the stock transferable according to its rules. It was held that although no by-law had been adopted on the sub- ject, yet, as the condition was in the certificate of stock, it must be considered that the stock was issued and received upon such condition, constituting one of the terms of the contract upon which the stock was acquired, and that it was a valid restriction on that ground. It appeared that the same form of certificate had been used by the bank about fifteen years.* The articles of association of a national bank provided that the board of directors should have power to make all by-laws which it might be proper and convenient for them to make under the act for the general regulation of the business of the association and the management and ' Van Sands v. Middlesex Co. Bank, 26 Conn. 144. 266 BY-LAWS. § 8l administration of its affairs, which by-laws might prohibit, if the directors should so determine, the transfer, without the consent of the board, of stock owned by any stockholder who was liable to the association, either as principal debtor or otherwise. The directors adopted the follow- ing by-law : "No transfer of the stock of this bank shall be made without the consent of the board of directors, by any stockholder who shall be liable to the bank, either as principal debtor or otherwise, and certificates of stock shall contain upon them notice of this pro- vision." It appeared that prior to the bankruptcy of D., who was one of the original corporators, he was the owner of a certain number of shares of the capital stock of the bank for which he held certificates in the usual form, with the following notice printed on their face : "And provided that no transfer of the stock herein certified shall be made, without the consent of the board of directors, while the owners shall be liable to the bank, either as principal debtor or otherwise "; that at and previous to the filing of D.'s petition in bankruptcy the bank was the holder and owner of a bill of exchange remaining unpaid, of which D. was the last indorser, and which, before the filing of his petition, had been dishonored and duly protested, and no- tice given to D. ; and that D. afterward indorsed and de- livered to his assignee in bankruptcy the certificates of stock, and that the latter demanded of the proper officer of the bank to have the stock assigned in the regular way on the books, who refused. It was held that the by-law, with the provision on the same subject in the articles of association, must be considered as a contract between all the stock- holders and the corporation, and created a lien on D.'s stock for the debt due by him to the bank.^ ' In re Dunkerson, 4 Biss. 227. See politan Nat. Bank, 2 Biss. 527 ; Conk- In re Bigelow, I Bankrupt Register, lin v. Second Nat. Bank, 45 N. Y. 202 ; Evansville Nat. Bank v. Metro- 655, § 82 BY-LAWS. 267 § 82. Lien under the National Currency Act. — Unless the act of Congress providing for the creation of national bank- ing associations, or the articles of association, expressly au- thorize the directors by a by-law to make the stock of any of its stockholders subject to a lien in favor of the bank as security for a debt due by hini to the bank, no such lien can be created.^ Section 25 of the national currency act of 1863 provided that the banks should have a lien upon the stock of each shareholder for all debts and liabilities from him to the bank unpaid, and that no transfer of the stock of the bank should be valid until all of the debts and liabilities of the shareholder making the transfer were paid, and that this provision should be inserted in substance in the certificates of stock issued by the bank. Section 21 provided that certificates of stock, signed by the president and cashier, might be issued to stockholders, and that the certificates should state on their face that the stock was transferable only on the books of the bank. A lien was thus given to all banks organized under the act upon the shares of each stockholder for all debts and liabilities to the banks. But the act of 1863 was repealed by the 62d section of the currency act of 1864, passed June 3d of that year ■,^ and the foregoing provisions of the act of 1863 giv- ing a lien to a bank upon the stock for any debt or liability of a stockholder were not re-enacted.^ In Bank v. Lanier,* it appeared that a bank had been organized under the act of 1863, and that it had adopted a by-law that the stock of ■ Rosenback v. Salt Springs Nat. ferring stock, was sufficient to justify a Bank, 53 Barb. 495. by-law creating a lien on the stock, and ' 13 U. S. Sts. at Large, 99. providing tiiat the stock should be ^SeeopinionofGROVER,J.,inConklin transferred only at the bank on the V. Second Nat. Bank, supra. In Lock- books, and that until such transfer the wood V. Mech. Nat. Bank, 9 R. L 308, it purchaser would take only an equitable was held that the power given to a na- not a legal title, subject to any claim tional bank under the national currency of the bank by charter, by-law, usage, act of Congress of 1 864, ch. 106, to make or agreement, by-laws to regulate the management ^ 1 1 Wall. 369. of the business and the mode of trans- 268 BY-LAWS. § 82 the bank should be transferable only on its books, subject to the provisions and restrictions of the act of Congress that no shareholder should have power to sell or transfer any share so long as he should be liable to the bank for any debt due and unpaid. The suit was brought against the bank for refusing to permit a transfer of stock, to which it set up the defense that the stockholder was indebted to it, and that under the by-law he had no right to make the transfer. The court said : " Congress evidently intended, by leaving out of the act of 1864 the 36th section of the act of 1863, to relieve the holders of bank shares from the restrictions imposed by that section. The policy on the subject was changed, and the directors of banking associ- ations were in effect notified that thereafter they must deal with their shareholders as they dealt with other people. As the restrictions fell, so did that part of the by-law relating to the subject fall with them." A national bank, in pursu- ance of one of its articles of association, adopted a by-law that all debts actually due and payable to the bank by a stockholder, as principal debtor or otherwise, requesting a transfer, should be made unless the board of directors per- mitted it to be done ; and that no person indebted to the bank should be allowed to sell or transfer his stock without the consent of a majority of the directors, whether liable as principal or surety, and whether the debt or liability was due or not. The judges of the United States Circuit Court differing in opinion, certified to the Supreme Court the question whether a national bank, organized under the act of Congress of 1864, could acquire a valid lien by the arti- cles of association or by-laws upon the shares of its stock- holders. This question was answered in the negative.^ ' Bullard v. Bank, 18 Wall. 589, ap- Louisville v. Bank of Newark, Ky., Ct. proving Bank v. Lanier, supra, Clif- of Ap. 7 ; Chicago Legal News, 70. In FORD, J., dissenting; S. P. Evansville Pennsylvania the old bank charters Nat.Bank v.Metrop. Nat.Bank,j«/;'a,- provided that no stockholder indebted 10 Am. L. Reg., N. S. 774 ; Bank of to a bank for a debt due and unpaid § 83 BY-LAWS. 269 § 83. Restraining transfer of stock.— A by-law requiring any extraordinary formality, or imposing an impediment in the transfer of shares, would be void.* It " may regulate, in a reasonable manner, the exercise of a right, or the internal affairs of a corporation, or the conduct of its members, or the mode by which a person is to be admitted to the exer- cise of a right to which he has an inchoate title ; but it cannot take away a right, or impose any unreasonable re- straint on the exercise of it." * A by-law which limits the transfer of the stock to be made only personally, or by at- torney, and with the assent of the president, is in restraint of trade, and contrary to the general law, which permits the right to personal property and incorporeal heredita- ments, to be transferred in various other modes.^ The power to dispose of stock, like the power to dispose of other property, is incident of common right to the ownership of it ; and the words of a charter, " transferable on the books of the company," are treated as merely cumulative, point- ing out one mode of transfer, but not excluding other modes where no exclusive words are used. The legislature may grant corporate power to restrain this transferability, but unless the power is expressly given, it does not exist ; and the courts generally construe clauses affecting the right of disposal, with a view to the particular purpose for which they are inserted, and give them effect to that extent only. This power of regulating transfers of stock confers no cor- porate authority to control its transferability by prescribing to whom the owner may sell, and to whom not, or upon what terms. Such a provision is regarded as being exclu- sively for the benefit of the company in order that it may, should make a transfer, or receive a ' Bank of Ky. v. Schuylkill Bank, dividend, until such debt was dis- Parson's Sel. Cas. i8o. charged. Bank of Ky. v. Schuylkill ' 2 Kyd on Corp. 122. Bank, Parson's Sel. Cas. 180, per King, ' Sargent v. Franklin Ins. Co., 8 P. J.; Grant v. Mechanics' Bank, 15 Pick. 90. See Nesmith v. Washington Serg. & Rawle, 143. • Bank, 6 Pick. 324. 270 BY-LAWS. § 83 by proper regulations, have the means of knowing who it is bound to treat as members liable to assessment, and enti- tled to vote at corporate meetings, and to receive divi- dends.^ Where a by-law provides that no transfer or as- signment of stock shall be valid unless made on the books of the company, the legal title will not pass until such transfer takes place, and a purchaser, without such transfer, takes the stock subject to any equitable claim which may exist against it either in favor of the company or any other person. The case would be different if there were no by- law regulating the transferring of shares, and the charter declared the stock assignable. In such case, a simple as- signment signified to the proper officer of the corporation, although not entered on the company's books, would be sufficient to transfer the legal right, and a bona fide assignee of the stock would hold the same free from any equitable claims thereon of which he had no previous notice.* But, as between vendor and vendee, a transfer of stock will be valid, though the act of incorporation provides that no such transfer shall be valid or effectual until registered in a book kept for that purpose and the debts due the company are first paid ; the transfer conferring upon the purchaser all the right the seller had.^ Such a regulation being simply intended as a means of enforcing payment of debts due the corporation.* Where the act of incorporation prescribes the mode of transferring stock, or authorizes the company to do it in their by-laws, and the company in their by-laws prescribe a mode as the only one to be pursued, that mode must be followed, or the legal title will not pass by an as- signment which would be good at common law had no 1 Chouteau Springs Co. v. Harris, 20 Northrop v. Newtown Turnpike Co., 3 Mo. 382. Id. 544 ; Oxford Turnpike Co. v. Bun- "^ Stebbins v. Phoenix Fire Ins. Co., nel, 6 Id. 552. 3 Paige Ch. 350. " Hodges v. Planters' Bank, 7 Gill & " Bank of Ky. v. Schuylkill Bank, Johns. 306 ; Hall v. U. S. Ins. Co., 5 supra. Contra, Marlborough Manf. Gill, 484. Co. V. Smith, 2 Conn. 544 ; 5 Id. 246 ; § 83 BY-LAWS. 271 particular and exclusive mode of transfer been prescribed.* When, however, the by-laws prescribe a particular form of transfer, it is not essential to the passing of the property, as between the parties, that the form should be strictly fol- lowed, it being an arrangement of the corporation for its own convenience, and so far binding upon purchasers that they cannot compel the payment of dividends, or insist upon certificates, without applying to have a transfer made conformably to the by-laws.* Although the charter does not prescribe a form of transfer of shares on the books of the cornpany, yet a by-law which goes beyond it by sub- jecting the stockholder to the use of a specified form, is not for that reason invalid.^ The obligation to surrender the old certificate is not a limitation on the power of per- mitting transfers. It is a provision introduced for the se- curity of the corporation in order to prevent its being em- barrassed between legal and equitable titles to its stock, and in order to secure to the corporation any liens or claims on its stock before transfer to third persons having no notice of such liens or claims.* A corporation may, by its conduct, deprive itself of the right to withhold the transfer of shares. M., being the owner of stock in a bank, applied to B. for a loan of $700, proposing to pledge his stock as security therefor. B. went to the bank to ascertain whether he might safely loan the money on the stock. The officer in charge of the bank assured him that the stock was free from incu'mbrance, and that he might safely take it as security for the contemplated loan. B., acting on this assurance, loaned M. tlfe above- ' Colt V. Ives, 31 Conn. 25 ; Union Ins. Co. v. Selma Savings Bank, 63 Bank v. Laird, 2 Wheat. 390 ; McEuen Ala. 585. V. West London, etc., Co., L. R. 6, Ch. ' Sargent v. Essex R.R. Corp., 9 6SS ; Sayles v. Blane, 19 L. J. Q. B. 19. Pick. 201 ; Bank of Utica v. Smalley, See Helm v. Swigett, 12 Ind. 194; 2 Cowen, 770. Pennsylvania R.R. Co.'s Appeal, 86 ' Northrop v. Curtis, 5 Conn. 246. Pa. St. 80 ; Bank of Commerce's Ap- * Bank of Ky. v. Schuylkill Bank, peal, 73 Id.. 59; Planters', etc., Mu. supra. 272 BY-LAWS. § 84 mentioned sum, and took his note at four months and a transfer of the stock to a trustee to secure the loan, with power to sell the stock for payment of the debt, and after- ward extended the time on the note four months longer. M. failing to pay his note at maturity, the trustee sold the stock, and B. bought it for $600, and entered a credit for the amount of the note. B. offered to pay all assessments on the stock, and requested the bank to have the stock issued in his name, or transferred on the books of the bank to him ; which the bank refused to do, on the ground that the stock was retained, at the time B. took it, for debts due the bank from M., and had been forfeited therefor under the by-laws. It was held that the bank, after it had induced B. to part with his money, was estopped to forfeit the stock for unpaid dues.^ § 84. How by-laws may be proved. — An officer of the cor- poration cannot be admitted to testify as to what the by- laws are, and the authority conferred by them. That is to be ascertained by the production of the by-laws themselves.* The charter and by-laws of an insurance company, though not set out in the pleadings, may be proved by printed copies attached to a policy of insurance, where it appears that the policy was accepted by the defendant.^ If there is no record, or the record is deficient, the enactment of a by-law may be inferred from facts proved ;* and even with- out a by-law, a regulation, practice, or usage may be good.^ A by-law of a bank informally adopted may be afterward ratified, and, without any record of adoption, may be proved by the usage and acts of the bank, and of parties dealing ' Moore v. Bank of Commerce, 52 ' Atlantic Mu. Fire Ins. Co. v. San- Mo. 377. ders, 36 N. H. 232. 'Lumbard v. Aldrich, 8 N. H. 31. * Renter v. Telegraph Co., 6 Ell. & The books of the corporation in which Bl. 341 ; Union Bank of Md. v. Ridge- the by-laws are registered, are admis- ly, i Harr. & Gill, 413 ; Lockwood v. sible for this purpose. Case of Thet- Mech. Nat. Bank, 9 R. I. 308. • ford, 12 Vin. Abr. 90. 'Wain v. Bank of North Am., 8 Serg. & Rawle, 73. § 85 BY-LAWS. 273 with it.^ An officer of a corporation will be presumed to have knowledge of by-laws adopted previous to his ap- pointment* As a rule, persons dealing with the agents and officers of a corporation are chargeable with notice of the authority conferred upon them ; and when the authority is specifically given in the by-laws, it cannot be inferred by virtue of an office.^ § 85. How far binding. — Where the act of incorporation does not require its clerk to be sworn, and notwithstanding the corporation, for its own security, adopts a by-law pro- viding that he shall take an oath, it is only directory, and not an indispensable qualification.* The by-laws are evi- dence to show the liability of an officer whose duties are prescribed thereby, although he is not a corporator and had no vote in their adoption.^ A by-law of a mutual in- surance company, constituting the surveyor of the com- pany the agent of the insured, is binding on a member, and the company is not liable by reason of error in the survey, or its not complying with the by-laws.^ The office of a by- law is to regulate the conduct and define the duties of the members toward the corporation, and between themselves. So far as its provisions are in the nature of a contract, the parties thereto are the members of the association, or the corporation upon the one side, and its individual members upon the other. The right of any third party, stranger to the association, to establish a legal claim through such a by-law, must depend upon the general principles applicable to express contracts. Where, to become a member of an association, it was necessary to subscribe the by-laws, and ' Lockwood V. Mech. Nat. Bank, ' Adriance v. Roome, 52 Barb. supra. 399- ' Hunter v. Sun Mu. Ins. Co., 26 La. *■ Hastings v. Blue Hill Turnpike Ann. 13; 5 Am. Corp. Gas. 403. A Corp., 9 Pick. 80. member of a municipal corporation is ' Bank of Wilmington v. Wollaston, presumed to have knowledge of its by- 3 Harr. Del. 90. laws. Inhabs. of Palmyra v. Morton, ' Susquehanna Mu. Ins. Co. v. Per- 25 Mo. S93- rine, 7 Watts & Serg. 348. VOL. I.— 18 274 BY-LAWS. § 85 one of the by-laws recited that the members of the associa- tion pledged themselves, in their individual as well as col- lective capacity, to be responsible for all moneys loaned to the association, but it did not appear that a party's signa- ture was attached for any other purpose than to constitute him a member of the corporation, and it was not alleged that the plaintiff lent his money upon the faith or credit of the individual pledge contained in the by-law, nor that the by-law was in any manner made known to him, or the pub- lic, as the basis of such credit, it was held that the member was not personally liable to the lender. If such a pledge were made, however, for the purpose of enabling the corporation to obtain a loan upon the faith of it, and used for that pur- pose, it might give a right of action against the subscribers in favor of a party who had been induced to advance money upon its credit.^ If a corporation neglect to give special notice of a by-law pursuant to a general statute on the sub- ject, it is not binding on a person who has not actual notice of it ; it being different from the. case of a violation of law, of which every one is bound to take notice.^ To render the by-laws of a railroad company binding on travelers, knowledge of the by-laws must be brought home to them by notice.^ Notwithstanding a by-law of a bank that all payments made and received must be examined at the time, a dealer with the bank may subsequently show a mistake.* The directors of a business association cannot be held by members to a strict discharge of all of the duties prescribed for them in the by-laws, when such duties are mainly en- trusted by the association to an agent, and the members know how the business is conducted, and acquiesce.® It ' Flint V. Pierce, 99 Mass. 68, per ' Worcester v. Essex Merrimac Wells, J., referring to Mellen v. Bridge Corp., 7 Gray, 457. Whipple, I Gray, 317; Field v. Craw- ^Gt. Western R.R. Co. v. Goodman, ford, 6 Id. 116; Dow v. Clark, 7 Id. 11 Engl. L. & Eq. 546. 198. See Free Schools in Andover v. ''Mechanics' Bank v. Smith, 19 Flint, 13 Mete. 543. Johns. 115. ' Henry v. Jackson, 37 Vt. 431. § 86 BY-LAWS. 275 will not afifect the validity of a deed of trust made by a corporation, that the meeting of the board of directors at which the president of the corporation was authorized to execute such an instrument, was held without the notice prescribed for such meetings by the by-laws. In a case of this kind, the by-law is a mere guide for the convenience of the board, and for the orderly conduct of its business. It cannot be extended to affect the validity of acts of the directors done in disregard of it when third parties are con- cerned.^ § 86. How construed. — ^The charter and by-laws of a cor- poration, like every other constitution and all other laws, should receive such a construction as to effectuate the in- tention of the framers ; and the intention must be deter- mined by the words used in reference to the subject mat- ter, and the circumstances of each particular corporation.** A clause in a by-law that " all meetings " of the company shall be notified by the clerk, will be construed as referring only to special meetings.' Where, by the act incorporating a manufacturing company, the shares were to be transferred on the books of the company in such manner as the direct- ors should prescribe, and a by-law provided that transfers . of stock should be made by assignment in the treasurer's book, either in person or by attorney, on surrender of the certificate and a new certificate given, it was held that there must be a written assignment on the treasurer's book, subscribed by the assignor or his attorney, to consti- tute a transfer of the stock.* Under an act of incorpora- tion the shares were to be transferable only on the books of the company in such manner as the by-laws should direct. The by-laws provided that the board of directors should prescribe the form of transfer to be registered by the clerk ' Samuel v. Holladay, Woolw. 400 ; ' Ibid. S. C. McCahon, Kans. 214. •• Marlborough Manf. Co. v. Smith, 2 ^ Warner v. Mower, 1 1 Vt. 385. Conn. 579. 276 BY-LAWS. § 86 on the books of the company, and a transfer was not other- wise to be valid. It was held that the assignment was to be copied at full length on the books of the company, and that a mere deed or writing on which the clerk entered " received for record" was not sufficient.^ The meaning of a provision in a by-law that shares shall be transferable by indorsement in writing, and subscribed by the holder in presence of the cashier, or two other witnesses, is not only that the holder of the stock shall indorse the certificate of stock when either the cashier or two other witnesses are present, but that he or they shall subscribe their names thereto in attestation of that fact." The act incorporating certain banks provided that the stock should be assignable and transferable on the books of the corporation only, and in the presence of the president or cashier, in such manner as the by-laws should ordain ;' but that no stockholder in- debted to the bank should make a transfer or receive a dividend until such debt was discharged, or security to the satisfaction of the directors given for the same. It was held that the general understanding, as well as the obvi- ous meaning of this clause, was, that if a transfer was permitted to be made on the books of the bank, the per- son to whom the stock was transferred would hold it discharged from any lien for debts due the bank. The security was put into the hands of the bank. No transfer could be made unless its officers produced the books and permitted the transfer ; if it did permit it, the lien of the bank was gone.^ With respect to what constitutes a fran- ' Northrop v. Newtown, etc., Turn- upon notice, and sometimes all trans- pike Co., 3 Conn. 544. See Oxford fers, unless a certain number of days Turnpike Co. v. Bunnel, 6 Id. 552. inter\'ene before an election, have refer- ^ Dane v. Young, 61 Me. 160 ; 4 Am. ence either to the right of voting, or Corp. Cas. 425. the security of the company by way of ' Sewall V. Lancaster Bank, 17 Serg. lien upon the stock for any indebted- & Rawle, 285. The by-laws of a com- ness of the stockholder, and do not inca- pany vvhich prohibit any transfer ex- pacitate such stockholder from parting cept upon the books of the company, and with his interest. As already stated, § 8/ BY-LAWS. 277 chise, where a by-law of a railroad company provided that no contract should be made involving the franchise of the road, unless the same was approved by a general meeting representing a majority of the stock after being recom- mended by a majority of the stockholders, it was held that although a lease of the road did not involve the essential franchise of the company to be a corporation, yet in author- izing the taking of tolls upon the road, it did involve a franchise within the meaning of the by-law.^ A by-law is not void for uncertainty as to the amount of a penalty which provides that "every person refusing an office shall forfeit and pay the sum of five pounds or less at the dis- cretion of the master and wardens for the time being, so it be not less than forty shillings."' A by-law of a city au- thorizing the infliction of a penalty not exceeding fifty dollars was held void for uncertainty, and also because it permitted the corporation to be a judge in its own case.* But afterward the same court, in overruling the previous decision, said : "That the corporation is made judge in its own case is no objection, since it applies equally whether the penalty is for a specific sum, or fixed within certain limits. The question whether the ordinance has been vio- lated, is to be determined in either case by the corporation. The penalty is any sum less than fifty dollars. A reason- able discretion is given to be exercised within certain lim- its, and we can see no objection which could be urged to such a by-law, which could not, with equal propriety, be made to any law investing courts or juries with discretion in apportioning the fine to the offense, being restricted within reasonable bounds."* § 87. How validity of by-law determined. — Whether a by- the purchaser acquires the right of ^ Piper v. Chappell, 14 M. & W. property which the seller had. Gil- 624. bert V. Manchester Iron Manuf. Co., ' Mayor, etc., of Mobile v. Yuille, 3 II Wend. 627. Ala. 137. ■ Stevens v. Davison, 18 Gratt. 819. * Huntsville v. Phelps, 27 Ala. 55. 278 BY-LAWS. § 87 law be in conflict with the law, or the charter of the corpo- ration, or be unreasonable and therefore unlawful, is a question for the court. All regulations of a company affecting its business, which do not operate upon third per- sons, nor in any way affect their rights, are properly speaking by-laws of the company, and may come within the operation of the principle. Within this limit it is the peculiar and exclusive office of the court to decide upon the validity of the regulation.^ Where no question is made that the by-law is unreasonable, against law, or contrary to public policy, the court must construe and give effect to the by- law in the same manner, and upon the same principle, that it would construe and give effect to an agreement in writing entered into between private individuals. But if the lan- guage is doubtful, or the intention not clearly expressed, and the ambiguity is such that it may be explained by other evidence, or if the meaning of the terms used is to be ascertained and determined by extrinsic proof, the con- struction is usually a question of fact for the jury.* ' ' State V. Overton, 4 Zab. 435. As by members of their certificates, see to validity of by-law in relation to sale People v. Miller, 39 Hun, 557. ' State V. Conklin, 34 Wis. 21. CHAPTER VII. CORPORATE SEAL. i 88. History. 89. At common law. 90. Modern English rule. 91. Agent need not be appointed by deed. 92. Rule as to corporate seal in the United States. 93. Ancient method of sealing. Sealing at common law and by statute. When corporate seal indispensable Proof of corporate seal. Form of executing instruments. Recognition of agent's authority. Legal effect of affixing seal. § 88. History. — Evidence of the use of seals is said to have been found among Assyrian and Babylonian remains, and the practice of authenticating written instruments in that way is extremely ancient. " Among such methods used in Egypt at a very early period were engraved stones pierced through their length with and hung by a string or chain from the arm or neck or set in rings for the finger. The most ancient form used for this purpose was the scara- bceus, formed of precious or common stone, or even of blue pottery or porcelain, on the flat side of which the in- scription or device was engraved. Cylinders of stone or pottery bearing devices were also used as signets. But in many cases the seal consisted of a lump of clay impressed with the seal and attached to the document, whether of papyrus or other material, by strings."^ We read in the Bible* that Jezebel, wife of Ahab, " wrote letters in Ahab's name and sealed them with his seal, and sent the letters unto the elders and to the nobles that were in his city ■ Smith's Diet, of the Bible. '' I Kings, ch. 21, v. 8. 28o CORPORATE SEAL. § 89 dwelling with Naboth." King Ahasuerus said: "Write ye also for the Jews, as it liketh you, in the king's name, and seal it with the king's ring ; for the writing which is written in the king's name and sealed with the king's ring may no man reverse."^ "And I bought the field of Han- ameel mine uncle's son, that was in Anathoth, and weighed him the money, even seventeen shekels of silver. And I subscribed the evidence, and sealed it, and took wit- nesses, and weighed him the money in the balances. So I took the evidence of the purchase, both that which was sealed according to the law and custom and that which was open." ^ From the East seals were introduced into Greece and thence into Rome. Under the Roman law they are said to have been required " on the part of the witnesses at least at the attestation of every instrument." ^ The sealing of deeds is said to have been in vogue on the continent of Europe as early as the ninth century. In England sealing was not in common use previous to the Norman conquest ; the method, of the Saxons being for such as could write to subscribe their names, affix- ing thereto the sign of the cross ; and for those who could not write, simply to sign by a cross, from which ancient custom was derived the modern practice of the execution of written instruments by the illiterate by making their mark. The oldest authentic sealed charter in England is said to be that of Edward the Confessor to Westminster Abbey in the eleventh century. At the Conquest waxen seals were introduced by the Norman lords.* Seals were first only employed by the kings and nobles, but the use of seals finally became general.® § 89. At common law. — The ancient doctrine was, that a corporation could only manifest its intentions by its com- ' Esther, ch. 8, v. 8. * Ibid. See Wood's Civ. L. 133. ' Jeremiah, ch. 32, vs. 9, 10, and 11. ' New Am. Cycl., tit. Seal ; 2 Bouv. ' 2 Blk. Com. 305. Inst. 392. § 89 CORPORATE SEAL. 28 1 men seal. It was said that though the particular members might express their private consent to any acts by words, or by signing their names, yet that this did not bind the cor- poration ; that it was the fixing of the seal, and that only, which united the several assents of the individuals who composed the community, and made one joint assent of the whole.^ It being incident to every corporation aggregate to have a common seal, the absence of it was held to be a material element in deciding on the validity of the claim to be a corporation by a body which had always been reputed to be incorporated, though it does not appear to have been of itself decisive against such claim.* The English courts still seem reluctant to abandon the idea that a corporation can enter into ordinary contracts in any other way than by its common seal. It was said in one case in support of the strict common law rule that " the seal is required in authen- ticating the concurrence of the whole body corporate. If the legislature, in creating a body corporate, invests any member of it either expressly or impliedly with authority to bind the whole body by his mere signature or otherwise, then undoubtedly the adding of a seal would be matter purely of form and not of substance. Every one becom- ing a member of such a corporation knows that he is liable to be bound in his corporate character by such an act, and persons dealing with the corporation know that by such an act the body will be bound. But in other cases the seal is the only authentic evidence of what the corporation has done or agreed to do. The resolution of a meeting, how- ever numerously attended, is, after all, not the act of the whole body. Every member knows he is bound by what is done under the corporate seal, and by nothing else. It is a great mistake, therefore, to speak of the necessity of a seal as a relic of ignorant times. It is no such thing. Either a seal, or some substitute for a seal, which by law should be ' I Blk. Com. 475. ^ Rex v. Lord Dacres, Dyer, 81 a. 282 CORPORATE SEAL. § 89 taken as conclusively evidencing the sense of the whole body corporate, is necessarily inherent in the very nature of a corporation."^ Where the plaintiff had been retained by a corporation as attorney to conduct its suits, and to trans- act other legal business, but had not been appointed under the corporate seal, it was held that he could not recover his bill of costs.* In another case, the plaintiff having, pursuant to an agreement, not under seal, with a railroad company, done certain work on the line of its railroad, and been dis- missed before the completion of the job, it was held that he could not recover for the services rendered.^ Some of the earlier American cases manifested great hesitation in admitting the power of an agent to bind a corporation by a specialty unless he had authority from the corporation to affix its common seal ; and if this were not expressly proved, the least that would show an implied authority for that pur- pose was supposed to be that the officer affixing the seal had the custody of the corporate seal. The rule of the common law on the subject originated at a time when seals were more used by natural persons in the execution of contracts than at present, and when the seals of natural persons as well as of corporations contained devices significant of the person to whom they belonged, and when the seal itself affixed to an instrument was equivalent to signing. It was, therefore, important that when corpora- tions executed an instrument, it should be done by the common and ordinary seal of the corporation ; and many of the English cases, and some of the earlier or exceptional cases in the American books, seem to go upon the ground that a corporation cannot seal except by the use of its com- ' Mayor, etc., of Ludlow v. Charlton, Co., 5 Exch. 442. See Sutton v. Spec- 6 Mees. & Welsh. 815, per ROLFE, B. tacle Makers' Co., 12 W. R. 742; 'Arnold v. Mayor of Poole, 4 M. & Mayor of Kidderminster v. Hardwich, Gr. 860. L. R. 9, Exch. 24. Diggle V. London & Blackwell R.R. § go CORPORATE SEAL. 283 men seal.^ In Taylor v. Dulwich Hospital,'' it was said by the Lord Chancellor : " As to the signing of private per- sons, namely, the master, warden, and fellows, that cannot be such a contract as binds the college ; for a contract to bind that, or indeed any corporation, as to its revenue, must be under the common seal. It is true there would have been some equity if the intestate had, after this order for a new lease at the old rent, laid out money in improving or building on the premises in confidence and reliance on such order. However, even in that case, he should have had reparation only from the private persons signing the order, not against the college." § 90. Modern English rule. — Some of the early cases rec- ognize the difficulty of attempting to enforce the strict common law rule in transactions of minor importance.* In England, the great increase in the number of corporations has rendered it necessary there, in the absence of any stat- ute making a seal essential to the validity of a particular agreement, to hold many contracts made by and with cor- ' See Bank of Middlebury v. Rutland the conclusion that this distinction no & Wash. R.R. Co., 30 Vt. 159. longer exists, and the terms in which ° I P. Wms. 655. it is noticed in the judgments of the ' See Horn v. Ivy, i Ventr. 47 ; Run- courts in several late cases on this sub- die V. Deane, 2 Lut. 1496; Manby v. ject, seem to shovf that it still forms Long, 3 Lev. 107. Grant, in his worlc part of the law. Perhaps, therefore, on Corporations, 62, 63, says that " the the most safe mode of entering upon rule appears to have been restricted in such contracts and acts as are above former times, by the qualification that referred to, not being essential to the a corporation, to be entitled to perform objects of the corporation, is by deed petty acts, and to enter upon trifling under seal, in cases where the corpora- contracts without deed, must have a tion is without a head, or person spe- head by whom such acts would be in daily designated by the constitution of fact performed, the powers of the whole the body for such purposes." There body being considered as vested in him is one class of corporate acts which for such purposes ; but that where there may be performed so as to bind the was no head, such acts, although of corporation without seal, namely : such' minor importance and continual occur- as are entered of record, the corpora- rence, must be done, if at all, under tion being estopped by the record to deed There is nothing, it is con- say that it is not its deed. See Viner's ceived, in any modern case, to lead to Abridgment, tit". Corporations, K. 284 CORPORATE SEAL, § 9O porations valid, though not under seal ; and it is now said to be well settled that " when the constitution and end of a corporation require that certain contracts should be made, and work done, and such contracts have been entered into by agents lawfully authorized, and work performed and materials supplied in pursuance of the same, the corporation will be liable to an action, if not upon the special contract, at least on the common counts."^ The rule that employes may be engaged in behalf of corporations by parol, does not extend to cases where there is no special urgency for, or utility in, the engagement ; such, for instance, as a clerk to the master of a workhouse, who, it has been held, cannot maintain an action for dismissal, unless employed by a formal contract under seal.^ It is said that " a trading cor- poration may make binding contracts in furtherance of the purposes of its incorporation without using its seal, pro- vided such contracts do not relate to matters of a special and unusual nature." ^ In the case last cited, Campbell, ' Green's Brice's Ultra Vires, 2d Am. eral authority to make contracts for Ed. 450, referring to Clarke v. Cuck- works or goods necessary for the pur- field Union, 21 L. J. Q. B. 349; San- poses for which the corporation was ders V. Guardians of St. Neot's Union, created, and the work done or goods 8 Q. B. 810; De Grave v. Mayor, etc., supplied and accepted by the corpora- of Monmouth, 4 C. & P. 1 1 1 ; Beverley tion, and the whole consideration for V. Lincoln Gaslight, etc., Co., 6 Ad. & payment executed, the corporation can- E. 829 ; Church v. Imperial, etc., Co., not keep the goods or the benefit, and Ibid. 846 ; Nicholson v. Bradford refuse to pay, on the ground that Union, L. R. I, Q. B. 620; Wells v. though the members of the corporation Mayor, etc., of Hull, 10 C. P. 402; 44 who ordered the goods or the work L. J. C. P. 289. The soundness of the were competent to make a contract following legal proposition of WIGHT- and bind the rest, the formality of a MAN, J., in Clarke v. Cuckfield Union, deed, or of affixing the seal was want- supra, will scarcely be questioned : " I ing, and then say : No action lies ; we am disposed to think that wherever the are not competent to make a parol con- purposes for which a corporation is ere- tract, and we avail ourselves of our ated render it necessary that the work disability." should be done, or goods supplied, to ^ Dyte v. St. Pancreas Board of carry such purposes into effect, as in Guardians, L. R. C. P. 91 ; Austin v. case of the guardians of a poor law Guardians of Bethnal Green, 27 L. J. union, and orders are given at a board N. S. 342. regularly constituted, atid having gen- ' Green's Brice's Ultra Vires, 2d Am. § 9° CORPORATE SEAL. 285 C. J., said : " If the contract had been shown to be in any- way incidental or auxiliary to carrying on the business of copper miners, the contract would have been binding, though not under seal; for where a trading company is created by charter, while acting within the scope of its char- ter, it may enter into the commercial contracts usual in such a business in the usual manner." ^ In another case, where the decision of the court was unanimous, Bovill, C. J., remarked that " a company can only carry on busi- ness by agents, managers, and others, and if the contracts made by these persons are contracts which relate to objects and purposes of the company, and are not inconsistent with the rules and regulations which govern their acts, they are valid and binding upon the company, though not under seal. It has been urged that the exceptions to the general rule are still limited to matters of frequent occurrence and small importance. The authorities do not sustain that ar- gument."* Subsequently it was held that a company was bound by a contract not under seal for the purchase of goods, notwithstanding the goods were not intended for the use of the company, and this fact was known to the person with whom the contract was made.^ Some confusion and conflict is noticeable in the English decisions as to what acts are of ordinary occurrence, the exception to the rule requiring a seal not extending to un- Ed. 453, referring to Broughton v. peal, 4 Id. 617. In Renter v. Electric Manchester Water Works Co., 3 B. & Telegraph Co., 6 E. & B. 341, Camp- Ald. I ; Copper Miners' Co. v. Fox, 16 BELL, J., said : " No reliance can be Q. B. 229. placed upon the objection that the de- ' See Henderson v. Australian Royal fendants are a corporation and that the Mail Steam Nav. Co., 5 E. & B. 409 ; agreement on which they are sued is 24 L. J. Q. B. 322, in which POLLOCK, not under seal. They are a corpora- C. B., said : " It is now perfectly es- tion for carrying on a particular busi- tablished by a series of authorities, that ness, and the services done by the a corporation may, with respect to plaintiff were in the direct course of those matters for which it is expressly the business which by their charter created, deal without a seal." they were to carry on." * South of Ireland Colliery Co. V. Wad- 'Matter of Contract Corporation, die, L. R. 3, C, P. 463 ; affj'd on ap- etc., L. R. 8, Eq. 14. 286 CORPORATE SEAL. § 90 usual or uncommon acts. Thus, " in one case, a railroad company was held not liable to an action on a contract not under seal for work done by a party in substituting a new line of railway for the old one ; and in another case a dock company could not sue on a similar contract for cleansing and removing the filth and dirt accumulating in its docks and basins ; though under almost precisely similar circum- stances a municipal corporation was held liable for dredg- ing a harbor, notwithstanding the work was done under a parol agreement."^ Of course, when the charter expressly ' Green's Brice's Ultra Vires, 2 Am. Ed. 455, referring to Diggle v. London & Blackwell R.R. Co., 5 Exch. 442; 19 L. J. Exch. 308 ; Whitehead v. Buf- falo, etc., R.R. Co., 7 Grant (Up. Can. Ch. 1857), 357 ; London Dock Co. v. Sinnott, 8 E. & B. 347 ; 27 L. J. 129 ; Brown v. Corp. of Belleville, 30 N. C. Q. B. 373 : " The doctrine that a cor- poration can act only by its common seal, and can enter into and be bound by no contract without that solemnity, claims to stand on grounds both an- cient and venerable ; cases in the Year Books of the 4th Edward, and 6th, 7th, and 8th Henrys. But an examination of the subject in those cases will afford no great reason to admire the accord- ance and unanimity of the judges, the solidity of their reasons, or the sagacity of some of the distinctions they were led to recognize or establish. In gen- eral it is said a corporation cannot do any act of importance without a deed, but they may employ one in ordinary services, as a butler, cook, or the like, or to make a distress on their behalf. They may speak in whispers, it seems, but not more audibly. An act in pais it is said they may not do without their common seal, yet they may do an act upon record, for they are estopped by the record to say it is not their act. They are allowed in such case then to speak and be heard in some other mode than by the common seal. Even the seal itself, by which alone it is sometimes said they are to speak and . act, affords very equivocal evidence of common assent." Baptist Church v. Mulford, 3 Halst. 182, per EwiNG, C. J. The Companies' Clauses Act, 8 & 9 Vict., ch. 16, sees. 95, 97, after pro- viding that the directors may appoint committees, enacts that " with respect to any contract which if made between private persons would by law be valid, although made by parol only and not reduced to writing, such committee or the directors may make such contract on behalf of the company by parol only without writing, and in the same man- ner may vary or discharge the same." The Joint Stock Companies' Act of 1856 as amended in 1867, 30 & 31 Vict., ch. 131, sec. 37, provides that contracts may be made by parol " on behalf of the company by any person acting under the express or implied au- thority of the company." The Me- tropolis Gas Act of i860, 23 & 24 Vict., ch. 125, sec. 20, enacts that " every contract of the gas company entered into in accordance with this act, shall, without seal, be binding on them if the contract be signed by at least two of their directors, or by the secretary or other officer by the au- § 91 CORPORATE SEAL. 287 provides that contracts of the corporation shall be under the corporate seal, that form must be observed, and au- thority to dispense with the use of the seal cannot be presumed.^ § 91. Agent need not be appointed by deed. — The common law rule with regard to natural persons that an agent to bind his principal by deed must himself be empowered by deed, cannot in the nature of things be applied to corpora- tions aggregate. The latter are, literally speaking, incapa- ble of a personal act. That an aggregate corporation acts and speaks by its common seal, is only figuratively true. There must be acting and speaking before the use of the seal and the real assent necessarily precede it. " The cor- poration is indeed an artificial, ideal, invisible person, and as such can neither think nor act ; but it is composed of divers actual members whose united voices form the voice of the corporation, and who alone in fact and truth think and act. The seal then is not the act of the corporation, but the evidence of the act ; is not the voice of the corpo- ration, but the evidence that it has spoken."* In a case which came before all of the judges at Sergeant's Inn in the year 1717, it was decided, after an elaborate ar- gument, that a bank note was duly signed by an agent authorized by vote, or at least without the corporate seal.^ thority of at least two of their direct- R.R. Co. v. Manchester, etc., R.R. ors." See Green's Brice's Ultra Vires, Co., 10 Eng. L. & Eq. 11; 16 Jur. 2d Am. Ed. 464, 465. In Marshall v. 146. Queensborough, i Sim. & Stu. 520, the ' Frend v. Dennett, 27 L. J. C. P. vice-chancellor stated that if a regular 314 ; Crampton v. Varna R.R. Co., L. corporate resolution passed for grant- R. 7, Ch. 562. See Indianapolis, etc., ing an interest in a part of the corpo- R.R. Co. v. Morganstern, 103 111. 149. rate property, and upon the faith of ' Baptist Church v. Mulford, supra. that resolution expenditure was in- ' Rex v. Bigg, 3 P. Wms. 419. In curred, he was inclined to think that Manby v. Long, 3 Levinz, 107, it was both principle and authority would be held that the agent of a corporation found for compelling the corporation to might make a distress, although his make a legal grant in pursuance of appointment had not been authenti- that resolution. See Gt. Northern cated by the common seal. 2S8 CORPORATE SEAL. §91 Long afterward it was held by the Supreme Court of the United States that the indorsement of a promissory note by the cashier of a bank authorized by vote was obligatory on the corporation. In delivering the opinion it was said that the ancient doctrine in relation to a common seal had no application to corporations created by statute, whose charters contemplate the business of the corporation to be transacted exclusively by a special board of directors, and that the acts of such a body or board, evidenced by written vote, were as completely binding on the corporation as the most solemn acts done under the corporate seal.^ Similar decisions have been repeatedly rendered by the courts of this country.* If the corporation, or its representative the board of directors, can assent to an act primarily by vote alone, to insist that it can constitute an agent to make a deed only by deed, is to say that it can constitute no such agent what- ever, for some person must be empowered by vote to seal the power of attorney.^ There is, therefore, no good rea- son why it should be necessary to appoint an agent by an instrument under seal, whatever may be the object of the agency, but his act may be made valid by the subsequent ' Fleckner v. Bank of U. S., 8 Wheat. Cal. 273. In Mickey v. Stratton, 5 338. See Mechanics' Bank of Alexan- Sawyer, 475, Deady, J., said : " I find dria V. Bank of Columbia, 5 Id. 326 ; the seal upon this deed is that of the Bank of Columbia v. Patterson, 7 corporation of that date. This being Cranch, 299. so, and the signatures of the proper ' See Osborn v. Bank of U. S., 9 officers appearing signed thereto, the Wheat. 738 ; Bank of U. S. v. Dan- presumption is that these officers did dridge, 12 Id. 70; Lathrop v. Commer- not exceed their authority in this re- cial Bank, 8 Dana, 114; Bates v. Bank spect ; and the seal itself \^ prima facie of Ala., 2 Ala. 461 ; Savings Bank v. evidence of their authority." See, to Davis, 8 Conn. 191.; Stamford Bank v. the same effect. Wood v. Whelen, 93 Benedict, 15 Id. 445 ; Western Bank v. 111. 153 ; Indianapolis, etc., R.R. Co. v. Gilstrap, 45 Mo. 419 ; Narragansett Morganstern, 103 Id. 149. Bank v. Atlantic Silk Co., 3 Mete. 282 ; ' Hopkins v. Gallatin Tump. Co., 4 Howe V. Keeler, 27 Conn. 538 ; Santa Humph. Tenn. 403. See Beckwith v. Clara Assoc, v. Meredith, 49 Md. 389 ; Windsor Manuf. Co., 14 Conn. 594 ; Crowley v, Genesee Mining Co., 55 Burr v. McDonald, 3 Gratt. 215. § 91 CORPORATE SEAL. 289 ratification of the corporation.^ In England an objection to a bill filed by a railroad company for the specific per- formance of a contract for the purchase of land entered into by its agent, that it did not appear that the agent was authorized under the corporate seal, was overruled on the ground that the company previous to the filing of the bill ' Howe V. Keeler, 27 Conn. 538 ; New Athens v. Thomas, 82 111. 259. In Sav- ings Bank v. Davis, 8 Conn. 191, BlS- SELL, J., in dissenting from the holding of the court that an agent might be clothed with authority to mortgage the real estate of a bank by a vote of the board of directors without a power of attorney under the corporate seal, pre- sented among other the following con- siderations : " When an individual con- veys by attorney the statute requires that the power to convey shall be exe- cuted with the same formalities as the deed itself, and that both the power and the deed shall be recorded. Now I would inquire upon what principle it is that corporations are to be exempted from these plain and explicit provisions of the statute ? Why should they not be bound by those legal requirements which are imperative upon individuals and are indeed of universal applica- tion ? And why, when the law re- quires of an individual that he should act by deed, are corporations permitted to act by vote ? Is there anything of peculiar solemnity in the vote of a cor- poration .'' And, in this case, is it any- thing more than a mere parol authority to execute the mortgage ? Is there the remotest analogy between such a vote and a deed duly executed, acknowl- edged, and recorded ? To me it does seem that the doctrine contended for is not only repugnant to the well-settled principles of the common law, but that it is also opposed to the whole frame and spirit of our statute regulations re- garding conveyances. And especially VOL. I.— 19 is it opposed to the policy of our re- cording system. That system demands that the evidence, and the entire evi- dence respecting the conveyance of real estate, should appear upon the public records. These records are always open to public inspection, and are presumptive notice to the whole world of the facts which there appear. A purchaser ought to be enabled there to trace the entire written evidence of his title. If the conveyance be by at- torney, the power to convey must be recorded with the deed. The power is indeed a constituent and essential part of the conveyance It is, how- ever, urged that there exists no reason at common law why the appointment of an agent to convey lands should not stand on the same ground and be evi- denced in the same manner as the ap- pointment of an agent for any other purpose; for that previous to the 29 Car. 2, lands were conveyed by parol ; that at common law writing and seal- ing were wholly unnecessary. It ought to be remembered that when lands were thus conveyed, livery of seizin uras an indispensable requisite, and that when lands thus passed from man to man, a corporation could not so grant or take. The reason was that the giving and taking of livery were personal acts, and when any personal act is to be done by a corporation, the act must be done by attorney. The appointment of an attorney to take or make livery of seizin or the like with- out deed was void." 290 CORPORATE SEAL. § 92 had not only acted on the contract by taking possession of the property, but had constructed the raihoad on it.^ It was stated by the Supreme Court of New Hampshire a long time ago that the weight of authority in this country seemed to be in favor of the position that private corpora- tions or boards of directors through which their business was transacted might appoint an agent for the convey- ance of real estate by vote, without a power of attorney or instrument under the corporate seal. " If," said the court, " the formality of an instrument under seal confer- ring the power upon the agent who is to make the convey- ance should be required, it would add nothing to the au- thenticity of the conveyance if the individual who affixes the seal to the power derives his authority from a mere vote of the corporation." ^ § 92. Rule as to corporate seal in the United States. — The old rule that, as a general proposition, a corporation cannot expressly bind itself except by deed unless the charter au- thorizes it to contract in another mode, has been entirely overturned in this country, and it is now well settled that the acts of corporations may be proved in the same man- ner as the acts of individuals. If the law requires that the contract of a private person shall be in writing under seal, a corporation under the same circumstances must contract in the same way ; if the contract of a private person must be in writing, signed by the party to be charged therewith, the contract in the case of a corporation must also be in writing, and be signed by an officer or agent duly author- ized ; and a parol contract, which would be binding upon a private person when entered into by an agent of a corpo- ration acting within the scope of his authority, will bind the corporation.^ Acts of a corporation evidenced by a ' London & Birmingham R.R. Co. v. ' Trustees of University v. Moody, Winter, i Craig & Th. Ch. 57. 62 Ala. 389 ; Merrick v. Burlington, ' Dispatch Line of Packets v. Bellamy etc., Plank R. Co., 1 1 Iowa, 74 ; Chris- Manuf. Co., 12 N. H. 205. tian Church v. Johnson, 53 Ind. 273; §92 CORPORATE SEAL. 291 vote are as binding upon it and as much autiiority to its agents as the most solemn acts done under the corporate seal. If there be no record evidence of such acts, they may be proved by the testimony of witnesses ; and even where no direct evidence can be given, facts and circumstances may be shown from which the acts may be inferred.^ But Sheffield Township v. Andress, 56 Id. 1 57 ; Gowen Marble Co. v. Farrant, 73 111. 608 ; New Athens v. Thomas, 82 Id. 259 ; New England Ins. Co. v. Robinson, 25 Ind. 536 ; Kelly v. Board of Public Works, 75 Va. 263; Whit- ford V. Laidler, 94 N. Y. 145. ' St. Mary's Church v. Cagger, 6 Barb. 576; Davenport v. Peoria, etc., Fire Ins. Co., 17 Iowa, 276; Sheffield School Township v. Andress, 56 Ind. 157; Buckley v. Briggs, 30 Mo. 452 ; Union Bank of Md. v. Ridgley, i Harr. & Gill, 324 ; Curry v. Bank of Mobile, 8 Porter, 360 ; Chesapeake & Ohio Canal Co. v. Knapp, 9 Peters, 541 ; Fleckner v. U. S. Bank, 8 Wheat. 358 ; Bank of Metropolis v. Gutschlick, 14 Peters, 19. See Thorndike v. Barrett, 3 Me. 380. There is a vast amount of business, some of it of the highest im- portance, which is transacted by officers of corporations without any authority under seal, and oftentimes without any writing. " Nor are these acts such as come within the authority of the office of the agent. As an illustration, I may speak of the satisfaction of judg- ments by cashiers of banks, who usually have no authority in writing for that purpose, and act simply from usage, and, in fact, convenience. This is a very important act, the discharging of a debt of record by indorsement of the cashier, and yet no court would allow his right to do so to be questioned upon any ground of want of authority under seal or in writing. Proof of usage by the bank, or adoption of the officer's act, would be held sufficient, without show- ing any authority for the power exer- cised. A much stronger case is that of a transfer of a judgment to a co-debtor or co-surety who had paid the debt ; and here, this court, should such a case arise before it, would not allow the bank to disclaim the act on the ground that the officer had no written or verbal authority. Usage in the con- duct of the business of the bank in such cases would be sufficient author- ity, and no impeachment of it would be allowed except upon the ground of fraud." COMEGYS, C. J., in Bancroft v. Wilmington Conference Academy, 5 Houst. Del. 577. A person agreed with J., president of an incorporated rifle club, that he would furnish materials and do certain work on the buildings of the club for an agreed sura. The club had no corporate seal, but the parties executed the contract by subscribing their names, affixing their respective seals to it in the form of scrolls made with a pen, J. adding to his signature the words " President of the Wilming- ton Rifle Club." The action was not against the club, but against J. person- ally. The court said : " It was com- petent for the defendant, had he seen proper to do so, to have charged him- self in the contract for the work to be performed by the plaintiff so as to have made himself liable for it; but, to warrant that construction of it, such should clearly be the purport of the in- strument upon its face. It was, how- ever, neither his individual covenant, nor the covenant of the club and the incorporated company of which he was 292 CORPORATE SEAL. § 92 when a statute provides that the corporation shall keep a record of all of its doings, which shall be open to the in- spection of all persons interested therein, the consent of the corporation to a conveyance must be shown by the record, or at least by a vote, the members having regularly assem- bled for that purpose.^ It was remarked by Judge Story, in a case in the Su- preme Court of the United States, that " The technical doctrine that a corporation could not contract except under its seal, or, in other words, could not make a promise, if it ever had been fully settled, must have been productive of great mischief. Indeed, as soon as the doctrine was estab- lished that its regularly appointed agent could contract in its name without seal, it was impossible to support it, for oth- erwise the party who trusted such contract would be without remedy against the corporation. Accordingly it would seem to be a sound rule of law that whenever a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts made by its authorized agents are express promises of the corporation ; and all duties im- posed on them by law, and benefits conferred at their re- quest, raise implied promises, for the enforcement of which an action may well lie The opposite doctrine, if it were yielded to, is so purely technical that it would answer no salutary purpose, and would almost universally con- travene the public convenience."'* In a recent case in New the president; first, because he exe- would not be without his remedy in cuted it on behalf of the company, and another form of action against it to re- as the agent and president of it, and cover for labor and materials under not in his own name or on his own the contract." McCauUey v. Jenney, 5 part individually ; and secondly, be- Houst. Del. 32. cause it is not sealed with the seal of ' Isham v. Bennington Iron Co*., 19 the company, and for the best of rea- Vt. 230. sons, fts it appears from the evidence ^ Bank of Columbia v. Patterson, 7 that it has never had one. Neverthe- Cranch, 299. The seal of a corporation less, if the contract was so made and is not necessary to give validity to an executed by him with the sanction and agreement for the sale of real property — consent of fhe compaAy, the plaintiff The Banks of Poiteaux, 3 Rand, 136, § 92 CORPORATE SEAL. 293 Jersey/ in which it was objected to the validity of a lease to a corporation that it was not executed by the corporation under its corporate seal, the court said : " This contention was founded upon the ancient rule of the common law that a corporation could neither act, speak, nor whisper apart from the instrumentality of its common seal. But the rule, opposed as it was to the demands of practical business necessity, suffered at an early day in England im- portant modifications ; and in this country, since the de- cision in Bank of Columbia v. Patterson,** the doctrine has received but slight recognition, and now it may be consid- ered as practically abrogated. In this State, in the case of — and the contract will be enforced in equity. Legrand v. Hampden Sidney College, 5 Munf. 324 ; Stoddert v. Ves- try of Port Tobacco Parish, 2 Gill & Johns. 227 ; Mayor of Stafford v. Till, 4 Bing. 75 ; London Co. v. Winter, i Craig & Ph. 63. See Wilmot v. Cov- entry, I Younge, etc., Exch. 518. A contract in writing not under seal be- tween the committee of a corporation and an individual, that the latter might occupy the hotel of the corporation for one year, with the right of renewal for two additional years if he kept the hotel in a manner satisfactory to the commit- tee, was held valid. Stanley v. Bruns- wick Tontine Hotel Corp., 13 Me. 51. It was said by the court in an early case in South Carolina : " The general rule is,- that a corporation aggregate cannot do any act of importance with- out a deed, that is, some instrument under seal, though there are many ex- ceptions to the rule. The first excep- tions were founded on convenience in small matters, and gradually this relax- ation widened^ to embrace more im- portant matters. At length it seems to have been established that though a corporation cannot contract directly, except under seal, yet it may by vote. or other act sufficiently expressive of the corporate will and' intention, ap- point ' an agent whose acts and con- tracts, within the scope of his authority, will be binding on the corporation." Garvey v. Colcock, i Nott & McCord, 231. "A corporation aggregate which acts through the intervention of a board of directors or managers, and keeps a register of its acts, may be bound by its record without the annexation of a common seal. Its acts are authenti- cated by its own corporate registry, which it should be estopped to deny or impeach when genuine and authori- tative. In this particular the Amer- ican corporations are unlike most, if not all, of the common law corpora- tions ; the former being represented generally by a board of directors who keep a record of their proceedings, and the latter seldom or never thus acting ; and hence, however rigidly the ancient practice may have required a seal to all the acts of common law corporations, the same reason does not with equal force apply to modern corporations." Garrison v. Combs, 7 J. J. Marsh, 84, per Robertson, Ch. J. ' Crawford V. Longstreet, 43 N.J. 325. ' 7 Cranch, 299. 294 CORPORATE SEAL. § 93 Baptist Church v. Mulford/ the subject received full con- sideration in the Supreme Court, and the authorities bear- ing on the subject were quite fully collated. Since the decision in that case the question has, in this State, been considered as at rest." § 93. Ancient method of sealing. — A seal, as commonly understood, has a twofold signification — an instrument composed of metal, stone, or other hard substance em- ployed to make impressions on legal instruments, and also the substance or thing impressed. The Greek and Roman seal was ordinarily set in a ring. " Merlin defines a seal to be a plate of metal with a flat surface on which are en- graved the arms of a prince or private individual or other device, with which an impression is made on wax or other soft substance, or on parchment or paper, in order to au- thenticate them."* The bulls of the popes were sealed with lead or gold, the word bulla meaning an impression in metal. ^ " The wax most anciently employed was white. When about the ninth or tenth century wax was made of various colors, only emperors and kings might seal in red. In the twelfth century it was customary in France to seal letters addressed to persons of high eminence with green wax. This color was introduced into Germany in the four- teenth century, and was appropriated by religious houses and cities. Blue seals were very rare, and Charles the Fifth of Germany is said to have been the only European monarch who used this color. The patriarchs of Jerusalem and Constantinople and the grand masters of the order of Malta and of the Teutonic order in Germany sealed in black. Private persons usually used yellow wax, and this color is frequent in public documents of about the twelfth century The most ancient mode of sealing was probably that of applying the wax directly to the parch- ment. When the instrument was written upon two or ' 3 Halst. 182. « I Bouv. Inst: 344. « Jac. L. Diet. § 94 CORPORATE SEAL. 295 more leaves, the wax was made to reach them all by im- pressing it upon an incision made in the parchment in the form of a cross. The seal was sometimes also made upon the ends of thongs or strips of parchment run through the several sheets. Lead, silver, or gold bullce were almost of necessity appended by a cord or strip. In the twelfth cen- tury it seems that, in France at least, pendent seals had dis- placed the other sort. They are still used generally for letters patent, treaties, and other important public docu- ments." ^ § 94. Sealing at common law and by statute. — By the common law the impression in sealing must be made upon wax, wafer, or some other tenacious substance. Formerly, wax being the most convenient, was the only material used to receive and retain the impression of a seal. Hence it was said by Sir Edward Coke, " Sigillum est iera, im- pressa, quia cera ? Sine impressione, non est sigillum." But from this it did not follow that an impression without wax was not a seal. It was accordingly held that an im- pression made upon any adhesive substance capable of re- ceiving an impression came within the definition of cera impressa. Seals were very commonly impressions made upon pieces of paper annexed by a wafer, gum, or paste to the instrument sealed ; or two such pieces of paper were secured to each other and to tapes passed through the pa- per or parchment of the instrument by wafer or other ad- hesive substance and the impression made upon one of these pieces of paper.* ' New Am. Cycl., tit. Seal. party on the plain parchment or paper ^ See Bank of Rochester v. Gray, 2 with an intent to seal it, it is clearly Hill, 228 ; Farmers' Bank v. Haight, 3 sufficient." The foregoing was refer- Id. 492. In Sugden on Powers, ist red to with approval by the court in Am. Ed. 236, the rule is thus laid Regina v. Inhabs. of St. Paul's, etc., 7 down : " It is not -necessary that an Add. & Ell. N. S. 232, Lord Denman impression should be made with wax observing : " We do not wish to encour- or with wafer. If the seal, stick, or in- age the slightest doubt on this point." strument used be impressed by the See Mathews on Presump. Ev. 36. 296 CORPORATE SEAL. § 94 Although the practice of sealing written instruments had its origin in an illiterate age, when the art of writing was not generally understood, and on that account was prob- ably necessary as a mode of authentication, yet it seems to us that apart from any such consideration, it had and con- tinues to have a substantial utility, and that the light and almost contemptuous terms in which it is now sometimes characterized are undeserved. The significance of a seal in law at present is that it imports a deliberate, carefully con- sidered, and well- understood act on the part of the person who affixes his signature. The fact that a different and more formal method of executing written instruments is required when important interests are involved than in or- dinary transactions, is calculated to attract the attention of the parties and make them cautious. Thus, sealing be- comes a safeguard against imposition, especially to the in- experienced and over-confiding. It was said by a judge in a modern case: " It was the fact that the obligor did two independent acts — first that of signing, and secondly that of sealing ; that in the theory of the common law gave so much more solemnity to the contract and imported so much greater deliberation, and therefore entitled it to be enforced without any proof of a particular consideration or recital that it was for value received, as well as extended its vitality beyond the period of six years, and ex- cepted it from the bar incident to all personal contracts which are merely signed by the promissor." ^ In Warren v. Lynch * a question arose with reference to a writing in the • Dewey, J., in Bates v. Boston & when none is expressed, or extending N. Y. Cent. R.R. Co., 10 Allen, 251. the statute of limitations from the pe- See Guthrie v. Imbrie, 12 Oregon, 182. riod of six to twenty years. Such con- In the absence of any statute or usage, tract is entitled to all the binding effect a scroll, whether made by a pen or upon the promissor, that a contract not type, does not change the character of under seal has, and no more. Bates v. the instrument from a simple contract Boston & N. Y. Cent. R.R. Co., su- to one under seal, or give it the legal pra. effect of importing a consideration " 5 Johns. 238. § 94 CORPORATE SEAL. 297 form of a note concluding with the words, " Witness my hand and seal," signed by the maker with the letters L. S. inclosed in an ink scroll at the end of the name. Chief- Justice Kent, who delivered the opinion of the court, said that a scrawl with a pen was not a seal ; that the policy of the rule consisted in giving ceremony and solemnity to the execution of important instruments by means of which the attention of parties is more certainly and effectually fixed, and fraud less likely to be practiced upon the unwary. In a case in Massachusetts, it was said by the court : " If we should pronounce a scroll a seal, we would speedily be called upon to take the next step of pronouncing every flourish to be a scroll ; and nothing would remain of the ancient formality of sealing. Such a course would not only be an unwarrantable judicial innovation upon the common law, but would obliterate the important practical distinction between two classes of instruments of different degrees of solemnity, one of which does, and the other does not, con- clusively import a consideration ; one of which remains binding for twenty years, while the other is by statute sub- ject to a limitation of six years. No case has been found where such a printed device has been regarded as a seal by any court which preserves the distinction between seals and scrawls, or scrolls." ^ The rule in relation to sealing instru- ments has, however, been relaxed in many of the States, and a scroll rendered by statute or judicial decision suffi- cient.' Without enumerating all of the States in which this innovation upon the former practice is allowed, it may be sufficient to mention Connecticut, Illinois, Ohio, Ore- gon, Virginia, and Wisconsin.* In Michigan, excepting where an official or corporate seal is required, any device 1 Hendee v. Pinkerton, 14 Allen, 381, 1874, p. 270, sec. i ; Rev. Sts. of Ohio, per Foster, J. Ed. of 1880, sec. 4 ; Genl. Laws of Or- ^Seejohnstonv. Crawley, 25 Ga. 316. egon, Ed. of 1872, p. 238 ; CodeofVa., 3 Genl. Sts. of Conn., Ed. of 1875, p. Ed. of 1873, p. 985 ; Rev. Sts. of Wis., 438, sec. 17; Rev. Sts. of 111., Ed. of Ed. of 1878, p. 636, sec. 2215. 298 CORPORATE SEAL. § 94 affixed to a written instrument by way of a seal by the per- son signing the same is sufficient.^ In a case in Maine, the question was whether certain instruments purporting to be railroad bonds were in fact bonds, or only simple contracts. They bore on their face the imprint in red ink of what purported to be a corporate seal, bearing the title of the corporation, and the year of its charter, pursuant to a vote of the directors under a statute authorizing corporations, among other things, to have a common seal to be altered by them at pleasure. That the imprint was recognized as the common seal of the corporation, was inferable from the words, " In testimony of which, pursuant to authority vest- ed in us for this purpose by the directors of said company, the seal of said company, and the signature of the president and treasurer thereof, are hereto affixed." The court said : " Here, then, is a substance affixed to the instruments more tenacious than wax or wafer, adopted and declared by the company to be their seal, and we know of no decision in this enlightened age which declares it to be otherwise."* It has been frequently held that the impression of a dis- tinctive seal, without wax or other substance, on an instru- ment calling for the seal of a corporation, is a valid seal.^ 'Comp. L. of Mich., vol. 2, p. 1708. writings; and ever}- writing not sealed In Tennessee and Texas, no private seal shall have the same force and effect or scroll is necessary to the validity of that it would have if sealed." Sts. of any contract, bond, or conveyance, Ind., Eds. of 1862 and 1870, vol. 2, p. " except such as are made by corpora- 180, sec. 273. Whether a mere scrawl tions.'' Sts. of Tenn., Ed. of 1871, would be regarded in New Hampshire sec. 1804; Rev. Sts. of Texas, Ed. of- as a sufficient seal to authenticate a 1879, p. 644, art. 4487. In Alabama, protest by a notary public without evi- "all writings which import on their dence of the official character of the face to be under seal, are to be taken notary, quere. Carter v. Burley, 9 N. as sealed instruments, and have the H. 558. same eftect as if the seal of the parties " Woodman v. York & Cumberland was affixed thereto." Code of Ala., R.R. Co., 50 Me. 549. Ed. of 1876, p. 573, sec. 2194. In In- *See Beardsley v. Knight, 4 Vt. 479; diana it is provided by statute that Bank v. Slason, 13 Id. 334; FoUett v. " there shall be no difference in evi- Rose, 3 McLean, 382 ; Pillow v. Rob- dence between sealed and unsealed arts, 13 How. 472, per Grier, J, ; § 94 CORPORATE SEAL. 299 In an early case in New York, Livingston, J,, in deliver- ing the opinion of the New York Supreme Court, said : " However ancient the use of seals as a mark of authentic- ity to instruments may be, or to whatever cause their ori- gin may be ascribed, it is certain that in modern times a private seal is not regarded as evidence of truth, or of be- longing to the party to whose signature it is affixed, but that men promiscuously use each other's seals without at- tention to the impression, or coat of arms. Thus, it is no uncommon thing to see a seal containing the device, arms, and perhaps name, of one person used to authenticate the instrument of another. If it be not necessary, then, that in sealing a deed the grantor should affix his own, but may adopt the seal of a stranger, why should it be exacted that the materials on which the impression is made should be of wax, wafer, or any other particular composition ? Why should not any impression or mark answer as well as the common mode of sealing, provided it be durable, whether it be stamped on the paper itself, or on something laid upon it, if it be made as a solemn act of confirmation, and delib- erately acknowledged as the seal of the party making it ?" In the foregoing case, the principal question was, whether an instrument purporting to be a bond, should be regarded as a specialty where the letters L. S. were affixed to the obligor's name without wax or wafer. The decision was, however, rendered on another point. As the instrument was made in Pennsylvania, where a scroll was recognized as a seal, the court treated it as such, adopting the law of the place of the contract. Williams on Real Property, 8th ed., p. 144, says : " In modern practice, the kind of seal made use of is not regarded ; and the mere placing of the finger on a seal already made, is held to be equivalent to sealing ; and the words, ' I deliver this as my act and Moore v. Jones, 2 Ld. Raym. 1 536 ; v. Graham, 3 Cranch, 229 ; Chilton v. Holman v. Borough, 2 Salk. 658 ; Cook The People, 66 111. 501. 300 CORPORATE SEAL. § 94 deed,' which are spoken at the same time, are held to be equivalent to delivery, even if the party keeps the deed himself."^ The following language was used some time ago by the Supreme Court of New Hampshire : " Most seals have ,in this State not been affixed in wax or wafer, or to any adhesive substance, but they have been im- pressed upon paper attached by a wafer or paste, by the effect of which the paper was rendered susceptible of re- ceiving and retaining the impression of the seal. When, then, presses have been contrived of such power as to make an equally distinct and permanent impression directly upon the paper alone, it does not seem consistent to hold that the wafer or paste, whose chief use was to facilitate the making of the impression upon the paper under which, it was put, is still requisite when it has ceased to be either necessary or useful for that purpose. Heretofore, and now, the impres- sion of the seal has been made upon the paper, which seems, therefore, at this day precisely that tenacious substance which is capable of receiving the impression required for a seal." ^ It was said by the court in a case in Massachusetts : ' Meredith v. Hinsdale, 2 Caines, 362. is, are we yet fast in the wax ? We 2 Allen V. Sullivan R.R. Co., 32 N. have said by long practice, that both of H. 446. In Corrigan V. Trenton Del. these were not necessary. With which Falls Co., I Halst. Ch. 52, the Chan- of them would Lord Coke have been cellor said : " According to Lord Coke,- the better satisfied ? Clearly, with the a seal is wax with an impression, be- impression ; nay, he would not have cause wax without an impression is not dispensed with that at all. What pro- a seal. It is clear that by this definition portion of seals used on private papers the impression makes the seal. It is nowadays would fall within his defini- true that if this definition is strictly tion .' A wafer placed at the end of taken, there must not only be an im- the name, with a piece of paper on it, pression, but that impression must be or without the piece of paper, and with- on wax. But the impression is the out any impression, is a seal ; and by sine qua non of Lord Coke's seal ; the the sartie rule of reasoning, or absence wax is only auxiliary ; it adheres to the of reasoning, a drop of sealing wax paper and receives the impression, and dropped in a proper position in relation is the material which annexes the im- to the name, and without an impression pression to the instrument. But we or bit of paper upon it, would be a seal, have long since grown out of the sub- provided the writing called for a seal, stance or essence of Lord Coke's defi- Lord Coke's definition has been entire- nition, the impression. The question ly departed from, and the mere wax or § 94 CORPORATE SEAL. 30I " After our own courts have allowed wafers instead of wax, and paper with gum or mucilage instead of wafers, there seems little reason why we should hesitate also to allow the sufficiency of an impression of a corporate seal on the paper itself. The extent to which the practicfe has prevailed among corporations ; the fact that the seals of all our own courts have been from an early period of the same descrip- tion ; the sanction of numerous decisions in other States, and in the federal courts ; the convenience and unobjection- able character of the usage, are arguments in its favor too powerful to be resisted, in the absence of any decisive au- thority to the contrary." ^ It is now provided by statute in Massachusetts, that when the seal of a corporation " is re- quired by law to be affixed to any paper, the word seal shall include an impression of the official seal made upon paper alone, as well as an impression made by means of a wafer or wax affixed thereto." * Similar statutes have been adopt- ed in Connecticut, Rhode Island, and Vermont.^ The mere printing of a fac-simile of the seal of a corporation at the same time and by the same agency as the printing of the instrument, to be afterward signed by the president and treasurer, leaving nothing to be done by the officers of the corporation, who alone are authorized to affix the corporate wafer put on to receive the seal is rec- seal of either wax or wafer, or other ognized as the seal. How can it be adhesive substance, or an impression said that the impression, the essence of upon such substance, or upon the paper the definition, appearing on the paper or material upon which such instru- is no seal because it is impressed with- ment is written, or a scroll seal, will be put wax ? " ' sufficient." Rev. Sts. of Ohio, Ed. of ' Hendee v. Pinkerton, 14 Allen, 381. 1880, sec. 4. In Oregon, a private seal "Public Sts. of Mass. of 1882, p. 59. maybe made by a stamp or impression ^Genl. Sts. of Conn., Ed. of 1875, p. upon wax, wafer, paper, or any other 438, sec. 17; Public Sts. ofR. I., Ed. like substance, or " without an impres- of 1883, p. 78, sec. 14 ; Rev. Laws of sion, by a wafer or wax attached to the Vt., Ed. of 1880, p. 76, sec. 17. In instrument, or by a paper attached to Ohio, the word seal includes any char- it by an adhesive substance, or by a acter or mark intended for a seal, and scroll or other sign made with a pen." in all osfees when a seal is required by Genl. Laws of Oregon, Ed. of 1872, p. law, apd the kind is not specified, " a 258. 302 CORPORATE SEAL. § 94 seal, is in derogation of the common law theory of sealing contracts.^ But if the blank is stamped or printed by the printer by direction of the proper officers of the corpora- tion, and they adopt his act, and subsequently sign and issue the instrufnent, it becomes obligatory on the corpora- tion. This is substantially what is done when a scrivener prepares and affixes a seal to a deed which the grantor there- upon signs and delivers. ** In England, the making of an impression, upon which Sir Edward Coke in his definition of a seal lays so much stress, is no longer considered essential. A deed was sent from England to Melbourne under a commission to be executed and acknowledged by certain persons. When sent, the deed had pieces of green ribbon attached to the places where the seals should be, but no wax or other material to receive an impression ; and it was returned in the same condition, but in all other respects duly executed. The attestation clause recited that the deed was " signed, sealed, and delivered," and two of the commissioners certified that the persons signing it " acknowledged the same to be their respective acts and deeds." It was held that there was suf- ficient prima facie evidence that the deed was sealed. The comments of the several judges before whom the case was heard were as follows : Bovill, C. J., " To constitute a sealing, neither wax nor wafer, nor a piece of paper, nor even an impression, is necessary. There is something at- tached to this deed which may have been intended for a seal, but which from its nature is incapable of retaining an impression. Coupled with the attestation and the certifi- cate, I think we are justified in granting the application that the deed and other documents may be received and filed by the proper officer pursuant to the statute." Byles, J., " I am of the same opinion. The sealing of a deed need ' Bates V. Boston & N. Y. Cent., etc., Co., loo Mass. 444 ; Cruise Dig. tit, 32, R.R. Co., 10 Allen, 251. ch. 2, sec, 55. ' Royal Bank v. Junction, etc., R.R. § 95 CORPORATE SEAL. 303 not be by means of a seal. It may be done with the end of a ruler, or anything else. .Nor is it necessary that wax should be used. The attestation clause says that the deed was signed, sealed, and delivered by the several parties, and the certificate of the two special commissioners says that the deed was produced before them, and that the married women acknowledged the same to be their respective acts and deeds. I think there was prima facie evidence that the deed was sealed," Smith, J., " Something was done with the intention of sealing the deed in question. I con- cur in granting this application, on the ground that this attestation x's, prima facie evidence that the deed was sealed, and that there is no evidence to the contrary." ^ § 95. When corporate seal indispensable. — A corporation will not be bound by an instrument required to be under seal, unless its seal is affixed thereto ; the private seal of an agent authorized to contract in behalf of the corporation not being sufficient.* Conveyances of land executed by A. B. in behalf of the New England silk corporation, re- citing that A. B. acted for the corporation and as its treas- urer duly authorized to execute the conveyances, signed and sealed by him, with the words " Treasurer of the New England Silk Company" added to his name, and acknowl- edged by him as his acts and deeds, were held not to con- stitute them the deeds of the corporation. " He should have executed the deeds in the name of the company. He should also have affixed to them the seal of the company, and have acknowledged them to be the deeds of the com- pany." ^ A paper purported to be a conveyance from the president and directors of the Miami Exporting Company. It was executed by C. S. as president in his own name and > In re Sandilands L. R. C. P. 411. Real Property, sees. 703, 705 ; 4 Kent " State V. AUis, 18 Ark. 269 ; Frend Com. 3d Ed. 451 ; Stinchfield v. Little, V. Dennett, 27 L. J. C. P. 314. i Greenlf. 231 ; Savings Bank v. Davis, • Brinley v, Mann, 2 Cush. 337, per 8 Conn. 191 ; 3 Stewart on Conveyanc- Metcalf, J., referring to i Crabb on ing, 189. 304 CORPORATE SEAL. § 96 under his own seal as president. It was held that as it was not executed by the president and directors under the seal of the corporation, it was not operative as a conveyance.'' A lease executed by the trustees of a town was held void for want of the corporate seal. " The mode of assenting to and authenticating acts of a corporate body which uses a seal, is to affix the seal with a declaration that it is the seal of the corporation, and to verify the act by the signa- tures of the president and secretary of the corporation." ^ But a corporation, as well as an individual, may adopt and use any seal, and, in sealing, it is not necessary to say " our common seal." ^ Thus, a corporation not having adopted any corporate seal by resolution, and not in fact having a seal previous to the execution of a mortgage, the trustees adopted the seal affixed opposite to the name of the president as the seal of the corporation for the time being, and it was held sufficient.* Where the records did not show that any seal bearing an impression was ever adopted by a vote of the corporation, it was held that the fact that the seal of a particular description had been an- nexed to three deeds of the corporation at different times, did not prove it to be the corporate seal to the exclusion of any other mode of ensealing an instrument.^ § 96. Proof of corporate seal. — The seal of a corporation does not prove its own authenticity, but evidence must be given that it is such in fact.^ Therefore, a seal purporting to be that of a foreign corporation is not admissible in evi- dence without proof that it is such seal ; nor can it be shown by comparison with a similar seal previously proved.^ The mere production in court of a diploma of ' Hatch V. Barr, i Ohio, 390. ' Stebbins v. Merritt, 10 Cush. 27. ' Kinzie v. Chicago, 2 Scam. 111. 187. See Sherman v. Fitch, 98 Mass. 59 ; ' Mill Dam Foundry v. Hovey, 2i Taylor v. Heggie, 83 N. C. 244. Pick. 417 ; Porter v. Androscoggin, * Den v. Vreelandt, 2 Halst. 352 ; etc., R.R. Co., 37 Me. 349. Jackson v. Pratt, 10 Johns. 381. * Baptist Soc. V. Clapp, i8 Barb. 35. ' Chew v. Keck, 4 Rawle, 163. In § 9^ CORPORATE SEAL. 305 doctor of medicine under the seal of an university is not of itself evidence that the party named in the diploma is enti- tled to such a degree. As an original act, it should be proved that the seal affixed is the seal of the university. If considered a copy, it should have been compared with the original by the witness who produces it.^ The court cannot say upon inspection that it is the seal of the corpo- ration, any more than it could say that the signature of the president was genuine upon a like inspection.' The officer or agent who signs a deed in the name of the corporation and affixes the seal is the party executing the deed. He stands also in the character of a subscribing witness, and may be examined to prove that the seal affixed by him is the seal of the corporation.^ It is not, however, necessary to prove the seal of a corporation in the same manner as the seal of an individual ; that is, by producing a witness who saw the seal affixed to the identical instrument. If the corporation has adopted a peculiar seal, it may be proved to be the seal England judicial notice is taken of the tending the doctrine to other corpora- corporation of the city of London, tions more recent in their origin and Phillipps' Ev., loth Ed., 624, citing more limited in their authority." Den Woodmass v. Mason, i Esp. 53 ; v. Vreelandt, supra, per Kinsley, C. Moises V. Thornton, 8 Term Rep. J. In Rex v. Bathwick, 2 B. & Ad. 307 ; Collins v. Carnegie, I Ad. & Eli. 648, in which it was held that the seal 625 ; Cooch V. Goodman, 2 Q. B. 580. of a bishop to a certificate of ordination " London is a corporation of high an- was not to be regarded as his corporate tiquity. Its customs are confirmed by seal, it was intimated by Lord Ten- Magna Charta and several acts of TERDEN, C. J., that seals of corpora- Parliament. It is the great emporium tions being of a permanent nature, and of the kingdom ; the seat of all of the therefore capable of being proved at principal courts of justice. It has un- any distance of time from the date of der it several courts vested with great the instrument to which they were powers, and its authority and antiquity affixed, were not within the principle may well entitle it to the privilege of of the rule which dispensed with the having its seal admitted as evidence in proof of private seals affixed to instru- itself in all of the courts of the realm, ments thirty years old. Lord Kenyon may therefore be war- ' Moises v. Thornton, 8 Term Rep. ranted in saying that the common seal 303. of London proves itself, and we in our ' Mann v. Pentz, 2 Sandf. Ch. 257. practice have uniformly done the same. ' Lovett v. Steam Saw-Mill Assoc, But there is nothing in his opinio}^ ex- 6 Paige Ch. 54. VOL. I.— 20 306 CORPORATE SEAL^ § 96 of the corporation by any one who is acquainted with the device or motto.^ The mode of proof is to show that the seal was affixed as a corporate seal by some officer, agent, or other person duly authorized. When thus proved, the burden is on the party objecting, to show that the seal was used without proper authority.* If the corporate seal be affixed to an instrument and the signatures of the proper officers shown, courts will presume that the officers did not exceed their authority. The question as to the power of a corporation to do a thing is, of course, different, and in that case the affixing of the seal will be no evidence of au- thority. But when an act is within the power of a corpo- ration, and its existence is proved by an instrument clothed with all of the requisite formalities, there is no hardship in the rule which imposes on a person objecting to its valid- ity the necessity of showing that it was done without the assent of the body claimed to be represented,^ especially when the seal is shown to have been affixed by an officer intrusted by the corporation with the custody of it.* 'Foster v. Shaw, 7 Serg. & Rawie, 3 Houst. 288 ; Musser v. Johnson, 42 135; Leazure v. Hillegas, Ibid. 313; Mo. 74 ; Blackshire v. Iowa Homestead Tetmey v. Lumber Co., 43 N. H. 343. Co., 39 Iowa, 624 ; Morris v. Keil, 20 Where a lease purporting to have been Minn. 531 ; Evans v. Lee, 11 Nevada, attested by the mayor and common 194; Union Gold Mining Co. v. Rocky council was proved by the subscribing Mt. Nat. Bank, 2 Col. 226 ; Tenney v. witness without objection, it was held Lumber Co., supra. that there was evidence to go to the ^ St. Louis Public Schools v. Risley, jury, and no negative evidence having 28 Mo. 415; Levering v. Mayor, 7 been given, a verdict supporting the Hutnph. S53 ; Hopkins v. Gallatin lease was sustained. City Council v. Turnpike Co., 4 Id. 403 ; Adams v. Morehead, 2 Rich, 430, Creditors, 14 La. 454. ' Clarke v. Imperial Gas Light Co., * Lovett v. Steam Saw-Mill Assoc*, 4 B. & Ad. 315; Hill V. Manchester, sKpra ; Benedict v. Denton, Walkers, etc., Water Works Co., S Id. 866 ; Mich. Ch. 336 ; Bank of Vergennes v. Phillips V. Coffee, 17 111. 154; Smith v. Warren, 7 Hill, 91 ; Evans v. Lee, 11 Smith, 52 Id. 174; Sawyer v. Cox, 63 Nevada, 194; Reed v. Bradley, 17 III. Id. 130; Legett v. N. J. Manuf. & 321 ; Flint v. Clinton Co., 12 N. H. 430. Banking Co., Saxton Ch. 541 ; Steb- See Jackson v. Campbell, 5 Wend. 571. bins V. Merritt, 10 Cush. 27. See Sol- Where a witness testified that the sig- omon's Lodge v. MontmoUin, 58 Ga. natures to the release were respectively 547 ; Conine v. Junction, etc., R.R, Co., in the handwriting of the president and § 9^ CORPORATE SEAL. 307 The presumption of authority to affix to the instrument the seal of the corporation will not be overcome by the mere fact that no vote of the directors authorizing it is shown, since it is often the case that large powers are exer- cised by corporate officers with the tacit approval of the corporation.^ But where a corporate seal cannot be affixed to an instrument without express authority previously given, mere evidence that the seal was affixed by an officer of the corporation intrusted with the custody of its seal would not be sufficient proof of due execution.* So, in the absence of a common seal, or of proof of facts and circumstances from which authority to affix a seal may be inferred, the- right of officers to execute a conveyance can in general only be established by a reso- lution entered in the proper book of the corporation which should be in the custody of the secretary.^ On the other hand, if an agent of a corporation have authority to convey or mortgage its property, and he execute the con- veyance or mortgage, and affix thereto anything that the law recognizes as a seal when affixed by a natural person, it will presumptively be a good execution by the corpora- tion;* but this presumption may be rebutted, and parol evidence is admissible for that purpose.^ Where an instru- secretary of a corporation, and that Serg. & Rawie, 530, Tilghman, C. J., they resided out of the State, it was held that the court had an undoubted held prima facie evidence of the right to look beyond the seal and in- execution and seal. Josey v. Wil. & quire in what manner and by what au- Man. R.R. Co., 12 Rich. 134. The rule thority it was affixed. After supposing that an instrument executed under the a number of cases in which great injury corporate seal and signed by the proper might arise from the adoption of a con- officers If, prima facie evidence of due trary principle, he added that in all execution by the corporation, is as ap- these cases it was too clear to admit of plicable to an ecclesiastical corporation argument that the court would have as to any other. Bowen v. Irish Pres. done flagrant injustice if it had suffered Cong, of N. Y., 6 Bosw. 245. the seal to preclude an examination. ' Union Gold Mining Co. v. The ' Southern Cal. Colony Assoc, v. Bank, 2 Col. 226; Northern Cent. Bustamente, 52 Cal. 192. R.R. Co. v. Bastian, 15 Md. 494. ^Johnston v. Crawley, 25 Ga. 316. '^ Johnson v. Bush, 3 Barb. Ch. 207. " Koehler v. Black River Falls Iron In the case of St. Mary's Church, 7 Co., 2 Black. 715. . 308 CORPORATE SEAL. § 96 ment purporting to be a mortgage of a corporation was signed by the president and secretary, but neither of them had any knowledge of the way in which the mortgage be- came sealed, it was held that the burden of proof was on the mortgagee, to show the circumstances under which the instrument was in fact sealed, and that it was rightfully and properly done.^ When the mode of execution is fixed by law, it must, of course, be followed. A statute having provided that con- veyances must be executed pursuant to a vote of the cor- poration to be recited in the deed, an instrument with the corporate seal affixed, purporting to be the deed of the corporation, was signed by a person describing himself as chairman of the corporation, and all of the other corpora- tors also executed the deed, but no vote was recited therein, nor did any such vote appear on the records of the corpo- ration. It was held that the deed was not binding on the. corporation, notwithstanding a certificate of the oath of the chairman was annexed to the deed, that the seal was that of the corporation, and was affixed by its authority.^ When the management of the affairs of the corporation is given to a board of directors, the president or other of- ficer cannot do any act requiring the use of the corporate seal without being authorized by the directors.^ If the act of incorporation authorizes the company at any general or special meeting to order and dispose of the custody of its common seal, and its use and application, the company is not required to concur in each act of sealing, but a general authority from the company to an officer or agent to affix ' Koehler v. Black River Falls Iron that purpose," was held not to exclude Co., 2 Black. 715. the practice of a conveyance by the ^ Isham V. Bennington Iron Co., 19 corporation through one or more of its Vt. 230. The provision of the statute regular officers without such vote, of Minnesota, Genl. Sts., ch. 40, sec. 2, Morris v. Keil, 20 Minn. 531. that " every corporation authorized to ' Hoyt v. Thompson, 5 N. Y. (l hold real estate, may convey the same Seld.) 3,20. by an agent appointed by a vote for § 97 CORPORATE SEAL. 3O9 the seal will be sufficient.^ The affixing of the seal being merely a ministerial act, it may be done by a less number than is first competent to enter into the contract, provided it is by direction of a legal quorum. Whether or not the seal was in fact affixed by persons having no authority, is a question for the jury.** Officers or members of the body who are competent to affix the seal, are also competent to acknowledge the instrument.^ Where the question is, whether a seal has been forged, seal engravers may be called to show the difference between a genuine impression and that supposed to be false.* § 97. Form of executing instruments.— The precise language employed is not important, provided it is clearly made to appear that the act is done by the principal.^ The question in such cases is purely one of construction, the inquiry be- ing whether it is in fact the act of the principal.'' A deed was held to be that of the corporation which concluded in these words: "In testimony whereof said parties of the first part have caused these presents to be signed by their president, and their common seal to be hereunto affixed. S. S., President.'"'' The obligatory portion or body of a bond was in the name of a board of education and its suc- cessors in office. The concluding clause was as follows : " In witness whereof the president, inspectors, and secretary of said board of education have hereunto set their hands and seals, the day," etc. The signatures were of one per- ' Hill V. Manchester, etc., Water- of the principal, or the agent will be works Co., 5 B. & Ad. 866. liable. ' Berks & Dauphin Turnpike R. v. ' Haven v. Adams, 4 Allen, 80. In Myers, 6 Serg. & Rawle, 12. Brinley v. Mann, 2 Cush. 337, the lan- " Gordon v. Preston, i Watts, 385. guage was as follows : " In witness * I Phillipps' Ev., loth Ed. 780. whereof, I, (the treasurer,) in behalf of ' Wilks V. Back, 2 East. 142. said company, as their treasurer, have * It has been held immaterial whether hereunto set my hand and seal "; thus the instrument is signed A. B. for C. making it his deed sealed with his seal D., or C. D. by A. B. Roberts v. in behalf of tha principal, instead of the Button, 14 Vt. 195. But the contract deed of the principal sealed with their must appear to be executed in the name seal. 3IO CORPORATE SEAL. § 97 son, "president," four others "inspectors," and the attesta- tion by one as " secretary," a scroll being attached to each signature. The question was, whether, by the language of the ensealing clause, the bond was made the act of the in- dividuals signing it, or was the bond of the corporation. The tourt said : " We think the latter view must obtain ; it would have been more accurate, undoubtedly, to have used the corporate style of the defendant in the ensealing clause, but we think there is nothing in the language used which is inconsistent with the body of the bond purporting to be the bond of the board of education. No individual is named in the ensealing clause, but only certain officers by their titles, and these the officers of the board, who must or may sign the bond to constitute it the bond of the obligor."' An instrument in the name of the proprietors of a township which closed as follows, "In witness whereof, the said proprietors, by their committee aforesaid, who subscribe this deed in the name and behalf of said proprietors, have hereunto set their hands and seals," was held binding on the proprietors.^ A deed signed and sealed by a person as president and trustee of a company granted " all the estate, right, title, interest, claim, or demand of the party of the first part and of his constituents." The cove- nants of the deed were as follows : " The party of the first part, for himself, his constituents, etc., does covenant," etc. It was held that the intention of the parties, gathered from the whole deed, was, that it should pass whatever title was in the grantor, either personally or as trustee.^ Where two trustees composing a corporation signed their names separately to a lease, and affixed the corporate seal sepa- rately to each name, it was held a good execution of the lease.* An act of New York^ authorized the inhabitants 'Wiley V. Board of .Education, ii ' Vilas v. Reynolds, 6 Wise. 214. Minn. 371, per McMillan, J. ' Jackson v. Walsh, 3 Johns. 226. ' Decker v. Freeman, 3 Me. 338. ' Session Laws of 1 82 1, p. 1 73, sec. 12. § 97 CORPORATE SEAL. 3 1 1 of a town to elect three trustees whose duty it should be to take charge of the gospel lot of the town, and they and their successors were declared to be a corporation with power to take possession of the lot, and lease or sell it. It was held that a deed of the lot in which the grantors described themselves as the trustees of it, and then signed and sealed the conveyance in their individual names, vested the title in the grantee.^ And in a late case in North Carolina, where the officers of a corporation, there being no corporate seal, executed a conveyance of land with their individual seals annexed to each name, it was held a valid execution of the deed by the corporation.* There is, however, a numerous class of cases where one contracting under seal professedly on the part and in behalf of another, but signing his own name, and affixing his own seal, has been held personally liable ; upon the ground that if one executes a contract under seal on the part and in be- half of another, and does not intend to bind himself per- sonally, he must execute the contract in the name, and affix the seal of the principal.^ A deed was executed by C. in ' Dezeng v. Beekman, 2 Hill, 489. set to it the name and seal of the prin- 2 Taylor v. Heggie, 83 N. C. 244. cipal or constituent, and not merely his ^ When a contract is entered into, or own. In the year 161 4 it was resolved a deed executed in behalf of the gov- in Combe's Case, 9 Co. 76, that " when ernment by a duly appointed public any one has authority as an attorney to agent, and the fact so appears, not- do any act, he ought to do it in his name withstanding the agent may have afr who gives the authority ; and the at- fixed his own name and seal, it is the torney cannot do it in his own name, contract or deed of the government nor as his proper act, but in the name which alone is responsible, and not and as the act of him who gives the that of the agent. But the same rule authority." There, however, the act does not obtain in relation to the agent done by attorney was the surrender in or attorney of a private person or cor- court of certain copyhold lands, in do- poration. It seems to have been settled ing which, as is well known, neither or recognized as law in courts of justice signing nor sealing constituted any by judges distinguished for their wis- part of the ceremony. A case where dom and learning in successive genera- a question relating to the receiving of tions, and under different governments, such a surrender was agitated, came that in order to bind the principal or before the Court of King's Bench in constituent and make the instrument 1701, Parker v. Kett, i Ld. Raym. 658, his deed, the agent or attorney must in which Lord ChiefJusticeHOLT seems 3i: CORPORATE SEAL. §97 his own name, sealed with his seal, and acknowledged by him as his act. It was, however, stated in the deed that C. acted in behalf of the New England Silk Company, and that he was duly authorized to execute it as its treasurer. to have been dissatisfied with the rule in Combe's Case, and expresses the opinion that though the act were done in the attorney's own name, provided he had sufficient authority, it would be good without reciting his authority, though not so regular and formal. The rule, however, as laid down in Combe's Case is cited by Baron COMYN as good law. Com. Dig. Atty. c. 14, and Rol. 330, are quoted as supporting it. Upon the same authority it is stated that if an attorney has a power by writing to make leases, if he makes a lease in his own name it will be void. This latter principle was recognized as law in 1726 in Frontin v. Small, 2 Ld. Raym. 1418. In that case also the attorney in the body of the instrument for and in the name and as attorney of the principal demised, etc. ; but the court held that a person empowered by warrant of attorney to execute a deed for another, must execute it in the name of the principal. In conformity with this decision is the language of Lord C. J. Kenyon in 1795 in White V. Cuyler, 6 D. & E. 176, that in exe- cuting a deed for the principal under a power of attorney, the proper way is to sign in the name of the principal. At a still later period, in 1802, in Wilkes V. Back, 2 East. 142, the doctrine that an attorney must execute his power in the name of his principal, and not in his own name, was recognized by the whole court as sound law. The same rule seems to obtain also in the courts of law in this country. Thus, in Si- mond V. Catlin, 2 Caines, 66, Kent, C. J., not only admits the authority of Frontin v. Small, but adds that when a man acts in contemplation of law by the authority and in the name of an- other, if he does an act in his own name, although alleged to be done by him as attorney, it is void. So also in Fowler v. Shearer, 7 Mass. 14, PAR- SONS, C. J., in delivering the opinion of the court says that if an attorney has authority to convey lands, he must do it in the name of the principal and not of the attorney, otherwise the con- veyance is void. And it is not enough for the attorney in the conveyance to declare that he does it by attorney, for he being in the place of the principal, it must be the act and deed of the prin cipal done and executed by the attor- ney in his name. In Elwell v. Shaw, 16 Mass. 42, this subject was again brought before the court. There the deed in question commenced with a recital at full length of a power of at- torney from Jonathan to Joshua El- well ; and the attorney professing to act only by virtue of that power, pro- ceeded to convey, etc., and then con- cluded, " In testimony whereof I have hereunto set the name and seal of the said Jonathan," etc., but affixed his own name and seal. The court in de- livering the opinion said it was impos- sible that any one should doubt the intention of the parties. But, yielding to the weight of authority, it held that the deed was not that of Jonathan. The foregoing principles were reaf- firmed in Stinchfield v. Little, i Me. 231. But it was afterward provided by statute in Maine that deeds and con- tracts executed by an agent either in the name of his principal by the agent, or in the agent's name for his principal, should be deemed the deed or contract of his principal. St. of Me. of 1823, § 97 CORPORATE SEAL. 313 It was held not sufficient ; that the deed should have been executed in the name of the company, the seal of the com-- pany affixed to it, and the instrument acknowledged to be the deed of the company.^ Where a deed was signed by the names of Moulton and Hutchinson, with no addition, in the body of which they described themselves as "the proprietors and owners of all of the shares of the Woodstock Manufacturing Company," it was held not the deed of the corporation. The court said : " It is true that one who owned all of the shares might control the corporation, and so he could if he owned a majority of the shares. But he could in either case do it only by a vote at a meeting held in strict accordance with the statutes of the corporation. This in the present case was not attempted, and the deed is what its terms import, that of Moulton and Hutchinson in their private capacity as the owners of all of the shares in the corporation, for the same reason that any man who pro- fesses to convey the title to land or other property does it as owner of that property." * Three persons, who with six others were trustees of a religious society, signed a promis-. sory note individually, with a stamp or impression opposite their names in the form of a circle, within which were the words, " Second Presbyterian Church, Poughkeepsie, 1835 "; such a society having been incorporated under a general statute of that year. The note was held the personal under- taking of the signers.* While some of the decisions to the ch. 220; Rev. Sts. of Me., ch. 91, sec. be under seal. McDonoug-h v. Temple- 14. See Roberts v. Button, 14 Vt. man, i Har. & Johns. 1 56. A mort- 195 ; Bank of Middlebury v. Rutland, gage of personal property, purporting etc., R.R. Co., 30 Id. 159. . to have been given by a corporation, is ' Brinley v. Mann, 2 Cush. 337. good, notwithstanding it is signed by Warner v. Mower, 4 Vt. 385, was de- the president, and sealed with his cided upon a statute authorizing car- private seal. Sherman v. Fitch, 98 tain corporations to convey real estate Mass. 59. by a deed of their president, sealed '^ Wheelock v. Moulton, 15 Vt. 519. with his seal. An agent of a corpora- ' Farmers' & Manf. Bank v. Haight, tion contracting for the use of it, is not 3 Hill, 493. See Mitchell v. Union personally liable although the contract Life Ins. Co., 45 Me. 104. Mitchell v. ii4 CORPORATE SEAL. §98 effect that members have made themselves personally liable on contracts entered into in behalf of a corporation by ex- ecuting them in their own names could scarcely have held otherwise on any reasonable construction, other decisions seem clearly opposed to well-established principles of inter^ pretation.^ § 98. Recognition of agent's authority.