25 First Nat. Bank v. Price, 33 Md. 487; and see Rice v. Merrimack Hosiery Co. 56 N. H. 114.

26 Craw v. Easterly, 4 Lans. 513; 54 N. Y. 679.

27 Strong v. Sproul, 4 Daly, 326; and see Quigley v. Walter, 2 Sweeny, 173.

28 Whitney Arms Co. v. Barlow, 63 N. Y. 62.

2) Whitney Arms Co. v. Barlow, 63 N. Y. 62; Dabney v. Stevens, 46 id. 681.

30 Bolen v. Crosby, 49 N. Y. 183.

31 Sanborn v. Lefferts, 58 N. Y. 179. But after the appointment of a receiver, the trustees are no longer liable for omitting to file an anual report: Huguenot Bank v. Studwell, 74 N. Y. 621.

32 Seizer v. Mali, 41 N. Y. 619 n.; 32 Barb. 76.

3

§ 143. Powers, duty, and liability of treasurer. In general, the acts of a corporate officer, acting without a special authority, bind the corporation only so far as such acts are within the scope and ordinary course of the duties of his office. If the powers of the treasurer are expressly limited by the by-laws, such powers cannot be extended by inference from the course of business.2 He has not, by virtue of his office, authority to pay the debts of the corporation, or to set off the debts due from, by those due to, the company, or to assign a chose in action owned by the corporation, or to assume a debt against a third person; 5 and authority conferred upon him by the directors to accept drafts on behalf of the corporation, must be strictly proved. He cannot maintain a suit against the company, upon a claim against it purchased by him. And a purchase by the treasurer, at a sale under an execution against the corporation, of land held by its trustees, must be deemed as having been made for the benefit of the corporation.8 But a treasurer, authorized to issue certificates of the stock of the corporation, may bind it by the fraudulent issue of such certificates, regular in form, though not representing any real stock; 9 and the corporation will be liable to one who, acting in good faith, loaned money on the fraudulent certificates, supposing them to be genuine.10 The treasurer of a corporation is charged with the custody of its funds, and it is his duty to keep them distinct from his own, unless other

wise agreed. He is responsible for the safe-keeping of such funds, and the directors cannot lawfully deprive the corporation of the benefit of this responsibility by depositing the funds with others for safe-keeping.12 The remedy of a stockholder, for a refusal by the treasurer to pay him a dividend, is against the corporation, and not against the treasurer. 13 But generally, where the treasurer acts in his own behalf, and without the authority of the company, he will be personally liable, although he signs his name as treasurer, reasonably expecting that the company would adopt his acts.14 If the corporation places a sum of money in the hands of its treasurer, to meet an obligation it has agreed to pay, and the treasurer expends the money for the benefit of the obligee, the corporation by resolution assenting thereto, it cannot afterward hold the treasurer liable for the money.15 If the treasurer obtain permission to borrow the funds in his hands, upon giving his note with a mortgage, he will not escape liability as treasurer, for the amount, by giving his note without the mortgage.16 The treasurer of a corporation incurs no liability to an action for false and fraudulent representations made by him, whereby a creditor of the corporation was induced to refrain from attaching the corporate property, and thereby lost his debt.17 And where penalties are imposed by statute upon the treasurer of a society, for "withholding or misapplying" moneys of the society, which have come into his hands as treasurer, fraud or misrepresentation must be shown in order to render him liable; 18 it is not enough to show a mere inability on his part to pay over the moneys to the trustees. 19

1 New England etc. Ins. Co. v. Schettler, 38 Ill. 166; Town of Concord v. Concord Bank, 16 N. H. 26; Boon v. City of Utica, 2 Barb. 104; Adriance v. Roome, 52 id. 399; Wright v. Ga. R. R. etc. Co. 34 Ga. 330.

2 Torrey r. Dustin Monument Assoc. 5 Allen, 327; and see Dabney v. Stevens, 40 How. Pr. 340; 10 Abb. Pr. N. S. 39; 2 Sweeny, 415. But compare Phillips v. Campbell, 43 N. Y. 271; Union etc. Min. Co. v. Rocky Mt. Nat. Bank, 2 Cold. (Tenn.) 248.

