*

ters, without deed, as to retain a servant, cook, or butler. (c) *289 The case in 12 Hen. VII. 25, (a) was, that a bailiff, as a servant to a corporation, could justify without being authorized by deed; but that no interest could depart from a corporation, as a lease for years, a license to take fees, and a power of

tuities were never directed against gifts for charitable uses, or for any eleemosynary purposes. It is the policy of the law to encourage their extent and duration. Thelusson's will was not a charity, and charities are not inalienable by trustees. Attorney-General v. Hungerford, 2 Clark & Fin. 357, 374. Attorney-General v. Warren, 2 Swanst. 291, 302. Shelford on Mortmain and Charitable Uses. Dutch Church v. Mott, 7 Paige, 77. Griffin v. Graham, 1 Hawk (N. C.) 96. This decision of the vice-chancellor of New York, respecting charities, is spirited, luminous, and sound, and places the validity of public charities on solid foundations, and draws the just and intelligent distinction between public and private trusts and perpetuities.5

(c) Plowd. 91 b. 2 Saund. 305. 3 P. Wms. 423, arg., and 1 Kyd on Corporations,

260.

(a) Bro. tit. Corporations, 51.

In England, if there be no trustees, and the object is wholly undefined, the king administers the charity as parens patriæ; but with us the information of the attorney-general may be the appropriate remedy, or the executors or trustees may apply directly to the court for direction, as in the case of Wright v. The Trustees of the Methodist Episcopal Church, 1 Hoff. Ch. 202. And it seems to be understood that the rents of the land accruing between the death of the testator and the sale of the lands, go to the heir and not to the charity. Ibid. 266.

In North Carolina, on the other hand, it was held, that a bequest to a number of persons in their aggregate capacity, but not incorporated, and when the object of the bequest was wholly indefinite, was void. The English doctrine of charities, by which such bequests were to be executed cy pres, was deemed unsound, and not the equity law in that state. Holland v. Peck, 2 Ired. Eq. 255.

5 There have been, since this note was written, several variant decisions, in the courts of Now York, on the question whether the principles of the English law as to charitable uses have been abrogated or essentially modified by the Revised Statutes, particularly by the statutes of uses and trusts. The decision of the Court of Appeals seems to be in accordance with the views expressed in the author's note. Williams v. Williams, 4 Seld. 525. But the question cannot be deemed settled even in New York. See Owens v. Missionary Society, 14 N. Y. 380. Leonard v. Burr, 18 N. Y. 96. Beekman v. Bousor, 23 N. Y. 298. Downing v. Marshall, 23 N. Y. 366. In Rose v. The Rose Beneficent Association, argued and decided in the Court of Appeals in 1863, but not yet reported, the question was very fully discussed as an open one. The decision was put upon a ground which avoided the general question. It is, however, understood that a number of the judges, and perhaps a majority, were of opinion against the existence of any peculiar law applicable to charities in this state. The Supreme Court and the Superior Court of New York considered the Revised Statutes as applying to and governing charitable uses, as well as private trusts. Ayers v. Methodist Church, 3 Sandf. (N. Y.) 351. Yates v. Yates, 9 Barb. (N. Y.) 324. Andrew v. New York Bible and Prayer-Book Society, 4 Sandf. (N. Y.) 156.

The power of the courts to change the administration of a charity on the doctrine of cy pres, is considered in Harvard College v. Society for Promoting Theological Education, 3 Gray, 280.

