tion is obviously the proper person to have possession of and to prove the books of the company.' But 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 appointment or election of the treasurer, and the production of the records was refused, 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.2 2. We have seen that, in order to the acceptance of an official bond by a corporation, so that the instrument should bind the sureties, the recording of the vote of acceptance or approval is not essential to its validity, unless the charter, statute, or by-laws, expressly make it so; even though an officer of the corporation be required to keep a fair and regular record of all its proceedings; this provision usually being merely directory. Neither is it indispensable to show a written instrument or vote of acceptance of a charter,* or a written enactment, or repeal of by-laws, on the corporation books; all which may be inferred from the acts of the corporation, through its officers, or otherwise. Upon the same principle, it seems clear that a vote or resolution appointing an agent need not be entered on the minutes or records of the corporation, in order to his due appointment; unless the charter, statute, or by-laws, are not merely direc Silk Company, 3 Metcalf (Mass.) R. 282; Clark v. Benton Manufacturing Company, 15 Wend. (N. Y.) R. 256. 'Smith v. Natchez Steamboat Company, 1 Howard (Miss.) R. 478. "Narraganset Bank v. Atlantic Silk Company, 3 Metcalf (Mass.) R. 282; and see Thayer v. Middlesex Mutual Insurance Company, 10 Pick. (Mass.) R. 326; Clark v. Benton Manufacturing Company, 15 Wend. (N. Y.) R. 256. 'See Chap. VII. See Chap. VII. • See Chap. X. tory in this particular, but render it absolutely essential. The vote of appointment may, therefore, as an appointment of an agent by a natural person, be implied from the permission or acceptance of his services, from the recognition or confirmation/ of his acts, or, in general, from his being held out as an authorized agent of the corporation. "A board," says Mr. Justice Story," may accept a contract, or approve a security by vote, or by a tacit and implied assent. The vote or assent may be more difficult of proof by parol evidence, than if it were reduced to writing. But, surely, this is not a sufficient reason for declaring that the vote or assent is inoperative." The same reason applies as fully to the appointment of an agent by a corporation, or a board acting for it. And, again, the same learned judge, speaking of a cashier of an office of discount and deposit created by the Bank of the U. S. says, "If he was held out as an authorized cashier, that character was equally applicable to all who dealt with the bank, in transactions beneficial as well as onerous to the bank." In the case Dunn v. St. Andrew's Church, it appeared that the plaintiff had performed services as clerk of the church, for which he had received some payment. The records of the corporation contained entries of the payment of money 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. We need hardly add, that if, in such case, the agent is held duly appointed as between the corporation and himself, a fortiori he would be as between the corporation and third persons; though precisely the same principle seems to apply even in favor, as against, the corporation. Indeed, it seems that the same presumptions are applicable to corpora 2 'Bank of the U. S. v. Dandridge, 12 Wheat. 83, and authorities above. * 14 Johns. (N. Y.) R. 118. 3 Bank of the U. S. v. Dandridge, 12 Wheat. R. 89, per Story. J. tions, as to natural persons. Persons acting publicly, as officers of a corporation, are presumed to be rightfully in office; acts done by a corporation, which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter. If a person acts notoriously as cashier of a bank, and is recognized by the directors, or by the corporation, as an existing officer, a regular appointment will be presumed; and his acts, as cashier, will bind the corporation, although no written proof is or can be adduced of his appointment;' for the law will not sanction the fraud of a corporation, sooner than that of an individual." A proprietors' committee having in their behalf entered into a submission of demands to referees under the statute, representing themselves as duly authorized so to do, and the proprietors, having been heard upon the merits before the referees, making no objection to the submission, upon error brought to reverse a judgment rendered on the award, the Court presumed that the committee had due authority, though the want of authority was assigned for error.2 3. It is usually the case, that the charters or incorporating acts of corporations require that officers of great trust, as the cashiers of banks, or the clerks of insurance companies, should give bond with sureties for the faithful performance of their 1 Ibid. 12 Wheat. R. 70, per Story, J.; Union Bank of Maryland v. Ridgeley, 1 Harris & Gill (Md.) R. 392; Barrington and others v. The Bank of Washington, 14 