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 the modern cases show an increased liberality on this subject. For a corporation to *293 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 coporate 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 of incorporation. The power of election, or the

Rawle, 12. Woolwich v. Forrest, Pennington's Rep. 115. Inhabitants v. String, 5 Halsted's Rep. 323. First Parish in Sutton v. Cole, 3 Pick. Rep. 232. Angell & Ames on Corporations, 60, 61.

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

b Rex v. Varlo, Cowp. Rep. 248. 1 Kyd on Corp. 308. 400. 424. 1 Blacks. Com. 478. The King v. Bellringer, 4 Term Rep. 810. The King v. Miller, 6 Term Rep. 268. The King v. Bower, 1 Barnw. & Cress. 492. Rex v. Whittaker, 9 B. & Cress. 648. Ex parte Wilcocks, 7 Cowen's Rep. 402. Field v. Field, 9 Wendell's Rep. 394. 403. Gibson, Ch. J. in St. Mary's Church, 7 Serg. & Rawle, 517. See the subject of the legality

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.a But it seldom happens that an opportunity is afforded for the applica

tion of this principle, because the power of election 294* must be exercised under the modifications of the

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 quali fications of the electors. If this be not done to the requisite extent in the act or charter creating the corperation, 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.b

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 spe cial 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 mero 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' Rep. 466. Green v. Miller, 6 Johns. Rep. 38. Vide Infra, p 633. On a reference to three arbiters if all meet, the award of two is valid. Meiklejohn v. Young, Stuart's Lower Canada Rep. 43. But this is contrary to the general rule.

Hicks v. Town of Launceston, 1 Rol. Atr. 513, 514. 8 East's Rep. 272. n. S. C.

b2 Kyd on 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 Barm. & Cress. 781. Lovell v. Westwood, 2 Dow & Clarke's P. C. Rcp. 21. There is this distinction on the subject, that if the power of making by Jews be committed to the corporate body at large, they may delegate that power to a select

It was decided, in the case of Newling v. Francis, that when the mode of electing corporate officers was not regulated by charter or prescription, the corporation might make by-laws to regulate the elections, provided they did not infringe the charter. And in the case of The Commonwealth of Pennsylvania v. Woelper, it was held, that a corporation might, by a by-law, give to the president the power of appointing inspectors of the corporate elections, and also define by by-laws the nature of the tickets to be used, and the manner of voting. All such regulations rest in the discretion of the corporation, provided no chartered right or privilege be infringed, or the law of the land violated. It is settled, that a by-law cannot exclude an integral part of the electors, nor impose upon them a qualification inconsistent with the charter, or unconnected with their corporate character. Though in

the case of elections in public and municipal corporations, and in all other elections of a public nature, every vote must be personally given ;e yet, in the case of monied corporations, instituted for private purposes, it has

been held, *that the right of voting by proxy might *259 be delegated by the by-laws of the institution when the charter was silent.f

body representing them; but if the power be given to a select body, they cannot delegate that power.

Term Rep. 189.

See, also, Rex v. Spencer, 3 Burr. Rep. 1827. 2 Kyd on Corp. 26— 31. King v. Westwood, 7 Bingham's Rep. 1.

3 Serg. & Rawle, 29.

a Rex v. Spencer, 3 Burr. Rep. 1827. The general law on the subject of valid by-laws, is well digested in 1 Woodd. Lec. 495-500. No director can be excluded by the board of directors of a banking institution, from inspecting the books of the bank, and the court will. in a proper case, enforce the right by mandamus. It must, however, be in a case of a clear right, and for some just or useful purpose. The People v. Throop, 12 Wendell's Rep. 183. Hatch v. City Bank of New-Orleans, 1 Robinson's Louis. Rep. 470. The right in this last case was considered as belonging to the individual stockholders.

• Case of the Dean and Chapter of Fernes, Davies' Rep. 129. Attorney General v. Scott, 1 Vesey, 413.