— The power to make contracts, including conveyances of land belonging to a corporation, when not vested by the charter in persons named in it, must be exercised by the body at large through agents appointed and specially authorized by the corpora- tion. The appointment of an agent cannot always be shown by a written vote, and consequently it may be infer- red or implied from the adoption or recognition of his acts St. Andrew's Bay Land Co., 4 Fla. 200, was an action against the corpo- ration upon an instrument commenc- ing, "This memorandum of an agree- ment made and entered into between," etc. (naming the corporation and Mitchell), "witnesseth, that the said company has this day,'' etc. (setting out- the contract), "signed, sealed, and delivered, duplicates this nth day of May, 1841," signed, "St. Andrew's Bay Land Company," with the names of the committee, with a seal affixed to each, "N. H. Mitchell," (seal). The defendants pleaded that the members of the committee were not authorized to execute the instrument under the corporate seal. The court, per Ander- son, C. J., said : " The question is, can an action of covenant be sustained against the St. Andrew's Bay Land Company on the indenture here de- scribed ? . . . . The defendants certain- ly did not execute the indenture by themselves, and the only inquiry is, whether they executed the deed under seal by some other person. The dec- laration says the indenture was sealed with the respective seals of Long, Nickles, and Buck; and though it is alleged these persons were duly au- thorized by the land company^ such allegation can only mean that they were authorized to make the agree- ment, not to affix the seal of the com- pany ; and what is still more material, there is no allegation that the seal of the company was affixed, and no such seal is in fact affixed to the agreement which is appended to the declaration. The committee might have been em- powered to make the agreement, and having made it the company would be fully responsible for a breach of it to the plaintiff in some form of action, but surely not in an action of covenant which cannot be maintained except against a person who has executed a deed under seal. The private seals of the company are not the seals of the corporation, and consequently the plain- tiff is here suing the defendants in covenant, who, according to his own showing, have not executed a deed under seal." ' See remarks of Bell, C. J., in Tenney v. Lumber Co., 43 N. H. 343- § 98 CORPORATE SEAL. 315 by the corporation. The familiar principle that if a person with a full knowledge of the facts, ratifies the doings of another who has assumed to act in his behalf, he will be bound thereby as fully as if he had originally conferred the authority upon him, is as applicable to corporations as to individuals.^ Accordingly, although no resolution or order of a corporation can be produced authorizing one of its officers to execute a written contract in its behalf, and the seal used was his private seal, evidence may be introduced to show that he had authority, or that his act was afterward ratified by the corporation.^ Certain persons were author- ized, by a resolution passed by the board of trustees of an incorporated collegiate institute, to contract for furnishing the materials and doing the work requisite for the erection of an edifice. They accordingly entered into a written contract, under their respective hands and seals, for the brick, describing themselves and signing it as the " Build- ing Committee." The corporation having ratified the con- tract in fact by making several payments on it, it was held binding on the corporate body, notwithstanding the seals of the parties signing it were affixed thereto. Smith, J., said : " If this contract were by parol, no doubt, I think, would exist, or question be made, in respect to its being a valid and binding contract of the corporation. The fact that the defendants sealed it with their seals creates all the difficulty in the case. As a deed it is not the deed of the corporation confessedly. It is not signed by the appro- ■ Gordon v. Preston, i Watts, 385 ; to show its possession of land and the Com. Bank of Buffalo v. Kortright, 22 extent of its claim. " This,'' said Story, Wend. 348. J., in commenting on that decision, "Eureka Co. v. Bailey Co., 11 Wall. " must necessarily have proceeded upon 488. In Magill v. Kauffman, 4 Serg. the ground that the acts of corporate & Rawle, 317, it was held that the acts agents, and even of aggregate bodies and declarations of the trustees of a corporate, may be established inde- religious corporation while transacting pendent of written minutes of their its business, and also what passed at proceedings." See U. S. Bank v. Dan- meetings of the congregation when dridge, 12 Wheat. 64. assembled on business, might be proved 3l6 CORPORATE SEAL. § 98 priate officers of the corporation, and is not under the corporate seal. An action of covenant, according to the former names and forms of actions, clearly would not lie against the corporation. Strict principle, I think, would re- quire in the practical application of the rule that the agent must see to it, in making his contract, that he binds his principal ; that he binds such principal in the manner and form in which he contracts, so that the other party to the contract may have his appropriate remedy by action in form on the contract itself. But this rule has been departed from too long, and in too many cases, for any but a court of ultimate review and of final decision to return to first principles."^ In applying the principle of ratification to a particular case, care must be taken that other principles of the law are not violated. No sort of ratification can make good an act without the scope of the corporate authority. So where the charter, or a statute binding upon the corpo- ration, has committed a class of acts to particular officers or agents other than the general governing body, or where it has prescribed certain formalities as conditions to the performance of any description of corporate business, the proper functionaries must act and the designated forms be observed, and as a rule no act of recognition can supply a defect in these respects. ** Where the members of a com- ' Haight V. Sahler, 30 Barb. 218. Gale v. Nixon, 6 Cowen, 448 ; Hicks v. Where a committee of a municipal Hinde, 9 Barb. 529 ;. Stanton v. Camp, corporation entered into a written con- 4 Id. 276. The principle npon which tract with a party under the respective these cases rest is that the contract is hands and seals of the members of it, in fact authorized by the principal, and and the corporation recognized their that a seal is unnecessary to its validity, authority to make the contract, it was Lawrence v. Taylor, 5 Hill, 107. The held that the members of the committee subject was elaborately discussed by were not personally hable, but that an PAGE, J., in Worrall v. Munn, 5 N. Y. action of assumpsit would lie against (l Seld.) 229, and Randal) v. Van Vech- the corporation. Randall v. Van Vech- ten, cited and approved, ten, 19 Johns. 60. Approved in Dubois 'Peterson v. Mayor, etc., of N. Y., v. Del. & Hudson Canal Co., 4 Wend. 17 N. Y. 449. 288; Brockway v. Allen, 17 Id. 40; § 9^ CORPORATE SEAL. 317 mittee, which was appointed by the directors of an incor- porated turnpike company, entered into a written agree- ment, under their hands and seals, to pay a person for the construction of part of the turnpike, it was held that they were personally liable. The court said : " To the agree- ment the defendants have not, if they had legal authority, put the seal of the directors, or the seal of the corporation, but have put their own seals. It is therefore their deed ; and if it be not their covenant, it is not the covenant of any person or corporation ; and the apparent intent of the plaintiff to have his payments secured by a covenant will be defeated. The defendants do not describe them- selves as a committee of the corporation, but of the direct- ors appointed to contract. The corporation is therefore not bound by this contract, unless it gave the directors, its immediate agents, a power to substitute agents under them by whose contracts it should be bound. But this does not appear ; and we cannot presume it without some evidence. The directors are not a corporation, but the agents of one, and are answerable for their personal contracts as private persons. The contract before us is a contract of some individual persons for others ; and if they have bound themselves, they must look to their principals for indemnity."^ In Bank of Columbia v. Patterson,* a contract had been executed under seal between Patterson and a committee of the directors of the bank for the con- struction of a bank building. The work having been done, Patterson, instead of bringing his action against the com- mittee upon their express contract, brought indebitatus as- sumpsit against the bank. It was held, upon error to the ' Tippets V. Walker, 4 Mass. S95- and proper instruments for that pur- In Massachusetts, it has been held that pose ; and in case of a corporation, to bank directors may delegate authority affix the corporate seal to an instru- to a committee of their own number to ment requiring it. Burrill v. Nahant alienate or mortgage real estate ; that Bank, 2 Mete. 163. an authority to convey necessarily im- ' 7 Cranch, 299. plies aa authority to execute suitable 3l8 CORPORATE SEAL. § 99 circuit court, that though an action might have been sus- tained against the committee personally, yet, as the whole benefit resulted to the corporation, the jury might legally infer from the evidence in the case that the corporation had adopted the contract of the committee, and had voted to pay for the whole sum which should become due under the contract, and that the plaintiff had accepted its engagement. If directors of a corporation may transact business as such by a vote of the board at a meeting held in another State, and may authorize persons to execute a conveyance of real estate, yet it will be necessary to show that they were le- gally chosen directors, before any conveyance made by their direction can be considered legal.^ It is not necessary that authority to execute a mortgage in behalf of a corpo- ration should be given by a formal vote. Such an act by the president and general manager of the corporate business, with the knowledge and consent of the directors, or with their subsequent and long-continued acquiescence, may properly be regarded as the act of the corporation. Au- thority in the agent of a corporation may be inferred from the conduct of its officers, or from their knowledge and neglect to make objection, as well as in the case of indi- viduals.^ § 99. Legal effect of affixing seal. — The seal of a corpora- tion, when affixed to any deed or contract by proper au- ' Miller v. Ewer, 27 Me. 509. ation. Gordon v. Preston, I Watts, « Sherman v. Fitch, 98 Mass. 59, per 385. Acts or acquiescence do not, as Wells, J., referring to Emmons v. is sometimes carelessly said, ratify an Providence Hat Manf. Co., 12 Mass. unauthorized contract ; but in the more 237 ; Melledge v. Boston Iron Co., 5 guarded and philosophical language of Cush. 158; Lester v. Webb, i Allen, the better authorities, they authorize 34. A power to sell includes a power judges and juries to presume consent to mortgage ; and the words, " dispose or ratification. Certain conduct, ac- of," in the act of incorporation, leave cording to the usual experience of hu- no doubt of the existence of an intent man nature or of business, ordinarily to give the corporation power to part accompanies or indicates consent or with its real estate by any voluntary approval, act, without regard to its mode of oper- § lOO CORPORATE SEAL. 319 thority, is not distinguishable in its legal effect from that of an individual. The one is the seal of an artificial, the other of a natural person. It makes the instrument a spe- cialty, and affords the highest evidence of the deliberate assent of the party to the deed or contract thus executed.^ The principle that an instrument under seal imports a con- sideration, applies as strongly to a corporation acting within its powers as to an individual.^ If a promissory note made by a corporation be attested by its officers with the corpo- rate seal, which is not usual, the negotiable character of the note is not thereby destroyed.^ The doctrine that simply affixing a seal is tantamount to both signing and sealing, especially with respect to corporations, which, it was said, could only speak by their common seal, has become obso- lete.* Although the affixing of the seal to the deed of a corporation be sufficient to pass the estate without a formal delivery, if done with that intent, yet it will have no such effect when the order to affix the seal is accompanied with a direction to the agent of the corporation to retain the conveyance until accounts are adjusted with the purchaser.^ The validity of the seal, like any other question of obliga- tion or construction, belongs to the lex loci contractus, and not to the lex fori.^ § 100. Answer must be sealed. — A corporation aggregate answers under the seal of the corporation. The practice is in accordance with the ancient, though, as already stated, obsolete, rule of the common law, that a corporation, being an invisible body, acts and speaks only by its common seal. 'Clark V. Woolen Manf. Co., 15 Grand Junction R.R. Co., 100 Mass. Wend. 256 ; Benoist v. Carondolet, 8 445 ; 2 Bouv. Inst. 390. Mo. 250; Porter V. Androscoggin R.R. 'Bank v. R.R. Co., 5 Rich. 156. Co., 37 Me. 349. See Levering v. * Isham v. Bennington Iron Co., 19 Mayor, etc., of Memphis, 7 Humph. Vt. 230. 553. ' Derby Canal Co. v. Wilmot, 9 East. = Sturtevants v. City of Alton, 3 Mc- 360. Lean, 393 ; Royal Bank of Liverpool v. * Curtis v. Leavitt, 15 N. Y. 9 ; s. c. _ ' .- ' 17 Barb. 309, 320 CORPORATE SEAL. § ICO If the practice in this particular be departed from, and the use of the seal be dispensed with, it should be by leave of the court previously obtained for good cause. If the cor- poration have no common seal, any seal or impression in- dicative of a seal may be adopted and the answer verified in the usual form by the signature of an officer of the corporation, with his affidavit that the seal so affixed is the seal of the corporation, and was affixed by its au- thority.^ • Daniell's Ch. Pr. 146; Ransom v. (2 Beasley) 212 ; Bronson v. La Crosse Stonington Savings Bank, 13 N. J. Ch. R.R. Co., 2 Wall. 302. CHAPTER VIII. CORPORATE AGENTS. ) loi. Necessity of. 102. Method and power of appoint- ment. 103. Proof of appointment. 104. When an agency will be pre- sumed. 105. Security for good behavior. 106. Liability of sureties on official bond. 107. Release of surety. 108. Officers de facto. 109. Ratification of unauthorized acts. 1 10. Appointment of sub-agents. 111. General rule as to liability on written instruments. 112. Liability of principal on sealed instrument. 113. Liability of principal on simple contracts. 114. Liability of agent on written Instrument. 115. Liability of principal for fraud of agent. 116. Liability of agent for fraud com- mitted by him. 117. Liability of principal for misrep- resentations of agent. 118. Liability of agent for false rep- resentations. 119. 120. 121. 122. Liability of the corporation for the torts of its agents. Liability of corporation for neg- ligence of its agents. Liability of agents for negli- gence. Rule as to fiduciary relation. 123. Power of agent to bind corpo- ration in general. 124. General power of directors. 125. Limitation of power of direct- ors. 126. Power and disability of presi- dent. Power and disability of cashier or treasurer. Power and disability of teller of bank. Power and disability of secre- tary. 130. Power and disability of superinT tendent. Pay for services. Service of process. Who may bring action. Statute of limitations. Notice to agent. Acts and declarations of officers and agents. Agency not restricted to place. 127. 128. 129, 131- 132. 133- 134- I3S. 136. 137- § loi. Necessity of. — The power of a natural person who is not subject to any special disability to supervise and di- rect whatever appertains to his own private rights, interests, duties, and obligations, does not of course exist in the case of an artificial and intangible being like a corporation VOL. I. — 21 32 2 CORPORATE AGENTS. § I02 which in the conduct of its multifarious concerns can only act through the instrumentality of agents appointed and authorized for that purpose.^ The duties of officers of cor- porations, where those duties are prescribed by the corpo- ration itself, are in the nature of an agency." The officers of a joint stock company, incorporated for private purposes and to acquire property, and having the ordinary powers and privileges of other trading companies, possess no pri- vate franchise in their offices, but are mere ministerial agents of the company to conduct its business for its bene- fit and under its authority.^ A director of a corporation, although commonly called an officer, is perhaps not techni- cally to be so considered, but one of the agents of the cor- poration elected to manage its affairs or some of them. § 102. Method and power of appointment. — We have seen * that the appointment need not be by an instrument under seal. Certain agents may be specially designated by the charter or act of incorporation ; or the body of corporators be authorized to choose them ; or the power of appoint- ment be vested by the charter in a particular board.^ But J This self-evident proposition was and agents or the scope of their powers comprehensively stated by Davis, J., and duties, it must be presumed that in New York & New Haven R.R. Co. each person in becoming a member of V. Schuyler, 34 N. Y. 30, thus : " A the company impliedly consents that it corporation aggregate being an artifi- shall be represented by such officers cial body — an imaginary person of the and agents as are reasonably necessary law, so to speak, is, from its nature, for the transaction of its business, and incapable of doing any act except that they shall possess the powers and through its agents, to whom is given perform the duties ordinarily possessed by its fundamental law, or in pursuance and performed by such officers and of it, every power of action it is capable agents." of exercising or possessing." * Ante, ch. 7, sec. 91. * Despatch Line of Packets v. Bell- = It is laid down in the old books amy Manf. Co., 12 N. H. 205. that corporations by prescription, or 'Burr v. McDonald, 3 Gratt. 215. those created by letters patent, act only In Protection Life Ins. Co. v. Foote, 79 by deed. It is otherwise with respect 111. 361, the court in speaking of corpo- to corporations created by charter re- rations said : " In the absence of ex- quiring the ordinary business to be press provisions in their charters limit- done, not by the corporators as an en- ing the appointment of their officers tire body, but by their agents. Bun- § I03 CORPORATE AGENTS. 323 whatever mode of appointment is adopted the charter, if it give directions on the subject, must be strictly followed, though considerable latitude of construction is sometimes permitted where the means to be employed to accomplish the end in view seems to render such a construction proper. The language of the charter of a railroad company being, " the president and managers shall conduct the business of said company," etc., it was held that the purchase of loco- motives being part of the business of the company, the president and managers could appoint an agent with power to make such purchases, whether the agent was one of their number or a stranger, and to execute bills or notes of the company in payment of debts thus incurred.^ A provision in the charter that corporate powers shall be exercised by a board of directors, to consist of a specified number, will be held to import that the board of directors shall have the control and management of the affairs, and that subordinate agencies shall act by the authority and sanction of the board. And this authority and sanction may be gathered from a resolution or by-law of the board or from a course of business with the acquiescence of the directors.^ § 103. Proof of appointment.— As a general rule, the agency must be proved otherwise than by the mere acts of the combeTurnp.Co.v. McCarson,! Dev. & Wis. 590. The appointment of an Batt. 306. See opinion of Willard, J., agent must be accepted. Acceptance in Moss V. Averill, 10 N.Y. (6 Seld.) 44.9. need not be by direct and positive act. ' Bank of U. S. v. Dandridge, 12 It may be shown by conduct on the Wheat. 64 ; Olcott v. Tioga R.R. Co., part of the appointee indicating an in- 27 N. Y. 546 ; People's Mut. Ins. Co. tention to accept, and be imphed from V. Westcott, 14 Gray, 440 ; Johnston v. circumstances. Cameron v. Seaman, Jones, 23 N. J. Eq. (8 C. E. Green) 69 N. Y. 396 ; Lockwood v. Mechanics' 216 ; Macon, etc., R.R, Co. v. Vason, Nat. Bank, 9 R. I. 308 ; Blake v. Bay- 57 Ga. 314. ley, 16 Gray, 531. Where an appointee ' Hoyt V. Shelden, 3 Bosw. 267 ; to an office was present and recorded Kitchen v. Cape Girardeau, etc., R.R. the vote, it was held that his accept- Co., 59 Mo. 514. The power to have ance of the office would be presumed, a board of directors is inherent in all Delano v. Trustees of Smith Charities, corporations. Hurlbut v. Marshall, 62 138 Mass. 63. 324 CORPORATE AGENTS. § IO3 alleged agent before it can be assumed that such acts are binding on the principal ; and the acts of the assumed agent, unaccompanied by any evidence tending to show that the principal had knowledge of or assented to them, are not admissible upon the question of agency.^ The ap- pointment of agents should be proved when practicable by the records of the corporation. In an action against a cor- poration to recover money expended by the plaintiff while in the employment of the corporation, he having, as it was alleged, been appointed by a vote of the trustees, it was held that the records of the corporation being the best evi- dence, should be produced ; that the testimony of an officer to show what the votes were, or the authority conferred by them, could not be received ; that if the plaintiff desired to prove any facts which appeared of record, he should have notified the corporation to produce the books, and if they had not been produced, he might then have given parol evidence of the votes of the trustees.*' To establish a re- sulting trust in real estate in favor of a corporation, the authority of a committee of the corporation to act in its behalf can only be shown by its records.^ The books to be admissible in evidence must be first shown to be those of the corporation. If the secretary is living, the books ought to be in his custody ; but after his death any member of the corporation may have their rightful possession, and such possession from the necessity of the case would be sufficient to justify their introduction. All of the entries need not have been made by the secretary ; but such as have been made by any person acting for him in his neces- sary absence will be good.* Where the whole evidence consisted of the fact that the book was in the handwriting ' Talladega Ins. Co. v. Peacock, 67 ' Meth. Epis. Corp. v. Herrick, 25 Ala. 253. Me. 354. ' Haven v. N. H. Asylum, 13 N. H. * Smith v. Natchez Steamboat Co., i 532. See Owings v. Speed, 5 Wheat. How. Miss. 492. 714 ; Buncombe Tump. Co. v. McCar- son, supra. §. I03 CORPORATE AGENTS. 325 of one H., who appeared from the entries in the book, but in no other way, to have been secretary to the board, it was held that there was no legal proof of the authen- ticity of the book as that of the corporation, or that it had been regularly kept as such by the proper officer.^ A corporation relying upon its own records to establish its acts, with all of the evidence of correctness at its command, should be held to strict proof. Proving that the book was kept by the corporation as a record of its proceedings, would not be a sufficient authentication of its proceedings without further evidence to show that the entries were made by the proper officer. As a rule, the clerk or officer who made the entries should be called as a witness if he is living, and his handwriting be proved if he is dead.^ The inability to produce the books when called for, au- thorizes the introduction of secondary evidence ; such as general reputation, and acts of the agent.^ Although, who are the directors of a corporation cannot be proved by mere general reputation,* yet parol evidence is admissible of the choice of directors, and of their acts and doings, after the failure or refusal of the corporation to produce its books upon notice.^ It may, of course, be shown that an alleged ' Highland Turnpike Co. v. McKean, Johns. 109. An act having provided 10 Johns. 154. that the oath on an appeal from an ' Whitman v. Granite Church, 24 Me. award of arbitrators should be made 236; Stebbins v. Merrill, 10 Cush. 27 ; by one of certain officers of the corpo- Union Bank v. Knapp, 3 Pick. 196 ; ration named, it was held that it could Union Gold Mining Co. v. Rocky not be done by another person. Wash- Mountain Nat. Bank, 2 Col. 565. ington, etc., Tump. Co. v. Cullen, 8 Where the charter of an insurance Serg. & Rawle, 517. company provided that no losses should ^ Clerk v. Farmers' Woolen Manf. be settled or paid without the approv- Co., 15 Wend. 256, al of at least four of the directors, with « Litchfield Iron Co. v. Bennett, 7 the president or two assistants, or a Cowen, 234. plurality of them, the declarations of « Thayer v. Middlesex Mer. Fire Ins. the secretary of the company that the Co., 10 Pick. 326. Where the directors president and assistants had agreed to of an unincorporated joint stock com- accept the abandonment and pay the pany are elected annually, but it does loss, was held not binding on the com- not appear that the agent is to act pany. Beatty v. Marine Ins. Co., 2 for one year only, his appointment is 326 CORPORATE AGENTS. § IO4 director declined the appointment. A., on being asked to become a director of a bank about to be established, said he would consent to do so if he could be convinced that a certain portion of the capital had been subscribed, and that the persons named in the prospectus as directors had actually become such. He attended one meeting of the board, and signed a check with one of the directors. Upon receiving, a few days afterward, a letter of allotment of the shares necessary to qualify him, he at once sent it back with his refusal to act as director, for the reason that he was not satisfied upon the two points named by him. The secre- tary wrote in answer that A.'s resignation had been accept- ed. It was held that he was not liable as a contributor.^ The records of a corporation, verified by its clerk, by which it appears that at the annual meeting a person was elected a director for the ensuing year, and that he was afterward present, and made two motions which were put to vote and carried, zxq prima facie, but not conclusive evidence that he accepted the position.** § 104. When an agency will be presumed. — The law will infer authority as well from the general character of the acts which the agent has been permitted to do, as from a special written power.^ When it is sought to bind the cor- during pleasure ; and if a bond be given fourth Monday of March, the intervals by the agent to the directors, he and will not be precisely equal ; or, when- his sureties will be liable to an action ever the time for the annual meeting is thereon brought by them, they having legally changed, an official year may be ceased to be directors before a breach lengthened or shortened. Chelmsford of the condition of the bond. Ander- Co. v. Demarest, 7 Gray, i. son v. Longden, i Wheat. 85. When '/« re Peninsular, etc.. Bank, L. R. the statute provides that a treasurer 2, Eq. 435. shall be chosen annually, it is to be 'Blake v. Bayley, 16 Gray, 531. understood as meaning, not an exact 'Exchange Bank v. Monteath, 17 calendar year, but the official year of Barb. 171 ; Christian University v. such corporation as holds annual meet- Jordan, 29 Mo. 250 ; Williams v. Chris- ings, which ordinarily is the term from tian Female College, Ibid. 250; Hotch- one annual meeting to another. Where in v. Kent, 8 Mich. 526. The rule that the annual meeting is held on a given the apparent authority of an agent is day of a week or month, as on the the real authority, was laid down by § I04 CORPORATE AGENTS. 327 poration by an implied promise, the evidence must show- acts of the corporation, or acts of an agent authorized to make the promise, from which the promise may be infer- red.* If it be objected by the principal that his alleged agent acted without authority, the question to be deter- mined will be, what authority the person who dealt with the agent, and relied on his acts, had a right to suppose the agent possessed.* When a person has the actual charge and man- agement of the general business of the corporation, with the knowledge of the members and directors, it is evidence Lord Ellenborough, Ch. J., in Pick- ering V. Busk, 15 East. 38, where he says : " I cannot subscribe to the doc- trine that a broker's engagements are necessarily and in all cases limited to his actual authority, the reality of which is afterward to be tried by the fact. It is clear that he may bind his principal within the limits of the au- thority with which he has been ap- parently clothed by the principal in re- spect to the subject matter ; and there would be no safety in mercantile trans- actions if he could not." The same presumptions made in cases of private persons are applicable to corporations. Acts of corporations which presuppose the existence of other acts to make them legally operative, are presumptive proof of the latter. A vote of a corporation may be presumed from other acts, though there be no proof of such vote on the records of the corporation. For the neglect of the corporation to record its own doings cannot prejudice the rights of a party reljring upon the good faith of an actual vote. Such presump- tions operate either for or against a cor- poration ; the true question in such a case being, not which party is plaintiff or defendant, but whether the evidence is the best the nature of the case admits of, and leaves nothing behind in the possession or control of the party higher than secondary evidence. Bank of Ky. v. Schuylkill Bank, Parsons' Sel. Cas. 180. ' Mt. Sterling, etc., Co. v. Looney, i Mete. Ky. 550. See Moshannon Land, etc., Co. V. Sloan, 7 Atlantic Reporter, 102. The officers of a transfer com- pany, empowered to engage "inagener- al freight and transfer business, and such other business as may not be in- consistent therewith," have no right to sign the name of the company to a con- tract of suretyship in order to guarantee the credit of a third party, nor after- ward to sign a letter purporting to as- sume the payment of the amount stipu- lated in such contract. Lucas v. White Line Transfer Co., 30 North Western Reporter, 771. ' Perkins v. Washington Ins. Co., 4 Cowen, 645. Where an agent is ex- pressly authorized " to sign all notes and business paper of the company," a bona fide holder for value of notes taken before maturity can recover against the corporation, notwithstanding any want of authority of the agent to execute these particular notes for the purposes for which they were given ; and it is immaterial whether the agent's au- thority to give the notes for the com- pany is proved to have been expressly made, or is implied from the mode of signature. Bird v. Daggett, 97 Mass. 328 CORPORATE AGENTS. § 104 of his authority, without showing anf vote or other corpo- rate act constituting him the agent of the corporation.^ Although contracts will be implied against a corporation 494. While in an ordinary commer- cial partnership, any act of one of the partners with innocent parties, within the scope of the partnership business, will usually bind the firm, yet any con- tract made without the scope of the business, with a person who knows, or is bound to know, that it is beyond that scope, can never be held binding on the firm of its own force, or without some expressed or implied adoption. Hotch- kin V. Kent, 8 Mich. 526. It was well said by Maule, J., in Smith v. Hull Glass Co., 9 Eng. L. & Eq. 442, that where a corporation is carrying on business at a certain place by persons authorized by it, and acting within its apparent knowledge, the case does not differ from that of a transaction in the ordinary course of business at a shop or counting-house. A customer is not obliged to prove the authority of the shopman or clerk with whom he deals. If the persons are acting contrary to the authority of their employes, that is the fault of the latter. The rule that a private agent, acting in violation of specific instructions, yet within the scope of a general authority, may bind his principal, is not applicable to a hke act of an agent of a municipal corpo- ration. The latter is clothed with duties and powers specially defined and limit- ed by ordinances bearing the character and force of public laws, ignorance of which can be presumed in favor of no one dealing with him on matters within his official discretion. For this reason the law makes a distinction between the effect of the acts of an officer of the cor- poration, and those of an agent for a principal in common cases. In the latter, the extent of the authority is necessarily known only to the principal and agent ; while in the former, it is a matter of record in the body of the corporation, or as public law. Balto. v. Eshback, 18 Md. 282; Same v. Rey- nolds, 20 Id. I. ' Goodwin v. Union Screw Co., 34 N. H. 378. The general rule is that an agent may be appointed by parol, and a subsequent recognition of his acts is usually sufficient to bind the principal. Bank of U. S. v. Dandridge, 12 Wheat. 64 ; Yarborough v. Bank of England, 16 East. 6 ; Roe v. Dean of Rochester, 2 Camp, 96 ; Detroit v. Jackspn, I Doug. Mich. 106; Troy Turnpike & R.R. Co. V. McChesney, 21 Wend. 296 ; Warren v. Ocean Ins. Co., 16 Me. 439 ; Badger v. Bank of Cumber- land, 26 Id. 428 ; Bank of Lyons v. Demmon, Hill & Denio, 398 ; Burgess v. Pue, 2 Gill, 254 ; Elysville Manuf. Co. V. Okisko, I Md. Ch. 392. " Acts done by a corporation which presup- pose the existence of other acts to make them legally operative, are pre- sumptive proof of the latter. " Burgess V. Pue, supra. " The same presump- tions arise from the acts of corporations as from the acts of individuals ; conse- quently, the corporate assent and cor- porate acts not reduced to writing may be inferred from other facts and cir- cumstances without any violation of any known rule of evidence." Union Bank v. Ridgely, i Har. & Gill, 426 ; State Bank v. Comegys, 12 Ala. 772. Where the trustees of a corporation voted that " the treasurer be author- ized to sign all deeds and instruments for the legal conveyance of real estate under the direction of the committee of investment," it was held that such di- rection of the committee need not be in writing. Hutchins v. Byrnes, 9 Gray,367. § I04 CORPORATE AGENTS. 329 when it has accepted the benefit of what has been done by the agent in its name, and so has adopted the act, yet there must be authority in the agent to contract or an adoption of the contract, otherwise the corporation is not bound. On the question whether the consent to an assignment of a policy of insurance by the secretary of an insurance com- pany to enable the plaintiff to procure a loan by a mort- gage upon the insured property was binding upon the com- pany, the facts were that the agent of one Gridley called at the company's office upon the secretary who was regu- larly in attendance there to transact their business, and stated to him that Gridley proposed to loan to the com- pany a certain sum of money and take a mortgage upon the insured property, provided he could obtain the consent of the company to the assignment of the policy as secu- rity ; that the secretary indorsed the consent on the policy ; and that the loan was obtained and the mortgage and as- signment executed. The secretary testified that he was in the constant habit of giving consent to the assignment of policies for the same purpose, and always supposed he was authorized to do so, and the book of policies where memo- randa were entered of such as had been assigned showed that the consent was indorsed in every instance by the sec- retary. Counsel in their argument insisted that inasmuch as the board never by any formal act gave its sanction, and the by-laws required the consent in writing of the direct- ors to any conditional alienation by mortgage subsequent to the insurance, the consent in this case was unauthorized and void. It was held that the directors were bound to know the uniform course pursued by the sole agent in the transaction of their business at their office, especially where regular entries of his acts were made in their books, and they must be held responsible on the ground of a tacit as- sent and approval, unless they could show that by strict vigilance and scrutiny into their agent's acts they were un- 330 CORPORATE AGENTS. § IO4 able to ascertain the course he was pursuing. Johnson, J. : " All that Gridley can be supposed to have known in the case before us would be derived from the face of the policy. There he would only learn that the interest of the assured therein was not assignable without the consent of the company manifested in writing in pursuance of the by- laws and indorsed upon the policy. He accordingly re- paired to the office, where he had a right to suppose he could have the consent manifested and indorsed in the proper form. It is done according to the system and in the form adopted and uniformly pursued there by an officer having charge of the business and who supposed this pecul- iarly within his province. In the faith that all is right he advances his money and receives his mortgage and assign- ment. No objection is made to this or numerous similar transactions, and even after the fire payment is refused upon an entirely different ground. Clearly, as it seems to me, the company are not now at liberty to dispute or deny the authority of their secretary to indorse the consent in question."^ In an action against a manufacturing corpora- tion for the value of goods sold and delivered to it, it ap- peared that the contract for the goods was made by the president of the corporation, and that the articles bought were used by it in its business. A by-law of the defend- ant, which was offered in evidence, prescribed that no offi- cer, agent, or servant of the company should have power to bind it for the purchase of any article, or to contract any debt for the company exceeding twenty-five dollars in amount, without previous authority from the board of di- rectors. It was not shown that the plaintiff was aware of the existence of such a by-law prior to the sale and delivery of the articles by him. It was held that the validity of the sale could not be questioned.^ Where a promissory note ' Conover v. Mu. Ins, Co. of Albany, " Ten Broek v. Boiler Compound I N. Y. (i Const.) 290. Co., 20 Mo. App. 19. § I04 CORPORATE AGENTS. 331 purporting to have been made by a corporation was signed in the name of the general agent of the company by a clerk in its employ as agent, and it was proved that the note was given for borrowed money, that the clerk was in the habit of executing such notes with its knowledge, and that the borrowed money for which the note was given was used by the corporation in its business, it was held that there was sufficient evidence that the company executed the note to go to the jury.^ If officers of a corporation openly exer- cise a power which presupposes a delegated authority for the purpose, and other corporate acts show that the corpo- ration must have contemplated the legal evidence of such authority, the acts of such officers will be deemed rightful and the delegated authority be presumed.* Where the cor- ' Mead v. Keeler, 24 Barb. 20. See Corn Exchange Bank v. Cumberland Coal Co., I Bosw. 436. A deed of set- tlement by which the directors of a mining company were empowered to act, provided that the affairs and busi- ness of the company should be under the sole and entire control of the di- rectors, of whom there should not be less than five nor more than nine, and that three of them should form meet- ings of the directors, and should, for all purposes, be competent to act, it was held that although the directors had exclusive control with respect to the management of the company, they had no authority to borrow money. Bur- mester v. Norris, 21 L. J. N. S. 5, Exch. 43 ; 8 Eng. L. & Eq. 487. ' Bank of Columbia v. Patterson, 7 Cranch, 299. Authority to act in a class of cases may be conferred by a single resolution, as well as a distinct resolution for each case. Elwell v. Dodge, 33 Barb. 336, per Allen, J., referring to Rowland .v. Myer, 3 Comst. 290 ; Gillett v. Campbell, i Denio, 520 ; Bank of Vergennes v. Warren, 7 Hillt 91. The board of directors of a bank passed a resolution requiring the cash- ier so to arrange the duties of the offi- cers of the bank as to give to B., one of the officers, necessary assistance in his department. Under this resolution a written memorandum specifying the duties of each officer, signed by the officers, was left by the cashier on the table of the directors while they were in session, he at the same time inform- ing them of its contents and purpose. No dissent to this assignment of the duties of the officers was expressed by the board nor by any director, and the officers proceeded to discharge their duties in the manner set forth in the memorandum. It was held that it was to be inferred that the board of direct- ors assented to the arrangement. State Bank v. Comegys, 12 Ala. 772. Where an agent is intrusted with au- thority within a prescribed sphere of action, and is permitted from day to day, without any interference on the part of the principal, to exercise the authority, third parties will not be af- fected by an understanding between the principal and agent that every act must receive the express approval of 332 CORPORATE AGENTS. § 104 porate seal is proved to have been affixed to an instrument and signed and attested by the officers having the custody of it, whose duty it is, according to the usual course of business, to certify and attest the acts of the corporation, and such officers certify that the instrument is executed pursuant to a resolution of the board of directors, it will be presumed that they were authorized to perform the act ; and it is doubtful whether the corporation could, as against one who acted upon the faith of an instrument so attested, and without notice of any want of authority, or that the attestation was not in all respects true, be permitted to im- peach it by denying such authority.^ the principal. Medbury v. N. Y. & Erie R.R. Co., 26 Barb. 564; Beers v. Phoenix Glass Co., 14 Barb. 358. The secretary of a joint stock company is the servant of the directors of the company, who are presumed to have control over him as such ; and this presumption is not rebutted by the circumstance that the company has ceased doing business. Elmes v. Ogle, 15 Jur. 180; 2 Eng. L. & Eq. 379. The secretary of Company A, which was formed for the purpose of constructing railroads, gave an order by letter to Company B for 500 tons of rails at a certain price to be paid for by three months' acceptances from the date of delivery. The managing di- rector of Company B was also a di- rector of Company A. The rails were designed for the construction of a rail- road which the managing director of Company A, and not the company it- self, had undertaken to make. The rails were made, but not delivered, for the reason of the ordering of Company A to be wound up. It was held that the order was binding on Company A, although the managing director of Company B might have known the purpose for which the rails were to be used. In re Contract Corp., L. R. 8, Eq. 14. ' Com Exchange Bank v. Cumber- land Coal Co., supra. If no illegality is shown as against the party with whom the directors contract under the seal of the company, excess of authority is a matter only between the directors and the shareholders. Royal British Bank v. Turquand, 32 Eng. L. & Eq. 273 ; afH'd 36 lb. 142. Where it ap- pears, from the certificate of the officer taking the acknowledgment of an agree- ment to submit matters in difference to arbitration, that the agreement was executed and acknowledged by an agent appointed for that purpose, it will be presumed that such agent was duly authorized ; and if the other party make no objection, he will be deemed to have acquiesced in the appointment. Detroit v. Jackson, i Doug. Mich. 106. Estoppels in pais operate both for and against corporations ; and it may be laid down generally that a party will be concluded from denying his own acts or admissions which were expressly de- signed to influence the conduct of an- other, and did so influence it, and when such denial will operate to the injury of the latter. Selma & Tennessee R.R. § I04 CORPORATE AGENTS. 333 In the absence of evidence to the cohtrafy, it may be presumed that a trading corporation, which has power to make, accept, and indorse bills of exchange, has by its votes or by-laws intrusted the exercise of this power to some officer or agent. If a person acts as treasurer, and is so held out without protest by the company, it will be prcr sumed that he was duly elected and qualified from the fact of his openly acting as such.^ Where, therefore, it appeared that a manufacturing corporation had gone into operation, and that one of their number had held himself out as treas- urer and acted as such, it was held competent for the jury to presume, and that in the absence of all rebutting proof it would be their duty to find, that such person had been chosen treasurer, and as such had authority to accept a bill of exchange in behalf of the corporation.* Officers of a corporation having been expressly authorized to issue stock in exchange for certain indebtedness of the company, and done it for a long time, they also issued stock for indebt- edness not included in the express authority. Their acts Co. V. Tipton, 5 Ala. 787. " In cases than the grantor himself, to execute where the authority of an agent has and deliver a deed, must of necessity been wholly withdrawn, the neglect of be made out of proof aliunde, and a the duty to notify parties who have recital in the deed itself does not dis- dealt with him, estops the principal pense with the necessity. Watson v. from denying the continuance of the Watson, 10 Conn. Tj ; Howard v. Lee, agency, although no power in fact ex- 25 Id. i. It is sufficient, so far as the ists. And so a retiring partner is instrument is concerned, that it is in bound by the acts of his former firm if the name of a company, with its cor- he omit the duty of notice. In these porate name and seal affixed by the cases, for omitting an act which would president. The question whether the have prevented the injury, the truth, latter had authority in fact to do what to wit, the actual want of authority, is he did, is necessarily one to be inquired shut out by the negligence ; but the into aliunde. Hart v. Stone, 30 Id. 94. neglect does not cause the assumed ' Hoyt v. Shelden, 3 Bosw. 267, per agent to do the act which occasions WOODRUFF, J.; s. C. 3 Sandf. 416; i the injury; it only suffers an opportu- Seld. 355. nity to do it to exist, which in law is '^ Lester v. Webb, I Allen, 34 ; Fay equivalent." Davis, J., in N. Y. & New v. Noble, 12 Cush. i ; Williams v. Che- Haven R.R. Co. v. Schuyler, 34 N. Y. ney, 3 Gray, 215 ; Conover v. Mu. Ins. 30. The authority of a person, other Co., i Comst. 290. 334 CORPORATE AGENTS. § IO4 in relation to the latter, which had never been called in question by the corporation, were held binding upon the corporation and upon creditors accepting such stock.* Where the president of a corporation is in the habit of acting as its business agent, with its knowledge and without objection, making sales, settling accounts, and collecting debts, actual authority may be presumed. A person in debt to a corporation having given a due- bill for the amount, which went to the corporation in full settlement and satis- faction, payable to the president or order, it was held bind- ing on the corporation.^ The president of an insurance company, in communicating instructions to an agent authorizing him to receive premiums and agree to make insurances, was considered as acting by the authority of the corporation until the contrary was shown.'^ So a written power, signed by the president of an insurance company, authorizing the attorney of a bank to take necessary steps to obtain an order for a resale of mortgaged premises to protect the interest of the bank in such property, was deemed sufficient to authorize the attorney to present a petition, enter an appeal, and employ counsel for the corporation ; and it was held that if the president exceeded his authority in giving such power, the corporation should look to him for any damage it might have sustained thereby.* A rail- road company caused an advertisement, signed by the secre- tary of the company, offering for sale a quantity of old iron rails. R., who was acting for an iron broker, called on the secretary in relation to the iron, inquired the price, informed the secretary for whom he, R., was acting, and was referred to the president of the company, who, upon being told that the broker would charge one per cent, com- mission on the sale of the iron, assented thereto. The ' Narragansett Bank v. Atlantic Silk ' Dougherty v. Hunter, 54 Pa. St. Co., 3 Mete. 282. 380. See Brown V. Donnell, 49Me. 421. '' Lohman v. N. Y. & Erie R.R. Co., * Perkins v. Washington Ins. Co., 4 2 Sandf. 39. Cow. 645. § I04 CORPORATE AGENTS. 335 broker thereupon had an interview with the president, dis- closed to him the party wishing to buy the iron, and in- formed him that he, the broker, would charge one per cent, commission. A sale having been subsequently effected by the broker, and an action brought by him for his com- missions, it was held that the facts and circumstances afforded evidence from which the jury might find that the acting president was authorized to make the contract sued on.^ The bona fide holder of a promissory note, nego- tiated before maturity for full value in the usual course of business, is not chargeable with notice that the president of an insurance company, by its by-laws, is not authorized to indorse its notes.^ All loans and discounts made by the officers of a bank from its corporate funds must be presumed to have been made by the authority of the directors, unless they show that the funds of the bank constituting such loans have been improperly appropriated contrary to the instructions of the board of directors, or without authority.* The cash- ier or treasurer of a corporation is usually intrusted with the notes, securities, and other funds, and held out to the world as its general agent in the negotiation, management, and disposal of them. He need not, therefore, have any special authority to transfer and indorse negotiable securi- ties held by the corporation. When a corporation departs from this general course of business, it is incumbent on it to show that it has restricted its general fiscal agent in this respect, and that such restriction is known to those in the habit of dealing with the bank.* In the absence of express ' Am. Ins. Co. v. Oakley, 9 Paige Ch. Mason, 505 ; State v. Commercial Bank, 496. 6 Smed. & Marsh, 218 ; Stark Bank v. « Merchants' Bank v. McColI, 6 U. S. Pottery Co., 34 Vt. 144; Lester Bosw. 473 ; Nichols v. Frothingham, v. Webb, i Allen, 34. The ex officio 45 Me. 220. authority of a cashier to bind the bank 3 Bank Commrs. v. Bank of Buffalo, is only such as he is held out to the 6 Paige Ch. 497. public to possess according to the^gen- * Wild V. Bank of Passamaquoddy, 3 eral usage, practice, and course of bus- 336 CORPORATE AGENTS. ^ I05 provisions in the charter of a mutual insurance company, limiting the appointment of officers and agents, or the scope of their powers and duties, it must be presumed that each person, in becoming a member of the company, impliedly consents that it shall be represented by such officers and agents as are reasonably necessary for the transaction of its business, and that they shall possess the powers and perform the duties ordinarily possessed and performed by such offi- cers and agents.^ § 105. Security for good behavior. — Where the statute di- rects that a corporation shall take a bond, without pre- scribing its form, it may be taken in the name of the indi- vidual members. A formal vote is not necessary to prove either the acceptance or approval by the directors of a bank of the cashier's bond ; but both may be presumed from cir- cumstances.'' Parol evidence was held admissible that soon after the cashier was appointed, he presented his bond, which was laid before the board of directors at their meet- ing, and that they expressed themselves satisfied.^ Shaw, C. J., remarked that there was a distinction between an act which would amount to an acceptance of the bond on the part of the corporation, and the approval of it by the di- rectors ; that if the bond was executed and delivered in the mode required by law to give it effect, it might be deemed the deed of the principal and sureties, although it was never approved by the directors ; that the directors might be chargeable with neglect of duty to the stockholders, in not being more vigilant in obtaining a satisfactory bond, and in complying with the by-laws in that regard, and yet the iness of such institutions, and his acts ' Protection Life Ins. Co. v. Foote, within the scope of such usage, prac- 79 111. 361. tice, and course of business, bind the ' Dedham Bank v. Chickering, 3 bank in favor of third persons who Pick. 335 ; Bank of U. S. v. Dandridge, have no knowledge to the contrary. 12 Wheat. 64. Story on Agency, sec. 114. ' Amherst Bank v. Root, 2 Mete. 522. § I05 CORPORATE AGENTS. 337 parties to the obligation not be allowed to avail themselves of that objection to avoid their obligation. A cashier's bond is not void as against the policy of the law, because three of the board of directors, whose duty it was to examine and approve his bond, were thenfselves his sureties.^ A cashier's bond is not void because he neglect- ed to be sworn according to law before he entered on the duties of his office.* The condition of an official bond, that the obligor shall well and faithfully perform his duties, has reference to his honesty, and not to his ability.^ Such a bond binds him to a responsibility for reasonable and competent skill, and due and ordinary diligence in the performance of his office ; and an allegation that he has received moneys for which he has not accounted, is a sufficient assignment of a breach of the bond.* Where the bond of the cashier of a bank contained a condition that " said H. should well and truly perform all the duties of his office according to law and the by-laws of the institution during the term of his continu- ance in office ; and that he should also carefully preserve all money, books, papers, etc., belonging to said bank, and not at any time, directly or indirectly, make known in any way to any person or persons, except the president and directors of said bank, any secrets, or other words that might dis- cover the situation or state of the funds or credits of the said bank," it was held that although this condition was not in the precise language employed in the act, yet that the vari- ■ Ibid. Shaw, C. J. : " This excep- sufficiency as sureties. But, whether tion certainly comes with a very bad right or wrong, it is impossible to per- grace from those directors who thus ceive how the obligors, either such di- became sureties. It sets up the dere- rectors themselves, or their co-obligors, liction of their duty as directors, to can avail themselves of this circum- avoid their obligation as contractors, stance to avoid their obligation." It may have been in very bad taste, it ' State Bank v. Chetwood, 3 Halst. i. may have been very indiscreet and ill- * Union Bank v. Clossey, 10 Johns, judged, to put themselves in a situation 271 ; S. C. 11 lb. 182. to express an opinion on their own * Am. Bank v. Adams, 12 Pick. 303. VOL. I.— 22 338 CORPORATE AGENTS. § IO5 ance was not such as to invalidate the bond.* The condition of a bond given by a treasurer of a manufacturing company was, that he should faithfully discharge his duties for the term during which he had been elected, and for and during such further time as he might continue therein by re-elec- tion or otherwise. It was held that the words applied to a continuous holding of the office, and did not embrace a case of resumption of the office after having ceased to hold it, and after another person had discharged its duties upon an election and qualification t'herefor by giving an official bond.® So, where the treasurer of a railroad company enters into a bond to secure the faithful discharge of the duties of the office while he continues therein, " during the present year, and for such further periods as he may from time to time be elected to said office," it is implied that the elections are to be continuous, and that at the expira- tion of each year the bond only extends to a reasonable time beyond the year sufficient to elect and qualify a new treasurer, although he continues to act as treasurer after a failure to re-elect him at a regular meeting, and he is re- elected at the next regular meeting thereafter.* But it was held that a bond given by a treasurer of a manufacturing company, although in general terms, and with the condi- tion that " if, during his continuance in office, he shall faithfully perform," etc., did not bind the sureties beyond the period of his first election and the qualification of his successor, the office being by statute an annual one ; that his re-election from time to time did not charge the sureties, and that the provision of the statute that the treasurer, when elected, " shall hold his office until another is chosen and qualified in his stead," did not extend the liability to sub- ' Bank of Carlisle v. Hopkins, i T. ' Lexington, etc., R.R. Co. v. Elwell, B. Mon. 245. 8 Allen, 371 ; Frankfort Bank v. John- ' Middlesex Manf. Co. v. Lawrence, i son, 23 Me. 322. See Bruce v. U. S., 17 Allen, 339. How. 437. § I05 CORPORATE AGENTS. 339 sequent elections of the same person.^ In the year 1855, S. was elected treasurer of an association to fill a vacancy, and gave his bond for the faithful discharge of his duties. On this bond judgment was entered in pursuance of a warrant of attorney. The office was annual, and S. was re- elected annually uatil the year i860, but never gave another bond. He was in no default until i860, when he died in- debted to the association as treasurer, which indebtedness the association claimed was a lien under the judgment upon his real estate. It was held that the condition of the bond was to be confined to the period of appointment or election for which the bond was given, and that the judgment stood as security for the liability of S., incurred during such period.^ The objection that the capital of a bank having been enlarged by statute, and a corresponding enlargement of the duties of cashier created, the bond previously given by him was not binding, was held not tenable, the sphere of his duties being the same, although the subject matter of his charge had been increased, which was no more than what happened from day to day from fluctuations in the amount of deposits.^ 1 Chelmsford Co. v. Demarest, ^ appointment, then the ofRcial bond, if Gray, i. nothing appear to the contrary, is pre- ^ Manufacturers', etc., Loan Co. v. sumed to be intended to be confined to Odd Fellows' Hall Assoc, 48 Pa. St. the particular term ; and if the officer * 446, referring to Lord Arlington v. be reappointed, there must be a new Merrick, 2 Saund. 41 1 ; Liverpool bond. But when an office is held at Waterworks v. Atkinson, 6 East. 507 ; the will of those who make the appoint- Barker v. Parker, i Taunt. 295 ; Peppin ment, and is not limited to any certain V. Cooper, 2 B. & A. 431 ; Com. v. term, then the bond is presumed to be Boynton, 4 Dall. 282 ; Com. v. West, i intended, if nothing appear to the con- Rawle, 31 ; Com. v. Reitzell, 9 Watts trary, to cover all the time the person & Serg. 109. In an early case in New appointed shall continue in office under Hampshire, the court, per RICHARD- the appointment." Exeter Bank v. SON, C. J., laid down the following as Rogers, 7 N. H. 21. the correct rule of law : " When the ' Bank of Wilmington, etc., v. Wol- term of office is limited to a particular laston, 3 Har. Del. 90. An entry in the period, as a year, or five years, and the books of the corporation of a resolution person appointed cannot continue in of certain directors, not a sufficient office for a longer period without a new number to constitute a board, that the 340 CORPORATE AGENTS. § Io6 § io6. Liability of sureties on official bond. — The liability of a surety can only attach whilst the agent is employed in the discharge of duties which the charter gives the corpo- rate body the right to impose.* When the treasurer of a corporation is required to be elected annually, and to hold his office until another treasurer is chosen and qualified, the law will presume that the sureties on his bond bind them- selves accordingly, unless words are inserted in the bond clearly indicating the contrary.^ If the corporation fail to elect a treasurer annually, or do not require him to give a bond within a reasonable time after he has signified his ac- ceptance of his election, and especially if it permits him to serve not only during that year, but for succeeding years, without giving a bond, such a course cannot enlarge or vary the rights and liabilities of his sureties, who have be- come responsible for his conduct in discharging the duties of an annual office.' The bond given by a cashier provided that he should account for all notes, drafts, and money which had come into his possession prior as well as subse- quent to the date of the bond. It was held that, although name of one of the obligors in the duties and in fraud of the rights and in- cashier's official bond be stricken out, terests of the stockholders of a bank, provided the others consented thereto, will justify the cashier in violating his does not show that the other obligors official bond well and truly to execute " consented to the alteration of the bond ; the duties of his office. Minor v. Me- but that the bank was then in posses- ehanics' Bank, i Pet. 46. sion of the bond without alteration. ' Blair v. Perpetual Ins. Co., 10 Mo. Barrington v.,Bank of Washington, 14 559. An increase of the capital stock Serg. & Rawle, 405. M., having been of the corporation will discharge the appointed an agent of an unincorpo- sureties on the cashier's bond. Gro- rated joint stock company, gave to the eers' Bank v. Kingman, 16 Gray, 473. directors of the company for the time But if the position and nature of the being his bond, with sureties for the duties remain the same, and the only faithful discharge of his duties. It was change is that the duties and compen- held that the obligees might maintain sation are increased in amount, such an action for a breach of the condition increase is within the bond. Eastern of the bond occurring after they ceased R.R. Co. v. Loring, 138 Mass. 381. to be directors. Anderson v. Longden, ' Hassell v. Long, 2 M. & S. 363. I Wheat. 85. An act or vote of the » Chelmsford Co. v. Demarest, 7 board of directors, in violation of their Gray, i. § I06 CORPORATE AGENTS. 341 the agents of the bank knew when the bond was given, that bonds of preceding years had not been taken, or could not be found, they were not bound to communicate the fact to the sureties, unless they also knew there was a de- ficiency or defalcation on the part of the cashier ; that the condition of the bond did not extend to the keeping of the books of the bank, or the cashier's neglect or omission in that respect at any time prior to its date, and that the di^ rectors and agents of the bank were not bound to communi- cate the information they had on the subject ; and that the misconduct of the directors previous to the date of the bond, though it might render them liable to the stockhold- ers, was no defense to a suit on the bond.^ A person en- tered into a bond with sureties to the Bank of the United States for the faithful performance of the duties of cashier of the office of discount and deposit of the bank at Mid- dletown, Connecticut, for and during the term he should hold the office of cashier. The bank, learning that he had embezzled its funds, on the 27th of October adopted a res- olution suspending him from office until the further pleas- ure of the board, and the president of the office at Middle- town was authorized and requested to receive into his custody from the cashier "the cash, bills discounted, books, papers, arid other property in said office, and to take such measures for having the duties of cashier temporarily dis- charged, as he may deem expedient." This resolution was received by mail by the president of the office at Middle- town, Sunday morning, October 29th, but not communi- cated to the cashier until the afternoon of the 30th. It was held that the suspension did not take effect until the cashier was notified of it, and that the sureties on his bond continued liable to that time, though, if the resolution had been one of removal, instead of suspension from ofifioe, the sureties would have been discharged from the time of its passage.^ 1 Franklin Bank v. Stevens, 39 He. ^ Bank of U. S. v. Magill, i Paine C. 532. C. 561, affi'd 12 Wheat. 511. 342 CORPORATE AGENTS. § Io6 Previous to the reappointment of a casiiier of a bank, he had appropriated money of the bank to his own use, and subsequently, before an investigation into the condition of the bank by the directors, he borrowed funds, which he deposited in the bank, thus concealing hisdefalcations, and, after such investigation, drew out the money he had bor- rowed, and returned it. It was held a breach of the con- dition of the bond given by the cashier with surety for his good behavior.^ The defendant entered into a bond as surety for the faithful performance by C. of his duty as clerk to a bank. C, having been sent by the manager of the bank, at the request of a customer, to his residence, several miles distant from the bank, in order to receive a large sum of money, to be placed to the customer's account, on his way back lost it. It was held that the money was received by C. in the course of his employment as clerk to the bank ; that the defendant was liable as surety, notwith- standing the finding of the jury that it was not the custom for bankers in that part of the country to send for their customers' money in the manner adopted, and that the loss of the mouQy 'wSiS prima facie evidence of gross negligence on the part of C* Where two railroad companies were amalgamated by an act of Parliament, which provided that all the securities of the old company were to be vested in the new, it was held that a surety on a bond entered into to one of the companies before amalgamation, was liable for breaches committed afterward.^ The sureties are not discharged in consequence of the adoption of a by-law ' Ingraham v. Marine Bank, 13 Mass. bond of the treasurer of a railroad com- 207. pany are chargeable with the sums in- * Melville v. Dodge, 6 M. G. & S. dorsed as interest paid upon the notes 450. of the treasurer running to the com- 2 Eastern Union R.R. Co. v. Coch- pany, the indorsements thus made fur- rane, 17 Jur. 1 103 ; 23 L. J. N. S. nishing sufficient evidence to create Exch. 61 ; 24 Eng. L. & Eq. 495 ; S. P. such liability without further proof of London & Brighton R.R. Co. V. Good- actual payments of money. Lexingfton, win, 3 Exch. 320. The sureties on the etc., R.R. Co. v. Elwell, S Allen, 371. § I07 CORPORATE AGENTS. 343 changing the time for holding the annual meeting, nor by- reason of a change in the mode of conducting the business of the corporation after the termination of a lease of its property.^ § 107. Release of surety. — A change in the contract in any material part, without the consent of the surety, will dis- charge him from his obligation.** In January, 1851, the defendant and others severally entered into a bond to a railroad company, the condition of which was that the company having agreed to appoint L. as its coal agent, to sell coal for the company, at a salary of ;;^ioo per year, upon his finding sureties for his duly accounting, and his honest conduct during the time of his continuance in such coal agency ; if L. should from time to time and at all times duly account and pay over the moneys received, the obligation was to be void : provided that each of the sureties should be liable for only £s'^> ^"^ should be at liberty to put an end to his liability on the bond on giving the rail- road company six months' written notice. L. thereupon entered upon his duties as coal agent, and continued in the same at the above-mentioned salary until May, 185 1, when it was agreed between him and the company that in- stead of the salary he should be paid a commission of 6d. per ton on all the coal for which he could get orders. L. subsequently discharged the same duties as before until the fall of 1852, receiving therefor the commission, which amounted to more than the salary. The defendant never gave any notice to determine his liability. L. failed to pay over to the company certain money received, and an action was brought by the company against the defendant as surety. It was held that the alteration in the mode of re- munerating L. changed the relation between him and the 1 Lexington, etc., R.R. Co. v. Elwell, U. S. v. Tillotson, i Paine C. C. 305 ; 8 Allen, 371. Commissioners v. Ross, 3 Binn. 520 ; ' Miller v. Stewart, 9 Wheat. 680 ; U. S. v. Hillegas, 3 Wash. C. C. 70. 344 CORPORATE AGENTS. § I07 company, and released the defendant from liability.^ Where the charter of a bank was extended without taking any new security from the cashier, it was held that his sureties could not be charged with any defalcation which took place after the expiration of the charter.* In contracts of suretyship, if there be any misrepresenta- tion or concealment in relation to any material part of the transaction to induce the surety to enter into the obligation, the contract will be void. Thus, if a principal, knowing that he had been cheated by an agent, should apply for security for the good conduct of the agent, and conceal such fact, and any one in ignorance of the same should be- come surety for the agent, the obligation would be void.* It is sometimes difficult to determine what will constitute a material part of a transaction in relation to which mis- representation or concealment will be deemed fraudulent. Of course, to be thus material, it must be some fact or circumstance immediately affecting the liability of the surety, and bearing directly upon the particular transaction to which the suretyship attaches.^ There is no exception to the rule that mere forbearance by the creditor to the principal debtor will not discharge the surety, in the case of the sureties of an officer charged with the receipt and dis- bursement of money ; and it is not the duty of the corpo- ration to dismiss the officer as soon as any default becomes known, and to give notice to his sureties, in order that they may take measures to secure themselves by proceeding against the principal.^ In an action against the surety on a bond conditioned for the faithful discharge of the duties of a relieving officer, the defendant proved that when the bond was executed there was a balance of ^206 due from ' Northwestern R.R. Co. v. Winray, Me. 532 ; Same v. Bank of Cooper, lb. 26 Eng. L. & Eq. 488. 542 ; S. C. 36 Me. 179. ' Thompson v. Young, 2 Ohio, 334. ^ Pittsburg, etc., R.R. Co. v. Shaeffer, * Maltby's Case, i Dow. 294. 59 Pa. St. 350. ■•See Franklin Bank v. Stevens, 39 § ro8 CORPORATE AGENTS. 345 the principal in respect to money which had been received by him. It was held that as the existence of that balance did not necessarily involve any imputation of misconduct on the part of the relieving officer, it was not a material fact, and that the non-communication of it to the surety did not release him.^ § io8. Officers de facto. — The acts of officers de facto are binding on the corporation^ and it need not be shown that they were regularly elected.** A corporation which has per- mitted certain persons to take charge of its property, seal, and records, and to act as its trustees, thereby holding them out to the public as such, is estoppfed from questioning what has been done by them within the scope of their apparent authority.^ The principle underlying the recognition of officers de facto and supporting the validity of their official acts is, that although they are wrongfully in office exercis- ing power legally appertaining to the rightful officers, yet their acts within the scope of official authority and duty must, for the protection and preservation of the rights and interests of third persons, be sustained.* Notwithstanding the president and managers of a Pennslyvania corporation, at the time of entering into a contract, were not residents or citizens of the State, it was held sufficient for the pur- pose of upholding the cotitract that they were officers de facto, or that the acts of the parties under the agreement amounted to evidence of ratification.^ Where a bank di- ' Guardians of Stokely Union v. election, however irregular, otherwise Strother, 22 L. T. 84 ; 24 Eng. L. & he is a mere usurper. Being sworn in Eq. 183. and acting, "do not, without an election, ' Cahill V. Kalanlazoo Mu. Ins. Co., constitute an officer Olcott V. Tioga R.R. Co-, 27 N. Y. latter were authorized or ratified by 546. An act provided that any rail- the company, the provisions of the act road company might at any time, by being intended for the protection of means of subscription to the capital the shareholders. Conn. Mu. Life Ins. stock of any other company or other- Co. v. Cleveland, etc., R.R. Co., 41 wise, aid such company in the con- Barb. 9. struction of its road for the purpose of " Merchants' Bank of Macon v. Cen- forming a connection of said last men- tral Bank of Ga., i Kelly Ga. 418 ; tioned road with the road owned by Owen v. Purdy, 12 Ohio St. 73; Ban- the company furnishing such aid, and gor, etc., R.R. Co. v. Smith, 47 Me. 34; that any two or more railroads, the Medomak Bank v. Curtis, 24 Id. 36 ; lines of which were connected, might Talladega Ins. Co. v. Landers, 43 Ala. enter into any arrangement for their 115; Taylor v. Agr., etc., Assoc, 68 Id. common benefit. A company having, 229; Scott v. Middletown, etc., R.R.Cc, pursuant to such an arrangement, guar- 86 N. Y. 200 ; Grape Sugar, etc., Manf. anteed the payment of the interest cou- Co. v. Small, 40 Md. 395 ; Pneumatic pons issued by another company, it GasCo. v. Berry,ii3 U. S. 322. See Gil- was held in an action against the guar- man, etc., R.R. Co. v. Kelly, 77 111. 426. § I09 CORPORATE AGENTS. 353 receives and appropriates the proceeds of a transaction done in his name and by his assumed authority, there exists the highest possible evidence of his approval. These rules are elementary, and are grounded on the simplest ideas of justice in the dealings of men. They are also as plainly applicable to corporate as to other transactions where the dealing is within the powers of the corporation. In such a case, no possible reason can be suggested why a corporate as well as a private principal is not bound by the dealings of its agent which it has approved, and the benefit of which it has received and appropriated But corporations themselves, like other principals, may act and be bound in any of the modes not opposed to the general rules of law applicable to such bodies. They may previously resolve ; they may subsequently acquiesce ; they may expressly rat- ify ; they may intentionally receive and appropriate the proceeds of an unauthorized transaction, and so put it out of their power to dispute its validity." * This could of course only be in relation to transactions which the corporation could lawfully become a party to, and not where the trans- actions were in violation of corporate rights and duties, such as would be void and impose no liability.* When the nature of the transaction is such as to allow it, the principal has an option to disaffirm the transaction and restore the benefits derived from it. But moneys expended and prop- erty applied by the agent in the faithful discharge of his duty, and for purposes within his authority, must be paid for by the principal.^ In an action against a municipal corporation to recover the price of a clock sold and deliv- ered to it, it was held not necessary to show a vote of the corporation accepting the clock, but that evidence was ad- missible that the wardens and burgesses had taken charge ' COMSTOCK, J., in Curtis v. Leavitt, ' Rider v. Union India Rubber Co., 15N. Y. 9. 5 Bosw. 85. . 'Miller v. Rutland & Washington R.R. Co., 36 Vt. 452. VOL. I.— 23 354 CORPORATE AGENTS. § IO9 of the clock, and caused it to be wound up and duly at- tended to from the time of delivery to the time of trial, a period of more than four years.^ The public advertising of fare and freight by the president of a railroad company presupposes a delegated authority from the company, and its acts in receiving and appropriating the tolls thus estab- lished, recognize the existence of such authority in him.* The treasurer of a ferry company entered into a contract to loan one of its ferry-boats for a certain sum per day, to be rechartered at the highest obtainable rate, returning to the company one-half of any excess received over a rate named. The boat w^as rechartered to the government at a higher price, which was paid, and the same entered on the books of the company. The evidence was held sufficient to go to the jury that the company ratified the contract of the treasurer.^ A contract was entered into under the corporate seal between a telegraph company and the plain- tiff by which he agreed to send all of his dispatches, and such others as he could influence, over its line, in consid- eration of the payment to him by it of a commission on ' Davidson v. Bridgeport, 8 Conn. 472. as to the time of holding meetings, was It was objected to the validity of a deed not material. Leavitt v. Yates, 4 Edw. of trust that the board of directors, at Ch. 1 34. which a resolution was adopted author- '' Hilliard v. Goold, 34 N. H. 230. izing the creation of the trust and the Authority of the treasurer of a corpo- execution of the deed, was not a regu- ration to accept drafts may be proved larly convened board according to the by showing that it was his practice, articles and by-laws of the association, with the assent of the board of direct- and that therefore the deed, though ors, to accept, and that the acceptance bearing the signature of the proper in question was recognized and treated officers, was not binding on the com- as that of the company. Although the pany. It was held that if there was a president could not confer the authority meeting of the board at which a quo- on the treasurer, his directions to that rum was present, and a resolution to officer are admissible in evidence as a the foregoing effect adopted, so long as part of the history of the transaction the meeting on that day was not ob- when proved to have been sanctioned jected to by any of the officers or di- by the board of directors. Partridge rectors, then or at a subsequent time, v. Badger, 25 Barb. 146. how it was convened, and whether » Brown v. Winnisimmet Co., 1 1 Al- held or not in pursuance of the by-laws len, 326. § I09 CORPORATE AGENTS. 355 charges for transmission not to exceed ^500 per year, and not to be less than ^300. Subsequently the chairman of the company agreed verbally with the plaintiff to pay him an additional fifty per cent, for other services in collecting public information, and transmitting by the company's telegraph. This agreement was entered on the minutes of the company, and the sum of ^302 paid thereon ; and it was found that the services rendered under it had pro- moted the interests of the company. It was held that the parol agreement was binding on the company.^ The prom- issory note of a corporation having been signed by its agent in the form customarily employed and approved by the corporation in similar cases, and the money for which it was given used by the corporation in its regular business, it was held a sufficient execution of the note by the corpo- ration to go to the jury.^ Where the president and treas- urer of a corporation bought certain property, for which ' Reuter v. Electric Telegraph Co., 37 Eng. L. & Eq. 189. The president and treasurer of a railroad company, in order to obtain gravel for the road, purchased in behalf of the company certain land and took a conveyance to themselves. They paid a small portion of the purchase money from the funds of the company, and gave the vendor their note for the balance. The com- pany paid the interest on the note for a year and a half, when the president and treasurer, by order of the company, sold enough of the land to pay the note, and leave in their hands a con- siderable balance. Upon a suit in equity against them to obtain in behalf of the company such balance, and the title to the land held by them, to provide for the payment of certain notes made by the company to aid in the construc- tion of its road, it was held the right and duty of the commissioners, as trus- tees and mortgagees, to sell the land to pay the notes, its purchase by the pres- ident and treasurer as agents of the company having been ratified by it. Church v. Sterling, 16 Conn. 388. A railroad company proposing to con- struct a branch line, a landowner with- drew his opposition to the bill intro- duced into Parliament for that purpose in consideration of a contract entered into with him by the agent of the com- pany to purchase at a specified rate per acre the land needed, and to pay a further sum for damages. Annexed to the contract was a map of the land to be taken. The project of making the branch line having been abandoned, and the land not taken, it was held that whether the agent of the company was or was not authorized to make the con- tract, as the company had acquiesced in and taken the benefit of it, it was binding on them. Stuart v. London & Northwestern R.R. Co., 16 Jur. 209 ; 10 Eng. L. & Eq. 57. ' Mead v. Keeler, 24 Barb. 20. 356 CORPORATE AGENTS. § I09 they gave several promissory notes in the corporate name, and the corporation afterward took possession of the prop- erty and used it, it was held that this constituted a ratifica- tion by the corporation, although the notes might have originally been given without authority.'' The cashier of a bank, with the knowledge and approval of the directors, but without express authority for that purpose, offered a large reward for the detection of thieves who had stolen money from the bank. It was held, that if the bank had notice of the offer, and did not object to it, ratification and assent must be presumed ; that it was not necessary to give notice to the directors when sitting in their official capacity, but that if they were personally cognizant of the offer made by the cashier, it was their duty to call a meeting of the board and disavow the act if they were unwilling that the bank should be bound by it.* The treasurer of a corpora- tion endeavored to get parties who had sold it coal to agree to take a company- note for the debt, which they declined to do, but agreed to take B.'s note, who was president of the company. B., when applied to by the treasurer to give his individual note for the demand, refused, but indorsed a blank note, signing as president. This the treasurer filled up v/ith B.'s name as payee, and erased the word " Prest." from his signature as indorser, and passed the note over to the vendors of the coal in payment for the debt due by the company to them, they having no knowledge of the erasure, and knowing that B. was president of the company. Held the note of the company.^ The directors of a bank having voted at a meeting that two of the members of the board should be a committee to sell and transfer any estate or property owned by the bank, the committee gave a mort- gage on its real estate to secure a judgment recovered against the bank on its bills, receiving from the mortgagee ' Moss V. Rossie Lead Mining Co., 5 ' Kelsey v. Nat. Bank, 69 Pa. St. 426. Hill, 137. » Sharpe v. Bellis, 61 Pa. St. 69. § log CORPORATE AGENTS. 357 at the same time a bond conditioned that he would not put those bills in circulation for twelve months ; and thereupon the cashier paid the costs of the creditor's suit as part of the adjustment. It was held that the evidence showed a ratification by the board of the acts of the committee.^ A corporation was authorized to make by-laws for the reg- ulation of the society, and to choose such officers as might be thought expedient. The by-laws provided for the elec- tion of a treasurer and board of trustees, prescribing their duties, and they were required " to manage the finances and property of the society, and to settle and exhibit the state of the treasury annually." Subsequently, the society au- thorized the trustees to " proceed immediately in appropri- ating the funds of the society in erecting a suitable edifice," which they did, making personal contracts for the purpose, and when they had exhausted all the funds of the society, they found a deficiency, for which they were personally re- sponsible. This, in their annual exhibit of the state of the treasury, they reported as the debt of the society, and, at a meeting of the society held the same day, their report was accepted and ordered to be recorded. It was held, that this amounted to a ratification by the society of the acts of the trustees, and an assumption of the balance due.* The deed of settlement of a life insurance company provided that the corporate seal should not be affixed to policies, except upon the written order of three directors, countersigned by the manager, and that every policy should be signed by not less 1 Burrill v. Nahant Bank, 2 Mete, rectors, excepting one who was absent 163. The records of a corporation in Europe, and was approved by them, contained no vote of either the direct- It was held that it was the act of the ors or stockholders, authorizing a mort- corporation. Sherman v. Fitch, 98 gage on personal property belonging Mass. 59. It is competent for a com- to the corporation, which was given by mittee of a corporation to ratify the the president, who was the general acts of a party done by direction of a manager of the corporate business ; but minority of its members. Hanson v. the execution and delivery of the in- Dexter, 36 Me. 516. strument was known to all of the di- ' Haywardv.PilgrimSoc.,21 Pick.270. 358 CORPORATE AGENTS. §109 than three of the directors, and sealed with the common seal. The books containing minutes of the proceedings were to be open to the inspection of shareholders. A pol- icy was duly executed, but without any previous order. The company, in its negotiation with the insured, treated the policy as valid. It was held that it could not avoid liability on the policy on the ground that it was executed without authority.^ Where a committee of a corporation entered in its behalf into a submission of demands to ref- erees under the statute, they declaring themselves duly and legally authorized for that purpose, and the corporation attended before the referees, and submitted to them its proofs and allegations, without objecting to the submission, it was held that it would be presumed that the committee had due authority.^ It is sufficient proof of a ratification of the issuance by corporate officers of a certificate of stock, that at a regular meeting of the stockholders, a resolution was passed for payment in the bonds of the corporation of the interest on such certificate,^ If the principal adopts part of the act of its agent, with full knowledge of the circumstances, he thereby ratifies the whole, an acceptance of the benefits of the transaction im- posing an obligation to assume its burdens, and operating ' Prince of Wales Life Ass. Co. v. by their direction, debtors of the bank Harding, Ell. Bl. & Ell. 183. cannot object that the directors were " Proprs. of Fryeburg Canal v. Frye, not properly chosen. Cooper v. Curtis, 5 Me. 38. 30 Me. 488. Where an action was ' McLaughlin v. Detroit, etc., R.R. brought on promissory notes by the Co., 8 Mich. 100. With respect to direction of an advisory committee of a third persons, although the directors of corporation, who were de facto the a bank may not have been chosen agents of the company, and no other strictly according to the provisions of persons claimed to act in that capacity, the statute, or complied in all respects it was held not competent for the de- with the provisions of the law defining fendant to resist payment on the ground and regulating their duties in the ap- that the committee were not duly pointment of a cashier, yet if they were elected and authorized to act as such. chosen and recognized by the bank. Charitable Assoc, v. Baldwin, i Mete, and they appointed a cashier who acted 359. § I09 CORPORATE AGENTS. 359 to confirm it as a whole.^ But no ratification will estop the principal unless he has been made aware of all of the material facts and circumstances that would in any way in- fluence his mind or affect the value of the contract.^ Such ratification can only be presumed when the party from whom it is inferred must be supposed in all probability either to have known, or at least to have been in a position where he must have been negligent if he did not know, the acts of the agent to which his assent will be assumed in the absence of dissent.^ A railroad inspector removed the plaintiff from the cars because he had no ticket, did not pay his fare, and was drunk ; imprisoned him, took him be- fore a magistrate, and preferred a charge against him. There being nothing going to show that the fact that the plaintiff was in custody was known to the company, it was held that there was no evidence of ratification to go to the jury.* The execution of a mortgage of personal property in behalf of a corporation by its president and the general manager of its business, with the knowledge and concur- rence of all of the directors except one, who is absent in Europe, or with their subsequent and long-continued acqui- escence, may properly be regarded as the act of the corpo- ration ; and where the validity of the mortgage depends wholly upon its ratification after it is recorded, there need not be a new record, the ratification relating back.® A ' U. S. Rolling Stock Co. v. Atlantic, toward carrying out the scheme, and etc., R.R. Co., 34 Ohio St. 450. A the compulsory powers of the act had contract was entered into with the ceased. It was held that the company plaintiff for the benefit of a railroad had not adopted the agreement. Goo- company, not then, but afterward estab- day V. Colchester & Stone Valley R.R. lished, and the withdrawal of the plain- Co., 19 L. T. 334 ; 1 5 Eng. L. & Eq. 596. tiff's opposition, which was part of the * Oilman, etc., R.R. Co. v. Kelly, 77 contract, enabled the company to ob- 111. 426. tain its act of incorporation. But the ' Hotchin v. Kent, 8 Mich. 526. charter having been obtained, nothing < Eastern Counties v. Broom, 1 5 Jur. further was done. It did not distinctly 297 ; 2 Eng. L. & Eq. 406. See Roe appear that the railroad had been v. Birkenhead, 21 L.J. N. S. Exch. 9; abandoned ; but no money was paid, 7 Eng. L. & Eq. 546. no land taken, or any movement made ' Sherman v. Fitch, 98 Mass. 59. 360 CORPORATE AGENTS. § I09 principal actively or constructively chargeable with knowl- edge that his agent is in fact transcending his authority will be bound.^ A corporation will be bound by the acts of its agent if, either through inattention or otherwise, it permit him to pursue a particular line of conduct for a considerable period without objection.* Accordingly, where the directors of a bank allowed its cashier to conduct all of its business with- out interference for several years together, they were held to have thereby conferred upon him authority as to third persons to transact any business in behalf of the bank which its charter did not prohibit him from transacting.* Ratification from long silence is a question for the jury.* What constitutes a reasonable time within which the prin- cipal, after being informed of what has been done by the agent, must dissent therefrom, or he will be presumed to have ratified the acts of the agent, will in a great measure depend upon the particular circumstances of the case. Where the consequences of delay are, or may prove, in- jurious to the other contracting party, especially where large expenditures to the knowledge of the principal are being made on the faith of the validity of the contract, the 'Exchange Bank v. Monteith, 17 of any circumstance to charge the bank Barb. 171. A husband trusted his wife with notice that she was a married with certain money, which he directed woman, it had a right to open an ac- her to deposit in some bank, and she- count with h^r as a/^»«« jo/^, and to pay accordingly opened an account in her her checks.; and that as the husband, own name with a bank, and made de- by intrusting his wife with the money, posits from time to time. She gave had enabled her to commit the fraudi,. directions at the bank as to the man- tJje bss must fall upon him. Dacy v. ner in which the money standing to N. Y. Chemical Manf. Co., 2 Hall, 550. her credit was to be drawn out on her See Fulton Bank v. N. Y. & Sharon, checks, and she presented checks at Canal Co., 4 Paige Ch. 127. the bank from time to time until the " Beers v. Phoenix Glass Co., 14 Barb, whole amount was drawn out by her. 358 ; Caldwell v. Nat. Mohawk Valley The bank had no knowledge that she Bank, 64 Id, 333. was a married woman until after it had ^ City Bank v. Perkins, 4 Bosw. 420 j paid all the checks and closed her ac- affi'd 29 N. Y. 554. count. It was held th^t in the absence ■• First Nat.Bank v.Reed,36 Mich.2$3, § no CORPORATE AGENTS. 36 1 law requires prompt action on his part if he would avoid responsibility for the acts of the agent.^ In Smith v. Clay,* Lord Camden said : " A court of equity has always refused its aid to stale demands where a party has slept on his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive and does nothing. Laches and neg- lect are always discountenanced." When the adoption of any particular form or mode is necessary to confer the au- thority in the first instance, there can be no valid ratifica- tion except in the same manner.* § no. Appointment of sub-agents. — In all cases of dele- gated authority where the delegation indicates any personal trust or confidence reposed in the agent, and especially when such personal trust is implied by making the exercise and application of the power subject to the judgment or discretion of the agent, the authority is purely personal and incapable of being delegated to another unless a special power of substitution be added. The reason and policy of this rule apply to authority conferred by legislative act.* " It is quite clear," said the court in an early case in Massa- chusetts, " that where there is no assent of the principal, either express or implied, an agent or attorney cannot dele- gate his authority to a sub-agent so as to authorize him to bind the principal, especially in matters .which require any degref of judgment or discretion however small." ^ Mr. Kent ^ says : " An agent ordinarily, and without express 1 U. S. Rolling Stock Co. v. Atlantic, where a sub-agent appointed to buy etc., R.R. Co., supra. stock and sell goods for a trading com- ^ 3 Bro. C. C. 639, n. pany advertised himself as the agent of ' Despatch Line of Packets v. Bel- the company by the sign over the shop- lamy Manf. Co., 12N. H. 205. door, it viras held that although the ■• Lyon V. Jerome, 26 Wend. 485. company was not liable on promissory ' Wilde, J., in Brewster v. Hobart» notes made by him in its behalf, yet 15 Pick. 302. that it was Mable for purchases under • 2 Com., 9th Ed., 855, 856. But an implied recpgnition. of his acts^ 362 CORPORATE AGENTS. § I lO authority, or a fair presumption of one growing out of the particular transaction or the usage of trade, has not the power to employ a sub-agent to do the business without the knowledge or consent of his principal. The maxim is that delegatus non potest delegare, and the agency is gen- erally a personal trust and confidence which cannot be dele- gated ; for the principal employs the agent from the opin- ion which he has of his personal skill and integrity, and the latter has no right to turn his principal over to another of whom he knows nothing." Even although the general administration of the affairs of the corporation be intrusted to an agent, his authority to appoint sub-agents cannot be implied ; for a confidence is supposed to exist between principal and agent which is not communicated to sub-agents selected and appointed by the agent. It would not be safe to allow persons of this description to enter into written contracts binding the com- pany. It would be difficult to limit such transactions, and be unreasonable to commit the interests of the corporation to a multitude of inferior agents not appointed by it. It being the duty of the directors to make no calls for sub- scriptions until the interests of the corporation required it, to call for no greater instalments than might be needed, and to adjust the times of payment so as to cause as little inconvenience as possible to subscribers, it was held that as the proper determination of these various matters required the exercise of judgment and discretion in a greater or less degree, the directors could not delegate their power to the treasurer.^ Where the power to allot shares was conferred upon the directors, and a shareholder, who had been offered some reserved shares, accepted them conditionally, but the board of directors did not expressly assent to such condi- Emerson v. Providence Hat Manf. Co., Co. v. Chase, 56 N. H. 341. Read v. 12 Mass. 237. Memphis Gayoso Gas Co., 9 Heisk. ' Silver Hook Road v. Greene, 12 R. Tenn. 545. I. 164. See Farmers' Mu. Fire Ins. § no CORPORATE AGENTS. 363 tional acceptance, bitt resolved that the shares remaining undisposed of should be allotted at the discretion of two of the directors, and the manager afterward wrote to the shareholder that the shares he had accepted had been allot- ted to him, it was held, approving the decision of the vice- chancellor, that the board of directors could not delegate their power in respect to allotting shares.^ It was held that stockholders who were authorized to inquire into and determine as to the regularity of distribution of dividends, and to order the sums so paid to be refunded, could not delegate such power.^ And where there was no provision in the charter for a sale of shares for unpaid assessments thereon except by order of the directors, it was held that they could not delegate power to a committee to order such a sale.^ The by-laws of a corporation provided that there should be nine directors, a majority of whom should constitute a quorum for the transaction of business ; that the directors should exercise a general superintendence and control over the affairs of the corporation, should have power to sell its lands, and might direct and authorize the treasurer in all such cases to sign, and affix the seal of the corporation to the deeds. A power of attorney, executed by the treasurer of the corporation, and approved by a majority of the directors, authorized one R., among other things, to enter upon all the lots claimed by the corpora- ' In re Leeds Banking Co., L. R. i, that is silent, upon the principles of in- Ch. 561. terpretation and doctrines of the com- '' Gratz V. Read, 4 B. Mon. 178. mon law. But this latter source of ' York & Cumberland R.R. Co. v. power cannot control by implication Ritchie, 40 Me. 425. The corporate an express provision of the charter, or seal may be affixed by a less number of create an authority to do what is not directors than is required to constitute necessary to give effect to the intention a board if it be authorized by the of the legislature, or confer upon a par- board. Van Hook v. Somerville Manf. ticular member or officer the right to Co., I Halst. Ch. 137. The rights, au- do that which the act has made several thority, and mode of transacting the persons or a board of directors compe- business of a corporation do not de- tent to perform. Spyker v. Spence, 8 pend upon the common law, but upon Ala. 333. the act of incorporation, and where 364 CORPORATE AGENTS. § IIO tion when the conditions of the deeds had been violated, and to hold and improve the same, " or to lease the same to such persons, and for such times and rents and on such conditions as he may deem proper, or any part of said lots, or of said buildings." It was held that the foregoing attempted delegation of authority by the directors to R. was void.* The making of discounts by a bank being re- quired by the charter to be by the act of directors, it was held that it could not be committed to an agent of the board.' Where a committee, appointed by the directors of a turnpike company, entered into a contract with a person, under their hands and seals, to construct a portion of the turnpike, it was held that the contract was not binding on the corporation unless it gave the directors, its immediate agents, a power to substitute agents under them.* The charter of a railroad company provided that in case any subscriber of stockholder should neglect to pay any assess- ment on his shares for thirty days after such notice was given as should be prescribed by the by-laws of the com- pany, the directors rriight order the treasurer to sell such shares at public auction, and the delinquent subscriber be held accountable to the corporation for the balance if his shares should sell for less than the assessments due thereon. At a meeting of the directors it was voted that the presi- dent, together with the treasurer, be a committee to adopt such measures as should be most effective for collecting the arrearages of subscriptions due, and enforce the collection by sales of stock, or preliminary employment of an attorney to collect said dues, or in both ways, as the committee ' Gillis V.Bailey, 21 N.H.(i Post.) 149. uty, it was held that he could not ap- « Percy v. Millandon, 3 La. 364. point a deputy generally to discharge ' Tippets V. Walker, 4 Mass. 595. all of the ministerial duties of his office. Where the charter of a corporation Whether if the appointment had been provided that there should be a high to do some particular act, and the cor- steward, and imposed upon him various poration had allowed him to do it, that judicial and ministerial duties, but did would have been valid, guere. Rex v. not give him power to appoint a dep- Gravesend, a Barn. & Cross. 602. § no CORPORATE AGENTS. 365 should think proper. It was held that as no provision was made in the charter for a sale of shares for unpaid assess- ments, except under an order of the directors for that pur- pose, the directors could not legally delegate power to a committee to order such a sale, and that when the order was given by a vote of the directors, it should be absolute, and not in the alternative.^ The board of directors of a corporation does not stand in the same relation to the cor- porate body that a private agent holds toward his principal. Its power is in a very important sense original and undele- gated. The stockholders do not confer, neither can they revoke the power, which is derivative only in the sense that it is received from the State in the act of incorporation. The directors, convened as a board, are the primary posses- sors of all the power which the charter confers, and, like private principals, they may, in general, delegate to agents of their own appointment the performance of any acts which they themselves can perform.* Although the charter of a corporation provides that its powers shall be exercised by a board of twenty-three direct^ ors, the board may delegate its authority to subordinate agents, to committees, or to a quorum consisting of less than a majority of the whole number of directors.^ A clause in the act of incorporation whereby the company was authorized at any general or special meeting to order and dispose of the custody of the common seal and its use ' Elmer v. Fennel, 40 Me. 430. held that the corporation had an un- ' Hoyt V. Thompson, 19 N. Y. 207 ; doubted right to employ one of its Burrill v. Nahant Bank, 2 Mete. 163. members as agent, and that his corpo- In an action by an incorporated relig- rate interest did not disqualify him ious society to recover the piice of a from also being, within the meaning of pew, it was proved that one of the the statute of frauds, an agent of the members of the vestry had acted as purchaser. Stoddert v. Vestry of Port auctioneer in the sale of the pews, and Tobacco Parish, 2 Gill & Johns, had at the time made a memorandum 227. of the sale, containing the name of the ' Palmer v. Yates, 3 Sandf 137. See defendant as purchaser, and the price Leavitt v. Blatchford, 5 Barb. 9 ; s. C. at which he bid off the pew. It was 3 Comst. 19. 366 CORPORATE AGENTS. § 1 lO and application, was held to authorize it to make rules and regulations for the custody of the seal ; but did not require the concurrence of the company in each particular act of sealing, and that a bond to which the seal had been affixed by the company's clerk under a general authority of the directors was valid.^ The board of directors may authorize an agent to draw bills of exchange in behalf of the corpo- ration, when not forbidden by the charter, and such author- ity may be conferred by them without writing.* The di- . rectors of a trading company, a portion of whose business was to accept bills of exchange, and whose articles gave to the directors the most extensive powers of management, adopted a resolution authorizing the chairman to accept bills drawn on the company by L. upon L.'s depositing security to a specified amount. The chairman accordingly accepted the bills, and L. deposited some securities, but not nearly to the required amount. The directors by reso- lution affirmed the transaction without knowing that suffi- cient securities had not been deposited. It was held, sus- taining the decision of the Master of the Rolls, that the bills were binding on the company.*" A board of directors of a bank may delegate an authority to a committee of their own number to alienate or mortgage real estate, and an authority to convey necessarily implies an authority to ' Hill V. Manchester, etc., Water- whether it was assented to by them works Co., 5 Barn. & Ad. 866. with or without knowledge as to the * Preston v. Mo. & Pa. Lead Co., 51 securities which were taken, is, in my Mo. 43. opinion, quite immaterial. There was, ^Overend, ^;r/fl!r/^, L. R. 4, Ch. 460. at all events, a representation to the GlFFARD, L. J. : "I think it is quite public by the agents of the company, enough to put the case simply upon who were instructed to carry out this this, that the acceptance of the bills transaction, that everything was right- was a transaction plainly within the fully done ; and I am of opinion that it powers of the company ; that it was a does not lie in the mouth of the com- transaction plainly within the powers pany to assert that what was so repre- bf the board of directors ; that the fact sented to be rightly done, was not ear- that these bills were accepted and ried out accordmg to the precise terms handed over was perfectly well known specified." to the board of directors, and that § 1 1 I CORPORATE AGENTS. ^t^"] execute suitable and proper instruments for that purpose ;^ and they may authorize one of their number to transfer securities belonging to the bank.* By a statute, the presi- dent and directors of a railroad company were authorized to exercise all the powers granted to the corporation for the purpose of completing their railroad, and for the trans- portation of persons, goods, and merchandise thereon. It was held that there was nothing in the nature of the power to establish the rates of freight which necessarily limited it to the directors personally, but that it might be exercised by their agents, and that the assent of the directors would be presumed ; unless there was some evidence of dissent.^ It was held in New York that a banking association under the general law might by its articles of association and by- laws divide the business it was authorized to transact into several distinct departments, and constitute a separate board of directors for each department ; or it might intrust to a separate committee of the directors the exclusive charge of each department, clothing that committee with all of the pov/ers of a board in relation to the business which its de- partment embraced.^ The cashier of a bank, while carrying out under the orders of the directors a lawful contract, is not a sub-agent of the board, but an officer of the corpo- ration.^ § III. General rule as to liability on written instruments. — The liability of the principal depends upon the facts — ist, that the act was done in the exercise ; and 2d, within the limits of the powers conferred. These facts are necessarily " Hoyt V. Thompson, sufra. drawn in favor of the bank. Wright ' Burrill v. Nahant Bank, supra. v. Boyd, 3 Barb. 523 ; Davis v. Branch ' Manchester, etc., R.R. Co. v. Fisk, Bank of Mobile, 12 Ala. 463. The 33 N. H. 297. same is true in relation to a letter from * Palmer v. Yates, 3 Sandf. 137. or to the cashier of a bank with refer- ' Bank of Ky. v. Schuylkill Bank, ence to the business of the bank. New Parsons' Sel. Cas. 180. Drafts drawn Hope, etc., Bridge Co. v. Phoenix Bank, in favor of the cashier of a bank and 3 Comst. 156. discounted by the bank, are in law 368 CORPORATE AGENTS. § III inquirable into by a court and juiy ; and this inquiry is not confined to written instruments, but embraces every act with or without writing within the scope of the power or confidence reposed in the agent.^ When an agent is limited to certain means to be employed by him, a person dealing with him cannot hold his principal liable if the means se- lected are beyond the limits of the agent's authority. But when the end only is pointed out, while the means are left to the agent's discretion, the principal is bound not only as to the end, but the means also ; and third persons dealing with the agent in good faith have a right to insist upon the responsibility of the principal to this extent. As to such persons, the agent will be regarded as acting within his au- thority, not only with respect to the object of his agency, but in relation to the means selected by him for its attainment as to which he has been intrusted with discretionary powers.** When a sealed instrument is executed by an agent or attorney for the principal, the strict technical rule of the common law requires that it shall be done in the name of the principal in order to make it his deed. In such case the law looks not to the intent alone, but to the fact whether that intent has been carried out in such a manner as to possess legal validity. ' Mechanics' Bank v. Bank of Co- his authority is binding upon the prin- lumbia, 5 Wheat. 326. Whenever a cipal, though contrary to the agent's corporation is acting within the scope instructions, if the other party was ig- of its legitimate purposes, all parol con- norant of that fact. Mt. Olivet Ceme- tracts made by its authorized agent are tery Co. v. Shubert, 2 Head Tenn. 116. express promises of the corporation, And the liability of a corporation will and all duties imposed upon it by law, not be varied although it appear that and all benefits conferred at its request, its agents, acting within the scope of raise implied protnises for the enforce- their authority, contracted in their own ment of which an action will lie. Dunn name without disclosing that of the v. St. Andrew's Church, 14 Johns, principal. If in such case the exclusive 118. credit be not given to the agent, the ' Johnston v. Southwestern R.R. principal is also liable. Thompson v. Bank, 3 Strobh. Eq. 263. It is a well- Davenport, 9 B. & C, 78 ; Higgins v. settled and familiar rule that a contract Senior, 8 Mees. & Welsh. 833 ; Conro made by an agent within the scope of v. Port Henry Iron Co., 12 Barb. 27. § 1 1 1 CORPORATE AGENTS. 369 But a more liberal rule obtains as to instruments not under seal, especially in commercial and maritime contracts. In such cases, in furtiierance of the public policy of encour- aging trade, if it can be collected from the whole instru- ment that the true object and intent of it are to bind the principal and not merely the agent, courts of justice will adopt that construction of it, however informally it may be expressed.' It does not necessarily follow that a contract made by an authorized agent which does not bind the prin- cipal, becomes the agent's contract, and makes him answer- able if it is not performed. This depends upon the legal effect of the terms of the contract. If the agent employ such terms as legally import an undertaking by the princi- pal, the contract is the principal's, and he alone is bound by it. But if the terms of the contract legally import an undertaking of the agent, and not of the principal, then it is the contract of the agent, and he is answerable for a breach of it.