Bank of the United States v. Dandridge. 12 W.

supreme court of Pennsylvania held that evidence of the acts and declarations of the trustees and agents of the corporation, both before and after the incorporation, while transacting the business of the corporation, and also evidence by witnesses of what passed at the meetings of the congregation when assembled on business, were admissible to show their possession of the land and the extent of their claim of its boundaries. This must necessarily have proceeded upon the ground that the acts of corporate agents, and even of aggregate bodies, corporate or unincorporated, might be established, independent of written minutes of their proceedings.

In respect to grants and deeds beneficial to a corporation, there seems to be no particular reason why their assent to and acceptance of the same may not be inferred from their acts, as well as in the case of individuals. Suppose a deed poll granting lands to a corporation, can it be necessary to show that there was an acceptance by the corporation by an assent under seal, if it be a corporation at the common law; or by a written vote, if the corporation may signify its assent in that manner? Why may not its occupation and improvement, and the demise of the land by its agents, be justly admitted, by implication, to establish the fact in favor and for the benefit of the corporation? Why should the omission to record the assent, if actually given, deprive the corporation of the property which it gained in virtue of such actual assent? The validity of such a

grant depends upon the acceptance, not upon the mode, by [73] which it is proved. It is no implied condition that the corporation shall perpetuate the evidence of its assent in a particular way. At least, if it be so, we think it is incumbent on those who maintain the affirmative, to point out the authorities which sustain it. None such have been cited at the bar. On the contrary, there are highly respectable decisions, made upon great consideration, which assert a different doctrine. The case of the Proprietors of the Canal Bridge v. Gordon, 1 Pick. 297, is directly in point. There the object was to impose an onerous duty, and to discharge or limit the right of toll of the plaintiffs; and the court held, that the corporation could bind itself, and did in fact, in that case, bind itself to a surrender of its valuable rights, by implications from corporate acts, without vote or deed. The learned chief justice of Massachusetts, on that occasion, in delivering the opinion of the court, said: "It is true that the acts, doings, and declarations of individual members of the corporation, unsanctioned by the body, are not binding upon it; but it is equally true that inferences may be drawn from corporate acts, tending to prove a contract or promise, as well as in the case of an individual; and that a vote is not always necessary to establish such

Bank of the United States v. Dandridge. 12 W.

contract or promise. This has been settled in several cases in this country and in England." And afterwards, addressing himself to the facts of that case, he added: "The question, then, is narrowed to this: Have the proprietors of the canal bridge assented to this proposition, and acted under it? We find no vote to this effect; but we do find that the cross bridge was suffered to unite with theirs, pursuant to this proposition, and that for four years all were suffered to pass without toll, who came from Charlestown to Cambridge, or vice versa. Now, corporations can be bound by implication as well as individuals, as has been before stated; and no acts could be stronger to show an assent to a proposition, an agreement, or bargain, than those which have been mentioned." Nor was this doctrine new at that time in that court. It may be clearly inferred from the prior cases of The President, &c., of the Salem Bank v. The President, &c., of the Gloucester Bank, 17 Mass. 1, and Foster v. The President, &c., of the Essex * Bank, Ib. 479. And it [*74 ] has been more recently confirmed, in The Episcopal Charitable Society v. The Episcopal Church in Dedham, 1 Pick. 372. It may, therefore, be considered as conclusively settled in Massachusetts. The case of The Bank of Columbia v. Patterson's Adm., in this court, 7 C. 299, did not call for any expression of opinion upon the particular point now under consideration; but the court there held, that, from the evidence in that case, the jury might legally infer an express or an implied promise of the corporation. The court there said: "The contracts were for the exclusive use and benefit of the corporation, and made by their agents for purposes authorized by the charter. The corporation proceed, on the faith of those contracts, to pay money, from time to time, to the intestate. Although, then, an action might have lain against the committee personally, (for the contract was a personal contract by them, under their private seals,) upon their express contract, yet, as the whole benefit resulted to the corporation, it seems to the court that from this evidence the jury might legally infer that the corporation had adopted the contracts of the committee, and had voted to pay the whole sum which should become due under the contracts, and that the intestate had accepted their engagement." Here, then, secondary evidence and presumptive proof was admitted in a suit against the corporation to fix its responsibility. A vote of the corporation was presumed from other acts, though there was no proof of such a vote being on record. If the corporation had shown that no such vote had been on record, would the presumption have been completely repelled? Would the omission of the corporation to record its own doings, have prejudiced the rights of the party relying upon the good faith of an actual vote of

Bank of the United States v. Dandridge. 12 W.

the corporation? If such omission would not be fatal to the plaintiff in suits against the corporation, (as in our opinion it would not be,) it establishes the fact that acts of the corporation not recorded may be established by parol proofs, and, of course, by presumptive proofs. In reason and justice, there does not seem any solid ground why a corporation may not, in case of the omission of its officers to preserve a written record, give such proofs to support its rights, [*75] as would be admissible in suits against it to support adverse rights. The true question in such case would seem to be, not which party was plaintiff or defendant, but whether the evidence was the best the nature of the case admitted of, and left nothing behind in the possession or control of the party higher than secondary evidence. The case of Dunn v. St. Andrew's Church, 14 Johns. 118, proceeded upon like reasoning. There the plaintiff had performed services as clerk of the church for the corporation, for which he had received some payments. The records of the corporation contained entries of the payment of moneys, at several times, to the plaintiff, for his services; but no resolution was entered on the minutes or records of the corporation, appointing the plaintiff clerk of the church. The court held such vote unnecessary to be shown, and that there was sufficient evidence of an implied promise of the corporation to make the compensation. In the King v. Inhabitants of Chipping Norton, 5 East, 239, there was a demise by a verbal agreement of the corporation, at a court leet, of certain tolls belonging to the corporation. The court held, that the corporation could demise only under seal, and that the agreement amounted to a mere license to collect the tolls, though it might be a ground to apply to a court of equity to enforce it as an equitable interest. The ground there was not that the proceeding being verbal was a nullity, but that it did not operate as a demise of the tenement at law. It was conceded that the verbal agreement bound the corporation as a license.