The State v. Tudor, 5 Day's Rep. 329. In New-York, (R. S. vol. i

It is a question not definitely settled, whether the officers of a corporation, who are directed to be annually elected, can continue in office after the year, and `until others are duly elected, in cases where the time of election under the charter has elapsed, either through mistake, accident, or misfortune, and there is no provision in the charter for the case. In the case of public officers who are such de facto, acting under color of office by an election or appointment not strictly legal, or without having qualified themselves by the requisite tests, or by holding over after the period prescribed for a new appointment, as in the case of sheriffs, constables, &c.; their acts are held valid as respects the rights of third persons who have an interest in them, and as concerns the public, in order to prevent a failure of justice.a

604.) at the election of corporate officers in corporations of a private nature, except library, religious and monied corporations, stockholders may vote by proxy. In Phillips v. Wickham, 1 Paige's Rep. 593, the chancellor doubts the validity of the right of voting by proxy, when the power is not given, either expressly or impliedly, in the act creating the institution. And in Taylor v. Griswold, 2 Green's N. J. Rep 223, in the supreme court of New-Jersey, after a full and learned discussion, it was held to be a principle of the common law, that where an election depended upon the exercise of judgment, the right could not be deputed; and that it required legislative sanction, before any corporate body could make a valid by-law authorizing members to vote by proxy. The authority of the case of the State v. Tudor, may, therefore, be considered as essentially shaken. The King v. Lisle, Andrews Rep. 163. The People v. Collins, 7 Johns. Rep. 549. Jones v. Gibson, 1 N. H. Rep 266. Johnston v. Wilson, 2 Ibid. 202. Anon., 12 Mod. Rep. 256. In the matter of the M. and H. Railroad Co., 19 Wendell, 135. 145. Plymouth v. Painter, 17 Conn Rep. 585. The State v. Allen, 2 Iredell's N. C. Rep. 183. Sprague v. Bailey, 19 Pick. Rep. 436. In this last case, it was held that a collector of taxes was not responsible for the regularity of the town meeting, or the validity of the votes at the meeting at which the tax was granted. It is a usual and wise provision in public charters, that the officers directed to be annually appointed, shall continue in office until other fit persons shall be appointed and sworn in their places. This was the case in the charter granted to the city of New-York, in 1686, and again in 1730. By the English statute of 1 Victoria, ch. 78, før the regulation of municipal corporations, it was declared that the election of persons to

a

This general principle has been applied to the officers of a private monied corporation, so far as concerns the rights of others, and the sounder and better doctrine, I apprehend to be, that where the members of a corporation are directed to be annually elected, the words are only directory, and do not take away the power incident to the corporation to elect afterwards, when the annual day has, by some means, free from design or fraud, been passed by.b

*296

*The statute of 11 Geo. I. c. 4., was made expressly to prevent the hazard and evils of a dissolution of the corporation, from the omission to elect on the day; and it seems to admit of a question whether the statute was not rather declaratory, (for so it has been called,) and introduced to remove doubts and difficulty. The election,

corporate offices should not be questioned for want of title in the persons presiding at such elections, provided such persons were in actual possession of, and had taken upon themselves the execution of the duties of such office.

Baird v. Bank of Washington, 11 Serg. & Rawle, 411. Bank of U. S. v. Dandridge, 12 Wheaton, 64. Lehigh Bridge Co. v. Lehigh Canal Company, 4 Rawle, 1.

Hicks v. Town of Launceston, 1 Rol. Abr. 513. Foot v. Prowse, Mayor of Truro, Str. Rep. 625. 3 Bro. P. C. 167. S. C. The Queen v. Corporation of Durham, 10 Mod. Rep. 146. The People v. Runkel, 9 Johns. Rep. 147. Trustees of Vernon Society v. Hill, 6 Cowen's Rep. 23. M'Call v. Byram Manufacturing Co., 6 Conn. Rep. 428. Nashville Bank v. Petway, 3 Hump. Tenn. Rep. 522. But see Rex v. Poole, 7 Mod. Rep. 195. Cases temp. Hardw. 20. 2 Barnard's Rep. K. B. 447. S. C. Contre; and the opinion of the chancellor, in Phillips v. Wickham, 1 Paige's Rep. 590, seems also to be contra. In the case of Rex v. Poole, (Cases temp. Hardw. 20.) Lord Hardwicke speaks doubtfully of the common law on this point; though he refers to the case of Landsdown, in Roll's Abridgement, where an election eight days after the charter day was held good, for that the day was only directory. But he admitted, that the mention of hours on the election days was merely directory, and not restrictive. In the case Ex parte Heath and others, 3 Hill, 42, it was held that where a statute required an official act to be done by a given day, for a public purpose, it was merely directory as to time, and the act done on a suc. ceeding day was held valid.

The King v. Pasmore, 3 Term Rep. 238. 245, 246. By the N. Y. Re