* Even a person who, having no authority ' New England Marine Ins. Co. v. the liability of the principal, or of the De Wolf, 8 Pick. 56 ; Merchants' Bank attorney because he had not bound his of Macon v. Central Bank of Ga., i principal. We are not satisfied that Kelly Ga. 418 ; Evans v. Wells, 22 the same strictness is required to per- Wend. 188. Where it appeared that a sonal simple contracts, and especially note belonging to the bank was indorsed to those of a commercial nature; it by L., the president, calling himself being certain that even a letter of at- attorney, and it was objected that, ad- torney under seal is not necessary to mitting that L. was regularly consti- enable one person to bind another in tuted the attorney of the corporation very important contracts in transac- for the purpose of indorsing the note, tions_ of that nature." Northampton yet that the manner in which he had Bank v. Pepoon, 1 1 Mass. 288. executed the power, defeated his pur- ■' Abbey v. Chase, 6 Cush. 54. At a pose, as he had not declared that he meeting of a church vestry a resolution had acted for and in behalf of the was passed that, in order to finish the bank, which, it was said, was the only church edifice, the vestry, or those of legal way in which an attorney could them who would consent to the pJaTi, bind his principal, or transfer his au- would agree to complete the church on thority. Parker, C. J., said : " There their own responsibility, and that, in are authorities which tend to support order to reimburse them, the pews this objection. But they seem to be should be sold at auction, and also chiefly applicable to deeds or instru- that the profits of a church lottery ments under seal, and to questions of should belong to them. A resolution VOL. I.— 34 370 CORPORATE AGENTS, § 112 whatever to act as another's agent, assumes so to act, and makes either a deed or a simple contract in the name of the other, is not personally liable on the covenants in the deed, or on the promise in the simple contract, unless it contains apt words to bind him personally.^ The general rule in relation to agencies is, that when authority is given to two or more persons to do a private act, the act is valid to bind the principal only when all concur in doing it.** There is a well-settled distinction between a general and a special agent. As to the former, the principal is respon- sible for what the agent does when acting within the gen- eral scope of his authority ; but where the agent is special and temporary, the principal is not bound if the agent ex- ceeds his particular employment.^ There is also a distinc- tion between contracts made with private agents and agents acting in behalf of the public, as regards their personal re- sponsibility. It is not to be presumed either that a public agent intends to bind himself personally in acting as a functionary of the public, or that the party dealing with him in his public character means to rely on his individual responsibility.* § 112. Liability of principal on sealed instrument. — Al though the instrument be executed by the agent inform- ally, and in his own name, yet if it clearly appears that the contract was in reality made with the corporation, and it was so understood by both parties, it will bind the principal. Where a railroad company, for the purpose of raising money was passed naming certain members ' Mott v. Hicks, I Cowen, 513; Pit- as a building committee, with power to man v. Kintner, 5 Blackf. 250. contract for workmen, materials, etc., ' Story on Agency, sec. 44 ; Despatch and two others were appointed agents Line of Packets v. Bellamy Manf. Co., for the purpose of managing the lot- 12 N. H. 205. tery. It was held corporate acts pledg- ' Munn v. Commission Co., 15 Johns, ing corporate funds, and that the mem- 44. bers of the vestry incurred no personal * Ghent v. Adams, 2 Kelly Ga. liability. Vincent v. Chapman, 10 Gill 214. Sc Johns, 279. § 112 CORPORATE AGENTS. 371 with which to purchase rails for its road, authorized the directors to cause a mortgage to be given on the road and its franchises, which they voted the president should do, and he executed a mortgage so defective in form as to prevent it from being in contemplation of law the deed of the cor- poration, and they received and used the money for the completion of the road, it was held that the transaction, in equity, operated as an equitable mortgage.^ Persons con- stituting a building committee of a religious corporation having been duly authorized to purchase the materials, entered into a written contract which they severally signed and sealed, describing themselves as a building committee for the manufacture and delivery of a quantity of brick. It was held that the members of the building committee did not incur any personal liability, but that the corporation alone was liable on the contract.* Lands having been sold at auction in behalf of a municipal corporation, the mayor and purchaser signed a contract in which they mutually promised to fulfil the conditions of sale on their respective parts. The conditions stated the title of the corporation to ' Miller v. Rutland and Washington of the directors, that he was authorized R.R. Co., 36 Vt. 453. In this case the to make a mortgage that should tech- court said : " We do not fully appre- nically convey the estate ; that his hend the ground or purpose of the re- agency in that behalf was for that very mark that the private intention of purpose, and that in what he did, his Clark to make a mortgage against the design was to accomplish the purpose company is of no avail if it cannot be of his agency. We think this intent is carried out by the rules of law. If it so manifested as to give it legal valid- be meant that the mortgage, failing as ity in the language of the brief, not as a to its technical sufficiency to constitute technical mortgage operative to convey at law a valid mortgage against the the legal estate, but as evidence in company is of no avail for any purpose, writing as to the contract that at the we think it unfounded in principle, and same time answers the requirements of not sustained by authority. If it be the statute of frauds, and furnishes meant that the act of Clark, merely in ground for asserting an equitable right pursuance of his private intention, in and to the security contracted to be would not affect the company, we as- given." sent to it ; but this does not meet the = Haight v. Sahler, 30 Barb. 218. See point ; for it appears on the face of the Dubois v. Del. & Hudson Canal Co., 4 instrument in connection with the votes Wend. 285. 372 CORPORATE AGENTS. § 112 the premises, and stipulated that it should convey, and might resell on default The only act mentioned to be done by the mayor was the receiving of the deposit. It was held that he could not maintain an action in his individual capacity against the purchaser for a breach of the contract.^ A bond as follows : " Know all men by these presents, that," etc. (naming the Corporation), " by W. R., President of said company as principal, and Q. M. & S. M. as sureties, are held and firmly bound unto," etc., "to which payment well and truly to be made, we do bind ourselves, our heirs, executors, and administrators, and every of them firmly by these presents. Sealed with our seals. W. P., Prest., (seal), Q. M., S. M.," was held not to bind the president personally.** An assignment of a mortgage of real estate concluded thus : " In witness whereof, the said B. C. bank, by G. A., their treasurer, duly authorized for this purpose, have hereunto set their name and seal." Signed, G. A., Tr. B. C. Bank, and acknowledged by G. A. to be the act and deed of the B. C. bank and of himself. It was held to be the act and deed of the corporation.^ A promise by the president and directors of a corporation, made for a corporate debt, executed by the president as such, under the corporate seal, in conformity with its by-laws, is a promise by the corporation for a violation of which it may be sued in its corporate name.* A contract under seal, executed by a duly authorized agent in behalf of the corporation, though not binding as a specialty, may sometimes be enforced as a simple contract. Whefe two trustees of a parish, who con- stituted a corporation, appended their names separately to a lease, and affixed the corporate seal separately to each name, it was held that although it was not necessary to sign in that way, yet it did not vitiate the lease as a corporate act.^ A committee of the corporation of the city of Albany, ' Bowen v. Morris, 2 Taunt. 374. ■* Pitman v. Kintner, 5 Blackf. 250. ' Ellis V. Pulsifer, 4 Allen, 165. ' JacksOn v. Walsh, 3 Johns. 226. ' Hutchins v. Byrnes, 9 Gray, 367. §112 CORPORATE AGENTS. 373 duly authorized, entered into a contract for the benefit of the corporation, and signed thereto their names, and affixed their individual seals, covenanting to make certain pay- ments and advances to the other contracting party. In an action against the individual members of the committee, it was held that the authority of the committee being conceded, the instrument executed by them was evidence of a promise by the corporation.^ Where an indenture was sealed with the respective seals of three persons claiming to act in be- half of a corporation, and to have been duly authorized to do so, but there was no allegation that the seal of the cor- poration was affixed, and no such seal was in fact affixed to the agreement, it was held that although the corporation would be liable for a breach of the contract in some form of action, an action of covenant could not be maintained thereon.* The directors of a corporation, being duly au- thorized, entered into a contract with a person for certain building materials to be furnished by him, and the directors, who were individually named, affixed to the contract their names and their several seals. It was held that an action of assumpsit might be maintained against the corporation for the price. Weston, C. J., said : " Suppose the agent, clothed with power to contract by a corporation, affixes to an instrument his own name and seal, although it is not the deed of the corporation, yet if it would bind them as an agreement if it were not under seal, there is no reason for its ceasing to bind them, the agent's seal being affixed there- to, except what is purely technical. The agent has super- added a more solemn authentication which usually converts it into an instrument of a higher character. But, as the corporation cannot be affected by this additional quality, it not being their deed, shall it cease to be evidence of their agreement ? They authorized it, their agent made it, and ' Randall v. Van Vechten, 19 Johns. ^ Mitehell v. St. Andrew's Bay Land 60. Co., 4 Fla. 200. 374 CORPORATE AGENTS. § 112 if he added formalities which were useless and inoperative, they may be disregarded, and the corporation stand charged as if they had been omitted. A covenant is a promise and something more. It is a promise under seal. If the seal affixed is not that of the party who substantially makes the promise, and who is to be charged by it, the promise re- mains and is not changed into a contract of a higher na- ture." ^ A contract was entered into by an incorporated turn- pike company and one Hopkins, by which the latter was to complete the mason work of a bridge, and furnish the materials, and the corporation to pay him therefor a speci- fied sum. The agreement closed as follows : " For the true and faithful performance of the covenants, agreements, and stipulations in these presents contained, the parties hereto bind themselves, each to the other, in the penal sum of two thousand dollars. In witness whereof, the said parties to these presents have hereunto interchangeably set their hands and affixed their seals. James Mehafly, (seal), Joseph Hopkins, (seal). Signed by the president in be- half of the president, managers, and company of the Man- chester Turnpike Road, and by Joseph Hopkins on his part, in presence of William Child." An action of cove- nant broken having been brought by Hopkins against Me- haffy, the president, it was held that the defendant was not liable.* Where a mortgage is signed by the president and ' Cram v. Bangor Proprietary, 12 poration. If the defendant had au- Me. 354. thority to contract for the corporation, ^ Hopkins v. Mehaffy, 1 1 Serg. & although he has done so informally, Rawle, 126. Gibson, C. J.: "The there cannot be a doubt that, as the paper is not the defendant's deed. He work has been done, the plaintiff may sealed and delivered it undoubtedly ; have an action of some sort against it. but there is something more than seal- But he never treated on the basis of ing and deliverj' necessary to a deed, the defendant being personally answer- It ought to contain the proper parts of able, and to permit him to maintain a contract ; and in this instrument this action, would permit him to have there are no obligatory words applica- what was not in the contemplation of ble to the person of the defendant, either party, recourse to the person of Even the sealing and delivery were as the agent." the president, and in behalf of the cor- § 113 CORPORATE AGENTS. 375 cashier of a bank, and sealed with the common seal, there is prima facie a due and lawful execution of the instrument, the common seal of a corporation to an instrument being evidence that it was affixed by proper authority. To show the contrary, the burden of proof is on the objecting party, and he will be required to produce such evidence as shall be clear and satisfactory.^ § 113. Liability of principal on simple contracts. — When an agent, in entering into a contract without authority, acts within his apparent authority, the principal is bound, unless the party with whom the contract is made knows that he is exceeding his power as agent* Although an agent may make himself personally liable on a contract made for the benefit of the principal, and will do so if he contracts in his own name and his principal is unknown, yet when the re- lation of principal and agent is known to exist, and the fact that the agent is acting solely for the benefit of such prin- cipal, the agent will not be bound unless the credit is given to him expressly and exclusively, and it was clearly his in- tention to bind himself personally.^ A corporation will be bound by an agreement signed by its agent, duly authorized and acting in relation to business usually transacted by him, notwithstanding the charter provides that all agreements shall be signed by the president and secretary.* A pro- ' Leggett V. N. J. Manf. & Banking not make it the contract of his principal. Co., Saxton Ch. 541. An agreement Such addition will be regarded as de- by deed made with a corporation, and scription, and will not have the effect of delivered to the agent of the corpora- binding a third person who is not in tion having authority to negotiate it, is form made a party to the instrument, delivered to the corporation. Western It is not enough that the person exe- R.R. Corp. V. Babcock, 6 Mete. 346. cuting an instrument have power as '^ Harrison v. Missouri Pacific R.R. agent to bind a third person ; he must, Co , 74 Mo. 364. in fact, make it the obligation of that "Haight V. Sahler, 30 Barb. 218. If, person in terms, in order to bind him. by the terms of an agreement, a party Detroit v. Jackson, i Doug. Mich. 106, describing himself as agent, undertakes per Felch, J. to do certain things, the mere addition *New England Fire & Marine Ins. of the word agent, or indeed any other Co. v. Schettler, 38 111. 166. designation applied to his name, will 37^ CORPORATE AGENTS. § 1^3 vision of the charter of a bank, that all contracts whatever, in order to charge the company, must be signed by the president and countersigned by the cashier, was held not to apply to such contracts or engagements as occurred in or were necessary to the ordinary business of the corporation, usually performed by the cashier or some other officer or agent of the bank, such as drawing or indorsing bills of ex- change, checks, drafts, etc.^ The cashier of a bank will not be presumed to have power, by reason of his official posi- tion, to bind the bank as an accommodation indorser of his own promissory note, such a transaction not being within the scope of his general powers.* In Bank of Columbia v. Patterson,^ one of the points considered was whether the bank could be bound by a contract not made by the corpo- ration, but by its committee acting in their own names, who had personally and expressly agreed to pay the stipu- lated price. It being a contract made for the benefit of the corporation, and the committee having authority to make it, it was held that the corporation was bound. Story, J. : " It would seem to be a sound rule of law, that wherever a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts made by its authorized agents are express promises of the corporation." Where an attorney of a railroad company contracted in that character, but the concerns of the company were en- tirely managed by him, there being no actijig cpmmittee, it was held that the attorney was not personally liable on such contracts.^ The description of a contracting party in the body of an agreement, under the statute to submit mat- ters in difference to arbitration, was, " The Mayor, Alder- men, and Freemen of the city of Detroit, by Zina Pitcher, Mayor of said city, and agent for that purpose duly ap- ' Carey v. McDougald, 7 Ga. 84. See Shawnee Gounty Bank, 95 U. S. (5 City Bank v. Perkins, 29 N. Y. 554. Otto) 557 ; S. C. 3 Dillon, 403. " West St. Louis Savings Bank v. ^ 7 Cranch, 299. * Russel V. Reece, 2 Car. & Kir. 669. § 113 GORPORATE AGENTS. zn pointed "; and the party making the acknowledgment was described in the same words. But the agreement was signed " Zina Pitcher, Mayor of Detroit," without any other addition. It was argued that a disclosure of the agency should have been made by an addition to the signature, as well as by description in the body of the instrument. It was, however, held that the corporation was liable.^ A written instrument was in the following words : " April 6, 1842. Due J. DufiSeld on settlement, the sum of 239 dol- lars in full for the joiner's work of the New Washington Seminary." Signed, "J. M. R. T. F. R., Building Comm., in behalf of the Trustees of tbe New Washington Semir nary." It was held that no suit on the foregoing could be maintained against the parties signing it, because it did not contain any acknowledgment by them individually ; that, if they were authorized by the trustees to execute it, the suit should be against the trustees.** Cases frequently arise ' Detroit v. Jackson, i Doug. Mich. 106. In this case, the court in holding that the agreement sufficiently appear- ed to be that qf the principal, said : " In determining whether an instru- ment executed by an agent contains the obligation of the principal, we are to look to the whole instrument. The particular form of execution is not ma- terial if it be substantially done in the name of the principal. In this case the plaintiffs in error are fully described in the body of the agreement for submis- sion as the contracting party. The submission is directly asserted to be theirs ; the name of the agent is given as the instrument through whom the act is done. The agent does not pur- port to act for, or in any manner to bind himself personally. On the con- trary, the body of the instrument fully shows that he is the mere agent, and that the submission is the submission of the plaintiffs in error We entertain no doubt as to what is the proper construction of the agreement for submission in this case. We think tjhe plaintiffs in error must be regarded as the contracting parties, although their agent has signed his own name to it without adding the name of his prinr cipals." 'McHenry v. Duffield, 7 Blackf. 41. A contract made in the name of J. D., " president of the New York Banking Company," was held binding on the company. Boisgerard v. N. Y. Bank- ing Co., 2 Sandf. Ch. 23. Where the president was authorized by the board of directors to make a call for payment on subscriptions for stock, and he made the call as president alone, it was held that as he was acting as the agent of the board under express au- thority, his action must be deemed that of the board. City of Memphis v. Memphis Gas Co., 9 Heisk. 531. The president of a glass company having made a promissory note in the name of the company for fuel used by the 37^ CORPORATE AGENTS. §113 in relation to liability on promissory notes where it is sought to charge agents, the question being the intention of the parties to whom the credit was in reality given, and for whose benefit the notes were made. A few examples will serve to illustrate the rule of construction previously stated. Where the defendant, being agent of a corporation, gave a note, " I promise," etc., and signed it " A. B., agent of," etc., naming the corporation. Swift, C. J., said: "When an agent duly authorized subscribes an engagement in such manner as to manifest an intent not to bind himself, but to bind the principal ; and when, by his subscription, he has actually bound the principal, then it is clear that the con- tract cannot be binding on him personally. It will be agreed that no precise form of words is required to be used in the signature ; that every word must have an effect if possible ; and that the intention must be collected from the whole instrument taken together. Who can entertain a doubt upon reading the note in question that it was the in- tent of the defendant to bind the company and not himself ? . . . . Thismodeof signing the note will fairly admit of this construction : I, as agent of the company, pledge their credit, or give their promise to pay the note ; or the com- pany, by me as their agent, promise to pay it. But if we consider the word agent as merely descriptio personce, we give it no operation, and really expunge it from the writing. We are bound, however, to give effect to every word if pos- sible ; and the only way to give this word any effect is to make the note binding on the company."' A promissory company in the manufacture of glass, ' Hovey v. Magill, 2 Conn. 680. An it was held that the company was action was brought on the following liable. Mott v. Hicks, i Cowen, 513. promissory note: "On demand, for See Shotwell v. McKown, 2 South, value received, we promise to Nathaniel 828. The secretary of a corporation Palmer one thousand dollars on in- who, as such, signs a lottery ticket for terest," signed, " G. Stevens, W. G. S." the company, is not personally liable to The plaintiff proved that the note and the holder. Passmore agst. Mott, 2 the signatures were all in the hand- Binney, 201. writing of William G. Stevens, the de- § 113 CORPORATE AGENTS. 379 note commencing, " On the first of January next I promise to pay," and signed " Alvin A. McWhorter, President W. & Coosa R.R. Company," was held binding on tlie com- pany.^ Under a statute providing that the notes of a bank should be countersigned by the cashier, a note on which was written " countersigned, C. Seymour," was held good, it not being necessary to its validity that he should add to his name his official character.^ A note given for a pre- mium of insurance was indorsed as follows : " By authority from J. D., I hereby guaranty the payment of this note. J. C." Another note was indorsed thus : " By authority from J. D., in a letter dated Sept. 24th, 1824, I hereby guar- anty his payment of the premium on policy No. 10079. J. C." It was held that J. D. was hable as guarantor of the notes.^ The secretary of a corporation gave a prom- fendant, whose initials were signed to the note. The defense was that the note was given for G. Stevens and Sons, who alone were liable, and that it was signed by the defendant with his initials as their clerk. A verdict hav- ing been rendered for the defendant, the court, on a motion for a new trial, said : " If the defendant, by placing his initials under the name of G. Stevens, intended to bind himself as a maker of the note, there can be no doubt as to his liability in that charac- ter, and this was a point to be con- sidered and decided by a jury. But the initials might have been written and so might the full name, to attest the exe- cution of the note by the one who was the maker, or to indicate that the one who wrote the initials had, as agent of the person whose name appeared as maker, executed the note for him and in his name. These are supposable cases, but they present questions on which the jury should have passed." Palmer v. Stevens, I Davies, 471. "A familiar instance of the manner of exe- cuting a contract by an agent," said the Supreme Court of Michigan in an early case, " is found in the case of bank bills. They are upon their face the promises of the corporation by which they were issued ; but they are signed by the president and cashier with an abbreviation, showing only the capacity in which they sign. It has never been contended that because these agents did not add to their sig- natures the name of the corporation, they were personally bound, and not the corporation. Where a check was drawn by the cashier of a bank, and it appeared doubtful whether it was an official or private act, parol evidence has been admitted to show that it was an official act for the purpose of mak- ing the bank responsible." Detroit v. Jackson, supra. ' McWhorter v. Lewis, 4 Ala. 198. ^ Bank of Utica v. Magher, 18 Johns. 342. ' New England Marine Ins. Co. v. De Wolf, 8 Pick. 56. 380 CORPORATE AGENTS. § I I 3 issory note as follows : " Ninety days after date, we promise to pay," etc., signed by him as secretary without other ad- dition. In the left-hand corner was an impression of a seal, with the words, " Neal Manufacturing Company, Mad- ison, Ind." It was held that the corporation was bound.^ A promissory note was indorsed " W. Earle, Sec'y." The only names on the note were those of the maker, of the payees, bearing a corporate name, and of the party styling himself secretary. It was held that the intention was quite as ap- parent that the indorsement was for and in behalf of the payees, as if it had designated them by their corporate name.** An action was brought by the payee against the maker of three promissory notes in the following form : " I, the sub- scriber. Treasurer of the Dorchester Turnpike Corporation, promise," etc., signed " Gardner L. Chandler, Treasurer of the, Dorchester Turnpike Corpor-at-ion." It was urged on the trial that the notes were given for a debt due from the gorporation to the payee^ and that the treasurer had been authorized and requested to settle with the creditors by note or otherwise. The court said that it could not be doubted that the corporation was itself liable, the consider- ation having moved wholly from it, and it being apparent that the plaintiff did not, at the time of receiving the notes, look to the defendant's personal security.^ A promissory note payable to a corporation was indorsed thus : " With- out recourse. Joel Scott, Secretary." It was held that the indorsement was sufficient to transfer the legal title to the note, and authorize the holder to fill it up so as to show that the assignment was made in behalf of the corporation.* ' Means v. Swormstedt, 32 Ind. 87. held a legal transfer of the note to the 8 Nicholas V. Oliver, 36 N. H. 218. bank. Watervliet Bank v. White, i » Mann v. Chandler, 9 Mass. 335. Denio, 608. A promise in a note to ■•Melntire v. Preston, 10 111. (5 Gil- an insurance company upon the issuing man) 48. Where a promissory note, of a policy to the maker, " Pay to the having been purchased by a bank from company, or to their treasurer,'' is not the holder, was ind'orsed by him, " Pay a promise to two distinct parties in the to E. Olcott, cashier, or order," it was alternative, but a contract with and a §113 CORPORATE AGENTS. 38 1 A promissory note held by a mutual msurance company was indorsed " L. Gregory, President." It was proved that the company had been accustomed to indorse commer- cial paper in this manner, and it did not appear that indorse- ments had ever been made in any other form. It was held the indorsement of the company, and not of the president individually.^ In an action on a promissory note signed by the defendants as "Trustees of the First Baptist Society of Brockport," it was held, on demurrer, t\\2Lt prima facte the defendants were personally liable, but that such presumed liability might be rebutted by proof that the note was in fact given by the makers as agents of a corporation for a debt due from it to the payee, and that they were duly au- thorized to make such note as the agents of the corpora- tion.* A bill of exchange drawn at the office of a corpo- ration for its indebtedness, signed by the president, with the addition of " Prest. T. N. Co.," which was his titlfe of office abbreviated, and directing that it be charged to " mo- tive power and account," was held to show on its face an intention to bind the corporation, and not the signer per- sonally.^ An action was brought by the indorsee against three persons as acceptors of a bill of exchange drawn on " E. M. and others, trustees of Clarence Hall, Liverpool," and accepted thus: "Accepted. E. M." The three de- fendants, with E. M. and another, were the five trustees of a body of persons associated for the purpose of building the hall, and E. M. was authorized by all of the trustees to accept the bill on their behalf. It was held that the de- fendants were bound by the acceptance, notwithstanding it promise to the company ; the intention be their treasurer. Atlantic Mut. Fire ofthe words "ortheirtreasurer" merely Ins. Co. v. Young, 38 N. H. 451. introducing a stipulation that the pay- ' EJwell v. Dodge, 33 Barb. 336. See ment agreed to be made to the com- Scott v. Johhsoh, 5 Bosw. 213; Mer- pany shall be considered as thus made, chants' Bank v. McColl, 6 lb. 473. if made to the person who may then ^ Brockway v. Allen, 17 Werid. 40. ' Olcott V.Tioga R.R.Co.,27 N.Y. 546. 382 CORPORATE AGENTS. § 113 did not show on its face that E. M. intended to accept, not individually, but for himself and four others.* Where a draft is drawn upon an individual and he accepts it as an officer of a corporation, he may show, in an action against him upon the acceptance, that he acted as the duly authorized agent of the corporation, and that the plaintiff knew the fact when he took the draft. For this purpose, there must be evidence establishing the liability of the cor- poration on the draft. Mere parol proof that the defend- ant had, in the opinion of the witnesses, authority to bind the corporation, would not be sufficient^ In an action by the payee against the acceptor of a bill of exchange drawn and accepted by " Gilbert Shearer, President of the Selma and Tennessee Railroad Company," the plaintiff having given in evidence the bill of exchange, with the acceptance thereon, the defendant offered to prove that the bill was drawn for a debt which the company owed the drawer, and that the holder of the bill at the time the same was drawn, was apprised by the drawer that it was intended to be drawn on the defendant as president of the company, and not in his private capacity. This evidence was admitted under objection, and a verdict having been rendered for the ' Jenkins v. Morris, 16 M. & W. 877. was held to bind him only. Bank of A draft which did not name the prin- British North Am. v. Hooper, ; Gray, cipal excepting " and charge the same 567. But where a draft with the words to the Swanzey Paper Company. Yours " Office Agent," Bigelow, C. J., said : respectfully, Joseph Hooper, Agent," "No one can doubt that, on bills thus was held to be the draft of the com- drawn, the agent fully discloses his pany. Tripp v. Swanzey Paper Co., 13 principal, and that the drawer could Pick. 291. The same was held with not be personally chargeable thereon." reference to a draft, with the words Slawson v. Loring, 5 Allen, 340. A " Pompton Iron Works " printed in the bank check, with the words " ^tna margin, and concluding, "which place Mills" in the margin, and signed "J to account of Pompton Iron Works. D. Farnsworth, Treasurer," was held W. Burtt, Agent." Fuller v. Hooper, binding on the bank, and not on the 3 Gray, 334. A draft which concluded, treasurer personally. Carpenter v. "and charge the same to account of Farnsworth, 106 Mass. 561. Proprietors Pembroke Iron Works. ' Bruce v. Lord, I Hilton, 247, Daly, Your humble servant, Joseph Barrell," J., dissenting. § II- CORPORATE AGENTS. 383 defendant, the ruling of the judge at the trial was sustained.^ Drafts were signed by W., with the addition of the abbre- viated words, " Prest. T. N. Co.," made payable to his or- der,, and indorsed by him. It was proved that W. was at the time president of the corporation ; that in his capacity as such, he drew the drafts for the benefit of the company ; that the company received the proceeds ; and that afterward it recognized its liability by giving its bond as collateral. 'Lazarus v. Shearer, 2 Ala. 718. Where a bill of exchange was signed, " John Kean, President Elizabethtown & Somerville R.R. Co.," it was held that there was nothing on the face of the instrument itself to determine whether it was an individual or a cor- porate obligation, and that parol evi- dence was admissible to explain the ambiguity. Green, C. J. : " It cannot be said that this evidence will either contradict or vary the terms of the in- strument. The whole difficulty lies, not in the construction of the instru- ment, but in the import of the signa- ture. That signature, as we have seen, may import either the act of the com- pany, or of the individual. The terms of the instrument are neither varied nor contradicted by proof that it was the contract of the one or of the other. The question is, not what is the true construction of the language of the contracting party, but who is the con- tracting party — whose language is it ? And the evidence is not adduced to discharge the agent from a personal liability which he has assumed, but to prove that in fact he never incurred that liability. Not to aid in the con- struction of the instrument, but to prove whose instrument it is. Now, it is true that the construction of a written con- tract is a question of law to be settled by the court upon the terms of the in- strument. But whether the contract was, in point of fact, executed, when it was made, where it was made, upon what consideration it was made, and by whom it was made, are questions of fact to be settled by a jury, and are provable, in many instances, by parol, though even the proof conflicts with the language of the instrument itself. Thus, it may be shown that the con- tract, in fact, was made at a different place, at another time, and upon other considerations, than those stated upon its face. So, if an instrument purports to be executed by A. and B., it may be shown, by parol that it was executed by A. alone, and that B. signed it merely as a witness, or for some other purpose. So, it may be shown that a note purporting to be drawn by A., and indorsed by B., is in fact the joint note of A. and B. So, where, in cases like the present, an individual, upon the face of the instrument, is deemed /rz»za facie to have subscribed it as a con- tracting party, it has been held compe- tent for him to prove that he signed it as an agent, or as a witness, or for some other lawful purpose." Kean v. Davis, I Zab. 683. A check having been drawn by the cashier of the Mechanics' Bank upon the Bank of Columbia, and an action brought on it by the latter against the former, the court said ; " The question is, whether a certain act done by the cashier of a bank was done in his official or individual capacity. Had the draft drawn by Paton borne no marks of an official character 384 CORPORATE AGENTS. § 114 It was held that the instruments were the drafts of the corhpany.^ § 114. Liability of agent on written instrument.— An agent who acts for himself, or without authority from the corpo- ration, though professing to act as its agent and in its be- half, is personally liable.* A bill of .exchange was directed upon the face of it, the case would have presented more difficulty. But as marks of an official cliaracter not only exist on the face, but predominate, the case is really a very familiar one. Evi- dence to fix its true character becomes indispensable. It is enough for the purposes of the defendant to establish that there existed on the face of the paper circumstances from which it might reasonably be inferred that it was either the one or the other. In that case, it becortifes indispensable to resort to extrinsic evidehce to remove the doubt." Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326. ' Thompson v. Tioga R.R. Co., 36 Barb. 79. See Babcock v. Beman, 11 N. Y. 200 ; Bank of Genesee v. Patchin Bank, 19 Id. 312. ^ Haynes v. Hunnewell, 42 Me. 276. If trustees of a turnpike road, canal, or any other public work, act beyond the scope of their public powers, and order works to be done for which there is no fund, they rtiay be personally liable to the parties who advance money to defray the expenses of sUch works ; that would always depend upon the circumstances of each particular case. Wilson v. Goodman, 4 Hare, 54, per SHADWELL, V. C. ; Higgins v. Livingstone, 4 Dow. P. C. 341. The makers of a promis- sory note are prima facie personally liable, although they sign their names as trustees of a religious society. But it may be shown that the note was in fact given by the makers as agents of the society, duly authorized to do so, for a precedent debt of the society. Brockway v. Allen, 17 Wend. 40. It having been claimed, in an action on a promissory note against an individ- ual, that, in making the note, he was acting as a trustee and agent of a cor- poration, it was held that the defense was defective in not alleging that he had authority to bind the corporation by his act, and that it had the faculty of becoming bound for the payment of money. Harwood v. Humes, 9 Ala. 659. Where the act of incorporation provides that if any director siiall as- sent to the contracting of debts to a gt-eater amount than a prescribed limit, he shall be personally liable for the ex- cess. Such liability is not incurred by the giving of new notes for old onefe, the actual indebtedness of the corpora- tion not being thereby increased. Nat. Bank v. Page, 52 Vt. 452. If it is doubtful on the face of a check, dravvtt by the cashier of a bank, whether it was an official or a private transaction, parol evidence is admissible to show its nature. Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326. S. ih- dorsed and transferred to a bank a note as collateral security for a loan then made by the bank to him. This note having become due, the makers sup- posing that S. still held the ndte, ap- plied to him for a renewal and exten- sion for a year, which he agreed to give if they vvould pay more than legal in- terest. They having consented to this, a new note was executed by them for the principal and interest then due on the old one, and another note for the excess of interest agreed on. Each of § 114 CORPORATE AGENTS. 385 to " Mr. James Diamond, purser, West Downs Mining Company." The acceptance was "James Diamond, accepted per proc, West Downs Mining Company." Though a member of the company, he was not in fact authorized to accept bills in its behalf. It was held that he was person- ally liable. Parke, B. : " The bill is drawn on him indi- vidually, and he accepts it for the company of which he is a member. He is not the less bound because he accepts it for himself and others. He was not compelled to include the others ; they are not bound, but he is. Now, if.he were agent for the company, and that company consisted of him- self and five others, then he had the power to bind himself as principal and the others as agent. But if he had no authority to bind the five, then he alone is bound as the drawee, being made liable by what he has signed in his own name. He cannot be agent for himself, and therefore he binds himself as principal." ^ A bill of exchange was drawn on a person as an individual. The consideration stated was for " machinery supplied to the Hayter and Holne Moor Mines." The acceptance was in these words : " Accepted for the companies. William Charles, Purser." It was held that he was personally liable as acceptor. Crompton, J. : " When parties put their own names on bills, and do not intend to become personally liable, they ought to use some words to show their intention. Here, the words ' for the companies,' are at best ambiguous, and we ought to con strue them so as to render the bills valid instruments."^ the new notes bore legal interest. S. of the agreement between S. and the then exchanged with the bank, for the makers. It was held S. was not an note it held as collateral, the note which agent of the bank in the usurious trans- the makers had executed to take it up, actions. First Nat. Bank v. Bentley, indorsing to the bank the new note to 27 Minn. 87. be held by it as collateral security for ' Nicholls v. Diamond, 23 L. J. N. S. the loan, instead of the old note which Exch. i ; 24 Eng. L. & Eq. 403. the bank, in consideration thereof, de- ' Mare v. Charles, 5 Ell. & B. 978^ livered to S., who surrendered it to the 34 Eng. L. & Eq. 138. makers. The bank had no knowledge VOL. I.— 25 386 CORPORATE AGENTS. § 1^4 B. entered into a charter party, describing himself as agent for and in behalf of the owners of the vessel. Most of the covenants were expressed to be made by him as agent for the owners, but they were nowhere named in the instru- ment. The charter party concluded that, for the perform- ance of all the covenants before mentioned, " the said par- ties respectively bind themselves personally to each other." It was held that B. was personally hable on the covenants.^ Where a bond recited, " We, A., B., C, D., and E., trus- tees of the Methodist Episcopal Church of," etc., "our successors and assigns, are held," etc., "we bind ourselves, our and each of our heirs, executors, administrators, jointly and severally," etc. ; and the bond was signed by them individually, and a seal annexed to each name, it was held that the obligors were personally liable.^ The parties to an agreement to submit their differences to ref- erees, were the proprietors of a certain township individ- ually named on the one side, and R. and A. as owners of the W. Mills on the other. The agreement recited that the referees were to consider "the claims of said propri- etors and of said mill company, although other persons besides these parties may be or may have been proprietors or members of said company, and the parties to the agree- ment severally agree to be accountable therefor." Although ' Meyer v. Barker, 6 Binney, 228. fendants covenanted ' for themselves ^ Dayton v. Warne, 43 N. J. 659. and their successors, church-wardens Beasley, C.J.' : "That this is the Eng- and overseers of the said parish and ■ lish rule, appears to be evidenced by a their assigns.' After this covenant uniform train of decisions, beginning thus expressed, there was a proviso to with Combes', reported by Coke, 9 the effect that nothing in this instru- Rep. 75, down to the recent case of ment should be construed as imposing Furnivall v. Coombes, 5 Man. & Gr. any personal covenant or obligation 736. This last case is strikingly indie- upon the persons executing. But the ative of the strength of the rule above court held that as a personal obligation asserted, and is closely in point with was clearly created in the obligatory respect to the language creating the part of the bond, the proviso was void personal obligation. The indenture in on the ground of repugnancy, and held that case related to the doing of re- the defendants individually liable." pairs on a parish church, and the de- §114 CORPORATE AGENTS. 387 R. and A. were owners of the mills, yet the agreement showed that others were interested as stockholders. It was signed by R. and W., attorneys to the mill company, and by J. S., attorney to the township proprietors. In an action against tTie mill company on the award of the referees, it was held that the company, not being a party to the agreement of submission, was not liable.^ In a lease, C. was described as "Treasurer of the Eagle Lodge," and the lease signed " C, Treas." Held that C. was liable.' A promissory note, by which A. B., as president of a corporation, promises to pay a specified sum, is not the note of the corporation, but of A. B.^ Where a promissory note was signed by a per- son in his own name, with the addition of the words " Sec- retary Auburn Masonic Female College," it was held that prima facie he was personally liable.* A promissory note containing a stamp or impression of a seal in the form of a circle, having within it the words, " Second Presbyterian Church, Po'keepsie, 1835," and signed by three of the trustees of the society, was held the personal undertaking of the signers.^ A promissory note was signed, " David Hoyt, Agent for the Churchman"; the Churchman being a newspaper establishment of that name. It was held that the words, " Agent for the Churchman," were mere words of description, and the signer alone liable.® The same was held in relation to a draft drawn upon a person individu- ally, and accepted by him under the designation of "Treas- urer Nuevitas M. Co."'' A joint and several promissory note was signed by parties, with the words added, "Trus- tees of Union Religious Society, Phelps." It was held that they were personally liable.® But in such case, the makers ' Sawyer v. Winnegance Mill Co., 26 ' Farmers' & Manufacturers' Bank Me. 122. V. Haight, 3 Hill, 493. ' Seaver v. Cobum, 10 Cush. 324,. * De Witt v. Walton, 9 N. Y. (5 ' Barker v. Mechanics' Fire Ins. Co., Seld.) 571. 3 Wend. 94. ' Bruce v. Lord, i Hilton, 247. * Drake v. Flewellen, 33 Ala. 106. ' Hills v. Bannister, 8 Cowen, 31. o 88 CORPORATE AGENTS. §114 may relieve themselves of liability by showing that the note was in fact given by them as the agents of a corporation for a debt of the corporation due to the payee, and that they were authorized to make the note as the agents of the corporation.^ In a lease under seal, given " for agficultural fair purposes," the lessees were described as president, vice- president, secretary, treasurer, and directors, " being the board of managers of the Garrattsville Agricultural Soci- ety and Farmers' Club." The lease was to the parties of the second part, and their successors in office, and the in- strument was severally signed and sealed by the parties. It was held that on the face of the contract, the signers were personally liable ; but that it was a question for the jury, on proof of the circumstances attending its execution, whether the parties executed it, supposing it to be the con- tract of the association, and if they so found, the signers were not liable. Bockes, J., dissenting, maintained that there was an ambiguity on the face of the instrument as to the character in which the lessees were acting, and that parol evidence was admissible to show the real position of the parties in the transaction.^ If the right of the agent is sought to be derived solely from its exercise with the knowledge and approval of the corporation, it must be regarded as limited to the descrip- tion of cases in which it has been exercised, and which serve to prove its existence, and not to extend to cases dis- similar in their character. Where the corporation has sold land subject to conditions, authority conferred upon the agent to give notice to occupants, and take possession of buildings which have been erected in violation of the con- ditions, and hold them for the corporation, does not au- thorize him to make a lease of the premises in order that ' Brockway v. Allen, 17 Wend. 40. na Trading Co., 11 Serg. & Rawle, See Sterling v. Marietta & Susquehan- 179. " Whitford v. Laidler, 25 Hun, 136. §115 CORPORATE AGENTS. 389 the lessee may bring ejectment to try the title ; such a power not being incidental to an authority to enter and hold.i § 115. Liability of principal for fraud of agent. — A corpora- tion is liable for the fraud of its agent committed in the course of his employment, in the same manner that an in- dividual is responsible for the acts of his agent touching the business of the principal.* A lady having a large sum of money in a bank on the security of a deposit note, the manager of the bank proposed to her that she should pur- chase certain real estate for a sum which would extinguish a mortgage on it held by a third person, and also a lien held by the bank. To this she assented, and surrendered to him her deposit note, for which he gave her a new de- posit note for the difference between the amount of the former note and the purchase money, retaining the balance for the purpose of making the investment. This money the manager appropriated to his own use. It was held that the bank was liable to refund the amount.^ Where a prin- cipal employs several agents to transact jointly a particular business, he is equally responsible for the conduct of each and all of them while acting within the limit and scope of their power — as completely so as he would be for the con- duct of a single agent upon whom the whole authority had been conferred. He cannot shift or avoid this responsibil- ity by the multiplication of his agents. It is also clear that 1 Gillis V. Bailey, 17 N. H. 18. lently, so that if they had been acting " Chestnut Hill v. Rutter, 4 Serg. & for private employers, the persons for Rawle, 6 ; Bank of Ky. v. Schuylkill whom they were acting would have Bank, Parsons' Sel. Cas. 180; Life & been affected by their fraud, the same Fire Ins. Co. v. Mech. Fire Ins. Co., 7 principle must prevail where the prin- Wend. 31 ; Lubricating Oil Co. v. cipal under whom the agent acts is a Standard Oil Co., 49 Hun, 153; Reed corporation." Ranger v. Great West- V. Home Savings Bank, 130 Mass. 443. em R.R. Co., 5 House of Lds. Cas. " There can be no doubt," said Lord 86. Cram WORTH, "that if the agents em- 'Thompson v. Bell, 26 Eng. L. & ployed conduct themselves fraudu- Eq. 536. 390 CORPORATE AGENTS. § 1^5 the corresponding responsibility of each of the several joint agents to the principal for the faithful discharge of their duties, is as complete and perfect as in the case of a simple agency ; and any prejudice to the principal arising from fraud, would afford ground for redress from" the party guilty of the wrong. One of the grounds for charging the principal with the knowledge possessed by the agent, is because the latter is bound to communicate the fact to the former, and is liable for any prejudice that may arise from a neglect in this respect ; and hence, the law presumes that the principal has had actual notice. The duty of any one of the joint agents is as obligatory upon him in this respect as if he had possessed the sole power in the matter of the agency, and any prejudice resulting from the neglect would afford a like redress.^ A person, as agent for a corporation, accepted a bill of exchange for an object within the scope of his agency, thereby rendering the corporation liable on his acceptance. The indorsees claimed the right to maintain an action against the agent personally, on the ground that he procured the bill to be discounted on his private account, and not for the corporation, and that he appropriated the avails, which was the fact. It was held that the corporation was alone liable. ** The secretary and manager of a corpo- ration, who was a defaulter, having borrowed money osten- sibly in behalf of the corporation, which he had no right to do, and appropriated the same, it was held that the cor- poration was liable.^ Where the board of directors of a bank having authorized the president to borrow money for the use of the bank, he fraudulently drew a draft in favor of a person by whom it was indorsed to the plaintiff, who received it in the usual course of business, without notice of the fraud, it was held that the plaintiff's right to recover was not af- ' Bank of U. S. v. Davis, 2 Hill, wards, 74 Ga. 220 ; Fouche v. Brower, 4SI' lb. 251. = Shelton v. Darling, 2 Conn. 435. ' Leonard v. Burlington Mu. Loan See Cotton States Life Ins. Co. v, Ed- Assoc, 55 Iowa, 594. §115 CORPORATE AGENTS. 39 1 fected by the fraud of the drawer and indorser.^ The pres- ident of a bank having agreed with the plaintiff to take his United States 7-30 notes, and exchange them for 5-20 bonds, the president converted the notes to his own use, and the plaintiff sued the bank for their value. It was urged in defense, that the transaction was with the presi- dent individually, and not with the bank ; but it was held otherwise, and that the bank was liable.^ Where the di- rectors of a joint stock company, in a transaction in behalf of the company with third parties, induce the latter to enter into a contract with them, of which the company avails it- self, the company will be bound, although the fraud con- sists of false statements made by the directors to the com- pany at the annual meeting, upon which such parties rely.^ When the agent, in committing the fraud, acted in relation to a transaction foreign to his agency, no liability will, of course, be incurred by the corporation therefor. The fact that the cashier of a bank used U. S. bonds of the denom- ination of five hundred dollars each, left at the bank for safe keeping, as a special deposit, and replaced them with bonds of the denomination of one thousand dollars each, there being no evidence that the bank either received any benefit from, or had anything to do with the alteration, was held not a conversion of the first-named bonds by the bank.* A party, instead of delivering his money to the re- ceiving teller of a bank, handed it from time to time to the bank's bookkeeper, to deposit it for him. The bookkeeper kept part of the money, but by false entries in the dealer's pass-book, and in the books of the bank, concealed the ab- straction from both. Sometimes, during a pressure of business, the bookkeeper assisted the receiving teller, and ' Ridg way V. Farmers' Bank, 12 Serg. ° Nat. Exchange Co. v. Drew, 32 & Rawle, 256. Eng. L. & Eq. i. ^ Van Leuven v. First Nat, Bank, 54 * Whitney v. First Nat. Bank of Brat- N. Y. 671. tleboro, 50 Vt. 388. See Foster v. Es- sex Bank, 17- Mass. 479. 392 CORPORATE AGENTS. § US sometimes supplied his place in his absence, but none of the money in controversy was delivered to him on those occasions. It w^as held that the bookkeeper, in receiving these moneys, was the agent of the party, and not of the bank, and that the bank was not liable for that portion which did not come to the hands of the receiving teller, or of the person temporarily supplying his place in the bank, or which did not otherwise come into the coffers of the bank.^ An agent, however broadly his authority may be expressed, has no authority to act for himself, or make a contract in which he acts directly for himself, and also as agent of the company.* A., having made a note in blank, handed it to B., a bank director, for him to insert in it a specified sum, and use it to renew a note of A. for the same amount, held by the bank. B. filled up the blank for a much larger sum, and presented the note to the bank to be discounted for his own use, which was done, B. sitting as one of the board of directors when the note was taken by the bank, and not disclosing the foregoing facts to any other director. It was held that A., the maker of the note, was liable to the bank. In respect to paper discounted for B.'s benefit, his attitude in relation to the bank was changed, he then becoming a borrower, and the directors who gave him accommodation could not be affected by a constructive notice of any fact which he individually pos- sessed.^ One of the directors of a bank, who was author- ized, when money was abundant, to solicit and procure notes for discount, obtained possession of a note, under pretence of getting it discounted for the maker, at a time when money was scarce, and pledged it to the bank for a loan made to himself, and a prior debt due by him, the maker knowing that the director was authorized by the ' Manhattan Co.v.Lydig, 4 Johns. 377. « Terrell v. Branch Bank of Mobile, ''Bentley v. Columbia Ins. Co., 19 12 Ala. 502. And see Lucas v. Bank Pick. 595. ofDarien, 2Stew. Ala. 321. §116 CORPORATE AGENTS. 393 bank to procure notes for discount only when money was abundant. It was held that as the director had exceeded his authority in the transaction, the bank was not bound by his fraudulent conduct, and that as he did not act in his capacity of director, the note was recoverable of the maker.^ , When a person, in making a contract, acts as the agent of both parties, the contract is voidable in equity, at the election of the principal. Upon timely application and proof, the court will presume that the contract was injuri- ous, and consequently fraudulent, unless it be shown that the principal, having all the knowledge the agent possessed, gave him previous authority to act as he did. This, how- ever, is a mere rule of equity, the contract not being void, but only voidable. The rule is applicable to all persons placed in situations of trust or confidence, with reference to the subject matter of the contract, and embraces trustees, executors, administrators, guardians, agents, and factors.* § Ii6. Liability of agent for fraud committed by him. — It is scarcely necessary to say that an agent who commits fraud, thereby makes himself personally liable ; as authority derived from a principal cannot be predicated upon such a transac- tion.^ In a case of that kind, the directors of the corpora- tion will not incur personal liability for loss occasioned by the fraud, unless they knew the agent was unworthy of trust.* Where the president and treasurer of a bank pur- chased State stocks to carry on their private undertaking, and signed a contract that the bank would pay for the same, which they proceeded to do with money taken by them from the bank, it was held that they were personally liable for the amount thus taken.® By the charter of a railroad ' Washington Bank v. Lewis, 22 85 ; Atty. Genl. v. Corp. of Leicester, Pick. 24. 7 Beav. 176. ' N. Y. Cent. Ins. Co. v. Nat. Pro- * Scott v. Depeyster, i Edw. Ch. tection Ins. Co., 20 Barb. 468. 513. ^Dodgson's Case, 3 De Gex & S. * Austin v. Daniels, 4 Denio, 299. 394 CORPORATE AGENTS. § Il6 company, its capital stock was limited to $300,000, to be divided into $100 shares each. The whole capital was sub- scribed and paid in, and certificates of stock issued repre- senting the thirty thousand shares actually subscribed and paid for. The by-laws provided that transfers of stock should be made on the books of the company upon the surrender of the certificate of ownership, and a new certifi- cate be issued. The president of the company, who was its transfer agent, in charge of its office and transfer books, and authorized and accustomed to transfer stock, fraud- ulently issued a certificate to a person for a large number of shares, he in fact not owning any stock, and none stand- ing in his name on the books. The plaintiffs in good faith, and having no reason to suppose that the certificate was not genuine, but relying upon it as valid, made a loan to the holder, receiving from him the certificate with an assign- ment and power of attorney to transfer the stock. It was held that the plaintiffs did not acquire a right to any stock, and that the corporation was not liable to them for loss in- curred by loaning money upon the faith of the certificate.^ A president of a bank in charge of its business, with the cashier subject to his directions, permitted money to be drawn from the bank by an irresponsible person who gave no security, for an object in which the president was inter- ested, requesting the cashier to say nothing about the trans- action to the directors. It was held that the president was personally liable to the bank, and could claim nothing on account of the cashier's knowledge.* An act of incorporation imposes no duties on the direct- ors simply as individuals, but on a majority acting as a board. If any one of them improperly obtain and dispose of the funds or property of the corporation, they are liable as 1 Mechanics' Bank v. N. Y. & New Co. v. Schuyler, i; N. Y. (3 Smith) Haven R.R. Co., 13 N. Y. (3 Kernan) 592; 34 lb. 30. 599. See N. Y. & New Haven R.R. » First Nat. Bk. v. Reed, 36 Mich. 263. § Il6 CORPORATE AGENTS. 395 individuals, and not jointly as directors.^ Directors may be rendered personally liable for a fraudulent breach of trust, or gross negligence, or a faithless misappropriation of the trust fund placed in their hands ; or the fund itself may be followed into the hands of any one who is not an innocent purchaser, or an innocent recipient of the same, for a valu- able consideration.* The directors of a corporation having speculated in stocks, which was unauthorized by the char- ter, and done to subserve their private interests, it was held that they were individually bound to make good the loss.' Where the directors of a corporation, by executing a mort- gage, secured to themselves advantages which were not common to all the stockholders, it was held that they had violated a plain principle of equity applicable to trustees.* The directors of an incorporated company are liable in equity as trustees for a fraudulent breach of trust. The pri- mary party to sue in such case is the corporation, it being the party injured. But if the corporation refuses to sue, the stockholders may sue in their individual names.^ Where the agents of a corporation have obtained fraudulent judg- ments against it, and on them made a fraudulent sale of its franchises, it is a wrong primarily committed against the corporation, and no corporator can assume its right to ob- tain redress until the corporation has been found incapable of doing it, or has improperly or collusively refused to do so.^ If a member of a corporation knows that the com- pany is engaged in illegal transactions, and acquiesces in the same by participating in the results, he cannot hold the director^ personally liable for a loss thereby occurring.'' ' Franklin Ins. Co. v. Jenkins, 3 i R. I. 312, per Greene, C. J., citing Wend. 130. Charitable Corp. v. Sutton, 2 Atk. 404 ; ^ Gratz V. Redd, 4 B. Mon. 178 ; Gin- Atty. Genl. v. Utica Ins. Co., 2 Johns, drat V. Dane, 4 Cliff C. C. 260. Ch. 359; Robinson v. Smith, supra; ' Robinson v. Smith, 3 Paige Ch. 222. Cunningham v. Pell, S lb. 607. ^ Koehler v. Black River Palls Co., 2 ^ See Bayless v. Orne, i Freem. Ch. Black. 715. 161 ; Hersey v. Veazie, 24 Me. 9. s Brinckerhoff v. Bostwick, 88 N. Y. ' Scott v. Depeyster, i Edw. Ch. 52 ; Hodges v. New England Screw Co., 513. 396 CORPORATE AGENTS. § 117 The officers of a corporation, authorized to issue certificates to stockholders as evidence of title to stock, are liable, not only .to the immediate purchaser of spurious stock falsely and fraudulently certified by them, but also to any subse- quent purchaser buying upon the faith of the false cer- tificate.^ § 117. Liability of principal for misrepresentations of agent. — So completely is the principal represented by the agent while acting within the scope of his authority and employ- ment, that third parties, for most purposes, are regarded as dealing with the principal himself. In the case of a contract, it is deemed the contract of the principal, and if the agent, at the time of the contract, make any representation or declaration touching the subject matter, it is the represen- tation or declaration of the principal.^ In seeking to enforce 1 Shotwell V. Mali, 38 Barb. 445. In this case, Grover, J., said : " A vendor guilty of fraud in the sale of property is liable only to his vendee, and a subse- quent purchaser does not acquire the right of action. The same rule applies in case of a sale with warranty, and a breach. There is not only no privity, but no fraud practiced or contract made with the subsequent purchaser. It is also true that the purchaser of the stock had a remedy against his vendor for a breach of the impUed warranty of title. But does such right of action constitute a bar to an action against one who had induced the purchase by a fraudulent representation that the vendor had title to the stock where damage resulted from the fraud ? Clearly not. That is but the common case of frauds committed in transac- tions between other parties. And it is no answer to the action that the guilty party obtained no advantage from the fraud, or that some remedy, in some form, exists against another party." See Cazeaux v. Mali, 25 Barb. 578 ; Seizer V. Mali, 32 lb. 76. ' Bank of U. S. v. Davis, 2 Hill. 451, per Nelson, C. J. Where an agent innocently makes a misrepresentation of facts while making a contract for his principal, it will not amount to fraud on the part of the latter, if the principal, though aware of the real state of facts, was not cognizant of the misrepresentation, nor directed the agent to make it. Kelly v. Troy Ins. Co., 3 Wise. 254. The proposition, without qualification, that principals are bound only by the authorized acts of their agents, except where the agent has been apparently clothed with au- thority beyond that actually conferred, is too broad. In a leading case on the subject, where an agent authorized to sell a quantity of silk had made certain fraudulent representations by which the purchaser was deceived, the principal was held Kable. Lord HOLT said : " Seeing somebody must be a loser by this deceit, it is more reasonable that he that employs and puts a confidence in the deceiver should be a loser than a stranger." Hem v. Nichols, i Salk. 3S9. § 1 1 7 CORPORATE AGENTS. 397 contracts entered into by agents, the principal is subject to have them impeached by any conduct of his agent which would have that effect if proceeding from himself. Every species of fraud, misrepresentation, or concealment, there- fore, in the agent affects the principal's right to recover.^ The principal of a mining company demanded the perform- ance of a contract, recognizing the authority of the agent in procuring it, but denying that the company could be affected by his false and fraudulent representations. This denial rested on the alleged ground that the agent possessed limited powers, and was restricted by his principal for making any representations, true or false, on the subject of the contract. It was held that the principal could not give validity to the contract by repudiating the fraudulent prac- tices of his agent in obtaining it.* Where the authority of an agent depends upon some fact outside the terms of his power, and which from its nature rests particularly within his knowledge, the principal is bound by the representation of the agent, although false, as to the existence of such fact.^ In other words : "Where the principal has clothed his agent with power to do an act upon the existence of some extrinsic fact necessarily and peculiarly within the knowledge of the agent, and of the existence of which the act of executing the power is itself a representation, a third person dealing with such agent in entire good faith pursuant to the apparent power, may rely ' It is not a defense to an assessment officers of a corporation, which has be- upon stock that the agent of the corpo- come a stockholder in another corpo- ration who procured the subscription ration, falsely represent the financial exhibited to the defendant a list of sub- condition of the latter, the former is scribers for stock, some of whom were not thereby made liable as a member persons in whose judgment defendant of the latter. Langan v. Iowa & Minn. had confidence, and that relying upon Constr. Co., 49 Iowa, 317. the representations of the agent that ^ Crump v. U. S. Mining Co., 7 Gratt. those persons had subscribed for stock 352. which was not true, the defendant was * Griswold v. Haven, 25 N. Y. 595, induced to subscribe. Chouteau Ins. per Selden, J. Contra, Mechanics' Co. V. Floyd, 74 Mo. 286. Where the Bank v. Schuyler, 13 N.Y. (3 Kern.) 599. 398 CORPORATE AGENTS, § 117 upon the representation, and the principal is estopped from denying its truth to his prejudice." ^ If a person be em- powered by an insurance company to solicit and receive risks of insurance, to receive applications from others for such insurance, and to receive premiums and premium notes therefor, he is thereby constituted a general agent of the company for the transaction of that particular kind of business, and the company will be bound by his fraud- ulent representations in procuring insurances and premium notes.* Although a cashier in a bank ordinarily has no power to discharge a debtor of the bank without payment, or to bind the bank by an agreement that a surety shall not be called to pay a note he has signed, or that he will have no further trouble from it, yet if the cashier, on being inquired of by a surety, informs him that a note held by the bank has been paid, and the surety is thereby induced to give up securi- ' N. Y. & New Haven R.R. Co. v. Schuyler, 34 N. Y. 30, per Davis, J. ^ Devendorf v. Beardsley, 23 Barb. 656. James, J. : " In this case, the agent was not specially au- thorized with limited instructions to induce the defendant to take a policy ol insurance in the company and give his premium note therefor. His powers were more extensive. He was furnished with a roving commis- sion to solicit policies, premiums, and premium notes. It was a particular department of business connected with said corporation, wherein he was au- thorized to act without special instruc- tions ; and in the absence of such in- structions to the contrary, the right to use the ordinary means and induce- ments to accomplish the end is im- plied. Where a person is engaged in a particular department of business, and is employed to do an act within his line, with special instructions, there the general powers derivable from the nature of his ordinary employment will control the limitation ; he will be held to possess such general powers in the particular instance as his ordinary oc- cupation fairly imports to the public ; but in the absence of any such impli- cation of general power, the limitation will control. This case is clearly within such rule. The public knew nothing of the company for whom the agent was seeking insurance risks, and what more natural than that those solicited to take policies should desire to know something of the character, capital, and means of the corporation before be- coming members ; and of whom could inquiry be made, and who more likely to know, than the agent ? The corpo- ration was bound to anticipate that such inquiries would be made, and to know that the agent, whether general or special, bound the principal by his answers and representations in reply thereto." § Il8 CORPORATE AGENTS. 399 ties, the bank will be estopped to deny that the note has been paid.^ The cashier of a bank wrote to S. & Co., the plaintiffs, oflfering- to sell them a bill of exchange drawn by A. & Co. S. & Co. replied by mail, accepting the offer, and at the same time forwarded the money in payment, which the cashier received. The cashier thereupon inclosed to the plaintiffs a bill drawn by B. & Co., with whom the plaintiffs were not acquainted, indorsed without recourse by D., a stranger to the plaintiffs ; the cashier at the same time stating to them that the A. & Co. bill was gone, but that the bill sent was " perfectly safe." The plaintiffs wrote in answer : " Your favor of the 4th instant, with stated in- closure, is received, and is very satisfactory." The bill proving not collectible, it was held that the bank was liable.* § 118. Liability of agent for false representations. — The fol- lowing rule was applied in the case of representations made by a director of an incorporated insurance company, in pubhshed statements and reports as to its financial condi- tion : that an action founded upon deceit and fraud could not be maintained, in the absence of proof that the defend- ant believed, or had reason to believe, at the time he made the statements, that the representations made by him were false, or that he assumed, or intended to convey the im- pression that he had actual knowledge of their truth, though well aware that he had no such knowledge.^ Where the ' Cocheco Nat. Bank v. Haskell, 51 false, and thereby deceived a person, N. H. 116. they were answerable for such misrep- ' Sturges V. Bank of Circleville, 1 1 resentation, and liable for the conse- Ohio St. 1 53. quences. An action cannot be main- ^ Mayer v. Amidon, 45 N. Y. 169; tained against a director, who, with Oberlander v. Speiss, lb. 175 ; Wake- other directors, through the articles of man v. Dalley, 51 N. Y. 27 ; Arthur v. association under which a bank was Griswold, 55 Id. 400 ; Fusz v. Spaun- organized, misrepresented the amount horst, 67 Mo. 256. In Henderson v. of stock actually subscribed and paid Lacon, L. R. 5, Eq. 249, Ward, V. C, in, whereby the plaintiff was induced laid it down distinctly that if the di- to become a stockholder. Mabey v. rectors made a false representation Adams, 3 Bosw. 346. which was material, knowing it to be 400 CORPORATE AGENTS. § 1^9 directors of an insurance company, availing themselves of their official position, individually made, and concurred in the making and publishing by the president and secretary of the company, a statement that the affairs of the company were in a sound and prosperous condition, knowing it to be false, and intending to deceive and defraud all property holders who might be induced thereby to insure their prop- erty in that company, it was held that they were personally liable.^ Notwithstanding the directors, by misrepresenting the condition of the corporation, caused larger dividends to be paid than should have been done, the shareholders, as a body, cannot compel the directors to repay such divi- dends.'' § 119. Liability of corporation for the torts of its agents. — Although a body politic, in its corporate capacity, cannot commit a crime, or perpetrate a felony, yet since such an institution is governed by the intellectual agency of natural persons, they may cause it so far to depart from the pur- poses of its establishment, as by means of its servants to commit a trespass or a tort, or unlawfully to refuse to make compensation for that by which it has been, upon its own request, materially benefited.^ Therefore, for acts done by the agents of a corporation in delicto, as well as in con- tractu, in the course of its business and in their employ- 1 Salmon v. Richardson, 30 Conn, larger debt, it was held that the giving 360. of such a note was not evidence that ' Turquand v. Marshall, L. R. 4, Ch. anything was due from the company to 376. The payment by the cashier of a himself, so as to authorize such a bank of overdrafts on the checks of transfer. Bonaffe v. Fowler, 7 Paige depositors, in the absence of a good Ch. 576. excuse, constitutes a violation of duty. ^ McKim v. Odom, 3 Bland Ch. 421 ; Bank of St. Mary's v. Calder, 3 Strobh. Hay v. Cohoes Co., 3 Barb. 42 ; Wat- 403. Where the president of a manu- son v. Bennett, 12 Id. 196 ; Lyman v. facturing corporation made a note under White Bridge Co., 2 Aiken Vt. 255; the seal of the corporation, payable to Goodloe v. Cincinnati, 4 Ohio, 500 ; his own clerk, for his indebtedness to Nat. Bank v. Graham, 100 U. S. 699 ; certain persons, under tlie pretence Bait., etc., R.R. Co. v. Fifth Baptist that the corporation owed him a much Church, 108 Id. 317. § 119 CORPORATE AGENTS. 4OI ment, the corporation is as responsible as an individual would be under similar circumstances.* The general rule is, that every principal is liable to third persons in a civil suit, for the frauds, deceits, concealments, misrepresenta- tions, torts, negligences, or other malfeasances and omis- sions of duty of his agent in the course of his employment, although the principal did not justify, participate in, or at the time know of such misconduct.* Where a corporation has exerted its power under an unconstitutional statute to the injury of others, its agents are trespassers, and the cor- poration which caused the act to be done is liable for the injury.^ In a case in which it was held that an action for malicious prosecution would He against an incorporated banking in- stitution, it was urged that the remedy for the injury should be sought against the directors of the bank, or the individ- uals, whoever they might have been, by whose agency the malicious suit was prosecuted, and not against the corpo- ration ; that a corporation, from its very nature, could not entertain malice, and that no presumption could arise from the relation of the directors to the bank that the malicious action was authorized by the cdrporation ; that the direct- ors of a bank are its agents, deriving their powers from its charter, and for a wilful and malicious act done by them in excess of their powers thus derived, the corporation could not be rendered liable. To this the court replied that in all the cases wherein it had been held that corpo- rations might be subjected to civil liabilities for torts, the acts charged as such had been the acts of their constituted • Smith V. Birmingham Gaslight Co., Corp., 4 Gray, 465 ; Alexander v. Relfe, I Adol. & El. 526; Maund v. Men- 74 Mo. 495. mouthshire Canal Co., i Car. & M. ' McDougald v. Bellamy, i8 Ga. 411 ; 606 ; Humes v. Knoxville, I Humph. Fishkill Savings Inst. v. Nat. Bank of 403; Whiteman v. Wilmington & Fishkill, 80 N. Y. 162; 36 Am. Rep. Susq. R.R. Co., 2 Harr. Del. 514; Un- 595. derwood v. Newport Lyceum, 5 B. ' Hamilton County v. Cincinnati, etc., Mon. 129; Moore v. Fitchburg R.R. Turnpike Co., Wright, Ohio, 603. VOL. I. — 26 402 CORPORATE AGENTS. § 1 19 authorities, either the directors, agents, or servants em- ployed.^ " It may seem severe to impose upon innocent stockholders damages for the tortious acts of the directors of the corporation when it must be conceded that such acts are in excess of their authority. But it is no more so in fact than to render any other principal liable for the wrongs of his agent committed while in the exercise of his employ- ment. It should be remembered that the stockholders select from their number the directors, and intrust to their management the business of the corporation, and conse- quently assume the risk of loss from their misconduct ; and it should also be remembered that it is a rule of law that if one of two innocent persons must suffer loss by the act of a third, he who put it in the power of the third person to do such act should be compelled to sustain the loss oc- casioned by its commission. The directors are the chosen representatives of the corporation. What they do within the scope of the objects and purposes of the corporation, the corporation does. If they do an injury to another, even though it necessarily involves in its commission a malicious intent, the corporation must be deemed by impu- tation to be guilty of the wrong, and answerable for it as an individual would be in such a case."* In an action against a railroad company for false imprisonment, the plaintiff's evidence showed that he, having traveled on de- fendants' line with a return ticket, at the termination of the return journey surrendered to the ticket collector the re- turn half of another ticket which had then expired, and which he had put in his pocket by mistake for the right one. The ticket collector thereupon took him to the ticket office, where he explained his mistake. Thence the col- lector took him to the company's inspector of police at the 'Goodspeedv. East Haddam Bank, Ricord v. Centr. Pacific R.R. Co., 15 22 Conn. 525. It was held that a rail- Nevada, 167. road company was liable for a malicious * Maynard v. Firemen's Fund Ins. prosecution instituted by its agents. Co., 34 Cal. 48, per Currey, C. J. §119 CORPORATE AGENTS. 403 Station, and the collector and inspector took him to the office of the superintendent of the line, who, refusing to accept plaintiff's explanation, said to the inspector: "I think you had better take him, but first you had better obtain the concurrence of the secretary." The inspector thereupon left and returned shortly afterward (but whether or not he obtained the secretary's concurrence did not ap- pear), and directed a police constable in the pay of the com- pany to take the plaintiff before a magistrate on the charge, who dismissed the complaint. It was held that the conduct of the company's agent in referring to the superintendent as superior authority, was admissible in evidence to show that he was authorized to act for the company in arresting the plaintiff.^ But a corporation is not liable for false imprisonment, or any other wilful trespass of its agent, neither authorized nor ratified,^ The act of New York providing that the owner of a steamboat shall be deemed responsible for the good conduct of the master employed by him, is no more than a declaration of the rule at common law, and is only applicable to the master's conduct as master, and not to his conduct when he goes beyond the scope of his authority by committing a wilful trespass or other wrong. In an action against a corporation for an injury, occasioned by the wilful act of the captain in charge of the defendant's boat, it was held that the corporation was not liable there- for, although the wrong was authorized and approved by its president and general agent.^ Beyond the scope of his employment, the agent is as much a stranger to his princi- pal as any third person, and the act of the agent, not done in the execution of the service for which he was engaged. ' GofF V. Gt. Northern R.R. Co., 3 ' Richmond Turnpike Co. r. Van- EU. & Ell. 672. derbih, i Hill, 480 ; 2 Comst. 479 ; ^ Mitchell V. Rockland, 41 Me. 363 ; Thomson v. Sixpenny Savings Bank, 5 Am. Express Co. v. Patterson, 73 Ind. Bosw. 293. 43°- 404 CORPORATE AGENTS. § I20 cannot be regarded as the act of the principal. Whether the service to be rendered by the principal is in the per- formance of a contract, or in the discharge of any other duty resting on him, makes no difference ; the question being in either case whether the act is within -the scope of the agent's express or implied authority in respect to the principal's service. A person, after procuring a railroad ticket, requested the ageht of the company to check his baggage, but by his overbearing conduct and abusive lan- guage, provoked the agent to strike him with a hatchet. It was held that the wrongful act of the agent in striking the complainant coiald not be regarded as authorized by the company, nor as an act done by the agent in the execution of the service for which he was engaged ; and that the fact that the blow was inflicted with a hatchet furnished by the company, to be used for a wholly different purpose, though in connection with the agent's business, was immaterial as respected the liability of the company.' § 120. Liability of corporation for negligence of its agents. — A corporation is liable for the negligence of its agents while engaged in the business of the agency to the same extent and under the same circumstances that a natural person is chargeable.^ When a bank receives upon good considera- ' Little Miami R.R. Co. v. Wetmore, cannot be charged by third persons for 19 Ohio St. no. mere neglect of duty, but resort must '' New York & New Haven R.R. Co. in such case be had to the principal. V. Schuyler, 34 N. Y. 30. If third per- French v. Fuller, 23 Pick. 108. At sons are injured by the neglect of an common law, where an agency exists, agent to discharge a duty, their action the principal becomes responsible for must be brought against the principal, the acts of his agent, because he has Denny v. Manhattan Co., 2Denio, 115 ; the right to employ, and the authority S. C. 5 lb. 639. It is upon the liability to control him. Where the right of of the corporation, rather than upon employment and the authority to con- that of the treasurer, the stockholders trol are both wanting, no agency can must rely to enforce the payment ol exist ; for the acts of the agent cannot their dividends in a case where no in such a case become the acts of the other ground exists for charging the principal. New York v. Bailey, 2 De- treasurer but his nonfeasance ; in ac- nio, 453. cordance with the rule that a servant § I20 CORPORATE AGENTS. 405 tion a note or bill for collection at the place where such bank carries on business, it is liable for the neglect, omis- sion, or other misconduct of its agents, either in the nego- tiation, collection, or paying over of the money, by which the money is lost, or other injury sustained by the owner of the note or bill, unless there is some agreement to the contrary express or implied.^ A draft was drawn by the Empire Mills, a corporation, upon E. C. Hamilton. It was accepted, " Empire Mills, payable at the American Exchange Bank, by E. C. Hamilton, Treasurer." It was held that as the acceptance did not bind either the drawer or drawee, and the bank neglected to protest the bill, the bank was liable to the holder.* The cashier of a national bank agreed with the plaintiff, for a sufficient consideration, to exchange her bonds, then in the care of the bank, for registered bonds. This was not done, and several months afterward the bonds were stolen. In an action to recover their value, it was held that the bank was liable.^ An ac- tion was brought to recover the value of certain railroad bonds which the plaintiff deposited for safe keeping in a bank organized under the national banking act,* and which were lost, after remaining in the bank two years, the plain- tiff during that time occasionally taking them out, cutting off the coupons, and returning them to the bank. It ap- ' Allen V. Merchants' Bank of N. Y., ' Walker v. Bank of State of N. Y., 9 22 Wend. 215; Com. Bank of Pa. v. N. Y. (5 Seld.) 582. When a promissory Union Bank of N. Y., 11 N. Y. (i note or bill of exchange is received by Kern.) 203. To render a bank liable a bank in the usual course of business for the neglect of its officer, it must for collection, and the bank at the appear that the officer was the agent proper time delivers it to the notary of the bank in the particular transaction generally employed by it to transact that is complained of. Thatcher v. such business, in order that there may Bank of State of N. Y., 5 Sandf. 121. be demand, protest, and notice, the Where bank notes, carelessly left by bank will not be liable for loss caused the officers of the bank in an unfinished by the failure of the notar)' to do his state, are stolen, and the president's duty. Citizens' Bank of Bait. v. How- name forged to them, the bank is not ell, 8 Md. 530. bound to pay them. Salem Bank v. ' Yerkes v. Nat. Bank, 69 N. Y. 382. Gloucester Bank, 17 Mass. i. ''Laws of U. S. of 1864, ch. 106. 406 ' CORPORATE AGENTS. § I20 peared that the bonds were left by the plaintiff at the bank with the teller, who was the son of the cashier, and some- times acted as cashier in the absence of his father ; that the cashier had the sole management and control of the affairs of the bank ; that some of the persons who left valuables in the bank for safe keeping were directors ; and that the teller was in the habit of receiving special deposits at the bank, with the knowledge and consent of his father, the cashier. There was evidence tending to show that if the plaintiff's bonds were stolen, the theft was committed in the daytime, during banking hours ; that the safe in which the bonds were kept, was so situated as to be accessible to a person entering from the street ; that at times the safe was not in view of the officers in charge of the bank, and the door of the safe left open ; and that a thief might have entered from the street, and finding the safe open, abstracted the package without being observed by any one in the room. It was held that the bank was responsible for the bonds, and bound to return them when demanded, or show good reason for not doing so.^ If there be no fraud or 1 Pattison v. Syracuse Nat. Bank, 80 longed to the very nature of such in- N. Y. 82. In this case the court re- stitutions. On the other side it was viewed some of the principal decisions denied that the bank had any such on the subject, and commented upon power, or that it was incidental to the them substantially as follows : " In Fos- business of a bank ; that the authority ter V. Essex Bank, 17 Mass. 479, where could not be inferred from usage, and special deposit had been made with the repetition of unauthorized acts the defendant of a cask containing by the officers could not give them va- gold coin, it was shown that it had lidity, and the officers only were bound, been the practice of the bank to receive It was held that the practice of the special deposits of money and other bank having been to receive such de- valuable things, but there was no reg- posits, it must be deemed the deposi- ulation, by-law, or provision of the char- tary, and not the cashier or other officer ter on the subject. It was claimed by through whose particular agency the the plaintiff that the banks had been in property had been received. In Lloyd the habit of receiving such deposits v. West Branch Bank, 15 Pa. St. 172, from the earliest period ; that the Bank it was determined that the power to of England had no express power to receive deposits conferred on the bank do so, but it had become a part of its by the banking law of Pennsylvania, duty or business by usage, and be- referred to deposits of current money § I20 CORPORATE AGENTS. 407 collusion, a bank, and not the transferee of its stock, will be answerable for loss sustained by an act of the proper officer of the bank arising either from a misconception of received as such, and not to special deposits. But the court did not hold that if a bank is in the habit of receiv- ing on deposit coin or other valuables, such as are usually the subject of spe- cial deposits in banks, it would not be bound by the acts of its officers in re- ceiving them. In Lancaster Co. Nat. Bank v. Smith, 62 Pa. St. 47, where a Special deposit of United States bonds had been made with the bank by de- livering them to the teller, and the teller had afterward delivered them to a third party supposed to be the depos- itor, but without ascertaining his iden- tity, the bank was held liable. The power of the bank to bind itself by re- ceiving the deposit was not disputed, and it was held that it was a question for the jury whether the bank had been guilty of gross negligence. In Scott V. Nat. Bank of Chester Valley, 72 Pa. St. 471, a special deposit of bonds for safe keeping had been made with the defendant by one of its customers, and the bonds were stolen by the teller of the bank, but no negligence on the part of the bank was established, and a verdict on that ground was sustained. The receipt of the bonds was not Claimed to be ultra vires. In First Nat. Bank of Carlisle v. Graham, 79 Pa. St. 106, the plaintiff brought a suit to recover for the loss of United States bonds claimed to have been deposited by her with the bank, and she relied upon a receipt for the bonds, signed by the cashier of the bank, in which he acknowledged that she had left the bonds in the bank for safe keeping. It was admitted that government bonds were received by the bank for safe keeping with the knowledge of the president, cashier, and teller, and with- out compensation. A verdict and judgment having been rendered for the plaintiflj it was reversed on excep- tions to rulings on questions of evi- dence, and to some portions of the charge in submitting to the jury the question of negligence ; but on the point of the liability of the bank the doctrine of Foster v. Essex Bank was reiterated. Turner v. First Nat. Bank of Keokuk, 26 Iowa, 562, recognized the liability of a national bank for a special deposit of bonds. In Smith v. First Nat. Bank of Westfield, 99 Mass. 605, where there was a special deposit of bonds with a national bank, the bank was held to be bailee of the bonds, but liable only for want of ordinary care. And see Giblin v. Mc- Mullin, L. R. 2, P. C. 317. In Chatta- hoochee Nat. Bank v. Schley, 58 Ga. 369, the court, after referring to the previous decisions, held that by habit- ually receiving through its cashier spe- cial deposits to be kept gratuitously for mere accommodation, a national bank will incur liability for gross negligence in respect to any such deposits received in the usual way. In Wiley v. First Nat. Bank, 47 Vt. 546, and 50 Id. 389, it was held that when a special de- posit is received by a national bank even in accordance with usage, and with the knowledge and acquiescence of the directors of a bank, the bank is not liable for its loss even by gross negligence ; on the ground that the bank has no corporate capacity to re- ceive such deposits for safe keeping, and therefore cannot empower any of its officers to incur liability in its be- half by so doing. Approved in Third Nat. Bank of Baltimore v. Boyd, 44 Md. 47, and in First Nat, Bank v. 408 . CORPORATE AGENTS. § I20 his duty, or a want of judgment.^ A national bank loaned to one C. twenty thousand dollars, payable on call, with interest, taking from him his memorandum of indebtedness for that sum, with, as collateral security therefor, what pur- ported to be a certificate of two hundred shares of the stock of a railroad company. The certificate was originally for two shares of the stock, but fraudulently altered so as to purport to be a certificate for two hundred shares. The bank received the certificate in good faith, and without any suspicion that it was not genuine. Subsequently, upon payment by C. to the bank, he received back his memo- randum of indebtedness, and the cashier of the bank re- turned to him the fraudulent certificate, with the usual form of transfer on the back. Afterward, one M. loaned to C. twenty-five thousand dollars on call, with interest, and received from C. in good faith the fraudulent certifi- cate, the signature of the cashier being well known to M. Shortly afterward the fraudulent alteration of the certificate first became known to the bank and M. It was held that the bank was liable to M. for the loss sustained.* Where a cor- porate fund was deposited in a bank in such a manner as to give the officers of the bank reason to suppose that the de- posit was made by the president of the bank, and was to be drawn out on his signature, and the officers of the bank afterward paid out the money on his check, supposing that he was authorized to withdraw it, it was held that the bank was not liable for the loss thereby sustained by the corpo- Ocean Nat. Bank, 60 N. Y. 278. In the incidental powers of the corpora- the latter case the opinion proceeded tion, the power of its officers to bind it upon the ground that the receiving of can be presumed only to exist within special deposits was not shown to be the scope of its ordinary business, and part of the ordinary business of the their ordinary duties." bank ; that there was no evidence that ' Hodges v. Planters' Bank, 7 Gill the bank had been in the habit of re- & Johns. 306 ; Albert v. Savings Bank ceiving such deposits ; that no author- of Bait., i Md. Ch. 407. ity of the cashier or assistant cashier ' Mathews v. Mass. Nat. Bank, I to receive such deposits had been Holmes, 396. shown, and that whatever might be § I20 CORPORATE AGENTS. 4O9 ration.^ Paper in packages was insured against loss during its transportation on a canal boat, and a portion having been laden on deck, and lost, the question was whether it was protected by the policy, which provided that the com- pany should not be liable for loss or damage to goods or property on deck, unless by special agreement in writing indorsed on the policy. It appeared that the agents of the company, before the boat started, were told how the boat was loaded, and were requested to go and look at it. It was held that as the policy was in their possession, it was their duty to make the indorsement in proper form, so as to cover the risk, and, as they did not do it, the company must be deemed to have waived the condition.** A person expecting the arrival of goods by railroad, directed to his care, sent a cartman to the depot to get them. The latter, having paid the freight, and taken a receipt, asked the de- livery agent for the goods, who said that they were not there, but had been already delivered. The cartman pointed out several packages which lay together by them- selves, and asked if they were not the ones he was after, which in fact they were. The agent turned over one of the packages, and stated that they were not the goods in- quired for, but came from a different place ; and the cart- man left them and went away. The delivery agent dis- covered his mistake a short time afterward, but sent no word to the owner, and the following night they were de- stroyed by fire. It was held that the agent, in declaring that the goods were not at the depot, but had been deliv- ered, that the goods which were there came from another place, which was not true, in failing to examine the marks on the goods by the way-bill, and generally, in the hurried and superficial manner in which he made his examination, when a slight degree of care and attention would have as- ' Fulton Bank v. N. Y. & Sharon ^ Allen v. St. Louis Ins. Co., 85 N. Canal Co., 4 Paige Ch. 127. Y. 473. 4IO CORPORATE AGENTS. § I20 certained the truth, was chargeable with negligence, for which the railroad company was liable for the value of the goods lost.^ The fact that the negligent act was done without the sanction of the corporation, or that its agents were carefully selected with reference to their competence, would not constitute a bar to an action. The disobedience of orders of an agent may be the very negligence which produces the mischief.* The same considerations of public policy de- mand that the law should be applied as rigidly to railroad companies as to any other species of passenger carriers. And it makes no difference as to the liability of the com- pany for the injury of a person caused by the negligence of the company's servants, that he was traveling on the road without paying fare.^ There is no distinction between railroads and ordinary highways in regard to the degree of care which the law re- quires on the part of those who have the direction or man- agement of vehicles upon them. By this, it is not meant to be understood that the same precautions or preventive measures are required or tolerated indiscriminately in all such cases.* In an action against a railroad company for injury sustained by the plaintiff at a crossing, the defend- ants contended that they were only bound to exercise ordi- nary care, and they offered to show that they had used the same care that those having charge of engines usually ex- ercised. The court held that this would not of itself amount to a justification in relation to the case, which the defendants were bound to exercise ; but instructed the jury- that the defendants were bound to exercise reasonable care ' Stevens v. Boston & Maine R.R., i poration will not be permitted to take Gray, 277. See Norway Plains Co. v. advantage of the neglect. Bargate v. Boston &'Me. R.R., Ibid. 263. Shortridge, 31 Eng. L. & Eq. 46. ' When it is the duty of the directors ' Gillenwater v. Madison, etc., R.R. of a corporation to do certain things Co., 5 Ind. 339. which they neglect to do, and third ^ Beers v. Housatonic R.R. Co., 19 persons thereby sustain injury, the cor- Conn. 566. § I20 CORPORATE AGENTS. 41I and diligence in passing over crossings with their engines ; that if what was reasonable care at crossings had become established by usage, the care ordinarily observed would be the test of reasonable care ; but inasmuch as railroads were of recent introduction, and no such usage had become es- tablished, the jury would decide upon their own judgment, in view of all of the circumstances, and the explanatory evidence in the case, whether the defendant had exercised reasonable care.^ In an action for injuries caused by fire communicated to the plaintiff's property by the locomotives of a railroad company, reasonable care and diligence were defined by the court to be : " having engines properly con- structed and in good order, with suitable fixtures for pre- venting injuries by fire ; spark-catchers such as are known to the company to have been used and approved of, and such as are best calculated to prevent the emission of sparks, allowing at the same time a sufficient draft upon the fire to create steam enough for the purpose of propel- ling the engine at a proper speed ; such care and diligence in using the locomotive upon the road as would be exer- cised by skilful, prudent, and discreet persons, having the control of the engine, regarding their duty to the company, and having a proper desire to avoid injuring property along the road." ^ The causes of delay which will excuse a carrier of goods from the performance of his duty to carry within the usual or ordinary period required for the transportation he un- dertakes, must be only those which occur without his fault, or the fault of his agents, servants, or employes. This rule is applicable to corporations ; for to say that the want of fidelit}'' on the part of the servants of a corporation excuses it from the performance of any duty which it owes to a third per- son would be to practically exempt it from liability for any > Bradley v. Boston & Me. R.R., 2 « Boston & Susq. R.R. Co. v. Wood- Cush. 539. See Memphis v. Lasser, 9 tuff, 4 Md. 342. Humph. 757. 4i: CORPORATE AGENTS. § I 20 negligence, or any misfeasance, which was not the immedi- ate or necessary consequence of a corporate act. Where, in consequence of the sudden refusal of nearly all of the engineers in the employ of a railroad company to run the trains, and in consequence of delay in transportation the plaintiff's goods were rendered nearly worthless, it was held that the company was liable for the loss.^ A railroad company has been held liable to an employ^ for an injury caused by the negligence of other employes when he has no participation in the duties the neglect of which contributed to the injury complained of.* But where it appeared that one Farwell was employed by a railroad ' Blackstock v. N. Y. & Erie R.R. Co., I Bosw. 77. Woodruff, J. : " It cannot for a moment be claimed that a combination, resulting in a refusal to work by one hundred and forty out of one hundred and sixty-eight men of skill, whose services were indispens- able to the conduct of the defendants' business, ought to have been foreseen, when there was no just cause for such a refusal ; and it was probably impos- sible, by any ordinary means, to have supplied their places on the day on which their refusal took effect ; indeed, on so short a notice as defendants re- ceived, it may be regarded as quite impossible. Nevertheless, we must re- gard the hazard of such an occurrence as resting upon the employers. They alone have it in their power to secure, by proper contracts, indemnity against the consequences of misconduct by the employe. The owner of goods has no control or right of interference in the matter, and we perceive no ground on which to relieve the defendants from the hazard to which the nature of their business, and the vast extent to which it involves the employment of assist- ants, necessarily subject them. And, although they are in a degree placed within the power of extensive combi- nations among their servants, that, we think, furnishes no legal reason for vis- iting the consequence upon third per- sons. Practically, the defendants in such circumstances may suffer by the misconduct of their servants without redress, but the law imposes no hard- ship ; on the contrary, it will hold the unfaithful servant Uable for the direct and immediate consequences of his own fault, and this will, so far as the law can do so, give to the master indem- nity. It ought not to be doubted, and probably would not be doubted, that if, by the negligence of a single engin- eer in charge of a train, or by his per- verse refusal to perform his duty, his train was unnecessarily delayed, the company would be liable for the delay. When the delay is said to be excused if it happen without their fault, the term is not used as imputing personal blame, but it means without fault on their part, in their servants, or other- wise. If this be so, it is difficult to perceive how, in principle, the rule of liability is affected by increasing the number of servants who are guilty." " Gillenwater v. Madison, etc., R.R. Co., 5 Ind. 339. § I20 CORPORATE AGENTS. 413 company as engineer on a passenger train, and Whitcomb, another servant of the company, who was in its employ- ment as a switch tender, and well known to Farwell as faithful and trustworthy, carelessly left a switch in a wrong position as Farwell's train was passing, whereby the cars ran off the track, and Farwell injured, it was held that Jie had no right of action ; that he contracted with reference to the risks of the employment ; that he accordingly re- ceived compensation in wages for those risks ; and that it would be contrary to public policy to permit a recovery the tendency of which would be to produce carelessness among servants and agents, to the danger of the public.^ In Wisconsin, the statute makes railroad companies liable for damage sustained within the State by an agent or ser- vant from another agent or servant, without contributory negligence on the part of the former ; and, in case of death, the right of action is preserved to the personal representa- tive of the deceased person.^ It has been held in New York, that, where the act which a corporation employs an independent contractor to do is lawful as against the plaintiff, and the occurrence causing injury is not the necessary con- sequence of the contract, but results from want of care in doing the work, the corporation is not liable unless it re- tains the right to select, control, and direct the workmen ; and the employment by it of a superintendent, engineer, or architect to see that the work is done properly, and in accordance with the contract, does not give him such con- trol of the workmen as to render the corporation liable for their negligent acts.^ ' Farwell v. Boston & Worcester control over the performance of such R.R. Co., 4 Mete. 49. A corporation services, no liability attaches. Dayton is not liable for the misconduct of its v. Pease, 4 Ohio St. 80. officers when performing duties for or ' Rev. Sts. of Wis., sees. 1816, 4255 ; between private individuals. In such Gumz v. Chicago, etc., R.R. Co., 52 cases, the whole duty of the corpora^ Wis. 672. See Pool v. same, 53 Id. tion is performed when the selection is 657. made, and having no interest in or ' Burmeister v. N. Y. Elevated R.R. 414 CORPORATE AGENTS. § 121 § 121. Liability of agents for negligence. — By the civil law, " those who are named by companies and corporations to have the direction of their affairs, are obliged to take the same care and diligence as factors or agents. They are answerable, not only for any fraud and gross negligence which they may be guilty of, but also for all faults that are contrary to the care required of them."'' Directors must not only use good faith, but also care, attention, and cir- cumspection in the affairs of the corporation, and particu- larly in the safe keeping and disbursement of funds com- mitted to their custody and control. They must see that these funds are appropriated as intended to the purposes of the trust, and, if they misappropriate them, or allow others to divert them from these purposes, they will be per- sonally liable.* Bank directors are not mere agents, like cashiers, tellers, and clerks, but trustees for the stockhold- ers. They not only act for the bank, but, in a qualified sense, are the bank itself. " It is the duty of the board to exercise a general supervision over the affairs of the bank, and to direct and control the action of its subordinate offi- cers in all important transactions. Their contract is not alone with the bank. They invite the public to deal with the corporation, and when any one accepts their invitation, he has the right to expect reasonable diligence and good faith at their hands ; and, if they fail in either, they violate a duty they owe, not only to the stockholders, but to the creditors and patrons of the corporation."^ But an action cannot be maintained by an individual holder of shares in an incorporated bank against the directors for acts of neg- ligence and malfeasance in consequence of which the cap- Co., 47 N. Y. Super. Ct. 264. See Blake dell, 96 Pa. St. 175; Keystone Bridge V. Ferris, 5 Id. 48 ; Peck v. Mayor, etc., Co. v. Newberry, lb. 246. 8 Id. 222 ; Kelly v. Mayor, etc., 1 1 Id. ' Domat, book 2, tit. 3, sec. 2. 432 ; Gardner v. Bennett, 38 N.Y. Super. ' Shea v. Mabry, I Lea. Tenn. 319. Ct. 197; Clare v. Nat. City Bank, 40 ' United Soc. of Shakers v. Under^ Id. 104; Nat. Tube Works Co. v. Be- wood, 9 Bush. 609. §121 CORPORATE AGENTS. 415 ital of the bank has been wasted and lost, and the shares of the plaintiff rendered valueless ; there being no legal privity between the holders of shares in a bank in their in- dividual capacity on the one side, and the directors of the bank on the other. The stock and property of the bank are vested in it as a corporation, and to it all agents, debt- ors, officers, and servants are responsible. Although the stockholders ordinarily elect the directors, yet they do so as parts and members of the corporation, so that the direct- ors are the appointees of the corporation, not of indi- viduals.^ The directors of a gas company were held liable for a nuisance created by the superintendent and engineer under a general authority to manage the works, though they were personally ignorant of the particular plan adopted, and though such plan was a departure from the original and understood method, which the directors had no reason to suppose had been discontinued.* When it is usual and necessary for an agent to employ a sub-agent to transact the business, the agent will not or- dinarily be responsible for the negligence or misconduct of the sub-agent if he has used reasonable diligence in his ' Smith V. Hurd, 12 Mete. 371 ; Ab- been utterly ruined by the inattention bott V. Merriam, 8 Cush. 588. "We and negligence of the directors and forbear to say what degree of neglect officers, not to say by their flagrant and inattention in the directors and mismanagement and fraud. The offi- officers of incorporated companies in cers in our public and private institu- the duties for which they are appointed, tions are solemnly pledged, by the ac- and which they are understood to en- ceptance of office, to the exercise of gage to perform to some reasonable integrity and vigilance in discharging extent toward the stockholders and their trust, and, while the pledge is so the confiding public, will subject them often left unredeemed, it will do the to damages. That is a delicate point community no harm for judges to hold to settle, and not likely to be correctly the reins of accountability somewhat determined upon the common notions more tightly than they have been held which seem to prevail too generally for years past." Ellsworth, J., in among certain classes in the commu- Calhoun v. Richardson, 30 Conn. 21a nity. Thousands of innocent and con- See Lexington & Ohio R.R. Co. v. fiding stockholders, as well as strangers Bridges, 7 B. Mon. 556. dealing with such corporations, have ' Rex v. Medley, 6 Car. & P. 292. 4i6 CORPORATE AGENTS. § I2T choice as to the skill and ability of the sub-agent.^ There- fore when a bank, upon receiving a note for collection, places it in the hands of a notary, the bank will not be liable for the neglect of the notary ; and it has been held that to rebut this prima facie exemption from liability, it- is not sufficient to show that the notary was addicted to intoxication. If, however, the notary was not competent, by reason of his drunkenness, at the time the note was de- livered to him, the bank would be liable ; and that would be a question for the jury.^ Although the general agent of a company is not liable for the bad debts, or for the negligence or faithlessness of agents whom he has neces- sarily employed, yet when it is his duty to see that the debts due the company are collected, he is bound to exer- ' Bank of Ky. v. Schuylkill Bank, Parsons' Sel. Cas. i8o ; Fabeus v. Mer- cantile Bank, 23 Pick. 332 ; Dorches- ter, etc.. Bank v. New England Bank, I Cush. 177. " Agricultural Bank v. Commercial Bank, 7 Smed. & Marsh, 592. See Tierman v. Commercial Bank of Nat- chez, 7 How. Miss. 64S ; Frazier v. New Orleans Gas Light, etc., Co., 2 Rob. La. 294 ; Baldwin v. Bank of La., I La. An. 13; Bellemire v. Bank of U. S., 4 Wheat. 105. In a case in New York, where a contrary view was taken, it was conceded that the collecting bank would not be liable for the default of the sub-agent, if there had been any understanding or agreement, express or implied, that the notes were to be transmitted to a sub-agent for collec- tion. Allen V. Merchants' Bank, 22 Wend. 215. See Chickopee Bank v. Eager, 9 Mete. 584 ; Warren Bank v. Suffolk Bank, 10 Cush. 582. In Smedes V. Bank of Utica, 20 Johns. 