tractu, upon a town by the ordinary means of a suit at law. So far as a municipal corporation is endowed by law with the power of contracting, and as such, is made capable of act. They direct or assent by vote; but their | vate corporation, or to an individual, when it most immediate mode of action must be by is sought to visit a pecuniary liability ex conagents. If the corporation, or its representative, the board, can assent primarily by vote alone, to say that it could constitute an agent to make a deed only by deed, would be to say that it could constitute no such agent what-acquiring, holding, and disposing of property, ever; for, after all, who could seal the power of attorney but one empowered by vote? Tenn. Supreme Ct. 1843, Hopkins v. Gallatin Turnpike Co. 4 Humphrey, 403; S. P. Va. Ct. App. 1846, Burr v. M'Donald, 3 Grattan, 215. See Savings Bank v. Davis, 8 Conn. 191. 15. Some authority from corporation, necessary. No individual member can represent the corporation in their aggregate capacity, but in consequence of their consent. The requisite evidence of this, at common law, was a deed under the seal of the corporation. Aggregate corporations established by statute are not restricted to that formality. They have powers given them to order their affairs, and to appoint and employ agents by vote; or in such other manner as the corporation may by their by-laws direct. But no person is an agent for them, who proceeds without any authority, either by letter of attorney or by a corporate vote, or who acts beside the authority given him; that is, his acts will not charge them, unless subsequently assented to by some act of the corporation. Thus a claim for work done on a turnpike is not supported where the plaintiffs cannot prove any request by an authorized agent of the corporation; but only that their men were seen at work upon the road by different members of the corporation, and by an agent who was authorized to contract on its part, but in writing only. Mass. Supreme Ct. 1813, Hayden . Middlesex Turnpike Co. 10 Mass. 397; Vt. Supreme Ct. 1839, Burdick v. Champlain Glass Co. 11 Vt. 19. See also, Williams v. Pigott, 5 Eng. Railw. Cas. 544; 2 Exch. 201; Nevins v. Henderson, 5 Eng. Railw. Cas. 684; Spottiswood's case, 39 Eng. Law & Eq. 520; Cox v. Midland Railway Co. 18 Law J. N-S. Exch, 345. 16. The doctrine that no person, whether natural or artificial, can be compelled by legislative enactment to become a party to, or subjected to liability upon, a contract, without his consent, must receive the same application to a municipal corporation as to a pri and subject to the liabilities incident to the exercise 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 ascertained and enforced by suit in the ordinary judicial forums, upon the same principles, and by the same means as in case of a private corporation) such municipal corporation must stand on the same ground of exemption from legislative control and interference 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 appertain to their corporate existence, in virtue of and in reference to which alone they are subject to the absolute control of legislation. Vt. Supreme Ct. 1858, Atkins v. Town of Randolph, 31 Vt. (2 Shaw), 226. 17. Neither a remittance of money to one as the agent of a bank by another party, and his consent to receive it as such, nor his admissions, nor the fact that he is a director of the bank, have any tendency to prove that he is the agent of the bank. The consent of the bank that he should so act is necessary. Ala. Supreme Ct. 1847, Holman v. Bank of Norfolk, 12 Ala. N. S. 369. 2. Evidence of their Appointment. 18. Judicial notice. That courts cannot judicially notice that a particular board of the corporation is authorized to appoint agents, where the evidence of such authority is not introduced,—see Haven v. N. H. Asylum, 13 N. H. 532. 19. Production of the record of appointment. The ordinary and proper proof of the appointment and authority of an agent of a corporation is made by the production of the records or books of the corporation, containing the entry or resolution of appointment; the records being proved to be the records of the corporation.* N. C. Supreme pointment or election of the treasurer, and Ct. 1835, Buncombe Turnpike Co. v. McCar- the production of the records was refused, son, 1 Dev. & B. 306. the testimony of a witness was admitted that he had seen the records, and that it appeared therein that the person accepting the bill was duly elected treasurer, as competent proof of his appointment and authority. Mass. Supreme Ct. 1841, Narraganset Bank v. Atlantic Silk Company, 3 Metc. 282. 20. Where a corporation brings a bill, and alleges therein that certain acts were done by committees thereof, whereby a resulting trust in certain land, conveyed to a third party, was raised in favor of the corporation, it cannot prove the authority of the committees to act therefor, by parol evidence; their power to act can be shown only by its records. Me. Supreme Ct. 1845, Methodist Chapel Corporation v. Herrick, 25 Me. (12 Shep.) 354. 