But the present question does not depend upon the point, whether the acts of a corporation may be proved otherwise than by some written document. The reasoning upon it, however, was very ably gone into at the bar, and as it furnishes very strong illustrations upon the point now in judgment, it could not be passed over with propriety.

In the present case, the acts of the corporation itself, done at a corporate meeting, are not in controversy. In corporations existing at the common law and by charter, there are great diversities both of powers and organization. In some corporations the whole powers rest in a select body, or in select bodies, with powers [76] to perpetuate their own corporate existence, by filling up vacancies in their own body; and such body or bodies con

Bank of the United States v. Dandridge. 12 W.

stitute the corporation itself, and the meetings and acts done thereat are the meetings and acts of the corporation itself. In short, they constitute the corporation, so far as it has life or organization exclusively. Such are many of the boroughs and other municipal corporations in England, familiarly shown by the name of quasi corporations. There are corporations of another sort, where the aggregate body of corporators meet and assemble to discharge corporate functions, and have authority also to perform certain acts and duties, by means of different agents, sometimes designated in the statutes creating them, and sometimes left to their own choice. Of this nature are the townships in New England, where the inhabitants are corporators, and assemble to exercise corporate powers, and have authority to appoint various officers to perform public duties, under the guidance and direction of the corporation. Such are the selectmen for the ordinary municipal concerns; overseers of the poor, school committees, assessors of taxes, and various other functionaries. In these cases, the various officers form different boards for the performance of different duties, subordinate to the corporation; their acts lawfully done, bind 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 records of their own proceedings, and not of the proceedings of the corporation itself.

It will be at once seen, upon an inspection of the charter creating the Bank of the United States, that it is not a corporation of the former description. The charter, in the 1st section, declares that a bank of the United States of America shall be established, with a capital of $35,000,000, of which $7,000,000 shall be subscribed by the United States, and the residue by individuals and corporations. It proceeds to enact, in the 7th section, that the subscribers to the said Bank of the United States, their successors and assigns, shall be and hereby are created a corporation and body politic, by the name and style of "The President, Directors, and Company of the Bank of the United States," and by that name shall be capable in law to have, *purchase, receive, &c., lands, &c., goods, chattels, [*77 ] and effects, &c., to an amount not exceeding $55,000,000, including their capital stock; and the same to sell, grant, &c.; to sue, and be sued, &c.; to make, have, and use a common seal, and to alter the same at pleasure; to ordain, and establish, and put in execution such by-laws and ordinances as they shall deem necessary and convenient for the government of the said corporation; and generally to do and execute all and singular the acts, matters, and things which to them it shall or may appertain to do, subject to the other provisions of the act. It proceeds to enact that, for the manage

same.

Bank of the United States v. Dandridge. 12 W.

ment of the affairs of the corporation, there shall annually be chosen twenty-five directors, by the stockholders; and the board of directors shall appoint a president of the corporation. The directors have further authority given to them to appoint such officers, clerks, and servants, as they shall deem necessary for executing the business of the corporation, and to exercise such other powers and authorities for the well-governing and ordering of the officers of the corporation, as shall be prescribed by the laws, regulations, and ordinances of the The directors have further authority given them to establish offices of discount and deposit, wheresoever they shall think fit, within the United States or the territories thereof, and to commit the management of the said offices, and of the business thereof respectively, to such persons and under such regulations as they shall deem proper, not being contrary to law or the constitution of the bank; and annually to choose the directors of such offices. Among the rules, which the act prescribes as fundamental articles of the constitution of the corporation, are the following: "That not less than seven directors shall constitute a board for the transaction of business, of whom the president shall always be one, except in case of sickness or necessary absence;" that sixty stockholders, who are proprietors of 1,000 shares in the stock, "shall have power at any time to call a general meeting of the stockholders, for purposes relative to the institution;"" that each cashier or treasurer, before he enters upon the duties of his office, shall be required to give bond, with two or

more sureties, to the satisfaction of the directors, in a sum [ 78 ] not less than $50,000, with condition for his good behavior, and the faithful performance of his duties to the corporation;" that the total amount of the debts of the corporation shall not exceed a limited sum; and if it does, the directors shall, in their natural and private capacities, be liable to any creditor therefor, with the exception that any director who shall have been absent when the excess was contracted or created, and who shall have dissented from the resolution or act authorizing it, and shall give notice of the fact in a particular manner, shall be exonerated; that the secretary of the treasury shall be furnished, from time to time, as often as he may require, &c., with statements of the amount of the capital stock, of debts due, of moneys deposited, of notes in circulation, and of specie on hand; and shall have a right to inspect such general accounts of the bank as shall relate to the said statement. The act further provides, that a committee of either house of congress, appointed for that purpose, shall have a right to inspect the books, and to examine into the proceedings of the corporation, and to report whether the provisions of the charter have been violated or not.