372, where the bank was held liable by reason of its having employed a person to make demand and give the notice who was not a competent agent, WOODWORTH, J., in delivering the opinion of the court, said : " If the note had been de- livered to a notary, it would have pre- sented a different case. Notaries are officers appointed by the State ; confi- dence is placed in them by the govern- ment. This may be evidence suffi- cient to justify an agent in committing to them business relating to their of- fices, although in point of fact it might subsequently appear they did not pos- sess the necessary quahfications." In Maryland, it has been held that "When, in the ordinary course of business, without any special agreement on the subject, a note or bill is received by a bank for collection, which is in due time delivered by it to the notary usually employed in such matters by the bank, so that the necessary de- mand, protest, and notices may be made and given by him, the bank will not be answerable in case of loss re- sulting from a failure of the notary to perform his duty." Citizens' Bank of Bah. V. Howell, 8 Md. 530. § 122 CORPORATE AGENTS. 417 cise ordinary diligence for that purpose.^ If the drawer of a bill of exchange, made payable at a bank where he has no account and no money, and where there is a receiving as well as a paying teller, hands the amount to the paying teller, because, from his position in the bank, the bill will necessarily be presented to him for payment, the paying teller becomes the agent of the party who leaves the money with him, and the bank is not responsible for his conduct in relation to it.^ § 122. Rule as to fiduciary relation. — It is a well-settled principle that a person having a duty to perform for others, cannot act in the same matter for his own benefit. The rule which prevents an agent or trustee from acting for himself in a matter where his interest would conflict with his duty, also prevents him from acting for another whose interest is adverse to that of the principal ; and in all cases where, without the assent of the principal, the agent has assumed to act in such double capacity, the principal may avoid the transaction at his election. No question as to its fairness or unfairness can be raised. The law holds it constructively fraudulent, and voidable at the election of the principal.^ Such a transaction is voidable, not merely 1 Williams v. Gregg, 2 Strobh. Eq. judgment was evidence that there had 297. been a recovery against the bank, and ' Thatcher v. Bank of the State of what amount of damages it had been New York, 5 Sandf. 121. In a suit by compelled to pay ; but not proof against a bank, against which a judgment has the cashier for any other purpose, been obtained by the owners of a note Whether the bank could charge the deposited in the bank for collection, for loss upon' the cashier depended upon failure to give the indorser notice in whether it could show that the mistake proper time, brought against the cashier occurred through his culpable negli- to recover the damages to which the gence. "That question should have bank has been subjected by his neglect been left to the jury, with the instruc- of duty in the matter, it is error in the tion that in deciding it, they should lay judge to charge that a recovery having out of view the fact that a judgment been had against the bank in conse- had been recovered against the bank." quence of the mistake of the cashier Bankof Owego v. Babcock, 5 Hill, 152,. after the day the note fell due, he was per Bronson, J. responsible to the bank which had ° U. S. Rolling Stock Co. v. Atlantic,, been made liable by his neglect. The etc., R.R. Co., 34 Ohio St. 450. See . VOL. I.— 27 4i8 CORPORATE AGENTS. § 122 for want of authority in the agent, but because the corpo- ration itself, by whatever votes it may act, cannot do, as- sent to, or confirm it ; the wropg to the individual share- holder being the same, whether committed with the concurrence, or subsequent approval and adoption of his associates controlling the corporation.^ It follows from what has already been said, that an agent employed to purchase for another, cannot purchase for himself, whether he be actually or constructively an agent. He is in such case a trustee for his employer.^ The prin- Aberdeen R.R. Co. v. Blackie, i Mc- Queen, H. L. Cas. 461 ; Bisham's Eq. 106 ; Buell V. Buckingham, 16 Iowa, 284 ; Brewster v. Hatch, 10 Abb. N. C. 400. ' Brewer v. Boston Theatre, 104 Mass. 378, per Wells, J. " When a corporation aggregate is formed, and the persons composing it, either by virtue of the compact, or by the ex- press terms of the charter, place the management and control of its affairs in the hands of a select few, so that life and animation may be given to the body, then such directors become the agents and trustees of the corporation, and a relation is created, not between the stockholders and the body corpo- rate, but between the stockholders and those directors who, in their character of trustees, become accountable for any wilful dereliction of duty, or viola- tion of the trust reposed in them. I see no objection to the exercise of an equity power over such persons in the same manner as it would be exercised over any other trustees.'' McCouN, V. C, in Verplanck v. Merc. Ins. Co., I Edw. Ch. 84. But the right to avoid the contract because the agent has a personal interest in its subject matter adirerse to that of the principal, or has assumed an incompatible duty, is one arising in equity for the protection of the principal. It was held that where the same person was made the agent of two mining corporations in the same vicinity, and it became necessary for one to deal with the other, he must be presumed to have the same power to act for both that would be possessed if there were two agents, acting sepa- rately, and might dispose of property in the same way. The court said : " The authority of agents, where no law is violated, is as large as their em- ployes choose to make it. There are multitudes of cases where the same person acts under power from diflferent principals in their mutual transactions. Every partnership involves such double relation. Every survey of boundaries by a surveyor jointly agreed upon, would come within similar difficulties. There can be no presumption that the agent of two parties will deal unfairly with either." Adams Mining Co. v. Senter, 26 Mich. 73. * Church v. Sterling, 16 Conn. 388; Cumberland Coal Co. v. Sherman, 30 Barb. 553. It is well settled that a trustee cannot, directly or indirectly, by himself, or through the agency of another, become the purchaser of the trust estate. Neither can he purchase an interest in property, and hold it for his own benefit, when in respect to such property he has a duty to perform inconsistent with the character of a purchaser on his own account. Van § 122 CORPORATE AGENTS. 419 ciple is not confined to a particular class of persons, such as guardians, trustees, or solicitors, but is a rule of universal application to all persons coming within it, which is, that no person can be permitted to purchase an interest where he has a duty to perform that is inconsistent with the char- acter of purchaser.^ The rule that an agent employed to sell cannot purchase the property himself, " stands upon our great moral obligation to refrain from placing ourselves in relations which ordinarily excite a conflict between self- interest and integrity. It restrains all agents, pubhc and private ; but the value of the prohibition is most felt, and Epps V. Van Epps, 9 Paige Ch. 237 ; Slade V. Van Vechten, 11 lb. 21 ; Haw- ley V. Cramer, 4 Co wen, 717 ; Abbot v. Am. Hard Rubber Co., 33 Barb. 578. " This rule of restriction upon the pow- ers of the trustee invalidates every in- direct as it does every direct transfer to himself, or for his benefit ; and the intervention of a third person as a means or channel by and through whom the title is transferred from the cestui que trust, and eventually vested in the trustee, will not uphold the transaction and sustain the title of the latter. Courts will look through the means to the end, and apply the proper remedy for the breach of trust. If the circum- stances clearly show that the two transfers constitute but one transaction, they will be treated as parts of a single transaction, together perfecting a trans- fer from the trustee qua trustee to himself individually. When the thing transferred does not rest in the posses- sion of the first transferee, but is im- mediately by him passed over to the trustee for his benefit, or to an associ- ation represented by him, in whole or in part, the law will hold it to be a transfer in violation of the trust. The rights of cestuis que trust require, in such cases, that the law should pre- sume that the intermediate taker of the property was but the agent and in- strument of the trustee — a means of conveyance. The contrary of the pre- sumption ought not to be proved, or even alleged. It would be unsafe to uphold a transfer under such circum- stances, for want of express proof of the actual intent of the parties from the facts, or upon their oath, that the repurchase of the trustee was an after- thought. When the title remains in the immediate grantee but for a mo- ment, or for a brief period of time, and is at once transferred to the trustee, or for his benefit, the presumption that the two transfers were only intended to effect the one object, that of convey- ing the property to or for the benefit of the trustee, is as strong as is the malicious intent to kill from the dehb- erate use of a deadly weapon. This rule of law which makes certain cases of presumption conclusive, merely at- taches itself to the circumstances when proved ; it is not deduced from them. It is not a rule of inference from testi- mony, but a rule of protection as expe- dient for the public good." lb. per Allen, J. ' Greenlow v. King, 5 Lond. Jur. 18; Torrey v. Bank of Orleans, 9 Paige Ch. 649 ; S. C. 7 Hill, 260. 420 CORPORATE AGENTS. § 122 its application is more frequent, in the private relations in which the vendor and purchaser may stand toward each other. The disability to purchase is a consequence of that relation between them which imposes on the one a duty to protect the interests of the other, from the personal dis- charge of which duty, his ovvrv personal interests may with- draw him. .In this conflict of interests the law wisely interposes. It acts, not on the possibility that, in some cases, the sense of that duty may prevail over the motives of self-interest ; but it provides against the probability in many cases, and the danger in all cases, that the dictates of self-interest will exercise a predominant influence and su- persede that of duty. It therefore prohibits a party from purchasing on his own account that which his duty or trust requires him to sell on account of another, and from pur- chasing on account of another that which he sells on his own account. In effect, he is not allowed to unite the two opposite characters, of buyer and seller, because his inter- ests, when he is the seller or buyer on his own account, are directly in conflict with those of the person on whose ac- count he buys or sells." ^ In Aberdeen R.R. Co. v. Blai- kie,* the House of Lords, reversing the judgment of the court below, held that a contract entered into by a manu- facturer for the supply of iron furnishings to a railroad company, of which he was a director, could not be enforced against the company. Lord Cranworth said : " Such an agent has duties to discharge of a fiduciary character toward his principal ; and it is a rule of universal application, that no one having duties to discharge shall be allowed to enter into engagements in which he has or can have a personal in- terest conflicting, or which may possibly conflict, with the interests of those whom he is bound to protect. So strictly is this principle adhered to, that no question is allowed to ' Wayne, J., in Michoud v. Girod, 4 » McQueen, 461 ; H, L. Cas. 461. How. 555, citing 2 Surge's Com. 459. § 122 CORPORATE AGENTS. 42 1 be raised as to the fairness or unfairness of a contract so entered into. It obviously is or may be impossible to dem- onstrate how far in any particular case the terms of such a contract have been the best for the cestui que trust which it was possible to obtain. It may sometimes happen that the terms on which a trustee has dealt, or attempted to deal, with the estate or interests of those for whom he is a trus- tee, have been as good as could have been obtained from any other person ; they may even at the time have been better. But still, so inflexible is the rule, that no inquiry on that subject is permitted." Where the president of a corporation, who was also the agent of a third party, made a loan as agent to the corporation without consulting the directors or trustees, or his principal, and advanced a por- tion of the money thus obtained to himself in payment of a claim against the corporation for his salary as president, it was held that the transaction, which was ratified by a resolution of the board of trustees by his casting vote, was void, he being personally and directly interested.^ The trustees of a corporation having passed a resolution to bor- row money with which to pay the debts of the corporation, and to give a mortgage on its property to secure the loan, the mortgage to be executed by the president and secretary, the president bought the debts and assigned them to a firm of which he was a member, and executed the mortgage to the firm. In an action to foreclose, it was held that the transaction could not be upheld. " It was to the interest of the president, in purchasing the debts of the corporation. ' Chamberlain V. Pacific Wool Grow- 27 Cal. 255. It is improper for the ing Co., 54 Cal. 103. A promissory president of a corporation to hold the note having been executed by the pres- positions of contractor to claim payment ident and secretary of the company, for work done in its behalf, and engin- and gfiven to secure payment of an indi- eer to certify to the completion of the vidual indebtedness of one of the di- work, and that the amount claimed is rectors of the company to the payee, it due. Keeler v. Brooklyn Elevated was held not the note of the corpo- R.R., 9 Abb. N. C. 166. ration. Hall v. Auburn Turnpike Co., 422 CORPORATE AGENTS. § 122 to buy them at as great a discount as possible. The greater the discount, the greater his gain. If he succeeded in pur- chasing the debts at any discount, to that extent he secured to himself an advantage not common to all of the stock- holders." ^ A director of a corporation is the agent or trustee of the stockholders, and as such has duties to discharge of a fidu- ciary nature toward his principal, and is subject to the obligations and disabilities incident to that relation.' Di- rectors cannot waive the provisions of a prohibitory statute forbidding them from participating in the benefits of a contract ; ^ nor can they, while directors, divest themselves of the knowledge they have acquired in confidence, of cor- porate affairs, or of the value of corporate property, nor be allowed to use it to their own advantage.* " The directors of a railroad company are in an important sense regarded as trustees of the shareholders, and it would be a breach of duty to transfer that trust ; to assume obligations incon- sistent with that relation ; to place themselves in opposition 'Davis V. Rock Creek, etc., Mining Iron Co., 2 Black. 715; European & Co., 55 Cal. 359; 36 Am. Rep. 40. In North Am. R.R. Co. v. Poor, 59 Me. the foregoing case, it did not appear 277 ; Flint, etc., R.R. Co. v. Dewey, whether or not the president of the 14 Mich. 477 ; Alford v. Miller, 32 corporation secured the demands at Conn. 543 ; Redmond v. Dickerson, I any discount. The court remarked Stockt. Ch. (9 N. J. Eq.) 507 ; Gray v. that the law did not permit any inquiry N. Y. & Va. Steamship Co., 3 Hun, into that question ; but that occupying, 383. A director cannot, with a view as he did, the position of trustee, he to share in the profits, rightfully be- should not have put himself in a posi- come a member of an improvement tion adverse to his cestuis que trust. company with which a railroad com- ' Cumberland Coal Co. v. Sherman, pany has a contract to furnish the 30 Barb. 553; Guild v. Parker, 43 N. means with which to construct the J. 430 ; Clark v. San Francisco, 53 road ; and if any gains should be real- Cal. 306 ; Bank v. Downey, lb. 466 ; ized in the enterprise, they would be- Chouteau v. Allen, 70 Mo. 290. long to the railroad company ; upon ' Barton v. Port Jackson, etc., Plank the equitable principle which forbids a Road Co., 17 Barb. 397. person acting in a fiduciary capacity * Hoyle V. Plattsburgh & Montreal from speculating out of the subject of R.R. Co., 54 N. Y. 314; Cumberland the trust. Gilman, etc., R.R. Co. v. Coal Co. V. Sherman, supra, and cases Kelly, 77 111. 426. cited ; Koehler v. Black River Falls § 122 CORPORATE AGENTS, 423 to the interests of the stockholders, or in such position where their own individual interests would prevent them from acting for the best interest of those they represent. The rule is the same that applies to all persons acting in any fiduciary capacity that requires the utmost fidelity to the interest of the cestui que trust. The rule in its general sense embraces every relation in which there may by any possibility arise a conflict between the duty of the person with whom the trustee is dealing, or on whose account he is acting, and his own individual interest."^ An agreement to control the action of the directors, and to cause them to agree by vote to pay the plaintiff's claim without reference to its legality, and regardless of their duty to the corpo- ration or its creditors, would be void.* Although it is a general rule that a contract between a person sustaining a fiduciary relation and his fiduciary is not void but voidable, and that it is valid in equity as well as at law unless the fiduciary repudiates or complains of it, yet there may be a case where such a contract would be void ab initio? A contract entered into by the executive committee of the board of directors of a railroad company with A. and B., and assigned by the latter without consideration to a new company in which a majority of the stock was taken by six directors of the old company, was held fraudulent and void. The court remarked that all arrangements by the directors of a railroad company to secure an undue advan- tage to themselves at its expense by the formation of a new company as an auxiliary to the original one, with an understanding that they, or some of them, should take stock in it, and then that valuable contracts should be given ' Ryan v. Leavenworth, etc., R.R. to himself any advantage over other Co., 21 Kans. 365. stockholders or creditors, equity will '' Bliss V. Matteson, 52 Barb. 335. treat the transaction as void, or charge ' Twin Lick Oil Co. v. Marbury, 91 him as a trustee for the benefit of the U. S. (i Otto) 587. If a director, by injured party. Corbett v. Woodward, means of his power as such, secures 5 Sawyer C. C. 403. 424 CORPORATE AGENTS. § 122 to it, in the profits of which they as stockholders in the new company were to share, amounted to so many un- lawful devices to enrich themselves to the detriment of the stockholders and creditors of the original company, and would be condemned whenever properly brought before the courts for consideration.^ Where the officers and directors of an insolvent corporation made notes of the company in their own favor for its indebtedness to them, it was held a fraud in law, and that they thereby obtained no preference over the other creditors.* A director or stockholder may trade with, borrow money from, loan money to the corpo^ ration of which be is a member, take back a mortgage to secure the same, and be a purchaser at the foreclosure sale, provided the transaction is free from fraud and oppression, and for the interest of the company.* A. entered inta a •Warden v. R.R. Co., 103 U. S. (13 in the negotiations for.and final adoption: Otto) 651. See Thomas v. Browns^ of, the bargains by his co-directors., ville, etc., R.R. Co., j McCrary C. C. The very words in which he asserts his 392. " Where the right is one which right, declare his wrong. He ought to must stand, if at all, upon an express have participated, and in the interest contract, and which does not arise by pf the stockholders, and if he did not, operation or irapjication of law, then and they have thereby suffered loss, of he shall not hold it against the will of which they shall be the judges, he must his cestui que trust ; ioXy in the very restore the rights he has obtained ; he bargain which gave rise to it, in which must hold against them no advantage he should have kept in view the interest that he has got through neglect of his of the cestui que trust, there intervened duty toward them. The application of before his eyes the opposing interest of the rule is most frequent in the relar himself. The vice which inheres in the tions between vendor and purchaser ; judgment of a judge in his own cause, but its reason and force extend to all contaminates the contract ; the mind agents and trustees, public and private, of the director or trustee is the forum It has not always presented itself to the in which he and his cestui que trust minds of judges in its full scope. At are urging their rival claims, and when times they have been seduced into lis- his opposing litigant appeals from the tening to suggestions that the circum- judgment there pronounced, that judg- stances of the special case showed the ment must fall. It matters not that absence of fraud and overreaching." the contract seems a fair one DiXON, J., in Stewart v, Lehigh Valley Nor is it proper for one of a board of R.R. Co., 38 N. J. 505. See Buell v. directors to support his contract with Buckingham, supra. his company upon the ground that he ' Hopkins' Appeal, 90 Pa. St. 69. abstained from participating as director * Harts v. Brown, 77 111.226; Hart § 122 CORPORATE AGENTS, 42^ contract with the president and a director of a railroad company, to construct and equip a portion of the road in consideration of stock and bonds of the company. Imme- diately afterward A. assigned the contract to the president' of the company, who fulfilled it at a cost less than the par value of the stock and bonds paid him therefor, and less than their actual value. The contract and assignment were made with the knowledge and approval of all of the direct- ors and stockholders as the only available means to insure the building of the road. It was held that an action brought by a receiver of the company against the president to recover the difference between the par value of the stock received by the latter, and the. expense of performing the contract, could not be maintained.* A corporation having been created to facilitate the erection of a hotel, decided to mortgage the premises to raise the necessary funds for the purpose. A mortgage of the hotel lot and building was accordingly executed by the president and secretary of ridge V. Rockwell, R. M. Charlt. 260 ; corporation, representing in this regard Hallam v. Indianola Hotel Co., 56 the aggregated interest of all the stock- Iowa, 178. "In some cases of corpo- holders, his obligation, if he becomes a rations, as in mutual insurance compa- party to a contract with the company, nies, the main object of the act of in- to candor and fair dealing, is increased, corporation is to enable the company in the precise degree that his repre- to make contracts with its stockhold- sentative character has given him ers, or with persons who become power and control derived from the stockholders by the ve;ry act of the confidence reposed in him by the stock- contract of insurance. It is very true holders who appointed him their agent, that, as a stockholder in making a If he should be a sole director, or one contract of any kind with the corpora- of a smaller number vested with certaia tion of which he is a member, is in powers, this obligation would be still some sense dealing with a creature of stronger, and his acts subject to a more which he is a part, and holds a com- severe scrutiay, and their validity de- mon interest with the others, who with terminedt by more rigid principles of him constitute the vyhole of that artifi- morality and freedom from m.otives of cial entity, he is properly held to a, selfishness. AU this falls far short, how- larger measure of candor and good everi of holding that no siieh contracts faith than it he were not a stockholder., can be made which will fee valid." So,- when the lender is a director,. Twin Lick Oil Co. v. Marbury, sy§.m, charged with others with the control; per Miller, J. 3nd management of the afeirs of the "■ Van Cott v. Van Brunt, 83 N.Y. 535. 426 CORPORATE AGENTS. § 122 the corporation, pursuant to a vote of the board of direct- ors, to carry into effect a proposition previously adopted by a vote of the shareholders at a meeting duly convened, and the bonds of the company, payable to bearer, with in- terest coupons attached, issued. It was held that the ar- rangement was not void because the directors, most of whom were owners of stock in the corporation, took the bonds and advanced the money.^ Where the director's act consists not in possessing him- self of the property of the corporation as owner, but in taking collateral security for a debt honestly due him, or a liability justly incurred, the rule forbidding him to deal on his own behalf in respect to any matter involving his fidu- ciary character, has no application, and the payment of the debt, or the discharge of the liability, is an essential pre- requisite of the avoidance of the transaction.* With refer- ence to the purchase of corporate property by a director of the corporation, it is laid down in some adjudged cases that such a purchase is absolutely void without regard to the good faith of the transaction, and the property belongs to the corporation the same as it did before such sale. The better opinion, however, is, that it is only to be avoided at the instance of some party in interest.^ A contract entered into by the directors of a corporation with a member of the board for the sale to him of a portion of its property, can- not be avoided by a new company which, by purchase of the property of the old company and reorganization, suc- ceeds the latter.^ The president of a corporation which is embarrassed 1 Hotel Co. V. Wade, 97 U. S. (7 35 Ark. 304. It has been held that the Otto) 13. officers and directors of a railroad com- ' Duncomb v. N. Y., Housatonic, etc., pany may purchase the shares of stock- R.R. Co., 84 N. Y. 190; Smith v. Lan- holders at less than their par value, sing, 22 lb. 520. and sell them at an advance to another ' McDowell V. Ark. Mech. & Agl. company which by obtaining a majority Co., 38 Ark. 17. of the stock gets control of the railroad. * Little Rock, etc., R.R. Co. v. Page, Deaderick v. Wilson,8 Baxter,Tenn.io8. § 122 CORPORATE AGENTS. 427 and without funds, may purchase its outstanding bond and hold it against the company.^ Where an association, formed for the purpose, proposes to a railroad company which is heavily in debt to advance money to complete the road, the mere fact that one or more of the parties making the offer are members of the board of directors by whom it is accepted, does not render it void.^ Directors are under no moral or legal obligation to advance their own money to pay the debts and preserve the property for the use of the other shareholders who have declined to join in making advances to relieve the corporation from debt. If they have paid money to satisfy and discharge the indebted- ness of the corporation, they will be entitled in equity to be subrogated to the rights of the creditors whose debts they have paid, and to a credit therefor in the final settle- ment and accounting with the stockholders. But when the corporation has money, or property, or any assets that can be converted into money, with which to redeem and discharge its debts, purchases by the directors in their ow^n behalf, will be deemed in bad faith.^ The doctrine is well settled that the option of a corpo- ration to avoid a sale of its property on account of the fiduciary relation existing between the parties, must be ex- ercised within a reasonable time. " This has never been held to be any determinate number of days or years as ap- plied to every case, like the statute of limitations, but must be decided in each case upon all the elements of it which affect that question. These are generally the presence or absence of the parties at the place of the transaction ; their knowledge or ignorance of the sale and of the facts which render it voidable ; the permanent or fluctuating character of the subject matter of the transaction as affecting its value ; and the actual rise or fall of the property in value ' Bradly v. Williams, 3 Hughes C. ^ Kitchen v. St. Louis, etc., R.R. Co., C. 26. 69 Mo. 224. ^ Harts V. Brown, ^^ 111. 226. 428 CORPORATE AGENTS. § 1 23 during the period within which this option might have been exercised."* The cestui que trust has no right to lie idly by until equities arise, and speculate on the success or non- success of the transaction.* §. 123. Power of agent to bind corporation in general. — When the charter provides that certain powers of the cor- poration shall be exercised by particular officers or agents, the power can be exercised only by such officers or agents, and if other persons attempt to exercise it, their action will be void.^ As a corporation must necessarily act by officers and agents, they are not mere factors. It was objected that the agent of an insurance company had only power to issue policies, and not otherwise to make contracts bind- ing on the company, although he was furnished with pol- icies signed in blank, to be filled up and issued at his dis- cretion. His power of attorney authorized him to " effect insurance," and "for this purpose to survey risks, fix the rate of premiums, and issue policies of insurance signed by the president." It was held that this gave him authority to make the preliminary contract as well as to issue the policy ; that he was not a special agent employed merely to receive and transmit proposals to his principal, but had power to do whatever the company could do in effecting insurance.* A by-law of a manufacturing corporation pro- ' Twin Lick Oil Co. v. Marbury, 91 surance, are the ordinary fund out of U. S. (i Otto) 587, per Miller, J. whicli losses are to be paid, and the "^ Kitchen v. St. Louis, etc., R ji. Co., surplus is to be divided from time to su-^ra^ time among the stockholders. The ' Union Mu. Fire Ins. Co. v. Keyser, capital stock is a special fund to secure 32 N. H. 313. the assured against the extraordinary •* Sanborn v. Fireman's Ins. Co., 16 losses which the primary fund mky be Gray, 448. The capital stock of an in- found insufficient to meet ; and this corporated insurance company is not special fund when broken in upon must the primary or natural fund for the pay- be made good from the future profits be- ment of losses which may happen by fore any further dividends can be made, the destruction of the property insured. The directors of an insurance company The interest upon the capital stock' should leave a surplus fund, in addition and the premiums received for in- to the capital stock, sufficient to meet § 123 CORPORATE AGENTS. 429 vided that its agent should manage the affairs of the cona- pany committed to his care according to the best of his ability, and at all times to exercise the powers with which he was clothed, in his discretion ; and promptly to collect all assessments and other sums that should become due to the corporation, and to disburse them, pursuant to the order of the board of directors, saving that the directors should have control over him, and whenever they should give him special directions, he should be bound strictly to adhere to them. It was held that, in the absence of objection on the part of the directors, he was authorized to employ workmen to carry on the business of the concern, and to pay them with the funds of the corporation ; or, not being in funds, to give the notes of the corporation in payment.^ It was held that by the concurrent act of the general agent and treasurer of a manufacturing and trading corporation, the one to give a note for a loan, and thus charge the company with a debt, and the other by a bill of sale, and indorse- ment of a bill of lading, to transfer a right of property in a quantity of iron belonging to the company, for the security of such note, the property would vest in the mortgagee.*' Where the agent of an insurance company has authority to receive premiums, his authority to give the holder of a policy permission to remove the property insured will be implied ; and the agent having indorsed on the policy such permission in consideration of the payment to him of addi- tional premium, the company will be bound by it.^ The the probable losses on the risks then Scott v. Eagle Fire Ins. Co., 7 Paige assumed by the company ; and if any Ch. 198. losses accrue upon such risks, whether ' Bates v. Keith Iron Co., 7 Mete, more or less than the whole capital of 224. A general agent of a mining the company, that surplus must be ap- company, in the absence of special au- plied to satisfy such losses. If the di- thority, cannot make promissory notes rectors in making dividends abuse their in the name of the company. N. Y. Iron power, they may, in case of a loss suf- Mine v. Negaunee Bank, 39 Mich. 644. ficient to more than exhaust the entire " Fay v. Noble, 12 Cush. i. capital, make themselves personally lia- ' New England Fire & Marine Ins. ble to the creditors of the company. Co. v. Schettler, 38 111. 166. 430 CORPORATJS AGe'ntS. § 1 23 agent of a railroad company being required to engross a contract, and procure the signatures, and no particular time named therefor, it was held that the agent's consent to the delay of a month in the execution of the contract was within his authority, and that the company could not disa- vow the contract on account of such delay, even if it was unreasonable.' If it is claimed that the general agent of a corporation in charge of its land and buildings is author- ized to make a lease, and proof of his authority is derived, not from any express words, but from the exercise of the power with the knowledge and approbation of the corpo- ration, the power must be regarded as limited to the de- scription of cases in which it has been exercised, and which serve to prove its existence, and not to extend to cases dis- similar in character. ** Where the general control and su- pervision of the business of a corporation is devolve'd upon a board of directors, but an agent attends to the daily rou- tine of ordinary business, the latter cannot enter into a contract creating a general lien upon the personal property of the company to secure money borrowed : this requires the action of the directors.^ If the agent does not clothe his proceedings with the formality required by the charter to bind the company, such acts will be deemed negotiations looking to an agreement, rather than a contract obligatory on both parties.* Where one was appointed an agent of a turnpike company to con- tract for making a certain portion of the road, with the re- striction that one-third of the payment on such contracts was to be made in shares in the road, it was held that a contract made by him without this stipulation would not bind the corporation.^ The charter of an insurance com- pany provided that no losses should be settled or paid 'Pratt V. Hudson River R.R. Co., 21 * Head v. Providence Ins. Co., 2 N. Y. 305. Cranch, 127. ' Gillis V. Bailey, 17 N. H. 18. « Hayden v. Middlesex Turnpike ' Whitwell V. Warner, 20 Vt. 425. Corp., 10 Mass. 403. § 124 CORPORATE AGENTS. 43 1 without the consent of four of the directors, with the pres- ident or two assistants, or a plurality of them. It appeared that the agent of the insured having called to ascertain the determination of the company in relation to the payment of a loss, the secretary went into the room w,here the pres- ident and assistants were convened, and the answer returned was that they had agreed to pay a total loss ; hut no men- tion was made of any of the directors being present or assenting to it. It was held not binding on the company.^ No person or corporation can be made the bailee of an- other man's goods without his or its own consent express or implied. If the servant, of his own head, and without the authority of his master, takes goods on deposit un- known to his master, although they be deposited in the master's house, he is not answerable, but the servant only. In order to impose a legal liability on any one, there must be a contract express or implied.* Unless there is a duty to third persons imposed on the treasu'rer of a savings bank, by virtue of his office, to state what the condition of the depositor's account is, so as to enable another to purchase the book, or to lend money on it as collateral security, the bank cannot be held responsible for frauds committed by means of forged, fictitious, or paid up books, to which the treasurer has given currency by statements that they accurately represent the sums due.^ § 124. General power of directors. — A director, when not ' Beatty v. Marine Ins. Co., 2 Johns, dren, 76 Ind. 47. Of course, where a 109. person is merely in possession of stock ^ Lloyd V. West Branch Bank, 15 Pa. as collateral security, and does notpar- St. 172. ticipate in the meetings of the stock- ^ Com. V. Reading Savings Bank, 133 holders, and is not recognized by the Mass. 16. A corporate officer who stockholders as a member, he is not acts avowedly for himself in a transac- such a part of the corporation as to be tion with a corporation is regarded as bound to have knowledge of the facts a stranger to it, and in such a transac- in possession of the corporation or of tion his knowledge will not be imputed its officers. Baker v. Woolston, 27 to the corporation. Peckham v. Hen- Kansas, 185. 432 CORPORATE AGENTS. § 124 proceeding as a member of the board, has no power to represent the corporation or to bind it, unless authorized to do so by the board, in which case he is like any other agent of the corporate body.^ A board of directors being an instrument of the corporation to manage the corporate affairs and carry out the purposes and objects of the corpo- rate existence, is only empowered to do such things as are expressly or impliedly sanctioned by the charter.^ But its acts are binding on the corporation when it proceeds within the scope of its power, however that power may be con- ferred, and all legitimate business may be transacted by it without the express sanction of the stockholders.^ The character of its authority is the same as that of a managing • Chicago, etc., R.R. Co. v. James, 22 Wis. 194; Stoyslown, etc., Tump. Co. V. Craver, 45 Pa. St. 386 ; Lock- wood V. Thunder Bay River Boom Co., 42 Mich. 536 ; Baldwin v. Canfield, 26 Minn. 43 ; Hillyer v. Overman Silver Mining Co., 6 Nevada, 51 ; Grayville, etc., R.R. Co. V. Bums, 92 111. 302 ; Titus v. Cairo & Fulton R.R. Co., 37 N. J. 98. 'Bank of U. S. v. Dandridge, 12 Wheat. 113; Royalton v. Royalton Turnpike Co., i4Vt. 311 ; Marlborough Manf. Co. v. Smith, 2 Conn. 579. The original articles of association of a company provided that there should be no union or consolidation of the com- pany with any other without the con- sent of a majority of the stockholders. The articles also contained a clause providing for their amendment by a concurrent vote of two-thirds of the executive committee and a majority of the trustees. It was held that the authority to amend did not deprive the stockholders of power to prohibit the merger of the company with any other company, but was only meant to apply to such amendments as were pertinent to the business and objects for which the association was organized. Blatch- ford V. Ross, 5 Abb. Pr. N. S. 434. By the articles of association of a mining corporation, the directors were author- ized to appoint and remove its agents. It was held that an agreement of the directors with A. to appoint.B. agent and manager of the property, and that B. should not be removed by them until he had paid A. a certain amount out of the profits, which sum A. Claimed was due him ; but that "B. might be removed by A. when the lat- ter chose, was not binding on the cor- poration. Flagg Staff Silver Mining Co. V. Patrick, 2 Utah, 304. ' Wood V. Whelen, 93 111. 153 ; Sims V. Street R.R. Co., 37 Ohio St. 556. When the charter invests the directors with the power to manage the concerns of the corporation, the power is exclu- sive in its character. The corporators have no right to interfere with it, and courts will not, even on a petition of a majority, compel the board to do an act contrary to its judgpnent. McCul- lough V. Moss, 5 Denio, 567 ; Metrop. Elevated R.R. Co. v. Manhattan Elev. R.R. Co., II Daly, 373 ; Flagg v. Man- hattan R.R. Co., 20 Blatchf 142. § 124 CORPORATE AGENTS. 433 board of an unincorporated association.* A promissory note was made payable to the president, directors, and company of a bank,*or their order. The act of incorpora- tion gave the general management of the property and concerns of the bank to the directors, and they by their vote authorized the president to indorse this note, which he did. Held proper.^ If the charter of a bank gives the management of its affairs to the board of directors, which is expressly made the judge as to what portion of the prof- its shall from time to time be divided among the stock- holders, a very strong case will be required to induce the court to interfere and substitute its own judgment for that of the board.^ Where the articles of a banking association provided that dividends should be declared of so much of the profits as should be deemed expedient by the directors, it was held that, in the absence of an improper and corrupt refusal to make a dividend, the matter was left to the dis- cretion of the directors.* The charter of a bank having authorized the president and directors to dispose of the funds of the institution in such manner as they should deem most advantageous to the corporation, it was held that they had power to buy and sell the stock of the bank, if they found it most advantageous to the bank to do so, at auc- tion, by private sale, for cash, or notes, or other property, or on credit, or could take it in payment of debts due from stockholders, whether solvent or insolvent.^ A deed of settlement of a mining company provided that the affairs and business of the company should be under the exclusive control of the directors, and the directors were authorized, if they deemed it best, to create certain shares by vote. Although new shares were created, yet the money obtained for them, as well as the original capital, was exhausted, and ■Northampton Bank v. Pepoon, 11 *Ely v. Sprague, Clark^Ch. 251. Mass. 288; Stevens v. Hill, 29 Me. 133. 'Taylor v. Miami Exporting Co., 6 'Spear v. Ladd, 11 Mass. 94. Ohio, 218. See City Bank of Colum- ' State V. Bank of La., 6 La. 745. bus v. Bruce, 17 N. Y. 507. VOL. I.— 38 434 CORPORATE AGENTS. § 1 24 certain of the directors, and a member of the company who was not a director, united, in borrowing money for the com- pany from the bankers of the company, and gave them their personal guaranty for repayment ; which borrowed money was applied by the directors to the payment of necessary disbursements in working the mines. An order having been obtained to wind up the affairs of the company, the bank submitted a claim for the amount so lent to the master, who allowed it ; but on appeal, the claim was directed to stand over, with liberty to the bank to bring an action, which being done, the court of law held that the loan by the bank could not be deemed a charge upon the company, but a personal debt of the directors and shareholder who had borrowed the money. Whereupon, the master's order allowing the claim of the bank was discharged. The di- rectors and shareholder then paid the sums advanced, and claimed to be allowed therefor, before the master, as ad- vances made by them to the company. It was held that, as the directors were quasi trustees of the company, they were entitled to be repaid their advances, notwithstanding the deed of settlement gave them no power to borrow money.^ Where a trading corporation was created for the purpose of manufacturing paper, with power to buy and sell, and do other acts incident to such a company, it was held that the directors, who had a general authority to man- age its concerns, might pay an agent of the company his wages in advance, and in order to do this give a bill of ex- change in the name of the company.* By the deed of set- tlement of a joint stock company, it was provided that it should not be lawful for the directors to contract any debts in conducting the affairs of the company beyond the surn ' Burmester v. Norris, 6 Exch. 796 ; Pick. 291. In the absence of any pro- 8 Eng. L. & Eq. 487 ; In re German vision of law on the subject, it is not Mining Co., 4 De G. M. & G. 19 ; 27 the duty of directors to Iteep the corpo- Eng. L. & Eq. 1 58. rate property insured. Charlestown Boot * Tripp V. Swanzey Paper Co., 13 & Shoe Co. v. Dunsmore, 60 N. H. 85. § 124 CORPORATE AGENTS. 435 of ;^ioo at any one time, except in the case of tlie purchase money for a certain newspaper, of which the directors might leave unpaid any part not exceeding ;^i,ooo, and might give a promissory note, or accept a bill of exchange on behalf of the company, for such balance. It was held that the directors were authorized to give several notes or bills for the ;^i,ooo, and interest, instead of a single note or bill.i An assignment of the property of a corporation for the- benefit of its creditors may be made by the board of direct- ors when the power of the corporation to do so is not re- stricted by its charter, without the express authorit-y or consent of the stockholders.** The court will not, on the application of a majority of the members of a religious society, award a mandamus to compel the trustees, in whom corporate powers are vested, to affix the corporate seal to alterations and amendments to their charter in opposition to their own judgment.^ At common law, a contract between two corporations having some of the directors in common, made by their respective boards, or between a corporation and an indi- vidual director,, or a firm of which he is a member, is valid.* In Rolling Stock Co. v. Atlantic, etc., R.R. Co.,^ the court said : " We have not, upon the most diligent research, been able to find a case holding a contract made between two corporations by their respective boards of directors invalid or voidable at the election of one of the parties thereto. ' Thompson v. Wesleyan Newspaper of Lds. 401 ; Booth v. Robinson, 55 Assoc, 8 C. & B. 849. Md. 419 ; Watt's Appeal, 78 Pa. St. ' De Camp v. Alward, 52 Ind. 468 ; 370 ; San Diego v. San Diego, etc., Dane v. Bank of U. S., 5 Watts & R.R. Co., 44 Cal. 106; Staric Bank; v. Serg. 223. U. S. Pottery Co., 34 Vt. 144 5 Griffin 'Com. V. St. Mary's Church, 6 Serg. v. Inman, Swan & Co., 57 Ga. 370; & Rawle, 508. See Grindley v. Bar- Wallace v. Long Island R.R. Co., I2 ker, I Bos. & Pull. 229. Hun, 460. * Foster v. Oxford, etc., R.R. Co., 13 '34 Ohio St. 450. C. B. 200 ; Ernest v. Nichols, 6 .House 436 CORPORATE AGENTS. § 1 25 from the mere circumstance that a minority of its board of directors are also directors of the other company. Nor do we think such a rule ought to be adopted. There is no just reason, where a quorum of directors sustaining no re- lation of trust or duty to the other corporation are present participating in the action of the board, why such action should not be binding upon the company in the absence of such fraud as would lead a court of equity to undo or set aside the transaction. If the mere fact that a minority of one board are members of the other gives the company option to avoid the contract without respect to its fairness, the same result would follow where such minority consisted of but one person, and notwithstanding the board might con- sist of twenty or more. In our judgment, where a majority of the board are not adversely interested, and have no ad- verse employment, the right to avoid the contract or trans- action does not exist without proof of fraud or unfairness ; arid hence the fact that five of the defendant's board of di- rectors were members of the plaintiff's board, whatever may have been its effect on the defendant's right to disaffirm or repudiate the contract if exercised within a reasonable time, did not disable the defendant from subsequently affirming the contract if satisfied with its terms, or rejecting it if not ; nor did it relieve it from the duty to exercise its election to avoid or rescind within a reasonable time if not willing to abide by its terms." ^ § 125. Limitation of power of directors. — Directors are of pourse restricted to the power conferred, and if they go ' See Godin v. Cincinnati, etc., Canal poration, he may prescribe his own Co., 18 Ohio St. 169; Ashurst's Ap- terms, which the corporation can ac- peal, 60 Pa. St. 290 ; Bill v. Boston cept or reject, and, upon the conclu- Union Telegraph Co., 16 Fed. Rep. sion of the contract, he stands in the 14; Flagg V. Manhattan R.R. Co., 20 same relation to the corporation that Blatchford, 142; People v. Metrop. R.R. any other individual would under the Co., 26 Hun, 82 ; Manhattan R.R. Co. same circumstances. Central R.R. Co. V. N. Y. Elevated R.R. Co., 29 Id. 309. v. Claghorn, Speer's Eq. 545. When a director contracts with a cor- § 125 CORPORATE AGENTS. 437 beyond it, their proceedings will not be binding on the corporation. The charter of a corporation provided that the capital stock should be a specified sum which might be increased or diminished from time to time at the pleasure of the corporation ; and that all the corporate powers should be vested in and exercised by a board of directors, and such officers and agents as said board should appoint. It was held that an increase of the capital stock could not be made by the directors alone without the consent of the stock- holders, unless expressly authorized thereto ; the general power to perform all corporate acts, referring merely to the ordinary transactions of the corporation, and not to a re- construction of the body itself, or to an enlargement of its capital stock. The court said : " If the charter provides that the capital stock may be increased, or that a new busi- ness may be adopted by the corporation, this is undoubt- edly an authority for the corporation (that is, the share- holders) to make such a change by a stockholder's vote in the regular way. Perhaps a subsequent ratification or assent to a change already made would be equally effective. But if it is desired to confer such a power on the directors so as to make their acts binding and final, it should be ex- pressly conferred. Where the stock expressly allowed by a charter has not been all subscribed, the power of the di- rectors to receive subscriptions for the balance may stand on a different footing. Such an act might perhaps be con- sidered as merely getting in the capital already provided for the operations and necessities of the company, and therefore as belonging to the orderly and proper adminis- tration of the company's affairs. Even in such case, pru- dent and fair directors would prefer to have the sanction of the stockholders to their acts."* The fact that, under ' Railroad Co. v. AUerton, i8 Wall. Bank Commrs. v. Bank of Brest, i 233. See Eidman v. Bowman, 58 111. Harr. Ch. 106 ; Metrop. Elevated R.R. 444 ; Finley Shoe & Leather Co. v. Co. v. Manhattan Elevated R.R. Co., 1 1 Kurtz, 34 Mich. 89 ; Brown v. Fair- Daly, 373 ; s. C. 14 Abb. N. C. 103. mount Gold, etc., Co., 10 Phila. 32; 438 CORPORATE AGENTS. § 1 25 the charter, the directors have the management of the stock, property, and affairs of the corporation, does not enable them to apply to the legislature for an increase of the pow- ers of the corporation, but such application can pnly be made by the authority of the company ; ^ nor have they power, unless specially authorized, to sell such of its prop- erty as is necessary to enable it to transact its customary business ;® they being trustees for the purpose of prosecuting the business of the corporation, and not for the purpose of winding it up and destroying its existence.^ The directors of a joint stock company were authorized by a resolution, adopted at a meeting of the shareholders, to borrow money, and they accordingly borrowed ;^ioo from one of the di- rectors, but no meeting was called to approve of the con- tract. It was held that the contract was void.* By a reso- lution of the directors of a mining company, four directors were necessary for the doing of any act. Three of the board, who were called trustees, gave a power of attorney to the agent of the company to draw bills. It was held ' Marlborough Manuf. Co. v. Smith, porated company, entitled to act solely 2 Conn. 579. The directors of a cor- through its board of directors, pursuant poration cannot release a subscriber to to a resolution of its stockholders, stock from his obligation to pay his leased its works to its president, who subscription. Upton v. Tribilcock, 91 owned a majority of the stock, and he U. S. (i Otto) 45 ; Gill v. Balis, 72 Mo. continued the business the same as be- 424 ; Chouteau Ins. Co. v. Floyd, 74 fore without notice to persons dealing Id. 286. with the company of any change until ^Rollins V. Clay, 33 Me. 132; Ab- the lessee failed and assigned the prop- bott V. Am. Hard Rubber Co., 33 Barb, erty for the benefit of creditors, it was 578. See Sheldon v. Hat Blocking held that the lease was void. Conro v. Co., 56 How. Pr. 70. Port Henry Iron Co., 12 Barb. 27. ' Bank Commrs. v. Bank of Brest, '' Athenaeum Ass. Soc, 37 Eng. L. & supra. A majority of the board of Eq. 187. Where the directors have directors of a railroad company, who passed a resolution fixing the amount control a majority of the stock, have to be paid them for their services, the no right, unless specially authorized by president of the board cannot, unless the charter, to lease the corporate the other members of the board con- property without first submitting the cur, bind the corporation to pay any matter to a meeting of the stockhold- of them a larger sum. Hodges v. Rut- ers. Martin v. Continental Pass. R.R. land & Burlington R.R. Co., 29 Vt. Co., 14 Phila. 10. Where an inpor- 220. §125 CORPORATE AGENTS. 439 that the other directors were npt liable on those bills, the power of attorney not having been executed in accordance with the resolution.'' Where a religious society elected a committee of three to superintend the building of a meeting- house, it was held that one of them could not purchase on the credit of the parish. The court remarked that any act to charge the parish, must have been by two at least of the three, and perhaps by all three, though direct proof that all assented might not be required.** By the charter of a bridge company, five of the managers were to constitute a quorum, and only four were present when a resolution was passed authorizing a mortgage. It was held that the mortgage was void,* Where a committee of five was chosen by a religious society to superintend the building of a church, it was held that a contract entered into by one of them for work on the church, could not be enforced against the corporation, and that consequently the other party was not bound by it.^ The directors of a corporation are in an important sense regarded as trustees for the stockholders, and it is a breach of duty for them to assume obligations inconsistent with that relation. The rule in its general sense embraces every relation in which there may, by any possibility, arise a conflict between their duty and their in- dividual interests. It acts, not on the possibility that in some cases the sense of that duty may prevail over the motives of self-interest, but it provides against the proba- bility in many cases, and the danger in all cases, that the dictates of self-interest will exercise a predominant influ- ence, and supersede that of duty.® In Great Luxemburgh ' Duncarry v. Gill, 4 Car. & P. I3l. 426 ; Simons v. Vulcan Oil & Mining ' Kupfer V. South Parish in Augusta, Co., 61 Pa. St. 202 ; Rice's Appeal, 79 12 Mass. 185. Id. 168; Ryan v. Leavenworth, etc., ' Plolcomb V. New Hope Del. Bridge R.R. Co., 21 Kansas, 365 ; Blair Town Co., I Stockt. Ch. 457. Lot & Land Co. v. Walker, 50 Iowa, ^ Adams v. Hill, 16 Me. 215. 376; Farmers' & Merchants' Bank v. " Michoud V. Gerod, 4 How. 503 ; Downey, 53 Cal. 466 ; Bow v. Brown, Gilman, etc., R.R. Co. v. Kelly, 77 111. 56 N. Y. 288 ; Koehler v. Black River 440 CORPORATE AGENTS. § 125 R.R. Co. V. Magenay,* the Master of the Rolls said : " I have upon various occasions stated what I consider to be the duties and functions of a director of a joint stocis: com- pany. He is, in point of fact, not only a director, but he also fills the character of a trustee for the shareholders, and he is, in regard to all matters entered into in their behalf, to be treated as an agent ; therefore, there attaches to a director, for the benefit of the shareholders, all the liabili- ties and duties that attach to a trustee or agent. Accord- Falls Iron Co., 2 Black. 715; Flint, etc., R.R. Co. V. Dewey, 14 Mich. 477 ; People V. Township Board, etc., 1 1 Id. 225. In Coal & Iron Co., etc., v. Par- ish, 42 Md. 598, Alvey, J., said: " Directors and managers of corpora- tions are within the rule which guards and restrains the dealings and trans- actions between trustee and cestui que trust, and agent and his principal, such directors or managers being in fact trustees and agents of the bodies represented by them. The affairs of corporations are generally intrusted to the exclusive management and control of the board of directors ; and there is an inherent obligation implied in the acceptance of such trust, not only that they will use their best efforts to pro- mote the interest of the shareholders, but that they will in no manner use their positions to advance their own individual interests as distinguished from that of the corporation, or ac- quire interests that may conflict with the fair and proper discharge of their duty. The corporation is entitled to the supervision of all the directors in respect to all the transactions in which it may be concerned ; and if one of the directors is allowed to place himself in the position of having his conduct and accounts made the subject of supervi- sion and scrutiny, he of course cannot act in regard to those matters both for himself and the corporation ; and the consequence is that the corporation is deprived of the benefit of his judgment and supervision in regard to matters in which such judgment and supervision might be most essential to its interest and protection. Not only this, the re- maining directors are placed in an em- barrassing and invidious position of having to pass upon, scrutinize, and check the transactions and accounts of one of their own body with whom they are associated on terms of equality in the general management of all the affairs of the corporation. The design of the rule, therefore, is to secure a faithful discharge of duty, and at the same time to close the door as far as possible against all temptation to do wrong, by subjecting the transactions between parties standing in such con- fidential relations to the most exact and rigid scrutiny whenever such transactions are brought before the courts. The transaction may be ipso facto void, but it is not necessary to establish that there has been actual fraud or imposition practiced by the party holding the confidential or fidu- ciary relation ; the onus of proof being upon him to establish the perfect fair- ness, adequacy, and equity of the transaction, and that, too, by proof en- tirely independent of the instrument under which he may claim." ' 25 Beavan, 586. ^ 125 CORPORATE AGENTS. 44I ingly, if a director enters into a contract for the company, he cannot personally derive any benefit from it." ^ In Char- itable Corporation v. Sutton,* Lord Hardwicke, in defin- ing the degree of care and fidelity required of a director, and for what nature of default he may be liable, referred to the doctrine of the civil law by which those who are named by companies and corporations to have the direction of their affairs, are obliged to the same care and diligence as factors or agents. And they are answerable not only for any fraud and gross negligence which they may be guilty of, but also for all faults that are contrary to the care re- quired of them.* The confidence reposed in directors, and the position they occupy toward the corporation and its stockholders, require a strict and faithful discharge of duty, and they are not allowed to derive from their position any profit or advantage whatever, except with the full knowledge and concurrence of the corporation represented by others than themselves.* Directors of a railroad company cannot, with ' See European, etc., R.R. Co. v. dence shall not be abused by the party Poor, 59 Me. 277 ; Stewart v. Lehigh in whom it is reposed, and which it Valley R.R. Co., 38 N. J., 505. enforces by imposing a disability, either ' 2 Atk. 400. partial or complete, upon the party in- ' I Domat, b. 2, tit. 3, sec. 2, art. i. trusted to deal on his own behalf in See Guild v. Parker, 43 N. J. 430 ; respect to any matter involved in such Parker v. Nickerson, 112 Mass. 195. confidence. Nor is it possible to limit * Booth V. Robinson, 55 Md. 419. the duty of a director of a corporation See Benson v. Heathorn, i Y. & C. 326 ; in this respect to the time while he is Cumberland Coal Co. v. Sherman, 30 acting as a director under any special Barb. 568. In Hoyle v. Plattsburgh, etc., delegation of power, or is in attendance R.R. Co.,S4N.Y.3i4, JOHNSON,C.,said : at meetings of the board. Such a limit " Whether a director of a corporation would deprive the rule of almost all its is to be called a trustee or not in a efficacy, and would facilitate innumer- strict sense, there can be no doubt that able evasions of its force. That the his character is fiduciary, being in- po impose upon him the necessity of knowing the state of every depositor's ac- count. He is charged with all he pays out, and if he pays a check without funds in hand, he is responsible to the bank, for the amount. His kiiowledge exceeds that of the book- keeper, because, to the information obtained from the lat- ter, he adds a knowledge whether any deposits have been made or checks paid since the last entry in the books. No doubt the cashier, by virtue of his general powers and his presumed knowledge of all the affairs of the bank, would be competent to answer the question ; but he could only do so by first inquiring of the bookkeeper and teller. Why should the applicant be compelled to seek the information through this circuitous channel, instead of going directly to the ultimate source of knov/ledge on the subject ? The teller is put in the place of the cashier to perform a portion of his duties. His appointment is virtually a division of the office of cashier ; and that branch of the office which the teller fills, embraces those duties which particularly require a knowledge of the state of the accounts of the de- positors. Why, then, should he not be the organ of com- munication on the subject ? But it is unnecessary in the present case to decide this question, as it clearly appears not only that the teller. Peck, was in the habit of certifying the checks of customers with the knowledge of the officers of the bank, but that he was furnished with a book for the express purpose of keeping a memorandum of such checks. His authority to certify, therefore, in a proper case cannot §§ 129, 130 CORPORATE AGENTS. 459 be disputed. But it is insisted that his power extended only to cases where the bank had funds in hand, he having been expressly prohibited from certifying in the absence of funds, and hence that the bank is not bound. It may be doubted whether such a prohibition adds anything to the restrictions which would otherwise exist upon the powers of the agent. A teller acting under a general power to certify checks would be guilty of an excess of authority and a clear violation of duty, if he certified without funds. The powers of the cashier himself, or other principal finan- cial officer of the bank, would no doubt be subject to the same limitation."^ "A party who holds in good faith for value a check negotiable on its face, certified by the paying teller of the bank on which it is drawn to be good, is enti- tled to payment of the check, although the drawer has not funds in the bank to meet it, and the teller certified the check in violation of duty, and for the accommodation of the drawer."* § 129. Power and disability of secretary. — The secretary and general superintendent of a gas company to whom ap- plications for gas are made, and who exercises a general control over the business and affairs of the company, may waive regulations requiring written application for gas.® But the secretary of a railroad or other company has no author- ity to bind the company by letters or documents signed by him.* § 130. Power and disability of superintendent. — As a gen- eral' managing agent and superintendent is the represent- ative of the corporation, and may do in the transaction of its ordinary affairs what the corporation itself could do ' Farmers', etc., Bank v. Butchers', ' Shepherd v. Milwaukee Gas Light etc., Bank, 14 N. Y. 623, affi'd 16 Id. Co., 11 Wis. 234. 125. * Williams v. Chester, etc., R.R. Co., ^ Ihid. The same was held where a 15 Jur. 828; 5 Eng. L. & Eq. 497; note was certified falsely by the teller. First Nat. Bank v. Hogan, 47 jMo. 472 ; Meads v. Merchants' Bank, 25 N.Y.i43. Blood v. Marcuse, 38 Cal. 590." '460 CORPORATE AGENTS. § 13^ within the scope of its powers, he may assign the choses in action of the corporation to its creditors either in payment of, or as security for the payment of, a precedent debt of the corporation without the express authority of the board of directors.^ But the authority of a superintendent can- not lawfully be exercised beyond the scope of his obvious functions and duties. The only evidence of the nature and extent of the powers of a superintendent was such as the title of his office implied, and that furnished by his testimony, which was, that everything connected with the running of the road was under his supervision and control ; that he had no direction over the treasury, and no share in the conduct of the company's affairs ; that he paid drivers, conductors, and other persons employed by him for the company, in connection with his business as superintendent. It was held that it could not be inferred that he was au- thorized by his office to arrange and liquidate claims made against the company for the negligence of its servants in running its trains, or to contract with third persons as its agent to repair or remedy the consequences of such negli- gence.* § 131. Pay for services. — The salary or compensation of corporate officers, when allowed, is commonly fixed by a by-law, or by a resolution either of the directors or share- holders. Corporate offices are usually filled by the chief promoters of the corporation, whose interest in the stock, or in other incidental advantages, may be presumed a motive for exercising the duties of the office without compensation, and this presumption, when it arises, will prevail until over- come by an express prearrangement for salary.* Where the ' McKiernan v. Lienzen, 56 Cal. 61. ' Kilpatrick v. Penro3e Ferry Bridge See Seeley v. San Jose Mill Co., 59 Id. Co., 49 Pa. St. 118. See Citizens' Nat. 22; Chemical Nat. Bank v. Kohner, Bank v. Elliott, 55 Iowa, 104; N. Y. & 85 N. Y. 189. Harlem R.R. Co. v. Ketchum, 27 Conn. " Stephenson v. N. Y. & Harlem R.R. i8o ; Loan Assoc, v. Stonemetz, 29 Pa. Co., 2 Duer, 341, St. 534 ; Merrick v. Peru Coal Co., 61 §131 CORPORATE AGENTS. 46 1 by-laws of a corporation provided that no officer should re- ceive any other compensation for his services than should be determined and allowed by the stockholders at the an- nual meeting, or at a special meeting called for that pur- pose, and no such allowance was ever made for the services of the president of the company, it was held that he could not recover for such services.^ The engagement of a person by a corporation to perform services in its behalf during the time for which it shall be established, and to pay him so long as he shall continue to perform his part of the agreement, with a proviso that by the death of the party so contracting the corporation shall be discharged, is bind- ing on the corporation. It is, in effect, a contract for life, or until determined by the dissolution of the corporation in a mode fixed by law.* A director, by resolution of the board, may be empowered to transact any business or agency in behalf of the corporation ; and unless there is some agreement, express or implied from the circumstances at- tending such appointment, to the contrary, the law will infer a contract on the part of the corporation with its agent, whether he be a director or a stranger, that he shall receive for such service a reasonable compensation.^ Where the charter of a bank provided that no director should be entitled to any emolument unless the same were allowed by the stockholders at a general meeting, it was held to 111. 472 ; Cheney v. Lafayette, etc., R.R. tion for the difference between the Co., 68 Id. 570 ; 87 Id. 446 ; Holder v. worth of his services and the par value same, 71 Id. 106; Santa Clara Manuf. of the stock, notwithstanding he can- Assoc. V. Meredith, 49 Md. 389. celled and handed back the certificate. ' Illinois Linen Co. v. Hough, 91 111. Chouteau v. Dean, 7 Mo. App. 210. 63. Where an officer of a corporation ' See People v. Globe Mut. Ins. Co., having a claim against it of $2,500 for 91 N. Y. 174. services, received from the company ' Shackleford v. New Orleans, etc., $10,000 worth of stock at its market R.R. Co., 37 Miss. 202. See Santa price of twenty-five per cent, of its Clara Mining Assoc, v. Meredith, 49 nominal value, it was held that he Md. 389; Rogers v. Hastings, etc., thereby became a stockholder, and was R.R. Co., 22 Minn. 25. liable to the creditors of the corpora- 462 CORPORATE AGENTS. § 13? have been the intention of the legislature that directors should not receive compensation for the performance of their appropriate duties, but not to exclude individual members of the board from a just compensation for ser- vices of a different character merely because such services were rendered while they were directors.^ It has been held that a town may indemnify a surveyor of highways for lia- bilities incurred in the bona fide discharge of his duties, for the reason that the town is bound to repair highways, and is responsible for defects in them, and therefore has so direct an interest in the subject that it can adopt the acts of the surveyor done as the agent of the town in a matter relating to town affairs, his duties being the duties of the town.^ So towns may bind themselves by vote to indem- nify a collector of taxes for the costs and expenses of de- fending actions brought against him for acts done in the performance of his duties ; because what he does is by au- thority of the town and as its agent, at least in collecting taxes raised by the town, and the town may ratify and affirm his acts.^ But it is otherwise in the case of the offi- cers of a town who do not act as its agents or servants, but in a judicial capacity, and where the town has no control ' Chandler v. Monmouth Bank, i their duties to the company would re- Green Ni J. 255. It was remarked by quire the directors to constitute an the court in this case that " Services agency. In such cases, I see no objec- may be wanted requiring mechanical tion to their employing one of their or professional skill, as, for instance, own number as their agent. Indeed, the engraving of the plates, the making the nature of the business may often of paper, etc. Should one of the di- be such as would render this highly rectors be competent to perform this expedient. And if they should do so, work, the charter was never intended such agent may surely demand and be to prohibit his employment for that paid a reasonable compensation for his purpose. And again, services may be services." Approved in Henry v. Bur- i-equired which, although they might lington R.R. Co., 27 Vt. 435. See New be performed by the whole board of Orleans, etc.. Packet Co. v. Brown, 36 directors, yet are to be transacted at La. Ann. 138; 51 Am. Rep. 5; Citi- distant places, or under circumstances zens' Nat. Bank v. Elliott, 55 Iowa, which would make it extremely incon- 104 ; Ward v. Polk, 70 Ind. 309. venient for a body of men to attend to ' Bancroft v. Lynnfield, 18 Pick. 566. them, and where a proper discharge of ' Pike v. Middleton, 12 N. H. 278. § 131 CORPORATE AGENTS. 463 over them, and is not responsible for the faithful discharge of their duties.^ Directors are not entitled to extra pay for services rendered in the discharge of official duty.* Thus, a director of a bank was prevented from receiving a reward offered by the bank for the recovery of stolen prop- erty, because he only did his duty in endeavoring to recover it ; ^ and it is his duty, if he obtains information which will in any manner lead to the detection of the thief, to com- municate the facts promptly to the bank.* A resolution formally adopted allowing directors compensation for at- tendance on courts was held insufficient to give a director a right to recover therefor.^ And where a vote was adopted by the directors to pay the chairman of a committee on short loans two hundred dollars for services already ren- dered in his official capacity, it was held that the services created no debt. The court said : "Although the director did the work faithfully, his labors fell within the limits of his duty as a director, and the fact that he performed them with an exuberance of good faith, imposed upon the corpo- ration no moral or legal obligation to pay for them."^ If remuneration for services was not intended by either party, the person rendering them cannot recover pay. A claim against an insurance company for the payment of a salary was put upon the ground of a vote fixing the salary of a previous president of the company by name, and the subse- quent election of the claimant to the same office. It was . held that proof that the need of the constant and active ' Anthony v. Adams, I Mete. 284 ; ^ Collins v. Godfrey, i Barn. & Aid. Stetson V. Kempton, 13 Mass. 272 ; 590. Parsons v. Goshen, 1 1 Pick. 396 ; Mar- * Stacy v. State Bank of 111., 4 Scam, tin V. Mayor of Brooklyn, i Hill, 545, 91. 551; Wadsw'orth v. Henniker, 25 N. " Dunstan v. Imperial Gas Light Co., H. 189; Gove V. Epping, 41 Id. 539; 3 Barn. & Aid. 125. Merrill v. Plainfield, 45 Id. 126. " Loan Assoc, v. Stonemetz, 29 Pa. « Maux Ferry Gravel R. Co. v. Bran- St. 534. See N. Y. & New Haven egan, 40 Ind. 361 ; Am. Cent. RR. Co. R.R. Co. v. Ketchum, 27 Conn. 170. V. Miles, 52 111. 174. 464 CORPORATE AGENTS. § ^3^ services of a president had terminated, that the business was wound up, or nearly so, and that the avowed purpose of electing a president was to preserve a corporate organ- ization in order to bring the business to a close, was com- petent evidence to rebut the presumption of an agreement to pay a salary ; and that the declarations of the claimant, made from time to time, that he was to receive no compen- sation, were also admissible to show that at the time of his election it was understood by the parties that the salary voted to the president when the company was in full oper- ation, was not to be continued to him.^ A director ren- dered extraordinary services in behalf of a corporation, but never presented any account, or made any claim for com- pensation ; and, as there was no express contract on the part of the corporation to pay him anything, it was held that under the circumstances, none could be implied.* A clergy- man contracted with a vestry de facto, for a year's service, which he rendered, not knowing that the members of the vestry were not legally elected. But the next year, having been apprised of the fact, he entered into another contract with the same vestry. It was held that he was not entitled to payment for services rendered by him the second year.* Where the secretary and treasurer of the vestry and wardens of a church had never asked pay for his services, and the church books which he kept showed that the thanks of the vestry had been voted to him for his gratuitous and able management of the church funds, it was held that he could not afterward make any charge.* Although where the act requires the corporation to appoint a clerk or secretary, and its record shows that he has been appointed without any ' Com. Ins. Co. v. Crane, 6 Mete. 64. First Nat. Bank v. Drake, 29 Kansas, See Holland v. Lewiston Falls Bank, 311. 52 Me. 564. 'St. Luke's .Church v. Mathews, 4 ' Utica Ins. Co. v. Bloodgood, 4 Des. Ch. 578. Wend. 652. See State v. People's * Christ Church v. Barksdale, i Mut. Benefit Assoc, 42 Ohio St. 579; Strobh. Eq. 197. § 13? CORPORATE AGENTS. 465 express contract in relation to a salary, he can usually re- cover the value of his services ;^ yet liability on the part of the corporation in such case may be rebutted by proof that by the usage and custom of the corporation, no compensa- tion is chargeable for such services, and his position as a member and officer of the corporation will be sufficient prima facie to charge him with knowledge of the custom.* A person employed as the secretary of a private corpora- tion at a fixed rate of compensation cannot demand extra pay for services in that capacity which were not anticipated at the time of his appointment, or not alluded to in the charter or by-laws.^ The power conferred upon a corpora- tion to fix the compensation of all of its officers does not necessarily carry with it the right to take away or affect fees allowed by the charter to an officer.* > The cashier of a bank has no lien upon the funds in the bank for his salary.^ § 132. Service of process. — Corporations, being allowed to sue and be sued, necessarily possess power to perform through their agents services incident to the commence- ment or prosecution of suits.® When there are no statu- tory regulations on the subject, the president or head offi- cer of a corporation is the proper person on whom process against the corporation should be served.'' Where service of a bill in equity upon a corporation was acknowledged by a person as attorney for the corporation at the request of its president, but the president had no authority to accept service of legal process or to appoint attorneys, and the ' Waller V. Bank of Kentucky, 3 J. J. ^Bruyn v. Receiver, etc., 9 Cowen, Marsh, 201 ; Bill v. Dareuth Valley R. 413, note. R. Co., 37 Eng. L. & Eq. 539. ° Planters' and Merchants' Bank of 'Fraylor v. Sonora Mining Co., 17 Mobile v. Andrews, 8 Porter, 404. Cal. 594. ' Chamberlin v. Mammoth Mining , 8 Carr v. Chartiers Coal Co., 25 Pa. Co., 20 Mo. 96 ; McCall v. Byrami St. 337. Manf. Co., 6 Conn. 428 ; Boyd v. Chesa- * Carr v. St. Louis, 9 Mo. 190. peake, etc.. Canal Co., 17 Md. 195, VOL. I.— 30 466 CORPORATE AGENTS. § 133 corporation was in the habit of making such appointments only by vote of the directors, it was held that the service was not good.^ § 133. Who may bring action. — Where a contract is made with the agent of a corporation for the benefit of the latter, it is its contract, and an action may be brought on it in the name of the corporation.^ In the absence of proof it will not be presumed that the president of a corporation was authorized to bring an action in its name.' A statute hav- ing directed that all actions should be brought in the name of the treasurer, at the time an order was made for bringing an action, A. was treasurer, but when the action was com- menced B. filled the office. It was held that the latter was authorized to prosecute the action in his name, and entitled to recover what was due before he was appointed treasurer.* An insurance broker who, for the purpose of discharging the duties of his agency, has taken rights upon property, and received from the insurance company an open policy " to himself or whom it may concern," may, in case of a loss embraced in the policy, maintain an action for the use of the owner, notwithstanding the latter is not mentioned in the policy, if the insurance was effected for his benefit.^ The officers, though chosen by vote of the stockholders, are not their agents, but the agents of the corporation, and they are accountable to it alone. Therefore one or more of the stockholders cannot maintain an action at law against the officers for any breach of official duty that injures the corporate property as a whole. An injury done by the ' Bridgeport Savings Bank v. El- Cush. 507. But see Alexandria Canal dredge, 28 Conn. 556. Co. v. Swann, 5 How. 83. 'Commercial Bank v. French, 21 * Curtis v. Kent Waterworks, 7 Pick. 486 ; Trustees v. Levant, 10 Me. Barn. & Cress. 314. 441 ; Garland v. Reynolds, 20 Id. 45 ; ' Protection Ins. Co. v. Wilson, 6 Ohio Southern Life Ins., etc., Co. v. Gray, 3 St. 553. See Goodell v. New England Fairf. (12 Me.) 262 ; Irish v. Webster, Mut. Fire Ins. Co., 25 N. H. (5 Fost.) 5 Me. 144. 169; Binney v. Plumley, 5 Vt. 500. 'Ashuelot Manf. Co. v. Marsh, i § 134 CORPORATE AGENTS. 467 directors of a company to an individual, by inducing him to become a member of the company by means of false representations, is actionable, because it is an injury to him and not to the company. But the interest of stockholders is merely a qualified and equitable interest. The corpora- tion may call its officers to account if they wilfully abuse their trust or misapply the funds of the company ; and if it refuses to sue, or is still under the control of those who must be made defendants in the suit, the stockholders, who are the real parties in interest, may file a bill in their own names, making the corporation a party defendant, or part of them may file a bill in behalf of themselves and all others standing in the same relation.-' § 134. Statute of limitations. — The limitation of actions in case of default on the part of the cashier of a bank, begins to run not from the time funds were actually withdrawn, but from the time the officer neglected to pay them over pursuant to his bond.^ The test of the running of the statute of limitations is the liability of the party, invoking its bar to the service of process during the whole of the period prescribed. If there is a continuous liability, the residence or domicile of the party is immaterial. When a foreign corporation has a known place of business, and an agent in the State, the statute of limitations is as available 'Peabody V.Flint, 6 Allen, 52, per to refund moneys improperly withdrawn Chapman, J., referring to Smith v. by them from the stock of the com- Hurd, 12 Mete. 371; Robinson V. Smith, pany and applied to their own use. 3 Paige Ch. 222 and cases cited. See Hickens v. Congreve, 4 Russ. 562. A Brown v. Vandyke, 4 Halst. Ch. person who has had his name removed 79"5 ; Forbes v. Memphis, etc., R.R. from the register of shareholders of a Co., 2 Woods, 323 ; Bronson v. La company for variance between the Crosse, etc., R.R. Co., 2 Wall. 283 ; memorandum and prospectus, is not Allen V. Curtis, 26 Conn. 456 ; Black- entitled to file a bill for the purpose of man v. Cent. R.R., etc.,Co., 58 Ga. 189 ; compelling the directors personally to Silk Manf. Co. v. Campbell, 3 Dutcher, refund the deposit and calls, unless the 539. Some of several shareholders in a directors have been guilty of fraud, joint stock company may sue on behalf Ship v. Crosskill, L. R. 10, Eq. 73. of themselves and the other sharehold- * Bank of Wilmington v. WoUaston, ers to compel directors of the company 3 Har. Del. 90. 468 CORPORATE AGENTS. § 135- to it as if it were a domestic corporation or a natural per- son.^ But a foreign corporation sued in New York cannot avail itself of the statute of limitations, although it has, before the commencement of the action for the time speci- fied in the statute, continuously operated a railroad in the State, and had property and officers therein.^ § 135. Notice to agent. — There can be no actual notice to a corporation aggregate except through its agents or offi- cers. Notice to an individual corporator, if he be not con- stituted by the charter or by-laws an organ of communica- tion between the corporation and those who deal with it, is not notice to the corporation, because any presumption that he had imparted the information to the corporate body would be rebutted by the fact that it was not his duty to do so.^ Knowledge of a director, acquired while he is not acting in an official capacity, that a note discounted by his bank before maturity is illegal, or without consideration, is not knowledge of the bank.* Notice to a corporator of an incumbrance on property bought by the corporation will not charge the other corporators with whom he is as- sociated.® Where a note is discounted by the cashier of a bank, the fact that he is also a stockholder and director of a corporation which indorsed the note, will not make the bank chargeable with notice of equities against the paper.^ When an officer of a corporation is dealing with it in his own interest, and in opposition to that of the corporation, the latter is not chargeable with his knowledge not com- ' Huss V. Cent. R.R. & Banking Co., 72 Me. 226. The holder of bank stock 66 Ala. 472. as collateral security is not bound by '■' Thompson v. Tioga R.R. Co., 36 the knowledge of the oifficers of the Barb. 79; Olcott v. same, 20 N. Y. bank. Bakerv.Woolston, 27Kans. 185. 210; Rathbun v. N. C. R.R. Co., 50 * First Nat. Bank v. Christopher, 40 Id. 656 ; Boardman v. Lake Shore, etc., N. J. 435. R.R. Co., 84 Id. 157. See Barr V. King, 'Burt v, Batavia Paper Manf. Co., 96 Pa. St. 485. 86 111. 66. ' Housatonic Bank v. Martin, i Mete. ' First Nat. Bank of Rock Island v. 294 ; Fairfield Savings Bank v. Chase, Loyhed, 28 Minn. 396, § ^35 CORPORATE AGENTS. 469 municated of facts derogatory to his title.^ But notice to an agent, who is bound as such agent to act upon the no- tice, or to apprise his principal of it, is legal notice to the principal ; and this rule is applicable to corporations.* Where the charter, a by-law, or a custom has authorized the executive officers of a bank to act for it, they may bind it by their reception of notice, as well as by any other act within the scope of their power.^ Publication of the dis- solution of a partnership in a newspaper which is taken and paid for at a bank by its officers, may not be constructive notice to the bank, though it has previously dealt with the firm ; but when the fact of dissolution, gleaned from that or any other source, is announced by a director at a regular meeting of the board, and made the subject of conversa- tion, it will be notice to the bank.* Notice to the president ' Barnes v. Trenton Gas Light Co., 27 N. J. Eq. 33 ; Peckham v. Hendren, 76 Ind. 47. See Seneca County Bank •V. Neass, 5 Denio, 329 ; Atlantic State Bank v. Savery, 82 N. Y. 291 ; Farm- ers', etc., Bank v. Payne, 25 Conn. 444 ; Wickersham v. Chicago Zinc Co., 18 Kansas, 481 ; Mihill's Manf. Co. v. Camp, 49 Wis. 130. 2 Fulton Bank v. N. Y. & Sharon Canal Co., 4 Paige Ch. 127 ; Waynes- villa Nat. Bank v. Irons, 8 Fed. Rep. i. If an agent act for a bank in discount- ing a note, the bank is affected with his knowledge of fraud in the inception of the note, Nat. Security Bank v. ■Cushman, 121 Mass. 490. It is other- wise if the agent does not himself dis- count the paper, but it is done by the bank on his recommendation. Shaw V. Clark, 49 Mich. 384. ' Notice to a moneyed corporation is good if given to the chief financial of- ficer. Port Jervis v. First Nat. Bank, 96 N. Y. 550. Notice to the president of the corporation in relation to mat- ters under his care, is notipe to the corporation. Smith v. Board of Water Commrs., 38 Conn. 208. The same is true as to the treasurer, who is the managing agent. New England Car Spring Co. v. Union India Rubber Co., 4 Blatchf. I. Notice to the superin- tendent of a mine of its dangerous condition, is notice to the company. Quincy Coal Co. v. Hood, yy III. 68. See Mechanics' Bank v. Schaumburg, 38 Mo. 228. * Bank of Pittsburgh v. Whitehead, ID Watts, 397 ; Bank of South Caro- lina V. Humphreys, i McCord, 388. See Martin v. Walton, lb. 16 ; Green V. Merchants' Ins. Co., 10 Pick. 402. Where a' note was made by a firm which was discounted by a bank for the accommodation of the payee, and there was no actual notice to the. bank of the dissolution of the partnership, it was held that the mere taking of a new note, apparently drawn by the same persons, did not discharge the firm from liability for the previous debt. Vernon v. Manhattan Co., 22 Wend. 183. 47° CORPORATE AGENTS. § 1 35 of a bank that certain stock in the bank was purchased with trust funds belonging to a married woman, but stands on the books of the bank in the name of her husband, is notice to the bank, and it is sufficient that the president was apprised of the facts in general terms, and thus put upon inquiry.^ But notice to an officer, or knowledge not derived officially in the business of the corporation, cannot operate to the prejudice of the latter. The principal is chargeable with knowledge, for the reason that the agent is substituted in his place, and represents him in the partic- ular transaction ; and as this relation, strictly speaking, exists only while the agent is acting in the business thus delegated to him, it is properly limited to such occasions.* W., being possessed of a portion of the separate property of his wife, invested it in real estate, taking a deed for the same in his own name. A year later, W. and wife, by their joint deed, conveyed one-fourth part of the property to a third person for the wife's sole and separate use. This deed remained in W.'s possession, who neglected to have it re- corded, and he thereafter mortgaged the same property to a railroad company, he being at the time its president, to secure the payment of an indebtedness of himself. It was held that, although W. was the president of the company when he executed the mortgage, knowledge which he had in regard to the rights and equities of his wife could not be taken as the knowledge of the company, unless it could be shown to have been communicated to it.^ The cashier of a bank being held out to the world as its general agent for the management of its notes and other securities, notice to him to sue the maker of a note held by the bank, is no- ' Porter v. Bank of Rutland, 19 Vt. sentations made by the president of a 410. corporation to an agent, and commu- ' Bank of U. S. v. Davis, 2 Hill, nicated by the agent to a third person, 451. are not binding on the corporation. ' Winchester v. Bait. & Susq. R.R. Hackney v. Alleghany County Mu, Ins. Co., 4 Md. 231. Unauthorized repre- Co., 4 Pa. St. 185. § 135 CORPORATE AGENTS. 47 1 tice to the bank, especially if the notice is brought to the knowledge of the bank, and acted on by the president.^ Where the indorser of a note which had been discounted by a bank went to the cashier, and told him the maker was about to remove his personal property, and requested the cashier to issue execution on the judgment which the bank had obtained against the maker, which the cashier refused to do, and said he would discharge the indorser and look to the maker, it was held binding on the bank.^ Directors or trustees, when assembled as a board, are the general agents upon whom a notice may be served, and which will be binding upon their successors and the corporation. But notice to an individual director who has no duty to perform in relation to such notice, cannot be considered a notice to the corporation.® Where a promissory note is discounted by a bank, the fact that the indorser of the note is one of the bank directors will not be deemed notice to the bank that the note was made for his accommodation.* An en- > Bank of St. Mary's v. Mumford, 6 accommodation, and negotiated by Ga. 44 ; Trenton Banking Co. v. Wood- him ; that the bills in suit were dis- niff, I Green Ch. 117. counted by the plaintiff's bank for G.'s ' Westmoreland Bank v. Klingen- benefit, and the avails fraudulently ap- smith, 7 Watts, 523. propriated by him for another purpose ; * Fulton Bank v. N. Y. & Sharon and that when they were so drawn and Canal Co., supra ; Custer v. Tompkins accepted, and until after they were diS- County Bank, 9 Pa. St. 27 ; Genl. Ins. counted and indorsed to the plaintiffs, Co. V. U. Ins. Co., 10 Md. 517; U. S. G. was a director of the bank ; but that Ins. Co. V. Shriver, 3 Md. Ch. 381. he was not present with the board of ^Commercial Bank v. Cunningham, directors when they were discounted, 24 Pick. 270. In Farmers' & Citizens' and had never communicated to them. Bank v. Pajme, 25 Conn. 444, a suit or to any of the officers or agents of was brought by the indorsees of bills of the bank, his knowledge of the purpose exchange against the acceptor, in which for which the bills were made. On the it appeared that the bills were drawn claim of the defendant that the plain- in favor of one G., and accepted by the tiffs were not bona fide holders of the defendant, for the sole accommodation bills by reason of the knowledge of of G., and for the purpose of enabling such director, it was held that his him to pay with their avails certain knowledge could not be imputed to the other bills of exchange which had been plaintiffs. Followed in Farrell Foun- previously drawn and accepted in his dry v. Dart, 26 Conn. 376. favor by the same parties, and for his 472 CORPORATE AGENTS. § 135 gineer was appointed by a company to superintend the construction of a bridge during its entire progress, and to give, from time to time, all necessary directions in relation to it. The builders proposed to the engineer an alteration supposed by them to be an improvement, which was made with his knowledge. Notice of the alteration to the engineer was held notice to the company.^ Where, in cases of in- surance, the notice of loss and the preliminary proofs are re- quired to be sent to the secretary of the company, he must be considered as its agent, clothed with full authority to act for it in acknowledging receipt of the notice, and judging of its sufficiency." If an agent be employed by an insur- ance company to solicit risks and negotiate contracts for the' company with any one who may wish to insure, verbal notice to him of a prior insurance on the same property, is notice to the company.^ But a conversation about an in- tention to effect a subsequent insurance in presence of an agent of the company does not constitute notice of such subsequent insurance.* A condition of a policy of insur- ance was that the policy should be void if the insured went beyond the limits of Europe without the permission of the directors. The insured having emigrated to Canada, the agent of the company, with knowledge of the breach of the condition, continued to receive the usual premiums upon the policy, representing that if they were regularly paid the policy would be perfectly good. It was held that notice of the breach of the condition to the agent was notice to the company, and that the latter could not insist upon a for- feiture after the death of the insured.^ Where a corpora- tion has several agents who have separate and distinct 1 Danville Bridge Co. v. Pomeroy, 15 * Schenck v. Mercer County Mu. Fire Pa. St. 151. Ins. Co., 4 Zab. 447. ^ Troy Fire Ins. Co. v. Carpenter, 4 * Wing v. Harvey, 27 Eng. L. & Eq. Wis. 20. 140; 18 Jur. 394; 23 L. J. Ch. 511; 3 McEwen v. Montgomery County 5 De G. M. & G. 265. Mu. Ins. Co., 5 Hill, loi. § 136 CORPORATE AGENTS. 473 duties, notice to one in relation to a matter not connected with his duties cannot affect the corporation.^ If the agent of a corporation is authorized to procure loans of naoney from banks and individuals on notes of the corpo- ration made by him, on drafts drawn by him, and on notes and drafts payable to the corporation and indorsed by him, notices given to him on such paper will bind the corpora- tion, and he may waive the right to require notice, and render the conditional liability absolute, although he at the same time acts as the agent of the maker.^ Upon the question whether a principal is bound by knowledge or notice which the agent had previous to his employment in the service of the principal, there is a con- flict of authority. In a late case in Pennsylvania, it was said that " notice to an agent twenty-four hours before the relation commenced is no more notice than twenty-four hours after it ceased would be."^ On the other hand, in Maine the rule has been adopted that the knowledge of an agent obtained prior to his employment, will be an implied or imputed notice to the principal under the following lim- itations and conditions : " The knowledge must be present to the mind of the agent when acting for the principal, — so fully in his mind that it could not have been at the time forgotten by him ; the knowledge or notice must be of a matter so material to the transaction as to make it the agent's duty to communicate the fact to the principal ; and the agent must himself have no personal interest in the matter which would lead him to conceal his knowledge from his principal, but he must be at liberty to communi- cate it." * § 136. Acts and declarations of officers and agents. — The agent's statements made at the time of, or in the business ' Goodloe V. Godley, 13 Smed. & ^ Houseman v. Building Assoc, 81 Marsh, 233. Pa. St. 256. 2 Whitney v. South Paris Manf. Co., * Fairfield Savings Bank v. Chase, 72 39 Me. 316. Me. 226, per Peters, J, 474 CORPORATE AGENTS. "' 1 36 which he transacts under the power, are included in his acts ; his declarations being a part of the res gestcB, and binding his principal equally with the act to which they refer.^ The knowledge, intentions, and purposes of a cor- poration can generally only be known by the assertions and conduct of its directors and other principal agents while in the discharge of their duties. As a rule, what the directors know regarding matters affecting the corporate interests, the corporation is supposed to know.* In an action of ejectment to recover land claimed by a religious corpora- tion, it was held that the acts and declarations of the trus- tees of the corporation while transacting its business, and also what passed at meetings of the corporation when as- sembled on business, might be proved to show the posses- sion of the land and the extent of the claim of the corpo- ration ; on the ground that the acts of corporate agents, and even of bodies corporate, may be established independently of written minutes of their proceedings.' To render the acts and declarations of an officer of a corporation aidmis- sible in evidence, there must be some proof as to his duty and power, and that they were made within the scope of his authority.* A corporation is not bound by the reports of its officers made to the stockholders, in which certain claims for which the corporation is not holden are estimated ' Northrup v. Miss. Valley Ins. Co., bound to inspect the power when in 47 Mo. 435 ; Western Boatmen's Be- writing, or to learn its language the nev. Assoc, v. Kribben, 48 Id. 37 ; best way he can when it is by parol. Morris & Essex R.R. Co. v. Green, 15 Upon becoming acquainted with it, he N. J. Eq. (2 McCarter) 469. " I au- will be deemed to understand its legal thorize a man to borrow a sum of effect, and must see at his peril that money for me. The power being lim- the agent does not transgress the pre- ited, he has no authority to borrow for scribed boundary in acting under it. himself or a neighbor. He goes to the North River Bank v. Aymar, 3 Hill, 262. lender and borrows in my name, show- " Farmers' Bank v. McKee, 2 Pa. St. ing him a written power, and declaring 318. at the same time that he takes the loan ' Magill v. Kauffman, 4 Serg. & on my account. Both his acts and Rawle, 317. declarations are evidence against me." ■* Spalding v. Bank of Susquehanna But a party dealing with an agent is County, 9 Pa. St. 28. § 136 CORPORATE AGENTS. 475 as corporate liabilities.^ An admission of indebtedness on a contract is beyond the scope of the authority of the treas- urer, and is the mere declaration of a third person which will not affect the corporation." The declarations of the president of a bank of its liability are not admissible against it. An indebtedness of a corporation cannot be created by the mere admissions of its president any more than its rights can be released or annulled by his unauthorized di- rections.* The general duty of the treasurer of a private corporation does not extend so far as to allow him to settle and audit disputed claims brought for salaries by other agents of similar grade, and to issue written admissions of his determination binding on the corporation. Such duties would regularly fall on the board of directors.* Where a person undertook to establish the fact of his engagement as an agent of a corporation from the declarations of the president of the board of managers, from those of one of the members of the board, and from those of the superin- tendent made separately and on different occasions, without showing that any corporate action was taken by the board by virtue of which he was employed, or by which the power to employ him was delegated to any member of the board or to the superintendent, it was held that the proof was in- sufficient.® The cashier of a bank possesses no incidental authority to make any declarations binding on the bank not within the scope of his ordinary duties. If, for in- stance, he should promise to pay a debt which the corpo- ration did not owe and was not liable to pay, or should ad- mit that forged bills of the bank were genuine, the bank would not be bound by such promise or admission, unless > Hall V. Mobile & Montgomery R.R. ry & Co. v. Northern Bank of Ala„ 63 Co., 58 Ala. 10. Id. 527. ' Tripp V. New Metallic Packing Co., * Kalamazoo Novelty Manf. , Co. v. 137 Mass. 499, McAlister, 36 Mich. 327. ' Spyker v. Spence, 8 Ala. 333 ; Hen- ' Allegheny County Workhouse v. Moore, 95 Pa. St. 408. 476 CORPORATE AGENTS. §136 it had authorized or adopted the act.^ A new bank having been chartered by the same name as a previous one, em- ployed the same president and cashier. The. new corpora- tion put in circulation the notes of the old one, the cashier asserting that there was no difference between the notes of the old and new corporation ; and upon the faith of this declaration the notes obtained circulation. It was held that the officers who had thus undertaken to pledge the credit of the bank had acted unwarrantably, and could not bind the stockholders, who must be supposed to have relied upon the faithful and correct discharge of duty by their agents and servants. The court remarked that the stock- holders would be in an extremely unsafe situation if their property were bound by the irregular transactions or decla- rations and confessions of their officers beyond the sphere of their duties.* Where a person permits himself to be held Out to the world as president of a bank which has in fact no legal being, he will be chargeable with constructive notice of the management of its affairs by the pretended cashier and other subordinate officers, and, upon slight proof of a fraudulent combination, the acts and declarations of each in promoting its success will be allowed to go to the jury, who are to determine the existence of the combi- nation and its nature.^ Neither the president nor cashier, tior both combined, can, virtute officii, release a debt or liability in behalf of the bank, or bind the bank by an ad- mission that the maker of a promissory note given by him to the bank is not legally responsible thereon.* Where the cashier and one of the directors of a bank, having been asked by the indorsers of a note discounted by the bank ' Merchants' Bank v. Marine Bank, » Hauser v. Tate, 85 N. C. 81. 3 Gill, 96. " Hodge v. First Nat. Bank, 22 Gratt. = Wyman v. Hallowell & Augusta 51 ; Bank of U. S. v. Dunn, 6 Pet. 51 ; Bank, 14 Mass. 58. See State v. Com. U. S. v. City Bank of Columbus, 21 Bank of Manchester, 14 Miss. (6 Smed. How. 356. & Marsh) 218. ■ § 136 CORPORATE AGENTS. 477 for the accommodation of the drawer, whether it would be safe for them to indorse, replied in the affirmative, and that the drawer was perfectly good, it was held that the bank was not bound thereby ; such a declaration, even if it were wilfully false, not made by the officers or agents of the bank in the course of their duties, not affecting the prin- cipal.* The defendants, a railroad company, advertised that they would receive proposals, until a specified day, for doing certain work on the line of their railroad. The plaintiff submitted proposals to the defendants for doing the work, and entered into a written contract to perform the same. On a subsequent day the directors of the com- pany held a meeting, when, for want of time to examine the proposals of the different parties, a resolution was passed and entered in the record of the proceedings, that " such proposals be referred to the executive committee and superintendent to close a contract with such of the persons making the proposals, and upon such terms as they shall consider most advantageous to the interests of the com- pany." It was not proved that the executive commit- tee and superintendent ever met or acted upon the propose, als. It was held that the declarations of individual directors, immediately upon the adjournment of the meet- ing referred to, that the proposals of the plaintiff were accepted, were not binding on the company, it not appear- ing that such declarations were within the scope of the ordinary powers of a director and the books of the com- pany being the best evidence of what was done by the directors at the meeting.^ It is scarcely necessary to say that the declarations of individual corporators made when they are not acting as the agents of the corporation, cannot be shown against the corporation ; ^ nor those of an officer ' Mapes V. Second Nat. Bank, 80 Pa. ' Polleys v. Ocean Ins. Co., 14 Me. St. 163. 141; Ruby V. Abyssinian Soc, 15 Id. « Soper V. Buffalo & Rochester R.R. 306. Co., 19 Barb. 310. 478 CORPORATE AGENTS. § 136 or director under similar circumstances.^ Where a party- dealing with an agent has ascertained that the act of the agent corresponds with the power in every particular in re- gard to which such party has, or is presumed to have, any knowledge, he may take the representation of the agent as to any extrinsic fact which rests peculiarly within the knowledge of the agent, and which cannot be ascertained by a comparison of the power with the act done under it.* ' Hartford Bank v. Hart, 3 Day, 491 ; Nat. Bank v. Norton, i Hill, 572 ; Sei- brecht v. New Orleans, 12 La. Ann. 496 ; Underbill v. Gibson, 2 N. H. 352 ; Washington Bank v. Lewis, 22 Pick. 24 ; Stoystown, etc.. Tump. Co. v. Craver, 45 Pa. St. 386 ; East River Bank v. Hoyt, 41 Barb. 441 ; Gray- ville & Mattoon R.R. Co. v. Bums, 92 111. 302. Declarations or statements of individual directors when the board is not in session, and when such decla- rations or admissions do not accom- pany any ofBcial act, and statements made in discussion while the board is in session, are not competent to prove a contract. Peek v. Detroit Novelty Works, 29 Mich. 313. See Imboden v. Etowah Battle Branch, etc., Mining Co., 70 Ga. 86 ; Coyle v. Bait. & Ohio R.R. Co., II W. Va. 94; Smith v. Woodville Consolidated Silver Mining Co., 66 Cal. 398. ' Farmers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 16 N. Y. 125, approving North River Bank v. Aymar, 3 Hill, 262. " The familiar case of the giving of a negotiable partnership note by one of the partners for his own individual benefit affords an apt illustration of this rule. Each partner is the agent of the partnership as to all matters within the scope of the partnership business, and can bind the firm by making, indorsing, and accept- ing bills and notes in such business ; but he has no more authority than a stranger to execute such paper in his own business or for the accommoda- tion of others. If he gives the partner- ship note or acceptance for his own debt, it is void in the hands of any party having knowledge of the consid- eration for which it is given ; but, when negotiated to a bona fide holder, the firm is precluded from questioning the authority of the partner, and is effect- ually bound Every person tak- ing the negotiable note or acceptance of a partnership executed by one of the partners in the name of the firm, is bound to know the extent of the part- ner's authority to bind the firm, but this obligation does not extend to the con- sideration for which the note or ac- ceptance was given. If given for the private debts of one of the partners, or for the accommodation of third persons, all the cases agree that the burden of proving the holder's knowl- edge of that fact rests upon the part- nership. That the execution is by an agent is as apparent upon the face of the paper in such cases, as in that of a certified check ; because a partnership can only act in its partnership name through agents. The argument re- sorted to here, therefore, that parties are only bound by the authorized acts of their agents, and that paper issued by an agent without authority is no more obligatory upon the principal than if it had been forged, is just as appli- cable to partnership notes given by a § 136 CORPORATE AGENTS. 479 As a rule, the declarations of an agent are admissible as against the principal only when made while transacting the business of the principal, and as a part of the transaction then depending.^ In an action by a passenger against a railroad company for the loss of his trunk, the admission of the conductor, baggage-master, or station-master, as to the manner of the loss, made the next morning in answer to inquiries for the trunk, are competent against the company, it being part of the duties of such agents to deliver the baggage of passengers, and to account for the same if missing when inquiry is made in a reasonable time.^ But in an action against a railroad company for damages by a collision through the alleged negligence of the engineer, his statements in relation to the accident made a few days afterward, were held not admissible against the company.^ Statements of the draw-tenders of a bridge made while actually engaged in opening and keeping open the draw for the passage of vessels, to the masters of such vessels, that the draw-tenders would prefer that vessels should sail through rather than be hauled through, were admitted against the company.* The declarations of the cashier of a bank that stock which stood on the books of a bank in the name of certain persons was a trust fund, were held admis- partner for his individual debts as these Gray, 450 ; Lane v. Boston & Alb. R.R. certified checks. The question is not Co., 112 Mass. 455. in such cases whether the principal is ' Robinson v. Fitchburg, etc., R.R. bound by the unauthorized act of the Co., 7 Gray, 92. agent, but whether he is estopped by * Toll Bridge Co. v. Betsworth, 30 the representation ofthe agent from dis- Conn. 380. The admission of asuper- puting facts which show that the act intendent of a street railroad company was authorized." Ibid., per Selden, of an assault made upon a passenger J. COMSTOCK, J., dissenting. by a driver, and justifying it, was held ' Ladd V. Couzins, 35 Mo. Sl6;Mc- admissible against the corporation. Dermott v. Hannibal & St. Joseph Malecek v. Tower Grove & Lafayette R.R. Co., 73 Id. 516 ; Adams v. same, R.R. Co., 57 Mo. 17. So the admis- 74 Id. 553; Stiles V. Western R.R. sion of the superintendent of a manu- Corp., 8 Mete. 44 ; Sweatland v. 111. & facturing company that a nuisance ex- Miss. Tel. Co., 27 Iowa, 433. isted, and required to be and should be ' Morse v. Conn. River R.R. Co., 6 attended to. McGenness v. Adriatic 480 CORPORATE AGENTS. §136 sible in evidence to charge the bank with knowledge of the fact,^ Anything in the nature of narrative is to be carefully ex- cluded." To be admissible, the proof must be in the nature of original and not of hearsay evidence ; it must constitute the fact to be proved, and must not be the mere admission of some other fact." In an action by a railroad company for running over and killing the plaintiff's hus- band, the plaintiff was permitted to prove that after the deceased was struck and the train stopped, two of the train men, whom the witness supposed were the fireman and engineer, came up, and one of them said to the other : " If you had stopped the train when I told you, you would not have killed him." Held error.* In an action to recover damages for personal injury, although the injured person testifies at the trial, the exclamations of pain made by such person at the time of the occurrence may be proved and used to corroborate other evidence, and to give a more par- ticular or vivid description of his condition.