21. In order to establish an agency in behalf of a corporation it is not indispensable parol. Ind. Supreme Ct. 1857, Richardson to show a written authority, or a vote or resolution of the corporate authorities. Mo. Supreme Ct. 1860, Williams v. Christian Female College, 29 Mo. (8 Jones), 250. 22. In an action upon the case against a corporation for injury done by their agent, it is not necessary to prove that the agent had authority under the corporate seal, nor under an order entered upon the books of the corporation. Circ. Ct. D. C. 1802, Hooe v. Mayor &c. of Alexandria, 1 Cranch C. Ct. 90. 23. Under a bill filed by an incorporated railway company for the specific performance of a contract for the purchase of land entered into by their agent, it was objected that the contract lacked mutuality, as it did not appear that the agent was authorized under the corporate seal, and his act was therefore not binding on the company. Held, that as the company had, before bill filed, acted on the contract by entering into possession of the land, and making a railroad over it, they had become bound by it. It could be enforced against them, and therefore might be in their favor. Chancery, 1840, London & Birmingham Railway Co. v. Winter, 1 Craig & P. 57. 24. Parol evidence. Where, in a suit against a corporation on a bill of exchange accepted by one, in behalf of the corporation, as its treasurer, notice was given by the plaintiff to the corporation to produce its records for the purpose of proving the ap *See also, Owings v. Speed, 5 Wheat. 424; Thayer v. Middlesex Mut. Ins. Co. 10 Pick. 326; Narraganset Bank e. Atlantic Silk Co. 3 Metc. 282; Clark v. Benton Manf. Co. 15 Wend. 256; Methodist Chapel Corporation. Herrick, 25 Me. 854; Haven v. N. H. Asylum, 13 N. H. 582; Miller . Ewer, 27 Me. 509. 25. Where the act of incorporation does not require that the appointment of an agent or the making of a contract should be by a written instrument, and it does not appear to have been so made, it may be proved by v. St. Joseph Iron Co. 5 Blackf. 146; Hamilton v. Newcastle &c. R. R. Co. 9 Ind. 359. 26. Authority may be proved by "facts and circumstances." See Elysville Manf. Co. v. Okisko Co. 5 Md. 152; Northern Central R. R Co. v. Bastian, 15 Md. 494. 27. The authority of an agent of a corporation may be shown by acts and the general course of business. Me. Supreme Ct. 1847, Badger v. Bank of Cumberland, 26 Maine (13 Shep.) 428. 28. Authority inferred. The appointment of an agent of a corporation may be inferred from the adoption of his acts. Ala. Supreme Ct. 1856, Alabama &c. R. R. Co. v. Kidd, 29 Ala. N. S. 221; 8. C. Ct. of Appeals, 1856, Planter's Bank of Fairfield v. Bivingsville Cotton Manuf. Co. 10 Rich. Law, 95. And see Regina v. Grimshaw, 16 Law J. N. S. Q. B. 385. 29. Jury may infer authority given to an agent who committed an act of conversion, from an adoption of the conversion, e. g. from the corporation having received the proceeds. See Smith v. Birmingham & Staffordshire Canal Co. 1 Ad. & E. 526; Mayor &c. of Baltimore v. Norman, 4 Md. 352. 30. To a very great extent, corporations are held bound, by presumed or implied authority to those who are held out or permitted to act for them in their usual course of dealing within their charter powers. Ill. Supreme Ct. 1855, Ryan v. Dunlap, 17 Ill. 40. 31. from course of dealing. If the directors of a corporation by vote authorize their treasurer to indorse notes of the corporation to a third person, or if such treasurer is suffered to draw and accept drafts, to in dorse notes payable to the corporation, and of the corporation, which were before its manto do other similar acts whereby he is heldagers for years without objection. Ib. out to the public as having the general authority implied from his official name and character, the corporation is bound by his acts, due within the scope of such implied authority. And an indorsement and transfer, by such treasurer, of a negotiable instrument belonging to the corporation, made in pursuance of such express or implied authority, will pass a valid title to the indorsee. Mass. Supreme Ct. 1861, Lester v. Webb, 1 Allen, 34. 35. Presumed. If officers of the corporation openly exercise a power which presupposes a delegated authority 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 32. Though the by-laws of a corporation appointment will be presumed; and his acts do not confer on its general agent the power as cashier will bind the corporation, although of accepting bills, yet if the agent has been no written proof is, or can be, adduced of his in the habit of accepting bills which the com- appointment. U. S. Supreme Ct. 1827, Bank pany has paid, it will be bound by an accept- of United States v. Dandridge, 12 Wheat. 79. ance given by him under like circumstances. See also, Burgess v. Pue, Gill, 254; McCulN. Y. Supreme Ct. 1818, Munn v. Commission | lough v. Annapolis and Elkridge Railroad Co. Co. 15 Johns. 44; S. P. 1841, Com. Bank of 4 Gill, 58. Lake Erie v. Norton, 1 Hill, 501; 1853, Exchange Bank v. Monteath, 17 Barb. 171. 36. The agent of a bank, without objection that parol evidence was not competent to prove his authority, swore that he was authorized to transfer certain promissory notes held by the bank; it was presumed that he was tion of the directors, as required by the statute. N. Y. Supreme Ct. 1860, Warner v. Chappell, 32 Barb. 309. 