now be considered as being, in a very great degree, done away in the jurisprudence of the United States. But it is equally well

ford v. Till, 4 Bing. 75. 12 J. B. Moore, 260. In Smith v. B. & S. Gas Light Company, 3 Nev. & Mann. 771, it was held that a corporation might authorize an agent to distrain, by parol; but that in cases of extraordinary acts to be done, or where an estate is to be vested or divested, there must be a deed. In Beverly v. Lincoln Gas Light & C. Co. 6 Adol. & Ell. 829, it was adjudged that a corporation aggregate might be sued in assumpsit, on a contract by parol, and, whether expressed or implied, for goods sold and delivered. This was a relaxation of the ancient rule of the common law to the same extent as had already been made by the courts of the United States, to which the learned judge, (Patterson,) who delivered the opinion of the K. B. in that case, alluded. The English court took care, however, "to disclaim entirely the right or the wish to innovate on the law upon any ground of inconvenience, however strongly made out," but admitted that if the old rule had been treated by previous decisions with some degree of strictness, and if "the principle, in fair reasoning, leads to a relaxation of the rule for which no prior decisions can be found expressly in point, the mere circumstances of novelty ought not to deter us." The liberal and sound reasoning contained in this decision, with the qualified reserve accompanying it, are both to be commended. It was further declared, in Church v. Imperial G. L. Co. 6 Adol. & Ell. 846, that it made no difference as to the right of a corporation to sue on a contract entered into by them without seal, whether the contract be executed or executory. In the case of The Mayor of Ludlow v. Charlton, 6 Mees. & W. 820, in the Exchequer, in 184, Baron Rolfe gave an elaborate discussion and judgment on the question how far a corporation could be bound by a contract without their corporate seal. It was held, that the late English cases did not go so far as to explode the old rule, or to hold a corporation bound in the same manner as individuals by executed contracts. The general rule of the necessity of a seal to render a corporate contract valid still existed. The exception was limited to small matters, or those not admitting of delay, or where the rule would greatly obstruct the every-day ordinary convenience of the body corporate without an adequate object, or where the conveyance almost amounted to necessity. The power of accepting bills of exchange and issuing promissory notes came within the principle of the exception. The decisions in Beverley v. The Lincoln G. L. & C. Co. and in Church v. Imperial Gas Light Co. were founded on the principle governing the exceptions. The decision in this exchequer case was followed by the Supreme Court of New Brunswick, in Seelye v. Lancaster Mill Company, Kerr, 377; and these decisions tend to narrow the doctrine maintained in our American courts. Homersham v. Wolverhampton Co. 4 Eng. L. & Eq. 426. Governor, &c. of Copper Miners v. Fox 3 Eng. L. & Eq. 420. But as dealing in contracts with corporate bodies has become too common, and the agency of corporations of some description or other is present in the infinite business concerns of the country, it becomes very difficult to ascertain, and dangerous to mistake, any certain test by which to determine whether the transaction in the given case comes within the principle of the exception to the general rule.2

The rule of the common law has been recently still further relaxed by the Court of Q. B., so that any contract, for goods or work necessary to the purposes of the corporation, the benefit of which has been enjoyed, is binding even if not under seal. Clark v. Guardians of Cuckfield Union, 11 E. L. & Eq. 442. See, also, Henderson v. R. M. S. Navigation Company, 32 E. L. & Eq. 167, where the statement of the exceptions to the common-law rule, contained in the opinion of Baron Rolfe, quoted supra, was considered too narrow, and only 30

VOL. II.

settled, that though parol evidence be admissible to prove the agency and contracts of the agent of a corporation, (for the ap pointment of the agent need not be by seal in the case of ordinary contracts,) corporations, like natural persons, are bound only by the acts and contracts of their agents, done and made within the scope of their authority. (d) 3

(d) Essex Turnpike Corporation v. Collins, 8 Mass. 299. Clark v. Corporation of Washington, 12 Wheaton, 40. Bank of U. S. v. Dandridge, Ibid. 64. Leggett v. New Jersey Manufacturing and Banking Company, Saxton's (N. J.) Ch. 541, April term, 1832. Bank of the Metropolis v. Guttschlick, 14 Peters U. S. 19. As corporations act by agents, they are responsible in damages for injuries inflicted through their means. Goodloe v. City of Cincinnati, 4 Ohio, 500. A special action on the case will lie for neglect of corporate duty by which the plaintiff suffers. Riddle v. Proprietors, &c. 7 Mass. 169. The powers and responsibilities resulting from corporate agents are very fully considered, and the substance of all the decisions is given in Angell & Ames on Corporations, ch. 9.

applicable to municipal corporations; per Erle J., p. 172. See, also, Reuter v. E. Tel. Co. 37 E. L. & Eq. 189. But in Moran v. Miami Comm'rs, 2 Black U. S. 722, it was settled, that the bonds of a municipal corporation with coupons attached, issued by lawful authority, were commercial securities and negotiable according to the law merchant. Brainard v. N. Y. & Harlem R. hold similar doctrines as to the bond of a railroad corporation. 25 N. Y. 496.

