indeed, where the record exists, it should be produced, as being the best proof; but if there be no record, or if the suit be against the corporation, and, upon notice, the corporation neglects or refuses to produce its books, other evidence is admitted.1

7. Unless the act of incorporation expressly prescribe the contrary, as has been before considered, the duly authorized agents of corporations, as of natural persons, may, within the scope of their authority, bind them by simple as well as by sealed contracts; and that, too, in both cases, whether authorized by deed or vote; and from their acts or conduct, as well as from the acts or conduct of the agents of natural persons, implications may be made, either for or against their constituents. It may hence be readily inferred that in case of a deed poll to a corporation, made through the intervention of a duly authorized agent, in order to bind the corporation by the stipulations of the deed, it is not necessary to show that it has been formally accepted by them, but a delivery to and an acceptance of the deed by the agent, is a delivery to and acceptance by the corporation.'

$8. 1. When the agent of a corporation would bind by a contract he makes in its behalf, the corporation only, his proper mode is, in the body of the contract, to name the corporation, as the contracting party, and to sign as its agent or officer; and this is the mode in which bank bills and policies of insurance are ordinarily executed. The secretary of a bridge

12 Serg. & Rawle (Penn.) R. 306; Scott v. Warren, 2 Fairf. (Me.) R. 227; Cram v. Bangor House, 3 Fairf. (Me.) R. 354; Russell v. McLellan, 14 Pick. (Mass.) R. 63; Middlesex Husbandman, &c. v. Davis, 3 Metcalf (Mass.) R. 133; Davidson v. Borough of Bridgeport, 8 Conn. R. 472. See, too, United States v. Kirkpatrick, 9 Wheat. R. 720; Same v. Van Zandt, 11 Wheat. R. 184; 1 Phillips Evid. ch. 5, § 2, 326; Bassett v. Marshall, 9 Mass. R. 312.

'See in this chap. supra, § 3, parts 1 and 2.

Chap. VIII. § 7, 8.

3 Western Railroad v. Babcock, 6 Met. (Mass.) R. 356, 357.

company signed his name to a lottery ticket as the secretary of the corporation, expressly contracting on its behalf, and it was held, that he was not personally responsible.' And on a note in which the president and directors of a glass company promise to pay, and which was signed by one as president, it was held, that he was not liable.' And though the words of the note were, "I promise," yet it being signed by the agent for the company, it was held to be the note of the company and not of the agent. Where, too, a note was made payable to one without naming his capacity, who indorsed his name thereon as agent, he was considered not liable in favor of one who knew that the indorser acted as agent, and that the note was given by the company for their proper debt, though it was said he might be in favor of a third person; such an indorsement being regarded as made for the purpose of transferring the interest in the note merely, and equivalent to a declaration that the indorser would not be personally responsible.* Again, where the rector and wardens of a church, pursuant to a vote of the proprietors, borrowed money for the use of the proprietors, and subscribed in their capacity a note for it, and the old act being repealed, a new corporation of the same name was created, which assumed the debts of the old one, it was decided that the new corporation was answerable on the note, or at least on the money counts. And the proceedings of the vestry of a church pledging the corporate funds to persons who might perform work or furnish materials for it, can impose no personal liability upon the members of the vestry, even though

'Passmore v. Mott, 2 Binney R. 201.

Mott v. Hicks, 1 Cowen (N. Y.) R. 513; see, too, Shotwell v. McKeown, 2 South. (N. J.) R. 828; Bowen v. Norris, 2 Taunt. R. 374; Shelton v. Darling, 2 Conn. R. 435; Brockway v. Allen, 17 Wend. (N. Y.) R 40; Pitman v. Kintner, 5 Blackf. (Ind.) R. 250.

'Emerson v. Providence Hat Company, 12 Mass. R. 237; Long v. Coburn, 11 Mass. R. 97; Despatch Line of Packets v. Ballamy Manuf. Co. 12 New Hamp. R. 205.

• Ibid.

• The Episcopal Charitable Society v. The Episcopal Church in Dedham, 1 Pick. (Mass.) R. 372.

3

the members have subsequently manifested an impression that they had assumed a personal responsibility. In another case, one describing himself in the body of a note as treasurer of a corporation, signed it as treasurer, the note being given for a debt due the payee by the corporation; and an action against him personally was not maintained. In Sterling v. The Marietta and Susquehannah Trading Company it was also decided, that a receipt signed by the president of a bank, without the addition of his capacity, for money "to be deposited in the bank to the credit of Ostehank," (the person to whom the receipt was given,) was evidence, though not conclusive, from which the jury might presume that the money went to the use of the bank. And where, on a sale of real property by a corporation, a memorandum of the sale was signed by the parties, in which it was stated that the sale was made to the purchaser, and that he and C. D. "mayor of the corporation, on behalf of himself, and of the rest of the burgesses and commonalty of the borough of Caermathen," do mutually agree to perform and fulfil on each of their parts, respectively, the conditions of sale, which was signed by the purchaser, and by "C. D., mayor," it was held, that the agreement was that of the corporation, and not of the mayor personally; and that consequently the mayor, as such, could sue thereon.*

Indeed, it would seem that the acts and contracts of agents do not derive their validity from professing, on the face of them, to have been done in the exercise of their agency. In the more solemn exercise of derivative powers, as applied to the execution of instruments known to the common law, rules of form have been prescribed. But in the diversified exercise of the

1 Vincent v. Chapman, 10 Gill & Johns. (Md.) R. 280, 282. Mann v. Chandler, 9 Mass. R. 335.

11 Serg. & Rawle (Penn.) R. 177. See State Bank v. (III.) R. 45.

Kain, 1 Bre.