attorney to make livery, without deed. So, in Manby v. Long, (b) it was held, that a bailiff to a corporation, for the purpose of distress, did not require an appointment in writing. In Rex v. Bigg, (c) the old rule was still further relaxed; and it seems to have been established, that though a corporation could not contract directly, except under their corporate seal, yet they might, by mere vote, or other corporate act, not under their corporate seal, appoint an agent, whose acts and contracts, within the limit of his authority, would be binding on the corporation. In a case as late as 1783, (d) it was held, that the agreement of a major part of a corporation, entered in the corporation books, though not under the corporate seal, would be decreed in equity. In Yarborough v. The Bank of England, (e) it was admitted that a corporation might be bound by the acts of their servants, though not authorized under their seal, if done within the scope of their employment. At last, after a full review of all the authorities, the old technical rule was condemned in this country as impolitic, and essentially discarded; for it was decided by the Supreme Court of the United States, in the case of The Bank of Columbia v. Patterson, (f) that whenever a corporation aggregate was acting within the range of the legitimate purpose of its institution, all parol contracts, made by its authorized agents, were express and binding promises of the corporation; and all duties imposed upon them by law, and all benefits conferred at their request, raised implied* promises, for the enforcement of *290 which an action lay. (a) The adjudged cases in England,

(b) 3 Lev. 107. Smith v. B. & S. Gas-Light Company, 3 Nev. & Man. 771. 1 Adol. & Ell. 526, S. C.

(c) 3 P. Wms. 419.

(d) Maxwell v. Dulwich College, cited in 1 Fonb. Tr. 296, note. But in Carter v. Dean and Chapter of Ely, 7 Sim. 211, the authority of that case as a precedent was very much questioned, and the vice-chancellor considered it as resting on its particular and singular circumstances, and that it did not in the least disturb the settled rule of law, that eleemosynary and ecclesiastical corporations were not bound by anything in the shape of an agreement regarding their lands, unless it was evidenced by a deed or writing under their corporate seal.

(e) 16 East, 6.

(f) 7 Cranch, 299. Many v. Beekman Iron Co. 9 Paige, 188, S. P.

(a) It was held by Lord Mansfield, in the case of The King v. The Bank of England,

1 See Gassett v. Andover, 21 Vermont, 343. Sheldon v. Fairfax, Ibid. 102. Hayes v.

and in Massachusetts, were considered as fully supporting this reasonable doctrine; and that the technical rule that a corporation

Doug. 523, that assumpsit would lie against a corporation for refusal to transfer stock;
and the same point was ruled by the Supreme Court of New York, in the case of Kort-
right v. Buffalo Commercial Bank, 20 Wendell, 91, and affirmed on error, 22 Ibid. 348.
It may now be considered as settled law, that an action of assumpsit will lie against a
corporation on an implied promise. See the numerous cases referred to in Angell & Ames
on Corporations, 368, 382-385, 3d edit. So a special action on the case will lie against
a corporation for neglect or breaches of duty. Trover and trespass will also lie against
a corporation in certain cases.2 Ibid. 330-333. So, all corporations, whether public or
private, may issue negotiable paper for a debt contracted in the course of their proper
business. Kelley v. Mayor, &c., of Brooklyn, 4 Hill (N. Y.) 263.8 In the case of
Regina v. A Railroad Company, Q. B., June, 1846, it was adjudged in the Q. B., after a
learned discussion, that an indictment would lie against a corporation aggregate for a
misfeasance. The proper punishment is the assessment of a fine. It seemed to be
assumed in that case as undeniable, that a corporation was indictable for a wrongful
omission of duty. In this country it is the well-settled and familiar practice, that quasi
corporations, created by law for purposes of public policy, are subject to indictment for
breach or neglect of duty. Mower v. Leicester, 9 Mass. 247. Riddle v. Locks &
Canals, 7 Mass. 169. See, also, Angell & Ames on Corporations, 3d edit. pp. 391–394.
It may properly be observed, while on the responsibility of corporations, that it is a
settled principle that corporations are subject to taxes and assessments as owners and
occupiers of land and other property as individuals, when their charters contain no stip-
ulation of exemption. Spencer C. J., in the matter of M'Queen v. Middletown, M. C.
16 Johns. 7. Clinton Wool & C. M. Co. v. Morse & Bennett, cited by C. J. Thompson,
in 15 Johns. 382. Ontario Bank v. Bunnell, 10 Wendell, 186. Bank of Watertown v.
Assessors, &c., 25 Wendell, 686. Providence Bank v. Billings, 4 Peters U. S. 514. Peo-
ple v. Supervisors of N. Y., 18 Wendell, 605. People v. Supervisors of Niagara, 4 Hill
(N. Y.) 20. See, also, supra, vol. i. pp. 424, 428; and see, also, Angell & Ames, 3d
edit. pp. 427, 428, 429, 431, and ch. 13, where the cases are digested, and the subject
discussed fully and ably.