A corporation cannot be made liable for the acts of its agents, not within its corporate powers, even though such acts be ratified by the directors. McCullough v. Moss, 5 Denio, \ 567. Boom v. The City of Utica, 2 Barb. S. C. 104. See, also, Hodges v. The City of Buffalo, 2 Denio, 110; Noyes v. R. & B. R. R. Co. 1 Wms. (Vt.) 110. Downing v. Mt. Washington R. 40 N. Hamp. 230.

son,

A corporation may ratify the unauthorized act of its agent, either expressly, by implication, or by such acquiescence as suffices to support the inference of approval. Hoyt v. Thom19 N. Y. 207; and parties may deal with its agents on the presumption that they possess the powers usually assigned to the office they hold. Fay v. Noble, 12 Cush. 1. Northern Cent. R. v. Bastian, 15 Md. 494. Bridenbecker v. Lowell, 32 Barb. 9. Warner v. Chappell, 32 Barb. (N. Y.) 309. Akin v. Blanchard, 32 Barb. (N. Y.) 527. City Bank v. Perkins, 4 Bosw. 421. Scott v. Johnson, 5 Bosw. 213.

Where a municipal corporation constructed, through their agents, a bridge so negligently that it fell, and the plaintiff was injured, it was held that the corporation was not liable, the Act under the authority of which the construction of the bridge was ordered, being unconstitutional. The Mayor, &c., of Albany v. Cunliff, 2 Comst. 165. See, also, Hanvey v.. Rochester, 35 Barb. (N. Y.) 177.

But generally a corporation is liable for the negligence and unskilfulness of its agents, especially if there has been any want of due care in the selection of such agents. Grote v. The Chester, &c., R. Co. 2 Welsb. H. & Gor. 251. Mayor of N. Y. v. Bailey, 2 Denio, 433. See ante, p. [283,] and notes; see, also, The Rochester, &c., Co. v. The City of Rochester, 3 Comst. 463; Lloyd v. The Mayor, &c., 1 Seld. 369; Meares v. Com. of Wilmington, 9 Ired. 73; Mayor of Memphis v. Lasser, 9 Humph. 757; Akron v. Macomb, 18 Ohio, 229. See ante, 304, [275,] n. Hickok v. Plattsburgh, 15 Barb. 428. S. Č. 16 N. Y. 161. West v. Brockport, 16 N. Y. 161. Conrad v. Ithaca, 16 N. Y. 158. Hunt v. Utica, 18 N. Y. 442. Storrs v. Utica, 17 N. Y. 104. Detroit v. Corey, 9 Mich. 165. Ross v. City of Madison, Smith (Ind.) 98. Hutson v. The Mayor, &c., 5 Sandf. (N. Y.) 289. Jones v. R. R. Co. 1 Wms 399. Goodwin v. Union Screw Co. 34 N. Hamp. 378. Beard v. Brooklyn, 31 Barb. (N.Y.) 143

(7.) Of the corporate name.

It is a general rule that corporations must take and grant by their corporate name. Without a name, they could not perform their corporate functions; and a name is so indispensable a part of the constitution of a corporation, that if none be expressly given, one may be assumed by implication. (e) A misnomer in a grant by a statute, or by devise, to a corporation, does not avoid the

(e) Marriott & Pascall's case, 1 Leon. 163. Anon. 1 Salk. 191. 1 Blacks. Com. 447, 475. 1 Kyd on Corporations, 234, 237, 250, 253. 10 Co. 28 b, 29 b.