^ The books and records of a corporation are prima facie evidence against it as admissions. But a corporation can only be bound conclusively by its records, either when they are such, duly made by the recording officer of its proceed- ings, or when some person, who has had proper access to them or knowledge of them, has become aware of their contents and has acted upon the faith that they were the records of its proceedings." Mills, 116 Mass. 117. But the decla- 'Bacon v. Inhabs. of Charlton, 7 ration of the superintendent of a mine Cush. 588. to one of the miners that every ton ° Luby v. Hudson River R.R. Co., 17 of ore they got out cost a little over N. Y. 133. See Oregon Steamship five dollars a ton to mine, was held Co. v. Otis, 100 N. Y. 446 ; Learned v. not admissible against the company. Tillotson, 97 Id. i. Hanover Water Company v. Ashland * Adams v. Hannibal & St. Joseph Iron Co., 84 Pa. St. 279. R.R. Co., supra. ' Harrisburg Bank v. Tyler, 3 Watts ' Hogenlocher v. Coney Island, etc., & Serg. 373. R.R. Co., 99 N. Y. 136. « Holden v. Hoyt, 134 Mass. 181. § 137 CORPORATE AGctJtS. 48 1 • § 137. Agency not restricted to place.— A corporation may carry on its business in a foreign State by its agents ; the presumption being, in the absence of any prohibition to the contrary, that the corporation of one State may exercise within any other State the general powers conferred by its charter.^ Although corporations cannot migrate from one sovereignty into another so as to become legal local exist- ences within the latter, yet the migration of the directors of a corporation from one sovereignty into another does not terminate the existence of the corporation within the sovereignty which created it. Corporations created in one State are permitted to contract and sue in other States, and as all of the directors might contract there, they can authorize it. to be done by their agent. The mere place where the agents of a corporation enter into a contract must in general be immaterial. The important question is one of power. The exercise of the power has relation to the place of their legal establishment where the contract may be subsequently acted under.* The transaction of business by the corporation in another State appearing, a certificate of service by the proper officer, on a person who is its agent there, would be prima facie evidence that the agent represented the company in the business.^ The directors of a manufacturing company, the charter of which con- tains no restriction as to the place of holding meetings, may appoint a secretary at a meeting held out of the State 4 ' Christian Union V. Yount, loi U. S, ''Wright v. Bundy, ii Ind. 398; 352; Bank of Augusta V. Earle, 13 Pet. Humphreys v. Mooney, 5 Col. 282; 519; Galveston R.R. v. Cowdrey, 11 Hillyer v. Burlington, etc., R.R. Co., Wall. 459 ; Leasure v. Union Mut. Life 70 N. Y. 223 ; Pope v. Terre Haute Ins. Co., 91 Pa. St. 491 ; Wood Hy- Car Manf. Co., 87 Id. 137. draulic Hose Min. Co. v. King, 45 Ga. 'St. Clair v. Cox, 106 U. S. 350. See 34 ; Dodge v. Council Bluffs, 57 Iowa, Const, of Ala., art. 14, sec. 4. 560; Cowell V. Springs Co., 100 U. S. 55 ; ■* McCall v. Byram Manf. Co., 6 Cojin. Doyle v.Continental Ins. Co., 94 Id. 535 ; 428. Home Ins. Co. v. Davis, 29 Mich. 238, VOL. I.— 31 CHAPTER IX. RIGHTS, POWERS, AND DISABILITIES OF CORPORATIONS IN GENERAL. 5138. Construction of charter. 139. Inviolability of charter. 140. Conditional grant. 141. Where the grant is without con- sideration. 142. Police regulations. 143. Release from obligations. 144. Right to enact changes in meth- ods of legal procedure. 145. Amendment of charter by con- sent of corporation. 146. Reservation by State of power over corporations. 147. Restricted to authorityconferred by charter. § 148. When corporate power pre- sumed. 149. Power with reference to place of creation. 150. Rights and powers of foreign corporations. 151. Amalgamation. 1 52. Meaning of consolidation. 153. Power to consolidate. 154. Effect of consolidation in gen- eral. 155. Effect ofconsolidation in respect to creditors, 156. Consolidation of corporations created by different States. § 138. Construction of charter. — A charter, like a contract between individuals, is to be construed according to its spirit and meaning, as well as its letter ; ^ the parties to it being primarily the State, and the corporators or stock- holders including those by whom the afifairs of the corpo- ration are managed and controlled." Whether a duty im- ' white v. Syracuse & Utica R.R. Co., 14 Barb. 559 ; Brady v. Brooklyn, J Id. 584. " We take the general doc- trine to be in this country, though there may be exceptional cases and some au- thorities to the contrary, that the pow- ers of corporations organized under legislative statutes are such, and such only, as those statutes confer. Con- ceding the rule to be applicable to all statutes that what is fairly implied is as much granted as what is expressed, it remains that the charter of a corpo- ration is the measure of its powers, and that the enumeration of these powers implies the exclusion of all others." Thomas v. R.R. Co., loi U. S. 71, per Miller, J. " Northern R.R. Co. v. Miller, 10 Barb. 260 ; Bray v. Farwell, 81 N. Y. § 138 OF CORPORATIONS IN GENERAL. 483 posed by law is merely directory, or essential to the enjoy- ment of some of the corporate rights, must be determined by its nature and object, by the public convenience, and by what may be understood to have been the intention of the legislature.^ The natural construction of a charter is that all the privileges conferred, all the duties declared, and all the burdens imposed relate to the corporation as a whole, and not to the individuals composing it. The contrary may be enacted, but it ought to be clearly done before the corporators as natural persons can be affected.^ All the parts of the act should, if possible, be made subservient to, and in harmony with, the leading purposes and objects in- tended to be accomplished, and for which the corporation is created. To effect this, the whole must be considered and construed together, with direct reference to those pur- poses and objects, and all its minor and incidental provis- ions be so employed as to promote them. To dissect it into parts, and seize upon isolated expressions upon which to ingraft independent powers not in harmony with or nec- essary to attain the main design, would, in almost every case, defeat the intention of the legislature,^ This inten- tion is sometimes to be collected from the cause or neces- sity of making the statute, and sometimes from other cir- cumstances, and must be followed, though apparently 600 ; Flint, etc., Plank R. Co. v. Wood- may contract a debt for the labor, the hull, 25 Mich. 99 ; Bergman v. St. Paul materials, or the land upon which the Mut. Building Assoc, 29 Minn. 275. bridge is abutted. If more advanta- ' Bank of U. S. v. Dandridge, 12 geous, it may borrow money to pur- Wheat. 64 ; Middle Bridge Props, v. chase such land or materials or to pay Brooks, 13 Me. 391. for such labor. And as evidence of * Atty. Genl. v. Bank of Newbern, i such indebtedness and as security for Dev. & Batt. Eq. 216. its repayment, it may execute to the ' Strauss v. Eagle Ins. Co., 5 Ohio creditor a promissory note, a bond, or St. 59. -'A corporation to attain its a mortgage, whether the debt be for legitimate objects may deal precisely the money borrowed, or for the work, as an individual may who seeks to ac- materials, or land." Barry v. Mer- complish the same ends. If chartered chants' Exchange Co., 1 Sandf. Ch. for the purpose of building a bridge it 280. 484 RIGHTS, POWERS, AND DISABILITIES §138 contrary to the letter of the statute. "A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter ; and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers."^ The language of the charter should in general neither be construed strictly nor liberally, but according to the fair and natural import of it with reference to the purposes and objects of the corporation.* Where a bank was prohibited by its charter from dealing in goods, wares, and merchan- dise, excepting to secure a debt due the bank incurred in the regular transaction of its business, it was held that the phrase "deal in "must be construed to mean the buying and selling for gain, and also the taking of goods to sell on commission.^ A charter having provided that the corpora- tion might acquire and hold estate, real, personal, and mixed, and the same buy, exchange, sell, mortgage, trans- fer, pledge, or otherwise incumber or alienate, as the board of directors might deem expedient, it was held to entitle the corporation to loan its surplus funds.* But an act of incorporation which gives a company power to make loans " upon such terms, and for such commissions, in addition ' Thompson, C. J., in People v. 'A reasonable construction must be Utica Ins. Co., 15 Johns. 358. "A given to the charter. Therefore the doubtful charter does not exist, be- grant of a right to take tolls for logs cause whatever is doubtful is decisively floated " across " a stream, must be against the corporation." Black, C. deemed to mean with the descending J., in Com. v. Erie & Northeast R.R. current. Bennet's Appeal, 65 Pa. St. Co., 27 Pa. St. 339. See Wilmarth v. 242. See Mechanics' Bank v. Bank of Crawford, 10 Wend. 342 ; Old Colony Columbia, 5 Wheat. 326 ; First Nat. R.R. Co. V. Evans, 6 Gray, 25 ; Union Bank v. Exchange Bank, 92 U. S. 122 ; Bank v. Jacobs, 6 Humph. Tenn. 525 ; Wendel v. State, 62 Wis. 300 ; West- Ohio Life Ins. Co. v. Merchants' Ins. ern Cottage Organ Co. v. Reddish, 51 Co., II Id. i; McKiernan v. Lenzen, Iowa, 55; Wells v. Northern Pacific 56 Cal. 61 ; Fertilizing Co. v. Hyde R.R. Co.^ 33 Fed. Rep. 469 ; Little v. Park, 97 U. S. 659 ; New York, etc., v. Bowers, 46 N.J. 300 ; People v. Cheese- Kip, 46 N. Y. 546; Babcok v. N. J. man, 7 Col. ^6. Stock Yard Co., 20 N. J. Eq. 296; ^Batesv.BankoftheState,2 Ala. 451. Thompson v. Androscoggin Improve- * Western Boatmen's Assoc, v. Krib- ment Co., 58 N. Y. 108. ben, 48 Mo. 37. § 138 OF CORPORATIONS IN GENERAL. 485 to interest, as shall be stipulated by and between the said company and the parties receiving the loan or advance," does ncft authorize the company to take-usury.^ An action was brought and an injunction obtained to restrain a cor- poration from selling shares of stock under an assessment made by the trustees of the corporation. It appeared that the corporation was created to buy, improve, lease, sell, and otherwise dispose of real estate ; also to build water-front protection, slips, docks, piers, wharves, warehouses, and otherwise improve such property as might be obtained by the corporation ; that the corporation purchased and owned a tract of land, and that a railroad company was engaged in constructing a railroad to a point in the vicinity of the de- fendant's property ; that an agreement was entered into between the defendant and the railroad company, whereby the latter bound itself within a stipulated period to increase the width of its track, and the frequency of the trips of its cars, to reduce the fare one-half; and to maintain these con- ditions ten years ; that the defendant agreed to pay the railroad company, as a consideration for these concessions, twenty thousand dollars ; and that the assessment in ques- tion was levied by the trustees on the stock of the corpora- tion for the purpose of raising a fund with which to pay this sum. The railroad did not terminate upon or touch any portion of the property of the defendant, but it was proved that the increased facilities of travel over the rail- road resulting from the contract had already greatly en- hanced the value of the defendant's property, and were likely to enhance it more largely in the future. The ' Caldwell v. Com. Warehouse Co., mortgages a sufficient bond or other 4 Thompson & Cook, 179; i Hun, 718. satisfactory personal security in addi- See Johnson v. Griffin Banking Co., 55 tion should be required, it was held Ga. 691. Where the charter of a sav- that the loan on the promissory note of ings institution provided that its funds the borrower secured by bank stock should be invested in or loaned on pub- was lawful. Mott v. U. S. Trust Co., lie stocks or private mortgages, and 19 Barb. 568. that when loaned on such stocks or 486 RIGHTS, POWERS, AND DISABILITIES § 1 38 plaintiffs insisted that the defendant under its act of incorporation had no power to expend the money of the corporation for such a purpose, and that the assess- ment was therefore void. On the other hand, the defend- ant contended that the chief object of the corporation was to buy and sell real estate on speculation, and that with- a view to that end, it was expressly authorized to " improve " its real estate so as to enhance its value, and that, upon a fair construction of the word " improve," as used in the charter, it must be held to include every act the direct and immediate tendency of which was to materially benefit or enhance the value of the property. The plaintiffs argued that the word " improve " could include nothing but acts performed on the land itself ; such as the erection of buildings, the construction of roads across it, and other acts of a like nature. The court remarked that the only diffi- culty in the case resulted from the peculiar nature of the corporation, and the very novel objects for which it was formed, but that, in view of its evident purpose and design, the plaintiffs' construction was too narrow, that the term " improve," as here used, was employed in its more liberal sense, and included the performance of any act, whether on or off the land, the direct and proximate tendency of which was to enhance its value in the market. The judgment was therefore reversed, and the cause remanded, with an order to the court below to dissolve the injunction and dis- miss the action.^ The charter of a railroad company au- thorized the construction of a railroad between the cities of New York and Philadelphia, and made it the duty of the company to provide suitable vessels at either extremity of the road, for the transportation of passengers and goods from city to city. The company was permitted to demand and receive such sums of money for tolls and freight thereon as it should deem reasonable and proper, provided it should ' Vandall v. South San Francisco Dock Co., 40 Cal. 83. § 138 OF CORPORATIONS IN GENERAL. 487 not charge more than at the rate of eight cents a ton per mile for the transportation of property, nor more than ten cents a mile for the carriage of each passenger. It was held that the word "thereon," in the section fixing the rates of toll, meant the railroad proper and did not include the intervening waters which formed a part of the line of com- munication between the two cities.^ The charter of the Chesapeake and Delaware Canal Company imposed a toll on commodities on board a vessel passing through the canal. No toll was given on the vessels themselves, except only when they had no commodities on board, or not sufficient to yield a toll of four dollars. Passengers were not men- tioned, nor any toll given upon a vessel on account of such as. it might have on board. It was held that the company could not refuse permission to a boat laden exclusively with passengers to navigate the canal upon payment of the toll imposed upon the vessel* Where a city or borough is made the terminus of a rail- road, the whole territory within the municipal limits must be regarded as a single point, and the terminus may, therefore, 'Camden & Amboy R.R. Co. v. subject, and we may add, so unjust and Briggs, 2 Zab. 623. Ogden, McCar- injurious to the public, ought not to be TER, and Porter, JJ., dissenting. sustained in a court of justice unless it ' Perrine v. Chesapeake & Del. Canal is conferred in plain and express words. Co., 9 How. 172. Taney, Ch. J., said : It should not be inferred where the " The power claimed is the right to de- slightest doubt could arise, and the mand toll from every citizen who passes words are capable of any other con- through the canal, and to fix the amount struction ; and still less can it be in- at the discretion of the corporation. In ferred in a charter like this, where the form, it is true, the demand is made on toll granted upon goods and property the owner of the vessel engaged in ofevery kind is so carefully specified and transporting passengers ; but it is im- fixed in the law, and the charter alto- material to the passenger whether he is gether silent in relation to passengers." charged with the toll in the increased McLean, J., dissented on the ground price of his passage, or by a direct tax that the charter did not require the upon himself. In either case the re- company to permit the transportation suit is the same, and the power ex- of passengers in boats paying toll as for ercised is the same. Such an unlimited empty boats, and the public could not power to levy contribution on the pub- exact from the company accommoda- lic, and one so inconsistent with the tion which the law did not impose upon ordinary course of legislation upon the it as a duty. 488 RIGHTS, POWERS, AND DISABILITIES §138 in the discretion of the company, be established at any spot within the limits thus prescribed. The act incorporating' a railroad company authorized it to 'construct its road from the borough of Erie, the limits of which were afterward and before any work was done on the railroad, extended sixty rods further south. The company having commenced its road at the latter point, instead of at the original borough line, it was held not a compliance with the charter.^ The act incorporating a railroad company gave the company power to construct a railroad commencing at or near the city of Schenectady, and running thence on the north side of the Mohawk River. It was held that the company was authorized to commence its railroad near the city on the north side of the river, or on the south side within the city ; but that in case it did the latter, it was bound to extend the road across the river to the north side.* In arriving at the meaning of a charter, contemporaneous ' Com. V. Erie & Northeast R.R. Co., 27 Pa. St. 339. In this case, Lewis, J., dissenting, said that " When a municipal corporation is made the terminus of a railroad, it is not like a tree, a rock, or any other ofeject not liable to any material change, either under the laws of nature or the laws of man. It is more like a river, whose boundaries are changed by accretion and detrition. The rapid increase of population so frequently demands an extension of the boundaries of cities and towns that such alterations are deemed to lie in the contemplation of the legislature when making enact- ments, and of individuals when trans- acting business in relation to them. This is the rule in England, and it is one which applies with peculiar pro- priety to a new country hke our own. When an act of Parliament, which was passed in 1840, prohibited the erection of any turnpike gate in the town of Taunton, it was decided by the Queen's Bench that the word town referred to the boundaries existing at the time the gate was erected or continued, and not to the boundaries existing at the time the act was passed. It was declared that if a new gate was to be erected in 1870, the trustees were bound to con- sider whether the road was then within the limits of the town of Taunton, not whether it was so thirty years before. Regina v. Cottle, 16 Adol. & EU.N. S. 412. An extension of the boundaries of the municipality is, therefore, nothing more than an enlargement of the dis- cretionary powers of the railroad com- pany." It will, however, be observed that, in the case referred to by Judge Lewis, the construction was against the corporation and in favor of the public. ' Mohawk Bridge Co. v. Utica & Schenectady R.R. Co., 6 Paige Ch. 554- §138 OF CORPORATIONS IN GENERAL. 489 documents in causes relating to it, and parol testimony, may- be resorted to in order to explain and give it a construc- tion ; but not to contradict it.^ The governor's message and journals of the house are not, however, admissible for the former purpose ; ^ nor what was said in debate on the passage of the charter.^ Where a bank charter was ambigu- ous, it was held that the contemporaneous construction put upon it by the stockholders, by the fiscal agents of the State, and by the legislature, commencing with its date, and con- tinuing for a period of thirteen years thereafter, was such strong proof of the sense in which it was understood as to make the construction thus adopted authoritative.'' All such powers in addition to those expressly granted as are strictly incidental and necessary to carry out the ob- ject of the grant, are implied.^ Thus, the power to con- struct a railroad and establish transportation lines on it, necessarily includes the essential appendages required to complete and maintain such a work, and carry on such a business ; as the power to erect and maintain depots, car houses, water tanks, shops for repairing engines, houses for switch and bridge tenders, coal or wood yards for fuel for the use of the locomotives, etc. So, within the same prin- ciple, a toll-house is a necessary appendage of a turnpike road,'' Courts will not look into the affairs of a corpora- tion to determine the expediency of its action or motives when the action itself is lawful.'' The doctrine of the con- ' Lucton School V. Scarlett, 2 Younge State v. Newark, i Id. 315. It might & Jervis, 330. be advantageous for a railroad com- " Bank of Pa. V. Com., 19 Pa. St. 144. pany"to purchase land, and to erect ' Binney's Case, 2 Bland Ch. 99. houses in the right location and of the ^ Atty. Genl. v. Bank of Newbem, I right kind for all of their constant em- Dev. & Batt. Eq. 216. ploy6s, to establish factories for making ^ Sumner v. Marcy, 3 Woodb. & Mi- their own rails, engines, and cars, even not, 105. See Hunter v. Marlboro, 2 to purchase coal mines and supply Id. 168 ; Beatty v. Knowler, 4 Pet. 1 52 ; themselves with fuel ; but these are not Starke v. High Arch Corp., 3 Taunt.792. among the necessary powers of such a •State V. Mansfield, 3 Zab. 510; company." Ibid. Wright V. Carter, 3 Dutcher N. J. 76 ; ' Bailey v. Birkenhead, etc., R.R. Co., 490 RIGHTS, POWERS, AND DISABILITIES §138 stitutional construction of political charters rests on a sim- ilar basis. " It is plain that corporations, in executing their express powers, are not confined to means of such in- dispensable necessity that without them there could be no execution at all. The contrary doctrine would lead at once to a very great absurdity ; for if there are several modes of accomplishing the end, neither one is indispensable, and each would exclude all the others. And thus, by inevitable logic, an express grant of power would be forever dormant because there are more modes than one of carrying it into execution. It is almost as difficult to say that the inci- dental power depends for its existence on the degree of necessity which connects it with the power in chief. Such a doctrine would impose upon courts a never-ending diffi- culty, for the inquiry would always be whether the chosen instrumentality is the very best that could be selected ; and if not the very best, however minute the difference may be, then the inevitable decision must follow that the choice was fatally bad, although strictly adapted to the end in view, and made in the utmost good faith. These demonstra- tions would seem to leave but one other conclusion, which is, that corporations, along with their specific powers, take all the reasonable means of execution, all that are conven- ient, and adapted to the end in view, although not the very best by many degrees of comparison. And this is a doc- trine which must necessarily result in the liberty of choice amongst those means. The choice may be wise or unwise. If made in the exercise of an intelligent good faith, the wisdom of the selection may be called in question, but the power to make it cannot be." ^ But, as already stated, in order to derive power by im- plication, it must appear that the power thus to be implied is necessary to the enjoyment of some specifically granted i2Beav. 433; Oglesby v. Attrill, 105 'Curtis v. Leavitt, 15 N. Y. 9, per U. S. 605. COMSTOCK, J. § 138 OF CORPORATIONS IN GENERAL. 49 1 right.^ A road company was empowered by its charter to lay out, make, and keep in repair a road to the top of Mount Washington ; granted the right to take tolls on passengers and carriages ; authorized to take private land for its road ; to build and own toll-houses, and to erect gates, and appoint toll-gatherers. An amendatory act pro- vided that the company might erect and maintain, lease, and dispose of, any building or buildings which might be convenient for the accommodation of its business, and of the horses, carriages, and travelers passing over its road. It was held that power to establish stage and transportation lines to and from the mountain, and to purchase horses and carriages for that purpose, was not incidentally granted to the company by its charter.* The charter of a railroad company having provided that if the company did not locate its road so as to pass through certain places, it should forfeit one million of dollars to the State, which was as- sented to by the company, it was held a case not of con- tract, but of penalty, subject, as to its enforcement, to the will and pleasure of the legislature.^ A corporation will not be permitted to encroach, by implication, upon the rights of individuals who are in no respect parties to the compact between the legislature and such corporation.* The grant of a right to build a dam across a stream does ' Chas. River Bridge v. Warren Mathews v. Skinker, 62 Mo. 329. "An Bridge, 1 1 Pet. 420 ; Rice v. R.R. Co., incidental power is one that is directly I Black. 358 ; Jefferson Branch Bank and mediately appropriate to the exe- V. Skelly, lb. 436 ; Richmond, etc., cution of the specific power granted, R.R. Co. V. Louisa R.R. Co., 13 How. and not one that has a slight or remote 71 ; Macon & Western R.R. v. Davis, relation to it." Ellsworth, J., in 13 Ga. 68; Wood Hydraulic Hose Hood v. N. Y. & New Haven R.R. Mining Co. v. King, 45 Ga. 34; Oswego Co., 22 Conn. i. Falls Bridge Co. v. Fish, i Barb. Ch. ' Downing v. Mt. Washington R. 547 ; Thorpe v. Rutland, etc., R.R. Co., 40 N. H. 230. Co., 27 Vt. 140; State v. Chase, 5 Ohio ' State v. Bait. & Ohio R.R. Co., 12 St. 528 ; Collins v. Sherman, 31 Miss. Gill & Johns. 399. 679; Mclntyre V. Ingraham, 35 Id. 25 ; * Auburn & Cato Plank R. Co. v. Gaines v. Coates, 51 Id. 335 ; Com. v. Douglass, 9 N. Y. {5 Seld.) 444. Central Passenger R.R., 52 Pa. St. 506 ; 492 RIGHTS, POWERS, AND DISABILITIES §138 not authorize the overflow of a mill on the stream above, which has been in existence a long time ; nor the grant of ;a right to maintain a stock-yard, authorize the company to conduct its business in such a way as to injure others.^ The words in a charter, "it shall and may be lawful" for the corporation to do a thing, do not necessarily render it imperative, but leave the doing it optional with the corpo- ration.^ But words of permission to do an act which is clearly for the public benefit are obligatory. Therefore, where a charter provided that the mayor and jurat of an ancient town might maintain a court for the holding of pleas, which had long been disused, a mandamus was granted to compel the maintenance of such a court, at the instance of an inhabitant of the town.^ The specification of certain powers operates as a restraint to such objects only, and is an implied prohibition of the exercise of other and distinct powers.* An act incorporating a railroad company gave the company power to acquire a strip of land not exceeding one hundred feet wide for a right of way, and to hold sufficient ground for the erection and maintenance of depots, landing-places or wharves, engine- houses, offices, machine-shops, and wood and water sta- tions. S. entered into a written contract with the company, by which he agreed that, in consideration the company would locate a freight and passenger depot on the land of S., he would convey to the company, whenever called upon, four acres of land for that purpose, and that he would also lay off into town lots one hundred and sixty acres, in such manner as the engineer of the company might direct, and ' Lee V. Pembroke Iron Co., 57 Me, acting under a power, must pursue the 481. power strictly, and that where the mode ' Verplanck v. Mercantile Ins. Co., i or manner of executing the power is Edw. Ch. 84. pointed out in the act or instrument ' Rex V. Mayor & Jurats of Hastings, creating the power, the mode must not I Dowl. & Ryl. 148. be departed from in any essential re- * People V. Utica Ins. Co., 15 Johns, spect. Goshorn v. Supervisors, I W. 358. The general rule is, that a party, Va. 308 ; Pratt v. Short, 79 N. Y. 437. § 138 OF CORPORATIONS IN GENERAL. 493 deed an undivided fourth of it to sucti persons as the en- gineer of the company should designate. In a suit brought by the company for specific performance, it was held that, while the company was, in one sense, a private corporation, yet the public was deeply interested in it ; that its chartered privileges and emoluments were not granted solely and ex- clusively for private benefit and emolument, but to subserve a great public interest ; that the company had no power to acquire property for purposes of speculation ; and that therefore the contract could not be upheld or enforced.* Grants of franchises, and exemptions in charters, are con- strued strictly and most strongly in favor of the public and against the grant ; the object being to protect the pub- lic against improvident grants, and grants made by impli- cation without clear intention. Ambiguity will vitiate a grant. It must, however, receive a reasonable construc- tion.^ The reason of the rule does not apply to a grant, by which the State parts with no property, and creates no new privilege or franchise that can affect the public, but simply permits a new arrangement or contract as to priv- ileges and franchises already granted.^ " The rules of con- struction which apply to general legislation in regard to those objects in which the public at large are interested, are essentially different from those which apply to private grants to individuals of powers or privileges designed to be exercised with special reference to their own advantage, although involving in their exercise incidental benefits to the community generally.* The former are to be ex- ' Pacific R.R. Co. v. Seely, 45 Mo. Catawissa R.R. Co., 53 Pa. St. 20. See 212. Sedgwick on Stats. 259, 327. ^ Black V. Del. & Raritan Canal Co., ^ Black v. Del. & Raritan Canal Co., 22 N. J. Eq. (7 C. E. Green) 130; Rich- supra. mond R.R. Co. v. Louisa R.R. Co., 13 ''See Ohio Life Ins. & Trust Co. v. How. 81; Perrine v. Chesapeake & Debolt, 16 How. 416 ; Jefferson Branch Del. Canal Co., 9 Id. 172 ; Pennock v. Bank v. Skelly, i Black. 436; Bait. & Coe, 23 Id. 132; Rice v. R.R. Co., i Ohio R.R. Co. v. Supervisors, 3 W. Black. 380; Phila. & Erie R.R. Co. v. Va. 319. "All rights which are as- 494 RIGHTS, POWERS, ANB DISABILITIES §138 pounded liberally in favor of the public, and strictly against the grantees ; the latter largely and beneficially for the pur- poses for which they were enacted. The power in the one case is original and inherent in the State or sovereign power, and is exercised solely for the general good of the community ; in the other it is merely derivative, is special if not exclusive in its character, and is in derogation of the common right in the sense that it confers privileges to which the members of the community at large are not en- titled."^ To presume, therefore, that certain public rights have been surrendered to the corporation, an intention to surrender them must clearly appear in the charter. In Providence Bank v. Billings,^ the charter, which was given by the legislature of Rhode Island, contained no stipulation on the part of the State that it would not impose a tax on the bank. Afterward a law was passed imposing a tax on all banks in the State ; and the right to tax this bank was contested on the ground that if it were permitted the State might tax so heavily as to render the franchise of no value, and destroy the institution ; that the charter was a con- tract, and that a power which may in effect destroy the charter is inconsistent with it, and is impliedly renounced in granting it. But it was held that the relinquishment by the government of the taxing power was never to be as- sumed. " As the whole community," said the court, " is serted against the State must be clearly the State. But if there is no ambi- defined, and not raised by inference or guity in the charter, and the powers presumption ; and if the charter is si- conferred are plainly marked, and their lent about a power, it does not exist, limits can be readily ascertained, then If, on a fair reading of the instrument, it is the duty of the court to sustain reasonable doubts arise as to the proper and uphold it, and to carry out the interpretation to be given to it, those true meaning and intention of the par- doubts are to be solved in favor of the ties to it." Davis, J., in the Bingham- State, and where it is susceptible of ton Bridge, 3 Wall. 51. two meanings, the one restricting and ' Storrs, J., in Bradley v. N. Y. & the other extending the powers of the N. H. R.R. Co., 21 Conn. 294. And see corporation, that construction is to be 10 Fla. 145. adopted which works the least harm to '4 Pet. 514. § 138 OF CORPORATIONS IN GENERAL. 495 interested in retaining it undiminished, the community has a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the State to abandon it does not appear." A charter was granted to a turnpike company for twenty-five years, and at any time thereafter the State, upon paying its cost, was to own it. It was held that the corporation was entitled to control the road after the termination of the twenty-five years, until such time as the State purchased it, but not to exercise other rights not essential to the enjoyment of the road given to it by an amended charter, which was not ex- pressly extended beyond the limit of the original charter.^ Courts have construed the charter of a canal or railroad company, in relation to the right to take freight or toll, in favor of the public and against the company. Where power was given to a canal company to charge certain rates per ton for iron and other goods which should pass on any part of the canal through one or more locks, it was held that the company had no common law or other power to charge the rates on a portion of the canal where there were no locks.^ A general right to lay out highways will not give the right to lay out a highway over navigable waters, or a grant to construct a turnpike or railroad authorize the grantees to obstruct an existing highway, unless such ob- struction is necessary to give effect to the statute ; and a grant of land covered by tide water does not affect the power and duty of the legislature to protect the public rights of navigation and fishing.^ ' St. Clair County Tump. Co. v. The i Bam. & Cress. 424 ; Camden & Am- People, 82 111. 174. boy R.R. Co. v. Briggs, 2 Zab. 623. ' Stourbridge Canal Co. v. Wheeler, ' Lees v. Canal Co., 1 1 East. 652 ; 2 B. & Adol. 793. See Barret v. Dar- Mills v. St. Clair County, 8 How. 581 ; lington & Stockton R.R. Co., 2 Man. Richmond R.R. Co. v. Louisa R.R. & Gr. 134; S. C. 7 Id. 870; Gildart v. Co., 13 Id. 81 ; Ohio Life & Trust Co. Gladstone, 1 1 East. 675 ; Proprs. of v. Debolt, 16 Id. 435 ; Holyoke Co. v. Leeds & Liverpool Canal v. Hustler, Lyman, 15 Wall. 500; Fertilizing Co. v. 496 RIGHTS, POWERS, AND DISABILITIES §138 The grant by a State of the privilege to dig minerals upon the payment of a specified sum per ton does not give an exclusive right.^ So the grant of a public road, bridge, or ferry confers a right to construct the improve- ment, and to receive certain rates of toll, but does not carry with it exclusive privileges where none such are ex- pressly given.^ Notwithstanding the legislature may have Hyde Park, 97 U. S. 659; Parker v. Gt. Western R.R. Co., 7 M. & Gr. 253; Com. V. Erie & N. E. R.R. Co., 27 Pa. St. 339 ; Miners' Bank v. U. S., I Greene, Iowa, 553; Mohawk Bridge Co. V. Utica & Schenectady R.R. Co., 6 Paige Ch. 554; Camden & Amboy R.R. Co. V. Briggs, 2 Zab. 623 ; Town- send V. Brown, 4 Id. 80; Bridge Co. v. Hoboken Land, etc., Co., 2 Beas. Ch. 81 ; Strauss v. Eagle Co., 5 Ohio St. 39; Collins V. Sherman, 31 Miss. 679; Auburn & Cato Plank R. Co. v. Doug- lass, 9 N. Y. 444 ; Commrs. on Inland Fisheries v. Holyoke Water Power Co., 104 Mass. 446 ; Sedgwick on Sts. & Const. Law, 339. It does not make a private corporation public that the State or the United States own a por- tion of its stock. Bardstown, etc., R.R. Co. V. Metcalfe, 4 Mete. Ky. 199. ' Bradley v. South Car. Phosphate Co., I Hugh. 72. 'Parrot v. City of Lawrence, 2 Dil- lon. 332; State V. Noyes, 47 Me. 189. Mr. Kent, in an early edition of his Commentaries remarked that " if the creation of the franchise be not declared to be exclusive, yet it is necessarily im- plied in the grant, as in the case of the grant of a ferry or bridge, turnpike, or railroad, that the government will not, either directly or indirectly, interfere with it so as to destroy or materially impair its value. Eveiy such interfer- ence, whether it be by the creation of a rival franchise or otlierwise, would be in \'iolation or in fraud of the grant. All grants of franchises ought to be so construed as to give them due effect by excluding all contiguous competition which would be injurious and operate fraudulently upon the grant.'' But, in a subsequent edition, he admits that this doctrine of the extension of a franchise by implication, has been over- thrown by the decisions. In Charles River Bridge v. Warren Bridge, 11 Pet. 420, the legislature of Massachu- setts had, in 1785, incorporated a com- pany to build a bridge over the Charles River, granting them power to receive toll. The bridge was built, and the company enjoyed the tolls until 1828, when the legislature incorporated an- other company with power to build another bridge across the same river near the former bridge, and also to take toll. The charter to the first com- pany did not give them in express terms any exclusive right. They filed a bill to prevent the erection of the second bridge. The Supreme Court of Massachusetts dismissed the bill, and, on appeal to the Supreme Court of the United States, the decisiom was af- firmed. Chief Justice Taney, in de- livering the opinion of the latter court, remarked that " it would present a singular spectacle if, while the courts in England are restraining within the strictest limits the spirit of monopoly and exclusive privileges in the nature of monopolies, and confining corpora- tions to the privileges plainly given to them in their charters, the courts in this country should be found enlarging these privileges by implication." See § 138 OF CORPORATIONS IN GENERAL. 497 granted to a corporation the exclusive right to erect a toll bridge across a river, the subsequent grant to a railroad company of a right to cross the river with its railroad, and to transport passengers thereon, in the ordinary course of conveying travelers from one place to another, is not an infringement of the privileges conferred by such prior grant ; a railroad bridge not being a toll bridge within the intent and meaning of the grant to the first company.^ If the grantee wishes to secure himself from competition, he must obtain a provision to that effect in his grant ; and if no such provision is inserted in it, it will be inferred that he took the grant relying on the wisdom and discretion of the legislature to protect him from injurious competition by refusing to authorize any other enterprise of a similar character in the immediate vicinity unless demanded by the exigencies of trade and travel.^ The first section of an act granting a ferry right provided that Timothy Fanning, his heirs and assigns, were authorized to establish and maintain a ferry across the Mississippi River at Dubuque. The second section declared that no court or board of county commissioners should authorize any other person to keep a ferry within the limits of the town of Dubuque. A subsequent act incorporating the city of Dubuque gave to the city council power to license and establish ferries across the Mississippi River from the city of Dubuque to the oppo- site shore. It was held that the grant to Fanning was not intended to be exclusive ; and that as the legislature had Tuckahoe Canal Co. V. Tuckahoe R.R. Wilmington & Raleigh R.R. Co., 2 Co., II Leigh, 42; Enfield TollBridge Jones N. C. 186; Bridge Co. v. Ho- Co. V. Hartford & New Haven R.R. boken Land, etc., Co., 2 Beas. Ch. 81, Co., 17 Conn. 454; Oswego Falls affi'd i Wall. 116. Bridge Co. v. Fish, i Barb. Ch. 547; 'Shorter v. Smith, 9 Ga. 517, per Thompson v. N. Y. & Harlem R.R. LUMPKIN, J. See Ogden v. Gibbons, Co., 3 Sandf. Ch. 625. 4 Johns. Ch. 150 ; Newburg Turnpike ' Mohawk Bridge Co. v. Utica & Co. v. Miller, 5 Id. loi ; Livingston v. Schenectady R.R. Co., 6 Paige Ch. Van Ingen, 9 Johns. 507 ; Stark v. 554 ; Thompson v. N. Y. & Harlem McGowen, i Nott & McCord, 387. R.R. Co., 3 Sandf. 625 ; McRee v. VOL, I.—S2 498 RIGHTS, POWERS, AND DISABILITIES § 139 power to authorize another ferry, the general authority to the council to license and establish ferries, enabled the cor- poration, in the exercise of its discretion, to grant a license, as the legislature might have done.^ When the rights and privileges vested in a corporation by its charter are to be determined by reference to the charter of another and dis- tinct corporation, some provisions of which are of doubtful import, the construction should be against the corporation.'' But although the provisions of a charter are not, strictly speaking, harmonious, yet if by a reasonable construction they can be made consistent, all of them must stand.® When a corporation is authorized by law to sell or con- vey its charter or franchise, and thus vest it in others, the transaction in legal effect is a surrender or abandonment of the old charter by the corporators, and a grant of a similar charter to the transferees or purchasers.* A charter which is to continue " until the first day of January," is exclusive in its meaning, and the charter expires on the thirty-first of December.^ § 139. Inviolability of charter. — Charters, and amendments ' Fanning v. Gregoire, 16 How. 524. build and run a railroad, and take tolls ' Bowling Green, etc., R.R. Co. v. or fares, is a franchise of the preroga- Warren County Ct., 10 Bush. Ky. 711. tive character, which no person can When there is a clear repugnance legally exercise without a special grant between two laws, and the provisions of the legislature. State v. Boston, of both cannot be carried into effect, Concord & Montreal R.R. Co., 25 Vt. the latter law must prevail. Dingman 433 ; Stewart's Appeal, 55 Pa. St. 413. V. The People, 51 III. 277. Although a bank should, by a transfer 8 State V. StoU, 17 Wall. 425. of all of its property, render itself pow- * State V. Sherman, 22 Ohio, 411. erless to discharge the ordinary pur- When a charter operates as a new ere- poses of its institution, it would still ation, the new corporation is not sub- remain an existing corporation. State ject to the liabilities of the old one. v. Bank of Md., 6 Gill & Johns. 205. President, etc., of Fort Gibson v. Where a trustee is a corporation, no Moore, 13 Sm. & Marsh, 157. Persons modification of its franchises, or change who purchase the property and fran- in its name, while its identity continues, chises of a corporation are not thereby can affect its right to hold property de- invested with the rights and privileges vised to it. Girard v. Philadelphia, 7 of the corporation, until they are them- Wall. i. selves incorporated. Chaffe v. Luder- ' People v. Walker, 17 N. Y. 502. ling, 27 La. An. 607. The right to § 139 OF CORPORATIONS IN GENERAL. 499 thereto, granted by the legislature, accepted by the stock- holders; and by virtue and on the faith of which their means are invested in the enterprise, constitute a contract between the sovereign power and the individual stockhold- ers, which is protected by the inhibition in sec. 10, art. i, U. S. Constitution, that no State shall pass any law im- pairing the obligation of contracts ; a grant of franchises, not being distinguishable in point of principle, from a grant of any other property.^ It follows, that every valuable privilege given by the charter, and which conduced to an acceptance of it, and an organization under it, is a contract which cannot be changed by the legislature, when the power to do so is not reserved by the charter.* The rule is, that "if the contract, when made, was valid by the laws of the State as then expounded by all departments of the government, and administered in its courts of justice, its validity and obligation cannot be impaired by any subse- quent act of legislation, or decision of its courts, altering the construction of the law."' In the year 1769, the king ■ Fletcher v. Peck, 6 Cranch, 88 ; collateral action. Young v. Harrison, Dartmouth College v. Woodward, 4 6 Ga. 130. Wheat. 518; Wilmington R.R. Co. ^ Piqua Bank v. Knoop, 16 How. V. Reid, 13 Wall. 264; Delaware R.R. 369; Mowrey v. Indianapolis, etc., Tax, 18 Id. 225 ; Sinking Fund Cases, R.R. Co., 4 Biss. 78 ; Sala v. New Or- 99 U. S. 700; Louisville v. Univer- leans, 2 Woods, 188; Harrington v. sity of Louisville, 15 B. Mon. 642; Tennessee, 95 U. S. 679; Berthin v. Gregory v. Shelby College, 2 Mete. Crescent City Slaughter House Co., 28 Ky. 598 ; Hamilton v. Keith, 5 Bush. La. An. 2lo; St. Louis v. Manf., etc., Ky. 458. As a private corporation is Bank, 49 Mo. 574 ; Black v. Del. & a contract between the government Raritan Canal Co., 24 N. J. Eq. 455 ; and the corporators, the legislature Green v. Biddle, 8 Wheat. 84. cannot repeal, impair, or alter the ' Ohio Life & Trust Co. v. Debolt, rights and privileges conferred by the 16 Ohio, 432. In State v. Southern charter against the consent and with- Pacific R.R. Co., 2A Texas, 80, RoB- out the default of the corporation judi- erts, J., who delivered the opinion of cially ascertained and declared in a the court, in a note at the end of the proceeding instituted directly for that case, expressed disapproval of the doc- purpose at the instance of the govern- trine, vvhich he admitted had been set- ment ; and no advantage can be taken tied by the highest authority, and gen- of any nonuser or misuser on the part erally acquiesced in, that a charter of a of a corporation by a defendant in a corporation is a contract within the 500 RIGHTS, POWERS, AND DISABILITIES § 139 of Great Britain granted a charter to Dartmouth College, which vested in twelve trustees the power of governing the college, of appointing and removing tutors, of fixing their salaries, of directing the course of study, and of filling va- meaning of the constitution. He said : " A grant of a franchise is lilce a grant of land. It maybe construed into a contract, but it is the work of con- struction. It is not treated as a con- tract, and was never, as it is believed, spoken of in that connection by those who taught or administered the laws up to the time of the adoption of the constitution, nor indeed up to the time of the leading cases of Fletcher v. Peck, and Dartmouth College v. Woodward. This construction met with dissent when first adopted. Its application to new cases, as they have arisen, has met with increasing disagreement and dis- sent. If carried to its legitimate con- clusion to the full extent, the State government may, by improvident legis- lation, be deprived of many of its im- portant powers ceded by contract to the numerous corporations that are filling the country, without the capacity to reclaim them except by a revolu- tion." In Bank of Toledo v. The City of Toledo, I Ohio St. 622, where a question arose as to the constitutional- ity of a statute providing for a tax upon banks, and bank and other stock, Bartley, Ch. J., in the course of an elaborate opinion, said : "It is appar- ent, from a thorough examination of the subject, that the distinction be- tween public and private corporations, as ordinarily recognized in the books, is a mere arbitrary distinction, without foundation in the nature, objects, inci- dents, or property of this class of insti- tutions. And in truth, there exists no sound and well-founded reason for treating the charters of those corpora- tions usually called private corpora- tions, as contracts, while the charters of those known as public corporations, are not so considered, or for denomi- nating the former as mere private institutions, and the latter as public institutions ; and the paramount con- siderations of the public interests or general welfare, would certainly require that the former should be subject to regulation by the law-making power as well as the latter An ordi- nary act of incorporation contains nothing more than the usual stipula- tions and provisions to be found in laws generally. Persons asking for the pas- sage of a law incorporating a company, do not in fact think of such a thing as a negotiation for entering into a con- tract with the State. ' And the mem- bers of the legislature, in the enactment of such laws, never imagine that they are negotiating and settling the terms and conditions of a contract on behalf of the State ; and much less that they are by contract surrendering or parting with a portion of the legislative power of regulation and repeal. In every point of view, therefore, the idea that the charter of a corporation is a con- tract whereby this legislative power of regulation and repeal is bargained away or disposed of by contract, is a legal fiction in opposition to the truth of the fact, and the obvious intention of the persons interested. Courts should not thus treat those high trusts of civil au- thority, and by legal intendments, and mere technical reasoning, take away from the State any portion of that power over its own internal police and government, which may be highly im- portant to its well-being and prosperity." § 139 OF CORPORATIONS IN GENERAL. 501 cancies in their own body. The legislature of New Hamp- shire passed an act to amend the charter, by which the number of trustees was increased to twenty-one, the ap- pointment of the additional members being given to the executive of the State ; and a board of twenty-five over- seers created, with power to inspect and control the more important acts of the trustees. The board was to be com- pleted by the governor and council of New Hampshire, who were to fill all vacancies ; and the president of the senate, the speaker of the house of representatives of New Hampshire, and the governor and lieutenant-governor of Vermont for the time being, were to be members ex officio. It was held that the act, in thus attempting to abridge the powers of the corporation, and to require them to be exer- cised in a different mode, impaired the obligation of a con- tract, and was therefore unconsitutional and void.^ Where a company was incorporated to build and maintain a bridge, without limit as to duration, and the charter provided that it should not be lawful for any person or persons to erect a bridge within two miles, it was held to mean that the legislature would not make it lawful by licensing any per- son or persons to do it, and to constitute a contract which was inviolable.* By the original charter of a bridge, no power was reserved by the legislature to repeal, alter, or modify it, nor to impose additional burdens upon the cor- poration after it had complied with the terms prescribed by the grant until it should be reimbursed its expenses in- curred in the erection of the bridge, with twelve per cent, interest thereon from the tolls, which were to be subject to such order and regulations as the legislature might think proper to make. The charter required the company to remove obstructions in the river, to pay the proprietors of an ancient ferry for the loss of their franchise, and to con- ' Dartmouth College v. Woodward, ^ The Binghamton Bridge, 3 Wall. supra. SI- 502 RIGHTS, POWERS, AND DISABILITIES § 139 Struct and maintain a draw in the bridge, thirty-two feet wide, for the free passage of vessels. The bridge having been carried away by the ice, the legislature released the company from certain previous obligations in relation to the construction of abutments and piers, and enacted that no other bridge should be erected within a distance of six miles, provided that none of the rights, privileges, and im- munities of persons using and navigating the river should thereby be impaired. The company having rebuilt and maintained the bridge until 1845, the legislature enacted that the company should construct a draw, fifty feet wide, for the free transit of all registered and licensed vessels, said draw to be made under the direction of commissioners ; that the collection of all tolls should be suspended until this was done ; and that if a vessel should be kept back in consequence of the inadequacy of the draw, the owner might recover from the company damages therefor. On a writ of quo warranto, alleging that the company had for- feited its charter by disregarding the requirement in rela- tion to the making and maintaining a draw fifty feet in ^ width, it was held that the proceeding could not be sus- tained, the charter not reserving to the legislature power, without the assent of the company and without providing for compensation, to compel the construction of a draw of enlarged capacity in the place of the original one.^ The ' Washington Bridge Co. v. The having been built and opened for trav- State, 18 Conn. 53. In charters grant- elers, six years afterward the charter ing special public privileges, no rights was extended to seventy years from the are taken from the public, or given to opening of the bridge, and, at the ex- the corporation, beyond those which piration of that time, it was to belong the words of the charter, by their nat- to the State. The grant contained no ural and proper construction, purport exclusive privilege over the waters of to convey. In Charles River Bridge v. the river above or below the bridge. The Warren Bridge, 17 Peters, 420, the and it was held that the State could legislature of Massachusetts granted a constitutionally, by a subsequent act of charter to a company to build a bridge incorporation, confer on another corn- over the Charles River, with the right pany the right to construct a rival to take toll for forty years. The bridge bridge. § 139 OF CORPORATIONS IN GENERAL. 503 manufacture of gas and its distribution for public and pri- vate use, by means of pipes laid under legislative authority in the streets and ways of a city, is not an ordinary business in which every one may engage, but is a franchise belong- ing to the government, to be granted for the accomplish- ment of public objects, and is a contract protected by the Constitution of the United States against State legislation to impair it.^ It is in general competent for the legislature to alter the charter of a municipal corporation ; there being a distinction in this respect between private and public cor- porations. '^ The State may, however, make a contract with a public corporation which it cannot subsequently impair or resume. A grant may be made to a public corporation for purposes of private advantage ; and although the public may also derive a common benefit from it, yet the corpo- ration stands on the same footing, as respects such grant, as would any body of persons upon whom like privileges are conferred. " So far as a municipal corporation is en- dowed by law with the power of contracting, and as such is made capable of acquiring, holding, and disposing of property, and subject to the liabilities incident to the exer- ' New Orleans Gas Co. v. Louisiana they shall be applied. " In respect to Light Co., 115 U. S. 650. See New such quasi corporations as exist only Orleans v. Clark, 95 U. S. 644; State for public purposes, the legislature has V. Cincinnati Gas Co., 18 Ohio St. 262; an unquestionable right to change, Boston V. Richardson, 13 Allen, 146; modify, enlarge, restrain, or destroy. Crescent City- Gas Light Co. v. New and may exercise a superintending Orleans Gas Light Co., 27 La. Ann. control over all their money and other 138 ; Com. V. Pottsville Water Co., 94 property; securing, however, as a mat- Pa. St. 516. ter of good faith, the effects of the cor- ' Marietta v. Fearing, 4 Ohio, 427 ; poration for the use of those for Tinsman v. Belvidere R.R. Co., 2 whom it was donated or purchased." Dutcher, 148. In Illinois an incorpo- Bush v. Shipman, 4 Scam. 186. Where rated township for common school an act incorporating a town gives to purposes, being a quasi corporation, the authorities of the town certain the legislature may from time to time powers, it does not deprive the courts direct in what manner the school funds of jurisdiction, unless the powers vested shall be loaned, upon what security, at in the corporation are declared by the what rate of interest, in what currency act to be exclusive. Baldwin v. Green, they shall be received, and by whom 10 Mo. 410. 504 RIGHTS, POWERS, AND DISABILITIES § 139 cise of such power and capacity, thus being invested with legal rights as to property and contracts, and made subject to legal liabilities in respect thereto, to be enforced by suit in the ordinary judicial forums, upon the same principles and by the same means as in the case of a private corpora- tion, such municipal corporation must stand on the same ground of exemption from legislative control and inter- ference as a private corporation. As to third persons who seek to enforce pecuniary liabilities against towns arising upon contract, such towns are merely private corporations or individuals, and, in this respect, they are not affected by the purely municipal, public, and political features that ap- pertain to their corporate existence, in virtue and in refer- ence to which alone they are subject to the absolute control of legislation."^ ' Atkins V. Randolph, 31 Vt. 226, per Bronson, J. See Montpelier v. East Montpelier, 29 Vt. 12. Where a city enters into a contract to supply its in- habitants with gaslight, it acts as a private corporation, and cannot impair the obligation of a contract, although it may consider it will thereby benefit its citizens. Western Saving Fund Soc. V. Phila., 31 Pa. St. 175. Lewis, C. J. : " The contracts which a munic- ipal corporation may make for the pur- pose of supplying the inhabitants with gaslight in their streets and houses, re- late to the things of commerce, as dis- tinguished in the civil law from the things public, which are regulated by the sovereign. Such contracts are not made by the municipal corporation by virtue of its powers of local sovereignty, but in its capacity of a private corpo- ration. The supply of gaslight is no more a duty of sovereignty than the supply of water. Both these objects may be accomplished through the agency of individuals or private corpo- rations, and in very many instances they are accomplished by those means. If this power is granted to a borough or city, it is a special private franchise, made as well for the private emolument and advantage of the city as for the public good. The whole investment is the private property of the city, as much so as the lands and houses belonging to it. Blending the two powers in one grant does not destroy the clear and well-settled distinction, and the process of separation is not rendered impos- sible by the confusion. In separating them, regard must be had to the object of the legislature in conferring them. If granted for public purposes exclu- sively, they belong to the corporate body in its public, political, or munic- ipal character. But if the grant was for purposes of private advantage and emolument, though the public may de- rive a common benefit therefrom, the corporation quoad hoc is to be regarded as a private company. It stands on the same footing as would any individ- ual or body of persons upon whom the like special franchises had been con- ferred." See Bailey v. New York, 3 Hill, 538, where the acts of the city were in relation to the construction of water-works. § 139 OF CORPORATIONS IN GENERAL. 505 " There are unquestionably cases in which the State may grant privileges to specified individuals without violating any constitutional provision, because in the nature of the case it is impossible that they should be possessed and enjoyed by all ; and if it is important that they should exist, the proper State authority must be left to select the grantee. But in all such cases the person, whether natural or artificial, to whom the privilege is granted, is bound upon accepting it to render to the public that service the performance of which was the inducement to the grant ; and it is because of such obligation to render service to the public that the legislature has the power to make the grant. Permission to keep a tavern or a ferry, to erect a toll- bridge over a stream where it is crossed by a public high- way, to build a dam across a navigable stream, and the like, are special privileges, and being matters in which the public have an interest, may be granted by the legislature to individuals or corporations ; but the grantee, upon ac- cepting the grant, at once becomes bound to render that service to secure which the grant was made ; and such ob- ligation on the part of the grantee is just as necessary to the validity of a legislative grant of an exclusive privilege as a consideration, either good or valuable, is to the validity of an ordinary contract. Whenever, by accepting such privilege, the grantee becomes bound by an express or im- plied undertaking to render service to the public, such undertaking will uphold the grant, no matter how inad- equate it may be ; for the legislature being vested with power to make grants of that character when the public convenience demands it, the legislative judgment is con- clusive, both as to the necessity for making the grant and the amount of service to be rendered in consideration therefor, and the courts have no power to interfere, how- ever inadequate the consideration or unreasonable the grant appears to be. But when they can see that the grantee of an exclusive" privilege has come under no obligation what- 506 RIGHTS, POWERS, AND DISABILITIES § 139 ever to serve the public in any matter in any way connected with the enjoyment of the grant, it is their duty to pro- nounce the grant void as contravening the provision of the bill of rights which prohibits the granting of exclusive privileges, except in consideration of public services."^ A supplement to a charter of incorporation which merely confers upon it a new right or enlarges an old one, without imposing any new or additional burden upon it, is a mere license or promise by the State, and may be revoked at pleasure.^ The constitutional prohibition upon State laws impairing the obligation of contracts does not restrict the power of the State to protect the public health, the public morals, or the public safety, as the one or the other may be involved in the execution of such contracts. Rights and privileges arising from contracts with a State are sub- ject to regulations for the protection of the public in the same sense and to the same extent as are all contracts and all property, whether owned by natural persons or corpo- rations.^ The alteration of the charter by the legislature may im- pair the obligation of the contract, not between the gov- ernment and the corporators, but between the corporators ' COFER, J., in Gordon, etc., v. Win- could not go on. Spotless faith in their cheater Building, etc., Assoc, 12 Bush, fulfilment honors alike communities Ky. 1 10. See Railroad Co. v. Phila- and individuals. Where this is want- delphia, loi U. S. 528 ; Railroad Co. ing in the body politic, the process of V. Commrs., 103 Id. i ; Morgan v. Lou- descent has beg^n and a lower plane isiana, 93 Id. 217. "A compact lies will speedily be reached." SwAYNE,J.,in at the foundation of all national life. Farrington v. Tennessee, 95 U. S. 679. Contracts mark the progress of com- ' Philadelphia & Co.s Appeal, 102 munities in civilization and prosperity. Pa. St. 123; Johnson v. Crow, 87 Id. They guard, as far as possible, against 184; Christ Church v. Phila., 24 How. the fluctuations of human affairs. They 300 ; Salt Co. v. East Saginaw, 13 Wall, seek to give stability to the present and 373. See Hewitt v. N. Y. & Oswego, certainty to the future. They gauge etc., R.R. Co., 12 Blatchf. 452; St. the confidence of man in the truthful- Louis Iron Mt., etc., R.R. Co. v. Lof- ness and integrity of his fellow-man. tin, 30 Ark. 693. They are springs of business, trade, ' New Orleans Gas Co. v. Louisiana and commerce. Without them society Light Co., supra. § 139 OF CORPORATIONS IN GENERAL. 507 themselves, who, having joined the association for a par- ticular purpose, it is proposed to abandon it, and substitute another and different purpose. No radical change or alter- ation can be made or allowed in the charter of a corporation by which new and additional objects are to be accomplished, or responsibilities incurred, so as to bind the individuals composing the company, without their assent ; substantive alterations not being regarded as parcel of a private char- ter, without the previous concurrence of the corporators manifested in some way recognized by law.' The legislature cannot compel the corporation to embark in a new enterprise, but only grant it the power, and then it will be for the corporation to accept it or not as it pleases. The right to bind the corporators will depend upon the question whether the change is of such a character that it may be deemed so far in furtherance of the original under- taking and incidental to it, as to be fairly within the power of the corporation to bind its individual members by its as- ' " In determining the question as to to declare its exercise illegal. If the how far the original purposes of a corpo- act is performed in good faith, and with ration may be departed from, after sub- the real intent to promote the best in- scriptions have been made to its stock, terests of the concern, even though it without violating the rights of the stock- might turn out disastrously, the act holders individually, we must first con- would be none the less legal It sider' with what intention, and in view is true that the original purpose or ob- of what advantages, the law must pre- ject of the corporation may not be surae such subscriptions were made, entirely changed or abandoned, and a The conclusive presumption is, that it new one undertaken ; such as a rail- was with a view to the profits to be road abandoned for a canal, or Hne of derived from the stocks thus subscribed steamboats, or possibly, one railroad as an investment, and not in reference route abandoned, and another in an to any incidental advantages which opposite direction, and which could may accrue to the stockholders by rea- have no affinity to or connection with son of the construction of the improve- the first, adopted. But we know of no ment in consequenceof any anticipated instance where the mere limitation or enhancement of any other property enlargeinent of the original plan or '7. § 142 OF CORPORATIONS IN GENERAL. 525 case should the hours of labor exceed sixty per week. It was held that this law might be sustained, either as a health or police regulation, and that it did not violate any contract implied in the charter,* The property of an inventor in a patented machine, like all other property, remains subject to the paramount claims of society, and the manner of its use may be controlled and regulated by State laws when the public welfare requires it. When the beneficial use of patented property, or any species of property, requires public patronage and governmental aid, as, for instance, the use of public ways and the exercise of the right of eminent domain, the State may impose such conditions and regulations as in the judgment of the law- making power are necessary to promote the public good.* The legislature may regulate the mode in which railroad corporations shall transact their business, the speed at which they may run their trains, the way in which they may cross or run upon highways and turnpikes used for public travel, and adopt such measures as are appropriate to protect per- sons or property carried upon them, or passing upon high- ways crossed by them, notwithstanding the power to alter and amend the charters of such corporations has not been reserved. Such legislation violates no contract, takes away no property, and interferes with no vested right.^ A rail- ' Com. V. Hamilton Manf. Co., 120 Bulkley v. N. Y. & N. H. R.R. Co., 27 Mass. 383. Conn. 479 ; State v. New Haven, etc., « State V. Bell Telephone Co., 36 Ohio R.R. Co., 43 Id, 351 ; Dean v. Sullivan, St. 296; Western Union Tel. Co. v, 22N.H. 316; Cornwall v. Sullivan R.R. Axtell, 69 Ind. 199. Co., 28 Id. 161 ; Smith v. Eastern R.R. ' Fawcet v. Y. & N. M. R.R. Co., 2 Co., 35 Id. 356 ; Nelson v. Vt., etc., Eng, L. & Eq. 289 ; Norris v. Andro- R.R. Co., 26 Vt. 717; Thorpe v. Rut- scoggin R.R. Co., 39 Me. 273 ; Gorman land, etc., R.R. Co., 27 Id. 140 ; Cor- V. Pacific R.R. Co., 26 Mo. 441 ; Trice win v. N. Y, & Erie R,R. Co., 13 N. Y. V. Hannibal, etc., R.R. Co., 49 Id. 438 ; 42; Bruce v. N. Y. Cent. R.R. Co., 27 Ohio, etc., R.R. Co. v. McClelland, 25 Id. 269; People v. Boston, etc., R.R. m. 140 ; Ohio, etc., R.R. Co. v. Bru- Co., 70 Id. 369 ; Statts v. Hudson River baker, 47 Id. 462 ; Rockford, etc., R.R. R.R. Co., 3 Keyes, 196 ; Waldron Co. v. Hillmer, 72 Id. 235 ; Chicago, v. Rensselaer, etc., R.R. Co., 8 Barb, etc, R.R. Co. V. People, 105 Id. 657 ; 390 ; Pennsylvania R.R. Co. v. Riblet, 526 RIGHTS, POWERS, AND DISABILITIES § I42 road company being exempt by its charter from ringing a bell or sounding a whistle at a road crossing, an act was passed compelling it to be done. It was held that under the general power to regulate the police of the State the act was binding ; the exemption forming no part of the company's franchise.^ The power of a municipal corpora- tion to govern implies the power to ordain and establish suitable police regulations, and authorizes it to prohibit the use of locomotives in the public streets when such action does not interfere with vested rights.^ Railroad companies, being engaged in a public employ- ment affecting the public interest, are subject to legislative control as to their rates of fare and freight, unless protected by their charters, or unless what is done amounts to a reg- ulation of foreign or interstate commerce.' The legislature of Ohio, under a provision of the constitution of that State, that " no special privileges or immunities should ever be granted that might not be altered, revoked, or repealed," passed a law prohibiting a railroad company, of which the plaintiff in error was conductor, from charging more than three cents a mile for carrying passengers over their road, and the company required him to charge three and a half 66 Pa. St. 164 ; Madison, etc., R.R. Co. Co., 93 111. 601 ; Kansas Pacific R.R. V. Whiteneck, 8 Ind. 217 ; New Alb. Co. v. Mower, 16 Kans. 573. R.R. Co. V. Tilton, 12 Id. 3 ; Indian- ■ Galena & Chicago Union R.R. Ca apolis R.R. Co. v. Kercheval, 16 Id. 84 ; v. Appleby, 28 111. 283. Same v. Marshall, 27 Id. 300 ; Jones v. ' Railroad Co. v. Richmond, 96 U. S. Galena R.R. Co., 16 Iowa, 6; Blair v. 521. Milwaukee R.R. Co., 20 Wis. 254 ; ' Chicago, etc., R.R. Co. v. Iowa, 94 Horn V. Chicago, etc., R.R. Co., 38 Id. U. S. 155 ; Laurel Fork, etc., R.R. Co, 463 ; Pittsburg, etc., R.R. Co. v. South v. West Va. Transp. Co., 25 W. Va. West Pa. R.R. Co., 77 Pa. St. 173 ; 324. See Farmers' Loan & Trust Co. Mobile & Ohio R.R. Co. v. State, 51 v. Stone, 20 Fed. Rep. 270. On ques- Miss. 137 ; Lake Shore, etc., R.R. Co. tions of tolls, freight, and fares, courts V. Cincinnati, etc., R.R. Co., 30 Ohio construe charters most in favor of the St. 604 ; Pennsylvania Co. v. Wentz, 37 public and against the company. Cam- Id- 333 ; Veazie v. Mayo, 45 Me. 560 ; den, etc., R.R. Co. v. Briggs, 22 N. J, Lyman v. Boston, etc., R.R. Co., 4 ( 2 Zab.) 623. See McAunich v. Miss, Cush. 288; Hoyt v. Chicago, etc., R.R. etc., R.R. Co., 20 Iowa, 338. §142 OF CORPORATIONS IN GENERAL. 527 cents. Pie endeavored to collect the latter sum, but the passenger refused to pay more than three cents, and the con- ductor forcibly expelled him from the train. He was pros- ecuted, convicted, and fined for assault and battery in the State courts, and the conviction was affirmed on error in the Supreme Court of the United States. But the court said : " The power of alteration and amendment is not with- out limit. The alterations must be reasonable ; they must be made in good faith, and be consistent with the scope and object of the act of incorporation. Sheer oppression and wrong cannot be inflicted under the guise of amend- ment or alteration. Beyond the sphere of the reserved powers, the vested rights of property of corporations in such cases are surrounded by the same sanctions, and are as in- violable as in other cases." ' The power of regulating rates of fare is a power of government continuing in its nature, and if it can be bargained away at all, it can only be done by words of positive grant or something which is in law equivalent. If there is a reasonable doubt, it must be re- solved in favor of the existence of the power. Authority given the corporation by its charter to carry persons and property, implies authority to charge a reasonable sum for the carriage. In this way the corporation is put in the same position a natural person would occupy if engaged in the same or like business. The power to charge being coupled with the condition that the charge shall be reason- able, the State is left free to act on the subject of reason- ' Shields v. Ohio, 95 U. S. 319. See a difference in rates based on the dis- Ruggles V. Illinois, 91 111. 256 ; 111. Cent, tance carried, is not discrimination, R.R. Co. V. State, 95 Id. 313 ; Mobile, Koehler, ex parte, 23 Fed. Rep. 529. In etc., R.R. Co. V. Steiner, 6i Ala. 559. Ladd v. Southern Cotton Press, etc.. The right of a railroad company to Co., 53 Texas, 172, it was held that a make reasonable charges for freight cotton buyer could not maintain an and passengers is a vested corporate action against a corporation engaged right. Rates of compensation supposed in the business of warehousing and to be reasonable may be prescribed by compressing cotton, to recover back law until held otherwise by the courts, alleged excessive charges paid for han- Discrimination.may be prohibited ; but dling cotton for him. 528 RIGHTS, POWERS, AND DISABILITIES § 142 ableness within the limits of its general authority as circum- stances may require. But this power of limitation or regu- lation is not of itself without limit. It is not a power to destroy, and limitation is not equivalent to confiscation. Under pretence of regulating fares and freights, the State cannot require a railroad corporation to carry persons or property without reward ; neither can it do that which in law amounts to a taking of private property for public use without just compensation, or without due process of law. General statutes regulating the use of railroads in a State, or fixing maximum rates of charges for transportation, when not forbidden by charter contracts, do not necessarily deprive the corporation owning or operating a railroad with- in the State of its property without due process of law, within the meaning of the fourteenth amendment of the Constitution of the United States, nor take away from the corporation the equal protection of the laws.^ When a railroad company is incorporated by the legisla- ture of several States for the construction of a continuous line of interstate communication, the corporation created by each State is for all the purposes of local government a domestic corporation, and its railroad within the State a matter of domestic concern. Every corporation within the territorial limits of a State, while there, is subject to the constitutional authority of the State government, which may regulate freights and fares for business done exclu- sively within the State, and prevent the company from dis- criminating against persons and places there. So it may make all needful regulations of a police character for the government of the company while operating its road in that jurisdiction. It may require the company to fence so much of its road as lies within the State ; to stop its trains at railroad crossings ; to slacken speed while running in a crowded thoroughfare ; to post its tariffs and time-tables ' Stone V. Farmers' Loan & Trust Co., 1 16 U. S. 307. § 143 "OF CORPORATIONS IN GENERAL. 529 at proper places, and other things of a kindred character affecting the comfort, the convenience, or the safety of those who are entitled to look to the State for protection against the wrongful or negligent conduct of others.^ A corporation cannot lawfully be deprived of any of the essential rights and privileges conferred by its charter un- der the pretence of police regulations. Where a company was authorized by its charter to acquire land not exceeding five hundred acres for a cemetery, and having purchased the same and expended money in preparing and beautifying it, a law was passed prohibiting the company from burying the dead outside of its then inclosure without reference to the manner its purchase was exercised, it was held that such law impaired the obligation of the contract contained in the charter, and was therefore void.* § 143. Release from obligations. — Obligations imposed upon a corporation for the public benefit may be released without impairing the corporate rights, and consequently without the consent of any of the members.^ A modifica- tion of the charter in enlarging the, time of commencing and completing certain work, is one of those incidents which comes within the constitutional power of the State to exercise, and with due notice of which all its citizens must be presumed to contract. " It is not one of those fundamental, radical changes which diverts the funds from the original purpose to which they were dedicated, or is man- ifestly prejudicial to the stockholder ; but it comes within that class of cases in which the change is auxiliary to the 1 Stone V. Farmers' Loan & Trust The same as to the Tennessee acts of Co., supra. The statute of Iowa of 1883, ch. 199. Louisville, etc., R.R. March 23, 1874, fixing maximum Co. v. Tennessee R.R. Commission, 19 charges for passengers and freight Fed. Rep. 679. over interstate hues is unconstitu- ' Lake View v. Rose Hill Cemetery tional. Congress alone having the pow- Co., 70 111. 191. er to regulate interstate commerce. ' Joy v. Jackson, etc, Plank R. Co., Kaiser v. 111. Cent. R.R. Co., 18 Fed. 11 Mich. 155; Eastern R.R. Co. v. Rep. 151 ; S. C. 5 McCrary C. C. 496, Boston, etc., R.R. Co., iii Mass. 125. VOL. I.— 34 530 EIGHTS, POWERS, AND DISABILITIES § I44 original object of the corporation and beneficial to the stockholders." ^ A railroad company may be released from a duty imposed by its charter to connect its road with an- other line,' And where the capital of a corporation hav- ing been expended, it is evident that unless funds are raised the stock already taken must be sacrificed and the enter- prise itself prove a failure, a law may be passed authorizing the issuing of preferred stock, thus enabling the corpora- tion to obtain money by pledging its revenue, instead of mortgaging its corporate property.^ The charter of a char- itable institution gave it power to hold property not ex- ceeding in value $200,000. A person donated to the insti- tution $50,000, and by his will left the residue of his estate, after the payment of debts and legacies, in trust for the benefit of the institution, directing the trustees to in- vest said residue, and when by the accumulation of interest it should amount to $200,000, to pay it to the institution. After the testator's death an act was passed authorizing the corporation to hold property in excess of the original sum named in the charter, and at the time of the settlement of the estate the residue* amounted to more than $200,000. It was held that the institution was entitled to the entire fund." § 144. Right to enact changes in methods of legal procedure. — -General legislative power over the remedy may be exer- cised when it does not affect injuriously any corporate right, or subject the corporation to any additional loss or liability. There is a difference between those rights upon which the validity of the contracts and other transactions of the corporation depends, and the peculiar remedies pre- scribed for their enforcement. The first enter into and ' Taggart v. Western Md. R.R. Co., ' Covington v. Covington, etc., Bridge 24 Md. 563, per BowiE, C. J., referring Co., 10 Bush. Ky. 69. to Pierce on R.R. Law, 78 «. < Baker v, Clarke Inst., no Mass. ' Wilson V, Wills Valley R.R. Co., 33 88. Ga. 470. § 145 OF CORPORATIONS IN GENERAL. 53 1 constitute an essential element in the contracts and trans- actions themselves, and cannot be violated. The last may- be to some extent subject to legislative control, without in any degree impairing such rights, or injuring the corpora- tion ; and the right of the legislature to exercise power to this extent, is unquestionable.^ Thus, a law may be passed, requiring process to be served on railroad companies in a different way from that provided in the charter of a com- pany previously granted.* Where the charter contained a clause that it should not be revoked, annulled, altered, lim- ited, or restrained, without the consent of the corporation, except by due process of law, and that there should not be any subsequent imposition " of any other or future duties, liabilities, or obligations," it was held that the remedy for the security of the rights of the corporation, and to compel the performance of its liabilities as to the mode, the time when, and the courts where they should be enforced, was not placed beyond legislative control.^ § 145. Amendment of charter by consent of corporation. — A State constitution is a limitation upon, and not a grant of, legislative power ; all legislative power being inherent in the legislature, unless withheld by the organic law. The fact that the constitution recognizes the existence of a cor- poration, does not render its charter a part of the organic law, so as to preclude an amendment of the charter by the legislature with the assent of the corporators.* The assent 1 Howard v. Ky. & Louisville Mu. Conkey v. Hart, 14 Id. 22 ; Penniman's Ins. Co., 13 B. Mon. 282; Young v. Case, 103 U. S. 714; U. S. v. Union Bank of Alexandria, 4 Cranch, 384 ; Pacific R.R. Co., 98 Id. 569 ; Terry v. Bank of Columbia v. Okely, 4 Wheat. Anderson, 95 Id. 628. See Pritchard 235 ; Read v. Frankfort Bank, 23 Me, v. Norton, 106 U, S. 124; Edwards v. 318 ; Com. V. Farmers' & Mechanics' Kearzey, lb. 595, Bank, 21 Pick. 542 ; Com. v. Cochit- - Railroad Co. v, Hecht, 95 U, S. oate Bank, 3 Allen, 42 ; New Albany 168; 29 Ark. 661. R.R, Co. V. McNamara, 1 1 Ind. 543 ; ' Gowen v. Penobscot R.R. Co., 44 Lewis V. City Bank, 12 Ohio St. 174 ; Me, 140, Rensselaer v, Snyder, 13 N, Y. 299; ^People v. Marshall,! Gilman,Ill. 672. 532 RIGHTS, POWERS, AND DISABILITIES § 145 of the corporation may be inferred from such circumstances of commission or omission as would raise a similar pre- sumption in favor of a natural person.^ Although the original charter of a company contains no reservation of power to amend it, yet if the company accept a grant of additional privileges and powers, on the terms that the leg- islature may " alter, amend, or annul the charter of the company at any time thereafter," the company thereby sur- renders the inviolability of the contract to the discretion of the legislature.* There is an inherent right in the legisla- ture to amend or change the charter ctf a corporation with its consent. Those who become corporators do so with that contingency, and their engagements are therefore sub- ject to it. If a subscriber to stock enters into the corpo- ration generally, without specific stipulations, he is bound and concluded by the action of a majority of the corpo- rators ; and if the legislature change or amend the charter on the application of the company, and with its assent and approval, without impairing the contract of the corporators, they will not thereby be discharged from their liability as subscribers to stock. Such a change as would not increase the liability of the party to pay more money than he sub- scribed originally to pay, but merely affect his individual or personal interest, — as that a road did not pass his door, or through his farm, as he desired or expected, — would not be such a change as would absolve the party from his obli- gation to pay his subscription.^ 'Com. V. Cullen, 13 Pa. St. 133; R.R. Co. v. Wilson, 22 Conn. 435; Bedford R.R. Co. v. Bowser, 48 Id. 29 ; Payson v. Stoever, 2 Dillon, 427. Gifford V. N. J. R.R. Co., 10 N. J. Eq. = Monongahela Nav. Co. v. Coon, 6 176 ; Memphis Branch R.R. Co. v. Pa. St. 379. Sullivan, 57 Ga. 240 j Kennebec, etc., ^ Delaware R.R. Co. v. Thorp, i R.R. Co. V. Palmer, 34 Me. 366 ; Houst. Del. 149. The English courts Booker, ex parte, 18 Ark. 338; Vt., seem to make a distinction between etc., R.R. Co. V. Vt. Cent. R.R. Co., 34 mere private corporations acting ex- Vt. 2 ; International, etc., R.R. Co. v, clusively for the benefit of their mem- Bremond, 53 Texas, 96 ; Danbury, etc., bars, as banking and other similar in- § 146 OF CORPORATIONS IN GENERAL. 533 § 146. Reservation by State of power over corporations. — In order to preserve State control over acts of incorporation, the power to repeal, alter, or amend them has sometimes been reserved in the constitution, or in general laws on the subject, or in special acts of incorporation ; and whenever it is so reserved, its exercise does not impair the contract of which it forms a constituent part.^ Every individual who subscribes to the stock of the corporation is bound by this condition, and whatever modification is thus effected by his subscription, is made by his own agreement, entered into at the moment he became a party to the contract, and is as binding upon him as if it had been accomplished at his solicitation and by his procurement ;* and the exercise of the power is not subject to review by the courts, unless some principle of natural justice has been violated.' In stitutions, and railroad companies, which must be considered as acting partly with a view to the public inter- est, in consideration of which they ob- tain from the government the right to take compulsorily the land of private individuals for the use of the road. In Ware v. Grand June. Wat. Co., 2 Russ. & Mylne, 470, Lord Brougham re- fused to restrain a railroad company from applying to Parliament for an en- largement of its powers, and for fun- damental changes in its constitution, on the ground that it was the right of the company to procure these changes if it desired them ; and that all who became stockholders did so with their eyes open to this power of the majority over the constitution of the society. See Ffooks v. Lond. & S. W.R.R. Co., 19 Eng. L. & Eq. 7. See Lyde v. Eastern Bengal R.R. Co., 36 Beav. 10. ' Pennsylvania College Cases, 13 Wall. 213 ; Sprigg v. Western Tel. Co., 4& Md. ^^ ■, Zabrlskie v. Hacken- sack, etc., R.R. Co., 18 N. J. Eq. 185 ; Cora. v. Fayette Co. R.R. Co., 55 Pa. St. 452 ; Cross v. Peach Bottom R.R. Co., 90 Id. 395 ; West Wisconsin R.R. Co. V. Trempealeau County, 35 Wis. 257 ; Atty. Genl. v. R.R. Cos., Ibid. 560; Mowrey v. Indianapolis, etc., R.R. Co., 4 Biss. 78 ; Pacific R.R. Co. V. Renshaw, 18 Mo. 213. = Northern R.R. Co. v. Miller, 10 Barb. 260. " In a multitude of cases decided in England and this country, it has been determined that a sub- scriber for the stock of a company is not released from his engagement to take it and pay for it by any alteration of the organization or purposes of the company which, at the time the sub- scription was made, were authorized either by the general law or special charter ; and a clear distinction is rec- ognized between the effect of such al- terations, and the effect of those made under legislation subsequent to the contract of subscription." Nugent v. Supervisors, 19 Wall. 241. ^Lothrop V. Stedman, 13 Blatch. 134; 42 Conn. 583; Sala v. New Or- leans, 2 Woods, 188. A prohibition, reservation, or exception in a charter will be binding, though it destroy or 534 RIGHTS, POWERS, AND DISABILITIES § I46 such case, the legislature may impose any additional condi- tion or burthen connected with the grant essential to the protection or welfare of the public, and which might with justice originally have been imposed.^ A provision in a charter that it shall not be altered in any other manner than by an act of the legislature, amounts to an express reserva- tion of power by the legislature to amend the charter with- out the consent of the corporators,* When an act of incor- poration reserves the power to alter the charter, the number of votes required for such alteration by the constitution in force when the charter was granted, is not requisite to the validity of the act altering the charter ; but it is suffi- cient that the act is passed pursuant to the provisions of the existing constitution.' The reservation affects the entire relation between the State and the corporation, and places under legislative control all rights, privileges, and immunities derived by its charter directly from the State.* But, although the legislature " may reserve the right to revoke or change its own grant of chartered rights, it cannot reserve a right to invalidate contracts be- tween third parties ; as that would enable it to reserve the right to impair the validity of all contracts, and thus evade the inhibition of the Constitution of the United States." " The expression that a charter is a contract must be under- stood to refer to a private corporation with an irrepealable charter. An act granting an exemption from taxation, and providing for future alteration or repeal, confers a mere privilege, which is nothing more than a legislative conces- sion voluntarily made, subject at any time to be withdrawn or modified, whenever the legislature may deem it expe- make nugatory all the powers given to ' Com. v. Bonsall, 3 Whart. 559. the corporation. Talmadge v. North > Matter of Reciprocity Bank, 29 Am. Coal and Transportation Co., 3 Barb. 369 ; s. C. 17 How. Pr. R. 323. Head, Tenn. 337. * Tomlinson v. Jessup, 15 Wall. 454. ' English V. New Haven & North- ' Miller v. State, Ibid. 499, per Brad- ampton Co., 32 Conn. 240. LEY, J. § 146 OF CORPORATIONS IN GENERAL. 535 dient for the public interests.^ An act reserving power to repeal or amend the charter remains in force until repealed. An act of incorporation passed in 1856 contained this clause : " The legislature reserves the right to alter, amend, and annul this charter at any time hereafter, provided that no injustice be done to the incorporators." In 1862 a sup- plement to the charter provided that the capital stock and dividends of the corporation should not be taxable. In 1868 an act was passed declaring that the capital stock of all corporations doing business in the State, except banks, savings institutions, and foreign insurance companies, should be subject to taxation. It was held that the last-named act repealed the previous one, and that the corporation was liable to the payment of taxes.* There is no rule of law prohibiting the repeal of a special charter by a general law ; ' nor forbidding such repeal without the use of ex- press words declarative of the legislative intent to repeal the earlier statute. " Repeals by implication are not fa- vored. But the question is always one of legislative intent ; and the intent to abrogate the particular enactment in an earlier statute by a general enactment in a later statute, is sufficiently manifested where the provisions of the two enact- ments are so inconsistent that they cannot stand together." * • State V. Commrs. of R.R. Taxation, law." Four years afterward an act 37 N. J. 228 ; Rector of Christ Church was passed vacating the offices of all V. County of Phila., 24 How. 300 ; Pec- the professors, tutors, and teachers pie V. Commrs. of Taxes, 47 N. Y. 501. connected in any manner with the uni- ' Union Improvement Co. v. Com., versity, and providing for the election 69 Pa. St. 140. And see Matter of of a new board of curators ; and a suc- Reciprocity Bank, 29 Barb. 369. An cessor to H. was elected and placed in act of the legislature of Missouri ere- possession of the professorship. It was ated an institution of learning, the gov- held competent for the legislature to ernment of which was committed to a shorten the term of H. Head v. The board of curators to be elected by a University, 19 Wall. 526, affirming s. joint vote of the senate and house of C. 47 Mo. 220. representatives, and to be removable ' Mechanics' and Traders' Bank v. at the pleasure of the legislature. H. Bridges, 1 Vroom, 112. was elected a professor of mathematics ■• State v. Commrs. of R.R. Taxation, for the term of six years " subject to 37 N. J. 228, per Depue, J. And see 536 RIGHTS, POWERS, AND DISABILITIES § I46 Where a law reserves the power to alter, etc., corporate charters generally, a charter subsequently granted may be amended, although it contains no reservation by that legis- lature of power to change it ; such general act being taken as forming part of all charters afterward granted.* And the rule is the same with reference to a grant of franchises and privileges subsequent to such general law, although the charter was created previous thereto.** But a subsequent legislature may enter into an irrepealable contract with a corporation, notwithstanding a previous legislature had re- served the power to alter or repeal the charter.^ Under the general banking law of New York declaring that mem- bers of banking associations should not be individually liable for the debts of the association unless it was so pro- vided in the articles of organization, the Supreme Court of the United States held that a subsequent statute, imposing such a liability upon the shareholders of the association, was valid, as the charter reserved to ' the legislature the power to alter or repeal the act of incorporation. Such a conclusion was objected to, the conditional exemption from such liability being embodied in the articles of association. But the court overruled the defense, upon the ground that the reservation in the charter of the right to alter or repeal the act was controlling.* Jessup, a stockholder in the Union Improvement Co. v. Com., 69 And see Miller v. State, supra. By Pa. St. 140 ; Bangor R. Co. v. Smith, the New York revised statutes the 47 Me. 34. charter of every corporation thereafter ' Mass. Genl. Hospital v. State Mu. to be granted by the legislature was Life Ass. Co., 4 Gray, 227 ; Suydam v. declared to be subject to alteration, Moore, 8 Barb. 358 ; Tomlinson v. suspension, or repeal, in the discretion Branch, 1 5 Wall. 460 ; Miller v. State, of the legislature. This provision in- Ib. 478 ; Holyoke Co. v. Lyman, lb. corporated itself into and became part 500; Griffin v. Ky. Ins. Co., 3 Bush, of every special charter which was 592 ; State v. Person, 32 N. J. 134. itself silent as to the power of repeal ' State V. Commrs. of R.R. Taxation, or change. Prior to the passage of the rupra. general banking law of New York, cor- * New Jersey v. Yard, 5 Otto (95 U. porations, with a few unimportant ei- S.) 104. ceptions, were created by special law. * Sherman v. Smith, i Black. 587. The legislation referred to showed a § 146 OF CORPORATIONS IN GENERAL. 537 Northeastern Railroad Company, a corporation created in 1 85 1 by the State of South Carolina, filed a bill against Tomlinson and other officers of the State to enjoin them from levying a tax upon the property of the road. When the company was incorporated there was a general law providing that the charter of every corporation subse- quently granted, and any renewal, amendment, or modifi- cation thereof, should be subject to amendment, alteration, or repeal, unless expressly excepted from the operation of that law. In 1855 an amendment of the charter exempted from taxation during the continuance of the charter the stock of the company and Other real estate it then owned, or might thereafter acquire ; but there was no clause in the amendatory act excepting it from the provis- ions of the above-mentioned general law. The constitution of South Carolina of 1868 subjected the property of corpo- rations then existing to taxation, and by subsequent legis- lation the property of the railroad company was taxed. It was held that the property was liable to taxation, and the bill was dismissed. Field, J., in delivering the opinion of the court, said : "It is true that the charter of the com- pany, when accepted by the corporators, constituted a contract between them and the State, and that the amend- ment, when accepted, formed a part of the contract from that date, and was of the same obligatory character. And it may be equally true, as stated by counsel, that the ex- emption from taxation added greatly to the value of the stock of the company, and induced the plaintiff to purchase determination on the part of the legis- the legislature, unless a contrary intent lature to make the grant of corporate be therein plainly expressed, was in- franchises revocable. Matter of Lee tended to secure the rights of benefici- & Co.'s Bank, 21 N. Y. 9. The act of aries and others, vested under the char- Kentucky of Feb. 14, 1856, providing ter before its amendment or repeal, and that all charters and grants of or to does not affect the power to repeal the corporations, or amendments thereof, franchise. Griffin v. Ky. Ins, Co., 3 and all other statutes, shall be subject Bush. 592. to amendment or repeal at the will of 538 RIGHTS, POWERS, AND DISABILITIES § I46 the shares held by him. But these considerations cannot be allowed any weight in determining the validity of the subsequent taxation. The power reserved to the law of 1 84 1 authorized any change in the contract as it originally existed, or was subsequently modified, or its entire tevoca- tion. The original corporators, or subsequent stockholders, took their interest with knowledge of the existence of this power, and of the possibility of its exercise at any time in the discretion of the legislature. The object of the reser- vation, and of similar reservations in other charters, is to prevent a grant of corporate rights and privileges in a form which will preclude legislative interference with their exer- cise if the public interest should at any time require such interference. It is a provision intended to preserve the State control over its contract with the corporators, which without that provision would be irrepealable, and protected from any measure affecting its obligation." ^ A statute providing that every act of incorporation shall " at all times be subject to amendment, alteration, or repeal, at the pleasure of the legislature," reserves to the legislature authority to make any alteration or amendment in a charter granted 'subject to it, that will not defeat or substantially impair the object of the grant, or any rights which have vested under it and that the legislature may deem neces- sary to secure that object, or other public or private rights. Under such a clause the stockholders of a bank may be made liable for the future debts of the corporation. The measure may be varied, and the proportion be enlarged of the profits which a mutual life insurance company is re- quired by the terms of its charter to pay to a charitable institution ; and railroad companies may be compelled to change the level, grade, and surface of the road-bed, and make new crossings or station-houses different from those ' Tomlinson v. Jessup, 1 5 Wall. 454. § 147 OF CORPORATIONS IN GENERAL. 539, required by the charter, or by the law when the charter was granted.* When the legislature grants certain powers and privileges to be exclusively exercised and enjoyed, reserving the power to cancel the grant and to annul the same whenever such privileges are misused or abused, the legislature is the judge as to the commission of such abuse or misuse.* An amended charter attaches itself to all the qualities and privileges of the original one.' " Beyond the sphere of the reserved powers, the vested rights of property of cor- porations are surrounded by the same sanctions, and are as inviolable, as in other cases."* § 147. Restricted to authority conferred by charter.— Al- though a corporation, in accomplishing the purposes of its creation, may resort to any means that would be necessary and proper for an individual under similar circumstances, unless prohibited by its charter or by some public law ; ^ yet all power rightfully exercised by corporate bodies being conferred by the government, either in express terms or by clear implication, authority for every corporate act must be found in the grant or requirement of some legislative act.^ It follows that no vote or act of a corporation can enlarge its chartered authority, either as to the subjects on ' Commrs. v. Holyoke Water Power Callaway County, lb. 395 ; State v, Sul- Co., 104 Mass. 446, referring to Sher- livan County, lb. 522. man v. Smith, i Black. 587 ; Matter of * Swayne, J., in Shields v. Ohio, 95 Lee & Co.'s Bank, 21 N. Y. 9 ; Mass. U. S. 324. Genl. Hospital v. State Ass. Co., 4 Gray, ' Union Bank v. Jacobs, 6 Humph, 227 ; Roxbury v. Boston & Providence 525 ; Bank of Augusta v. Earle, 13 Pet. R.R. Co., 6 Cush. 424 ; Fitchburg R.R. "519. Co. V. Grand Junction R.R. & Depot ' State v. Washington Soc. Library Co., 4 Allen, 198 ; Com. v. Eastern Co., 1 1 Ohio, 96 ; Webster v. The Peo- R.R. Co., 103 Mass.254; Albany North- pie, 98 111. 343. All the rights of cor- em R.R. Co. v. Brownell, 24 N. Y. 345. porations existing previous to the Amer- '' Miners' Bank v. U. S., I Greene, ican Revolution remained unchanged Iowa, 553- by that event. Soc. for Prop, of Gos- ' County of Callaway v. Foster, 3 pel v. New Haven, 8 Wheat. 464 ; Otto (93 U. S.) 567, referring to State Vermont v. Soc. for Prop, of Gospel, I V, Greene Co., 54 Mo. 540; State v. Paine C. C. 652. 540 RIGHTS, POWERS, AND DISABILITIES § 147 which it is intended to operate, or the persons or property of the corporators. If created with a fund limited by the act, it cannot enlarge ot diminish the fund ; and if the cap- ital stock is divided into a fixed number of shares, this nuriiber cannot be changed without authority from the legislature.* But the accidental increase in the income of a corporation derived from its vested estates to a point be- yond what its charter prescribes, will not divest its title in such estates or in any portion of them. The excess of in- come in such a case would not belong to the grantor of the property. It would be a question between the corporation and the sovereign power in which individuals would have no concern, and of which they could not avail themselves in any mode against the corporation.' A corporation which is forbidden by its charter to discount notes, and author- ized to loan money on bond and mortgage, but on no other security, cannot loan money upon an hypothecation of stock, and take a note as collateral security.^ Where a charter was granted to a company with a specified cash cap- ital, and such other funds as it might receive in trust, and one-half of the capital was required to be invested in bonds or notes secured by mortgage on land in the State, and the remaining half of the capital, together with the premiums and profits received by the corporation, and the trust moneys, might, in the discretion of the corporation, be invested in stocks, or in such real or personal securities as it might deem proper, it was held that the corporation had no power to lend its obligations to pay money in future, and exchange such ob- ligations for the bonds of an individual for the same amount^ > Salem v. Mill Dam Corp.,.6 Pick. 23. nies, religious and charitable corpora- ' Bogardusv. Trinity Church, 4 Sandf. tions, and corporations for literary and Ch. 633 ; Humbert v. Trinity Church, scientific purposes — may invest their 24 Wend. 587. See State v. Morris- capital in the stock of other corpora- town Fire Assoc, 23 N. Y. 195. tions. See Hodges v. New England "North River Ins. Co. v. Lawrence, Screw Co., i R. I. 312. 3 Wend. 482. Many corporations — * Smith v. Ala. Life Ins. & Trust Co., such, for instance, as insurance compa- 4 Ala. 558. § 148 OF CORPORATIONS IN GENERAL. 54I When a corporation seeks the protection and security of a State charter, it is bound, as a corporation, by the restric- tions of the charter, notwithstanding an individual member of the corporation may exercise the right of a citizen and do the same thing on his own responsibility without i;estriction. Where a person was given an exclusive right to navigate by steam the waters lying in the State of New York, under an act of the State granting to Fulton and Livingston an exclu- sive right, although it was decided that such grant was in violation of the constitution and laws of Congress, naviga- ble waters being free to all the States and citizens to navi- gate by steam or otherwise, it was not held or claimed that a State legislature might not charter a corporation to navi- gate the waters of any State, or even the ocean.^ § 148. When corporate power presumed. — The dealings of a corporation which on their face or according to their ap- parent import are within its charter, are not to be regarded as illegal or unauthorized, without some evidence tending to show that they are of such a character. In the absence of proof, there is no legal presumption that the law has been violated. Where a corporation which has no general authority to lend money and discount notes, attempts to enforce a promissory note of which it is the holder, it will be presumed that the note vi^as taken for a debt contracted in the course of some lawful dealing.' A corporation had no general authority to make loans and invest its capital on bond and mortgage ; but it could execute trusts and invest trust funds in securities of that nature. It was held that where a loan by such a corporation was contested by the borrower on the ground of a want of power to make it, it was incumbent on him to show affirmatively that the loan 'Gibbons v. Ogden, 9 Wheat, i. Sturges, 2 Cowen, 664; Safford v. See Camden & Amboy R.R. Co. v. W^yckoff, 4Hill,442 ; Lorillard v. Clyde, Briggs, 2 Zab. 623 ; Gunn v. Cent. 86 N. Y. 384. See Express Co. v. Rail- R.R. Co., 74 Ga. 509. road Co., 99 U. S. 199. 'New York Firemen's Ins. Co. v. 542 RIGHTS, POWERS, AND DISABILITIES § 149 was not made in the proper exercise of the powers granted.' Where a corporation is authorized to give a negotiable security for any purpose, and there is nothing to show what the particular security was given for, if the instrument itself does not create a suspicion that it was issued for an illegal object, the court will presume that it was given for a legiti- mate purpose rather than for a purpose which was unau- thorized and illegal.^ Although a corporation is forbidden by its charter to deal in anything but bills of exchange, promissory notes, gold and silver, and the produce of its real estate, yet it may take and hold bonds and mortgages to secure debts due it, and its possession of Such securities, when there is no evidence to the contrary, will be presumed rightful.^ Where the charter of a bank forbids the dis- counting by the bank of any paper not falling due within twelve months of its being offered for discount, but a sub- sequent act provides that when the directors deem it advisable, for the better security of a debt due the bank, it may discount paper having more than twelve months to run, the latter privilege will not be considered in the light of an exception which must be pleaded by the party rn whose favor it exists, but as an enlargement of the corpo- rate powers of the bank, and whenever paper having more than twelve months to run is discounted by the bank, the transaction will be prima facie valid.* § 149. Power with reference to place of creation. — Every cor- poration is created, and its franchises, powers, capacities, duties, and liabilities fixed, limited, and qualified, both in action and in time, by the law of the State granting the charter, and where it has its legal residence.' Although ' Farmers' Loan & Trust Co. v. Perry, ' Trenton Banking Co. v. Woodnifi; 3 Sandf. Ch. 339; Same v. Clowes, 3 I Green's N. J. Ch. 117. Comst. 470. See Chautauqua Co. Bank ■* Dockery v. Miller, 9 Humph. 731. V. Risley, 19 N. Y. 369, overruling S. c. ' Blackstone Manuf. Co, v. Black- 4 Denio, 487, 488. ^ stone, 3 Gray, 488 ; Crowley v, Pan- " Safford v. Wyckoff, supra. ama R.R. Co., 30 Barb, 99 ; Chaffee v. § 149 OF CORPORATIONS IN GENERAL. 543 the law of the State can have no direct extraterritorial jurisdiction, yet each government, in determining the con- ditions of its grant, can confer general powers to be exer- cised within its bounds, or beyond them by comity. The grant of franchises without restriction, is equivalent to a specific authority to exercise them wherever the corpora- tion may find it convenient or profitable, whether within or without the limits of the State. The rules of comity are subject to local modification ; but until so modified, " they have no controlling force or obligation." ' The mere place where the active agents of a corporation enter into a contract must in general be immaterial. The im- portant question arising must be one of power, not of place. The exercise of the power has relation to the place of legal establishment where the contract may be subse- quently acted under. A corporation may therefore by its agents transact business anywhere unless prohibited by its charter, or excluded by local laws. Under such circum- stances it may, in order to secure business, consent to be found away from home for the purposes of suit as to mat- ters growing out of its transactions.* With reference to federal jurisdiction, a corporation is regarded as if it were a citizen of the State where it was created, and no averment or proof as to the citizenship of its members elsewhere will be permitted.* Although the president of a corporation may hire an office in a State other than that of its creation for the Fourth Nat. Bank of N. Y., 71 Me. North Am., 82 111. 493. The meetings 514; Mathews v. Trastees, 2 Brewst. of the directors of a business corpora- 541 ; State v. Milwaukee, etc., R.R. tion are not analogous to the sessions Co , 45 Wis. 579. of a judicial tribunal. The corpora- ' Merrick v. Van Santvoord, 34 N.Y, tion is organized by the election of di- 208, reversing S. C. 38 Barb. 574. rectors ; but the mere organization of ' SchoUenberger, ex parte, 6 Otto, the directors into a formal meeting for 3:69 ; Bait. & Ohio R.R. v. Glenn, 28 business afterward, is a different thing. Md. 287 ; Ins. Co. v. Francis, 1 1 Wall. Wright v. Bundy, 1 1 Ind. 398. 310; Vincennes R.R. Co. v, Bank of «R.R. Co. v. Harris, 12 Wall. 65. 544 RIGHTS, POWERS, AND DISABILITIES § 1 50 transaction of the corporate business,^ yet it has been held to be the duty of a corporation to keep its principal place of business in the State creating it to an extent necessary to the fullest jurisdiction and visitorial power of the State and its courts." A railroad company having been incorporated in Indiana with power to extend its road to Cincinnati, Ohio, immediately migrated to Ohio, where it established its office, and where all of its subsequent acts were per- formed, including the fixing of instalments and times of payment for stock. The legislature of Ohio authorized the corporation to extend its railroad in that State. It was held that the corporate acts performed in Ohio were void.' Where a corporation created in Florida kept its books and records in Massachusetts, in which its president and other officers resided, it was held not thereby divested of its character as a foreign corporation, nor its trustees deprived of immunity from prosecution for its debts.* § 150. Rights and powers of foreign corporations. — A body corporate must be treated as a separate corporation by the ' Steamboat Co. v. McCutcheon, 13 made at the treasurer's office in order Pa. St. 13. to bind the indorsers. Id. 'State V. Milwaukee R.R. Co., 45 "Aspinwall v. Ohio & Miss. R.R. Wis. 579 ; Land Grant R.R. v. Co., 20 Ind. 492. As to the power of Commrs. of Coffey County, 6 Kans. validating such acts by subsequent 245. Where a corporation was re- meetings of the corporation in the quired by its charter to keep its office State of its creation, see Freeman v. in the State, but, notwithstanding this Machias Water Power & MiU Co., 38 requirement, it kept its office in another Me. 343. State, it was held that the presentation *Danforth v. Penny, 3 Mete. 564. of its note for payment at the latter When a foreign corporation carries on office was sufficient. Merrick v. Bur- business in a State, has its -general lington & Warren Plank R. Co., 11 office and books there as well as its Iowa, 74. Although a corporation be property, and its election of directors required by its charter to pay only such is held there, it will be deemed a do- orders or warrants as are signed by the mestic corporation, and the stock president and countersigned by the owned by a non-resident stockholder secretary, yet demand and payment of may be attached in the State where it a note executed in behalf of the cor- carries on its business. Young v. poration by the secretary alone, may be South Tredegar Iron Co., 2 Southwest- ern Reporter, 202. §150 OF CORPORATIONS IN GENERAL. 