stance should be contained in the notice; otherwise, much fraud may be practised and great injustice committed.'

We have already had occasion to remark, that private corporations are not generally as much restricted in the conduct of their affairs in regard to locality, as cities and other political and municipal corporations. The former may with propriety hold their meetings out of the town in which they are established, or transact their ordinary business, provided the place of meeting is not unreasonable, and has been appointed with no sinister and improper design, and the members are duly notified. Indeed, it has been expressly decided, that the directors of a manufacturing company incorporated by the legislature of Connecticut, who were authorized to appoint officers, establish by-laws, &c., might meet in the State of New York, and there appoint a secretary. In this case, the manufactory was located in the town of Greenwich, bordering upon New York. The court were clearly of opinion, that the legislature of Connecticut did not mean it to be understood, by implication, that the directors might sit and vote on one side. of the line, but if they went on the other, the proceedings should be void.

Where according to the laws and usages of a society, their meetings for the transaction of business are opened by a presiding officer, who holds his office for a fixed term, and no meeting is considered duly organized unless opened by him, and such officer is prevented by the violence of members of the association from discharging his duty at the accustomed place of meeting, he and such of the society as think proper to accompany may retire to some convenient place adjacent, and there open the meeting; and their acts and doings will be obligatory upon the society, although those who thus withdraw are a minority of the members of the society; it being a principle of the common law, that where a society is composed of

'See Willcock on Mun. Corpor. 51.

* Ante, p. 80.

'M'Call v. Byram Man. Co. 6 Conn. R. 428.

an indefinite number of persons, a majority of those who appear at a regular meeting of the society constitute a body to transact business.' So a corporation may transact any business at an adjourned meeting, which they might have transacted at the original meeting."

§ 7. Corporations are subject to the emphatically republican principle, (supposing the charter to be silent,) that the whole are bound by, the acts of the majority, when those acts are conformable to the articles of the constitution. The general rule upon this subject has been thus very correctly laid down by Gibson, J., in the Supreme Court of Pennsylvania; "The fundamental principle of every association for the purposes of self-government is, that no one shall be bound except with his own consent expressed by himself or his representatives; but actual assent is immaterial, the assent of the majority being the assent of all; and this is not only constructively but actually true; for that the will of the majority shall in all cases be taken for the will of the whole, is an implied but essential stipulation in every compact of the sort; so that the individual who becomes a member assents, beforehand, to all measures that shall be sanctioned by a majority of the voices."" "It seems," says Mr. Kyd, "to be the first suggestion of reason, that an act done by a simple majority of a collective body of men, which concerns the common interest, should be binding on the whole;" and this he adds, "is the principle of the rule adopted by the common law of England, with respect to aggregate corporations. Notwithstanding that a by-law, or rule

1 Field v. Field, 9 Wend. (N. Y.) R. 394.

* Warner v. Mower, 11 Vermt. R. 385.

'St Mary's Church in Philadelphia, 7 Serg. & Rawle (Penn.) R. 517. And see the doctrine recognized in Presbyterian Congregation v. Johnston, 1 Watts & S. (Penn.) R. 9.

1 Kyd, 422; and see 2 Kent Comm. 236. In general it would be the understanding of a plain man, that when a body of persons is to do an act, a majority of that body would bind the rest. Per Lawrence, J., in Withnell v. Gartham, 6 T. R. 388; and see case of Wadham College, Cowp. 377;

of a corporation, requires that certain corporate acts shall be in a prescribed form, and that no alteration of such law or rule shall be made, except by a vote of two thirds of the members, yet the same body by which the by-law, or rule was made, may repeal it by a majority; and may, without such repeal, pass the corporate act by a majority, not in the prescribed form.' The rule has been so far extended, that if a religious society purchase lands, a majority of them have a right to control their use and occupation, notwithstanding a supposed error in doctrine shown to be a departure from the belief of a majority at the time of the purchase. The presumption is that all the members present who observe silence, when a question is put, concur with the majority of those who actually vote; that is, if the question be put audibly and explicitly. What is meant by the majority, whether it means the concurrence of the major part of those who happen to be present at a regular corporate meeting, or whether it means a concurrence of the majority of the major part of the whole body, we shall next proceed to consider.