33. The directors of a railroad corporation relinquished the management of the road for a period of years to the president, allowing him to buy property for the use of the corpo-authorized to make the transfer, by a resoluration, and to give the notes of the corporation for the price; and when, at the end of the three years, the managers again resumed the discharge of their appropriate duties, they 37. No presumption that a sale of corpotook possession of the road and of all the rate property ordered by a director was made property thus procured by the president, and by authority of the company. See Moody v. continued to use such property for several London &c Railway Co. 1 Best & S. 290. years, without question as to the manner in 38. No presumption that corporate agents which it had been obtained. Held, that un- have exceeded their authority, or made repreder such circumstances, the acts of the as-sentations without sufficient authority. See sumed agent could not be repudiated. The Carey v. Cincinnati &c. R. R. Co. 5 Clarke powers of an agent of a corporation are such | (Iowa), 357. as he is allowed by the directors or managers 39. Established by estoppel. The obligor of the corporation to exercise, within the limits of the charter; and the silent acquiescence of the directors or managers may be as effectual to clothe the agent with power, as an express letter of attorney. N. Y. Ct. of Appeals, 1863, Olcott v. Tioga R. R. Co. 27 N. Y. 546. 34. To show that the president of a corporation had authority to draw, in the name of the corporation, the note in suit, evidence is admissible that he had, on various occasions, as well after as before, executed similar bills and notes which had been paid, and the sums thus expended entered into the accounts in a bond given to a corporation for the price of land, reciting the contract of the corporation to convey, is estopped from questioning the authority of the agent who made the contract, if the corporation have done no act indicative of a design to repudiate it Me. Supreme Ct. 1853, Augusta Bank v. Hamblet, 35 Me. (5 Red.) 491. 3. Construction of express powers. 40. A general appointment as an agent," duly authorized to do a specified thing, gives the limited powers only. See Wilson v. Genesce Mut. Ins. Co. 14 N. Y. (4 Kern.) 418. 41. Making contract. Power to borrow | to himself for the benefit of the bank, and money on the credit of a town to rebuild a competent to make the oath required by law bridge, may imply power to bind the town in the case of mortgages. See Lathrop v. by contract for building. See Simonds v. Blake, 3 Foster (N. H.) 46. Heard, 23 Pick. 120. 42. Making negotiable instruments. Power to advance money for a corporation will not authorize signing a note for them. See Webber v. Williams College, 23 Pick. 302. 43. A committee appointed by a town to "lay out" money voted to be raised for the repair of a highway, not empowered to bind the town by a promissory note. See Savage a Rix, 9 N. H. 263. 44. Power to give a แ 'company note," may authorize a bill of exchange on a person who had no funds. See Tripp v. Swanzey Paper Co. 13 Pick, 291. 45. An authority to the president of a corporation to make all contracts &c. "under the direction of the board," not an authority to accept a bill without direction of the board. See Lazarus. Shearer, 2 Ala. N. S. 718. 46. Power" to accept a bill not exceeding" a specified sum, will authorize accepting such sum. See Thompson v. Wesleyan Newspaper Association, 8 C. B. 849; 19 Law J. N. S. C. P. 114. 47. Conveying. A vote authorizing an officer to "sell and convey " a tract of land, empowers him to execute a bond, binding the corporation to convey. The authority to sell implies a power to negotiate and make a bargain prior to conveying, if this be necessary. Me. Supreme Ct. 1853, Augusta Bank v. Hamblet, 35 Maine (5 Red.) 491. 48. A vote authorizing an agent to convey lands, must specify the tract to be conveyed, or give some description by which it can be ascertained. The power ought to be as certain as it is necessary for the deed to be which is to be executed under it. N. H. Superior Ct. 1835, Lumbard v. Aldrich, 8 N. H. 31. 49. An agent of a bank clothed "with full power to dispose of the interest of the bank in certain property, real and personal, and in the name of the bank and for their benefit to make &c. any deed or deeds of all or any portion thereof, and in general to manage and dispose of the interest of the bank in said property, at his best discretion,”-Held authorized to sell and convey the same, and to take notes therefor and a mortgage as security, 50. Power" to sell" does not enable agent to pledge for his own debt. See Whitney v. State Bank, 7 Wis. 620. 51. Employing sub-agents. Power to a town treasurer to "borrow," not an authority to employ a broker at expense of the town to negotiate a loan. See Butterfield v. Inhabitants of Melrose, 6 Allen, 187. 52. Power to agents of a town to prosecute an action, includes power to employ an attorney. See Buckland v. Conway, 16 Mass. 396. 