As to delegation of authority by directors, see Burrill v. Nahant Bank, 2 Metcalf, 163; Gillis v. Bailey, 1 Foster, 149. As to how far the knowledge of the president affects the corporation with notice, see Winchester v. R. R. Co. 4 Md. 231, 239. On the binding force of acts of directors beyond the chartered powers of the company, see Bargate v. Shortridge, 31 E. L. & Eq. 44, per Lord St. Leonards. As to how far the company is bound by the fraud of directors, see National Exchange Co. v. Drew, 32 E. L. & Eq. 1. Athenæum Life As. Co. v. Pooley, 3 De G. & J. 294. S. C. 1 Giff. 102. As to forgery by agent, see Bank of Ireland v. Evans, Ibid. 23. Taylor v. Gt. Ind. P. R. Co. 4 De G. & J. 559. Pollock v. National Bk. 7 N. Y. 274. Mechanics' Bank v. N. Y. & N. H. R. R. 4 Duer, 480; S. C. 3 Kernan, 599. This case arose on a fraudulent certificate of stock issued by the defendants' president and transfer agent, Schuyler, and coming by assignment into the possession of the plaintiffs. The defendants were discharged by the Court of Appeals reversing the decision of the Superior Court. See infra, p. [621,] n. There has been recently some very stringent legislation in several of the states against the fraudulent issue of stock by the agents of corporations, making it a felony punishable by fine and imprisonment. R. S. of Maine, (1857,) c. 121, § 10. N. Hamp. Laws, (1854,) c. 1520. Mass. Laws, (1856,) c. 123. N. Y. Laws, (1855,) c. 155. See p. 621, note.

The question, how far a company can invalidate its own contracts, on the ground that they are ultra vires, was discussed at great length in the House of Lords, in Railway Co. v. Hawks, 35 E. L. & Eq. 8. The strong tendency of recent cases, on the subject of contracts ultra vires is to maintain with rigor, the limitations of the power of corporate action, whenever the question is of restraining contemplated action in excess of the corporate authority, or of refusing relief in aid of such action, and especially when it arises between the stockholders, or the public and the corporation; Abbott v. Am. Hard. Rub. Co. 33 Barb. (N. Y.) 578. Trenton Mut. Ins. Co. v. McKelway, 1 Beasley, 133. In re Kent Build. Ass. 1 Drew. & Sma. 417. Forrest v. Manchester, &c., R. 30 Beavan, 40. Att'y-Gen. u. Great North. R. 1 Drew. & Sma. 154; but, on the other hand, to enforce against corporations their contracts though ultra vires, of which they have received the benefit, and also to prevent parties who have contracted with corporations and received the benefit, from defeating their liability on the ground of want of power in the corporations. Zabriskie v. Cl. Co. & C. R. 23 How. U. S. 381. Bissell v. Mich. So. &c., R. 22 N. Y. 258. Cary v. Clevel. & To. R. 29 Barb. (N. Y.) 35. Parrish v. Wheeler. 22 N. Y. 494. See Groff v. Am. Lin. Thr. Co. 21 N. Y. 124. Argenti v. San Francisco, 16 Cal. 255. McCluer v. Manchester & L. R. 13 Gray, 124.

A corporation has no power to change its name. 10 Ad. & El. N. S. 839, 844. A railway company has no power to give up the management of its line to another company. Beman v. Rufford, 6 Eng. L. & Eq. 106. Great Northern Co. v. Eastern Counties Co. 12 Eng. L. & Eq. 224. S. C. 9 Hare, 306. Winch v. Birkenhead Co. 13 Eng. L. & Eq. 506. South Yorkshire Co. v. Great Northern Co. 19 Eng. L. & Eq. 515. Johnson v. Shrewsbury Co. 19 Eng. L. & Eq. 585. Shrewsbury Co. v. London & N. W. Co. 21 Eng. L. & Eq. 319. London, Brighton, &c., R. v. London & S. W. R. 4 De G. & J. 362.

grant, though the right name of the corporation be not used, provided the corporation really intended it to be made apparent. (ƒ) 5 So an immaterial variation in the name of the cor'poration does not avoid its grant; though it is not settled, with the requisite precision, what variations in the name are or are not deemed substantial. The general rule to be collected from the cases is, (g) that a variation from the precise name of the corporation, when the true name is necessarily to be collected from the instrument, or is shown by proper averments, will not invalidate

*

a grant by or to a corporation, or a contract with it; and *293 the modern cases show an increased liberality on this subject. For a corporation to attempt to set aside its own grant by reason of misnomer in its own name, was severely censured, and in a great measure repressed, as early as the time of Lord Coke. (a)

(8.) Of the power to elect members and make by-laws.