545 courts of each government from which it derives its being, that is, a domestic legal entity to the extent of the govern- ment under which it acts, and as a foreign corporation as regards the other sources of its existence.'' Where a rail- road company chartered in Connecticut, obtained permis- sion to continue its line into and transact business in New- York, it was held that it must be deemed as to its contracts made in New York, to possess the powers and subject to all the liabilities of similar corporations created in the latter State ; and that it could not create a contract valid in New York, and then, when its interests dictated, set up the de- cisions of the courts of Connecticut as an excuse for its violation.** A corporation may engage in transactions be- yond the State creating it, unless restrained" by its charter, or by the laws of the State in which it attempts to act.^ In an early case in the Supreme Court of the United States, the court said : " We think it well settled that by the law of comity among nations, a corporation created by one sovereignty is permitted to make contracts in another, and ' State V. Northern Cent. R.R. Co., the two companies becoming merged 18 Md. 193. Four persons entered into and consohdated under the name of the a contract for the purpose of quarrying foreign corporation, it was held that stone in New Jersey, undertook to form the purchaser became a domestic cor- themselves into a corporation under the poration occupying the place of the laws of New York, and took all the vendor. Angier v. East Tenn., etc., steps required to effect their object by R.R. Co., 74 Ga. 634. the New York law. It was held that '^ Milnor v. N. Y. & N. H. R.R. Co., their attempted organization as a cor- 53 N. Y. 363. poration in New York was a fraud upon ' New York Floating Derrick Co. v. the law of New Jersey, and that they N. J. Oil Co., 3 Duer, 648 ; Merrick v. must be treated as partners trading Van Santvoord, 34 N. Y. 208 ; Dodge under the name they had assumed, v. Council Bluffs, 57 Iowa, 560 ; Wood Hill V. Beach, 12 N. J. Eq. (i Beas. Hydraulic Hose Co. v. King, 45 Ga. Ch.) 31. Where a railroad corpora- 34; Kerchner v. Gettys, 18 S. C. 521 ; tion was authorized by its charter to Bait, etc., R.R. Co. v. Glenn, 28 Md. sell its road, charter, franchises, and 287 ; Williams v. Creswell, 51 Miss. privileges to any person or corporation 817 ; Newburg Petroleum Co. v. Weare, within or without the State, and such a 27 Ohio St. 343 ; Plimpton v. Bigelow, purchase was made by a foreign rail- 93 N. Y. 592 ; Cowell v. Springs Co., road corporation, which assumed all 100 U. S, 55. the debts or obligations of the vendor, VOL. I. — 35 546 RIGHTS, POWERS, AND DISABILITIES § 150 sue in its courts ; and that the same law of comity prevails among the several sovereignties of the Union. The pub- lic and well-known and long-continued usages of trade ; the general aqquiescence of the States ; the particular legislation of some of them, as well as the legislation of Congress, all concur in proving the truth of this proposition." ^ Similar views were expressed by the same court in a more recent case.^ But a corporation cannot lawfully do in anather State what it is not authorized by its charter to do at home ; ^ and its acts must be in subordination to the law and public policy of the State where they are performed. Even in the case of private trading and eleemosynary corporations, if they would exercise the powers with which they are en- dowed in another State, it must be with reference and sub- ject to the restrictions imposed by the laws of such State.* ' Bank of Augusta v. Earle, 13 Pet. 519- 2 Christian Union v. Yount, loi U. S. 352. In this case, Harlan, J., said : " In harmony with the general law of comity obtaining among the States composing the Union, the pre- sumption should be indulged that the corporation of one State, not forbidden by the law of its being, may exercise within any other State the general powers conferred by its own charter, unless it is prohibited from so doing either in the direct enactments of the , latter State, or by its public ])olicy to be deduced from the general course of its legislation, or from the settled ad- judications of its highest court." sBard v. Poole, 12 N. Y.49S; Hoyt V. Sheldon, 3 Bosw. 267 ; Com. Union Ass. Co. V. Scammon, 102 111. 46. See Relfe V. Rundle, 103 U. S. 222 ; Thomp- son V. Waters, 25 Mich. 214. Comity would perhaps allow a foreign corpo- ration to do in another State what it was incapable of doing at home, if necessary to the legitimate exercise of its functions. The States of New York and California might, for instance, through comity, allow a Pennsylvania corporation to hold, occupy, and oper- ate vineyards in their respective States, for the purpose of furnishing grapes and wine to the people of Pennsyl- vania, the soil and climate of which are not adapted to such productions. But " no rule of comity will allow one State to spawn corporations, and send them forth into other States to be nurtured and to do business there, when said first-mentioned State will not allow them to do business within its own boundaries." Land Grant R.R. v. Coramrs. of Coffey County, 6 Kans. 24s, per Valentine, J. ■• Mathews v. Trustees, 2 Brewst. 541 ; Metropolitan Bank v. Godfrey, 23 111. 579 ; Hitchcock v. U. S. Bank, 7 Ala. 386 ; Ohio Life Ins. & Trust Co. V. Merchants' Ins. & Trust Co., 11 Humph. I. See U. S. v. Fox, 94 U. S. 31 5 ; People v. Howard, 50 Mich. 239 ; White v. Howard, 46 N. Y. 144 ; U. S. Mortgage Co. v. Gross, 93 111. 483. § 150 OF CORPORATIONS IN GENERAL. 547 It is the understanding of all civilized communities that in the silence of any positive rule of law affirming, denying, or restraining the operations of foreign laws, courts presume the tacit adoption of them by their own government unless repugnant to its policy or interest.^ It should, however, be observed that the general laws of a State, designed to en- force a merely local policy, are not recognized by the law of comity in another State as to acts and contracts which, though not lawful in the former, are authorized in the latter ; and the same rule applies to the provisions in the charter of a corporation which are not designed to operate extraterritorially. Thus, a promissory note given for a loan of money may stipulate for a rate of interest author- ized by the law of the place where the note is made, although such a rate be disallowed in the place of payment.^ The converse of this proposition is also true. If the interest allowed by the law of the place of performance is higher than that permitted at the place of contract, the parties may stipulate for the higher interest without incurring the penalties of usury ; provided the parties act in good faith, and the form of the transaction is not adopted to disguise its real character.^ In Thompson v. Powells,* the Chancel- lor said : " In order to hold the contract usurious, it must appear that it was made here, and that the consideration for it was to be paid here. It should appear at least that the payment was not to be made abroad, for if it was to be made abroad, it would not be usurious. There is nothing to show that it was to be made here, and I cannot intend that it was to be made here, because that would be making an intendment merely to bring the case within the opera- ' Story Conflict of Laws, sees. 35, 37 ; domestic corporation. Huss v. Centr. Williams v. Caswell, 51 Miss. 817. R.R. & Banking Co., 66 Ala. 472. Where a foreign corporation has a ' Depau v. Humphreys, 8 Martin, N. known place of business and an agent ■ S. La. i. within the State, the statute of limita- ' Miller v. Tiffany, i Wall. 298. tions is as available to it as if it were a ' 2 Sim. 194 ; 2 Eng. Ch. 386. 548 RIGHTS, POWERS, AND DISABILITIES § 1 5© tion of a penal statute." Where certain promissory notes, bearing twelve per cent, interest per annum, were dated " Matagorda, Texas," the residence of the maker, but exe- cuted and delivered in New York, it was held that it was to be presumed, from the fact that the notes were not re- pugnant to the laws of Texas, whilst they would have been to the laws of New York, the parties intended that they should be paid in accordance with the laws of the former State.^ The national banks organized under the act of Congress of 1864 are instruments designed to be used to aid the government in the administration of an important branch of the public service, and the States can exercise no control over them, nor in anywise affect their operation, except in so far as Congress may permit.^ The act of Congress of July 24, 1866, substantially declares that the erection of telegraph lines shall, so far as State interference is con- cerned, be free to all who will submit to the conditions im- posed by Congress, and that corporations organized under the laws of one State for constructing and operating tele- graph lines shall not be excluded by another State from 'BuUard v. Thompson, 35 Texas, 173; Nat. Bank v. Mathews, 98 U. S. 313. Where a company incorporated 621. in Maryland, in which the rate of in- ^ Farmers', etc., Nat. Bank v. Dear- terest was six per cent, per annum, ing, 91 U. S. (i Otto) 29. A bank or- was forbidden by its charter to make ganized and existing by virtue of the any contract which by the existing laws national banking act, is a foreign cor- constituted usury, borrowed money in poration. within the statute of New New York to be repaid in that State, York, requiring the filing of security and agreed to pay interest thereon at for costs. Nat. Park Bank v. Gunst, I the rate of seven per cent, per annum. Abb. N.C. 292; Merchants' Nat. Bank v. which was at that time the lawful rate McNaughton, lb. 293 ; and it is liable to in New York, it was held that the con- attachment within the provisions of tract was valid, the lex loci contractus the code, for though formed under a furnishing the rule by which the valid- law enacted by the government, it is ity of the contract was to be determined, still no part of the State government so 12 N. Y. (2 Kern.) 495. See Knox v. called. Bowen v. First Nat. Bank of Bank of U. S., 26 Miss. 655 ; Farmers', Medina, 34 How. Pr. 408. See First etc.. Bank v. Harrison, 57 Mo. 503; Nat. Bank of Whitehall v. Lamb, 57 Perkins v. Watson, 2 Baxter, Tenn. Barb. 429. § ISO OF CORPORATIONS IN GENERAL. 549 prosecuting their business within its jurisdiction, if they accept the terms proposed by the government for this purpose.^ The provision of the Constitution of the United States, however, that " the citizens of each State shall be entitled to all the privileges and immunities of citizens in the sev- eral States," does not apply to corporations ; * and therefore any State may interdict foreign corporations from perform- ing certain acts, or conducting certain kinds of business within its jurisdiction.' But in the absence of interdiction, or in relation to transactions not embraced in the prohibi- tion, and not contrary to the policy of the State, a corpo- ration may transact business in another State than that of its creation, and enforce contracts in the courts of such other State, provided the contracts would be valid if made at the same place by an individual not a resident of the State.* The right of a corporation to purchase and sell ' Pensacola Tel. Co. v. Western Union Tel. Co., 6 Otto (96 U. S.) i ; Am. Union Tel. Co. v. Western Union Tel Co., (i^ Ala. 26. ' Wan'en Manf. Co. v. Etna Ins. Co., 2 Paine C. C. 501. If it did, the sev- eral States would be deprived of the right to regulate their internal affairs according to their interests and ideas of State policy. » Unless a case should be presented in which the rights claimed by the cor- poration should appear to be secured by the Constitution of the United States. Runyan v. Coster, 14 Pet. 122. * Bank of Augusta v. Earle, 1 3 Pet. 519; Silver Lake Bank v. North, 4 Johns. Ch. 370 ; Mumford v. Am. Life Ins. Co., 4 Comst. 463 ; Bard v. Poole, 12 N. Y. 495 ; Curtis v. McCullough, 3 Nev. 202 ; Com. v. Milton, 12 B. Mon. 212 ; Phoenix Ins. Co. v. Com., 5 Bush. 68 ; Gill v. Ky., etc., Mining Co., 7 Id. 635 ; Martin v. Mobile & Ohio R.R. Co., lb. 1 16 ; Rees v. Conococheague Bank, 5 Rand. 326 ; Myers v. Manhat- tan Bank, 20 Ohio, 283 ; Carroll v. East St. Louis, 67 111. 568 ; Stevens v. Pratt, loi Id. 206 ; Pensacola Tel. Co. v. Western Union Tel. Co., supra ; Cow- ell v. Springs Co., 100 U. S. 55 ; Chris- tian Union v. Yount, loi Id. 352 ; Weymouth v. Washington, etc., R.R. Co., I McArthur, 19 ; Farmers' & Mer- chants' Ins. Co. v. Harrah, 47 Ind. 236 ; Western Union Tel. Co. v. Mayer, 28 Ohio St. 521 ; Am. Mu. Life Ins. Co. V. Owen, 15 Gray, 49. It is common for incorporated banks, insurance com- panies, and other associations, by their agents, to do business in other States than those of their domicile, in making investments in bonds, notes, and mort- gages, issuing policies, and buying and selling exchange. See Williams v. Creswell, 51 Miss. 817. As the legis- lature of a State has no power to au- thorize a corporation to build a portion of its bridge outside the limits of the State, a promise of a person who passes 550 RIGHTS, POWERS, AND DISABILITIES § 150 property not being in its nature strictly a franchise, but a right existing equally in individuals without special grant, is very generally recognized in States other than that of its creation.^ If the policy of the State does not permit the business of the foreign corporation in its limits, or allow the corporation to acquire or hold real property, it must be expressed in some affirmative way. It cannot be inferred from the fact that its legislature has made no provision for the formation of similar corporations, or allows corpora- tions to be formed only under general laws.* As the char- ter of a foreign corporation is its warrant or authority from the State where it is created, the citizens of another State over that portion to pay toll therefor will not be implied. Middle Bridge Corp. V. Marks, 26 Me. 326. The courts of a State will not administer a foreign charity. But they will direct money devoted to it to be paid over to the proper parties, leaving it to the courts of the State within which the charity is to be established to provide for its due administration, and for the proper application of the legacy. Hill on Trustees, 468 ; Murbank v. Whitney, 24 Pick. 1 54. The court of a State has not power to remove or appoint the trustees or directors of a foreign corpo- ration ; but it can enjoin their action when illegal, or when acting fraudu- lently or unlawfully, if they are person- ally within its jurisdiction. Fisk v. Rock Island & Pacific R.R. Co., 53 Barb. 513. Although a court of equity will act upon the person of a defendant within its jurisdiction and compel spe- cific performance of a contract in rela- tion to land in a foreign State,- yet it will not compel by its decree a defend- ant to go into a foreign State and spe- cifically execute a contract there, even in the case of a natural person ; and more especially not, when the defend- ant is an artificial person having no legal existence beyond the territorial limits of the State which created it. Port Royal R.R. Co. v. Hammond, 58 Ga. 523 ; Watts v. Waddle, 6 Pet. 389. ' Thompson v. Waters, 25 Mich. 214. The objection to allowing a corpora- tion in the State of its creation to hold land not occupied and used, or neces- sary to the exercise of its franchises, as prejudicial to the public interests, does not apply where land held in another State was taken for debts accruing in the course of its business. Ibid. Where foreign corporations are not permitted to hold land in the State beyond what is reasonably necessary for the trans- action of their business, conveyances of real estate to a foreign corporation cre- ated for the purpose of buying and selling land, are of course void. Car- roll V. East St. Louis, 67 111. 568 ; U. S. Trust Co. V. Lee, 73 Id. 142. If a statute of a State confers power upon a foreign corporation to take land by devise, it will be effectual to enable it to take in the State passing the statute, although not permitted to take land by devise in the State of its creation. White v. Howard, 46 N. Y. 144. ' Cowell V. Springs Co., 100 U. S. 55 ; Stevens v. Pratt, 100 111. 206. § 150 OF CORPORATIONS IN GENERAL. 55 1 in which it carries on business are not bound to inquire into the general laws of the foreign State to see whether restrictions exist limiting the authority contained in the charter ; general laws falling within the rule that where knowledge of a foreign law by a party is material upon a question of good faith, such knowledge must be brought home to him.^ Allusion has already been made to the power of a State to exclude foreign corporations therefrom, and to invalidate all their acts done within its limits, if it sees fit to do so ; for to recognize the right of a corporation created by one State to force its presence and business into the territory of another, would be to allow a State to give its laws an extraterritorial operation.* It follows that the consent of a State, express or implied, to the transaction of business therein by a foreign corporation, may be accompa- nied by such conditions as the legislature may see fit to im- pose, provided they are not repugnant to the Constitution or laws of the United States, or inconsistent with the rules of public law, or the principles of natural justice ; and power to revoke a permission is a necessary consequence of the main power.^ In such case, the condition is a part of every con- ' Hoyt V. Sheldon, 3 Bosw. 267 ; limits, tlie legislature had an undoubted Hoyt V. Thompson, 19 N. Y. 207 ; S. C. right to attach what conditions it 5 Id. 320. thought fit to the privilege. It is a 'See Com. v. Milton, 12 B. Mon. 68 ; mere confusion of ideas to put those Phoenix Ins. Co. v. Com., 5 Bush. Ky. foreign corporations on the same foot- 68 ; Bank of Marietta v. Pindall, 2 ing with corporations which are the Rand. 465 ; Home Ins. Co. v. Davis, creatures of our own State laws, from 29 Mich. 238; Slaughter v. Com., 13 the simple fact of their being alike cor- Gratt. 767. porations. It is equally unsound to 5 Lafayette Ins. Co. V.French, 1 8 How. claim for them the personal and con- 404; Doyle V. Continental Ins. Co., 94 stitutional rights of the citizens of the U. S. (4 Otto) 535 ; Lamb v. Bowser, several States." Paul v. Virginia, 8 7 Biss. 315. In State v. Lathrop, 10 Wall. 168, arose upon a statute of Vir- La. An. 398, the court said : " If this ginia, which provided that no foreign State has thought fit to recognize for- insurance company should transact eign charters of incorporation to the business in that State until it had taken extent of permitting foreign corpora- out a license, and made a deposit with tions to transact business in their cor- the State treasurer of bonds varying in porate name through agents within our amount from $30,000 to $50,000, ac- 552 RIGHTS, POWERS, AND DISABILITIES § 150 tract made in the State.^ A statute of Wisconsin having declared that if a foreign insurance company should remove any case from its State court into the Federal courts, con- trary to the provisions of a certain statute, it should be the duty of the secretary of state immediately to cancel its license to do business within the State, it was held that no right under the laws or Constitution of the United States was thereby infringed ; a license to a foreign corporation to enter a State not involving a permanent right to remain, but the State having authority at any time to declare that it should no longer transact business there.^ The power of cording to the amount of its capital. It was held that the legislature had a right to impose such conditions, and the judgment of the State court con- victing Paul upon an indictment for violating the State law in issuing poli- cies without first complying with the required conditions, was sustained. A similar decision was rendered, in Ducat V. Chicago, 10 Wall. 410, with reference to a statute of Illinois. " An insurance company, in doing its business in an- other State, owing to the nature of the business itself (making contracts of insurance), would seem to be exercis- ing through agents its corporate fran- chises in the same way as in the State of its creation, with the exception of corporation meetings, and the strictly official action of its officers ; and for this, as well as the prudential reason of protecting their citizens from imposi- tion, and perhaps encouraging home companies, other States have quite generally required their compliance with certain rules and regulations fixed by the legislatures, as conditions upon which alone they are allowed to do their business within such State." Thomp- son V. Waters, 25 Mich. 214. In Ore- gon and Illinois, contracts entered into by foreign corporations in disregard of the conditions imposed by statute, are deemed void. In re Comstock, 3 Saw- yer, 218; Oregon Investment Co. v. Rathbone, 10 Chicago Legal News, 58 ; Cincinnati Mu. Co. v. Rosenthal, 55 111. 85. The act of Colorado does not go so far, but merely enjoins a duty, and punishes disobedience to its command, not by avoiding the contracts of the corporation, but by holding its officers, agents, and stockholders liable for such contracts. Northwestern Mu. Life Ins. Co. V. Overholt, 4 Dillon, 287. Under the act of Montana, requiring foreign corporations doing business in the ter- ritory to file its charter or act of incor- poration, it is wilful negligence on the part of the corporation to fail to do so, and relieves a person suing the cor- poration from proving the act of incor- poration. King v. National, etc., Co., 4 Montana, i. ' Glens Falls Ins. Co. v. Judge of Jackson Ct., 21 Mich. 579. ' Doyle V. Continental Ins. Co., 4 Otto, 535. Bradley, J., dissenting, said : " Though a State may have power, if it sees fit, to subject its citi- zens to the inconvenience of prohibit- ing all foreign corporations from trans- acting business within its jurisdiction, it has no power to impose unconstitu- tional conditions upon their doing so. Total prohibition may produce suffer- §150 OF CORPORATIONS IN GENERAL. 553 a State to discriminate between its own domestic corpo- rations and those of other States desirous of transacting business within its jurisdiction, is clearly established.^ In New Jersey, an act relative to insurance companies was held constitutional which prescribed, in substance, that no person should act as an agent for any individuals or associ- ation of individuals resident out of the State, and not in- corporated by some local law of it, until he had given a bond to the collector of the county within which he might reside that, among other things, he would pay a tax upon the premiums he received ; no such tax being im- posed by law upon insurance companies of the State.* But it would not be competent for a State legislature to impose a tax upon the receipts of a foreign corporation for the transportation of merchandise received and delivered out of the State, and simply carried through the State, as that would be a tax upon interstate commerce.^ In Erie R.R. Co. V. State,^ most of the merchandise and passengers for the transportation of which by the Erie Railroad Com- ing, and may manifest a spirit of un- ordinance prohibiting an appeal to tlie friendliness toward sister States ; but State courts from municipal prosecu- prohibition, except upon conditions de- tions." rogatory to the jurisdiction and sover- ' Paul v. Virginia, 8 Wall. 168 ; Du- eignty of the United States, is mis- cat v. Chicago, 10 Id. 410 ; Fire Dept. chievous, and productive of disloyalty v. Noble, 3 E. D. Smith, 440 ; State v. to the general government. If a State Fosdick, 21 La. Ann. 434; Glazie v. is unwise enough to legislate the one, So. Car. R.R. Co., i Strobh. 70; Cow- it has no constitutional power to legis- ardin v. Universal Life Ins. Co., 32 late the other. The citizens of the Gratt. 445. See Wood Mowing Ma- United States, whether an individual chine Co. v. Caldwell, 54 Ind. 279 ; or associations corporate or incorpo- Western Union Tel. Co. v. Mayer, 28 rate, have a constitutional right, in Ohio St. 539 ; People v. Fire Associa- proper cases, to resort to the courts of tion, 92 N. Y. 311 ; Home Ins. Co. v. the United States. Any agreement, Davis, 29 Mich. 238; Hagerman v. stipulation, or State law precluding Empire State Co., 97 Pa. St. 534 ; them from this right, is absolutely void Semple v. Bank of British Columbia, 5 — just as void as would be an agree- Sawyer, 88. ment not to resort to the State courts ' Tatem v. Wright, 3 Zab. 429. for redress of wrongs, or defense of ' State v. Am.ExpressCo., 7Biss.227. unjust actions, or, as would be a city * 31 N. J. (2 Vroom) 531. 554 RIGHTS, POWERS, AND DISABILITIES § 15° pany, in the State of New Jersey, a transit duty or tax was charged, had been by that company, and other railroads in connection with them, carried over the State of New Jer- sey from States and Territories of the United States in the West, to States of the United States in the East, and from States of the United States in the East, over New Jersey, to States and Territories of the United States in the West. The court, in holding that the legislature of the State had not the constitutional power to lay the tax in question, said : " Considering the question in a theoretical point of view, it would seem to be clear that a State cannot tax for the purpose of revenue a foreign corporation in a mode different in principle from that in which she can tax one of her own domestic corporations. It is not denied that the corporate existence of a company is recognized, not by right, but of grace, in foreign jurisdictions, nor that each government has the competence to refuse to recognize such existence except on its own conditions. The prin- ciple is universally acknowledged. Hence laws requiring insurance companies and other foreign corporations to file bonds, and submit to other exactions, as a prerequisite to their admission in an incorporated capacity into the State. Such laws, when rightfully made, are evidently mere police regulations, designed to protect the citizens of the State in which they are enacted from loss or imposition, and on this ground their legality cannot be drawn in question. But a tax law having revenue for its object is based upon a principle entirely different. The right to tax for revenue is the right of the government to take so much of the prop- erty of the person or company upon whom the tax falls as such government may deem necessary for its public wants. The act of taking the property, therefore, must of necessity be an acknowledgment of the legal status of the person or company whose property is taken. To assert that the com- pany whose property is thus taken has no rights but such § 151 OF CORPORATIONS IN GENERAL. 555 as the government chooses to confer, is to assert that such company has no title to its property but such as may be conceded to it by the taxing power. It seems to be utterly inconsistent with legal principles, which have always been deemed axiomatic, to hold that a government can recognize the legal existence of a foreign corporation for the purpose of taxation, and at the same time can deny such legal ex- istence for the purpose of depriving it of those rights which belong to every individual or company known to the law. Such a doctrine would obviously offer the entire property of foreign corporations as a prize to the rapacity of any State in whose territory it might be, or over which it might happen to be carried." It is not an objection that a foreign corporation, after due organization at home, commenced its foreign business first ;^ nor that such business was authorized at a meeting of directors held away from its domicile.* A corporation kept an office and held its annual meetings in the State creating it ; but most if not all of the business meetings of the directors were held in another State, the organizers of the corporation being disqualified by the laws of the latter State from conducting it, and it was incorporated in the first-mentioned State for that reason. It was held that the courts of the last-mentioned State would recognize it as a corporation of the State which chartered it.' § 151. Amalgamation. — This term, as applied to corpora- tions, though not usually employed in this country, is used in England where two companies, having agreed to aban- don their respective articles of association, and to register themselves under new articles as one body, a new company is formed by their coalition.* The word "amalgamate" is ' Hanna v. International Petroleum ' Second Nat. Bank of Cincinnati v. Co., 23 Ohio St. 622 ; Newburg Petro- Lovell, 2 Cin. 397. leum Co. V. Weare, 27 Id. 343. * In re Bank of Hindustan, 2 H. & M. " Smith V. Alvord, 63 Barb. 415. 666. 556 RIGHTS, POWERS, AND DISABILITIES §151 sometimes made to signify various operations in themselves widely different, which more or less completely work a transfer of corporate affairs from one corporation to an- other, and a merger of the former body in the latter.^ The operation when fully carried out involves : ist. A destruc- tion of the entity of the original corporations ; 2d. A trans- fer of corporate rights and liabilities ; 3d. A transmutation of the members of the former corporation into members of the latter ; a novation of the rights of creditors of the cor- poration which is merged in the other, so that the latter corporation is substituted as debtor.* Where the proceed- ings aim at a transfer of franchise, or special privileges, they cannot be carried out without express legislative sanc- tion.^ It is doubtful whether shareholders can, by any pro- vision in the constating instruments, against their wish be made members of another corporation;* but it may be done with the assent or acquiescence of all of the members whenever there is power to that effect, express or implied.® When the constating instruments expressly provide for amalgamation, the provisions must be strictly followed, as otherwise any member may refuse his assent.* In case a corporation is not able directly to merge itself with an- other, the method adopted for accomplishing substantially the same thing, is by transferring its property, funds, rights. ' Green's Brice's Ultra Vires, 2d Am. M. & G. 914 ; Rhymney R.R. Co. v. Ed. 606. Taff Vale R.R. Co., 30 L. J. Ch. "^ Ibid. 482. ' Northern R.R. Co. v. Eastern Coun- ^ Bagshaw, ex parte, L. R. 4, Eq. 341 ; ties R.R. Co., 21 L. J. 837; Winch v. Clinch v. Financial Corp., L. R. 4, Ch. Birkenhead, etc., R.R. Co., 7 Rail. Cas. 1 17 ; Bank of Hindustan v. Alison, L. 334 ; Beman & Rufford, i Sim. N. S. R. 6, C. P. 54, 222 ; In re London & 550; London & Southwestern R.R. Northern Ins. Corp., L. R. 4, Ch. 682. Co. V. Southeastern R.R. Co., 8 Ex. ' Hort's Case, i Ch. D. 307; Har- 584 ; West London R.R. Co. v. Lon- man's Case, lb. 326 ; Cocker's Case, 3 don & Northwestern R.R. Co., II C.B. Id. i; Rivington's Case, lb. 10; Do- 327 ; London, Brighton, etc., R.R. man's Case, lb. 21. Co. V. London & Southwestern R.R. " Bagshaw, ex parte, supra ; In re Co., 28 L. J. Ch. 521. See Johnson v. Irrigation Co. of France, L. R. 6, Ch. Shrewsbury, etc., R.R. Co., 3 De G. 176. § 152 OF CORPORATIONS IN GENERAL. 557 and liabilities to the other contracting corporation, and then voluntarily dissolving itself, which, although not a union of one corporation with another, is a sufficient amal- gamation for all practical purposes.^ " Arrangements of this kind being in substance arrangements for winding up or otherwise dissolving some one or more of the companies participating therein, are manifestly matters of internal government only. Consequently their validity, and the ex- tent and circumstances to and under which they are bind- ing upon recalcitrant members, will be determined by the constating instruments. Probably, in every case, express powers in this behalf are necessary in order that a corpo- ration may itself enter into such arrangements, and, a for- tiori, in order to bind dissentients."* A corporation may amalgamate so as to transfer its assets without the consent of its creditors. But a new corporation cannot be substi- tuted as debtor against the will of a creditor. There must be an agreement, express or implied, by which the creditor gives up his rights against his debtor, and accepts instead the responsibility of the new debtor.^ § 152. Meaning of consolidation. — Although it is difficult to give a precise and comprehensive definition of this term, yet it may be stated generally that by it is intended the formation of a corporate body out of two or more corpora- tions, or the union of the members of several similarly con- stituted companies in a single company, and an incorpora- tion of the latter with the combined capital, rights, privi- leges, and franchises of all of them. It has been said to be a dissolution of certain corporations, and at the same in- stant the creation of a new corporation, with property, lia- bilities, and stockholders derived from those passing out of '/« re United Ports & Genl. Ins. '/« r^ Manchester, etc., Loan Assoc, Co., L. R. 8, Ch. 1002 ; Perrett's Case, L. R. 9, Eq. 643 ; In re Family Endow- L. R. 15, Eq. 250, ment Assoc, L. R. 5, Ch. 118; In re ' Green's Brice's Ultra Vires, 2 Am. National Provident Life Ass. Co., L. R. Ed. 614. 9, Eq. 306. 558 RIGHTS, POWERS, AND DISABILITIES § 152 existence.^ " A surrender of the old charter by the com- panies, the acceptance thereof by the legislature, and the formation of a new company out of such portions of the old as enter into the new."** The foregoing would not, however, be applicable to all cases. Where several rail- road companies were " merged in and constituted one body corporate" under the name of one of them, and all were continued in existence, the court treated it as a consolida- tion.^ A new corporation may be as readily created by the union of two or more corporations as by the union of in- dividuals, and its powers and privileges may as well be designated by reference to the charters of other companies, as by special enumeration. The fact that the powers, privileges, and immunities possessed by the original corpora- tions are conferred upon the new one, so far as they can be exercised and enjoyed by it, will not affect its character as a distinct body.* Where a railroad company was author- ized by an act of the legislature to transfer and assign, by a vote of a majority in interest of the stockholders, all its effects and assets, rights and privileges, and all the work done in the construction of the road, to the North Mis- souri Railroad Company, and, upon such transfer and ac- ceptance, the company was " to cease to have corporate ' McMahan v. Morrison, 16 Ind. 172. Howard, 13 How. 307. Strictly speak- 'Lauman V.Lebanon ValleyR.R. Co., ing, amerger of one corporation into 30 Pa. St. 42 ; State v. Bailey, 16 Ind. another, " is a dissolution, destroying 46. " Consolidation would be inappli- the actual identity of both, while the cable to a union of two or more com- legal identity of one of them is pre- panies in such a way that one of the served. As where a life estate is original corporations only was con- merged in a fee simple, one being de- tinued in existence, while the others stroyed and the other enlarged by the were merged or absorbed in it. An ab- operation." Lowrie, C. J., in Lau- sorption of one corporation by another man v. Lebanon Valley R.R. Co., 30 would, according to some of the de- Pa. St. 42. cisions, be an amalgamation in Eng- * Railroad Co. v. Maine, 96 U. S. land ; but it would not be consolidation 499. See New Orleans, etc., Co. v. here." Green's Brice's Ultra Vires, 2d Louisiana, etc., Co., n Fed. Rep. 277; Am. Ed. 631, note. Compagnie P'rancaise, etc., v. Western ' Phila., Wilm. & Bait. R.R. Co. v. Union Tel. Co., lb. 842. §152 OF CORPORATIONS IN GENERAL. 559 existence," and the road was to be thenceforth styled the " West Branch of the North Missouri Railroad," the franchises becoming completely vested in the North Mis- souri Railroad Company ; but the accounts and business of the West Branch were required to be kept separate and distinct from the main line, so that one road- should not be liable for the debts of the other, it was held not a mere amalgamation or consolidation of the two corporations into one, but the first corporation was extinguished, and the second one only continued to exist.-' Whether the consolidation works a dissolution of the former corporations in a given case, will of course depend upon the legislative intent manifested in the act under which the consolidation takes place. It was held in a case in the Supreme Court of the United States that the two companies there mentioned were not dissolved by their consolidation ; that the consolidated companies continued to possess all the rights and immunities which were con- ferred upon each company by its original charter ; and that, as one of the companies was exempt from liability to any greater tax than one-half of one per cent, of its net an- nual income, the exemption continued after its consolida- tion. Strong, J., said : " If in the statute there be no words of grant of corporate powers, it is difficult to see how a new corporation is created. If it is, it must be by implication, and it is an unbending rule that a grant of corporate existence is never implied. In the construction of a statute every presumption is against it. True, it is where three corporations had consolidated under an act of the legislature authorizing them to merge and consolidate their stock and make one joint company, it was said that 1 Powell V. North Mo. R.R. Co., 42 Co., 23 Ohio St. 168 ; Cook v. Detroit, Mo. 63. See Gilman v. Sheboygan, etc., R.R. Co., 43 Mich. 349 ; Daniels - etc., R.R. Co., 37 Wis. 317 ; Menasha v. St. Louis, etc., R.R. Co., 62 Mo. 43 ; V. Milwaukee, etc., R.R. Co., 52 Id. Western R.R. Co. v. Davis, 66 Ala. 414; Campbell v. Marietta, etc., R.R. 578. 560 RIGHTS, POWERS, AND DISABILITIES § 1 52 the effect of the act, and the terms of consolidation under it, was a dissolution of the three corporations and at the same instant the creation of a new corporation, with prop- erty, liabilities, and stockholders, derived from those then passing out of existence. And this language was quoted approvingly by this court. But in neither case was an as- sertion of this doctrine necessary to the decision made. And indeed we find no case decided in this country where the question directly arose or was necessarily determined. There are numerous cases where a consolidated company has been held liable for the debts of the old companies, and where it has been held to possess the rights of the old companies ; but this does not necessarily imply a surrender of all the old charters. So there are cases where it has been held that a consolidation cannot be consummated against the consent of a stockholder in one of the com- panies unless his stock is purchased. This, however, may be doubted as applicable to all companies ; but, if univer- sally true, it leaves open the question whether the consoli- dation is the creation of a new company. We are not called upon, however, now to determine whether a con- solidation effected under a statute making no express grant of a new corporate existence, may not in some cases work a dissolution of the existing corporations, and at the same time the creation of a new company It is true the act speaks of union and consolidation. It authorizes the two companies to unite and consoHdate their stock and all their rights, privileges, immunities, property, and fran- chises ; but it prescribes the manner in which this may be done, and its effect. It is to be done under the name and charter of the Central Railroad and Banking Company ; that is, the union is to be under that charter, not under a new charter of a company bearing that name." ^ An act ' Central R.R. & Banking Co. v. v. Morrison, 16 Ind. 172, and Clear- Georgia, 92 U. S. 665, reversing S. C. water v. Meredith, i Wall, 40. 54 Ga. 401, and referring to McMahan §1 152 OF CORPORATIONS IN GENERAL. 56 1 of Ohio authorized railroad companies to consolidate \vith similar companies of other States, and provided that such consolidated companies respectively should be deemed one corporation, possessing within the State all the rights, privileges, and franchises, and be subject to all the restric- tions, liabilities, and duties of corporations of the State ; that the old stock should be extinguished, a board of directors of the consolidated company be elected, and a new stock be created and issued to the parties entitled to it, and that those refusing to receive the new stock should be paid the highest market price for their old stock. It was held that when the consolidation was completed, the old companies were destroyed, a new one created, and powers granted it in all respects as if the old companies had never existed.^ In 1863 an act was passed by the legis- lature of Georgia empowering two railroad companies of the State to consolidate their stocks upon such terms as might be agreed upon by the directors, and be ratified by a rnajority of the stockholders, and that when so consoli- dated, they should be known as the Atlantic and Gulf Railroad Company. It was held that the intention of the legislature was the creation of a new corporation, and not a mere alliance or confederation of the two previously ex- isting companies.^ ' Shields v. Ohio, 95 U. S. 319, affi'g connected or continuous lines; or to S. C. 26 Ohio St. 86. make such other arrangements or con- ^ Railroad Co. v. Georgia, 98 U. S. nection or consolidation of business 359. The act of New Jersey of 1870, with any such company or companies providing that it should be lawful for by agreement, contract, lease, or other- the united railroad and canal com- wise, as to the directors of said united panics of that State, "by and with the companies shall seem expedient "; and consent of two-thirds of the stock- further providing that " any stockholder holders of each, to consolidate their who should be dissatisfied with such respective capital stocks ; or to con- arrangement and should give notice of solidate with any other railroad or his dissatisfaction within three months canal company or companies in this after it was made, should be paid the State or otherwise, with which they are full value of his stock tq be approved or may be identified in interest, or of by commissioners appointed for the whose works shall form, with their own, purpose," gave the united companies VOL. I.— 36 562 RIGHTS, POWERS, AND DISABILITIES § 1 53 § 153. Power to consolidate. — A consideration of this sub- ject is to be regarded in two aspects, both of which involve questions of contract: ist, as between the State and the corporations desiring to become consolidated ; and 2d, as between the corporations and their members. Since cor- porations derive not only their existence, but all of their powers from the legislature, it is obvious that a change so fundamental as a union of several corporations under one head, constituting a body with new relations, rights, and duties, cannot be made from any implied authority, but only by the express sanction of law ; ^ and that the pro- visions of the act authorizing the consolidation must be carefully observed in respect to the steps required to be taken for the accomplishment of the result.^ Where a statute gives a corporation power to form a consolidation with any other, whatever other corporation it selects for a union, and finds willing to join it, may unite with it although not named in the statute.^ The consolidation may be au- thorized either by the charters of the corporations, by general laws, by an act passed subsequent to the incorpora- tion of the several companies, or by legislative recognition power without the consent of all of the doning the work, must be taken with stockholders to sell, lease, or otherwise the qualification annexed to it in the dispose of their works, or to abandon former part of the opinion, p. 183 ; that them. Black v. Del. & Raritan Canal is, where they become members of a Co., 22 N. J. Eq. (7 C. E. Green) 130. corporation for definite purposes speci- Zabriskie, Chancellor, said : " There fied in the charter, and for a time set- is no case that holds that a majority of tied by it." corporators, where a time is not speci- ' Pearce v. Madison, etc., R.R. Co., fied for which the enterprise must be 21 How. 441 ; Fisher v. Evansville, continued, may not abandon the enter- etc., R.R. Co., 7 Ind. 407 ; 'Clearwater prise and sell out the property of the v. Meredith, i Wall. 25 ; Aspinwall v. company. The dictum of Parker, Ohio & Miss. R.R. Co., 20 Ind. 492. Master, in ICean v. Johnston, i Stockt. ^ Mansfield, etc., R.R. Co. v. Drinker, 413, is the only authority which I find 30 Mich. 124; Peninsular R.R. Co. v. in support of the doctrine. The die- Tharp, 28 Id. 506 ; Tuttle v. Mich. Air tum, in my own opinion, in Zabriskie v. Line R.R. Co., 35 Id. 247. Hack. & N. Y. R.R. Co., 3 C. E. Green, » Matter of Prospect Park and Coney 193, that a single stockholder can pre- Island R.R. Co., 67 N. Y. 371. vent all others from changing or aban- § 153 OF CORPORATIONS IN GENERAL. 563 and ratification of the proceeding.^ In most of the States the consolidation of railroad companies owning continuous lines is provided for by general statutes. But the legisla- ture itself cannot authorize a consolidation after the grant- ing of charters, or the incorporation of the companies under general laws which are silent on the subject, except through the exercise of the right of eminent domain, without the consent of all of the members of the original corporations, since that would change the nature and purposes of their organization by the destruction of one private contract and the compulsory creation of another.* " A subscription is always presumed to have been in view of the main design of the corporation, and of the arrangements made for its accomplishment. A radical change in the organization or purposes of the company may, therefore, take away the motive which induced the subscription, as well as affect injuriously the consideration of the contract. For this rea- son, it is held that such a change exonerates a subscriber from liability for his subscription ; or, if the contract has been executed, justifies a stockholder in resorting to a court of equity to restrain the company from applying the funds of the original organization to any project not contem- plated by it."^ Again, it was said : " The proposition now considered is, whether, after shareholders have entered into a contract among themselves under legislative sanction, and expended their money in the execution of the plan mutually agreed upon, the scheme can be radically changed by the majority by virtue of a legislative enactment, and a ' Bishop V. Brainerd, 28 Conn. 289; Stockt.) 401 ; Terhune v. Midland R.R. Mead v. N. Y., Housatonic, etc., R.R. Co., 38 Id. 423; Mowry v. Ind. & Cin. Co., 45 Id. 199 ; Mitchell v. Deeds, 49 R.R. Co., 4 Biss. 78 ; Lauman v. Leb- 111. 416 ; McAuley v. Columbus, etc., anon Valley R.R. Co., 30 Pa. St. 46 ; R.R. Co., 83 Id. 348. See New Orleans New Orleans, etc., R.R. Co. v. Harris, Gas Co. V. Louisiana Light Co., 115 U. 27 Miss. 517 ; Shelbyville, etc., Turnp. S. 650. Co. V. Barnes, 42 Ind. 498. 'Clearwater v. Meredith, supra; 'Nugent v. Supervisors, 19 Wall. Kean v. Johnson, 9 N. J. Eq. (i 241. 564 RIGHTS, POWERS, AND DISABILITIES § 1 54 dissentient stockholder compelled to engage in a new and totally different undertaking, without impairing the obliga- tion of his contract with his associates and with the State. That this cannot be done, is as well supported by every consideration of justice and right, as it is firmly imbedded in judicial decision." ^ Where the charter provides for con- solidation, or one of the purposes for which the company was incorporated was to consolidate, so that it must be pre- sumed that subscribers might have reasonably anticipated such a result, or where, though the act for consolidation is passed after the corporation is created, it is previous to sub- scription, it cannot be said that any motive for the sub- scription has been taken away, or that the consideration for it has failed, and shareholders are precluded from ob- jecting.** If the language of the act authorizing the consolidation be general, without specifying the means or concurrence by which the result is to be obtained, it may be accomplished' in the usual mode of corporate action, that is, by a vote of a majority of the members.^ § 154. Effect of consolidation in general. — The most ob- vious effect of the change is the formation of a new corpo- rate body composed of the elements of the old, and deriving its powers, rights, and privileges from the act which author- izes the consolidation. The franchises of the new body may be specified in the act, or, as is frequently the case, the act ' Black V. Del. & Rar. Canal Co., 24 the company with any other unless N. J. Eq. (9 C. E. Green) 455. sanctioned by a majority of the stock- '' Nugent V. Supervisors, supra ; Wil- holders, provided for an amendment of son V. Salamanca, 99 U. S. 499 ; Green the articles by a vote of two-thirds of County V. Conness, 109 Id. 104 ; Hanna the executive committee and a majority V. Cincinnati, etc., R.R Co., 20 Ind. of the trustees. It was held that the 30 ; Gardner v. Hamilton Ins. Co.; 33 stockholders could not be deprived by N. Y.421; Hamilton Ins. Co. v. Ho- an amendment of the right to pass upon bart, 2 Gray, 543 ; Fee v. New Orleans the question of consolidation. Blatch- Gas Light Co., 35 La. Ann. 413. The ford v. Ross, 54 Barb. 42. articles of association of a company, ' Dimpfel v. Ohio & Miss. R.R. Co., which prohibited the consolidation ' of 8 Reporter, 641. § 154 OF CORPORATIONS IN GENERAL. 565 may refer to the charters of the original corporations, and the consolidated company be clothed with their rights and privileges so far as may be necessary to carry out the pur- poses of the organization. The act of consolidation would be an act of incorporation within a provision of the consti- tution, or a general law by which the State reserved the right to amend or repeal all private charters thereafter granted.^ As the consolidated body acquires its power by creation and grant, its nature and the extent of its authority, and whether the old companies lose their identity, or continue in existence, will depend, as already stated, of course upon the language and intent of the statute. Unless restricted by the law under which, the consolidation takes place, the new corporation succeeds to and possesses the franchises, rights, privileges, and immunities of the several companies from which it is formed.* An act which provides that any two or more railroad companies in the State owning rail- roads constructed in whole or in part, which, when com- pleted and connected, will form in the whole or in the main one continuous line of railroad, may consolidate and form one company, owning and controlling such continuous line of road with all the powers, rights, privileges, and im- munities, and subject to all the obligations and liabilities to the State, or otherwise, which belonged to or rested upon either of the companies making such consolidation, contem- plates the actual dissolution of the old corporations, and the creation of a new one to take their place.^ ' Aspinwall v. County of Daviess, 22 which are essential to the operations How. 364 ; Shields v. Ohio, 95 U.S. 319 ; of the corporation, and without which Railroad Co.v. Maine, 96 Id. 499 ; Rail- its roads and works would be of little road Co. v. Georgia, 98 Id. 359 ; Atlanta, value ; such as the franchise to run etc., R.R. Co. V. State, 63 Ga. 483 ; cars', to take tolls, appropriate earth Powell V. North Mo.R.R.Co., 42 Mo. 63. and gravel for the bed of its road, or ^Zimmer V. State, 30 Ark. 677; Chi- water for its engines, and the like." cago, etc., R.R. Co. v. Moffit, 75 111. Morgan v. Louisiana, 93 U. S. 217. 524. " The franchises of a railroad ' Pullman Car Co. v. Missouri Pacific corporation are rights or privileges R.R. Co., 115 U. S. 587. 566 RIGHTS, POWERS, AND DISABILITIES § 1 54 While the consolidated company may use and enjoy the property transferred to it substantially as it was used and enjoyed by the original companies, and must necessarily do so, yet a special privilege attached to the property of one of the companies would be confined to it, and could not be made to embrace the whole property. Several rail- road companies forming a continuous line, chartered re- spectively by the States of Maryland, Delaware, and Penn- sylvania, one of which was exempt from certain taxation, were consolidated ; and it was claimed by the consolidated company that this exemption was transferred to it, and affected all parts of the line. The act authorizing the union of the several companies provided that the " said body corporate so formed shall be entitled to all the powers, privileges, and advantages then belonging to the former corporations." It was held that the exemption did not extend to a portion of the line to which it had not ex- tended before the union ; that the meaning of the law was that whatever privileges and advantages either of the for- mer companies possessed, should in like manner be held and possessed by the new company to the extent of the road which the former companies had respectively occupied before the union ; that it should stand in their place and possess the power, rights, and privileges they had severally enjoyed in the portions of the road which had previously belonged to them.^ The legislature of Arkansas passed an act in 1853 to incorporate the Cairo and Fulton Railroad Company, with power to construct and operate a railroad from the Mississippi River to the Texas boundary line, near Fulton, in Arkansas. Section ten of the act provided that the company should have power to consolidate with ' ' Phila., Wilm. & Bait. R.R. Co. v. v. N. Y., Housatonic, etc., R.R. Co., 45 Maryland, 10 How. 376, approved and Conn. 197 ; South Carolina R.R. Co. v. adopted in Tomlinson v. Branch, ij Blake, 9 Rich. 233; Fisher v. N. Y. & Wall. 460, and Charleston v. Branch, Hudson River R.R. Co., 46 N. Y. 644 ; lb. 470, s. c. 92 U. S. 677. See Meade Zimmer v. State, 30 Ark. 680. § 154 OF CORPORATIONS IN GENERAL. 567 certain other companies, and section eleven declared that the capital stock and dividends of the company should be forever exempt from taxation, and the road, fixtures, and appurtenances be so exempt until after it paid an interest of not less than ten per cent, per annum. At the time of the passing of this act, the constitution of the State con- tained no restriction upon the power of the legislature to grant such an exemption from taxation ; but the State constitution which took effect in 1868, and was in force until October, 1874, provided that all laws conferring cor- porate powers might from time to time be altered or re- pealed ; that the general assembly should not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, should not equally belong to all citi- zens, and that the property of corporations then existing or afterward created should forever be subject to taxation the same as the property of individuals. An act was passed in July, 1868, empowering any railroad company then char- tered under existing laws, or which might afterward become incorporated, to purchase and hold any connecting railroad, and operate the same, or to consolidate their companies ; but that when such purchase was made, or consolidation effected, the said company should be entitled to all the benefits, rights, franchises, lands and tenements, and prop- erty of every description belonging to the road or roads so sold or consolidated, and should be liable to all the pains and penalties imposed by their respective charters. In May, 1874, the Cairo and Fulton Railroad Company was consolidated with the St. Louis and Iron Mountain Rail- road Company, a corporation of Missouri, resulting in the formation of the St. Louis, Iron Mountain, and Southern Railroad Company. The consolidated company, claiming that it was entitled, under the charter of the Cairo and Fulton Railroad Company, to the exemption from taxation contained in it, filed a bill in equity against the railroad 568 RIGHTS, POWERS, AND DISABILITIES § 154 commissioners of the State to restrain them from proceed- ing to assess for taxation the property of the company in Arkansas. The main point urged in argument in support of the claim to the exemption from taxation, was that the consolidation of the Cairo and Fulton Railroad Company with the St. Louis and Iron Mountain Railroad Company, was the exercise of a right, on the part of the former, plainly and expressly conferred by the tenth section of its charter, and not in anywise inconsistent with the continued force of the exemption contained in the eleventh section, which referred as well to the company when it had become a constituent of a consolidated company under the previous section, as to the same company, in its original form and organization. The Supreme Court of the United States, in affirming the judgment of the court below, dismissing the bill, said : " This new corporation did not come into existence until May 4, 1874. It came into existence as a corporation of the State of Arkansas, in pursuance of the constitution and laws, and subject in all respects to their restrictions and limitations. Among these was that one which declared that 'the property of corporations, now existing or hereafter created, shall forever be subject to taxation, the same as property of individuals.' This ren- dered it impossible in law for the consolidated corporation to receive, by transfer, from the Cairo and Fulton Railroad Company, or otherwise, the exemption sought to be en- forced in this suit. It is not an answer to this conclusion to say that the act of consolidation having been made in pursuance of the tenth section of the charter of the Cairo and Fulton Railroad Company, was the exercise by that company of a right secured to it by contract which no sub- sequent constitution or law of the State of Arkansas could impair or defeat. For what was the contract ? Construed in the most Hberal spirit in favor of the company, it cannot be extended beyond a stipulation on the part of the State, § 154 OF CORPORATIONS IN GENERAL. 569 that the Cairo and Fulton Railroad Company may at any time thereafter, by consolidation with any other railroad company, form and become a new corporation, with such powers and privileges as at the time when the offer is ac- cepted and acted upon it may be within the power of the State to confer, and lawful for the new corporation to ac- cept. If acted upon before the law was changed, it might well be that all the powers and privileges originally con- ferred in the charter of the Cairo and Fulton Railroad Company, including the exemption in question, would have vested in the new company. But, as it was not accepted and acted upon until a change in the organic law of the State forbade the creation of corporations capable of hold- ing property exempt from taxation, it must be presumed that when the original company entered into the consoli- dation, it did so in full view of the existing law, and with the intention of forming a new corporation, such as the constitution and laws at that time permitted." ^ A power to subscribe to the stock of a corporation may be exercised in respect to the body formed by its subse- quent union with other corporations. Thus where a county was authorized by law to subscribe for shares in a railroad company which was afterward consolidated with another company, it was held that the coutity was entitled to sub- scribe for shares in the consolidated company in place of ' St. Louis, etc., R.R. Co. v. Berry, ward. Contracts thereafter made to 113 U. S. 465. See Louisville, etc., get the control of other roads would be R.R. Co. V. Palmes, 109 U. S. 244 ; the contracts of the new consolidated Memphis, etc.R.R.Co.v.R.R.Commrs., company, and not of those on the dis- 112 Id. 609; Tennessee v. Whitworth, solution of which that company came 117 Id. 129. An agreement made by into existence. Pullman Car Co. v. one of several railroad companies be-- Missouri Pacific R.R. Co., 115 U.S. fore consolidation in reference to its 587. Where a railroad company, after road and to all roads which it then giving promissory notes, is consolidated controlled or might thereafter control, with another company under a new does not affect roads not controlled by name, it may be sued by the new name, it at the time of the consolidation, but Columbus, etc., R.R. Co. v. Skidmore; acquired by the new company after- 69 111. 566. 570 RIGHTS, POWERS, AND DISABILITIES § 1 55 the subscription originally intended.^ But this could only be done when the power clearly embraced the alternative, as the two cases might present wholly different considera- tions. Where, therefore, a county was authorized to sub- scribe to a corporation and issue bonds, if sanctioned by a vote of two-thirds of the voters, and after such vote con- solidation was effected, it was held that bonds issued without a new vote were void.* Where, however, the legislature of a State by the same act which conferred power on a city to lend its credit to each of two railroad companies, also empowered them to consolidate their roads, it was held that the power of the city might be exercised after such consolidation as effectually as before, as otherwise there would have been some limitation of the power.^ § 155. Effect of consolidation in respect to creditors. — Debts incurred by a corporation cannot be released or trans- ferred by legislative enactment, as this would impair the obligation of contracts existing between individuals and the corporation.* Where, therefore, it was agreed to loan ' Scotland v. Thomas, 94 U. S. 682. Where a railroad company is created 2 Harshman v. Bates Co., 92 U. S. with special powers, its deed of its 569. See Mansfield, etc., R.R. Co. v. property and franchises, though under Drinker, 30 Mich. 124. Where several the corporate seal, does not bind it if railroad companies are consolidated, it appears by its charter, or by reason- the corporation thus formed cannot de- able inference therefrom, that the deed clare a dividend of the earnings of one is ultra vires, notwithstanding the of the old companies made before the grantee is another corporation which consolidation ; or declare dividends of is authorized, in lieu of constructing a the earnings of the consolidated corpo- railroad, to purchase any such road ration on the stock of such old com- with all the rights, powers, and fran- pany. Chase v. Vanderbilt, 37 N. Y. chises connected therewith ; it being Super. Ct. 334. Where each of two necessary, to constitute a valid sale, railroad companies had the right to not only that the purchaser shall be use a patented axle-box, and they were competent to take, but also that the afterward consolidated, it was held vendor shall be clothed with the legal that the consolidated company was power and capacity to sell and convey entitled to avail itself of the benefit of the title. State v. Consolidation Coal the invention. Lightner v. Boston & Co., 46 Md. i. Albany R.R. Co., i Lowell, 338. * Bruffet v. Gt. Western R.R. Co., 25 8 Robertson v. Rockford, 21 111. 451. 111. 353. § 155 OF CORPORATIONS IN GENERAL. 57 I a sum of money to a railroad company to be secured by the bonds of the company which was afterward consoli- dated with other companies, it was held that a suit could not be maintained on the contract by the consolidated com- pany upon a tender of its bonds. The court said : " The defendant had a right to stipulate for the bonds of a par- ticular company, and it is clear he cannot be required to accept, in lieu of the promised consideration, the obligation of any other company, no matter how much the latter may exceed in value the former. There is no legal mode in which the contract of a man can be improved for him against his consent. As the bond of the contracting com- pany formed the entire consideration for the promise of the defendant, if such company have put it out of its power to render such bond to the defendant, it has destroyed this contract by its own voluntary act, and has in consequence discharged the defendant The consolidated compa- nies, in the nature of things, cannot be the same as one of their constituents. Such a company has larger purposes, wider powers, and heavier responsibilities than those in- herent in either of its component parts." ^ The consent of creditors to the consolidation is not nec- essary, their rights not being affected by it ; though pro- vision is frequently made in the act authorizing the consol- idation for the payment of the claims of creditors who are not entitled to look to the new body under their original contracts, unless it has assumed the obligations.^ An act for the consolidation of three railroad companies provided that all of the property belonging to each of the companies thus united should become vested in the new corporation 1 N. J. Midland R.R. Co. v. Strait, 35 Western Union R.R. Co. v. Smith, 75 N. J. (6 Vroom) 322. III. 496. See Houston, etc., R.R. Co. v. ^ Prouty V. Lake Shore, etc., R.R. Co., Shirley, 54 Texas, 125 ; Warren v. Mo- 52 N. Y. 363 ; Selma, Rome, etc., R.R. bile, etc., R.R. Co., 49 Ala. 582 ; Welsh Co. V. Harbin, 40 Ga. 706 ; Shaw v. v. First Division of the St. Paul, etc., Norfolk Co. R.R. Co., 16 Gray, 407 ; R.R. Co., 25 Minn. 314. 572 RIGHTS, POWERS, AND DISABILITIES § 1 55 as its own, subject to the liens and incumbrances then ex- isting upon it, and to the rights of their respective creditors to resort to it as a fund from which they might derive pay- ment of their claims ; that " all the franchises, property, powers, and privileges now enjoyed by, and all 'of the re- strictions, liabilities, and obligations imposed upon said corporations by virtue of their respective charters, shall ap- pertain to said united corporations, in the same manner as if the same had been contained in or acquired under an original charter." It was held that there was not imposed upon the new corporation the obligation to pay the debts of the former corporations, nor was it subject to any liability to their creditors ; and that the new company might pur- chase outstanding bonds of one of the old companies and hold them like other creditors, or pay and extinguish them for the relief and discharge of the property.^ If nothing to the contrary is indicated, the liabilities of each company when acting separately exist as before in the hands of the new organization,^ liens upon the property of the several corporations continuing after their consolida- tion. According to some of the decisions, there is an im- plied assumption on the part of the new corporation of all of the liabilities.^ But this would not necessarily follow. ' Shaw V. Norfolk Co. R.R. Co., su- dered against the consoHdated com- pra. See Indianola R.R. Co. v. Fryer, pany without making it a party. Selma, 56 Texas, 609 ; People v. Empire Mu. etc., R.R. Co. v. Harbin, supra. Life Ins. Co., 92 N. Y. 105. An act ' State v. Greene County, 54 Mo. for the consolidation of several railroad 540 ; Scotland v. Thomas, supra ; companies provided that each company Chesapeake & Ohio R.R. Co. v. Vir- should continue liable to third persons ginia, lb. 718; County of Henry v. for obligations incurred by it previous Nicolay, 95 U. S. 619 ; Fisher v. N. Y. to the consolidation. The consolidated Centr., etc., R.R. Co., 46 N. Y. 644; company, however, as an additional Peoria & Rock Island R.R. Co. v. Coal security to creditors, undertook and Valley Mining Co., 68 111. 489. agreed to pay the debts of each of the ' Indianapolis, etc., R.R. Co. v. Jones, old companies. In a suit which was 29 Ind. 465 ; Columbus, etc., R.R. Co. pending against one of the companies v. Powell, 40 Id. 37 ; Montgomery & previous to the consolidation, it was West Point R.R. Co. v. Boring, 51 Ga. held that a judgment could not be ren- 582; Thompson v. Abbott, 61 Mo. 176; § 156 OF CORPORATIONS IN GENERAL. 573 Upon the consolidation under authority of statute of two or more solvent corporations, the business of the old corpora- tions is not wound up, nor their property sequestrated or dis- tributed, but the object of the consolidation and of the stat- utes which permit it, is to continue the business of the old corporations. Whether the old corporations are dissolved into the new corporation, or are continued in existence un- der a new name with new powers, and whether in either case the consolidated company takes the property of each of the old corporations charged with a lien for the payment of the debts of the corporation, depend upon the terms of the agreement of consolidation, and of the statutes under which the consolidation is effected.^ § 156. Consolidation of corporations created by diiiferent States. — There is no reason, technical or otherwise, why several States may not, by competent legislation, combine two or more pre-existing corporations which are respect- ively located therein, into a single organization, or why one State may not make a corporation of another State a cor- poration of its own, in relation to property within its limits, particularly when the public interest will thereby be promoted ; and this power is frequently exercised in the case of railroad companies owning portions of a continuous line. Although the body thus formed is a new corporation, at least de facto, and succeeds to the rights and duties of Paine v. Lake Erie, etc., R.R. Co., 31 idation of a corporation with three Ind. 383 ; Rome, etc., R.R. Co. v. On- others, under a law which continues tario, etc., R.R. Co., 16 Hun, 445 ; Mil- all its liabilities, is not such a dissolu- ler V. Lancaster, 5 Coldw. 514. Where tion of the corporation as abates an a railroad company purchases at fore- action commenced before the consol- closure sale the property and franchises idation is effected. Bait. & Susque- of another company for the purpose of hannah R.R. Co. v. Musselman, 2 operating the same, it will only be Grant's Cas. 348 ; Shackleford v. Miss, bound by such contracts of the former Centr. R.R. Co., 52 Miss. 159; East company as are a lien upon the property Tenn., etc., R.R. Co. v. Evans, 6 and franchises. City of Menasha v. Heisk. Tenn. 607. Milwaukee & Northern R.R. Co., 52 ' Wabash, etc., R.R. Co. v. Ham, 114 Wis. 414. An act of union or consol- U. S. 587. 574 RIGHTS, POWERS, AND DISABILITIES §156 the several corporations,^ yet its status is that of an asso- ciation incorporated in and by each of the States ; and when acting as a corporation in either of the States, it does so under the charter of that State, the legislation of the other State having no operation beyond its territorial limits.* In other words, it is a domestic legal entity to the extent of the power derived from the State under which it acts, and a foreign corporation in respect to the other sources of its existence ; ^ the corporation existing in both ' Bishop V. Brainerd, 28 Conn. 289 ; Atlanta, etc., R.R. Co. v. State, 63 Ga. 483 ; Mead v. N. Y., Housatonic & Northern R.R. Co., 45 Conn. 199. Where a corporation was created by the concurrent acts of the legislatures of two States, it was held capable of acting as one body in either State, and liable to be treated as such. State v. Metz, 32 N. J. 199. In another case, the court said : " A very grave ques- tion is presented in the argument as to the power of two States to create one corporation. It is claimed that to maintain this action, the consolidation must have resulted in the formation of one company, and that this is simply impossible. It is admitted by the counsel for the appellants that the ef- fect of the consolidation might be to create two corporations with the same name and stockholders, aunity of stock and interest. The suit in our view can well be maintained under either view." Paine v. Lake Erie & Louisville R.R. Co., 31 Ind. 283. ^Quincy Bridge Co. v. Adams County, 88 111. 65. When two corpo- rations created in different States con- solidate, though for most purposes they are not thereafter to be separately re- garded, yet in each State the consoli- dated company is deemed to stand in the place of the corporation to which it there succeeded, and consequently to be a citizen of that State for many pur- poses, while in the other State it would stand in the place of the other corpo- ration in respect to citizenship there. Chicago, etc., R.R. Co. v. Auditor- General, 53 Mich. 79, per Cooley, Ch. J. In Massachusetts it is provided by statute (of 1871, ch. 389), that every railroad corporation, whether consoli- dated with roads in other States or maintaining a road wholly within the limits of the State, must procure the authority of the State before it can in- crease its capital stock or extend its line. Attorney-General v. Boston & Me. R.R. Co., 109 Mass. 99. 3 State V. Northern Cent. R.R. Co., 18 Md. 193; Bait. & Ohio R.R. Co. v. Glenn, 28 Id. 287 ; Chicago, etc., R.R. Co. v. Auditor-General, 53 Mich. 79 ; Sage v. Lake Shore, etc., R.R. Co., 70 N. Y. 220 ; Sprague v. Hartford R.R. Co., 5 R. I. 233 ; Ohio & Miss. R.R. Co. v. Wheeler, i Black. 286 ; McGregor v. Erie R.R. Co., 35 N. J. (6 Vroom) 89 ; Binney's Case, 2 Bland Ch. 89. An act of Virginia authorizing a railroad company to construct their road through a portion of the State, recited that the company had previously been incorporated by an act of the legisla- ture of Pennsylvania, and provided that the company, as to all its rights, property, franchises, powers, duties, and obligations, should be governed by and be subject to the provisions of the code of Virginia. It was held that the §156 OF CORPORATIONS IN GENERAL. 575 States, not by the law of courtesy, but by virtue of a charter granted by each State.^ If two States should in- corporate the same persons for the same purpose, with identical powers, and both were managed as one body by one set of ofificers and directors, there would still be, in contemplation of law, two corporations deriving their authority from different sources. Each State might con- sent to the consolidation, but the laws of one State could not confer upon the new corporation all the powers, and charge it with all the duties of both of the original corpo- rations.^ It has sometimes been maintained that the joint act of two States in incorporating a railroad company is not only a contract with the company, but a compact be- tween the States ; that the charter is to be liberally con- strued with reference to its object, and is the law of the contracting States, like a treaty, without being subject to the local usages of either, and that it must receive the same construction in both.^ It is difficult, however, to see, in the relation the States sustain to each other in such a case, anything like a compact* Where the corporation company thus constituted was a Vir- 286. See Philadelphia & Wilmington ginia corporation. Goshom v. Super- R.R. Co. v. Maryland, 10 How. 376 ; visors, I W. Va. 308. See Ohio, etc., Mead v. N. Y., Housatonic & Northern R.R. Co. V. Weber, 96 111. 443. R.R. Co., 45 Conn. 199. In a case in ' Cookv. Hager, 3 Col. 386. Where Ohio it was said: "A corporation two railroad companies, forming a which is chartered and organized under continuous line in two States, are con- the laws of two States, the charters solidated, but the articles of consolida- being in all respects identical, except tion having no seal attached, are void as to the source from which they in one of the States, an act afterward emanate, is a single corporation clothed passed by the legislature of that State, with the powers of two, and has a legal ratifying and confirming the consolida- domicile in each State." Covington, tion, legalizes it. Fisher v. Evansville, etc., Bridge Co. v. Mayer, 31 Ohio St. etc., R.R. Co., 7 Ind. 407. 317. 2 Racine & Miss. R.R. Co. v. Farm- ' Brocket v. Ohio & Pa. R.R. Co., 14 ers' Loan & Trust Co., 49 111. 331 ; Pa. St. 244, per Gibson, C. J. ; S. P. State Treasurer v. Auditor-General, 46 Cleaveland & Pittsburg R.R. Co. v. Mich. 224 ; Farnum v. Blackstone Spear, 56 Id. 325. Canal Corp., i Sumner, 46; Ohio & * Where a corporation which has Miss. R.R. Co. v. Wheeler, 1 Black, been created by one State obtains the 57^ RIGHTS, POWERS, AND DISABILITIES §156 exists by the laws of several States, the authority of one of the States over the charter originally granted to it, can- not be abridged by the proceedings of the other States;^ but the courts will maintain and enforce all the rights of the State against its own corporation, notwithstanding any immunities the corporation may claim to possess within the jurisdiction of another State.* It was remarked by the court in an early case in North Carolina, with refer- ence to a continuous line of railroad : " We are not pre- pared to say, where, by the charters of two States, the work is executed as one whole, by subscriptions of stock, appli- cable alike to the parts in each State, that one of the States could not insist as the ground of forfeiture of so much of the franchise as is within it, that the corporation had not fulfilled its duties in the other State, but violated them to the prejudice of the complaining State. For example, if the charter required that the whole work should be com- pleted by a day limited, and the company made the road in North Carolina, but did not make that in Virginia, would it not be a forfeiture of the part in this State, both because consent of the adjoining State to exer- State, or to constitute a court in this cise cqrporate powers therein, there is State to act upon the rights and prop- not a compact or agreement by which erty of the citizens of such other State corresponding legislation must be^ob- in this State. Nations by treaties pro- tained from each State before an vide for something akin to this. But amendment can be made to the charter, we do not think that the mere grant of or additional power given to the cor- authority to a foreign corporation to poration. Covington v. Covington & exercise its franchises and hold prop- Cincinnati Bridge Co., 10 Bush. 69. erty in this State can be construed as 'Hart V. Boston, Hartford & Erie containing a grant of judicial jurisdic- R.R. Co., 40 Conn, 524 ; New Albany, tion to foreign courts over the property etc., R.R. Co. V. Huff, 19 Ind. 444; of such corporations in this State. Wheat. Int. Law, 280, 286. Such a jurisdiction is not a necessity. ■^ Com. V. Pittsburg & Cornellsville It is scarcely consistent with the rights R.R. Co., 58 Pa. St. 26. " It may be, of our people or the dignity of the State, but we do not so decide, that this State, The courts of this State are competent might grant jurisdiction to the courts to afford all necessary relief in render- of another State, or at least grant the ing domestic, and in executing foreign right to another State to authorize her judgments." Eaton & Hamilton R.R. courts to act on certain matters in this Co. v. Hunt, 20 Ind. 457. § 156 OF CORPORATIONS IN GENERAL. 577 the omission was against the letter of the act, and because it impaired the utility of the part here, by the interruption of the intended line of transportation and travel ?"^ Pur- suant to the acts of two States, railroad companies therein forming a continuous line were consolidated, taking a new name, and organizing a single board of directors. The new company thereupon executed a deed of trust covering the entire line of railway, including all of the personal property which formerly belonged to the companies. It was held that the court had power to appoint a receiver for the whole property, though if persons outside the jurisdic- tion of the court seized the property, the receiver might be compelled to ask the assistance of the courts of that jurisdiction to aid him in obtaining possession as a matter of comity.^ The jurisdictional effect of the existence of such a corporation as regards the Federal courts, is the same as that of a copartnership of individual citizens resid- ing in different States.^ ' Attorney-General v. Petersburg & ciles or residences in determining the Roanoke R.R. Co., 6 Ired. 456, per question of jurisdiction of the courts of RUFFIN, C. J. the several States, and as between the ^ Wilmer v. Atlanta & Richmond Air State and Federal courts, and also upon Line R.R. Co., 2 Woods, 409. general principles. When the charters 'Railroad Co. V. Harris, 12 Wall. 65 ; do not specify a locality, corporations Railroad Co. v. Whitton, 13 Id. 270; are regarded as having their domiciles Muller V. Dows, 94 U. S. 444. See in the States in which they are created, Blackburn v. Selma, etc., R.R. Co., 2 and have their principal places of busi- Flippin, 525. According to Grant, ness. A charter which empowers a " the old law was that every corporation corporation to own and manage prop- must be constituted of some place. But erty in another State, does not author- it is presumed that this rule has long ize the corporation to change its domi- been obsolete, if it ever held good, ex- cile to that State ; and authority given cept in the cases of corporations in- to the latter State to act therein, does trusted with some local jurisdiction, or not confer upon it, in the absence of with power and privileges the exercise authority from the State of its creation, of which was from their nature con- the right to migrate to the other State, nected with some locality." Grant on Aspinwall v. Ohio & Miss. R.R. Co., 30 Corp. 14. In the United States, cor- Ind. 492. porations are treated as having domi- VOL. I. — 37 CHAPTER X. POWER TO CONTRACT, AND HEREIN OF ULTRA VIRES. j 157. Capacity to contract in generaL 158. Meaning and nature of fran- chises, 159. Alienation of corporate fran- chises. 1 60. Meaning of the term,«//ra vires. § 161. Rule as to contracts which are ultra vires. 162. Contract of directors or officers for their own benefit. 1631 In what manner a corporatioii may contract. § 157. Capacity to contract in general.— A corporation and an individual do not stand upon the same footing with re- gard to the right of contracting. The latter may make all contracts which in the eye of the law are not inconsistent with the interests of society ; whereas, the former, being created for a specific purpose, must look to its charter, which is, as it were, the law of its nature, to ascertain the extent of its capacity. It cannot only make no contract forbidden by its charter, but it can only make those which are re- quired to effectuate the purposes of its creation.* It is said in a late work that the result of the English authorities is, "That corporations, ^certainly those for commercial pur- poses, and probably all Corporations to which the doctrine applies, — have by implication all capacities and powers which, being reasonably incidental to their enterprise or operations, are not forbidden them, either expressly by their constating instruments, or by necessary inference therefrom."* They may enter into any obligation or con- ' Blair v. Perpetual Ins. Co., 10 Mo. ° Green's Brice's Ultra Vires, 2d 562 ; Beach v. Fulton Bank, 3 Wend. Am. Ed. 40. See Brady v. Mayor, 573. etc., of Brooklyn, i Barb. 584. § 157 HEREIN OF ULTRA VIRES, 579 tract essential to the transaction of their ordinary affairs, the same that a natural person could do, unless restrained by law.^ As a general rule, a corporation has the capacity as such to take and grant property. When created for some limited and specific purpose, which is usually the case, the general powers incident to it at common law are restricted by the nature and object of its institution, being authorized to make all contracts which are called for and customary in the course of the business it transacts, as a means to enable it to effect such object, unless expressly prohibited by law or by the provisions of its charter. When it has power to dispose of its property, it may in general dispose of any interest in the same it deems expedient, whether by lease, grant in fee, or for life, mortgage, or even make an assign- ment for the benefit of creditors, giving preferences where the law admits of such assignments by natural persons.* ' McKiernan v. Lenzen, 56 Cal. 61. By the civil law, corporations possess only jura minorum. They have not the power of contracting on all subjects like persons of full age, and sua juris. Having only such powers as are con" ferred by their acts of incoi'poration, they cannot be bound for contracts made by those not authorized to rep- resent them. But it is said that a cor- poration may be bound on a quasi contract arising exaquo et ''bono. So may a minor. But then it must be for necessaries which the tutor would not provide, or things which have aug- mented the minor's estate, and not those things which have been con- sumed by use, or lost in speculations. Seibrecht v. New Orleans, 12 La. An. 496. ' It was held in Massachusetts, that the directors of a trading corporation which was insolvent, had authority to make an assignment of all of the cor- porate property to one of its creditors provisionally and upon condition to pay, or provide for the payment of the debt, with security that no more should be applied than was required for that purpose, to account for such applica- tion, and pay over the balance, if any, to the treasurer of the corporation. Sargent v. Webster, 13 Mete. 497. See Harris v. Thompson, 15 Barb. 62. " Whether it is expedient that a cor- poration which has so conducted its affairs as to become insolvent, should have the power, by a general assign- ment, to appoint its own administra- tors, or whether an insolvent individual ought to have power to appoint his own assignee, and to give preferences, are questions which belong to the leg- islature." Walworth, Ch., in De Ruyter v. Trustees of St. Peter's Church, 3 Barb. Ch. 119. A corpora- tion has a right to make such an as- signment, and may exercise it to the same extent and in the same manner as a natural person, unless restricted by its charter, or by some statutory provision. lb. ; s. c. 3 Comst. 238. See 580 POWER TO CONTRACT, § 1 57 Upon this principle, and to the extent stated, a corporation, in order to attain its legitimate objects, may deal precisely as an individual may who seeks to accomplish the same ends. ^ A municipal, like a trading corporation, may, unless re- stricted by its charter, enter into any contract, give prom- issory notes, and adopt all the ordinary or usual means which may be necessary to the full execution or enjoyment of the powers expressly conferred." By the charter of a city, the mayor and common council were given power to make all contracts in their corporate capacity which they might deem necessary for the welfare of the city not in conflict with the constitution of the State and the United States, and to levy a tax for the fulfilment of the same. It was held that they were authorized to make a contract for the construction of water-works.^ The act under which a railroad company was incorpora- ted having provided that the company might contract for Bowen v. Lease, 5 Hill, 221 ; Hurlburt having spent all his ministerial life with V. Carter, 21 Barb. 221 ; State v. Bank us in ardent and successful labor, upon of Maryland, 6 Gill & Johns. 205; a salary entirely inadequate to his corn- State V. Bank of Manchester, 13 Smed. fortable support, while ejfpending much & Marsh, 569. in behalf of the congregation, approve ' Barry v. Merchants' Exchange Co., and ratify the action and proposal of I Sandf. Ch. 280 ; Thompson v. Lam- the joint officers, trustees, elders, and bert, 44 Iowa, 239 ; Ohio Life Ins. Co. deacons of the church in tendering him V. Merchants' Ins. Co., 11 Humph, i ; a pecuniary offering, and we, the con- Old Colony R.R. Co. v. Evans, 6 Gray, gregation, hereby order that a credit 25 ; White Water, etc., Co. v. Valette, be given him of two thousand dollars 21 How. 414; Clark v. Farrington, II upon the bond and mortgage held by Wis. 306. See Mott v. Hicks, i Cow- the congregation upon the former par- en, 513; Barker v. Merchants' Ins. Co., sonage farm in his behalf as pastor.'' 3 Wend. 96 ; Jackson v. Brown, 5 Id. It was held that the agreement to give 590 ; Moss V. Oakley, 2 Hill, 265 ; Saf- the credit was supported by a sufficient ford V. Wyckoff, 4 Id. 442 ; Atty. Genl. consideration, and that the pastor was V. Life Ins. Co., 9 Paige Ch. 470. The entitled to an injunction to restrain an congregation of a Presbyterian society, action at law upon the bond. Worrell at a meeting duly convened, adopted v. First Presby. Ch., 23 N. J. Eq. 96. the following : " Resolved, That we, the " Douglass v. Va. City, 5 Nevada, congregation of, (naming the society), 147. now assembled, in view of our pastor ' Rome v. Cabot, 28 Ga. 50. §157 AND HEREIN OF ULTRA VIRES. 58 1 the transportation and delivery of persons and property conveyed over its road beyond its termini, it was held that the power thus conferred carried with it power to use nec- essary and proper incidental means of exercising and en- joying it, and that a note for the purchase money of a steam ferry-boat given by the company for the carrying of freight and passengers from the terminus of its road to the line of another road, was binding on the company.* Where a railroad company brought a suit upon a contract by which the defendant undertook to provide a suitable steam vessel to run between Milford Haven, the terminus of the road, and Dublin and Cork, for the conveyance of passengers, goods, etc., in connection with the railroad, and the defend- ant furnished an unseaworthy vessel, and an incompetent master, in consequence of which certain live-stock were damaged and lost, it was held that the contract was not illegal, it being in furtherance of the company's incorpora- tion. Earle, C. J., said ; " In all the cases that I am aware of, where the contract has been held illegal, the ob- ject to be effected was something wholly unconnected with the purposes of the incorporation. One of the earliest cases was that of the Harwich Steam Packet Company,* where it was held that, as between the shareholders and directors of the company, the diversion of a portion of the capital to the support of a concern foreign to the objects of its incorporation was a breach of trust. But there the company were in a given event to purchase the steam ves- sels. An entirely different question, however, is raised in a court of law when it is alleged that the funds of the com- pany are applied to a purpose entirely unconnected with the purpose of its incorporation. In the present case, so far as I 'can see, this is not a contract which has for its pur- pose something entirely ultra vires. So far from a contract ' Shawmut Bank v. Pittsburgh, etc., " Colman v. Eastern Counties R.R. R.R. Co., 31 Vt. 491. Co., 10 Beavan, i. 582 POWER TO CONTRACT, § 1 57 by this company to facilitate the forwarding of passengers and goods to Ireland being illegal, I rather gather that the legislature contemplated and intended that a railway termi- nating at Milford Haven should forward traffic to and from Ireland, and, therefore, this contract would be entirely within the scope and object of the company's incorporation or extension." Willes, J. : "I am of the same opinion. All that the contract, as it appears on the face of the deck' ration, -amounts to is this, that the railway company have bargained with the defendant to provide a means by which the passengers and goods carried by their line may be safely and speedily conveyed to and from Ireland. It is a mere arrangement as to the times at which the steam vessel em- ployed for the service shall start and arrive, and a stipula- tion that it shall be proper for the purpose. I cannot disr tinguish that, in principle, from the ordinary case of a rail- way company providing warehouses for the storage of goods intrusted to them. It is one of the incidents to the due employment of the railway. I see nothing at all invalid in the contract." ^ Every corporation has the right to pay its debts or pro- vide for their payment in such mode as it and the holders of the indebtedness may agree ; or it may fund its debts if that be de.emed best, and issue the necessary evidences of the same. If the evidence of the debt be scrip, or promis- sory notes, the corporation may change the form of the indebtedness to interest-bearing bonds, without express au- thority in the charter.* A corporation which issues a coupon ' South Wales R.R, Co. v. Redmond, of the company, to raise money to pay 10 C. B. N. S. 675. the company's debts. It was subse- ^ Galena v. Corwith, 48 111. 423. An quently indorsed with the knowledge action was brought against the maker and assent of the defendant by the com- of a promissory note, payable to the pany in the course of its regular and order of a railroad company. The note lawful business. It was held that, as was given as a renewal accommoda- the railroad company had, as a neces- tion paper originally given by the de- sary jricidejit, th^ inherent power to fendant, who was one of the directors borrow money for the payment of its § 157 AND HEREIN OjF ULTRA VIRES. 583 bond is in the position of a maker of a promissory note, not of the drawer of a check or bill of exchange. There is no obligation on the holder to present and demand it within a reasonable time. The same rule applies to the coupons as to the bond. In fact, the holder may retain the coupon as long as he can keep the bonds, without requiring payment. The coupon is nothing but an acknowledgment of interest due, and it is but an incident of the principal.^ An express authority is not indispensable to confer upon a corporation the right to borrow money, to deal on credit, or to become a party to a promissory note or bill of exchange. It is gen- erally sufficient if such right be implied as the usual and proper means to accomplish the purposes of the charter.* A corporation, the capital stock of which was limited to one million of dollars, was authorized by its charter to pur- debts, and for its necessary purposes, it was authorized to hold and transfer the note in suit, and that consequently the plaintiff was entitled to judgment. Lucas V. Pitney, 27 N. J. (3 Dutcher) 221. 1 Williamsport Gas Co. v. Pinkerton, 95 Pa. St. 62. An agreement between railroad companies with connecting lines to adopt on their several roads a uniform gauge in order to increase the business on each, is a good considera- tion for a guaranty by one of the com- panies of the payment of the coupons issued by another ; and the holder of a guaranteed coupon will be protected, in the absence of anything suggesting inquiry, that the company may not have proceeded regularly in the execu- tion of its powers. Conn. Mu. Life Ins. Co. V. Cleveland, etc., R.R. Co., 41 Barb. 9. 'Curtis V. Leavitt, 15 N. Y. 218, 219; R.R. Co. V. Howard, 7 Wall, 392 , Booth V. Robinson, 55 Md. 603. The charter of a railroad company au- thorized the borrowing of money by the company " on such terms as might be agreed upon by the parties." It was held that this gave the company the right to borrow money at a rate of interest beyond that established by the general law of the State. Morrison v. Eaton & Hamilton R.R. Co., 14 Ind. no. Perkins, J.: "That the clause was inserted in the charter expressly to enable the corporation to borrow money on such higher rate of interest, we have no doubt, and if it failed to accomplish that end, its insertion was nugatory, — powerless for any purpose whatever; for a,s to all the other terms of the contract of loan, the general grant of power to borrow, per- haps indeed the simple creation of the corporation, would have been adequate. We know historically that at the time the charter in question was grantee}-, money could not be obtained by such corporations at six per cent., the legal rate of interest ; and hence, in the ap.. plication for charters, special powers on the subject were usually sought. They were sought to enable the corporations to give a rate of interest that would in- duce the loan." 584 • POWER TO CONTRACT, § 157 chase, hold, and convey such and so much real estate as it should deem necessary and proper for the purpose of erect- ing an edifice for a public mercantile exchange in the city of New York. The first structure having been destroyed by fire, the corporation purchased more land and rebuilt on a larger scale at a total cost of over two millions of dollars, but without any increase of the capital. The charter did not expressly authorize the borrowing of money. It was held that the corporation was not restricted in the erection of the exchange to an expenditure of one million of dollars, but that the entire expense might be defrayed by means of loans procured upon the corporation bonds secured by one or more mortgages executed in trust. The assistant vice- chancellor said : "A corporation, in order to attain its le- ;gitimate objects, may deal precisely as an individual may who seeks to accomplish the same ends. If chartered for the purpose of building a bridge, it may contract a debt for labor, materials, or the land upon which the bridge is abut- ted. If more advantageous, it may borrow money to pur- chase such land or materials, or to pay for such labor ; and, as evidence of the indebtedness, it may execute to the cred- itors a note, a bond, or a mortgage, whether the debt be for the money borrowed, or the work, materials, or land." ^ Where an insurance company was authorized to receive money on deposit ; collect promissory notes and bills of ex- change ; purchase, discount, and sell notes and bills ; and borrow money and issue the bonds of the company there- for, it was held that the company was not restricted to the giving of its bonds, but had the implied and incidental power to make oth^r usual securities and evidences of debt* But where a life insurance and trust company was incorporated with a capital of a million of dollars, to be ^ Barry v. Merchants' Exchange Co., ■^ Talladega Ins. Co. v. Peacock, 67. I Sandf.Ch. 280. See King v. Merchants' Ala. 253. Exchange Co., 5 N. Y. (i Seld.) 547. § 157 AND HEREIN OF ULTRA VIRES. 585 paid in cash and money received in trust, one half to be in- vested in bonds or notes secured by mortgage on land within the State, and the other half, together with premi- ums and profits and moneys received in trust, to be in- vested, in the discretion of the company, in stocks loaned to any city, county, or company, or in such real or personal security as it might deem proper, it was held that the com- pany had no power to, lend its obligations to pay money in future and exchange such obligations for the bonds of an individual in the same amount, and that a bond so taken was void.^ A railroad company may guarantee the pay- ment of such bonds as it may have received from cities and counties, in order to raise money to carry out the purposes for which it is incorporated, augment its credit, and save the necessity of issuing its own bonds.** A manufacturing corporation having sold to the plaintiff goods in a store be- longing to the company under a contract that if the trus- tees of the company should at any time within a year no longer have the management of its affairs, and, in con- sequence, the trade of the workmen employed by the company should be withdrawn from the store to the plaintiff's damage, the company would pay the plaintiff $300, or deduct that amount from any sum the plain- tiff might then owe the company, it was held that in the absence of proof to the contrary, it would be presumed that the contract was valid.^ Where an incorporated building society was authorized by its charter to make loans and provide for the securing of the same on real estate, it was held that as an incident to such security, it might contract for insurance.* A provision in the charter prohibiting the corporation from dealing in commercial " Smith V. Ala. Life Ins. & Trust Co., = De Groff v. Am. Linen Thread Co., 4 Ala. 558. 21 N. y. 124. ^ R.R. Co. V. Howard, 7 Wall. * Chicago Building Soc. v. Crowell, 392- 65 111. 453. 586 POWER TO CONTRACT, § I5§ paper, will not be construed to extend to receiving and selling notes given for the sale of its land.^ § 158. Meaning and nature of franchises. — Franchises are special privileges conferred by government upon individ- uals, and which do not belong to the citizens of the coun- try generally of common right* The word franchise has various significations. A corporation itself is a franchise belonging to its members, and it may possess other fran-, chises, such as the right to hold and dispose of property. A corporation is made up and consists of its rights and privileges ; and when all of its franchises are gone by sur- render, by forfeiture judicially ascertained, by limitation of the grant, or in any other way, the corporation has no longer any practical existence. If the franchises are of a nature to continue after they are lost by the corporation, they may be regranted to another corporation or to other individuals ; but the former corporation is substantially dissolved ; though in some cases, after the franchises of a corporation are lost by forfeiture, the corporation is still held to exist in contemplation of law so far as to be capa- ble of being revived by a regrant.^ The older English authorities regarded franchises as being mere donations of the sovereign to be treated strictly and jealously. Hallam,* speaking of the reign of Eliza- beth, says: "The crown either possessed or assumed the prerogative of regulating almost all matters of commerce ' Buckley v, Briggs, 30 Mo. 452. by prescription which presupposes a ' Bank of Augusta v. Earle, 13 Pet. grant ; that the kinds are various and 595, per Taney, Ch. J. *' A franchise almost infinite, and they may be vested is a species of incorporeal heredita-. in natural persons, or in bodies politic." ment. It is defined by Finch, 164, to Spencer, J., in People v. Utica Ins-, be a royal privilege or a branch of the Co., 15 Johns. 358. king's prerogative subsisting in the ' Pierce v. Emery, 32 N. H. 484 ; hands of the subject ; and he says that Bridgeport v. N. Y. & N. H. R.R. Co., franchises being derived from the 36 Conn. 266 ; Paul v. Virginia, 8 Wall, crown, they must arise from the king's 168. grant, or, in some cases, may be held ^Const. Hist, of England, vol. i,ch. 5% § 159 AND HEREIN OF ULTRA VIRES. 587 at its discretion. Patents to deal exclusively in particular articles, generally of foreign growth, but reaching in some instances to such important necessaries of life as salt, leather, and coal, had been lavishly granted to the courtiers with little direct advantage to the revenue. They sold them to companies of merchants who, of course, enhanced the price to the utmost ability of the purchaser." But the advance of liberty, of commerce, and the arts and conven- iences of life, have given to franchises a higher character of public utility. They have become contracts between the sovereign power and the private citizen, made upon valu- able consideration for purposes of public benefit as well as of private advantage.^ The powers and privileges which constitute the franchise of a corporation are in a just sense property distinct from the property which by the use of such franchise the corporation may acquire, and taxable ac- cording to its assessed value.^ § 159. Alienation of corporate franchises. — A corporation cannot transfer its own existence into another body, nor enable natural persons to act in its name save as its agents, or as members of the corporation, proceeding in conformity with the modes required or allowed by its charter. The franchise to the corporation is not, therefore, a subject of sale and transfer, unless the law by some positive provision, ' See Thompson v. People, 23 Wend, an exclusive right to supply gas or 537, opinion of Verplanck, senator. water to a municipal corporation by ' Monroe Savings Bank v. Rochester, pipes laid through the public streets is 37 N. Y. 367 ; Freight Tax Case, 15 a grant of a franchise, and a contract Wall. 282 ; State Tax on R.R. Gross protected by the Constitution of the Receipts, lb. 296 ; State R.R. Tax United States. New Orleans Gas Co. Cases, 92 U. S. 575 ; Com. v. Cary Im- v. Louisiana Light Co., 115 U. S. 650 j provement Co., 98 Mass. 23 ; Porter v. Louisville Gas Co. v. Citizens' Gas Co., Rockford, etc., R.R. Co., 76 111. 561 ; lb. 683 ; New Orleans Water Works Com. V. Hamilton Manf Co., 12 Allen, v. Rivers, lb. 674. Such a right may, 298 ; Burke v. Badlam, 57 Cal. 594 , however, be a mere license, conferred San Jose Gas Co. v. January, lb. 614 ; by the municipal authorities. Pfeo- Spring Valley Water Works v. Schot- pie v. Mu. Gas Light Co., 38 Mich, tier, 62 Cal. 69. A legislative grant of 154. 588 POWER TO CONTRACT, § 1 59 has made it so arid pointed out the manner in which such sale and transfer may be eflfected.^ When a corporation has granted to it by charter a franchise intended in large measure to be exercised for the public good, the due per- formance of its -duties being the consideration of the grant, any contract which disables the corporation from discharg- ing its functions, by undertaking, without the consent of the State, to transfer to others the rights and powers con- ferred by the charter, and to relieve the grantees of the burden which the charter imposes, is a violation of the contract with the State, and is void as against public pol- icy.* This rule is founded on reason and principle. Fran- chises granted by the State are often parts of the sovereign power delegated to a subject, and always privileges to which other citizens are not entitled. In these grants, the legis- lature is presumed to have regard to the character of the grantee, and the guards and restrictions placed upon the corporation.^ Where the charter of a municipal corpora- ' Branch v. Jessup, io6 U. S. 468 ; the State." Gue v. Tide Water Canal Hall V. Sullivan R.R. Co., 22 L. R. Co., 24 How. 257, per Taney, C. J; 138 ; Shaw v. Norfolk County, 5 Gray, = Shrewsbury, etc., R.R. Co. v. North 162 ; Pollard v. Maddox, 28 Ala. Western R.R. Co., 6 House of Lds. 321. 113; East Anglican R.R. Co. v. East- ^ Beman v. RufFord, i Sim. N. S. em Counties R.R. Co., 73 Eng. Com. 550 ; Gt. Northern R.R. Co. v. Eastern L. 775 ; 11 C. B. 75 ; Winch v. Birken- Counties R.R. Co., 9 Hare, 306 ; South head R.R. Co., i6 Jur. 1035 ; Troy & Yorkshire R.R. Co. v. Gt. Northern Rutland R.R. Co. v. Kerr, 17 Barb. R.R. Co., 3 De G. M. & G. 376 ; 9 581, 601 ; Com. v. Smith, 10 Allen, Exch. 84; 19 Eng. L. & Eq. 513; 448; Richardson v. Sibley, 11 Id. 65; York, etc., R.R. Co. v. Winans, 17 Stewart's Appeal, 56 Pa. St. 413 ; State How. 30 ; Thomas v. R.R. Co., loi U. v. Consolidation Co., 46 Md. i ; Ohio S. 71 ; Black v. Del. & Raritan Canal & Miss. R.R. Co. v. Ind. & Cin. R.R. Co., 22 N. J. Eq. 130; S. C. 24 N. J. Co., 14 Am. L. Reg. 733 ; Lauman v. 455 ; Hays v. Ottawa, etc., R.R. Co., Lebanon Valley R.R. Co., 30 Pa. St. 61 111. 422. " The franchise being an 42 ; Susquehanna Canal Co. v. Bon- incorporeal hereditament, cannot, upon ham, 9 Watts & Serg. 27 ; Coe v. Co- the settled principles of the common lumbus, etc., R.R. Co., 10 Ohio St. 372; law, be seized under a _/f^rz"/a«'aj. If Pullam v. Cincinnati & Chicago R.R. it can be done in any of the States, it Co., 4 Biss. 35 ; Phila. v. Western must be under a statutory provision of Union Tel. Co., 11 Phila. 327 ; Tread- well V. Salisbury, 7 Gray, 393. § 159 AND HEREIN OF ULTRA VIRES. 589 tion contained a grant of power to draw lotteries for a pub- lic purpose named, and upon certain terms and conditions, it was held that the corporation could not release itself from liability by selling the privilege. Marshall, C. J., said : " It is reasonable to suppose that Congress, when granting a power to authorize gaming, would feel some solicitude respecting the fairness with which the power should be used, and would take as many precautions against its abuse as was compatible with its beneficial exercise. Accordingly, we find a limitation on the amount to be raised, and on the object for which the lottery may be au- thorized The power thus cautiously granted is deposited with the corporation itself, without any indica- tion that it is assignable. It is to be exercised like other corporate powers by the agents of the corporation under its control." ^ Railroad companies being public corporations, so far as to be subjected to control by legislation, they can do no act which would amount to a renunciation of their duty to the public, or directly and necessarily disable them from per- forming it. They cannot, therefore, convey away their franchises and corporate rights. But they may contract debts, purchase on credit, and mortgage their personal prop- erty not affixed to the road, though used in operating it.* A railroad company which has power to construct a rail- road and telegraph line, cannot lease its right with reference to the latter.^ Where the charter of a railroad company ' Clark V. Corp. of V^i'ashington, 12 R.R. Co. v. Bedford, etc., R.R. Co., 81* Wheat. 40. Pa. St. 106. ' 2 Pierce v. Emery, 32 N. H. 484 ; a Atlantic & Pacific Tel. Co. v. Union Richards v. Merrimack, etc., R.R. Co., Pacific R.R. Co., i McCrary C.C. 541. 44 Id. 127; Stewart v. Jones, 40 Mo. In a case in Connecticut, it was in- 140. A contract to lease a horse rail- sisted that railroad companies were road for a fixed rent in a dividend to be not intended to beembraced by the in- paid to the stockholders, is void. Mid- solvent law ; because the trustee ap- dlesex R.R. Co, v. Boston, etc., R.R. pointed under it would not be invested Co., 1 1 S Mass. 347 ; Pittsburg, etc., with the power of selling, leasing, or 590 POWER TO CONTRACT, § 159 does not authorize the company to mortgage or sell its cor- porate franchise to be a corporation, an act of the legislature undertaking to give such an effect to the sale, is an attempt to create a corporation by a special act.^ The franchise operating the road, and that, therefore, the most valuable portion of its prop- erty would not be available for the pay- ment of its debts. To this the court replied, that the fact that some of the property of the company was of such a pefculiar character that the trusteecould not, by his own unassisted power, dis- pose of of manage it for the benefit of creditors, would be an insufficient ground for concluding that the legisla- ture did not intend that they should liave the benefit of such of its property as he could appropriate to their use. Piatt V. N. Y. & Boston R.R. Co., 26 Conn. 514. ' Atkinson V. Marietta, etc, R.R. Co., 15 Ohio St. 21. See Oroville, etc., R.R. Co. V. Plumas County, 37 Cal. ^54. The doctrine that a corporation has no power to mortgage its franchises without the consent of the legislature, has not been universally admitted. In a case in Maine, the court said : " Such mortgages have always been regarded and treated as valid in this State by the courts as well as the legislature, and we confess that the contrary doctrine seems to us little better than practical repudia- tion, and not supported by reasons suffi- ciently weighty to commend it to our judgment. The whole argument seems to have no greater force than this, that it is dangerous to the public interests to have the powers and privileges con- ferted by a railroad franchise trans- ferred from the original corporators to a new body. But when we consider how little importance is attached to the persons of the original corporators, how soon death must and other circum- stances may remove them from all participation in the affairs of the road. how constantly those who have the active management of it are in fact being changed, we shall see how little practical merit this argument has. At the beginning, the corporators undoubt- edly have a controlling influence, but afterward the directors are elected by the stockholders and are often changed. Is there any reason to suppose that if a mortgage should by foreclosure trans- fer the franchise to new hands, as capable men would not be appointed to manage the road as before ? Will not the bondholders be as interested and capable of appointing suitable man- agers as the stockholders ? Does any one fear that the public interests would not be as safe with the former as the latter ? Why then is it dangerous to the public interests to allow such a transfer ? We confess that after giv- ing the matter much thought, the doc- trine that all railroad mortgages made without the consent of the legislaturfe are illegal and void, because they may operate as a permanent transfer of the corporate powers from the original cor- porators to another body, seems to us to have little to commend and much to condemn it." Shepley v. Atlantic & St. Lawrence R.R. Co., 55 Me. 395. And see Kennebec & Portland R.R. Cp. V. Portland, etc., R.R. Co., 59 Id. 9. In Bank of Middlebury v. Edger- ton, 30 Vt. 190, Bennett, J., said: " It is not necessary in this case that we should hold that the franchise to this company to be a corporation is a subject of sale or transfer. The right to build, own, manage, and run a rail- road, or take tolls thereon, is not of necessity of a corporate character or dependent upon corporate rights. It § 159 AND HEREIN OF ULTRA VIRES. 59 1 of being a corporation need not be implied as necessary to secure the mortgage bondholders, or the purchasers at a foreclosure sale, the substantial rights intended to be se^ cured. They acquire the ownership of the railroad and the property incident to it, and the franchise of maintaining and operating it as such ; and the corporate existence is not essential to its use and enjoyment. All of the fran- chises necessary or important to the beneficial use of the railroad, could as well be exercised by natural persons. The essential properties of corporate existence are quite distinct from the franchises of the corporation. The fran- chise of being a corporation belongs to the corporators, while the powers and privileges vested in and to be exer- cised by the corporate body as such, are the franchises of the corporation. The latter has no power to dispose of the franchise of its members, which may survive in the mere fact of corporate existence after the corporation has parted with all its property and all its franchises.