Covington, 13 S. & M. 408. Ross v. City of Madison, 1 Smith (Ind.) 98. Butts v. Cuthbertson, 6 Geo. 166. Haigh v. N. Bierley Un. 1 El. B. & El. 873.

2 In Maund v. The Monmouthshire Canal Co. 4 Man. & Grang. 452, it was held that trespass might be maintained against a corporation.

A foreign corporation, conducting a railroad within the state of New Jersey, is liable for injuries equally with a domestic one. Austin v. N. Y. & E. R. R. Co. 1 Dutch. (N. J.) 381. In Connecticut, it is held, that an action for malicious prosecution lies against a corporation. Goodspeed v. Bank, 22 Conn. 530. Contra, in Missouri, Childs v. Bank, 17 Mis. 213. A corporation illegally disturbed in the exercise of its franchise by another corporation may maintain a bill enjoining the disturbance as a nuisance. B. & L. R. R. v. S. & L. R. R. et al. 2 Gray, 1; and see Newark Plank Road Co. v. Elmer, 1 Stoctk. 754.

When they have power to take a note, and hold and convey real and personal estate, they have necessarily the power to negotiate the note in their ordinary business. McIntire v. Preston, 5 Gilman, 48. For the liability of a corporation on an implied promise, see Beers v. The Phoenix Co. 14 Barb. (N. Y.) 350; Clark v. Cuckfield Union, 11 Eng. L. & Eq. 442; Lowe v. London & N. W. Co. 14 Eng. L. & Eq. 18.

Queen v. The G. N. R. Co. 9 Adol. & El. (N. S.) 315. New York Legal Observer, 1846. Commonwealth v. N. B. Br. Proprietors, 2 Gray, 339. State v. M. & E. R. R. Co. 3 Zabr. 360. State v. Vt. C. R. R. 1 Wms. (Vt.) 103. Boston, C. & M. R. R. v. State, 32 N. Hamp. 215.

could not make a promise except under its seal, would be productive of great mischiefs. As soon as it was established that the regularly appointed agent of the corporation could contract in their name without seal, it was impossible to support the other position. Afterwards, in Fleckner v. United States Bank, (b) it was decided, by the same court, that a bank, and other commercial corporations, might bind themselves by the acts of their authorized officers and agents, without the corporate seal. Whatever might be the original correctness of the ancient doctrine, that a corporation could only act through the instrumentality of its common seal, when that doctrine was applied to corporations existing by the common law, it had no application to corporations created by statute, whose charters contemplate the business of the corporation to be transacted exclusively by a board of directors. The rule has even been broken in upon in modern times, in respect to common-law corporations. The acts of the board of directors, evidenced by a written vote, are as completely binding upon the corporation, and as complete authority to their agents, as the most solemn acts done under the corporate seal. With respect to banks, from the very nature of their operations in discounting notes, receiving deposits, paying checks, and other ordinary contracts, it would be impracticable to affix the corporate seal as a confirmation of each individual act. Where corporations have no specific mode of acting prescribed, the common-law mode of acting may be properly inferred. But every corporation created by statute must act as the statute prescribes; and it is a settled doctrine that a corporation may be bound by contracts not under its corporate seal, and by contracts made in the ordinary discharge of the official duty of its agents and officers, * 291 Lastly, in the case of Osborn v. United States Bank, (a) it was declared, that though a corporation could only appear by attorney, the authority of that attorney need not be under seal; and the actual production of any warrant of attorney to appear in court is not necessary in the case of a corporation more than in the case of an individual. (b)

*

(b) 8 Wheaton, 338.

(a) 9 Wheaton, 738.