$ 8. There is this distinction between a corporate act to be done by a definite number of persons, and one to be performed by an indefinite number. In the first case, it is to be observed, that a majority is necessary to constitute a quorum, and that no act can be done unless a majority be present; in the latter, a majority of any number of those which appear

Rex v. Beeston, 3 T. R. 592. See Field v. Field, 9 Wend. (N. Y.) R. 394. The Attorney-General, (Legare) in Louisville Railroad Company v. Lester, 2 How. (U. S.) R. 522, contends, very justly, that the rule is founded in the law of nature, inasmuch, as if unanimity were demanded, it would be impossible for any corporation to will or act. He also, in confirmation of the rule, cites Savigny's System of the Roman Law as it now is, vol. 2, p. 329, sect. 97, cites L. 160, sect. 1, reg. jur., Dig. 50, 17. Refertur ad universos quod publicé fit per majorem partem.

1 Commonwealth v. Mayor of Lancaster, 5 Watts (Penn.) R. 152.

2 Keyser v. Stanisber, 6 Ohio R. 363.

3 Commonwealth v. Green, 4 Whart. (Penn.) R. 531.

may act. Thus, the act incorporating the Utica Insurance Company, provided that the affairs and concerns of the corporation should be managed by nine directors. At a meeting purporting to be a meeting of the president and directors of the company, but at which no one was present beside the president and one of the directors, the president being also a director, they appointed themselves and another of the directors to act as inspectors of elections. The question was, whether those three were thus authorized to preside at an election. It was said by the court, "Whether we are to regard this as an electing power, or as part of the business of the directors in their regulations of the election; and (among other regulations) a designation of the persons who shall receive and canvass the votes; in either view, we think there must be at least a majority of the directors present, to constitute a board. We do not understand the words, "a majority of the directors present shall be competent, &c.," as amounting to a declaration that a minority, however small, may decide. It leaves the number competent to a quorum, to be determined by the rules of the common law, which in no case of this kind is satisfied with less than a majority."

1 Ex parte Willcocks, 7 Cowen (N. Y.) R. 402. The following English authorities may be deemed to have a bearing upon this point: Rex v. Whittaker, 9 B. & C. 648. In this case three assessors were appointed under the act for draining, but only two signed the appointment, though the third was present at all their meetings. Held, that the concurrence and signature of the majority was sufficient. Lord Tenterden, after consulting with the other judges, added, "Perhaps it may not be necessary that all should meet; certainly a majority must meet. In this case all the three had met. Where it is granted by charter that a corporation shall have so many aldermen and so many capital burgesses, and that when one of the latter shall die, depart, or be removed, another shall be elected in his place by the "mayor and aldermen and other capital burgesses then surviving or remaining, or the greater part of them; the election must be made by a majority of the full numbers of aldermen and of capital burgesses; a mere majority of members of both bodies, who happen to survive, is not sufficient." Rex v. May, 4 Barn. & Adol. 843, Per Lord Denman." There may be distinctions drawn between this case and Rex v. Devonshire, but they are the same in

It is very clearly the opinion of the court in the above case, as appears by the quotation just offered, that where a corporate act is to be done by a definite number of persons, a majority, at least, must be present; and the court distinguished such a case from the case of an indefinite number. In the latter case the court admit that a majority of those present are competent to act, however few in number. The distinction certainly seems to be warranted by the authorities, though, according to Mr. Kyd's construction, it is not. That author lays down the following proposition; "At common law, independently of any specific constitution, when the power of acting is entrusted to any specific number, whether definite or indefinite, any number of the whole body, however minute, is sufficient to form a legal assembly, if all be properly summoned to attend." He instances the House of Commons composed of 558 members, and says 40 form a house; and he then adds, "any number less than 40 would do so too, were there not a standing order that no business shall be agitated unless that number be present." Now we are inclined to think, that if there was no such standing order, it would be necessary that a majority of the 558 should convene.' In this opinion we are

principle." Where a hospital for the relief of poor people is duly incorporated, and consists of a master and twelve poor brethren, and the advowson of a living is conveyed to them, to hold to the use of the master and brethren, and their successors forever, the right to nominate to the living, belongs to the majority of the entire body of master and brethren; and the master's concurrence in the act of the majority is not necessary. Regina v. Kendall, 1 Adol. & Ell. 364. An act of Parliament directed that the commissioners under a paving act, or the major part of them, assembled at any meeting, not being less than thirteen, might, by writing under their hands, appoint a treasurer; and it was decided, that an appointment of a treasurer, signed by a majority of the seventeen commissioners present at a meeting was valid, and that it need not be signed by thirteen. Treasurer to the Commissioners, &c., v. Town of Woolwich, 7 B. & Cress. R. 346; and 14 Eng. Com. Law R. 52.

1 In a late case in England, where commissioners for building and enlarging churches, appointed, pursuant to statute, twenty-six persons, to be a select vestry, for the care and management of a church; it was held, that in order