^ The franchise which a railroad company transfers by its mortgage is not its franchise to exist as a corporation, but only such of its franchises or privileges as will enable the grantee to have the same use and beneficial enjoyment of may belong to and be enjoyed by natural another to-morrow, — some citizens of persons, and there is nothing in its the State, some foreigners. The true nature inconsistent with its being as- idea is that the public relies for its as- signable." Approved and adopted in surance that its rights will be duly Miller v. Rutland & Washington R.R. answered, upon the fact that they must Co., 36 Vt. 452, where the court said : be, in order that the conferred privi- " The idea of particular confidence re- leges may be held and enjoyed by the posed in the particular persons who corporation of whomsoever composed ; compose the corporation for the service not upon any personal confidence which of the public interests involved in male- the legislature has in an indiscriminate itig and operating the proposed rail- body of persons." road, seems to us altogether fanciful ' Memphis, etc., R.R. Co. v. Commis- and theoretical. In fact, there is no sioners, 112 U. S. 609; Bank of Middle- Such confidence. From the nature of bury v. Edgerton, 30 Vt. 182 ; Eldridge the case there could not be. For who v. Smith, 34 Id. 484 ; Smith v. Gower, shall compose the corporation at a given 2 Duvall, Ky. 17 ; Joy v. Jackson, etc., time depends on who own shares of the Plank R. Co., 1 1 Mich. 155. capital stock, — one set of men to-day. 592 POWER TO CONTRACT, § 159 the property which the company 'had.^ Power given to a railroad company to borrow money, to make and execute bonds therefor, and to secure the same by a mortgage of " the entire road, fixtures, and equipments, with all the ap- purtenances, income, and resources thereof," includes the right to mortgage the franchise of the corporation to main- tain its road and make profit from its use, and also prop- erty not existing or not owned by the corporation at the time of the mortgage, and to be thereafter acquired, but not the franchise of being a corporation. After an act of disposition which separates the franchise to maintain a rail- road, and make profit from its use, from the franchise of being a corporation, until there be judgment of dissolution, the rights of corporators, and of third persons, may require that the corporation be considered as still existing.* The directors of a railroad company were authorized by an act of the legislature to borrow money, to issue bonds therefor, and to secure the same by a mortgage to trustees of the whole, or a part of the real and personal estate, and all of the rights, franchises, powers, and privileges of the company ; the deed of the trustees to convey to purchasers all of the real and personal property named in the mortgage, together with all the rights, franchises, powers, and privileges in re- lation to the same which the corporation possessed at the 'Meyer v. Johnston, 53 Ala. 237. R.R.Co.,13 Allen, 422; Lordv.Yonkers The franchises to build, own, and man- Fuel Gas Co., loi N. Y. 614. The age a railroad, and to take tolls thereon, City Bank of New Orleans having, are not necessarily corporate rights, shortly before its charter expired, sold and there is nothing in their nature in- to the State Bank of Louisiana all its consistent with their being assignable, assets, the latter agreeing to pay divi- Hall V. Sullivan R.R. Co., 21 Law Re- dends to the stockholders of the City porter, 138 ; 2 Redfield Am. R.R. Cas. Bank the amounts due its depositors 621 ; New Orleans, etc., R.R. Co. v. and other banks, to redeem its out- Delamore, 114 U. S. Joi. standing circulation, and to pay its ' Coe v. Columbus, etc., R.R. Co., 10 shareholders the par value of their Ohio St. 372. See Pierce v. Milwau- stock, it was held that the sale was ^ kee, etc., R.R. Co., 24 Wis. 551 ; East valid. Stetson v. City Bank of New Boston Freight R.R. Co. v. Eastern Orleans, 12 Ohio St. 577 ;s.C. 2 lb. 167. § 159 AND HEREIN OF ULTRA VIRES. 593 time the mortgage was executed, and the use of the rail- road, with all its property, and rights of property, for the same purposes and to the same extent that the company could use the same, if such deed had not been made. It was held that the corporation had power to mortgage the whole road as an entire thing, with all of its corporate rights and franchises, and incidentally, and by way of ac- cession, all the subsequently acquired property of the road. And where the company, having become the owners of personal property which was subject to the lien of the government for duties, entered into a contract with certain persons that they should pay the duties, and, if the com- pany did not pay them back the money so advanced within an agreed time, they might take and hold possession of such personal property, it was held that the contract was not binding on the trustees, unless they had assented to it.^ The right of a railroad company to mortgage its road, fixtures, and equipments, with all the appurtenances, in- come, and resources, does not include the power of eminent domain, which cannot be made the subject of grant or sale. The right to institute a judicial proceeding for the purpose of taking private property for the use of the railroad, can- not be regarded as a franchise of the corporation, but rather a means to secure the enjoyment of the franchise granted, a resort to which may become necessary.^ " Such at- tempted sale and purchase on the part of either corporation, is ultra vires in the extreme sense, and is a fraud on the court or judicial officer before whom the proceedings are pending, and whose judgment is employed in determining the necessity of the appropriation to the public use repre- sented by the corporation petitioner, not its necessity to a ' Pierce v. Emery, 33 N. H. 484. ^ Coe v. Columbus, etc., R.R. Co., See Detroit v. Mu. Gas, etc., Co., 43 supra. Mich. 594. VOL. I.— 38 594 POWER TO CONTRACT, § 159 use represented by another corporation. Much confusion of thought has arisen in this case, and in similar cases, from attaching a vague and undefined meaning to the term fran- chises. It is often used as synonymous with rights, privi- leges, and immunities, though of a personal and temporary character ; so that if one of these exists, it is loosely termed a franchise, and is supposed to pass upon a transfer of the franchises of the company. But the term must always be considered in connection with the corporation or property to which it is alleged to appertain. The franchises of a railroad corporation are rights or privileges which are es- sential to the operations of the corporation, and without which its road and works would be of little value They are positive rights or privileges, without the posses- sion of which the road of the company could not be suc- cessfully worked."^ When a corporation under its charter has only power to mortgage its real estate, authority to mortgage its franchise cannot be implied ; * but it is well settled that a corporation can, when authorized by law so to do, transfer, sell, pr con- vey its charter or franchise to be a corporation, and thus vest it in others, and this will include the right to mortgage it.^ " The real transaction in all such cases of transfer, sale, or conveyance, in legal effect, is nothing more or less, and nothing other, than a surrender or abandonment of the old charter by the corporators, and a grant de novo of a similar charter to the so-called transferees or purchasers. To look upon it in any other light, and to regard the transaction ' Morgan v. Louisiana,, 93 U. S. 217 ; 697 ; St. Louis, Iron Mt., etc., R.R. Co. Chesapeake & Ohio R.R. Co. v. Miller, v. Berry, 113 Id. 465 ; Railroad Co. v. 114 Id. 176; Worcester v. Norwich, Georgia, 98 Id. 359. etc., R.R. Co., 109 Mass. 103. See ' Randolph v. Wilmington, etc., R.R. Given v. Wright, 117 U. S. 648. Co., 11 Phila. 502; Willamette Manf. ' Morgan v. Louisiana, 93 U. S. 217; Co. v. Bank of British Columbia, 119 Wilson V. Gaines, 103 Id. 417 ; Louis- U. S. 191. See McAllister v. Plant, 54 ville, etc., R.R.Co.v. Palmes, 109 Id. 244. Miss. 106. See Railroad Co. v. Gaines, 97 U. S. § l6o AND HEREIN OF ULTRA VIRES. 595 as a literal transfer or sale of the charter, is to be deceived, we think, by a mere figure or form of speech. The vital part of the transaction, and that without which it would be a nullity, is the law under which the transfer is made. The statute authorizing the transfer and declaring its effect, is the grant of a new charter, couched in a few words, and to take effect upon condition of the surrender or abandonment of the old charter ; and the deed of transfer is to be re- garded as mere evidence of the surrender or abandonment. According to our understanding of the cases cited by coun- sel for the defendants in support of the transferability of such charters, this is the view entertained whenever the courts have spoken directly of the legal effect of such con- veyances It matters not if we regard the charter granted as identical with the one surrendered — a something which really passes from the old or defunct corporation into the hands of the legislature, and thence to the new or- ganization. There must be at the time constitutional power in the legislature not only to receive, but also to reissue the charter. It must pass through legislative hands before it can take life in a new organization."^ § 160. Meaning of the term " ultra vires." — Although the expression, " ultra vires" is used in different senses, its primary meaning is that a corporate act or contract is be- yond the powers conferred upon the corporation under any circumstances or for any purpose. The term is frequently employed " with reference to the rights of certain parties when the corporation is not authorized to perform the act without their consent ; or with reference to some specific purpose, when it is not authorized to perform it for that purpose ; although fully within the scope of the general powers of the corporation, with the consent of the parties interested, or for some other purpose."^ It is a concise ' State V. Sherman, 22 Ohio St. 411, '^ McPherson v. Foster, 43 Iowa, 48 per Welch, C. J. Miners' Ditch v. Zellerbach, 37 Cal, 596 POWER TO CONTRACT, § 16O and convenient form by which to indicate the unauthorized action of artificial persons with limited powers.^ " Some, if not all corporations, exist for the attainment of certain objects only, and if their powers are not expressly, they are impliedly restricted to such acts only as are necessary for the due attainment of those objects, and consequently they can perform no acts, enter into no transactions, and incur no liability but such as spring out of or are otherwise inci- dental^to the purposes for which they have been created." * When the power is conferred, whether rightfully or not, it cannot properly be said that the act is ultra vires. If, how- ever, the act itself is invalid, the power, of course, does not exist.^ As a rule, " when acts of corporations are spoken of as ultra vires, it is not intended that they are unlawful, or even such as the corporation cannot perform, but merely those which are not within the powers conferred upon the corporation by the act of its creation, and are in violation of the trust reposed in the managing board by the share- holders, that the affairs shall be managed and the funds ap- plied solely to the carrying out of the objects for which the corporation was created."* It has been correctly observed that "the words 'ultra vires' and 'illegality' represent to- tally different and distinct ideas. It is true that a contract may have both these defects, but it may also have one with- out the other. For example, a bank has no authority to engage, and usually does not engage, in benevolent enter- prises. A subscription made by authority of the board of 543 ; Whitney Arms Co. v. Barlow, 63 .... It is as applicable to individual N. Y. 62 ; Bateman v. Mayor, etc., of as to corporate action. An illegal act Ashton, 3 Hurlst. & Norm. 323 ; 2 L. of an individual is as really ultra vires J. Ex, 458 ; South Yorkshire R.R. Co. as the unauthorized act of a corpora- V. Gt. Northern R.R. Co., 9 Exch. 84; tion." lb., per LORD, J. Nat. Manure Co. v. Donald, 28 L. J. ' Green's Brice's Ultra Vires, 2d Am. Ex. 185, 188. See Miller v. Milwau- Ed. 28. kee, 14 Wis. 642. * Freeland v. Pa. Centr. Ins. Co., 94 1 Nat. Pemberton Bank v. Porter, Pa. St. 504. 125 Mass. 333. "There is nothing of * Whitney Arms Co. v. Barlow, 63 mystery or of sanctity in the use of the N. Y. 62. words of a dead language, ultra vires. § l6l AND HEREIN OF ULTRA VIRES. 597 directors and under the corporate seal for the building of a church, or college, or an almshouse, would be clearly ultra vires, but it would not be illegal. If every corporator should expressly assent to such an application of the funds,' it would still be ultra vires, but no wrong would be com- mitted and no public interest violated. So a manufactur- ing corporation may purchase ground for a school-house, or a place of worship for the intellectual, religious, and moral improvement of its operatives. It may buy tracts and books of instruction for distribution among them. Such dealings are outside of the charter ; but so far from being illegal or wrong, they are in themselves benevolent and praiseworthy. So, a chureh corporation may deal in exchange. This, although ultra vires, is not illegal, be- cause dealing in exchange is in itself a lawful business, and there is no State policy in restraint of that business." ^ The term ultra vires is sometimes, however, used to denote what is outside of the powers — not of a particular corpora- tion, but of every corporation. By-laws in restraint of trade are ultra vires in this sense.^ § 161. Rule as to contracts which are ultra vires. — When a corporation is prohibited from entering into a particular class of contracts, which are therefore illegal, and not sim- ply ultra vires, and especially if such contracts have been declared void by the charter or general laws of the State, no action can be maintained upon the prohibited contract, and performance of it may be enjoined by a stockholder or other interested party.^ A distinction has been made be- ' COMSTOCK, J., in Bissell v. Mich. R.R. Co. v. Proctor, 29Vt. 93; Crocker Southern & Northern Ind. R.R. Co., v. Whitney, 71 N.Y. 161 ; Morris &Es- 22 N. Y. 258. sex R.R. Co. v. Sussex R.R. Co., 20 N. '^ Green's Brice's Ultra Vires, 2d Am. J. Eq. 542; Farmers', etc.. Bank v. Ed. 35. ■ Baldwin, 23 Minn. 198 ; Mathews v. ' Smith V. Ala. Life Ins. & Trust Co., Skinker, 62 Mp. 329 ; City of Memphis 4 Ala. 558 ; Orr v. Lacey, 2 Dougl. v. Memphis Gayoso Gas Co., 9 Heisk. Mich. 230; Bank of Chillicothe v. 543; Davis v. Old Colony R.R. Co., Swayne, 8 Ohio, 257; Rutland, etc., 131 Mass. 258; Green v. Seymour, 3 598 POWER TO CONTRACT, §i6r tween an act of a corporation in violation of an express prohibition in its charter or in some other law relating thereto, and a defect of power in the corporation to do the act when the transaction is not the exercise of a po"Wer not Sandf. Ch. 285 ; Bangor Boom v. Whit- ing, 29 Me. 123 ; Life, etc., Co. v. Manufacturers', etc., Co., 7 Wend. 31 ; New York, etc., Ins. Co. v. Ely, 5 Conn. 560 ; Beach v. Fulton Bank, 3 Wend. 573 ; Albert v. Savings Bank, I Md. Ch. Decis. 407 ; Abbot v. Bait., etc., Co., lb. 542 ; Strauss v. Eagle Ins. Co., 5 Ohio St. 59 ; Bacon v. Miss. Ins. Co., 31 Miss. 116; Bank of Genesee V. Patchin Bank, 13 N. Y. (3 Kern.) 315; Gage V. Newmarket, 18 Q. B. 457 ; Montgomery v. Montgomery, etc.. Plank R. Co., 31 Ala. 76 ; Chambers v. Falkner, 65 Id. 448. In Downing v. Mt. Washington R. Co., 40 N. H. 230, the court said : " If a corporation at- tempt to enforce a contract made with it in a case beyond the legitimate lim- its of its corporate power, that fact be- ing shown will ordinarily constitute a perfect defense. And if a suit is brought upon a contract alleged to be made by a corporation,' but which is shown to be beyond its corporate power to enter into, the contract will be regarded as void, and the corpora- tion may avail itself of that defense." See Leavitt v. Palmer, 3 Comst. 19. Contracts contrary to the provisions of a statute are void, though the law does not expressly so declare. Where an excise law did not in terms prohibit the sale of strong or spirituous liquors with- out a license nor declare the act ille- gal, but only inflicted a penalty upon the offender, it was held that the thing was unlawful, as it could not be in- tended that a statute would inflict a penalty for a lawful act. Griffith v. Wells, 3 Denio, 226. It was decided that a foreign incorporated banking company which violated: a, restraining act could not recover the amount of a check discounted by it ; the court re- marking that any contract founded upon an unlawful act, whether it be malum prohibitum or m,alum in se, could not be enforced by action. Pen- nington V. Townsend, 7 Wend. 276. Directors of a corporation cannot waive the provisions of a prohibitory statute forbidding them from partici- pating in the benefits of a contract. Bartow v. Port Jackson, etc., R.R. Co., 17 Barb. 397. In Bissell v. Mich. Southern, etc., R.R. Co., 22 N. Y. 258, it was maintained by Comstock, J., that a contract made by a corpora- tion with an innocent third party, though not authorized by the charter, might be enforced against the corpora- tion under circumstances of controlling equity ; while Sf.lden, J., held that such a contract was void and could not be enforced by any one. See Taylor v. Chichester & Midhurst R.R. Co., L. R. 2, Exch. 356. " Contracts should be palpably ultra vires before they should be held to be void for that reason at the instance of the company as against innocent third persons dealing with it. Corporations should be restricted so far as courts can in the exercise of their powers limit them to the exercise of their legitimate functions. But the plea is not a gracious one that a contract which they have deliberately made,, and of which they have re- ceived the full benefit, is void for want of power in them to make it. Eminent judges have expressed regret that covenants, entered into deliberately and with fair intentions on both sides, should be resisted on the ground of ultra vires, ' a sentiment,' says. Lord § i6i AND HEREIN OF ULTRA VlRES. 599 conferred on the corporation, but the abuse of a general power in a particular instance.^ When the act is ultra vires, in the sense that it is not within the scope of the powers of the corporation to perform it under any circumstances or for any purpose, the defense is in general available, be- Campbell, after quoting it from Lord St. Leonards, ' in which we should all con- cur.'" Allen, J., in Carey v. Cleve- land & Toledo R.R. Co., 29 Barb. 35. In Kent v. Quicksilver Mining Co., 78 N. Y. 159, the court said : " In the ap- plication of the doctrine of ultra vires, it is to be borne in mind that it has two phases^ — one where the public is con- cerned, one where the question is be- tween the corporate body and the stockholders in it, or between it and its stockholders and third parties deal- ing with it, and through it with them. When the public is concerned to re- strain a corporation within the limits of the power given to it by its charter, an assent by all the stockholders to the use of- unauthorized power by the cor- porate body will be of no avail. When it is a question of the right of a stockholder to restrain the corporate body within its express or incidental powers, the stockholder may in many cases be denied on the ground of his express assent, or his intelligent though tacit consent to the corporate action. If there be a departure from statutory direction which is to be considered merely a breach of trust to be restrained by a stockholder, it is pertinent to con- sider what has been his conduct in re- gard thereto. A corporation may do acts which affect the public to its harm, inasmuch as they are per se illegal or are malum prohibitum. Then no assent of stockholders can validate them. It may do acts not thus illegal, though there is want of power to do them, which affect only the interest of the stockholders. They may be made good by the assent of the stockholders, so that strangers to the stockholders, dealing in good faith with the corpora- tion, will be protected in a reliance on those acts." ' State Board of Agriculture v. Citi- zens' Street R.R. Co., 47 Ind. 407; Monument Nat. Bank v. Globe Works, loi Mass. 57. In an action by a bank against the drawer and indorser of a bill of exchange payable nine months from date, given to the bank for ad- vances on cotton to be shipped by the bank to a foreign port and sold for the account and at the risk and expense of the owner, and the bill credited with the amount of the net proceeds, adding the difference of exchange, the trans- action was held not to be a dealing in goods, wares, or merchandise within the charter of the bank ; the phrase, " to deal in," meaning to buy and sell for the owner on commission. Bates V. Bank of the State, 2 Ala. 451. In construing the words of prohibition in the charter of the Bank of the United States, which were " to deal or trade in goods, merchandise, or commodities whatsoever," it was held that the cor- rect interpretation of the charter was that it did not prohibit purchases gen- erally, but the buying and selling for the purposes of gain ; that it aimed to interdict the bank from doing the or- dinary business of a trader or merchant in buying and selling goods for profit, and employed the words " deal " and " trade " in contradistinction to pur- chases made for the accommodation or use of the bank or resulting from its ordinary banking operations. Fleck- ner v. Bank of U. S., 8 Wheat. 338. 6oO POWER TO CONTRACT^ § l6l cause all persons are presumed to know, from the law of the corporate existence, that the corporation has no power to perform the act.^ But when the act is ultra vires with reference to the rights of certain parties without whose consent the corporation is not authorized to perform it, or with reference to some specific purpose when it is not au- thorized to perform it for that purpose, although within the general powers of the corporation with the consent of the parties interested, or for some other purpose, the defense may or may not be available, depending sometimes upon the question whether the party dealing with the corporation was aware of its intention to perform the act for an unau- thorized purpose, or under circumstances not justifying its performance." While the contracts of a corporation which are entirely foreign to the objects and purposes of its crea- tion are void, contracts in excess of its powers in some par- ticulars may be valid, unless against public policy on account of such excess.^ "The distinction is obvious between a ' Franklin Co. v. Lewiston Inst, for but are beyond the authority conferred Savings, 68 Me. 43 ; Davis v. Old Col- upon the officers. Such acts, though ony R.R. Co., 131 Mass. 258 ; Alexan- contrary to the provisions of the char- der V. Cauldwell, 83 N. Y. 480 ; Selig- ter, if authorized by the stockholders, man v. Charlottsville Nat. Bank, 3 or acquiesced in or confirmed, cannot Hughes C. C. 647 ; Mut. Savings Bank be avoided after third persons have V. Meriden Agency Co., 24 Conn. 159. acted upon them. They are regulated by See Abbott v. Bait., etc., Steam Packet the rules which govern the relation of Co., I Md. Ch. 542 ; Nat. Trust Co. v. principal aiid agent to third persons." Miller, 33 N. J. Eq. 155 ; Gunn v. Cen- Hazlehurst v. Savannah, etc., R.R. Co., tral R.R. Co., 74 Ga. 509. 43 Ga. 13. In Eastern Counties R.R. ^ Miners' Ditch Co. v. Zellerbach, 37 Co. v. Hawkes, 5 H. L. Cas. 331, 373, Cal. 543 ; Balliet v. Brown, 103 Pa. St. it was said by Lord ST. Leonards 546 ; Sheldon, etc., Co. v. Eickemeyer, that he felt disposed " to restrain the etc., Co., 90 N. Y. 607. doctrine of ultra vires to clear cases ' Germantown Farmers' Mut. Ins. of excess of power with the knowledge Co. V. Dhein, 43 Wis. 420 ; Rock River of the other party, express or implied, Bank v. Sherwood, 10 Id. 230 ; Farm- from the nature of the corporation and ers' & Traders' Bank v. Harrison, 57 of the contract entered into." Differ- Mo. 503. " Acts of the officers of a ence between exercising powers foreign corporation are often said to he. ultra to corporation, and exercising legitimate vires when they are within the scope powers to an improper extent. Whitman of the franchise granted in the charter. Mining Co. v. Baker, 3 Nevada, 386. § l6l AND HEREIN OF ULTRA VIRES. 6oi' contract by a corporation made in reference to a subject lying entirely without the range of the objects for which its powers were granted, and an irregular or illegal exercise of a right conveyed by its charter. If a corporation make a contract entirely foreign to the purposes of its institution, the act is void simply for want of power in reference to the subject matter. But where a corporation enters into a contract in reference to a subject embraced within the scope of its granted powers, but in so doing exceeds them, the contract will not be rendered void. It might constitute a ground for the resumption of its franchises by the State, but could not be objected to by the party sought to be charged."^ When corporations are organized under general laws, and are required to file in the office of the secretary of state a certificate showing the purpose for which the cor- poration is constituted, and all acts of incorporation are therefore deemed public acts, a person who makes a con- tract with a corporation is bound at his peril to take notice of the limits of its power. There is, however, as we have already said, a distinction between the exercise by a corpo- ration of a power not conferred upon it as declared by the ' Haynes v. Covington, 21 Miss. (13 the corporation deals with a subject Smed. & Marsh) 408; Littlewort v. within the scope of its granted powers,^ Davis, 50 Miss. 403. " In applying the but for a purpose or in a mode not au- doctrine of ulira vires in a particular thorized by its charter. Thus, where case, regard must not only be had to property which the corporation under the unauthorized agreement or trans- certain circumstances is authorized by action, but also to the relation which its charter to acquire, is purchased in a the litigating parties sustain to it. mode or for a purpose not authorized. Where there is an absolute or total it seems clear that the title of the cor- want of power in a corporation to deal poration to the property cannot be de- in respect to a given subject, it may be feated by a party who is a stranger to that acts done in the name of the cor- the agreement by which the property poration in regard to such subject, was acquired and who is not injured would, as corporate acts, be void for by the transfer." Ehrman v. Union all purposes, and as against all persons. Cent. Life Ins. Co., 35 Ohio St. 324. But there is an obvious distinction be- See Memphis v. Memphis Gayoso Gas tween such a case and one where Co., 9 Heisk. Tenn. 531. 602 POWER TO CONTRACT, § l6l law of its organization, and the abuse of a general power, or the failure to comply with formalities or regulations in a particular instance, when such abuse or failure is not known to the other contracting party.^ Thus, where a cor- poration has power to make negotiable promissory notes, such a note is valid in the hands of a bona fide holder for value, although made by the corporation as an accommo- dation note.* But a note given by a corporation prohibited from giving notes, would be voidable, not only in the hands of the original payee, but in those of any subsequent holder ; because all persons dealing with the corporation are bound to take notice of the extent of its chartered powers. The same principle is applicable to contracts not negotiable. If the question of power depends not merely upon the law under which the corporation acts, but upon the existence of certain extrinsic facts resting peculiarly within the knowledge of the corporate officers, the corpo- ration will be estopped from denying that which by assum- ing to make the contract it had virtually affirmed.* There ' Davis V. Old Colony R.R. Co., su- Wall. 282 ; Smead v. Indianapolis, etc., pra ; Zabriskie v. Clevelaiid, etc., R.R. R.R. Co., 1 1 Ind. 104. " The logic of Co., 23 How. 381. the law, and certainly its morality, are ' Monument Nat. Bank v. Globe not opposed to the doctrine that the Works, loi Mass. 57. When a corpo- legislature may prohibit the contract ration has exercised powers incidental and punish the guilty parties, and yet to those conferred in furtherance of leave the Contract to stand in favor of t^ie general objects of its creation, al- innocent persons not included in the though the contract may not be within terms of tiie prohibition." COMSTOCK/ any express right conferred, it will be Ch. J., in Oneida Bank v. Ontario e-stopped from denying that it had au^ Bank, 21 N. Y. 490. A contract with thority to make the contract. This a corporation may be binding on the rule has its foundation in the principles parties, though it was an abuse of the of natural justice which require good corporate powers for which the corpo- faith with third parties deaUng with ration is answerable to the government a corporation who have no definite which created it. Bank of South Car. knowledge of the extent of its powers, v. Hammond, i Rich. 288 ; Southern Chicago Building Soe. v. Growell, 65 Life Ins. & Trust Co. v. Lanier, 5 Fla. Ill, 453. no. Where a banking corporation, » Bissell V. Mich. South., etc., R.R. created by an act of the legislature of Co., 22 N. Y. 289, 290, per Selden, the State of Pennsylvania, having taken J.; City of Lexington v. Butler, 14 a mortgage on land in the State of § i6i AND HEREIN OF ULTRA VIRES, 603. is an important difference with respect to the application of the doctrine of ultra vires in the case of contracts which are purely executory, and where contracts have been fully or even partially executed. The first mentioned con- tracts, if ultra vires, will not be enforced where no wrong will be done by leaving the parties in their previous situ- ation. But the executed dealings of a corporation will be allowed to stand for and against both of the parties when the plainest rules of good faith so require.^ New York, to secure a loan of money made at their bank in the former State, it was objected that as the charter only authorized the bank to take mortgages for debts previously contracted, it had no right to take a mortgage concur- rently with the loan. Chancellor Kent said : " If this objection were strictly true in point of fact, I should not read- ily be disposed to listen to it. Perhaps it would be sufficient for this case that the plaintiffs are a duly incorpo- rated body, with authority to contract and take mortgages and judgments; and if they should pass the exact line of their power, it would rather belong to the government of Pennsylvania to exact a forfeiture of their charter, than for the court in this collateral way to decide a question of misuser by setting aside a just and bona ftde contract." Silver Lake Bank v. North, 4 Johns. Ch. 370. A bank was authorized by its charter to purchase, hold, and con- vey real estate as follows : Such as should be necessary for its immediate accommodation in the convenient trans- action of its business ; such as should be mortgaged to it as security for loans ; such as should be conveyed to it in satisfaction of debts previously contracted in the course of its dealings ; such as it should purchase at sales un- der judgments, decrees, or mortgages held by it. The bank acquired a small lot of land in a village from the holder of a sheriff's certificate of sale on exe- cution. The consideration expressed in the assignment was "for value re- ceived." It was held that these words might be referred with equal propriety" to a present value paid down, or to a debt previously existing, in satisfaction of which the assignment was made ; or they might include value of any de- scription ; that although the bank had no general authority to deal in real es- tate, but could take and hold land only for specified purposes and for specified' considerations, yet as the terms of the^ conveyance were consistent with the powers thus granted, the presumption was in favor of the title of the bank, because there was nothing to impeach it. Chautauqua Co. Bank v. Risley, 19 N. Y. 369 ; S. C. 4 Denio; 480. - And see Same v. White, 2 Seld. 236. ' Parish v. Wheeler, 22 N. Y. 494; Argenti v. San Francisco, 16 Cal. 255. It has been held that if the parties be in pari delicto, and the cofitract be executed, they are without remedy ; but that although the contract be executed^ yet if the parties be not in pari delicto^ the claims of justice of the less guilty party will be reconciled with the claims of public policy ; that where a corpora- tion, having power to do certain things, exceeds its power, and parties dealing; with it have no knowledge that its con- duct is unlawful, the corporation will be decreed to pay debts contracted in 6o4 POWER TO CONTRACT, §i6i When the question is merely as to the power to contract in the particular instance, a party who has had the benefit of the contract should not be permitted, especially when no unlawful intent is charged upon the other party, to question its validity.' In other words, the doctrine of ultra vires ought not to be allowed to prevail where it would defeat the ends of justice, and work a legal wrong.* " The rule seems well established, that if a contract has been executed furtherance of its unlawful pursuit. Ohio Life Ins. & Trust Co. v. Mer- chants' Ins. & Trust Co., ii Humph, i. ' See De Groff v. Am. Linen Thread Co., 21 N. Y. 124; S. C. 24 Barb. 375 ; Hitchcock V. Galveston, 96 U. S. 341 ; State Board of Agriculture v. Citizens' Street R.R. Co., 47 Ind. 407 ; Gold Mining Co. v. Nat. Bank, 96 U. S. 640 ; Steam Nav. Co. v. Weed, 17 Barb. 378 ; Buffett V. Troy and Boston R.R. Co., 40 N. Y. 168 ; Alleghany City v. McClurkan, 14 Pa. St. 81 ; City of Natchez v. Mallory, 54 Miss. 499 ; Underwood v. Newport Lyceum, 5 B. Mon. 129. " Where corporations have exercised powers incidental to those conferred, and in furtherance of the general objects of the corporation, al- though the subject of the contract may not be within any express right con- ferred, they will be estopped from de- nying that they had authority to make such contracts. Good faith to third parties who deal with such corpora- tions, and who may have no accurate knowledge of the extent of their powers under their charters, requires the adop- tion of this salutary rule. The rule has its foundation in the plainest principles of natural justice. When such corpo- rations have received the benefit of a contract, if there is nothing in it con- trary to public policy, there can be no just reason why they should not be re- quired to enforce it." Chicago Build- ing Soc. V. Crowell, 55 111. 417. See State of Indiana v. Woram, 6 Hill, 37 ; Moss v. Rossie Lead Mining Co., 5 Id. 137; Potter V. Bank of Ithaca, Ibid. 490 ; Suydam v. Morris Canal & Bank- ing Co., lb. 491, «o/«/ Sackets Harbor Bank v. Lewis County Bank, 11 Barb. 213 ; Chester Glass Co. v. Dewey, 16 Mass. 102 ; McCutcheon v. Steamboat Co., 13 Pa. St. 13 ; Palmer v. Lawrence, 3 Sandf. 170. Where certain land- owners entered into a contract with a railroad company, that in consideration that the former obtained from the ad- miralty a waiver of an obligation im- posed upon the company by its act to construct certain works, and upon con- veyance by the landowners of the neces- sary land, the company would make a carriage road between specified points, and also make and maintain a wharf of stipulated dimensions for loading and discharging vessels, and the landowners fulfilled the agreement on their part, it was held on a bill for specific perform- ance that the contract was not ultra vires, and that it might be enforced against the company. Wilson v. Fur- niss R.R. Co., L. R. 9, Eq. 28. See Storer v. Gt. Western R.R. Co., 2 Younge & Collier, Ch. (21 Eng. Ch.) 48. "Darst V. Gale, 83 111. 136 ; Railway Co. V. McCarthy, 96 U. S. 258 ; San Antonio v. Mehaffy, Ibid. 312 ; Whit- ney Arms Co. v. Barlow, 63 N. Y. 62 ; Camden & Atlantic R.R. Co. v. May's Landing, etc;, R.R. Co., 48 N. J. 530. § l6l AND HEREIN OF ULTRA VIRES. 605 and fully performed on the part either of the corporation or of the other contracting party, neither will be permitted to insist that the contract and such performance by one party were not within the corporate power of the com- pany." ^ Therefore, when a corporation has entered into a contract which has been fully executed on the other part, and nothing remains but the payment by the corporation of the consideration, it will not be allowed to set up that the contract was ultra vires? It has been held that a corpora- tion cannot avoid the repayment of borrowed money, or payment for labor and money expended in behalf of the corporation, on the ground that, while it had power to em- ploy the money and labor, it did so in order to carry on business which it was not authorized to prosecute, even if the other party was aware of the fact, provided the business itself was free from any intrinsic immorality or illegality.^ " Corporations," says the court, in Converse v. Norwich, etc., Co.,* "have, within a few years, under general laws, become so numerous, and are so connected with and so control the business of the country, and even its religious and benevolent agencies, that the courts have gradually come to think it necessary to relax the technical and theo- retical strictness of the legal principles applicable to them, and subject them to the same liabilities for the acts of their agents as natural persons, so far as it can be done practical- ly and consistently with their charters." The charter of a telegraph company contained a proviso that the lines of the company should be open for sending and receiving dis- patches to all persons alike, without favor or preference, subject to such equitable charges and such reasonable regu- ' Hayes v. Galion Gas Co., 29 Ohio ' Bradley v. Ballard, 55 111. 413 ; Gas St. 330 ; Union Mining Co. v. Rocky Mt. Co. v. San Francisco, 9 Cal. 453 ; Tracy Nat. Bank, 2 Col. 256; Attleborough v. Talmage, 14 N. Y. 162 ; Gould v. Nat. Bank v. Rogers, 125 Mass. 339. Oneonta, 3 Hun, 401. « Oil Creek, etc., R.R. Co. v. Pa. * 33 Conn. 166. Trans. Co., 83 Pa. St. 160. 6o6 POWER TO CONTRACT, § l6l lations as might from time to time be made by the com- pany. The company having entered into a contract with the plaintiff to transmit his messages for half price, in con- sideration that the plaintiff would send all of his own mes- sages by their line, and collect public intelligence and bring custom to the company. Lord Campbell, Ch. J., doubted whether, although the proviso in the charter might be made the foundation for complaints against the company, it could be available to them in resisting a de- mand under the contract into which they had entered, but said that the allowance to the plaintiff seemed rather a remuneration to him for his services, than any preference or partiality, and it had not been shown that the deal- ings of the company with the plaintiff were not according to equitable charges and reasonable regulations.^ It was said by the court with reference to a contract entered into by a railroad company: "Though the company might have had no special authority by their charter to make such contracts, and could perhaps have been enjoined or re- strained from doing it by proper proceedings, they could not plead such want of authority against persons so con- tracting with them. To do so, would be taking advantage of their own wrong."* The same principle has been held applicable to an individual attempting to screen himself from liability when contracting with a corporation. Thus, where a license to fill up a watercourse was obtained from a corporation in consideration that the licensee would re- open and restore the watercourse when requested, it was held, in a suit against the licensee for a breach of his prom- ise, that he was^ estopped from setting up that the owner- ship and maintenance of the watercourse by the corpora- tion were ultra vires? Where it appeared that a railroad ' Reuter v. Electric Telegraph Co., * Hamilton, etc.. Hydraulic Co. v. C. 37 Eng. L. &Eq. 189. H. & D. R.R. Co., 29 Ohio St. 341. " Perkins v. Portland, etc., R.R. Co., See So. Life Ins. Co. v. Lanier, 5 Fla. 47 Me. 573. no. "It ill becomes the defendants § l6l AND HEREIN OF ULTRA VIRES. 6o7 company, without authority, purchased and paid for a steamboat and several canal-boats, that being in the posses- sion and use of the property in connection with its regular business, it mortgaged the property to its creditor, taking back a charter party and stipulation for a reconveyance if the debt should be paid at the time agreed ; and that the creditor caused a part of the property to be sold after de- fault, and received the proceeds of sale ; it was held that neither the company nor the creditor could object that the transaction was ultra vires on the part of the company.^ The acts of a corporation which are not per se illegal, or malum prohibitum, but which are ultra vires, affecting, however, only the interests of the stockholders, may be made good by the assent of the stockholders, so that stran- gers to them, dealing in good faith with the corporation, will be protected in relying on these acts.* Several of the cases hold that where the contract, being ultra vires, no action can, for that reason, be maintained on the contract, a party may recover the value of the property delivered, or the consideration paid, the parties not being in pari de- licto? " Why should not a corporation be always liable to to borrow from the plaintiff $i,ooo for etc., Co., 14 Fla. 418. "When money a single day to relieve their immediate has been paid upon an executory necessities, and then turn around and agreement which is free from moral say, we will not return you this money, turpitude, and is not prohibited by pos- because you had no power by your itlve law, but which is invalid by reason charter to lend it. Let them first re- of the legal incapacity of a party there- store the money, and then it will be to, otherwise capable of contracting, to time enough for them to discuss with enter into the particular agreement, or the sovereign power of the State of for want of compliance with some Connecticut the extent of the plaintiff's formal requirement of the law (as that chartered privileges." Parker, J., in a contract shall be in writing and the Steam Nav. Co. v. Weed, 17 Barb. 378. like), the money so paid may, while the ' Parish v. Wheeler, 22 N. Y. 494. agreement remains executory, be re- See Pierce v. Emery, 32 N. H. 484. covered back by the party paying it." ' Kent v. Quicksilver Mining Co., 78 Northwestern LTnion Packet Co. v. N. Y. 159; Sheldon Hat Blocking Co. Shaw, 37 Wis. 655. See Salamons v. V. Eickemeyer, 90 Id. 607. . Laing, 12 Beav. 377 ; Atty. Genl. v. ' Maryland Hospital v. Foreman, 29 Dangars, 33 Id. 621 ; Russell v. Wake- Md. 524 ; Allen v. Freedman's Savings, field Waterworks Co., L. R. 20, Eq. 6o8 POWER TO CONTRACT, § l6l refund the money or property of a person which it has ob- tained improperly and without consideration, or, if unable to return it, to pay for the benefit obtained thereby ? To say that a corporation cannot sue or be sued upon an ultra vires arrangement is one thing. To say that it may retain the proceeds thereof which have come into its possession, without making any compensation whatever to the person from whom it has obtained them, is something very differ- ent, and savors very much of an inducement to fraud." ^ On the other hand, a person who has obtained corporate property or funds in an ultra vires transaction, "has ob- tained what the parties dealing with him had no power, no authority, to alienate. It belongs to the corporation, not to him. Therefore, as in every other case of a person obtaining, however bona fide, that which belongs to another, such person must make restoration, in specie or in value, it 474 ; Ossipee, etc., Manf. Co. v. Can- ney, 54 N. H. 295 ; Phila. Loan Co. v. Turner, 13 Conn. 249; Whitney Arms Co. V. Barlow, 63 N. Y. 62. Where the illegal object of the corporation was in the contemplation of both parties, and formed a part of the original con- tract, both are of course in pari de- licto. ' Green's Brice's Ultra Vires, 2d Am. Ed. 721 . " Though a corporation cannot be sued, any more than any other citi- zen, directly upon a contract or analo- gous transaction which does not bind it, yet if it sets up this defense, it must restore to the other party what it has obtained from him. It may repudiate the transaction if it chooses, but if so, it must repudiate altogether ; it cannot reprobate and approbate ; it cannot keep what in another form it has rejected. lb. 717. See Casey v. La Societe, etc., 2 Woods, 77. While courts are inclined to maintain with rigor the limitation of corporate action whenever it is a question of restrain- ing the corporation in advance from passing beyond the boundaries of their charters, they are equally inclined, on the other hand, to enforce against them contracts, though ultra vires, of which they have received the benefit. Brad- ley V. Ballard, 55 111. 413 ; Darst v. Gale, 83 Id. 136; Chippendale, ex parte, 4 De G. M. & G. 19. When the charter of an insurance company provides that policies shall be attested in a particular mode, if a policy happen to be defectively attested, and therefore worthless to the insured, it would not be a defense to the repayment of the premium ; and a contract of a bank for a loan of money, though incapable of being enforced because not signed by the cashier, pursuant to the act, would not prevent the party loaning the money from recovering it back. Boisgerard V. N. Y. Banking Co., 2 Sandf. Ch. 25. The payment of a just claim by a cor- poralyon, though not made as required upon a formal order of the board of di- rectors, cannot be recovered back. New § l6l AND HEREIN OF ULTRA VIRES. 609 seems necessarily to follow that restoration must similarly be made when the alienation was ultra vires." '^ Mr. Brice^ lays down, in substance, the following prop- ositions indicating the chief cardinal principles of the doc- trine of ultra vires : i. A corporation has all the capacities for engaging in transactions which are expressly given it by the constating instruments. This, of course, is but what the common, law lays down ; 2. A corporation has all the capacities for engaging in transactions which are impliedly given it by reasonable implication from the language of the constating instruments. The difficulty consists in deter- mining what these implied capacities are ; 3. A corporation has all the capacities or powers for management which are given it by its constating instruments, either expressly or by reasonable inference therefrom. Questions of manage- ment are of frequent occurrence and of great practical im- portance ; 4. Capacities or powers for management may be given by wide general language ; 5. Corporations have no capacities or powers other than those indicated in the four previous propositions, and they cannot legally or val- idly engage in other transactions ; 6. Courts, in dealing with corporations, will look to those capacities and powers only which, they actually possess at the time ; 7. Corpora- tions cannot be rendered directly liable upon ultra vires transactions, but must account for benefits received there- from. As long as the transaction remains executory, it cannot be enforced ; 8. vSpecial proceedings, in themselves ultra vires, will sometimes be upheld as having been ren- dered necessary by unexpected circumstances ; 9. Formali- Orleans Building Co. v. Lawson, 1 1 Water Co. v. Murphy's Flat Fluming La. O. S. 34. Co., 22 Cal. 621 ; Nat. Bank v. Whit- ' Green's Brice's Ultra Vires, 2d Am. ney, 103 U. S. 99 ; Union Nat. Bank Ed.658 ; Whitney Arms Co.v.Barlow,63 v. Hunt, 76 Mo. 439 ; Kelly v. People's N. Y. 62; HallManf. Co. v. American, Transp. Co., 3 Oregon, 189. etc., Supply Co., 48 Mich. 331 ; Oil ' Green's Ultra Vires, part, 2, ch. i, Creek, etc., R.R. Co. v. Pennsylvania sec. 4, 2d Am. Ed., p. 41 et seq. Transp. Co., 83 Pa. St. 160; Union VOL. 1,-39 6lO POWER TO CONTRACT, § 1 62 ties are generally not imperative, but merely directory, and therefore the absence of them can be set up against those persons only who were cognizant of the defect. The cau- tions here requisite, are to separate mere formalities from powers and capacities, and to remember that formalities may be essential and imperative, and if so, they must be duly observed; lo. Franchises and special privileges or powers in the nature of franchises, cannot be delegated. Every capacity of a corporation which can be styled special or a privilege, is given to it for itself, for its own purposes, and to be used by itself directly. Any transfer direct or indirect to others, is altogether void ; ii. Special powers, of whatever description, can be used only bona fide for the purposes for which created ; 12. The capacities and powers of the governing body, and a fortiori those of the subordi- nate agents of a corporation, cannot be greater, and will generally be more restricted than those of the corporation ; 13. Any party to an ultra vires transaction may set up the defense thereof, and one corporator may call upon the courts to restrain the corporation from engaging therein. § 162. Contract of directors or officers for their own ben- efit. — ^The directors have sometimes been spoken of as the trustees, and the stockholders as the cestuis que trust. Although directors are not, strictly speaking, trustees, that is, persons having the legal title to property, the beneficial ownership of which belongs to others, yet they occupy a fiduciary position toward stockholders and creditors, and are clothed with important and extensive powers upon the trust and confidence that they will discharge their duties in good faith for the common benefit of the shareholders. A director cannot therefore lawfully, as such, make an agree- ment in which he has a personal interest adverse to the interests of the corporation, whether he enters into the con- tract in its inception, or acquires, an interest in it after- § l62 AND HEREIN OF ULTRA VIRES. 6tl ward.^ It is among the rudiments of the law that the same person cannot act for himself, and at the same time with respect to the same matter as the agent of another whose interests are conflicting. Thus a person cannot be 1 Wood V. Dummer, 3 Mason, 308 ; Jackson v. Ludeling, 2t Wall. 616; Thomas v. Brownsville, Fort Kearney, etc., R.R. Co., I McCrary, 392 ; West St. Louis Sav. Bank v. Shawnee County Bank, 3 Dillon, 403; 95 U. S. 557; Cook V. Sherman, 20 Fed. Rep. 167 ; Hoffman Steam Coal Co. v. Cumber- land Coal, etc., Co., 16 Md. 456; Cum- berland Coal Co. V. Sherman, 30 Barb. 555 ; Samev. Parish, 42 Md. 598 ; Jones V. Morrison, 31 Minn. 140 ; Koehler v. Black River Falls Co., 2 Black. 715; Peabody v. Flint, 6 Allen, 52 ; Parker V. Nickerson, 1 37 Mass. 487 ; Richards V. New Hampshire Ins. Co., 43 N. H. 263 ; Hodges v. N. E. Screw Co., i R. L 312 ; Bliss V. Matteson, 45 N. Y. 22 ; Butts V. Wood, 37 Id. 317 ; Coleman V. Second Av. R.R. Co., 38 Id. 201 ; Blake v. Buffalo Creek R.R. Co., 56 Id. 485 ; Heath v. Erie R.R. Co., 8 Blatchf 347 ; Covington, etc., R.R. Co. V. Bowler, 9 Bush. Ky. 468 ; United Soc. of Shakers v. Underwood, lb. 609 ; Goodin v. Cincinnati, etc., Canal Co., 18 Ohio St. 169 ; Hale v. Bridge Co., 8 Kansas, 466 ; Bryan v. Leaven- worth, etc., R.R. Co., 21 Id. 365 ; Flint, etc., R.R. Co. v. Dewey, 14 Mich. 477 ; Gallery v. Nat. Exchange Bank, 41 Id. 169; Guild v. Parker, 43 N. J. 430 ; Redmond v. Dickerson, 9 N. J. Eq. (i Stockton) 507 ; Gardner v. Butler, 30 Id. 702 ; McDowell v. Mech. & Agr. Co., 38 Ark. 17 ; Alford v. Miller, 32 Conn. 543 ; Port v. Russell, 36 Ind. 60 ; McAleer v. McMurray, 58 Pa. St. 126; Simons v. Vulcan Oil, etc., Co., 61 Id. 202; Rice's Appeal, 79 Id. 168 ; First Nat. Bank v.Gifford, 47 Iowa, 575 ; Blair Town Lot, etc., Co. V. Walker, 50 Id. 376 ; San Diego v. San Diego, etc., R.R. Co., 44 Gal. 106 ; Farmers' & Merchants' Bank v. Downey, 53 Id. 466 ; Davis v. Rock Creek, etc., Mining Co., 55 Id. 359; Hoyle V. Pittsburgh, etc., R.R. Co., 54 N. Y. 314; Abbott V. Am. Hard Rub- ber Co., 33 Barb. 578; Inglehart v.Thou- sand Island Hotel Co., 32 Hun, 377 ; Bank v. Flour Co., 41 Ohio St. 552; Hopson V. Aetna Axle & Spring Co., 50 Conn. 597 ; European & N. Am. R.R. Co. V. Poor, 59 Me. 277 ; Ash- urst's Appeal, 60 Pa. St. 291 ; Cook v. Berlin Woolen Mill Co., 43 Wis. 433 ; Levisee v. Shreveport City R.R. Co., 27 La Ann. 641 ; Paine v. Lake Erie, etc., R.R. Co., 31 Ind. 283 ; Stewart v. Lehigh Valley R.R. Co., 38 N. J. 505 ; Harris v. North Devon R.R. Co., 20 Beav. 384. In Coal and Iron Co. v. Sherman, 30 Barb. 553, the court said : "Those who assume the position of directors and trustees, assume also the obligations which the law imposes on such a relation. The stockholders confide to their integrity, to their faith- fulness, and to their watchfulness, the protection of their interests. This duty they have assumed, this the law im- .poses upon them, and this those for whom they act have a right to expect. The principals are not present to watch over their own interests ; they cannot speak in their own behalf; they must trust to the fidelity of their agents. If they discharge these important duties and trusts faithfully, the law interposes its shield for their protection and de- fense; if they depart from the hne of their duty, and waste, or take to themselves instead of protecting the property and interests confided to them, the law, on the application of those thus wronged 6l2 POWER TO CONTRACT, § 1 62 a purchaser of property and at the same time the agent of the vendor. The two positions impose different obliga- tions, and their union would at once raise a conflict be- tween interest and duty ; and, constituted as humanity is, in the majority of cases duty would be overborne in the struggle. The law therefore will always condemn the transactions of a party on his own behalf when, in respect to the matter concerned, he is the agent of others, and will relieve against them whenever their enforcement is season- ably resisted. Directors of corporations, and all persons who stand in a fiduciary relation to other parties and are clothed with power to act for them, are subject to this rule ; they are not permitted to occupy a position which will con- flict with the interest of parties they represent and are bound to protect. They cannot, as agents or trustees, enter into or authorize contracts on behalf of those for whom they are appointed to act, and then personally par- ticipate in the benefits.^ The rule was tersely stated by the court in a case in Wisconsin thus : " We think there is a fatal objection to the plaintiff's right to maintain this action which renders it unnecessary to consider any of the other questions discussed. That is, that inasmuch as it appears that the plaintiff was himself the director of the district at the time the contract was let, and took part as such in the proceedings to let it, it was against public policy to allow him, while holding that fiduciary relation to the district, to place himself in an antagonistic position, and obtain the contract for himself from the board of which he was a or despoiled, promptly steps in to ap- bility, or relieves him from any inca- ply the corrective, and restores to the pacity to deal with the property of his injured what has been lost by the un- cestui que trust." See Barton v. Port faithfulness of the agent Neither Jackson, etc., Plank R. Co., 17 Barb. are the duties or obligations of a di- 397. rector or trustee altered from the cir- ' Wardell v. Union Pacific R.R. Co., cumstance that he is one of a number 4 Dillon, 330; 103 U. S. 651, per of directors or trustees, and that this Field, J. See Marsh v. Whitmore, circumstance diminishes his responsi- 21 Wall. 178. § l62 AND HEREIN OF ULTRA VIRES. 613 member."* In Aberdeen R.R. Co. v. Blackie,* the House of Lords, reversing the judgment of the court below, held that a contract entered into hy a manufacturer for the sup- ply of iron furnishings to a railroad company of which he was a director at the date of the contract, was invalid. Lord Cranworth, in delivering the opinion of the court, said : " A corporate body can only act by agents, and it is of course the duty of those agents so to act as best to promote the interests of the corporation whose affairs they are conducting. Such an agent has duties to discharge of a fiduciary character toward his principal ; and it is a rule of universal application that no one having such duties to discharge shall be allowed to enter into engagements in •Pickett V. School Dist. No. i, 25 Wis. 552. A railroad company agreed in writing under seal, to give A. a lease for ninety-nine years of the hotel to be built at X. Station, the company to have the right to determine the lease if any complaint as to the mode of conduct- ing the business should not be rem- edied within three months after notice of such complaint. It was also agreed that the lessees should have the occu- pation of the refreshment-rooms at X. Station, subject to the same restrictions and provisions as related to carrying on the business of the hotel, both as regarded the quality and prices of pro- Visions, and management. The lease executed pursuant to the foregoing provisions was confined to the hotel, and contained no mention of the re- freshment-rooms. The refreshment- rooms on the up line adjoining the hotel had always been occupied with it. B., a director of the company (head of a firm at X. who were assignees of the lease of the hotel), erected at a cost of ;£2oo, refreshment-rooms on the down- town line, pursuant to an alleged agree- ment with the company that his firm should have a lease of such refreshment- rooms for a term coextensive with the lease of the hotel. The only evidence of such agreement was the following entry in the books of the company : "A ground rent of £6 per annum was or- dered to be fixed for the new refresh- ment-rooms built by the lessees at the down-town station in X." The com- pany gave notice to C, the assignee of B., of the lease, and occupier of both refreshment-rooms, that their arrange- ments with reference to a new station at X. would require the termination of his tenancy of the refreshment-rooms. It was held that with reference to the refreshment-rooms on the down line, no agreement had been shown which could be enforced, especially as the transaction was between a director and the company for the benefit of himself or his firm ; but that, as to the upper refreshment-rooms, C. was entitled to have the agreement carried out by hav- ing a deed executed to him granting the right of occupation by him, his as- signs and nominees, being tenants of the hotel, subject to the provisions and re- strictions of the agreement. Flanagan v. Gt. Western R.R. Co., L. R. 7, Eq. 1 16. "l Macq. 461. 6 14 POWER TO CONTRACT, § 1 62 which he has, or can have, any personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect. So strictly is this principle adhered to, that no question is allowed to be raised as to the fairness or unfairness of the contract so entered into. It obviously is, or may be, impossible to demonstrate how far in any particular case the terms of such a contract may have been the best for the cestui que trust which it was possible to obtain. It may sometimes happen that the terms on which a trustee has dealt, or attempted to deal, with the estate or interests of those for whom he is a trustee, have been as good as could have been obtained from any other person ; they may even at the time have been better. But still, so inflexible is the rule, that no in- quiry on that subject is permitted. The English author- ities on this subject are numerous and uniform." The rule under consideration is of course as applicable to corporate officers as to subordinate agents.^ In Gt. Luxembourg R.R. Co. v. Magnay,^ where the defendant, who was president of the company, was furnished with the money to buy for the company the concession of another line, and bought it from himself, he being the concealed owner of it, the Master of the Rolls said : " I proceed to explain what I mean by the proposition that an agent or trustee cannot retain any benefit for himself from such a transaction. Suppose a company desired to buy an estate, and the trustee undertook to buy it for them, concealing the fact that it was his own estate, and if he then sells it to the company of which he is a director for double its value, the court would not allow the transaction to stand. It would say to the company. You must repudiate the bargain altogether, or you may adopt it if you think fit ; but if. ' West St. Louis Bank v. Shawnee Minn. 292 ; First Nat. Bank v. Gifford, County Bank, 3 Dillon, 403; Cham- 47 Iowa, 575. berlain v. Pacific Wool Growing Co., ° 25 Beav. 586. 54 Cal. 103 ; Rhodes v. Webb, 24 § l62 AND HEREIN OF ULTRA VIRES. 615 from any circumstance whatsoever, it becomes impossible to return the estate, all that the trustee would be entitled to would be the full value of the estate sold ; but when it is said that he cannot make any profit by the transaction, it is not meant that he is not to have the proper value of the property which is actually taken by the company." "The same principle must apply, whether it is property conveyed or services rendered to the company. The cu- pidity and avarice of the trustee is guarded against by giving the cestui que trust the right to repudiate the contract at all times where it is executory, and to allow simply a just remuneration, without reference to the contract price, where it is executed. The trustee thus derives no advantage from his breach of duty, and the company can suffer no detri- ment from his service in their behalf."^ B., the president of a railroad company, having been appointed its general agent, with a general power of supervision and direction, and with authority to do all necessary and proper acts for conducting the business of the company, subject to such regulations as from time to time should be adopted by the board of directors, he and C, the treasurer of the company, purchased land of S., in order to obtain gravel for the road. By the original contract of purchase, the company was to pay eighty-eight dollars in cash, and secure the balance of the purchase money by its notes and a mortgage ; but for reasons personal to the grantor, this mode was abandoned, and B. and C. gave their note for the balance, and the con- veyance was made to them. The company paid the ' Gardner v. Butler, 30 N. J. Eq. (3 fact might not have been intended, and Stewart) 702, per VAN Syckel, J. the transaction might have been to the Where the president and two directors advantage of the railroad company, yet of a railroad company, after making a it was a breach of duty to the stock- contract with an improvement com- holders, and any one interested would pany to build and equip the road, be- be entitled to have an account of the came stockholders in that company, gains and profits. Oilman, Clinton, with the expectation of personal gains, etc., R.R. Co. v. Kelly, •]•] 111. 426. it was held that, although no fraud in 6l6 POWER TO CONTRACT, § 1 62 eighty-eight dollars, and also interest on the note, from its funds in the charge of C. as its treasurer, and the payments were so entered on its books. The gravel having been taken by the company at its own expense, B, and C. sold so much of the land as was not required for the company's use, and with the proceeds paid the note, leaving, a balance of several hundred dollars. It was held that B. and C. were agents and trustees of the company in the purchase and sale of the land, and that the company was entitled to a conveyance from them of the land remaining unsold, and payment of the avails of the sale remaining in their hands.^ A contract was made between a railroad company and a firm of individuals, by which the latter undertook the con- struction and equipment of the road. While engaged upon this work, the members of the firm, together with the pres- ident of the company, one of its directors, and its con- struction agent, entered into a contract with Wathen and Gibson, who owned one hundred and sixty acres of land, situated where the road then being constructed was ex- pected to cross the Illinois Central Railroad, agreeing to sell to the first-named parties an undivided half of the land, as follows : No money was to be paid to the purchasers, but the land was to be laid out into town lots, and sold. The first proceeds of the sale to the amount of $4,800, were to be retained by Wathen and Gibson, the owners, and they were then to convey to the other parties an undivided half of the rest of the land. The only consideration for the contract was that the purchasers should aid, assist, and contribute ■ to the building up of a town on the land. Wathen and Gibson laid out the land in lots, and proceeded to sell, and the town was built. On a bill filed against Wathen and Gibson for specific performance, the court said : " A court of equity will not enforce a contract rest- ' Church V. Sterling, 16 Conn. 388. § 1 62 AND HEREIN OF ULTRA VIRES. 617 ing upon such official delinquency, or even tending to pro- duce it. Such is the character of the contract before us. If we enforce it, we lend the sanction of the court to a class of contracts the inevitable tendency of which is to make the officers of these powerful corporations pervert their trusts to their private gain, at the price of injury at once to the stockholders and to the public. Rendered into plain English, the contract in this case was a bribe on the part of Wathen and Gibson to the president and other of- ficers of the railway company, and to the contractors who were building the road, of an undivided half of one hundred and sixty acres of land, in consideration of which the road was to be constructed on a certain line, and a depot built at a certain point. Now, if this was the best line for cross- ing the Illinois Central, considered with reference to the interests of the stockholders and of the public, then it was the duty of the company to establish it there ; and if they intended so to do because it was the proper line, but pro- fessed to be hesitating between this and another line, in order to secure for themselves the contract under consider- ation, as is somewhat indicated by the evidence, then they were practicing a species of fraud upon the defendants, and using a false pretext in order to acquire the defendants' property without consideration. If, on the other hand, this line was not the best, but was adopted because of this contract, the case is still stronger against complainants. If such was the fact, they are asking the court to enforce the payment of a bribe, the promise of which induced them to sacrifice their official duty to their private gain. If, as a third contingency, the choice lay between this line and an- other equally good, but not better, and they were influ- enced by this contract to adopt this line, then, although neither the company nor the public has been injured, yet the defendants have made their official power an instrument of private emolument in a manner which no court of equity 6l8 POWER TO CONTRACT, § 162 can sanction. In this particular case, no wrong may have been done, and yet public policy plainly forbids the sanc- tion of such contracts because of the great temptation they would offer to official faithlessness and corruption."' The principle of public policy which forbids transactions of officers or directors in relation to corporate affairs in which their interests conflict with their duties to the cor- poration, has been applied to the case of a member. In an action on an agreement made in consideration of services rendered in procuring the location of a depot, it appeared that a contract was entered into between A. and B., which recited that A. was the owner of land which would be in- creased in value if a railroad company named should estab- lish its depot on the land, and that, in order to induce the company to do so, it would be necessary to form a joint stock company to purchase the land and give a portion of it to the railroad company for its depot, and that B. had agreed to aid in getting up such a joint stock company, and in causing the railroad company to locate its depot on the land, it being understood that he was of the opinion that the railroad company, with a view to the public good and the interests of stockholders, ought to have its depot there ; and A. agreed to pay B. a sum of money so soon as the depot should be located on the land. A joint stock company was accordingly formed and incorporated, with power to purchase and hold the land, and to give a portion of it to the railroad company as an inducement to establish its depot thereon, and an agreement was made between the two corporations by which the depot was thus located. B. was a member of the railroad company when he made the agreement with A., and subsequently became a member of the joint stock company. Shaw, C. J., in delivering the opinion of the court, said : " Without considering the aspects of the contract, we are of opinion that it was con- ' Bestor v. Wathen, 60 111. 138, per Lawrence, C. J. § 1 62 AND HEREIN OF ULTRA VIRES. 619 trary to public policy and to upright and fair dealing, as it tended to injuriously affect the public interest in establish- ing the fittest and most suitable location for the termination of the railroad for the accommodation of public travel ; 2d, as it affects the interests of the proprietors of the railroad ; 3d, as it affected the interests of the joint stock company. The railroad was established for the public accommodation and convenience in the transportation of passengers and merchandise. Like a country road, it was in many respects a common highway. It may be said that it was to be con- structed and located by the corporation. True, as in the case of a turnpike road, it is constructed in the first instance at' the expense of a private company of adventurers, and they are to be reimbursed by a toll levied and regulated by law for their remuneration. The work is not the less a public work, and the public accommodation is the ultimate object. It is also true that it was left to the corporation and directors to fix the termination and place of deposit. In doing this, a confidence was reposed in them acting as agents for the public, — a confidence which it seems could be safely so reposed, when it is considered that the interests of the corporation as a company of passenger and freight carriers for profit was identical with the interests of those who were to be carried, and had goods to be carried, — that is, with the public interest. This confidence, however, could only be safely so reposed under the belief that all the directors and members of the company should exercise their best and their unbiased judgment upon the question of such fitness without being influenced by distinct and extraneous interests having no connection with the accommodation of the public or interests of the company. Any attempt, therefore, to bring into efficient operation such undue in- fluence, has all the injurious effects of a fraud upon the public by causing a question which ought to be decided with a sole and single regard to public interests to be affect- 620 POWER TO CONTRACT, § 1 62 ed and controlled by considerations having no regard to such interests." ^ The directors cannot lawfully benefit or favor any par- ticular shareholder, or class of shareholders. Every au- thority possessed by them is a power, and discretion in the directors, who are trustees for the benefit of all of the shareholders, which is to be exercised for the benefit of all of them.* The directors of a joint stock bank passed a reso- lution to increase the capital to a certain sum by new ;^50 shares, which were to be offered to the old shareholders at the rate of one new share for each old share held by them, upon the payment for each share of ^25 premium, and ;^5 as a first call. The shares not taken up by them were to be disposed of by the directors at ^30 premium. The di- rectors entered into an arrangement with S., by which he was to take at ^30 premium all of the shares not taken up by the old shareholders. A large number of shares were accordingly allotted to S., who paid only ^5 per share, it being arranged that the certificate for these shares should be withheld, that the bank should have a lien on them for the premiums, and that no transfer from him to any pur- chaser should be registered until the ^30 per share on the shares transferred had been paid. S., being unable to take up so many shares, applied to four of the directors to re- lieve him of some of them, and they severally took from him a large number at ;^30 per share, and afterward disposed of them at a profit. It was held by the appellate court affirm- ing the decision of the vice-chancellor, that the four direct- ors must account to the bank for the profits made by them in the sale of the shares.^ There is an exception to the rule which precludes a di- rector from entering into contracts with the corporation, or ' FuUdV V. Dame, 18 Pick. 472. 'Gas Light Improvement Co. v. •Harris v. North Devon R.R. Co., Terrell, L. R. 10, Eq. i68. Compare 20 Beav. 384. Adamson's Case, L. R. 18, Eq. 670. § i63 AND HEREIN OF ULTRA VIRES. 621 from being interested in contracts made between the cor- poration and third persons, when there is a full disclosure by him of the nature and extent of his interest/ so as to enable his co-directors to make an exact estimate of the profits accruing or likely to accrue to the director from the transaction.* Where certain directors were interested in a contract made with the corporation, it was said by the court that "nothing short of a ratification by the board after a full explanation and knowledge of their interest and all of the circumstances, could render such a contract binding upon the corporation."^ § 163. In what manner a corporation may contract. — Primarily the corporate will or assent must be expressed by a majority of the members, whose act is deemed the act of the whole, and who, therefore, for most purposes, not ' York & North Midland R.R. Co. v. Hudson, 16 Beav. 481 ; Bank of Lon- don V. Tyrell, 10 H. L. Cas. 26 ; 31 L. J. Ch. 369 ; Imperial Mercantile Credit Assoc. V. Coleman, 6 H. L. Cas. 189. ° Green's Brice's Ultra Vires, 2d Am. Ed., 481, 482 ; Twin Lick Oil Co. v. Mar- bury, 91 U. S. 587; Buell V. Bucking- ham & Co., 16 Iowa, 284 ; Jones v. Arkansas Mech., etc., Co., 38 Ark. 17 ; Bank v. Flour Co., 41 Ohio St. 552. A director or stockholder may trade with or borrow from or loan money to the company of which he is a member, on the same terms and in like manner as other persons. But in doing so he must act fairly, be free from fraud and oppression, act for the interest of the company, and impose no unfair or un- reasonable terms. Harts v. Brown, "]"] 111. 226. Where an engagement is entered into by individual members of the board of directors with the majority, the former taking no part in the pro- ceedings of the board had in relation to it, it may be valid in the absence of fraud or collusion. Ibid. The presi- dent and director of a corporation is not a trustee of a stockholder, therein, making it his duty as a purchaser of stock to pay a fair and adequate price for it ; to take no advantage of the ofS- cial relation which he bears to the cor- poration or of the knowledge acquired thereby ; and to disclose to the stock- holder all of the material facts within his knowledge not known to the stock- holder affecting the value of the stock. Board of Commrs. v. Reynolds, 44 Ind. 509, Downey, C. J., dissenting. 3 Flint, etc., R.R. Co. v. Dewey, 14 Mich. 477. Where a corporation, be- ing insolvent, confessed judgments to one of its directors for advances made and liabilities incurred by him in behalf of the corporation a long time previous, it was held that the mere fact that he was a director did not render the trans- action fraudulent ; there being nothing which forbids either the members or directors of a corporation to make con- tracts with it, the same as with an in- dividual. Stratton v. Allen, 16 N, J. Eq. (i C. E. Green) 229. 62 2 POWER TO CONTRACT, § 1 63 merely represent, but actually are the corporation.^ A writer on the Civil Law says : " Corporations are bound by their contracts in the same manner as individual per- sons ; for, though the members of a corporation cannot separately and individually give their consent in such man- ner as to oblige themselves as a collective body, yet, being lawfully assembled, it represents but one person, and may consequently make contracts, and by their collective con- sent, oblige themselves thereunto."* Blackstone^ says: " By the Civil Law this major part must have consisted of two-thirds of the whole, else no act could be performed, which perhaps may be one reason why they required three at least to make a corporation. But with us, any majority is sufficient to determine the act of the whole body. And whereas, notwithstanding the law stood thus, some found- ers of corporations had made statutes in derogation of the common law, making very frequently the unanimous assent of the society to be necessary to any corporate act, which King Henry VIII. found to be a great obstruction to his projected scheme of obtaining a surrender of the lands of ecclesiastical corporations, it was therefore enacted by stat- ute, 33 Hen. VIII., ch. 27, that all private statutes shall be utterly void whereby any grant or election, made by the head with the concurrence of the major part of the body, is liable to be obstructed by any one or more being the minority." The fundamental principle of every association for the purposes of self-government is, that no one shall be bound except with his own consent expressed by him- self or his representatives ; but actual assent is immaterial. 'Maxwell v. Dullidge Hospital, i J. Eq. (2 Stockton) 172; Durfee v. Old Fonbl. Eq. 296, n. o; Marshall v. Colony, etc., R.R. Co., 5 Allen, 230; Queensborough, i Sim. & Stu. 520; Dudley v. Ky. High School, 9 Bush. Fleckner V. Bank of U. S., 8 Wheat. 576; New Orleans, etc., R.R. Co. v. 338; Bank of U. S. v. Dandridge, 12 Harris, 27 Miss. 517. Id. 64; Cram v. Bangor House, 12 Me. ^ Ayliffe Civ. L. Sup. d. 12. 354 ; State v. Wilmington, 3 Earring. ^ y^ol. I., p. 478. 294; Gilford V. N. J. R.R. Co., 10 N. § 163 AND HEREIN OF ULTRA VIRES. 623 the assent of the majority being the assent of all ; and this is not only constructively but actually true ; for that the will of the majority shall in all cases be taken for the will of the whole is an implied but essential stipulation in every compact of the sort ; so that the individual who becomes a member assents beforehand to all measures that shall be sanctioned by the majority of the voices.^ At common law, where an act is to be done by a corpo- ration as a whole, it is not essential that it be directed by a majority of all the members composing the body, but all are bound by a majority of those who are present at a meeting duly convened, though less than a majority of the corporators. When the management and control of the corporate affairs is committed to a board of directors, as is now done in almost all private corporations, the will or as- sent of the corporation is expressed through the directors as agents, the whole body of corporators being only called together on very special occasions. In the absence of any- thing on the subject in the charter or act of incorporation, ' Lord V. Governor & Co. of Copper Hardwicke in the case of the chaplain Miners, 2 Phill. 740 ; Stupart v. Ar- of Sandford before mentioned (2 Burr, rowsmith, 3 Sm. & G. 176 ; Kent v. 1019), but seems to be admitted in all Jackson, 3 De G. M. & G. 49 ; Foss v. the cases where the major part is in- Harbottle, 2 Hare, 461 ; In re St. troduced, these words forming the Mary's Church, 7 Serg. & Rawle, 517 ; great objection to the validity of acts Horton v. Baptist Church, 34 Vt. 316; done by a smaller number than a ma- Troy & Rutland R.R. Co. v. Kerr, 17 jority of the whole. To confer a power Barb. 581; Black v. Del., etc.. Canal of acting on the whole body was, there- Co., 22 N. J. Eq. (7 C. E. Green) 130; fore, in effect to enable any part of the East Tenn. R.R. Co. v. Gammon, 5 body to act if all were regularly sum- Sneed, 567 ; Keyser v. Stansifer, 6 Ohio, moned ; but it might, thoygh errone- 363; Newhall V. Galena, etc.Union R.R. ously, be apprehended that, unless a Co., 14 111. 273 ; Mowrey v. Ind. & power of acting were expressly con- Cin. R.R. Co., 4 Biss. 78. "That ferred on the major part, the whole where a charter gives the power of must necessarily assemble ; it was doing corporate acts to a particular therefore as an indulgence, and not to body, and makes no mention of the impose a restraint, but to obviate a major part, any number, however mi- supposed inconvenience, that the power nute, when all are regularly assembled, of acting was conferred on the whole may form a corporate assembly, is not or a major part." i Kyd on Corp. only implied from the words of Lord 422, 423. 624 POWER TO CONTRACT, § 1 63 a majority of the directors must be present at a meeting of the board to form a quorum, and then a majority of the quorum determines the action of the board ;^ there being a distinction between an act to be performed by a select and definite body, as by a board of directors, and one to be performed by the constituent members of the corporation." A corporation may contract by a vote accepting a proposal made in a meeting ;^ or by the intervention of some agent duly authorized to contract in its behalf. A contract en- tered into by a municipal corporation must be made by the common council as a board by the vote or assent of a ma- jority.* Although the acts, doings, and declarations of individual members of a corporation, unsanctioned by the body, are not binding upon it, yet in the absence of any vote, a contract may be shown by inferences drawn from corporate acts, the same as in the case of an individual.^ As the charter is an enabling act, giving the corporation all the power it possesses, when the charter prescribes a mode of contracting that mode must be observed.® Where ' Wells V. Rahway White Rubber amount to a delegation or abandon- Co., 19 N. J. Eq. 402. See Kirk v. ment, but the whole body must still Bell, 16 Q. B. 290; Duncarry V. Gill, 4 retain, and under certain circumstances, C. & P. 121; Brown V. Andrew, 13 ^.^., the dismissal of an officer, actually Jur. 938; Card v.Carr, i C. B. N. S. 197. exercise a general control over the do- = 2 Kent Com. 293. The board can- ings of such committee." Green's Brice's not, without express authority, delegate Ultra Vires, 2d Am. Ed. 543, 544. its power to act in matters involving * Maxwell v. DuUidge Hospital, r personal judgment and discretion to Fonbl. Eq. 296, n. o ; Essex Turnpike less than a quorum. In re Leeds Corp. v. Collins, 8 Mass. 291. Banking Co., L. R. i, Ch. 561; Tot- *Dey v. Jersey City, 19 N.J. Eq. 412. terdell v. Fareham Brick Co., L. R. i, " Bank of Columbia v. Patterson, 7 C. P. 674. •• As the managing body Cranch, 299 ; Proprs. of Canal Bridge are, in effect, but a committee of the v. Gordon, i Pick. 297 ; Peru Iron Co., whole body of members, so they may ex parte, 7 Cowen, 540 ; Am. Ins. Co. also, for the sake of convenience, con- v. Oakley, 9 Paige Ch. 496 ; Peterson stitute, whether for general or special v. Mayor of N. Y., 17 N. Y. 449; N. purposes, committees of themselves, Y. & Harlem R.R. Co. v. New York, I and transfer to such committees, but Hilton, 562 ; Goodwin v. Union Screw not to a stranger, the requisite powers Co., 34 N. H. 378 ; Gowen Marble Co. and authority to act on behalf of the v. Tarrant, 73 111. 608. whole body. Such transfer must not ' Head v. Providence Ins. Co., a § i63 AND HEREIN OF ULTRA VIRES. 625 a statute prescribes the terms and conditions on which rail- road companies shall thereafter issue bonds, bonds issued subsequent to its enactment which do not conform to those conditions, are void, and also the mortgage given to secure them ; and the holder of a second mortgage, not made sub- ject to the first mortgage, may take advantage of their want of validity.^ Although the act creating a corporation provides that a certificate shall be filed as a part of its or- ganization, specifying the name assumed to distinguish such association, and to be used in its dealings, but the act does not declare that a variance in the use of the name thus assumed shall invalidate its contracts, a misnomer in its contract, if there is no doubt of the identity of the corporation, will not vitiate the transaction.* A latent am- biguity as to the particular corporation intended, may, un- der proper averments, be explained by parol evidence to show the intention, the same as in other cases.' A corpo- Cranch, 127 ; Abby v. Billups, 35 Miss. 618. The charter of a mutual insur- ance company provided that the prop- erty insured by the company should be divided by the directors into four dis- tinct classes, and each class be liable for its own losses ; that the premium notes of each class should be holden and assessed to pay the losses in their respective classes ; and that the policy of each member should designate with which class of risks he was associated. The directors were empowered to de- termine the rate of insurance and the amount of premium notes, and to order the issuing of all policies. A by-law of the company provided to what class different kinds of property insured should belong. In an action by the company on a premium note, it was set up in defense that the policy was void and note without considera- tion, because the directors undertook VOL. I. — 40 to insure the defendant in a wrong class of risks. It appeared the contract was fairly made on both sides, with full knowledge of all the facts. It was held that as the company had power to waive the provisions of its by-law, which were introduced for its ben- efit and protection, it was entitled to recover. Union Mu. Fire Ins. Co. v. Keyser, 32 N. H. 313. ' Com. v. Smith, 10 Allen, 448. '^ Boisgerard v. N. Y. Banking Co., 2 Sandf. Ch. 23. 3 Berks & Dauphin Turnpike Co. v. Myers, 6 Serg. & Rawle, 12. As to the proper mode of executing written in- struments by an incorporated religious society, see New Market Savings Bank V. Gillet, 100 111. 254. The common seal of a corporation is prima facie evidence that it was affixed by proper authority. Trustees v. McKechnie, 90 N. Y. 618 ; New England Iron Co. v. 6^6 POWER TO dONTRACt. § 1 63 ratioti cannot make a parol contract unless by the interven- tion of some agent, duly authorised to contract in its be- halfi A parol declaration made to the corporators, at a corporate meeting, would not amount to a contract between the individual and the corporation.^ Elevated R.R. Co., 91 Id. 153. In the fee, 17 111. 155 ; Miller v. Superior Ma- absence of proof, the presumption is chine Co., 79 Id. 450. that a seal used, is the proper and only ' Andover, etc., Turnpike Corp. v. Seal of the corporation. Phillips v. Cof- Hay, ? Mass. 102. CHAPTER XL POWER TO ACQUIRE, HOLD, AND TRANSFER PROPERTY. 1 164. At common law. 165. Limitation of right by statute. 166. Statutes of mortmain. 167. Capacity to take by will. 168. Devise or bequest for a charita- ble use. 169. Grants to religious corporations. 1 170. Title to real estate. 171. Sale of property by religious corporations. 172. Power to take mortgage secu- rity. 173. Mortgaging corporate property. 174. Right of eminent domain. § 164. At common law. — Among the powers or capaci- ties incident to a corporation at common law, without any special mention of such a power in the charter, is that of taking, holding, transmitting in succession, and alienating, property, real and personal, and contracting obligations in the same manner as an individual.* "All civil corpora- ' I Blk. Com. 475 ; Mayor of Col- chester V. Lowten, i Ves. & Beames, 226 ; Binney's Case, 2 Bland Ch. 142 ; Lathrop v. Comm. Bank of Sciota, 8 Dana, 114; The Banks v. Poitiaux, 3 Rand. 136; Reynolds v. Stark County, 5 Ohio, 204 ; Soc. for Prop. Gospel v. Pawlet, 4 Pet. 480; Blanchard's Gun Stock.etc, Factory v.Wamer, i Blatchf. 258 ; Northern Transp. Co. v. Chicago, 7 Biss. 45 ; McCartee v. Orphan Asy- lum, 9 Coweti, 437; Barry v. Mer- chants' Exchange Co., i Sandf. Ch. 280; Sherwood v. Am. Bible Soc, 4 Abb. Ct. of App. Decis. 227 ; Spear v. Craw- ford, 14 Wend. 20 ; Moss v. Averill, 10 N. Y. 449 ; NicoU v. N. Y. & Erie R.R. Co., 12 Id. 121 ; Madison, etc., Plank R. Co., V. Watertown, etc.. Plank R. Co., 5 Wis. 173; New England Fire, etc., Co. V. Robinson, 25 Ind. 536; Old Colony R.R. Co. v. Evans, 6 Gray, 25 ; New York Dry Docks v. Hicks, 5 Mc- Lean, III; Rives v. Dudley, 3 Jones Eq. 126 ; Page v. Heineberg, 40 Vt. 81 ; Thompson v. Waters, 25 Mich. 214. In Hayward v. Davidson, 41 Ind. 212, Downey, J., delivering the opinion of the court, said : " Corporations, when considered with reference to their pow- er to take and hold real estate, may be classified : ist. There are those whose charter or law of creation for- bids that they should acquire and hold real estate. When this is the case, the corporation cannot take and hold real estate, and a deed or devise to such a corporation can pass no title. 2d. Those whose charter or law of creation is silent as to whether they may or may 628 POWER TO ACQUIRE, HOLD, § 1 64 tions," says Kyd,* " such as the corporations of mayor and commonalty, bailiffs and burgesses of a town, or the cor- porate companies of trades in cities and towns, and all corporations established by act of Parliament for some spe- cific purpose, unless expressly restrained by the act which established them, or by , some subsequent act, have, and always have had, an unlimited control over their respective properties, and may alienate in fee, or make what estates they please, for years, for life, or in tail, as fully as any in- dividual may do with respect to his own property." "The only legal check to the acquisition of lands by corporations, consists in those special restrictions contained in the acts by which they are incorporated, and which usually confine the capacity to purchase real estate to specified and neces- sary objects, and in the force to be given to the exception of corporations out of the statute of wills."' The chief objection to permitting corporations to take, hold, or convey land, has been stated to be : i. The dan- ger of their speculating in land to large amounts, keeping it unimproved, and thereby retarding the settlement and cultivation of the country, or, if improved, preventing settlers from obtaining clear or independent titles, and in- troducing a system of tenancies in which the tenants would be in a great measure dependent upon the corpora- tions ; 2. The holding of such land for a long period of not acquire and hold the title to real Counties which are quasi corporations estate. It is as to corporations of this fall under this division. In these cases class that most of the difficulties and the rule seems to be that, as the cor- doubts arise. As a general rule, it may poration may for some purposes acquire be said that in such cases there is no and hold the title to real estate, it can- power to acquire and hold such propr not be made a question by any party ■erty. But if the objects for which the except the State, Whether the real es- corporation was formed cannot be ac- tate has been acquired for the author- complished without acquiring and hold- ized uses or not." Referring to Leazure ing the title to real estate, the power v. Hillegas, 7 Serg. & Rawle, 313 ; to do so would undoubtedly be implied. Chambers v. St. Louis, 29 Mo. 543, ■3d. Those corporations whose charter and cases cited, or law of creation authorizes them in ' Corp., Vol. I, p. 108. some cases, or for some purposes, to ' 2 Kent's Com. 356. take and hold the title to real estate. § i64 AND TRANSFER PROPERTY. 629 time, transmitted by perpetual succession, without any change, as in the case of natural persons ; and 3. The in- fluence which wealthy corporations, holding large bodies of land in the State, might exert over the legislature.' The implied right of a corporation to acquire and hold property is subject to the qualification that the property must be reasonably called for to subserve and carry out the objects of the incorporation, and not obtained for a pur- pose wholly outside or foreign thereto.* A corporation aggregate cannot hold lands in joint tenancy, either jointly with another corporation, or with a natural person, none but natural persons being competent to take such an estate, because, as the corporation never dies, the natural person cannot have the advantage of the incident of survivorship, while he would be subject to it. But a corporation may hold lands in common with a natural person, survivorship not being incident to lands so held.' After the granting ' Thompson V. Waters, 25 Mich. 214, per Christiancy, J. It has been said that " banks are formed and or- ganized for commercial purposes, and not to deal in real estate. Their busi- ness is to discount and negotiate prom- issory notes, drafts, bills of exchange, and other evidences of debt, the buying and selling of bills, bullion, and the lending of money on personal security. To permit them to loan their money on real estate security, would be destruc- tive of their efficiency, and defeat the object had in view in their creation. Instead of being agents for purposes of trade, dealing in commercial paper, discounting notes, and furnishing the necessary facilities for loans, they would have their capital locked up in landed property, and thus be powerless to carry on the business which induced their organization. These speculations in real estate are also hazardous, and have no legitimate connection with the busi- ness of banking ; they require the em- ployment of outside parties to look after the land and examine titles, and are apt to embark the bank in enter- prises which sooner or later will end in insolvency." Warner, J., in Mathews V. Skinker, 62 Mo. 329. ''Pacific R.R. Co. v. Seely, 45 Mo. 212; Rensselaer, etc., R.R. Co. v. Davis, 43 N. Y. 137; Occum Co. v. Sprague Co., 34 Conn. 529 ; Coleman v. San Rafael Turnp. Co., 49 Cal. 517. ' 2 Blk. Com. 184 ; i Kyd on Corp. 72 ; Telfaire v. Howe, 3 Rich. Eq. 235. Sir Edward Coke says : " The &c. at the end of this section implieth that so it is, if any body politic or corporate, be they regular as dead persons in law, or secular, as if lands be given to two bishops to have and to hold to them two and their successors, albeit the bishops were never any dead persons, in law, but always of capacity to take, yet seeing that they take this purchase in their politic capacity as bishops, they are frequently tenants in common be- 630 POWER TO ACQUIRE, HOLP, § 165 of a charter, a corporation is created capable of taking a ^eed of real estate, although at the time of the convey- ance the corporation was not fully organized by the elec- tion of officers;^ though formerly, as a general rule, when a corporation aggregate had by its constitution a head, a grant to the corporation in the vacancy of the headship was void, for the reason that without the head, the corporation being incomplete, could not signify its accept- ance.^ In the absence of any express or implied prohibi- tion, a railroad company has power to sell and convey what- ever property it may hold not acquired under the right of eminent domain, or not so connected with the franchise to operate and manage a railroad that the alienation would tend to disable the company from performing the public duties imposed upon it.^ § 165. Limitation of right by statute. — It is usually pro- vided by the charter or act of incorporation, or by general statutes affecting all corporations, that the property ac- quired and held by the corporation shall be limited to a specified amount ; and the limitation al^o sometimes em- braces the kind of property, and the uses to which it shall be devoted. The disability of a corporation to hold land, implies a disability to become the grantee and vendor of real estate. There can be no grant of land without a grantee capable of taking ; and he who takes and conveys to another must necessarily be, for the time intervening, cause they are seized in several rights ; * i Kyd on Corp. 106. for the one bishop is seized in the right ' Hendee v. Pinkerton, 14 Allen, 381. of his bishoprick of the one moiety. Where real estate has been given to and the other is seized in the right of ecclesiastical, charitable, municipal, his bishoprick of the other moiety, and and similar corporations, a court of so by several titles and in several ca- equity will interfere to prevent a dispo- pacities ; whereas joint tenants ought sition of it which will obstruct the to have it in one and the same right and proper performance of the trust. At- capacity, and by one and the same joint torney-General v. Mayor, etc., of Plym- title." Co. Litt. lib. 3, ch. 4, sec. 296. outh, 9 Beav. 67 ; Reg v. Mayor, etc., ' Rathbone v. Tioga Nav. Co., 2 of Liverpool, 9 A. & E. 435. Watts & Serg. 74. § 165 AND TRANSFER PROPERTY.' 63I the holder of the estate. If the restriction in the charter takes away the capacity to hold, it must therefore take away the power of receiving the estate for the purpose of conveying to another. The corporation cannot deal in real estate, receiving and conveying the title in its corpo- rate capacity, without in every instance holding that estate ; and a title derived through it, to be good, must necessarily imply the right of the corporation to take the estate, and hold the title until conveyed.^ It has, however, been de- cided that an incapacity to purchase or acquire will not be inferred from a prohibition to hold, though the policy of the latter be to prevent the accumulation by the corpora^ tion of a specified description of property, if the object of the conveyance be a sale of the property, and the applica- tion of the proceeds to the objects contemplated by the statute.* Under a charter authorizing a corporation to purchase, hold, sell, and convey such real and personal estate as the purposes of the corporation should require, the question whether certain land claimed by the corpora- tion is necessary for its purposes, is solely a matter between the government and the corporation.* Where, therefore, a bank was authorized by its charter to purchase, hold, possess, and enjoy real and personal property to the amount of two millions of dollars and no more ; " Provided, never- theless, that such lands and tenements which the said cor- poration is hereby entitled to purchase and hold, shall only extend to such lot and lots of ground, and convenient buildings and improvements thereon erected, or to be erect- ed, which they may find necessary and proper for the car- rying on of the business of the said bank, and shall actually occupy for that purpose"; and the bank purchased land in ' See Bank of Michigan v. Niles, i ' Natoma Water & Mining Co. v. Doug. Mich. 401. Clarkin, 14 Cal. 544 ; Barrow v. Nash- 'The Banks v. Poitiaux, 3 Rand, ville, etc., T. Co., 9 Humph. 304; 136; Baird v. Bank of M^ashington, 11 Goundie v. Northampton Water Co., 7 Serg. & Rawle, 411. Barr. 233. 632 POWER TO ACQUIRE, HOLD, § 165 a distant part of the State and sold the same, it was de- cided that the grantee held the title defeasible only by the State.^ So, where the charter of a bank provided that the barik should only purchase and hold such real estate as should be needed for its immediate accommodation, or ac- quired in satisfaction of debts, it was held that the legal' title passed to the bank by a conveyance, and its deed would transfer the title ; and that although if the bank in making the purchase had violated its charter, the corpora- tion for that cause might be dissolved at the suit of the State ; yet if this had not been done, a purchaser could not resist a specific performance of his contract on the ground that the bank had exceeded its powers.* When the charter limits the capital stock to a specified amount, this does not in itself limit the power of the com- pany to take and hold property and incur obligations there- for beyond the amount of the capital.^ And notwithstand- ing the corporation is restricted by its charter to a certain amount in value of real estate, the title of the corporation will not be affected by the rise of the land in value subse- quent to its purchase.* So, where a purchase of real estate has been lawfully made by a corporation, the purchase does not cease to be legal, or the corporation cease to have a right to hold or convey the property thus acquired, merely • Leazure v. Hillegas, 7 Serg. & tributed constitutes the ' capital stock ' Rawle, 313. of the company. The value of the ' The Banks v. Poitiaux, supra. stock may be greatly increased by sur- ' Barry v. Merchants' Exchange Co.; plus profits, or be diminished by losses, I Sandf. Ch. 280. In State v. Morris- but the amount of the capital stock town Fire Assoc, 3 Zab. 195, Green, remains the same. The funds of the C. J., said: " The phrase 'capital stock,' company may fluctuate. Its capital as employed in acts of incorporation, stock remains invariable, save by legis- is never, that I am aware, used to indi- lative enactment." cate the value of the property of the * Harpending v. Dutch Church, 16 company. It is very generally, if not Pet. 492 ; Humbert v. Trinity Church, universally, used to designate the 24 Wend. 587 ; Bogardus v. Trinity amount of capital to be contributed by Church, 4 Sandf. Ch. 758, 759 ; Har- the stockholders for purposes of the vard College v. Boston, 104 Mass. corporation. The amount thus con- 470. § l66 AND TRANSFER PROPERTY. 633 because the object which induced the purchase has been ac- complished, or no longer affords an inducement to re- tain it.* Corporations, though limited in duration, may purchase and hold a fee, and they may sell such real estate whenever they find it no longer necessary or convenient.* § 166. Statutes of mortmain. — In England the common law capacity of every corporation to purchase and hold real estate was abridged at a very early period by a great variety of statutes, commonly called the statutes of mortmain, the general appellation of mortmain being applied to alienation in mortua manu, or in a hand that never dies. These re- straints were at first introduced to prevent the too great accumulation of land by ecclesiastical bodies, the members of which were reckoned dead persons in law, who might otherwise absorb in perpetuity large quantities of valuable real estate, and thus withdraw it from feudal services and from transmission from man to man.^ It was accordingly enacted that to enable corporations to purchase land, they must obtain a license in mortmain from the crown ; for as the king is the ultimate lord of every fee, he cannot with- out his consent be deprived of the privilege of escheats and other feudal profits by the vesting of lands in those that ' A contract entered into by a rail- At common law, a grant to a natural road company, with a party to buy of person without words of inheritance, the company land purchased by it in creates only an estate for the life of the order to have gravel dug therefrom and grantee ; for he can hold the property transported to be deUvered to and used no longer than he himself exists. By by a third person, is valid, the land analogy to this, a grant to a corpora- having been originally bought by the tion aggregate, limited as to the dura- company as a means of increasing its tion of its existence, without words of business of transportation. Old Col- perpetuity being annexed to the grant, ony R.R. Corp. v. Evans, 6 Gray, 25. would only create an estate for the life " NicoU v. N. Y. & Erie R.R. Co., of the corporation. Turnpike Co. v. 12 N. Y. (2 Keman) 121 ; People v. Illinois, 96 U. S. 63. See Northern Mauran, 5 Denio, 389 ; Asheville Divis- Liberty Market Co. v. Kelly, 113 U. S. ion No. 15 V. Aston, 92 N. C. 578; 199. State V. Rives, 5 Ired. 297. See School ' Co. Lit. 2, b. ; I Kyd on Corp. 78, Dist. No. 5 v. Everett, 52 Mich. 314. 79; i Blk. Com. 479. 634 POWER TO ACQUIRE, HOLD, § 1 66 can never be attainted or die. Besides the general license from the king as lord paramount of the kingdom, it was also necessary, when there was a mesne or intermediate lord between the king arid the alienor, to obtain also his license for the alienation. If no such license were obtained, the king or lord might enter on the land aliened as a for- feiture. It is said that licenses in mortmain were required among the Saxons more than sixty years previous to the Norman conquest.^ The early mortmain acts were solely directed against ecclesiastical corporations. But the stat- ute of 15 Richard 2d, ch. 5, declared that civil or lay corpo- rations were equally within the prohibition ; and this stat- ute made lands conveyed to any third person for the use of the corporation liable to forfeiture, in like manner as if conveyed directly in mortmain.* The fact that the statutes of mortmain originally related only to ecclesiastical corpo- rations " affords one strong presumption, if direct proof were wanting, that civil corporations were of much later origin than the ecclesiastical. The former began now, however, to attract the public attention, and the same inconven- iences to be felt from the appropriation of land or tene- ments by them as by the latter. It was therefore enacted by the same statute that it should extend to lands, tene- ments, fees, advowsons, and other possessions purchased or to be purchased to the use of guilds or fraternities ; and ' because mayors, bailiffs, and commons of cities, bor- oughs, and other towns which had perpetual commonalty, and others who had perpetual offices, were as perpetual as people of religion,' it was enacted that these should not purchase to them and to their commons or office under the penalty mentioned in the same statute de religiosis, and that others should not take to their use under the same penalty." ^ Unincorporated bodies were not subjected to statutory restrictions until the act of 23 Henry 8th, ch. 10.* ' 2 Blk. Com. 268, 269. ' Ibid. ' I Kyd on Corp. 95. * 2 Blk. Com. 272. §167 AND TRANSFER PROPERTY, 635 The Statutes of mortmain made no mention of personal property, but left to corporations aggregate in general, power to take such property without limitation ; though it is said that in England many corporations established by act of Parliament for some particular purpose are restricted in this respect as well as in their power to purchase land.^ It is stated by Gibbon* that under the civil law there were many enactments having the same design as the Eng- lish statutes of mortmain, which provided that no real es- tate should be given or bequeathed to any corporate body without either a special privilege or a particular dispensa- tion from the emperor or senate. In Pennsylvania the English statutes of mortmain are in force with respect to the dedication of lands, tenements, or hereditaments to superstitious uses, unless sanctioned by charter or act of the legislature.^ It is said by Kent that in this country, with the foregoing exception, the statutes of mortmain have not been re-enacted or generally assumed to be in force, "and the only legal check to the acquisitiori of lands by corporations consists in those special restric- tions contained in the acts by which they are incorporated and which usually confine their capacity to purchase real estate to specified and necessary objects and in the force to be given to the exception of corporations out of the stat- ute of wills."* § 167. Capacity to take by will.-^Originally, the law of ' I Kyd on Corp. 104. See Atty. Coster, 14 Peters, 122. It is provided Genl. V. Parsons, 8 Ves. 191 ; Atty. by act of Congress that a corporation Genl. V. Munby, i Meriv. 345 ; Corbyn or association for religious or charita- V. French, 4 Ves. 428. ble purposes cannot acquire or hold ^ Vol. 2, p. 355. See I Browne Civil real estate in any Territory of the Uni- and Adm. Law, 142. ted States exceeding in value fifty thou- " 3 Binney App. p. 626 ; Methodist sand dollars, without being liable to Church v. Remington, I Watts, 218 ; forfeiture and escheat to the United Purdon's Dig. 350. See Miller v. Por- States. U. S. Rev. Sts., sec. 1890. Iter, S3 Pa. St. 292 ; Leazure v. Hille- * 2 Kent's Com. 331-334. See Van- gas, 7 Serg. & Rawle, 313 ; Runyan v. sant v. Roberts, 3 Md. (i Miller) 119. 636 POWER TO ACQUIRE, HOLD, § 1 67 ancient Athens provided that the estate of a deceased per- son should invariably descend to his children, or, in case of a failure of lineal descendants, should go to the collateral relations. Afterward, the laws of Solon permitted, on a failure of issue, the disposal of lands by testament.^ In England, before the Norman conquest, real estate was de- visable by will.* But upon the introduction of military tenures, the restraint of devising land became a part of the feudal doctrine of non-alienation without the consent of the lord.* The feudal restraint upon alienations by will continued for several centuries, " from an apprehension of infirmity and imposition on the testator in extremis, which made such devises suspicious ; besides, in devises there was wanting that general notoriety and public designation of the successor, which in descent is apparent to the neighbor- hood, and which the simplicity of the common law always required in every transfer and new acquisition of prop- erty." * After, however, the invention of the doctrine of uses as something distinct from the land, uses began to be devised, and the devisee of the use could in equity compel its execution.^ At common law, personal property might be bequeathed to corporations as well as to individuals.^ The statutes of 32 Henry 8th, chapter i, and 34 and 35 , Henry 8th, ch. 5, usually called the statutes of wills, en- abled every one having a sole estate or interest in fee simple, to give, dispose, will, or devise to any person or persons, except bodies politic and corporate, by last will and ' Plutarch's Life of Solon. be disposed of by will, as the usus ^ Wright on Tenures, 172. fructus was by the civil law. In Doc- ° 2 Blk. Com. 272. tor and Student (Dialogue 2, ch. 22), it * lb. 375. is said that uses were chiefly continued ° Chief Baron Gilbert (Devises, 6) for the sake of the foregoing power. says that uses were introduced by the ' Phillips Academy v. King, 12 Mass. clergy to evade the statutes of mort- 546 ; McCartee v. Orphan Asylum Soc, main, and that as the clergy generally 9 Cowen, 437 ; Matter of Howe, i sat in chancery, where these uses were Paige Ch. 214. See RivannaNav. Co. solely cognizable, they suffered them to v. Dawson, 3 Gratt. 19. § 1 67 AND TRANSFER PROPERTY. 637 testament in writing. Previous to these enactments there was no general testamentary power in England of freehold lands of inheritance. In consequence of the exception, no corporation could take by devise, unless in places where there was a custom to devise to corporations land lying within the district over which the custom extended. A devise of real estate to a corporation, whether for its own benefit or for purposes of trust for the benefit of others, was void unless the heir chose to consent.* The English statute of wills became a part of the law of New York upon the adoption of the first constitution of that State in 1777. By the statute of N-ew York of 18 13,* corporations were excluded from taking land by devise. This continued to be the law until the revised statutes went into effect, which provide that no devise to a corporation shall be valid, unless such corporation by its charter or by statute is expressly authorized so to take ; ^ and it has been held that the prohibition includes devises by way of use.* ' Souley V. Clockmakers' Co., I Bro. lands. It was a part of the feudal Ch. Cas. 81 ; Lord Cornbury v. Middle- policy that lands could not be alienated ton, Chanc. Cas. 209. " The acts of without the consent of the lord, and 7 Wm. 4, and i Vict., ch. 26, have re- the power to devise lands was opposed pealed 34 and 35 Hen. 8, ch. 5, and to this policy. If permitted, it would have not revived the prohibition against have deprived the lord of many of the corporations taking real estate by de- incidents and profits of the feudal vise. At present, therefore, the law is, tenure. These statutes were not re- that every corporation which is em- strictive of antecedent rights, but coo- powered by license in mortmain to take ferred a limited power to devise. They and hold real property at all, may take permitted all persons, except feme it by way of devise to the extent of its coverts, infants, idiots, and persons of license, as well as by any other means.'' nonsane memory, having a sole estate Grant on Corp. 112, 113. in fee simple of any manors, etc., to * I Rev. Laws, 364. give, dispose, will, or devise to any ^ N. Y. Rev. Sts., 7th Ed., pp. 2283, person or persons except bodies politic 2284. or corporate. The English statute of * Downing v. Marshall, 23 N. Y. 366. wills was substantially re-enacted in the See Sherwood v. Am. Bible Soc, i State of New York by statutes passed Keyes, 561 ; Kerr v. Dougherty, 79 N. in 1787 and in 1813. At the revision in Y. 327. Statutes of wills are enabling 1 830, the language was changed so as acts. Prior to them there was in general to provide that a testator might devise no power at common law to devise his lands to any person capable by law 638 POWER TO ACQUIRE, HOLD, §167 Power in a corporation to purchase, hold, and convey real estate does not include the right to take by devise.