⚫ Bowen v. Norris, 2 Taunt. R. 374. See Kennedy v. Gouveia, 3 Dowl. & Ryl. 503; Hopkins v. McLaffey, 11 Serg. & Rawle (Penn.) R. 129; Mayor v. Barker, 6 Binn. (Penn.) R. 228, 234; Company, 9 Paige (N. Y.) Chan. R. 188.

Many v. Beekman Iron

duties of a general agent, the liability of the principal depends upon the facts, that the act was done in the exercise, and within the limits, of the powers delegated, and especially, that it was the intent of the parties that the principal, and not the agent, should be bound. In ascertaining these facts, as connected with the execution of a written instrument, it has been held, that parol testimony is admissible. Accordingly where a check was signed by the cashier of a bank, without the addition of the word "Cashier" to his name, dated at the bank, and made payable to its teller, it appearing doubtful upon the face of the instrument whether it was a private or an official act, parol evidence was admitted to show that it was an official act, though the check was credited on the books of the bank to the cashier's private account.' The question in these cases seems to be, as to whom the credit is given.' Where, however, the president of an insurance company, in transacting the business of the company, gave a note in which he described himself as president of the company, the note was considered the note of the president, and not of the company, the addition to his name being regarded as descriptio persona. It would be extremely difficult to reconcile this decision either with principle or authority.

2. To bind a corporation by specialty, it is necessary that its corporate seal should be affixed to the instrument. But a lease to which the corporate seal was affixed, signed by certain persons, who were incorporated by the style of "the trustees of the parish of Newburgh," with their several names,

1 Mechanics Bank v. Bank of Columbia, 5 Wheat. R. 326; Northampton Bank v. Pepoon, 11 Mass. R. 282; and see Farmers & Manufacturers Bank v. Haight, 3 Hill (N. Y.) R. 494, 495; McWhorter v. Lewis, 4 Alabama R. 198.

2 Ib.; Mott v. Hicks, 1 Cowen (N. Y.) R. 536, per Woodworth, J. Barker v. Mechanics Insurance Company, 3 Wend. (N. Y.) R. 98. Authorities above, and Hills v. Banister, 8 Cowen (N. Y.) R. 31; Brockway v. Allen, 17 Wend. (N. Y.) R. 40; Story on Agency, p. 143, 144, 154, and note 1.

See Chap. VII.

was held not vitiated as a corporation act by the several signatures. The corporate seal is the only organ by which a body politic can oblige itself by deed; and though its agents affix their private seals to a contract binding upon it; yet these not being seals as regards the corporation, it is in such case bound only by simple contract.2

3. In the Bank of Columbia v. Patterson's Adm'r.' which was indebitatus assumpsit for work and labor done by the intestate of the defendant in error for the bank, by virtue of an agreement made with him by the duly authorized agents of the corporation under their private seals; the contract being made for the exclusive benefit of the corporation, which had on the faith of it paid money from time to time to the intestate, the Supreme Court of the United States held the action well brought, though Mr. Justice Story, in delivering the opinion of the court, intimates that an action might have lain against the contracting committee personally, upon their express obligation. In Randall v. Van Vechten and others," a case in its facts, similar to that just mentioned, the question, whether the contracting committee were under such circumstances personally liable on their sealed covenant, came directly before the Supreme Court of the State of New York; and it being proved, that the covenantee had recognized the contract as that of the corporation, the court held the committee not liable, upon the express ground that the corporation was

1 Jackson v. Walsh, 3 Johns. R. 225; and see The President, Managers, and Co. of the Berks and Dauphin Turnpike Road v. Myers, 6 Serg. & Rawle (Penn.) R. 12; Clark v. Benton Manufacturing Company, 15 Wend. (N. Y.) R. 256; McDonough v. Templeman, 1 Har. & Johns. (Md.) R. 156.

* Randall v. Van Vechten, 19 Johns. (N. Y.) R. 65, per Platt, J.; Tippets v. Walker et al. 4 Mass. R. 597, per Parsons, C. J.; Bank of Columbia v. Patterson's Admr. 7 Cranch, 304, per Story, J.; Dubois v. Delaware & Hudson Canal Co. 4 Wend. (N. Y.) R. 285; and see Chap. VII.

37 Cranch, 299.

19 Johns. R. 60; and see McDonough v. Templeman, 1 Har. & Johns. (Md.) R. 156.