53. Power to "take measures to obtain possession" of land devised, and "to choose agents to institute or defend any suit or suits, and act anything relative thereto," will authorize the agents to make an entry on the land, on which to found a writ of entry. See Sutton v Cole, 3 Pick. 232. 54. The by-laws of a corporation, giving to the directors "a general superintendence and control over the affairs of the corporation," with power to sell lands and tenements on such terms as they may deem advantageous, though they doubtless give the directors power to lease, give them no authority to delegate to an attorney power to lease in his discretion. N. H. Superior Ct. 1850, Gillis v. Bailey, 1 Fost. 149. 4. Implied Powers. 55. In general. An agent's authority, however generally expressed, if capable of being executed in a lawful manner, is never to be extended by construction to embrace acts prohibited by law, so as to render his principal liable to a criminal prosecution, or to a statute penalty. N. Y. Superior Ct. 1854, Clark v. Metropolitan Bank, 3 Duer, 241. 56. The powers conferred on an agent are not restricted by being expressed to be subject to the direction of the board of directors, unless they interpose to limit them. Me. Supreme Ct. 1855, Whitney v. South Paris Manuf. Co. 39 Me (4 Heath), 316. 57. The agent of a manufacturing corporation was empowered by its by-laws to manage the affairs of the corporation committed to his care, and to exercise the powers commit ted to him according to his best ability and discretion, and promptly to collect all assessments and other sums that should become due to the corporation, and to disburse them according to the order of the board of directors, who were made a board of control over him Held, that the agent, if the board of directors did not interpose to control his proceedings, had authority to employ workmen to carry on the business of the corporation, and to pay them with its funds, or, not being in funds, to give the notes of the corporation in payment. Mass. Supreme Ct. 1843, Bates v. Keith Iron Co. 7 Met. 224. 58. Stockholders not liable for agent's fraud. The agent of a corporation is not the agent of the individual stockholders, so as to make them responsible for his frauds, or to vitiate a contract made by an individual stockholder for the sale of his own stock. Chancery, 1838, Moffat v. Winslow, 7 Paige, 124. 59. "General agents:" Power to convey land. Although general powers of management are conferred upon an agent by the directors of a company, yet they must be understood to be limited to correspond with the duties to be performed, and the business to be transacted. Thus the general agent of a manufacturing corporation is not authorized, merely as such, to transfer by deed the real estate of the company. It may be incidental to his powers as agent to borrow money, give promissory notes, and do many similar acts, in the ordinary course of business of the company; but to empower him to sell or convey its real estate, a specific authority is necessary. Conn. Sup. Ct. 1828, Stow v. Wyse, 7 Conn. 214. hands in the employ of the company. The creditors of the company cannot avoid such a transfer, on the ground of a previous agreement by the members of the company with a third person, to deliver all the lumber to him to be disposed of for the company; certainly not, where such third person recognizes the right of him to whom the transfer is made, and does not insist that he himself has any right or claim. Mo. Supreme Ct. 1852, Taylor v. Labeaume, 17 Mo. 338. 62. But when a mining concern was carried on by an agent in Cornwall, and distress warrants were issued by the justices of the peace, in consequence of the wages of the workmen not having been paid,-Held, that the agent had no power to borrow money, and pledge the credit of his principals, in order to prevent the warrants being put in force. Exch. 1841, Hawtayne v. Bourne, 7 Mees. & W. 595; 5 Jur. 118. 63. to make contracts. Where the general agent of a corporation makes a contract in the ordinary course of business, the company may be held liable upon it in a proper case, upon general principles of the law of agency. It makes no difference that the defendants were a corporation; for it is settled that they may be bound by the acts of their agents, in the same manner as private individuals. N. Y. Supreme Ct. 1818, Munn v. Commission Co. 15 Johns. 44. 64. A surgeon who has amputated the limb of a passenger, injured by the moving of a truck upon the railway, under directions given by the station agent, in consequence of which the surgeon performed the operation, cannot recover of the company for his services. It is not incident to the employment of a station agent, to bind the company by such a contract. If, however, the company have ratified similar contracts made by this same agent, this may be evidence tending to show that they have given this particular servant authority to make such or similar contracts; but not that they have given authority to all their servants to do so. Exch. 1849, Cox v. Midland Counties Railway, 3 Exch. 268; 13 Jur. 65; 18 Law J. Exch. 65. N. Y. Superior Ct. 1853, Stephenson v. N. Y. & Harlem Railway, 2 Duer, 341. 65. The engincer of a railroad corporation was charged by the corporation with the duty of engrossing a certain contract and pro |