The same principle prevails in these incorporated societies as in the community at large, that the acts of the majority, in cases within the charter powers, bind the whole. The majority here means the major part of those who are present at a regular corporate meeting. There is a distinction taken between a corporate act to be done by a select and definite body, as by a board of directors, and one to be performed by the constituent members. In the latter case, a majority of those who appear may act; but in the former, a majority of the definite body must be present, and then a majority of the quorum may decide. This is the general rule on the subject; and if any corporation has a different modification of the expression of the binding will of the corporation, it arises from the special provisions of the act or charter

323.

Case of the Chancellor of Oxford, 10 Co. 57 b. Inhabitants v. String, 5 Halst.

(g) 1 Kyd on Corp. 236, 252. 6 Co. 64 b. 10 Co. 126 a. Road Company v. Creeger, 5 Harr. & Johns. 122. African Society v. Varick, 13 Johns. 38. The Turnpike Company v. Myers, 6 Serg. & Rawle, 12. Woolwich v. Forrest, Pennington, 84. Inhabitants v. String, 5 Halst. 323. First Parish in Sutton v. Cole, 3 Pick. 232. Angell & Ames on Corporations, 60, 61.

(a) Jenk. Cent. 233, case 6, 270, case 88. 10 Co. 126 a.

5 Vansant v. Roberts, 3 Md. 119. Mere change of a corporation's name by the legislature does not affect third persons. Rosenthal v. Madison R. R. Co. 10 Ind. 359.

*

of incorporation. (b)2 The power of election, or the supplying of members in the room of such as are removed by death or otherwise, is said to be a power incident to and necessarily implied in every aggregate corporation, from the principle of self-preservation.(c) But it seldom happens that an opportunity is afforded for the application of this principle, because the power of election must be exercised under the modifications of the * 294 charter or statute, of which the corporation is the mere creature, and which usually prescribes the time and manner of corporate elections, and defines the qualifications of the electors. If this be not done to the requisite extent in the act or charter creating the corporation, it is in the power of the corporation itself, by its by-laws, to regulate the manner of election, and the requisite proof of the qualifications of the electors, in conformity with the principles of the charter. (a)

Corp. 308, 400, 424. 1 Blacks. Com. 478.
The King v. Miller, 6 Term Rep. 268.
Rex v. Whittaker, 9 Barn. & Cress. 648.

(b) Rex v. Varlo, Cowp. 248. 1 Kyd on The King v. Bellringer, 4 Term Rep. 810. The King v. Bower, 1 Barn. & Cress. 492. Ex parte Willcocks, 7 Cowen, 402. Field v. Field, 9 Wendell, 394, 403. Gibson J., in St. Mary's Church, 7 Serg. & Rawle, 517. See the subject of the legality and organization of corporate meetings, and all cases relating thereto, examined in Angell & Ames on Corporations, ch. 14, 452, 3d edit. The New York Revised Statutes, vol. ii. p. 555, sec. 27, have declared, that when any power, authority, or duty is confided by law to three or more persons, or whenever three or more persons or officers are authorized or required to perform any act, the power may be exercised by a majority, upon a meeting of all the persons so entrusted or empowered, unless special provision be otherwise made. It is also a general principle of law, of which this statute provision is partly declaratory, that in a case of mere private authority and confidence, unless provision be made to the contrary, the whole body must meet and agree in the decision; but that in matters of public concern, or in some respects of a general nature, and all meet, the act of the majority will bind. Commonwealth v. Canal Com. 9 Watts, 466. Green v. Miller, 6 Johns. 39. Vide infra, p. 633. On a reference to three arbiters, if all meet, the award of two is valid. Meiklejohn v. Young, Stuart (Lower Canada) 43. But this is contrary to the general rule.'

(c) Hicks v. Town of Launceston, 1 Rol. Abr. 513, 514. 8 East, 272, n. S. C.

(a) 2 Kydon Corp. 20, 30. Though the charter gives to a select body the power to make by-laws, it does not divest the body of corporations at large of the same right. King v. Westwood, 4 Barn. & Cress. 781. Lovell v. Westwood, 2 Dow & Clark, 21. There is this distinction on the subject, that if the power of making by-laws be com

1 Kirk v. Bell, 12 Eng. L. & Eq. 385. See the general responsibility and powers of directors discussed in York Co. v. Hudson, 19 Eng. L. & Eq. 361.

2 See Beck v. Hanscom, 9 Foster, 213. Smith v. Law, 21 N. Y. 296. Hoyt v. Thompson, 19 N. Y. 207.