Serg. & Rawle (Penn.) R. 421, per Duncan, J.; Wild v. Bank of Passamaquoddy, 3 Mason C. C. R. 505; Smith et al. v. Governor and Co. of Bank of Scotland, 1 Dow Parl. R. 27; Perkins v. Washington Insurance Company, 4 Cowen (N. Y.) R. 645; Troy Turnpike & Railroad Company v. McChesney, 21 Wend. (N. Y.) R. 296; Warren v. Ocean Insurance Company, 16 Maine R. 439; Davidson v. Borough of Bridgeport, 8 Conn. R. 472; Selma & Tennessee Railroad Co. v. Tipton, 5 Alabama R. 787. Mere general reputation is, however, inadmissible to prove who are the officers or agents of a corporation. Litchfield Iron Company v. Bennett, 7 Cowen (N. Y.) R. 234. It must be coupled with acts of charge and management of the property and concerns of the corporation. Clark v. Benton Manufacturing Company, 15 Wend. (N. Y.) R. 256. duties; and the question immediately arises, whether the giving of the bond with sureties, in such cases, is necessary to their complete appointment as corporate officers and agents. This must depend, in each particular case, upon whether the language of the charter or act of incorporation makes the giving of the bond a condition precedent to the complete appointment and due authorization of the agent, or whether it is in this respect merely directory. And it seems, that where the act of incorporation, charter, or general statute, binding upon a corporation, empowers a board of directors, vested with power to appoint certain officers, to require security of them, that this is merely in affirmance of the common law; and though a by-law requires a certain species of security to be taken by the directors of certain officers on entering on the duties of their office, if a different species of security than that required by the by-law is taken by the directors, and any loss is sustained in consequence, this is a matter entirely between the directors and stockholders, for the failure of duty in the former; and in such a case there seems to have been no question of the due appointment of the officer.1 And in the case of the Bank of the United States v. Dandridge, where it appeared that the directors of the parent bank, empowered to establish offices of discount and deposit, subject to such rules and regulations as they should deem proper, passed a by-law directing "that the cashier of each office shall give bond to the president, directors, and company of the Bank of the U. S. with two or more approved securities, with condition for his good behavior and faithful performance of his duties to the corporation; " and a fundamental article of the constitution of the bank directed "that each cashier or treasurer, before he enters upon the duties of his office, shall be required to give bond, &c. ;" it was held, 2 1 The Bank of Northern Liberties v. Cresson, 12 Serg. & Rawle (Penn.) R. 306. 12 Wheat. R. 64; Marshall, C. J. dissentiente. And see analogous cases. United States v. Kirkpatrick, 9 Wheat. R. 720; United States v. Van Zandt, 11 Wheat. R. 184; Peppin v. Cooper, 2 Barn. & Ald. 436, 437. that a cashier appointed and permitted to act in his office, without giving any such bond, or any bond whatever, was a legal agent of the corporation; that his acts and contracts within the scope of his authority were valid, whether in favor of the bank, or against it in favor of third persons; that the charter and by-laws were directory in this particular, and the taking of the bond not made by them a condition precedent; and that, though the directors might be responsible for their neglect of duty, it was a matter wholly between themselves and the stockholders, and between the latter and the government, as a violation of the charter and by-laws. It is admitted, however, that if the statute had prescribed that the cashier should not be deemed for any purpose in his office, until an approval of his official bond by the proper board, his acts would be utterly void, unless his bond had been given. and approved.' And where an act, "to establish a State Bank," prescribed that the cashier should take an oath to perform the duties of his appointment, the fact that he did not take the oath was held not to prevent a recovery upon his official bond, which admitted that he was cashier, but rather to be a breach of the bond, which stipulated that he should perform all his duties. as cashier. So, too, where by a by-law a corporation required, for their own security, their clerk to be sworn, it was adjudged that they could not avail themselves of his omission to take the oath in defence to an action against them, by one claiming to be a stockholder under a deed recorded by the clerk in his capacity of recording officer of the corporation." $ 4. Though the charter or act of incorporation prescribes the mode in which the officers of a corporation aggregate shall 1 Bank of United States v. Dandridge, 12 Wheat. R. 878, per Story, J. 2 * State Bank at Elizabeth v. Chetwood, 3 Halst. (N. J.) R. 1; and see Hastings v. Bluehill Turnpike Company, 9 Pick. (Mass.) R. 80; Panton Turnpike Company v. Bishop, 11 Vermont R. 198. 3 |