* Where a corporation is prohibited by its charter from taking real estate by devise, it will depend upon a construction of the language of the prohibitory clause whether the inten- tion of the testator can be carried out by converting the land into personalty.^ A corporation created in one State may take property under a will executed by a citizen of another State, if by the law of its creation it has authority of holding real estate, but that no de- vise to a corporation should be valid unless such corporation' was expressly authorized by its charter or by statute to take by devise. Matter of Will of Fox, 52 N. Y. 530, per Andrew, J. In the same case, the Supreme Court of the United States (94 U. S. 315) in affirming the judgment, per Field, J., said : " The power of the State to regulate the tenure of real property within her limits, and the modes of its acquisition and transfer, the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners, is undoubted. It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposi- tion of immovable property, whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated. The power of the State in this respect follows from her sovereignty within her limits as to all matters over which jurisdiction has not been ex- pressly or by necessary implication transferred to the Federal government. The title and modes of disposition of real property within the State, whether inter vivos or testamentary, are not matters placed undei- the control of the Federal authority. Such control would be foreign to the purposes for which the Federal government was created, and would seriously embarrass the landed interests of the State." ' McCartee v. Orphan Asylum Soc, 9 Cowen, 437 ; Theological Seminary v. Childs, 4 Paige Ch. 419 ; Canal Co. v. R.R. Co., 4 Gill & Johns, i. Article 38 of the bill of rights of Maryland provides that every gift, sale, or devise of real or personal property for religious purposes, to take effect after the death of the seller or donor, without the prior or subsequent sanction of the legislature, shall be void. The distinc- tion between a gift and a sale and a de- vise is thus expressly recognized by the constitution. When, therefore, the legislature authorizes a religious body to take and hold subscriptions or con- tributions in money or otherwise, for religious purposes, the power thus con- ferred to take by gift does not embrace power to take by will. Brown v. Thompkins, 49 Md. 423. 'Am. Bible Soc. v. Noble, ii Rich. Eq. 156; Baker v. Clarke Inst., no Mass. 88 ; State v. Wiltbank, 2 Har- ring. 1 8. In the last-mentioned case, all devises of land to a religious corpo- ration in Delaware being void, it was held that a bequest to such a corpora- tion of money to arise out of land by sale or otherwise was void, the pro- ceeds being deemed realty, and a be- quest of them subject to the same rule as a devise of the land itself. § 167 AND TRANSFER PROPERTY, S^d to acquire property by devise or bequest. " When within the /ex domicilii, a will has all the forms and requisites to pass the title to personalty, the validity of particular be- quests will depend upon the domicile of the legatee and of the government to which the fund is by the terms of the will to be transmitted for administration, and the particular purposes indicated by the testator. If the legatee, whether a natural or artificial person, and whether he takes in his own right or in trust, is capable by the law of his domicile to take the legacy in the capacity, and for the purposes for which it is given, and the bequest is in other respects valid, it will be sustained irrespective of the law of the testator's domicile ; subject to the qualification, that if the law of the testator's domicile in terms forbids bequests for any par- ticular purpose, or in any other way limit the capacity of the testator in the disposal of his property by will, a gift in contravention of the law of the testator's domicile would be void everywhere. So far as the validity of bequests de- pends upon the general law and policy of a State affect- ing property and its acquisition generally, and relating to its accumulation, a suspension of ownership, and the power of alienation, each State is sovereign as to all prop- erty within its territory, whether real or personal. But it is no part of the policy of a State to interdict perpetuities or gifts in mortmain in other States ; each State determin- ing those matters according to its own views of policy or right." ^ ^ ' Chamberlain v. Smith, 43 N. Y. 424, tenham said : " An objection was per Allen, J., referring to Sherwood made that the bequest of a fund to be V. Am. Bible Soc, i Keyes, 565 ; tiar- invested in a regular Scotch entail was ris V. same, 4 Abb. N. S. 421 ; Andrews void as a perpetuity. The rules acte<} V. Heriot, 4 Cowen, 517; Parsons v. upon by the courts of this country with Lyman, 20 N. Y. 103; Moulton v. respect to testamentary dispositions Hunt, 23 Id. 394 ; Lawrence v. Kitter- tending to perpetuities, relate to this idge, 21 Conn. 577. See Starkweather country only. What the law of Scot- V. Am. Bible Soc, 72 lU. 50. Upon land may be upon such a subject, the the bequest of a fund in England, to be courts of this country have no judicial inVfcst'ed.in a Scotch entail, Lord COT- knowledge, nor will they, I apprehend 640 POWER TO ACQUIRE, HOLD, § 167 Where the statute of a State provides that a corporation shall not take and hold real estate by devise, the disability is fundamental, and the corporation is incapable of taking, no matter where the devisor may reside, or the lands are situated.^ But there is a distinction between an incapacity to take created by the statute of a State which is local, and a prohibitory clause in a charter which everywhere attaches to the corporation. The act creating a corporation em- powered it to hold, purchase, and convey such real and personal estate as the purposes of the corporation should require, not exceeding the amount limited in its charter, and the statute of wills of the State provided that no de- vise of real estate to a corporation should be valid unless such corporation was expressly authorized by its charter or by statute to take by devise, it was held that the statute of wills did not disable the corporation from taking by devise, under the general provisions of its charter, lands situate elsewhere than in the State of its creation.^ In such case, the statute of wills is regarded as designed to regulate the testamentary power of the citizens of the State where it is enacted, not of the citizens of other States.* Where, there- fore, a New York corporation was not expressly authorized by its charter to take by devise, nor prohibited from so taking, it was held that the courts of Connecticut must look to their own statutes and laws, and not to those of New York, to determine whether or not the corporation could take by devise in Connecticut.* A corporation may inquire. The fund being to be admin- and payable here if for a charity in istered in a foreign country, is payable Scotland." here, though the purpose to which it is ' Starkweather v. Am. Bible Soc, 72 to be applied would have been illegal 111. 50. if the administration of the fund had ' Am. Bible Soc. v. Marshall, 1 5 Ohio been to take place in this country. St. 537. See Christian Union v. Yount, This is accomplished by the weil-es- loi U. S. 352. tablished rule in cases of bequests ' Thompson v. Swoope, 24 Pa. St. within the statute of mortmain. A 474 ; Sherwood v. Am. Bible Soc, 4 charity legacy, void in this country un- Abb. Ct. of App. Decis. 227. der the statute of mortmain, is good * White v. Howard, 38 Conn. 342. § i68 AND TRANSFER PROPERTY. 641 take under a devise by another name than its true one, if there be no doubt what corporation was intended, extrinsic evidence being admissible to establish its identity.^ § 168. Devise or bequest for a charitable use.— The law of charitable uses was known in England at an early period, long before the statute of 43 Elizabeth ; its general max- ims being derived from the civil law, as modified in the later periods of the empire by the ecclesiastical element introduced with Christianity.* The statute of 43 Eliz., ch. 4, after reciting in substance that^ whereas lands, tenements, In the foregoing case, the court said : " There is no prohibition in the char- ter ; the inability is created by the New York statute of wills, expressly except- ing corporations from taking by devise. Now, this corporation brings with it from New York its charter, but it does not bring with it the New York statute of wills, and it cannot bring it to be recognized as law within this jurisdic- tion." See Boyce v. St. Louis, 29 Barb. 650. White V. Howard, 46 N. Y. 144; Fellows V. Miner, 119 Mass. 541 ; Ould V. Washington Hospital, 95 U. S. 313. ' Kentucky Seminary v. Wallace, 1 5 B. Mon. 35 ; Vansant v. Roberts, 3 Md. Ch. 119; N. Y. Annual Conference Soc. V. Clarkson, 4 Halst. Ch. 541 ; Ayres v. Weed, 16 Conn. 291 ; Bodman V. Am. Tract Soc, 9 Allen, 447. See Brewster v. McCall, 15 Conn. 274; Asheville Div. No. 1 5 v. Aston, 92 N. C. 578. 2 See Williams v. Williams, 8 N. Y. (4 Seld.) 525 ; Griffith v. State, 2 Del. Ch. 421. " Prior to the statute of uses (27 Henry VIU.) these limitations were perhaps only known in their sim- plest and most elementary form, that is to say, in the form of legal estates held by-one person for the benefit of another, without any active duty or trust. In this form, they were abro- VOL, I. — il gated by that statute. This was done, not by defeating the feoffment or de- vise to such a use, but by vesting the legal estate in the beneficiary. After the statute, uses were revived under the name of trusts. By a strict con- struction of that enactment, passive trusts might still be created by hmiting a use upon a use ; it being held that the statute only executed the use in the first cestui que use, who was allowed to hold the estate for the benefit of the second. This was doubtless an eva- sion of the letter and policy of the statute ; but neither its letter nor pol- icy stood in the way of creating active trusts, that is, legal estates impressed with some active duty in their control, management, or disposition, for the benefit of some person or class of per- sons other than the trustee. Trusts of this kind grew up to meet the wants and wishes of mankind. As the old statute of uses, which was intended to abolish passive trusts, left the widest field for the creation of active ones, so our revision, in abrogating all active trusts excepting those specified, revived them under the name of powers, which were left unrestricted, provided the purpose or power was in itself lawful." COMSTOCK, J., in Downing v. Mar- shall, 23 N. Y. 366. 642 POWER TO ACQUIRE, HOLD, § 1 68 etc., had been heretofore given by well-disposed persons for charitable objects, but haS not been employed to the char- itable intent of the donors by reason of fraud, breaches of trust, and negligence, enacted that the Lord Chancellor might award commissions under the great seal, authorizing commissioners to inquire in relation to such gifts, and to make orders which should be executed.^ A devise to a corporation under the foregoing statute, for a charitable use, was at first deemed void at law ; but courts of equity sustained such a devise, not as conveying the land to the corporation, but subject to and clothed with the use designed by the testator.* A gift intended to promote the public good by the en- couragement of learning, science, and the useful arts ; or to improve a city, support public buildings, bridges, etc. ; or to endow a college, or establish new scholarships therein, are severally regarded as a charity, without any particular reference to the poor.^ Bequests to charitable uses are ' The proceeding is now by way of benefit or use of a moneyed corpora- information, though it is said that if tion, is not valid unless made directly there be ground for interference, the to the corporation. Wright v. Doug- court will act without complaint, lass, 10 Barb. 97. Mayor, etc., of Ludlow v. Greenhouse, ^ Am. Academy of Arts & Sciences I Bli. N. S. 61 ; Atty. Genl.v. Cooper's v. Harvard College, 12 Mete. 582; Co., 19 Ves. 194. Atty. Genl. v. Lonsdale, i Sim. 109. ' By the strict rules of the common Grant (Corp. 115, 116) says: "The law, a corporation aggregate cannot legal definition of a charity with refer- be seized to the use of another, though, ence to the statute of charitable uses, notwithstandieg this rule, many corpo- 43 Eliz., ch. 5, is a gift to a general rations are made trustees for charitable public use which extends to the rich purposes, and compelled to perform as well as to the poor. General devises their trusts whenever an individual may and bequests, having for their object so act. Kyd on Corp. 72 ; Gilbert, the establishment of learning, are con- Uses and Trusts, 5, 170; Jeremy's Eq. sidered given to charitable uses under Juris., book i, p. 19; Atty. Genl. v. the statute of Elizabeth; and accord- Stanford, 2 Swanst. 594 ; Green v. ingly a devise to a school, for the edu- Rutherforth, i Ves. Sen. 468; Coventry cation of gentlemen's sons, was held V. Atty. Genl., 2 Bro. P. C. 235 ; Trus- to be a devise to a good charitable use tees of Phillips Academy v. King, 12 within the statute." See Thompson v. Mass. 566. In New York a convey- Norris, 20 N. J. Eq. 489; Stevens v. ance or transfer of property, for the Shippen, 28 Id. 487 ; Bethlehem v. Per- § i68 AND TRANSFER PROPERTY. 643 valid in Maine, Vermont, Massachusetts, Pennsylvania, Kentucky, North Carolina, and Georgia ;^ but not, it seems, in Maryland and Virginia.* Courts of equity in Califor- nia have jurisdiction, derived from the English common law, independently of the statute of Elizabeth, to establish and enforce charities when trustees competent to take the legal estate are named, and the class to be benefited and the individuals to be designated by the trustees are capable of ascertainment.^ In New York, in Potter v. Potter,* the Chancellor said : " Although some doubt was thrown upon charitable donations for the benefit of a community or severance Fire Co., 81 Pa. St. 445 ; Fairbanks v. Lamson, 99 Mass. 533 ; Old South Soc. V. Cracker, 119 Id. i ; Starkweather v. Am. Bible Soc, 72 111. 50 ; In re Clark's Trust, L. R. i, Ch. 497 ; Fellows v. Miner, 119 Mass. 541. ' Preachers' Aid Soc. v. Rich, 45 Me. 552; Burr V. Smith, 7 Vt. 241 ; San- derson V. White, 18 Pick. 333; Bur- bank V. Whitney, 24 Id. 146, and cases cited; Sohier v. St. Paul's Church, 12 Mete. 250; Brown v. Kelsey, 2 Cush. 243 ; Whitman v. Lex, 17 Serg. & Kawle, 88 ; Glass v. Wilhite, 2 Dana, 170 ; White v. Atty. Genl., 4 Ired. Eq. 19 ; Beall v. Fox, 4 Ga. 404. In Penn- sylvania a trust to an unincorporated religious society, the members of which reside in the State, is valid. Methodist Church V. Remington, i Watts, 218. In Zimmerman y- Anders, 6 Watts & Serg. 218, it was held that the conserv- ative provisions of the statute of 43 Eliz. had been in force in Pennsylvania by common usage and constitutional recognition, as well as the more exten- sive range of charitable uses which chancery supported previous to that statute and beyond it. The law of charitable uses as it existed in Eng- land at the time of the American Revo- lution, and the jurisdiction of the court of chancery over these subjects, be- came the law of the State of New York upon the adoption of the State consti- tution in 1777. Williams v. Williams, S N. Y. (4 Seld.) 525, per Denio, J., Gardiner, Johnson, and Taggart, JJ., dissenting. The legislature of New York has at all times exercised the power to except from the operation of the statute of wills such corporations as it deemed proper, and of late years has exercised the power with liberality in favor of corporations organized for charitable purposes. White v. How- ard, 46 N. Y. 144, per Grover, J. For construction of act of New York of 1848, ch. 319, relative to devise or be- quest to benevolent, charitable, scien- tific, and missionary societies, see Stephenson v. Hart, 92 N. Y. 433 ; Hollis V. HoUis, 29 Hun, 225. •' Dashiell v. Atty. Genl., 5 Harr. & Johns. 392 ; Gallego v. Atty. Genl., 3 Leigh, 450. In Virginia, by the acts of 1789 and 1790, a commission was ap- pointed on the English statutes, and the act of 1792 repealed all the English statutes then in force, including the statute of 43 Ehz. if it ever was in force in that State. 3 Estate of Hinckley, 58 Cal. 457. See Commissioners of Lagrange v. Rogers, SS Ind. 297. * 6 Paige Ch. 639. 644 POWER TO ACQUIRE, HOLD, § 168 body not incorporated so as to be capable of taking and conveying the legal title to property, by the decision of the Supreme Court of the United States in the case of the Baptist Association v. Hart's Executors,^ I believe it is generally admitted that the decision in that case was wrong ; and it may now be considered as an established .principle in American law, that the Court of Chancery will sustain and protect such a gift, bequest, or dedication of property to public or charitable uses, provided the same is consistent with local laws and public policy, where the object of the gift or dedication is specific and capable of being carried into effect according to the intention of the donor. A devise of real estate, under the provisions of the revised statutes, may perhaps form an exception to the general principle, as a devise of. real estate can only be made to a person capable of holding the same for the purposes of the charity." In Inglis v. The Trustees of the Sailors' Snug Harbor,^ the Supreme Court of the United States sustained, upon common law principles, a devise to the chancellor of New York, and to the mayor and recorder of the city of New York, of an estate in trust for building a marine hospital for the support of infirm sailors, to be un- der the superintendence and visitatorial control of the trus- tees and their successors, with a request that they should be incorporated by an act of the legislature if they could not take and act in a conporate capacity without such a legislative enactment. The legislature of New York hav- ing, about a year after the testator's death, incorporated ' 4 Wheat. I. See Cromie v. Louis- ity at common law. Trustees of Phila. ville Orphans' Home Soc, 3 Bush. 365 ; Baptist Assoc, v. Hart, 4 Wheat, i. But Cruse V. Axtell, 50 Ind. 49. in a subsequent case the same court "^ 3 Pet. 112. The Supreme Court of sustained a bill by the nominal trustees the United States held that an unincor- of an unincorporated religious society porated association could not take land to .protect its right to a lot of ground by devise in the name of the society, granted for the use of the society, and that such a devise could not be Beatty v. Kurtz, 2 Pet. 566. executed by a court of equity as a char- 1 \ § 1 68 AND TRANSFER PROPERTY. 645 the persons named as trustees, the donation was held good as an executory devise.^ Where the trust is legal and definite as to the person to whom the gift is made, and the thing given only require^ a trustee to carry out the purposes of the donor, a court of equity will preserve the trust fund from lapsing. In Illinois a person had made a will in which he directed that his estate should be reduced to money, and be divided : one-half to the school district in which his farm was situ- ated, and the fund be managed by a trustee who was to be elected by the people of the district for four years. The trustee was to give security and discharge his duties with- out compensation. The interest of the other half was to be applied to the support of the poor of the county. No person could be found who would take charge of the first- mentioned fund, and manage it for the use of the schools of the district ; and as to the other fund, no trustees were named, or any mode pointed out by which trustees were to be obtained. It was held that as these objects were within the language of 43 Eliz., ch. 4, v/hich was in force in the State, there was power to execute the trust cy pres, and trustees were designated to carry out the provisions of the will. It was said by the court that the bequest for school purposes being made to a corporation capable of taking, the instrument to control its application could be provided by a resort to a court of equity ; and that, as to the fund bequeathed to the poor, the county court was the proper ' See Moore v. Moore, 4 Dana, 354. or for some shorter term. The trust In New York, although trusts to re- must therefore be made dependent ceive and apply rents and profits may on the life of the beneficiary ; and be created under the statute of uses where the beneficiaries are associations, and trusts, and a power to a trustee to incorporated or unincorporated, while sell land and pay over the proceeds to the lives on which the trust depends an institution is valid, the direction to are those of two natural persons hav- sell being a conversion into personal ing no interest in its performance, the property, yet the application must be limitation cannot be supported. Down- to the use of a person during his life, ing v. Marshall, 23 N. Y. 366. 646 POWER TO ACQUIRE, HOLD, § 168 donee of the fund, and could take and control it as the trustee of the poor in the mode prescribed by the will.' A gift in trust for charitable purposes which is in- definite and uncertain either as to the subject or object, will not be supported :* as a bequest "to some disposition thereof which my executors may consider as promising most to benefit the town and trade of Alexandria."^ A testator bequeathed one-fourth part of the proceeds arising from the sale of his property to the Tennessee Annual Conference for the Methodist Episcopal Church, for the benefit of institutions of learning under the superintend- ence of said conference, and to the Missionary Society of the Methodist Episcopal Church, and to be otherwise dis- posed of as the Tennessee Annual Conference might deem best. It was held that as the bequest was indefinite both 'Heuser v. Harris, 42 111. 425. If the will sufficiently shows the intention that the devisees shall be trustees merely, and the trust be ineffectual as against the policy of the law, there will be a resulting trust to the heir. Am. Colonization Soc. v. GatreU, 23 Ga. 448 ; Lusk v. Lewis, 32 Miss. 297. Where a person is entitled to an estate devised to a corporation upon its fail- ure to perform a condition, he is not bound by the mere will and pleasure of the devisee as to the time or manner of performing the condition, which must be performed in a reasonable time, ac- cording to the nature of the thing to be done. Hayden V. Stoughton, 5 Pick. 528. ' Wright V. Atkyns, i Turn. & Russ. 157 ; Wood V. Cox, 2 Mylne & Craig, 684; Morice v. Bishop of Durham, 10 Ves. 521 ; Bascom v. Albertson, 34 N. Y. 610. A bequest " for the establish- ment of a school at M. for the educa- tion of children," is bad for uncertainty. Atty. Genl. v. Soule, 28 Mich. 153. The same was held as to a will giving property to the Roman Catholic or- phans, appointing the bishop of the diocese executor, and giving him power to sell the property and use the pro- ceeds for the benefit of Roman Cath- olic orphans. Heiss v. Murphey, 40 Wis. 276. See Lindley, ex parte, 32 Ind. 367 ; Grimes v. Harmon, 35 Id. 198 ; De Bruler v. Ferguson, 54 Id. 549; Griffith v. State, 2 Del. Ch. 421 ; Fairbanks v. Lamson, 99 Mass. 533 ; Needles v. Martin, 33 Md. 609. . In Beekman v. Bonsor, 23 N. Y. 308, CoMSTOCK, C. J., said that a chari- table gift, definite both in its subject and purpose, and made to a definite trustee, who was to receive the fund and apply it in the manner specified, would be sustained, although void by the rules of law for the reason that the particular objects of the gift or per- sons to be benefited by it were unas- certained ; that such a gift was capable of being enforced by judicial sentence, and afforded neither room nor justifica- tion foi* the exercise of the cy pres power. » Wheeler v. Smith, 9 How. 55. § 1 68 AND TRANSFER PROPERTY. 647 as to persons and objects, it was inoperative and void for uncertainty.^ A clause in a will was as follows : " Imme- diately after the death of both of my said grandnieces, then it is my will that my real estate aforesaid shall go to and be held in fee simple by the Infidel Society in Phila- delphia, hereafter to be incorporated, and to be held and disposed of by them for the purpose of building a hall for the free discussion of religion, politics, etc." It was held that this remainder limited to a corporation thereafter to be created, was void because there was no devisee compe- tent to take at the time, and the probability that there might be such a corporation during the particular estate for life, was too remote.* A testator residing in Pennsylvania, by his will authorized his executors, or the survivor of them, after the payment of certain annuities and legacies, and after the decease of the testator's wife, to dispose of the residue of the property for the use of such charitable institutions in Pennsylvania and South Carolina as they or he might deem most beneficial to mankind. It was held that this power of appointment being separable and distinct from the duties and trust of the executors as such, and they having died during the lifetime of the wife, the charity could not be carried out.^ McLean, J., remarked that 1 Green v. Allen, S Humph. 170. land has been invoked, and he, through = Zeisweiss v. James, 63 Pa. St. 465. the chancellor, gives effect to the char- 'Fountain V. Ravenel, 17 How. 369. ity." Ibid., per McLean, J. In the " Where there is nothing more than same case, Taney, C. J., said : " These the power of appointment conferred prerogative powers which belong to by the testator, there is nothing on the sovereign as fiarens patriae, re- which a trust, on general principles, main with the States. They may legal- can be fastened. The power given is a ize charitable bequests Within their re-" mere agency of the will, which may or spective dominions to the extent to may not be exercised at the discretion which the law upon that subject has of the individual. And if there be no been carried in England ; and they may act on his part, the property never hav- require any tribunal of the State which ing passed out of the testator, it neces- they think proper to select for that pur- sarily remains as a part of his estate, pose, to establish such charities, and to To meet such cases and others, the carry them into' execution. But the prerogative power of the king in Eng- State laws will not authorize the courts 648 POWER TO ACQUIRE, HOLD, § 1 68 there was not only uncertainty in the beneficiaries of the' charity, but there was no expressed will of the testator ; that although he intended to speak through his executors or the survivor of them, yet this had become impossible ; that if the testator had declared that the residue of his estate should be applied to certain charitable purposes, under the statute of 43 Eliz., or on principles similar to those of the statute, effect must have been given to the bequest as a charity in Pennsylvania. A devise for the foundation of an orphan asylum is not void because of its exclusion of all ecclesiastics, missionaries, and min- isters of the gospel from holding or exercising any sta- tion or duty in the institution, or even visiting the same ; or because it limits the instruction to be given to the orphans to pure morality, general benevolence, and a love of truth, sobriety, and industry. A corporation cannot act as a trustee in relation to mat- ters in which it has no interest. But when property is devised or granted to it partly for its own use, and partly for the use of others, its power to take and hold the prop- erty for its own use, carries with it as a necessary incident the power to execute the part of the trust relating to others.' A corporation cannot hold property in trust for of the United States to exercise any take real or personal estate, it may take power that is not in its nature judicial ; and hold it upon trust in the same nor can they confer upon them the pre- manner and to the same extent that a rogative powers over minors, idiots, and private person may do. If the trust be lunatics, or charities which the English repugnant to, or inconsistent with, the chancellor possesses." proper purposes for which the corpo- ' Matter of Howe, i Paige Ch. 214. ration was created, that may be a The doctrine that prevailed at an early ground for not compelling the corpora- period that a corporation could not take tion to execute it, but not to declare and hold real or personal estate for the the trust itself void if otherwise unex- reason that there was a defect of one ceptionable ; it will simply require a of the requisites to create a good trus- new trustee to be substituted. Vidal tee, viz. : want of confidence in' the v. Gerard, 2 How. 127. In the case of person, was long since exploded as too a gift to charitable uses, no neglect, artificial. It is now held that where misapplication of funds, or other breach the corporation has a legal capacity to of trust, will gfive a right to the heirs § 1 68 AND TRANSFER PROPERTY. 649 any other object than that for which it was created. Thus, a corporation for " the instruction of youth," is not author- ized to talce charge of funds, as trustee, for the support of missionaries.^ The supervisors of a county are not compe- tent to be seized as trustees for the use of an individual, or of the inhabitants of a town or village ; or to take and hold lands, as supervisors, for any other use or purpose than that of the county which they represent.^ An execu- tory bequest, limited to the use of a corporation to be created within the period allowed for the vesting of future estates and interests, is valid. Where the testator gave the residue of his personal property in trust for the endowment of a hospital, directing his trustees to promptly apply to the legislature for an act incorporating the same, and pro- viding that if the charter were not granted within a speci- fied time, the bequest should go in another direction, it was held that the provision in question did not violate the statute against perpetuities.^ A corporation which has expressly accepted in trust a donation to hold and apply it to public and charitable pur- poses, is not at liberty to renounce it, but must hold and apply it to the objects intended. If the corporation has not accepted the gift, it does not revert to the donor's heirs or residuary legatees, but will be applied to the gen- at law to call upon a court of equity to v. Dennis, 6 Conn. 293. The act of declare a resulting trust for themselves ; New York, providing that no convey- they having no pecuniary or beneficial anee, assignment, or transfer of any interest accruing from the non-execu- effects for the use, benefit, or security tion of such a trust. Sanderson v. of any moneyed corporations, shall be White, 18 Pick. 328. valid, unless made to the corporation ' Trustees, etc., v. Peaslee, 15 N. H. directly, has reference to moneyed cor- 317. The right to hold property in porations created by the legislature of trust for others is not incidental to New York, and not to corporations every corporation, but in general is chartered by a foreign State. Wright foreign to the end of its institution, v. Douglass, 10 Barb. 97. Hence, a corporation cannot be seized 'Jackson v. Hartwell, 8 Johns. 422. of land to the use of another, unless it ' Burrill v. Boardman, 43 N. Y, has authority for that purpose. Greene 254. 650 POWER TO ACQUIRE, HOLD, § 1 69 eral purposes of the charity under other suitable persons to be appointed ; and if the general charitable intent of the donor cannot be strictly and literally carried out, a court of equity will cause it to be fulfilled as nearly in conformity with such intent as practicable.^ § 169. Grants to religious corporations. — The importance given to church membership by some of the colonial and provincial laws, by making it a necessary legal qualification for civil and political office, conferred no power on the church to be exercised in its aggregate capacity. In Massa- chusetts, the act of 1754, which was revised and substan- tially re-enacted soon after the adoption of the State con- stitution, provided that the deacons, for the time being, should be a body corporate, with power to take and hold property for the use of the church, and to transmit it to their successors for the like purpose. " The statute was professedly made for the better recovering of grants and donations to pious and charitable uses, for the better sup- port and maintenance of ministers, and for defraying charges relating to public worship. Two objects were to be accomplished by the statute : one to give all such grants a legal effect and operation, by enabling the grantee to take and hold real and personal property ; the other, that such property should go in succession. But both of these ob- jects would have been as effectually accomplished without the statute, had the churches been deemed corporations or qua corporations, with power to take and hold property to them and their successors."* In New York, under the statute relative to the incorpo- ration of religious societies, authorizing them to take into their possession all the property of the society, whether the same was given directly to such church or society, or to any other person for their use, and to hold such property the ' Am. Academy of Arts & Sciences ' Stebbins v. Jennings, 10 Pick. 172, V. Harvard College, 12 Mete. 582. per Shaw, C. J. § 169 AND TRANSFER PROPERTY. 65 1 same as if the right or title thereto had been originally vested in the trustees, it was decided that if the grantor, or any other person, held the estate originally in trust for the church or society, the legal estate was transferred to the corporation whenever the requisites of the statute were complied with so as to render it legally competent to take the property in its corporate character.^ It is said to be settled law in Massachusetts that " prop- erty granted originally to a parish, would, upon the incor- poration of the parish into a town, pass to, and be held by, the new corporation. It would so remain until, by the creation of a new parish in the town, the latter became separated into two distinct corporations having diverse and independent powers. The property would then revert to the parish to which it was originally granted, unless in the meantime it had been appropriated to the use of the town in its municipal capacity by a vote or other act of the one united corporation. The mere use of the land by the town for occasional and temporary purposes whilst it remained vested in one corporation, would confer no absolute right or title to it upon the town after the separation ; nor could ' Baptist Church in Hartford v. With- their successors, are vested with the erell, 3 Paige Ch. 296 ; Trustees of custody, possession, management, and South Baptist Church v. Yates, i legal control of all the property and Hoffm. Ch. 141 ; 2 N. Y. Rev. Sts., 7th temporalities belonging to their partic- Ed., p. 1658, sec. 4. When a trust in ular society in the same manner and behalf of a religious corporation is to the same effect that directors of pri- wholly nominal, the trust becomes ex- vate corporatiohs are entitled to pos- ecuted by the statute in the cestui que session and control of their property. trust, who may maintain ejectrbent for A majority of the corporators or mem- the recovery of the property in his own bers of the society have no right to take name, without a previous conveyance forcible possession of the church build- from the trustee. Van Deuzen v. ing, and hold and control it in opposi- Trustees, 3 Keyes, 550; s. C. 4 Abb. tion to the authority of the trustees. App. Decis. 465 ; Welsh v. Allen, 21 First Meth. Epis. Church v. Filkins, 3 Wend. 147 ; Nicol v. Walworth, 4 De- Thomp. & C. 279, per E. D. Smith, J. nio, 385. In New York, under the act See to the same effect, German, etc., of 181 3, ch. 60, providing for the incor- Cong. v. Pressler, 17 La. Ann. 127; poration of religious societies, the trus- Green v. Cady, 9 Wend. 414 ; People tees elected and acting as such, and v. Runkel, 9 Johns. 147. 652 POWER TO ACQUIRE, HOLD, § 1 69 any claim of right, by way of adverse use and possession, arise in favor of tiie town whilst the two bodies were united. So long as they continued blended together, it was impossible for one to gain any rights adversely to the other. But it was competent for the corporation, while exercising the functions, both of a town and parish, to de- termine how property belonging to it should be appropri- ated and used."^ A grant to trustees for the use and benefit of a church to be afterward organized, with no power in them to create the beneficiary or to appropriate the land or the funds aris- ing therefrom for any purpose until such organization, will be upheld, if the church be afterward brought into exist- ence so as to acquire and hold property.* The members of an incorporated religious society having purchased a lot on which to erect a church with money raised by subscrip- tion, the conveyance was made to A., B., and C, who were subscribers, without C.'s knowledge. C. declined to sign the deed, for the reason that several of the subscribers had given him notice not to do so. A decree ordering C. to execute the deed was affirmed on appeal.* In New York, a deed of land to trustees de facto of an ■ Larkin v. Ames, 10 Cush. 198. trustees for each individual church or ' Miller V. Chittenden, 2 Clarke, Iowa, society, and made it their duty to hold 315. See Second Cong. Soc. v. War- the property of individual churches in ing, 24 Pick. 308 ; Howard v. Hayward, trust for the use and benejfit of the 10 Mete. 420; Foxv. Union Academy, members, and provided that the trus- 6 Watts & Serg. 353. tees should take care of the church sNewmyer's Appeal, 72 Pa. St. 121. property, with power, when authorized Property was conveyed "to trustees in by two-thirds of the male members over trust for the members of the Methodist the age of twenty-one years, to pur- Protestant church or society in the vil- chase, build, repair, lease, sell, rent, lage of G., to be held by them and their mortgage, or otherwise to procure or successors in office for said church or dispose of property, but on no other society forever, to the proper use and condition. It was held that the title behoof of said church, agreeably to the - did not vest in the church or society as rule given in said Methodist Protestant a corporation. Meth. Soc. v. Bennett, Church Discipline." The book of 29 Conn. 393. discipline provided for the election of § 170 AND TRANSFER PROPERTY. 653 unincorporated religious society, conveys no title to the society.^ When, however, property is conveyed to individ- uals for the use of an unincorporated religious society, the persons to whom the conveyance is made stand seized to the use, and when the society receives legal capacity to take and hold real estate, the statute executes the possession to the use, and the estate vests.^ In New Jersey, where the members of an unincorporated religious society purchase and take possession of land in behalf of the society, the vendor holds it in trust for the purchasers, and when the society is incorporated it is entitled to a conveyance from him.* In Massachusetts, an unincorporated religious so- ciety, organized and acting in a parochial capacity, has power to receive a grant, and manage and iise the estate granted.* § 170. Title to real estate. — The mere incorporation of tenarits in common to enable them to carry on more con- veniently a common object does not vest in the corporation a title to the land which had been previously used by the individuals for the same purpose. The title must be con- veyed by proper deeds from the individuals to the corpora- tion.^ A grant of real estate to an aggregate corporation with perpetual and continued succession carries a fee with- out reciting that it is to their successors.'' " If a lease be ' Bundy v. Birdsall, 29 Barb. 31. of the Poor v. Sears, 22 Pick. 122 ; ' Ref. Dutch Church v. Veeder, 4 Cong. Soc. of Halifax v. Stark, 34 Vt. Wend. 494. 243 ; Myers v. Croft, 13 Wall. 291. ' African M. E. Church v. Conover, " In a grant of lands to a corporation 27 N. J. Eq. 157. aggregate the word 'successors' is ■* Hamblett v. Bennett, 6 Allen, 140 ; not necessary, though usually inserted ; Oakes v. Hill, 10 Pick. 344. for albeit such simple grant be strictly ' Leffingwell v. Elliott, 8 Pick. 451. only an estate for life, yet, as that cor- See Second Congregational Soc. v. poration never dies, such estate for life Waring, 24 Pick. 304 ; Bangor House is perpetual or equivalent to a fee sim- Proprietary v. Hinckley, 12 Me. 385 ; pie, and therefore the law allows it to Holland V. Cruft, 3 Gray, 162; Mana- be one." 2 Blk. Com. 109. "With ban V. Varnum, 1 1 Id. 405. respect to the capacity of taking land, ' Viner's Abr. Estate L. 3 ; Overseers there is this difference between a cor- 654 POWER TO ACQUIRE, HOLD, § 17© made to a corporation aggregate for the life of the lessor, this is a good estate for life, because the life of the lessor, which is wearing and will determine, is the measure of its continuance. But if a lease be made to a corporation aggregate for their own lives, this is no estate for life, but a fee simple ; for the lease being made to them as a body politic, which hath a continual succession and never dies, a lease made to them during their lives is equal to a grant made to them while they continue a body politic, which, by reason of the perpetual succession of its members, is in law looked upon to be forever." ^ Corporations limited in their duration may not only purchase and hold in fee, but they may sell such real estate whenever they find it no longer necessary. They have a fee simple for the purpose of alienation, but only a determinable fee for the purposes of enjoyment. Although on dissolution the reverter is to the original grantor or his heirs, yet they may defeat a re- verter by an alienation in fee.** When the act of incorporation provides that the corpo- poration aggregate and a corporation word ' heirs ' includes successors, and sole, that the former has only a corpo- in early times the word ' successors ' rate capacity, and, therefore, as a col- was not added in the king's gi'ants." lective number of persons, the mem- I Kyd on Corp. 74. bers of it cannot take lands by their ' Bac. Abr., tit. Corporations, E. corporate name to them and their See First Baptist Soc. v. Hazen, 100 heirs, but only to them and their sue- Mass. 322 ; School Dist. v. Everett, 52 cessors. Sole corporations have two Mich. 314. capacities — their natural and corpo- ' Preston on Estates, 50, 250 ; Rives rate — and may therefore take either to v. Dudley, 3 Jones, N. C. Eq. 126; them and their heirs, or to them and Nicoll v. N. Y. & Erie R.R. Co., 12 their successors. But the law on this Barb. 460; 12 N. Y. 121; Bingham v. subject respecting the king differs from Weiderwax, i Comst. 509 ; People v. that respecting any other sole corpora- Munson, 5 Denio, 389 ; Hayward v. tion ; for though, like the others, he Davidson, 41 Ind. 212; Crawford v. has both a natural and politic capacity, Longstreet, 43 N. J. 325 ; Coleman v. yet in general the politic capacity pre- San Rafael Turnpike Co., 49 Cal. 517 ; vails, and land given to the king and Turnp. Co. v. Illinois, 96 U. S. 63 ; his heirs passes in the same manner Northern Liberty Market Co. v. Kelly, as land given to him and his succes- 113 Id. 199; Page v. Heineberg, 40 Vt. sors; for as applied to the king, the 81. Seeante.sec. 165. § 170 AND TRANSFER PROPERTY. 655 rate property shall be held as real estate and descend as such, its personalty must be so treated as regards the inter- ests of the stockholders ; but it does not follow that the actual legal character of the personal property will be changed as to all other persons.^ The usual clause in the charter declaring the stock of the corporation personal property relates merely to the nature or character of the property which the stockholders are to be deemed to have in the several shares of the stock of the company as indi- viduals, and not to the character of the property held by the company in its corporate capacity for the benefit of the stockholders.* Where a contract in writing not under seal is entered into by a corporation for a quantity of standing timber, the timber being part of the real estate, the con- tract only operates as a license to the company to enter upon the land and remove the timber, the title to which only vests in the corporation as fast as removed.^ Grants beneficial to a corporation are presumed to have been accepted.* " The validity of such a grant depends upon the acceptance, not upon the mode by which it is proved. It is no impHed condition that the corporation shall perpetuate the evidence of its assent in a particular way." « The title to land being in the corporation, and not in the individual members who are not tenants in common, title to the land cannot be conveyed by one or by any number of the stockholders. Although a member who owned all or a majority of the shares might control the corporation, he could in either case do it only by a vote of the corpora- tion at a meeting held in accordance with the charter." ' Cape Sable Co.'s Case, 3 Bland Ch. Pick. 518 ; Concord Bank v. Bellis, 10 606. Cush. 276 ; Retch's Wharf Co. v. Judd, ^ Mohawk & Hudson R.R. Co. v. 108 Mass. 224. Clute, 4 Paige Ch. 384. * Story, J., in Bank of U. S. v. ' Cady V. Sandford, 53 Vt. 632. Dandridge, 12 Wheat. 60. ■* Rathbone v. Tioga Nav. Co., 2 ° Wheelock v. Moulton, 15 Me. 519 ; Watts & Serg. 74; Ward v. Lewis, 4 Tileston v. Newell, 13 Mass. 406. 656 POWER TO ACQUIRE, HOLD, § I7I When land situated in a State is claimed by a foreign cor- poration, it is for thie court of the State to construe the charter and determine whether the corporation is author- ized by its charter to take or hold the land. With refer- ence to such an inquiry, an adjudication on the subject by the foreign court would only be allowed such weight by the court of the State in which the land lies as the reasons upon which it was founded might give it.^ § 171. Sale of property by religious corporations. — A religi- ous corporation, which has the title to its real estate, may determine when it shall be sold, and has the exclusive power to enter into contracts for that purpose. In New York, the sole distinction which exists between the authority of such a corporation in this respect and that possessed by other corporations is, that the consent of the court is necessary ; * the intention being to protect the corporators from a perversion of their property.^ It has been said that the statute of Elizabeth, restraining ecclesiastical corpora- tions from alienating their real estate, probably became a part of the common law of New York, and that previous to the general law of that State upon the subject, no re- ligious corporation could convey its real estate without an act of the legislature. Since the statute " it cannot be said to be against public policy for such corporations to sell their real estate, for such sales are expressly permitted. Such sales are simply against public policy unless author- ized by the proper tribunal in the same way that the sale of lands of infants is against public policy unless authorized by some court."* The only way in which an incorporated religious society 1 Boyce V. City of St. Louis, 29 Barb, ed L. of 1879, ch. 117; Rev. Sts. of 650; Nicholson v. Leavitt, 4 Sandf. N. Y., 7th Ed., 1661, 1669. 276. A corporation may acquire title ' Cong. Beth. Elohim v. Centr. Presby. to land by adverse possession. Matter Ch., 10 Abb. Pr. N. S. 484. of Roman Catholic Soc, 4 Lansing, 14. * Ref. Church v. Schoolcraft, 65 N. "L. of N. Y. of 181 3, ch. 60, amend- Y. 134. §172 AND TRANSFER PROPERTY. 657 can divide its real estate and vest a portion in part of the congregation set off from the parent organization, is by an act of the legislature. But an imperfect and invalid con- veyance will be sufficient to lay the foundation for an ad- verse possession.^ § 172, Power to take mortgage security. — A corporation may take a mortgage on real estate to secure loans or debts made or created in the regular course of its business ; ^ such a power being essential for the prudent conduct of the affairs of corporations as well as of individuals. It was said by the court in a recent case in Illinois, that the policy of taking mortgages on real estate by corporations to secure the payment of debts, had been recognized by the legisla- ture of that State in, almost innumerable-instances, and that the court could recall no instance where a corporation had been allowed to create a debt, and had at the same time been denied the right to take a mortgage on real estate to secure it.^ So a corporation may, unless restrained by its ' Madison Av. Ch. v. Baptist Ch., 73 from purchasing land not required for N. Y. 82. its business, or mortgaged or conveyed Teople V. Utica Ins. Co., ij Johns, to it for debts, or purchased by it on 358 ; Silver Lake Bank v. North, 4 judgments. The bank held a mort- Johns. Ch. 370 ; The Banks v. Poitiaux, gage on some of several tracts of land 3 Rand. 136; Bridge Co. v. Genl. Ins. which were previously mortgaged to Co., 3 Md. Ch. 418; Utica Ins. Co. the plaintiff, and, at the foreclosure sale v. Scott, 19 Johns. I ; Mann v. Eck- of the plaintiff's mortgage, the bank ford, IS Wend. 502; Farmers' Loan bid in a lot not covered by its mort- Co. v. Clowes, 4 Edw. Ch. 575 ; 3 gage, in order to prevent the property Sandf Ch. 339 ; 3 Comst. 470 ; Trenton from being sacrified, the plaintiff receiv- Banking Co. v. Woodruff, i Green, N. ing the purchase money therefor, and J. Ch. 117; Baird v. Bank of Wash- afterward levying and selling the same ington, II Serg. & Rawle, 41 1 ; Batter- lot on a judgment against the mort- shall v. Davis, 31 Barb. 323 ; Bennett gagor. It was held that the bank ob- V. Union Bank, 5 Humph. 612 ; Morris tained no title to the lot purchased by V. Way, 16 Ohio, 469 ; Fowler v. Scully, it at the foreclosure sale, and that the 72 Pa. St. 456 ; Woods v. People's plaintiff and the bank being competitors Nat. Bank, 83 Id. 57. But see Kansas at the sale, he had a right to contest Valley Nat. Bank v. Rowell, 2 Dillon, the validity of the sale to the bank. 371; Mathews V. Skinker, 62 Mo. 329. Russell v. Topping, 5 McLean, 194. 'Stevens v. Pratt, loi 111. 206. A Where the charter required that sales bank was prohibited by its charter of property under mortgages held by VOL. I. — 43 65« POWER TO ACQUIRE, HOLD, § 173 charter, take a mortgage or deed of trust on real estate to -secure anticipated advances or liabilities.' § 173. Mortgaging corporate property. -^Power in a corpo- ration to sell, includes a power to mortgage, even undfer the statute of uses, strictly construed. But the superadded words, " dispose of," leave no doubt of the existence of an intent to give the corporation power to part with its real ^estate by any voluntary act without regard to its operation.* Express authority given to a corporation to mortgage its 'property, will not prevent its giving security by a pledge ;^ or power to mortgage for a special purpose, deprive it of the right to mortgage for other purposes.* Authority to mortgage which is lacking, may be conferred by the legis- lature after the corporation has given mortgage security.® 'The right to buy or sell real estate, or to borrow money. the corporation must be made in tlie county wiiere the property was situated, and the decree of foreclosure described the property as situated in one county and directed a sale there, whereas it was situated in another county, it was .held that the decree could not be im- peached collaterally, but only by appeal. 'Fuller V. Van Geesen, 4 Hill, 171. ' Farmers' Loan Co. v. McKinney, 6 McLean, i ; Crocker v. Whitney, 71 N. Y. 161 ; Peru Bridge Co. v. Hen- dricks, 18 Ind. II. But see Kansas Valley Nat. Bank v. Rowell, supra; Woods V. People's Nat. Bank, supra. 1 = Gordon v. Preston, i Watts, 385 ; McAllister v. Plant, 54. Miss. 106. Where an act was passed by the legis- .lature of New Jersey, making it lawful for the united railroad and canal com- , panics of that State, by and with the consent of two-thirds in interest of the stockholders of each in writing, duly SEuthenticated by affidavits filed in the office of the secretary of state, to con- -solidate their capital stocks, or to con- .solidate with any other railroad or canal company in the State, or other- wise, with which they were or might be identified in interest, or whose works should form with their own continuous or connected lines, or to make such other arrangements for connection or consolidation of business with any such company or companies by agreement, contract, lease, or otherwise, as to the directors of said united companies might seem expedient, it was held that no power was given to lease to a com- pany out of the State. Black v. Del. & Raritan Canal Co., 24 N. J. Eq. 455, reversing S. C. 22 Id. 130. ^ Uncas Nat. Bank v. Rith, 23 Wis. 339- * Allen V. Montgomery R.R. Co., 11 Ala. 437 ; Mobile R.R. Co. v. Talman, 15 Id. 472; Jones v. Guaranty, etc., Co., loi U. S. 622. » White Water Valley Canal Co. v. Valette, 21 How. 414; Richards v. Merrimack.etc, R.R. Co., 44 N. H. 1 27 ; Portland, etc., R.R. Co. v. Kennebec, etc., R.R. Co., 59 Me. 9; Shaw v. Norfolk R.R. Co;, 5 Gray, 162. i ^73 AND TRANSFER PROPERTY. 655 implies the power to mortgage the corporate property to secure debts.' " Borrowing is one of those powers which directors may have either as expressly given, or as implied from the nature of the business. When expressly given, it may be in so many words, or by necessary deduction from general powers of management conferred upon them. The authority may be to borrow by way of loan simply, or by mortgaging the funds and other property of the com- pany, whether the existing assets only, or future assets as well, that is to say, book debts accruing though not yet due." * The principle that a person cannot grant a thing he does not have, has no application to a mortgage of pres- ent property, and such also as may be thereafter acquired, when no rule of law is infringed, or rights of a third party prejudiced.^ By the civil law, a mortgage may cover the 1 Jackson v. Brown, 5 Wend. 590 ; -Cent. Gold Mining Co. v. Piatt, 3 Daly, 263 ; Thompson v. Lambert, 44 Iowa, 239; Watts' Appeal, 78 Pa. St. 370; Susq. Bridge Co. v. Genl. Ins. Co., 3 Md. 305 ; Taber v. Cincinnati R.R. Co., 15 Ind. 459; Coe v. Johnson, 18 Id. 218 ; Trustees v. Shulze, 61 Id. 51 1 ; Savannah, etc., R.R. Co. v. Lancaster, ■62 Ala. 555; Taylor v. Agr., etc., Assoc, 68 Id. 229; Burt v. Rattle, 31 Ohio St. 1 16 ; McAllister v. Plant, su- pra ; Aurora Agr. Soc. v. Paddock, 80 111. 263 ; West V. Madison County Agr. Board, 82 Id. 205 ; Miller v. Chance, 3 Edw. Ch. 399; Barry v. Merchants' Exchange Co., i Sandf. Ch. 280 ; Burr V. McDonald, 3 Gratt. 206 ; Pennock v. Coe, 23 How. 117 ; King v. Merchants' Exchange Co., 5 N. Y. 547 ; Curtis v. Leavitt, 1 5 Id. 9 ; Leavitt v. Blatchford, 17 Id. 521 ; Parish v. Wheeler, 22 Id. 494 , Nelson v. Eaton, 26 Id. 410 ; Bardstown, etc., R.R. Co. v. Metcalfe, 4 Mete. Ky. 199; Richards v. Merri- mack, etc., Co., supra ; Robins v. Em- bry, I Smed. & Marsh Ch,-207; Aus- tralian, etc.. Steamship Co. v. Mounsey, 4 K. & J. 733 ; In re Patent File Co., L. R. 6, Ch. 83. See Tripp v. Swanzey Paper Co., 13 Pick. 291. * Green's Brice's Ultra Vires, 2d Am. Ed., 499, 500. " Under ordinary circum- stances, and with ordinary powers, a corporation can mortgage only its as- sets and property. But by legislative authority it may mortgage every inci- dent connected with it ; its special powers, its franchises." lb. 628 note. ' In re Marine Mansions Co., L. C. 4, Eq. 601 ; Bloomer v. Union Coal; etc., Co., 16 Id. 383 ; Willink v. An- drews, Jr., R. 16, C. L. 201 ; Pennock V. Coe, 23 How. 117; Williamson v. New Alb., etc., R.R. Co., i Biss. 198; U. S. v. New Orleans R.R. Co., 12 Wall. 362 ; Shaw v. Bill, 95 U. S. (5 Otto) 15; Benjamin v. Elmira R.R. Co., 49 Barb. 441 ; Seymour v. Canan- daigua, etc., R.R. Co., 25 Id. 284 ; Butler v. Rahm, 46 Md. 541 ; Pierch v. Milwaukee, etc., R.R. Co., 24 Wis. 551 ; Morrill v. Noyes, 56 Me. 458 ; Coe V. Brown, 22 Ind, 252 ; Meyer v; 66o POWER TO ACQUIRE, HOLD, § 173 subsequently acquired property of the mortgagor.^ Mort- gages of the future stock of trading and manufacturing corporations have been sustained at common law.* Even where the strict rule against the mortgaging of subsequently acquired personal property is enforced, if the mortgage pur- port to cover such property, and the mortgagee take pos- session with the assent of the mortgagor, before another title attaches, he will hold as pawnee.. And in mortgages of real estate, buildings, and other things which are an- nexed to the land after the mortgage, are deemed acces- sions to the original subject.^ Future calls cannot be mort- Johnston, 53 Ala. 324; Stevens v. Wat- son, 4 Abb. Ct. of App. Decis. 302 ; Fisk V. Potter, 2 Id. 138 ; Philadelphia, etc., R.R. Co. V. Woelper, 64 Pa. St. 366; Dunham v. Isett, 15 Iowa, 284; Williamson v. N. J., etc., R.R. Co., 29 N. J. Eq. 311. It is a. general rule of the common law that nothing can be mortgaged that is not in existence, and does not belong to the mortgagor. Tapfield v. Hillman, 4 M. & G. 240 ; Lunn V. Thurston, i M. G. & S. 383 ; Winslow V. Merchants' Ins. Co., 4 Mete. 306; Jones v. Richardson, 10 Id. 488 ; Moody v. Wright, 13 Id. 17. • Domat, Pt. I, b. 3, tit. i, arts. 5, 7. 2 Mitchell V. Winslow, 2 Story, 630 ; Holly V. Brown, 14 Conn. 255 ; Abbott V. Goodwin, 20 Me. 408. ^ Pettingill v. Evans, 5 N. H. 54 ; Pierce v. Emery, 32 Id. 484. In Lang- ton V. Hasten, i Hare Ch. 549, the mortgage security was the assignment of the ship Foxhound, then on her voy- age to the South seas, together with all and singular her masts, etc., " and all oil and head matter and other cargo which may be caught or brought home on the said ship on and from her then present voyage." The cargo was levied on by a judgment creditor on the ar- rival of the ship at home. A bill was filed to have the mortgage declared a good and valid security for the moneys advanced, and that the complainants be entitled to the benefit of the secu- rity in preference to the judgment creditor. The vice-chancellor said : " Is it true that a subject to be ac- quired after the date of a contract can- not in equity be claimed by a purchaser for value under the contract.' It is impossible to doubt that, for some pur- poses at least, by contract, an interest in a thing not in existence at the time of the contract may in equity become the property of the purchaser for value. I cannot, without going in opposition to many authorities which have been cited, throw any doubt upon the point that Bixme, the contracting party, would be bound by the assignment to the plaintiffs." In Tapfield v. Hillman, 7 Jur. 771, TlNDALL, Ch. J., was in- clined to the opinion that, even at law, a mortgage security of future acquisi- tions might have effect given to it if the terms indicated an intent to com- prehend them. Chapman v. Weimer, 4 Ohio, 481, was a case at law, and it was held that the mortgage attached after the property was acquired from the time the right was asserted by the m6rtgagee. § 173 AND TRANSFER PROPERTY. ' 66 1 gaged ; ^ but calls already made, although the time for pay- ment has not yet arrived, may be assigned as security for existing indebtedness when the corporation has a general authority to borrow or its business cannot be continued without raising money.* Future net earnings and profits may be mortgaged,^ and future advances be secured by a mortgage of the corporate property.* A corporation may mortgage its lands situated in another State than that of its creation unless prohibited by law.^ The omission to specify a thing in a mortgage along with other things which are enumerated does not exclude it if any of the enumera- ted things could be of no use without it. The description of property mortgaged by a railroad company was all the present and future to be acquired property of the company, including the right of way and land, with the superstruc- ture and rails and other materials, bridges, viaducts, cul- verts, fences, depot grounds and buildings, tolls, and in- come. It was held that as the things specified would be of little value to the mortgagees without the rolling stock, that must also be regarded as included.^ Notwithstanding so much of a mortgage as embraces a portion of the prop- erty of a corporation is inoperative and void, yet if it is valid in relation to a separate and independent portion, the latter will be upheld.'' Where a railroad company being duly authorized issued bonds for borrowed money and gave a mortgage on the road and its franchises executed ' In re British Provident Life & 5 Biss. 237 ; Dunham v. Isett, 1 5 Iowa, Fire Assu. Co., 4 De G. J. & S. 407; 284; State v. Northern Cent. R.R. Co., King V. Marshall, 33 Beav. 565 ; /« r^ 18 Md. 193. Sankey Brook Coal Co., L. R. lo, Eq. ■■ Crewer, etc.. Mining Co. v. Will- 381; Bank of South Australia V. Abra- yams, 14 L. T. N. S. 93; Conrad v. hams, L. R. 6, P. C. 265. Atlantic Ins. Co., i Pet. 386. 2 In re Humber Iron Works Co., 16 ^ Bassett v. Monte Christo, etc., W. R. 474, 667 ; In re Sankey Brook Mining Co., 1 5 Nev. 293. Coal Co., L. R. 9, Eq. 721 ; In re Life * PuUan v. Cincinnati, etc., R.R. Co., Assu. Co., L. R. 10, Eq. 312; King v. 4 Biss. 35 ; Shaw v. Bill, 95 U. S. 10. Marshall, supra. See Smith v. McCullough, 104 U. S. 25. 2 Pullan V. Cincinnati, etc., R.R. Co., ' Hendee v. Pinkerton, 14 Allen, 381. 662 Pq>WER TO ACQUIRE, HOLD, § 1 75 by the president of the company in his name as president, but signed by him in his name individually, it was held that although both he and the directors who voted that the mortgage should be given, intended that it should be exe- cuted by the company and supposed that it was so executed, which, owing to technical defects, was not the case, yet, as between the corporation and mortgagees, it operated in their favor as an equitable mortgage.^ When a mortgage given by a railroad company embraces the rolling stock of the company as well as the track, land occupied for build- ings, superstructure, etc, judgments recovered against the company by creditors subsequent to the execution of the mortgage and executions levied on the property, are not a lien superior in law to the prior claim of the mortgagees.* But the latter take after acquired property subject to any lien on it existing when the property came into the hands of the mortgagor.^ When the property of a railroad company is mortgaged, it belongs to the company, subject to the mortgage lien. Whatever interest remains due after the lien is discharged, is the property of the corporation, and when the bonds secured by the mortgage are paid, the residue becomes a trust fund for the benefit of creditors. The bondholders may exact the whole amount of the bonds, principal and interest ; or they may, if they see fit, accept a percentage ' Miller v. Rutland & Washington ' Farmers' Loan & Trust Co. v. Hen- R.R. Co., 36 Vt. 452. There was no drickson, 25 Barb. 484. order or resolution of the board of trus- ' Williamson v. R. R. Co., 29 N. J. tees of a religious society authorizing a Eq. 311 ; U. S. v. New Orleans R.R. mortgage. All of the trustees except Co., 12 Wall. 362; Scott v. R.R. Co., one, who had resigned, executed it, 6 Biss. 534. A bank having obtained and, in doing so, they acted as a board, a lien upon property by judgment may and although all who signed the mort- purchase at execution sale under the gage were not present at the same judgment such property of the defend- time, yet a majority of them were pres- ant as may be necessary to secure its ent part of the time when it was being claim, although prohibited by statute executed. It was held suflScient. South from purchasing and holding real es- Baptist Soc. V. Clapp, 18 Barb. 35. tate, Ingraham v. Speed, 30 Miss. 410. § 173 AND TRANSFER PROPERTY. 663 as a compromise in full discharge of the claims. But whenever the lien is legally discharged, the property em- braced in the mortgage, or so much of it as remains, be- longs to the corporation. Where there was an agreement between the mortgagees and stockholders of an insolvent railroad company, by which the mortgage bondholders discharged their lien for eighty-four per cent, of the full, amount, and the stockholders were to have the residue of the proceeds of a sale of the corporate property, it was held fraudulent and void as against the general creditors, liotwithstanding if there had been a regular foreclosure, in- dependently of any arrangement between the bondholder^ and stockholders, the entire proceeds would have belonged to the latter.^ In case of the failure of a railroad company to pay its mortgage debt, it has been said that the property, if wortb much more than the amount of the debt and interest, " should be leased at public auction for the shortest terntj that will bring the amount of the accruing interest an4 principal, as the same shall become due. If no one will take it for a term of years, it should be sold absolutely. The lessee or purchaser should be required to give bonds with good security, personal or real, to be approved by the court, for the purchase money, including the accruing in^ terest and principal of the mortgage bonds; and a lien on the property or term should be reserved as additional secu- rity. If the property should be leased, the lessee should be required to give a covenant, with good security, to be approved by the court, to keep in repair the road, cars, and other property not consumable by use, such as fuel and oil, and return the §ame to the company at the end of the term in as good condition as it may be in when received • and, to prevent future controversy with reference thereto, the court, before ordering a lease, should cause an inventory Railroad Co. v. Howard, 7 Wall. 392. 664 POWER TO ACQUIRE, HOLD, § 1 74 to be made by one or more commissioners of said property, its value, condition, etc., which should be filed in the cause, and be declared in the decree ordering the lease, to be con- clusive evidence of the condition and value of said property at the time of the lease." ^ § 174. Right of eminent domain. — Authority to appropriate and control private property for public use, is an inherent element of sovereignty demanded by the necessity of the case, and the highest considerations of the public welfare ; the government simply resuming the possession of that to which it has the ultimate title, and of which it has surren- dered the present possession, subject to the condition that such resumption may be made whenever the occasion shall arise.* This power of eminent domain belongs to the United States as well as to the several States of the Union, and the only requisite for its exercise is the existence of the necessity, and the payment of just compensation for the private property taken.^ Thus, authority has been given by law, not only to the agents of the government. ' Bullitt, J., in Bardstown, etc., last are, by necessary implication, held R.R. Co. V. Metcalfe, 4 Mete. Ky. 199. in subordination to this power, and ''■ De Varaigne v. Fox, 2 Blatchf. 95 ; must yield in every instance to its Jones V. Walker, 2 Paine, 6§8 ; Patter- proper exercise. The Constitution of son V. Miss., etc.. Boom Co., 3 Dillon, the United States, although adopted 465 ; Rensselaer & Saratoga R.R. Co. by the sovereign States of this Union, V. Davis, 43 N. Y. 137 ; Eastern R.R. and proclaimed in its language as the Co. V. Boston & Me. R.R. Co., in supreme law for their government, can Mass. I'aj ; Am. Print Works v. Law- by no rational interpretation be brought rence, 3 Zab. N. J. 9 ; Brown v. Beatty, in conflict with this attribute of the 34 Miss. 227 ; Weir v. St. PaqJ, etc.. States ; there is no express delegation R.R. Co., 18 Minn. 155; Baring v. ofitbythe constitution, and it would Erdman, 14 Hazard's Pa. Reg. 129; imply an incredible fatuity in the States Cent. Branch, etc., R.R. Co. v. Atchi- to ascribe to them the intention to re- son, etc., R.R. Co., 28 Kansas, 453 ; linquish the power of self-government Boom Co. V. Patterson, 98 U. S. 403 ; and self-preservation." Daniel, J., in U. S. V. Jones, 109 Id. 513. "This West River Bridge Co. v. Dix, 6 How. power, denominated the eminent do- 507, affi'g 16 Vt. 446. main of the State, is, as its name im- ' Secombe v. R.R. Co., 23 Wall. 108 ; ports, paramount to all private rights U. S. v. Block, 3 Biss. 208 ; Kohl v. U. vested under the government, and these S., 91 U. S. 367. § 174 AND TRANSFER PROPERTY. 665 but to corporations as well foreign as domestic, and even to individuals, to take private property for the purpose of constructing public highways, canals, and railroads, making wharves and basins, establishing ferries, draining swamps, and conveying water to cities and villages ;^ and the power has sometimes been delegated by general statutes applicable to corporations organized pursuant to them.^ Whether the public exigencies require that private property shall be taken, is to be exclusively determined by the law-making power ; ' but what constitutes a public use is a question for the courts.* In the exercise of the right of eminent domain, the leg- islature may authorize shares in corporations, and corporate franchises to be taken for public uses, upon just compensa- tion, the title to this species of property being no more secure against invasion when the public necessity requires it, than the ownership of real estate. This principle does not tend to impair the obligation of contracts, but rests on the basis that public convenience and necessity are of para- 'Beekman v. Saratoga, etc., R.R. vidual when delegated for a purpose of Co., 3 Paige Ch. 73 ; Rensselaer & a public nature. There have been fre- Saratoga R.R. Co. v. Davis, supra ; quent instances of its exercise by indi- In re Fowler, 53 N. Y. 60; R.R. Co. viduals under the law of England, and V. Kip, 46 Id. 546 ; Johnson v. Utica of some of the States of the Union. Waterworks, 67 Barb. 415 ; Patterson ''Buffalo, etc., R.R. Co. v. Brainard, V. Miss., etc., Boom Co., 3 Dillon, 465 ; 9 N. Y. 100. In re Mt. Washington R.R. Co., 35 ' Talbot v. Hudson, 16 Gray, 417 ; N. H. 134 ; Hildreth v. City of Lowell, Tide Water v. Coster, 18 N. J. Eq. 518 ; II Gray, 345; Barrington v. Neuse People v. Smith, 21 N. Y. 595. See River, etc., Co., 69 N. C. 165 ; Matter In re N. Y. Cent. R.R. Co., 66 N. Y. of Townsend, 39 N. Y. 171. See Red- 407 ; Matter of Cooper, 28 Hun, 515. dall V. Bryan, 14 Md. /\\i \ ; Hartwell v. * People v. Salem, 20 Mich. 452 ; Armstrong, 19 Barb. 166; Anderson Waterworks Co. v. Burkhart, 41 Ind. V. Kerns Draining Co., 14 Ind. 199; 364; Speer v. Blairsville, 50 Pa. St. Gilmer v. Lime Point, 19 Cal. 229; 150; Matter of Deansville Cemetery Williams v. School District, 33 Vt. 271 ; Assoc, 66 N. Y. 569; Chicago, etc., Dingley v. Boston, 100 Mass. 544; R.R. Co. v. Lake, 71 111. 333; Tyler v. Matter of Commrs. of Central Park, 63 Beecher, 44 Vt. 649 ; Thompson v. Barb. 282. There is nothing in the Androscoggin, etc.. Improvement Co., nature of the power of eminent domain 58 N. H, 108. See Fertilizing Co. v. which forbids its exercise by an indi- Hyde Park, 97 U. S. 659. 666 POWER TO ACQUIRE, HOLD, § 1 74 mount importance and obligation. By the grant of a franchise to individuals for one public purpose, the legislature does not debar itself from giving to others new and para- mount rights and privileges, although it may be necessary to appropriate a franchise previously granted. If, in such cases, suitable and adequate provision is made by the legis- lature for the compensation of those whose property or franchise is injured or taken away, there is no violation of public faith or private right. The obligation of the con- tract created by the original charter is thereby recognized as the property of individuals, and the rights acquired by them under it, like other property appropriated for public uses, form proper subjects for indemnity in damages. Un- less this were the rule, useful public improvements might be prevented by legislative grants, which, though wise and expedient in their day, had become obsolete.^ Where a corporation was authorized by the act creating it, to build a bridge across the Connecticut River from Enfield to Suf- field, and to collect certain tolls, and the charter recited that " no person or persons shall have liberty to erect an- other bridge anywhere between the north line of Enfield and the south line of Windsor," it was held that the bridge company had the same and no greater right to be protected in the enjoyment of its property and franchises as other citizens, and that the legislature had the same right, by vir- ' West River Bridge Co. v. Dix, 6 etc., R.R. Co.'s Appeal, 102 Id. 123 ; How. 507 ; Richmond, etc., R.R. Co. Northern Pacifje R.R. Co. v. St. Paul, V. Louisa R.R. Co., 13 Id, 71 ; Milner etc., R.R. Co., i McCrary, 302; Greenr V. N. J. R.R. Co., 6 Ani. L. Reg. 6 ; wood v. Freight Co., 105 U. S. 13 ; BostoB, etc., R.R. Co. v. Salem, etc.. New Orleans Ga.s Co. v, Louisiana R.R. Co., 2 Gray, i ; Baekus v. Leba- Light Co., 115 Id. 656 ; Black v. Del. Hon, II N. H, 19; Bellona Co.'s Case, & Raritan Canal Co., 22 N. J. Eq. 130; 3 Bland Ch. 443 ; Si;cth Av, R.R. Co. s. c. 24 Id. 455. See Lake Shore, etc., V. Kerr, 72 N. Y. 330; Metropolitan R.R. Co. v. N. Y., Chicago, etc., R.R. City R.R. Co. y. Chicago, etc., R.R. Co., 8 Fed. Rep. 858 ; Lake Pleasantoa Co,, 87 111. 317 ; Matter of Towanda Water Co. v. Contra Costa Water Co., Bridge Co,, gi Pa. St, 216; Pennsylv. 67 Cal. 659; Eel River, etc., R.R. Co. R.R. Co.'s Appeal, 93 Id. 150; Pl^lfi,, v. Field, lb. 439, § 174 AND TRANSFER PROPERTY. 667 tue of its power of eminent domain, to appropriate such property to public use, when necessary, and upon the same terms.^ The right of eminent domain may be exercised over property of the United States not reserved or held by the government for specified national purposes.^ But, al- though a franchise is property, and, as such, may be taken by a corporation under the right of eminent domain, yet in favor of such right there can be no implication, unless it arises from a necessity so absolute that without it the grant itself will be defeated. It must also be a necessity which arises from the very nature of things, and over which the ' Enfield Bridge Co. v. Hartford & New Haven R.R. Co., 17 Conn. 40, 454. See New York, etc., R.R. Co. v. Boston, etc., R.R. Co., 36 Conn. 196 ; Bridge Co. v. Clarksville, i Sneed, Tenn. 176; Railway v. Railway, 30 Ohio St. 604 ; Baltimore, etc., T. Co. V. Union R.R. Co., 35 Md. 224; Sixth Av. R.R. Co. V. Kerr, 72 N. Y. 330; Metrop. City R.R. Co. v. Chicago, etc., R.R. Co., 87 111. 317. In an early case in Alabama, it was held that the grant of a ferry did not prevent the legislature from chartering a toll-bridge near the ferry, without making any provision for compensation to the owner of the ferry. Dyer v. Tuscaloosa Bridge Co., 2 Por- ter, 296. The Supreme Court of New Hampshire held that the grant of a ferry did not prevent the legislature from granting to another person the exclusive right of erecting a toll-bridge within certain limits which included the place where the ferry was situated. The court expressed the opinion that were there no terms of exclusion in the grant of the bridge, another bridge might be authorized within the same limits. There being an exclusive grant of the bridge in that case, the court decided that the legislature could not authorize the erection of another bridge without provision for the compensation of the first grantee. Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35, 59. A charter, authorizing the construction of a toll-bridge across a river, or arm of the sea, and providing that it shall not be lawful for any one to erect or main- tain a bridge or ferry in or near the same place, is not a covenant or g^ant that a similar privilege shall not be conferred on others. Thompson v. N. Y. & Harlem R.R. Co., 3 Sand f. Ch. 625 ; Mohawk Bridge Co. v. Utica, etc., R.R. Co., 6 Paige Ch. 554. The right to erect a bridge over navigable water is not a separate right, independ- ently of the franchise, to establish the way, but a part of the franchise, and within the grant, because it is neces- sary to the enjoyment of it. When the right to take toll ceases by the lawful taking and condemnation of the way to the public use, the bridge, together with the fixtures necessarily incident to the use of the way, passes with it, and the owners of the bridge are only entitled to compensation for the loss of the franchise, and not for the value of the bridge. Cent. Bridge Corp. v. Lowell, 15 Gray, 106. ^ U. S. V. Bridge Co., 6 McLean, 517; Ormerod v. N. Y., West Shore, etc., R.R. Co., 18 Fed. Rep. 370. 668 POWER TO ACQUIRE, HOLD, § 1 74 corporation has no control. It is obvious that to permit the extinction of franchises on the plea of necessity created by a corporation for its own convenience, or economy, would subject important legislative grants to destruction, at the will of the holder of the latest franchise.* Of course, to give a legislative grant the effect of a conveyance to pri- vate uses of land the proprietorship of which is in the State, it must clearly appear that the legislature intended to make a grant of that character and description, or that the use of the public property is necessary to the enjoyment of the franchises which are granted.* When power is given to acquire an interest in land for the exclusive purpose of ex- ercising a franchise, and particularly when, to acquire such an interest, there is a delegation of the power of eminent domain, the interest cannot be separated from the use to which alone it can be applied, and if the franchise cannot be conveyed, neither can the interest in real estate with which it is connected.^ The right of eminent domain can only be exercised for a public purpose supposed and intended to benefit the pubHc ; and after the right has been exercised, the use of the prop- erty must be held in accordance with and for the purposes which justified its taking.* It is sufficient that the object ' Pennsylvania Co.'s Appeal, 93 Pa. with critical acuteness, and scrutinized St. 150; Inhab. of Springfield v. Conn, with all the severity of legal exposition. River R.R. Co., 4 Cush. 63 ; In re An act of this sort deserves no favor ; Boston & Alb. R.R. Co., 53 N. Y. 574; to construe it liberally, would be sin- Boston, etc., R.R. Co. V. Lowell, etc., ning against the rights of property. In R.R. Co., 124 Mass. 368 ; Matter of England, it has been said that all N. Y., etc., R.R. Co., ^^ N. Y. 248. courts have, for obvious reasons, at all See 20 Hun, 201. When the legisla- times, construed such legislative enact- ture attempts " to take the property of ments most strictly." Binney's Case, one man which he has fairly acquired, 2 Bland Ch. 99. and the general law protects, in order "^ Stevens v. Paterson & Newark to transfer it to another, even upon a R.R. Co., 34 N. J. 532. complete indemnification, it will natu- ' Coe v. Columbus, Piqua & Ind. rally be considered as an extraordinary R.R. Co., 10 Ohio St. 372. act of legislation, which ought to be ■* Lance's Appeal, 55 Pa. St. 16 ; viewed with jealous eyes, examined Nesbitt v. Trumbo, 39 111. 1 10 ; Crear § 174 AND TRANSFER PROPERTY 669 is a public benefit to a district, or to a particular commu- nity.^ In the construction of a railroad by a private cor- poration under the authority of the legislature, for the public accommodation, there is a mingling of both public and private benefit and a public use, for which private property may be lawfully taken.* Such a road is deemed a public highway, whether made by the government, or by a corporation, or even by individuals, who derive the power to construct it from legislative grant. Though the owner- ship is private, the use is public. So, turnpikes, bridges, ferries, and canals, although made by individuals under public grants, or by companies, are regarded as publici juris? The use of a street by a railroad is one of the modes of enjoying a public easement, and the only restric- tion upon its application is, that the use to be made of streets must not be incompatible with, or subversive of, the ends for which they were established.* A contract between railroad and telegraph companies, by which the former at- tempts to vest in the latter the exclusive right to establish lines of telegraphic communication along the roadway, is against public policy in tending to create a monopoly, and aji unauthorized conveyance of property condemned to public use.^ When private property is demanded by a corporation under the power of eminent domain, based upon an alleged prospective increase of its business, which will require en- larged accommodations, it must be established beyond rea- sonable doubt that such increase will occur. The acquisi- V. Crossly, 40 Id. 175 ; Osborn v. Hart, ^ Walther v. Warner, 25 Mo. 277. 24 Wis. 89 ; Bankhead v. Brown, 25 ^ Olcott v. Supervisors, 16 Wall. 678. Iowa, 540; Memphis Freight Co. v. * Drake v. Hudson River R.R. Co., Memphis, 4 Cold. Tenn. 419 ; Brown 7 Barb. 508 ; Chapman v. Albany & V. Beatty, 34 Miss. 227 ; Bonaparte v. Schenectady R.R. Co., 10 Id. 360 ; Camden & Amboy R.R. Co., Baldw, Williams v. N. Y. Centr. R.R. Co., 18 205. Id. 222. " Bloomfield Gas Light Co. v. Rich- ' Western Union Tel. Co. v. Am. ardson, 63 Barb. 437. Union Tel. Co., 65 Ga. 160. 670 POWER TO ACQUIRE, HOLD, § 174 tion of land by a railroad company for purposes of speculation or sale, or to prevent interference by competing lines, or methods of transportation, or in aid of collateral enterprises remotely connected with the operating of the road, al- though they may increase its revenue, are not such objects as justify the condemnation of private property.^ Although, ■however, the right of eminent domain being in derogation of common right, is not to be extended by implication, and the act conferring the power must be strictly complied with, yet a statute granting the power should not be con- strued so literally or strictly as to defeat the evident pur- pose of its enactment. If the power is doubtful, after all reasonable intendments in its favor, the doubt will be solved adversely to the claim of power.* The purposes for which lands may rightfully be condemned to the uses of a railroad company, are not necessarily confined to those needful for the track. A manufactory of cars, or dwellings for opera- tives, would not be included in the right to take land re- quired for the road.^ But passenger depots, convenient and proper places for keeping cars and locomotives when not in use, and for the receipt and delivery of freight, would be indispensable to the accomplishment of the general pur- poses of the corporation.* So, land may be taken for cat- tle-yards, repair-shops, turnouts, for the deposit of wood and lumber transported, and also for additional tracks rendered necessary by an increase of business ;^ and it will 1 Rensselaer & Saratoga R.R. Co. v. ' Eldridge v. Smith, 34 Vt. 484. Davis, 43 N. Y. 137 ; Stevens v. Erie ^ N. Y. & Harlem R.R. Co. v. Kip, R.R. Co., 21 N. J. Eq. 259 ; Cleveland 46 N. Y. 546. & Pittsburg R.R. Co. v. Spear, 56 Pa. ^ n_ y. Cent. R.R. Co. v. Metrop. St. 325. Gas Light Co., 63 N. Y. 326 ; Cumber- ' Zack V. Pa. R.R. Co., 25 Pa. St. land Valley R.R. Co. v. McLanahan, 59 394; Lackland v. Northern Mo. R.R. Pa. St. 23 ; State v. Mansfield, 23 N. J. Co., 31 Mo. 180; State v. Jersey City, 510; Chicago, etc., R.R. Co. v. Wilson, 25 N. J. 309 ; Van Wickle v. R.R. Co., 17 111. 123 ; Hannibal, etc., R.R. Co. v. 14 Id. 162; Gilmer v. Lime Point, Muder, 49 Mo. 165. See Kierv. Boyd, 19 Cal. 47 ; Locks v. Nashua & Low- 60 Pa. St. 33. ell R.R. Co., 104 Mass. i. § 174 AND TRANSFER PROPERTY. 671 not invalidate the proceedings, that other land equally ad- vantageous can be obtained at private sale.^ A railroad company may divert a stream of water from the line of its road;* or appropriate springs contiguous thereto, when needful water cannot be otherwise secured ;^ and, under a general power to take land for its road, it may cross public highways.* Although private property cannot be lawfully taken for public use without due notice to the owner of the prop- erty, yet if he be not known, and cannot be ascertained, a general public notice to all persons interested will be suffi- cient.^ Just compensation for the private property taken is in- dispensable ; ^ and this should be ascertained and paid be- fore the land is permanentl)'' occupied ; '' unless the owner ' N. Y. & Harlem R.R. Co. v. Kip, ^ Baltimore, etc., R.R. Co. v. Magru- der, 34 Md. 79. " Strohecker v. Ala., etc., R.R. Co., 42 Ga. 509. * State V. Montclair R.R. Co., 35 N. J. 328. ' Hildreth v. City of Lowell, 1 1 Gray, 345; Lohman v. St. Paul, etc., R.R. Co., 18 Minn. 174. See Anderson v. Tubeville, 6 Cold. Tenn. 1 50 ; Chicago, etc., R.R. Co. V. Smith, 78 111. 96; Grand Rapids, etc., R.R. Co. v. Alley, 34 Mich. 16, 18. Mortgagees of the land taken are entitled to notice. Sev- erin v. Cole, 38 Iowa, 463 ; Martin v. London, etc., Co., L. R. i, Eq. 145 ; but not judgment creditors of owners. W^atson V. N. Y., etc., R.R. Co., 47 N. Y. 157; nor a mere trustee of an equitable interest in the land. Mcln- tyre v. Easton, etc., R.R. Co., 26 N. J. Eq. 425. As to sufficiency of notice, see In re Corporation of Huddersfield, L. R. 10, Ch. App. 92 ; Burns v. Mul- tonah R.R. Co., 15 Fed. Rep. 177; 8 Sawyer, 543, * Const, of U. S., art. i, sec. 18. See Vanhorne v. Dorrance, 2 Dallas, 304 ; Mercer v. McWilliams, Wright R. 132; Cushman v. Smith, 34 Me. 247 ; Polly V. Saratoga, etc., R.R. Co., 9 Barb. 449 ; Passmore v. Phila., etc., R.R. Co., 9 Phila. 579 ; Matter of Deansville Cemetery Assoc, 66 N. Y. 569 ; Penn- sylv. R.R. Co. V. Bait., etc., R.R. Co., 60 Md. 263 ; New Orleans Water Works Co. V. St. Tammany Works, 4 Woods, 134; U. S. V. Oregon R.R., etc., Co., 16 Fed. Rep. 524; Hollings- worth V. Tensas, 17 Id. 109; 4 Woods, 280; Atlantic, etc., Tel. Co. v. Chi- cago, etc., R.R. Co., 6 Biss. 158; Railroad Co. v. Renwick, 102 U. S. 180. It is not a taking requiring com- pensation to destroy property to pre- vent the spread of a fire. Bowditch v. Boston, loi U. S. 16, affi'g4Cliff. 323; nor to prevent a railroad company from using steam power in the streets of a city. Railroad Co. v. Richmond, 96 U.'S. 521. ' Ash V. Cummings, 50 N. H. 591 ; Blodgett V. Ufica, etc., R.R. Co., 64 Barb. 580; Loughbriidge v. Halris, 43 672 POWER TO ACQUIRE, HOLD, § 174 consent that it may be done afterward.^ The mode pointed out by the statute for ascertaining and paying the com- pensation must be followed, or the proceedings will be Ga. 500; Graham V. Connersville, etc., R.R. Co., 36 Ind. 463; Graham v. Columbus, etc., R.R. Co., 27 Id. 260; Brady v. Bronson, 45 Cal. 640 ; Mis- souri, etc., R.R. Co. V. Ward, 10 Kan- sas, 352 ; Atchison, etc., R.R. Co. v. Weaver, lb. 344 ; Comins v. Bradbury, 10 Me. 447 ; Storer v. Hobbs, 52 Id. 144 ; St. Joseph, etc., R.R. Co. v. Cal- lender, 13 Kansas, 496 ; Const, of Kan- sas, art. 12, sec. 4. In Pennsylvania, al- though the compensation need not have been ascertained and paid when private property is taken for public use, yet an adequate remedy must have been pro- vided by which the owner can obtain compensation within a reasonable time. Com. v. Pittsburg, etc., R.R. Co., 58 Pa. St. 26 ; Dimmick v. Brodhead, 75 Pa. St. 464. See Matter of N. Y., etc., R.R. Co., 60 N. Y. 116 ; Chesapeake, etc., R.R. Co. V. Patton, 6 W. Va. 147; Mettler v. Easton, etc., R.R. Co., 25 N. J. Eq. 214 ; White v. Nashville, etc., R.R. Co., 7 Heisk. Tenn. 518. In Wisconsin, a railroad company which enters upon and appropriates land to its own use without making compensa- tion therefor, or having its yalue ascer- tained as provided by law, and ten- dering the amount, is liable in trespass for the actual damages, whether the owner of the land has taken measures to have the value assessed or not. Loop v. Chamberlain, 20 Wis. 135 ; Bohlman v. Green Bay, etc., R.R. Co., 30 Id. 105. In Indiana, in a similar case, the owner may maintain an ac- tion against the company to recover possession of the land. Graham v. Columbus, etc., R.R. Co., supra. See Loweree v. Newark, 38 N. J. 151 ; Matter of Long Island R.R. Co., 6 Thomp. & C. 298 ; Eidemiller v. Wyan- dotte City, 2 Dillon, 376; Avery v. Fox, I Abb. U. S. 246 ; Crocker v. New York, 1 5 Fed. Rep. 405 ; Blanch- ard V. Kansas, 16 Id. 444 ; Pryzbylow- icz v. Missouri River Co., 17 Id. 492 ; 3 McCrary, 586; Atkinson v. Phila., etc., R.R. Co., 14 Hazard's Pa. Reg. 10. The amount of compensation is to be determined by inquiring what would the land be worth in the market for valuable uses if the sale were between private parties. Boom Co. v. Patter- son, 98 U. S. 403. See Kerr v. South Park Commrs., 117 U. S. 379; Indian- apolis, etc., R.R. Co. V. Pugh, 85 Ind. 279 ; Pittsburg, etc., R.R. Co. v. Rob- inson, 95 Pa. St. 426 ; Lycoming Gas, etc., Co. V. Moyer, 99 Id. 615 ; Hooper V. Savannah, etc., R.R. Co., 69 Ala. 529. ' Knapp v. McAuley, 39 Vt. 275. See Dayton, etc., R.R. Co. v. Lewton, 20 Ohio St. 401 ; Goodin v. Cincinnati, etc., Canal Co., 18 Id. 169. In Taylor V. Cedar Rapids, etc., R.R. Co., 25 Iowa, 371, the grantor had conveyed a right of way to a railroad company, upon condition that the depot of the company should be located within a certain distance of a particular place. The grantor did not surrender the land, and the railroad company failed to comply with the stipulations, but loca- ted the depot at a different place. It was held that a breach of the condition defeated the estate conveyed, and that, as the vendor had not given up posses- sion, he might enforce the forfeiture, and have the damages for the right of way assessed as though no deed had ever been made. No question was raised as to the validity of the deed. In U. S. V. Jones, 109 U. S. 513, Field, J., in delivering the opinion of the § 174 AND TRANSFER PROPERTY. ^72> \o\d} Just compensation would obviously include not only a fair price for the land taken, but an allowance for the actual depreciation of the owner's remaining property in point of utility and convenience in consequence of the court, said : " The position of the counsel of the United States in the court below, as we understand it, was substantially this : That the power vested in the Federal government to take private property for the public uses of the United States, is in its nature exclusive, and its exercise by any State is therefore prohibited as completely as though the prohibition were expressed in terms ; that the power cannot therefore be delegated to the State of Wisconsin ; that the ascertainment of the compensation is involved in the ex- ercise of the power as a necessary part of it, inasmuch as there can be no law- ful taking until compensation is made; and that the act of Congress transfer- ring to the State board and State court the function of ascertaining the value of the property taken, and the amount of compensation to be made, is there- fore invalid. There is, in this position, an assumption that the ascertainment of the amount of compensation to be rnade is an essential element of the power of appropriation ; but such is not the case. . . . The provision found in the fifth amendment to the Federal Constitution, and in the constitutions of the several States, for just compen- sation for the property taken, is merely a limitation upon the use of the power. It is no part of the power itself, but a condition upon which the power may be exercised. It is undoubtedly true that the power of appropriating private property to public uses vested in the general government cannot be trans- ferred to a State any more than its other sovereign attributes ; and that when the use to which the property taken is applied is public, the propriety VOL. I. — i3 or expediency of the appropriation can- not be called in question by any other authority. But there is no reason why the compensation to be made may not be ascertained by any appropriate tri- bunal capable of estimating the value of the property. There is nothing in the nature of the matter to be deter- mined which calls for the establishment of any special tribunal by the appropri- ating power. The proceeding for the ascertainment of the value of the prop- erty, and consequent compensation to be made, is merely an inquisition to establish a particular fact as a prelimi- nary to the actual taking ; and it may be prosecuted before commissioners or special boards, or the courts, with or without the intervention of a jury, as the legislative power may designate. All that is required is that it shall be conducted in some fair and just man- ner, with opportunity to the owners of the property to present evidence as to its value, and to be heard thereon. Whether the tribunal shall be created directly by an act of Congress, or one already established by the States shall be adopted for the occasion, is a mere matter of legislative discretion.'' See Austin V. Rutland R.R. Co., 17 Fed. Rep. 466. ' Stanford v. Worn, 27 Cal. 171 ; Brown v. Powell, 25 Pa. St. 229; Cun- ningham V. Pacific R.R. Co., 5i Mo. 33. Under sec. 5, art. 13, of the con- stitution of Ohio, providing that " no right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money or first secured by a deposit of money to the owner irrespective of any benefit from any improvement pro- 674 POWER TO ACQUIRE, HOLD, § 174 condemnation.^ It has accordingly been held that in as- sessing damages for railroad purposes the jury may take into consideration injuries to adjoining lands of the same owner, such as cutting fields into inconvenient shapes, in- terruption of access to water, necessity of additional fenc- ing, etc.^ The owner of real estate is entitled to the natu- posed by such corporation, which com- pensation shall be ascertained by a jury of twelve men in a court of rec- ord," something more is required than a verdict of the jury before the corpo- ration can deposit the money and de- mand possession. The jury merely fixes by its verdict the compensation which is to be made in the event the land is taken. The constitution con- templates a judicial proceeding in which the effect of the judgment is to divest the owner of the title and possession of his property and to in- vest both to the extent of the con- demnation in the corporation. Wag- ner V. R.R. Co., 38 Ohio St. 32. ' See Rondout, etc., R.R. Co. v. Deyo, 5 Lansing, 298 ; Matter of Un- ion Village, etc., R.R. Co., 53 Barb. 457 ; Matter of Utica, etc., R.R. Co., 56 Id. 456; Matter of Poughkeepsie, etc., R.R. Co., 63 Id. 151 ; Albany, etc., R.R. Co. V. Dayton, 10 Abb. Pr. N. S. 182 ; Black River, etc., R.R. Co. V. Barnard, 9 Hun, 104 ; Matter of Prospect Park, etc., R.R. Co., 24 Id. 199; Walker v. Old Colony R.R. Co., 103 Mass. 10; Tucker v. Mass., etc., R.R. Co., 118 Id. 546; Wilmington, etc., R.R. Co. V. Stauffer, 60 Pa. St. 374 ; East Brandywine, etc., R.R. Co. V. Rauck, 78 Id. 454; Chenango R.R. Co. V. Braham, 79 Id. 447 ; Somerville, etc.. R.R. Co. V. Doughty, 2 Zab. 495 ; Page V. Chicago, etc., R.R. Co., 70 111. 324 ; Peoria, etc., R.R. Co. v. Sawyer, 71 Id. 361 ; Brooks v. Davenport, etc., R.R. Co., 37 Iowa, 99 ; Gear v. R.R. Co., 43 Id. 83 ; Powers v. Hazleton, etc., R.R. Co., 33 Ohio St. 429; Louis- ville, etc., R.R. Co. V. Thompson, 18 B. Mon. 735 ; Minnesota Valley R.R. Co. V. Doran, 15 Minn. 230; Sher- wood V. St. Paul, etc., R.R. Co., 21 Id. 127 ; San Francisco, etc., R.R. Co. v. Caldwell, 31 Cal. 367; Carson v. Cen- tral R.R. Co., 35 Id. 325 ; North Pa- cific R.R. Co. V. Reynolds, 50 Id. 90; Bangor, etc., R.R. Co. v. McComb, 60 Me. 290 ; Eaton v. Boston, etc., R.R. Co., 51 N. H. 504; Adden v. White Mts., etc., R.R. Co., 55 Id. 413; Mis- sissippi River Bridge Co. v. Ring, 58 Mo. 491 ; Baltimore, etc., R.R. Co. v. Lansing, 52 Ind. 229 ; Welch v. Mil- waukee, etc. , R.R. Co., 27 Wis. 108 ; Bigelow v. West Wisconsin R.R. Co., lb. 478 ; Lyon v. Green Bay, etc., R.R. Co., 42 Id. 538 ; Virginia, etc., R.R. Co. V. Elliott, 5 Nevada, 358 ; Virginia, etc., R.R. Co. V. Hewry, 8 Id. 165. ^ White Water Valley R.R. Co. v. McClure, 29 Ind. 536. Where the charter of a railroad company provided that the company might enter upon and use all such land as should be neces- sary, paying all damages that should thereby arise to any person or persons, and an owner of property on a street in a city crossed by the railroad brought an action against the company for damages resulting from an excavation for the bed of the railroad in the land adjoining to that of the plaintiff, it was held that he was entitled to recover. Bradley v. N. Y. & N. H. R.R. Co., 21 Conn. 294. Whether a State legisla- ture under the provision of the consti- tution prohibiting the taking of private § 174 AND TRANSFER PROPERTY. 675 ral flow of a stream of water over his land, and an act authorizing a corporation to take such water for manufac- turing purposes without compensation would be unconsti- tutional.^ A railroad company may construct its line through a public street without providing compensation to the owners of lots abutting thereon who have no title to the soil of the street ; * but it is otherwise where the fee of the street remains in the owners of the abutting lots; ^ and the construction of a second railroad track through the same street would constitute a new and distinct servitude, entitling such owners to additional compensation.* But a party though an abutting owner simply, the fee of the property for public use without just compensation could, by virtue of the power of eminent domain, authorize a railroad company to construct its road on the land of an individual without providing compensation for damages of a consequential or incidental char- acter, but only for such as were direct and immediate and occasioned by the mere taking of the land — quere. " That the legislature possesses such an unrestricted power we perceive no reason to doubt." lb., per Storrs, J. Congress, in granting to a corporation power to build a bridge across a navi- gable river, reserved the right to with- draw its assent or to direct necessary alterations in the bridge if it should at any time substantially and materially obstruct the free navigation of the river. The bridge being nearly com- pleted, in accordance with all of the conditions imposed, an act of Congress was passed making it unlawful for the company or any other person to pro- ceed with the erection of the bridge without important changes in its structure, including a wider span and a higher elevation. It was held that the owners of the bridge were not en- titled to compensation for the altera- tions thus made. Bridge Co. v. U. S., 105 U. S. (15 Otto) 470. Miller, Field, and Bradley, JJ., dissenting. ' Harding v. Stamford Water Power Co., 41 Conn. 87. See Stodghill v. C. B. & Q. R. Co., 43 Iowa, 26 ; Lake Superior, etc., R.R. Co. v. Greve, 17 Minn. 322. A railroad company'can- not lawfully enter and dig ditches on land adjacent to its right of way, though such ditches^ are necessary for the protection of the railroad. State v. Armell, 8 Kansas, 288. Private prop- erty may be taken within the constitu- tional prohibition by depriving the owner of its beneficial use and enjoy- ment, although he continues to hold the title ; as by the backing of the wa- ter of a river by a dam authorized by law so as to overflow the land of an in- dividual, thus destroying its usefulness to him. Pumpelly v. Green Bay Co., 13 Wall. 166. ^ Carson v. Central R.R. Co., 33 Cal. 325 ; People v. Kerr, 27 N. Y. 188. ^ Stetson v. Chicago, etc., R.R. Co., 75 111. 74 ; Cox V. Louisville, etc., R.R. Co., 48 Ind. 178; Gray V. First Divi- sion of St. Paul, etc., R.R. Co., 13 Minn. 315. '' Southern Pacific R,R, Co. v. Reed, 41 Cal. 256. 676 POWER TO ACQUIRE, HOLD, § 1 74 Street being in the city, is entitled to the use of the street, and neither the legislature nor the city can devote it to purposes inconsistent with street uses without compensa- tion. An unreasonable use of the street by a street rail- road company by converting the street into a place for the storage or deposit of cars to the injury of adjoining own- ers will give a right of action to the property-owners spe- cially injured thereby.' In an action to restrain a railroad company from locating its road in the street of a city op- posite the plaintiff's premises, the complaint alleged that the defendant was about to construct a railroad above the surface of the street in such a manner as would deprive the plaintiff of the benefit of light and air. It was proved that the road was to be built upon a series of columns about fif- teen inches square, fourteen feet and six inches high, placed five inches inside the edge of the sidewalk, and carrying girders from thirty-three to thirty-nine inches deep for the support of cross-ties for three sets of rails for engines to be propelled by steam. The cars were to be eleven feet high above the track, would project two feet over the sidewalk on either side, would pass within nine feet of the plaintiff's buildings, and run once in three minutes at the rate of eighteen miles an hour. The complaint having been dis- missed, the Court of Appeals, in reversing the judgment of dismissal, held that even if the fee of the street was in the city, the plaintiff, as abutting owner, had such a right to air, light, and access, as entitled him to have the street kept open for those uses, until, by legal process, and upon just compensation, the right had been taken from him.* ' Mahady v. Bushwick R.R. Co., 91 that an easement was an interest in N. Y. 148. land for tlie invasion of vvliich compen- ' Story V. N. Y. Elevated R.R. Co., sation might be claimed under the 90 N. Y. 122, Miller, Earl, and Land Clauses Consolidation Act, 8 Finch, JJ., dissenting. See Arnold Vict. Ch. 18 ; as where damages V. Hudson River R.R. Co., 55 N. Y. are sustained in consequence of dimi- 661; Doyle V. Lord, 64 Id. 432; 21 nution of light to the plaintiff's premises Am. R. 629. In England, it was held by the erection near them of the de- § 174 AND TRANSFER PROPERTY. 677 The construction of a railroad track on a turnpike, leaving room for ordinary vehicles, is not a new, but only a modi- fication of the old use, and the land-owners along the line of the road would not be entitled to new compensation, notwithstanding the railroad company should change the grade of the turnpike, if changes of grade were provided for by the charter of the turnpike company.^ But, if the legislature should authorize a railroad company to appro- priate a highway to its own use by destroying the ordinary and legal right of the public to use it as a highway, com- pensation would have to be provided.^ Where land previ- fendant's works. Bovill, Ch. J., said : " The improvement is common to all the neighborhood, but the injury to the plaintiff's premises by the diminution of light is peculiar to the plaintiff." Eagle V. Charing Cross R.R. Co., L. R. 2, C. P. 638. ' Peddicord v. Baltimore, etc., R.R. Co., 34 Md. 463. See Baltimore, etc., Turnp. Co. v. Union R.R. Co., 35 Md. 224. Where an act incorporating a turnpike company authorized the com- pany to construct the turnpike along a public highway, and provided that compensation should be made for all damages which the owners of the land over which the road passed should sus- tain by reason of the construction of the road, and also for all damages done to adjoining lands, and all materials taken therefrom ; but provided no com- pensation for the value of the soil oc- cupied by the road, it was held not a taking of private property for public use without just compensation ; the title of the soil not having been changed, but remaining as it was be- fore, in the former owner. Wright v. Carter, 3 Dutcher, N. J. 76. ' Morris & Essex R.R. Co. v. New- ark, 2 Stockt. Ch. 352. Highways " have not been dedicated to any par- ticular mode of travel or use. They are intended, and are devoted to public convenience, and to the profit and pleasure of the public as thoroughfares. As means of facilitating intercourse in matters of business or pleasure between one city or town and another, or be- tween one man's dwelling-house and farm and another's, it is perfectly con- sistent with the purposes for which they were originally designated and intended, that the public authorities who have the control of them as public highways should adapt them in their use to the conveniences and improve- ments of the age. For the legislature to authorize the use of a public high- way for the purpose of a railroad in such a manner as not entirely to de- stroy its use in the ordinary mode, is not inconsistent with the purposes for which the public highway was origi- nally intended. It may render the or- dinary mode of travel less convenient, or perhaps dangerous ; and yet the bene- fit to the public by the use of it as a high- way, upon an iron superstructure, may very greatly outweigh and overbalance such damage and inconvenience. The legislature must be the judges as to the benefit to the public, and to their au- thority individuals and the public must submit." lb., per Williamson, Chan- cellor. See Williams v. N. Y. Cent. 678 POWER TO ACQUIRE, HOLD, § 1 74 ously condemned and used as a canal, is transferred by an act of the legislature to a railroad company for the pur- poses of its road, owners are entitled to compensation for the additional burdens and inconveniences not common to the public thereby imposed.^ A corporation, the franchises or property of which is appropriated by another corpora- tion, has the same rights, and is afforded the same protec- tion as in the case of the taking of the private property of individuals ; the fact that property has been taken for one public use not constituting it public property for all other purposes.* Where indebtedness is created in behalf of the State for private property taken and appropriated to public use, the State is liable to pay interest on such indebtedness, payment of which the court will enforce whenever, through the medium of public officers, it acquires jurisdiction of the case.^ When a corporation is empowered by its charter to make a public improvement which will necessarily require the use or taking of land belonging to the State, and no nega- tive words are contained in the charter, and no provision made for compensation for the land so required to be taken, the right to use or take the same for such purpose, is conferred upon the corporation without making com- pensation therefor. Where the charter authorized the cor- poration to build and maintain levees and embankments along the shores of a river, in order to improve the navi- gation, and nothing was said in the charter as to compen- R.R. Co., 18 Barb., where views sitni- field, etc., R.R. Co., 67 111. 142 ; Cin- ]ar to the foregoing were expressed by cinnati, etc., R.R. Co. v. Danville, etc., the court. R.R. Co., 75 Id. 113; Eastern R.R. ' Hatch V. Cincinnati, etc., R.R. Co., Co. v. Boston, etc., R.R. Co., 1 1 1 Mass. 18 Ohio St. 92; Pennsylvania, etc., 125. See Mass., etc., R.R. Co. v. Bos- R.R. Co. v. Bunnell, 81 Pa. St. 414. ton, etc., R.R. Co., 121 Mass. 124. ' Grand Rapids, etc., R.R. Co. v. ' People v. Canal Commrs., 5 Denio, Grand Rapids, etc., R.R. Co., 35 Mich. 401. 265 ; Chicago, etc., R.R. Co. v. Spring- § 174 AND TRANSFER PROPERTY. 679 sation to the State, it was held fairly inferable that the legislature intended to grant the right to use such of the State lands as should be required for the above-mentioned purpose, without compensation.^ In New York, the laying of a highway across a railroad track may be authorized by an act of the legislature without compensation, even where the company has title to the land in fee by purchase, the right of such corporations to hold real estate being limited by statute to the uses of the incorporation, and all land being deemed to have been acquired by them solely for public use.* Trees standing on land taken by a railroad company by compulsory proceed- ings, and materials removed in grading the track, may be used in the construction of its road.^ As a rule, when land is acquired compulsorily by a railroad company for the ' Black River Improvement Co. v. LaCrosse Booming & Transportation Co., 54 Wis. 659, referring to Ind. C. R.R. Co. V. State, 3 Ind. 42 1 ; Pa. R.R. Co. V. R.R. Co., 8 C. E. Green, N. J. 157; Davis V. E. T. & Ga. R.R. Co., i Sneed, Tenn. 94 ; U. S. v. R.R. Bridge Co., 6 McLean, 517. Although an act of the legislature, passed after a con- tract is made, which v^^ithdraws prop- erty then liable to be seized and sold in enforcement of that contract from the power of the courts to seize and sell it, impairs the obligation of a con- tract, yet this is not the case where a statute, dealing with property not sub- ject to such sale, continues the exemp- tion of that which represents in the hands of the same owner the property so exempt ; as where a statute author- izes a city to convert its ownership of public property into the shares of a joint stock corporation, and declares that these shares shall be exempt from judicial sale for the debts of the city. New Orleans v. Morris, 105 U. S. (15 Otto) 600. ^ Boston, etc., R.R. Co. v. Green- bush, 5 Lansing, 461. See Yates v. Van De Bogert, 56 N. Y. 526. ^Taylor v. N. Y., etc., R.R. Co., 38 N. J. 28 ; Aldrich v. Drury, 8 R. I. 554 ; Chapin v. Sullivan R.R. Co., 39 N. H. 564 ; Blake v. Rich, 34 N. H. 282 ; Henry v. Dubuque & Pacific R.R. Co., 2 Iowa, 288 ; Western Union Tel. Co. v. Rich, 19 Kansas, 517; 27 Am. R. 159. A railroad company which has the fee of land taken for its track is entitled to unobstructed possession above its road, although the road be laid through a tunnel or archway. Junction R.R. Co. v. Boyd, 8 Phila. 224. But it has been held in Pennsylvania that the owner of land taken by a railroad company under the general law, may insert pipes for the conveyance of oil under the track, if he can do so without interfering with or impairing the easement of the com- pany. Hasson v. Oil Creek, etc., R.R. Co., lb. 556. 68o POWER TO ACQUIRE, HOLD, § 1 74 purposes of its road, the fee remains in the original owners subject to the use of the company, and when that use ceases, the property returns or reverts to the owner of the soil' It has been said that "adherence to this rule is the only mode by which a corporation is to be held from di- verting its acquisitions, obtained in the name of public ne- cessity, to private uses, and doing indirectly what cannot be done directly."^ On an assessment of damages for a right of way, appropriated by a railroad company, the court instructed the jury that the fee simple remained in the owner of the land taken, subject to use by the company for the purposes of its road. ' It was held unnecessary for the court, in the absence of any testimony, to particularize all of the possible uses and advantages which the plaintiff might retain in the land.^ The grant of the right of way through the public lands to the Northern Pacific Railroad Company is present and absolute, subject to no conditions except those necessarily implied, such as that the road should be constructed and used for the purpose designed. There is nothing in the policy of the government with respect to the public land which would call for any qualification of the terms, inas- much as the grant of the right of way contains no reserva- tions or exceptions such as are found in the sections of the charter granting land in aid of the construction of the road.* If subsequent to the acquirement by the company ' Heard v. Brooklyn, 60 N. Y. 242; worth v. Payne, 74 N. Y. 196; Pinker- Hastings v. B. & M. R.R. Co., 38 Iowa, ton V. Boston, etc., R.R. Co., 109 316 ; Kellogg V. Malin, 50 Mo. 496 ; Mass. 527. Hasson v. Oil Creek, etc., R.R. Co., ^Jessup v. Loucks, 55 Pa. St. 350, supra; West Pa. R.R. Co. v. Johnson, per Thompson, J. 59Pa. St. 290; Dean V. Sullivan R.R. ^Leavenworth, etc., R.R. Co. v. Co., 22 N. H. 316; Kansas Centr. R. Paul, 28 Kansas, 816. R. Co. v. Allen, 22 Kansas, 285. " Railroad Co. v. Baldwin, 103 U. S. Contra, Troy, etc., R.R. Co. v. Potter, 426 ; Wilkinson v. Northern Pacific R. 42 Vt. 265 ; Robbins v. St. Paul, etc., R. Co., 5 Montana, 538. R.R. Co., 22 Minn. 286. See Wood- § 1/4 AND TRANSFER PROPERTY. 68 I of the right of way, the land is owned and occupied as placer mining grounds, the latter right is inferior to the former, and must yield to it.^ Ibid. See Western Pacific R.R. be applied to the payment of the amount Co. V. Tevis, 41 Cal. 489. The amount found due to the owner of land on which there is a mortgage, in the ex- ercise by a railroad company of its right of eminent domain, should first due on the mortgage, and the balance be paid to the holder of the legal title. Dodge v. South Western R.R. Co., 20 Nebraska, 276. END OF VOL. I.