3 Brown v. Weymouth, 36 Me. 414.

4 Jackson v. Campbell, 5 Wend. 572; Knight v. Lang, 2 Abb. Pr. 227; AE. D. Smith, 381.

5 Stark Bank v. U. S. Pottery Co. 34 Vt. 144.

6 Partridge v. Badger, 25 Barb. 146.

7 Hill r. Frazier, 22 Pa. St. 320; and see East N. Y. etc. R. R. Co. v. Elmore, 5 Hun, 214; Hand v. Atlantic Nat. Bank, 55 How. Pr. 232.

8 McAllen v. Woodcock, 60 Mo. 174.

9 Tome r. Parkersburgh etc. R. R. Co. 39 Md. 36; 17 Am. R. 540. Compare Ex parte Chorley, Law R. 11 Eq. 157; Brunton's Claim, Law R. Eq. 302; Mackay v. Commercial Bank of New Brunswick, Law R. 5 Com. P. 394.

10 Tomer. Parkersburgh etc. R. R. Co. 39 Md. 36; 17 Am. R. 540. 11 Second Av. R. R. Co. v. Coleman, 24 Barb. 300.

12 Pearson v. Tower, 55 N. H. 215; and see Bluff Creek v. Hardinbrook, 40 Iowa, 130.

13 French v. Fuller, 23 Pick. 108. But if the treasurer puts his refusal to pay the dividend upon the ground that he is himself the owner of the shares, he is liaoie personally, in assumpsit, for money had and received, at the suit of the real owner of the shares: Williams v. Fullerton, 20 Vt. 346.

14 Haynes v. Hunnewell, 42 Me. 276.

15 Bay View Homestead Assoc. v. Williams, 50 Cal. 353. 16 Bluehill Academy v. Ellis, 32 Me. 260.

17 Bradley v. Fuller, 118 Mass. 239.

18 Barrett v. Markham, Law R. 7 Com. P. 405.

19 Barrett v. Markham, Law R. 7 Com. P. 405.

§ 144. Powers, etc., of president.—The president is the chief executive officer of a business or moneyed corporation, and he may, without special authority, perform all acts of an ordinary nature, which, by usage or necessity, are incident to his office.1 He may bind the corporation by contracts in reference to matters arising in the ordinary course of its business; 2 and if he is in the habit of acting as the general business agent of the corporation, with its knowledge, and without objection, actual authority may be inferred from such acts, and the company will be bound by them. Although he is not, by virtue of his office, an agent of the corporation to sell its property, yet his authority may be presumed in aid of an appointment made by him of an agent to sell corporate property.5 The president is not authorized, by virtue of his office merely, to borrow money for the company; or to surrender or release the claims of the com

pany against any one; 7 or to waive a condition in a policy of insurance; or to stay the collection of an execution against the estate of a debtor of the company; or to undertake, in the corporate name, for the repayment of a loan obtained by an agent of the company without authority.10 But a bank president, by virtue of his office, has power to take charge of the litigation of the bank.11 He may institute legal proceedings to enforce its claims, and may appear and answer for it in suits against the bank, and may retain and employ counsel on its behalf.12 Admissions and declarations of the president charge the company only when they relate to matters within the scope of his agency. 13 The president is usually chosen by the board of directors from their own number,11 and he has a right to vote upon all questions to be determined by the president and directors. 15 But a power of man. agement conferred upon the "president and directors" is not to be construed as rendering the president an essential part of a quorum, unless so required by the charter or by-laws.16 In the absence of the president, or in case of a vacancy in the office, the vice-president may act in his stead, although the charter contains no express provision to such effect.17 An injunction against a corporation, its assigns, agents, employés, and any one acting by its authority, or in its behalf, includes the president of the company, and renders him liable to punishment, if, with notice of such injunction, he does what it prohibits the company from doing. 18

1 See Chicago etc. R. R. Co. v. Coleman, 18 II. 297; Sterling v. Ma rietta Co. 11 Serg. & R. 179; Tremont Bank v. Paine, 23 Vt. 24; Farmers' Loan etc. Co. v. Manu, 4 Root. 356; Minor v. Mech. Bank, 1 Peters, 46.