(b) Nor need the appointment of the agent in the common transactions of the corporation be evidenced by the records of the corporation. Commercial Bank of Buffalo v. Kortright, 22 Wendell, 348. The board of directors of a corporation, for all business

That corporations can now be bound by contracts made by their agents, though not under seal, and also on implied contracts to be deduced by inference from corporate acts, without either a vote, or deed, or writing, is a doctrine generally established in the courts of the several states, with great clearness and solidity of argument; (c) and the technical rule of the common law may

purposes, are the corporation, and they may authorize a committee to sell or mortgage real estate, and that power implies an authority to affix the corporate seal. Burrill v. Nahant Bank, 2 Metcalf, 163.1

(c) Eastman v. Coos Bank, 1 N. Hamp. 26. Maine Stage Company v. Longley, 14 Maine, 444. Warren v. Ocean Ins. Co. 16 Ibid. 439. Hayden v. Mid. Turnpike Company, 10 Mass. 397. The Proprietors of the Canal Bridge v. Gordon, 1 Pick. 297. Bulkley v. The Derby Fishing Company, 2 Conn. 252. Danforth v. Schoharie Turnpike Company, 12 Johns. 227. Dun v. Rector of St. Andrew's Church, 14 Ibid. 118. Mott v. Hicks, 1 Cowen, 513. The Baptist Church v. Mulford, 3 Halst. (N. J.) 182. The Chestnut Hill Turnpike v. Rutter, 4 Serg. & Rawle, 16. Duncan J., in Bank of Northern Liberties v. Cresson, 12 Ibid. 312. Legrand v. Hampden Sidney College, 5 Munf. 324. Colcock v. Garvey, 1 Nott. & M'Cord, 231. Bank of United States v. Dandridge, 12 Wheaton, 64. Bank of the Metropolis v. Guttschlick, 14 Peters U. S. 19. Union Bank of Maryland v. Ridgely, 1 Harr. & Gill, 324. Poultney v. Wells, 1 Aiken, 180. Comm. Bank Orleans v. Newport Manufacturing Company, 1 B. Monr. (Ky.) 14. Bates & Hines v. The Bank of Alabama, 2 Ala. N. S. 451. See, also, Angell & Ames on Corporations, 218, 219, 222, 2d edit. and the numerous authorities there referred to. The English law is more strict on this subject; for the general rule is still understood to be, that a corporation, though created by statute, cannot express its will, except by writing, under the corporate seal. The excepted cases are: 1. Where the acts done are of daily necessity, or too insignificant for the trouble of the seal; 2. Where the corporation has a head, as a mayor, who may give commands; 3. Where the acts to be done must be done immediately, and cannot wait for the formalities of a seal; 4. Where it is essential to a moneyed institution that they should have the power to issue notes and accept bills. East London Waterworks v. Bailey, 4 Bing. 283. 12 J. B. Moore, 532, S. C. Tindal C. J., in Fishmongers' Co. v. Robertson, 5 Man. & Gr. 131, 188. If the contract be executed, the general rule does not apply; and therefore assumpsit for use and occupation may be maintained by a corporation aggregate against a tenant who has occupied premises under them, and paid rent. The Mayor of Staf

1 Where a contract of insurance was agreed to by a company and its seal affixed, without a previous written order required by its fundamental agreement, but the company in subsequent discussions with the assured treated the contract as existing, it was held, that the want of the written order was not available as a defence to the company. Prince of Wales Insurance Co. v. Harding, 1 Ell. Bl. & Ell. 183. Any seal, put to an instrument by the authorized agent of the corporation, will make that instrument the deed of the corporation. Mill Dam Foundry v. Hovey, 21 Pick. 417. Porter v. A. & K. R. R. Co. 37 Maine, 349. S. Baptist So. in Albany v. Clapp, 18 Barb. (N. Y.) 35. Affirmed in Court of Appeals, 1858. See, however, Turnpike Co. v. McCullough, 25 Penn. 303; Stebbins v. Merritt, 10 Cush. 27; Phillips v. Coffee, 17 Ill. 154; Osborne v. Tunis, 1 Dutch. (N. J.) 633. And it was held, in States v. Allis, 18 Ark. 269, that to bind a corporation by speciality, the corporate seal must be affixed to the instrument.