2 Blen v. Bear River etc. Co. 20 Cal. 602. Compare Jesup v. City Bank, 14 Wis. 331; Hodges v. Rutland etc. R. R. Co. 29 Vt. 220; Bacon v. Miss. Ins. Co. 31 Miss. 116; St. Nicholas Ins. Co. v. Howe, 7 Bosw. 450; First Nat. Bank v. Bennett, 33 Mich. 520.

3 Dougherty v. Hunter, 54 Pa. St. 380; and see Northern etc. Railw. (.r. Bastain, 15 Md. 4 4; Mt. Sterling Turup. Co. v. Looney, 1 Met. (Ky.) 550; Neiffer v. Bank of Knoxville. 1 Head, 162; New Orleans Building Co. v. Lawson, 11 La. 34.

4 Walworth County Bank v. Farmers' Loan etc. Co. 14 Wis. 325; Gibson v. Goldthwaite, 7 Ala. 281; Crump v. U.S. Min. Co. 7 Gratt. 352; Hoyt r. Thompson, 5 N. Y. 320; Leggett v. Manuf. etc. Co. 1 Saxt. Ch. 541; 23 Am. Dec. 728.

5 Mitchell v. Deeds, 49 Ill. 416.

6 Life etc. Ins. Co. v. Mech. Fire Ins. Co. 7 Wend. 1. See also Luse v. Isthinus etc. R. R. Co. 6 Oreg. 125; 25 Am. R. 506.

7 Hodge v. Nat. Bank, 22 Gratt. 51; Brouwer v. Appleby, 1 Sand. 158; Olney v. Chadsey, 7 R. I. 224.

8 McEvers v. Lawrence, Hoffm. (N. Y.) 171.

9 Spyker v. Spence, 8 Ala. 333.

10 Union Gold Min. Co. v. Rocky Mt. Nat. Bank, 2 Cold. (Tenn.) 565. 11 American Ins. Co. v. Oakley, 9 Paige, 496. Compare Ashuelot Manuf. Co. v. Marsh, 1 Cush. 507.

12 American Ins. Co. v. Oakley, 9 Paige, 496; Oakley v. Working. men's Ben. Soc. 2 Hilt. 487; Alexandria Canal Co. v. Swan, 5 How. 83. Savings Bank v. Benton, 2 Met. (Ky.) 240.

13 Spalding v. Bank of Susquehanna Co. 9 Pa. St. 28; Green v. Ophir etc. Min. Co. 45 Cal. 522; Hazleton v. Union Bank, 32 Wis. 34; and compare Burnham v. Thurman, 2 Jones & S. 536; Lime Rock Bank v. Hewitt, 52 Me. 531.

14 See Currie v. Mut. Ins. Co. 4 Hen. & M. 315.

15 McCullough v. Annapolis etc. R. R. Co. 4 Gill, 58.

16 Sargent v. Webster, 13 Met. 497. Compare Macbean v. Irvine, 4 Bibb, 17; Ridgway v. Farmers' Bank, 12 Serg. & R. 256.

17 Smith v. Smith, 62 Ill. 433.

18 State v. Cutler, 13 Kan. 131.

§ 145. Duties, etc., of secretary.-The secretary is the servant of the directors of a corporation, who are presumed to have control over him as such. But he is not a "servant" within the meaning of a statute declaring stockholders liable for debts of the corporation owing to their "laborers, servants, and apprentices." 2 The scope of such a statute is to protect those engaged in manual labor.3 The secretary is the proper person to have the custody of and to prove the books of the company.4 And the fact that he is a stockholder does not render him incompetent to identify the corporate books and records.5 The possession of the corporate books by the secretary is the possession of the company, although they were bought by him and paid for with his own funds. He cannot retain them after he ceases to be secretary, and he has no lien on them for the purchase-money, or for his services as secretary, or for the use and occupation of his premises by the company while he was secretary. The secretary has not implied power to bind the company by a draft for money.