certainly sustained by the before mentioned construction of the Supreme Court of New York; and, we are also sustained, in the opinion, by the authorities in relation to corporations composed of several classes, or integral parts, which we shall next consider.

9. We have before stated, that aggregate corporations are sometimes composed of several distinct parts or classes of persons, which are called integral parts; neither of which is a distinct corporation. According to the authorities afforded by the English books relating to municipal corporations, there must be present at a corporate assembly, (besides the president,) a majority of each integral part, if composed of a definite number, and not merely a majority of the surviving or exist

to constitute a good assembly of the select vestry so appointed, there must be present a majority of the members (viz. fourteen) named in the appointment; and therefore, that a rate for the repair of the church, made at a meeting where there was not such a majority, was illegal. Blacket v. Blizard, 9 B. & C. 851.

Where an authority is confided to several persons for a private purpose, all must join in the act. A controversy between G. and M. was submitted to five arbitrators; and the submission did not provide that a less number than the whole might make an award. All the arbitrators met, and heard the proofs and allegations of the parties, but four only agreed on the award made. Whether the award was binding, was the question before the court. No case was cited where the question had been directly decided. The court were, however, satisfied, that, as a submission to arbitrators is a delegation of power, for a mere private purpose, it is necessary that all the arbitrators should concur in the award, unless otherwise provided by the parties. Thompson, J., who gave the opinion, said; "In matters of public concern, a different rule seems to prevail; there the voice of the majority shall govern." Green v. Miller, 6 Johns. (N. Y.) R. 38. In the case of Grindely v. Barker, (1 Bos. & Pul. 236,) Chief J. Eyre says, "It is now pretty well established, that where a number of persons are entrusted with power, not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole." See Orvis v. Thompson, 1 Johns. (N. Y.) R. 500; Rex v. Courtenay, 9 East, 246.

Ante, p. 75, 76.

ing members of each class. Indeed, if there be not a surviving majority of the constitutional numbers, no corporate assembly, say those authorities, can be formed, and the functions of every meeting in which that class ought to participate are suspended; and according to some authorities, the corporation is even dissolved. The rule, that a majority of every integral part of a corporation, consisting of a definite number, must be present, was recognized in the case of St. Mary's Church in Pennsylvania, wherein it was decided, that in corporations, where there are different classes, the majority of each class must consent before the charter can be altered, unless there is a provision in the charter respecting alterations. In this case, Duncan, J. lays down the law as follows: "When legally assembled, the majority of voices govern; but every integral part must be present at a corporate assembly by a majority at least of its proper members, though the major part of all present, when assembled, are competent to do a corporate act." In a case where a charter of a bank required seven directors to make a quorum, and declared the president to be entitled to the powers of a director, a meeting composed of the president and six directors, was treated as a sufficient board for the transaction of business."

2

When a corporation consists of several integral parts, one of which is indefinite, if any number of persons composing the latter, however small, are present after having been duly summoned, it is sufficient. The distinction is between a definite and an indefinite number. In the former case a majority must be present; whereas in the latter a majority of those present may act, whether a majority of the whole body or not.*

1 Rex v. Lathrop, 1 W. Bla. 471; Rex v. Bellringer, 4 T. R. 823; Rex v. Miller, 6 T. R. 278; Rex v. Morris, 4 East, 26; Rex v. Thornton, 4 East, 307; Rex v. Devonshire, 1 B. & C. 614; Rex v. Hill, 4 B. & C. 441; Willcock on Mun. Corpor. 62. And see Mr. Cowen's note to Ex parte Willcocks, 7 Cowen (N. Y.) R. 410.

St. Mary's Church in Philadelphia, 7 Serg. & Rawle (Penn.) R. 517. * Bank of Maryland, &c. v. Ruff, 7 Harr. & Gill (Md.) R. 448.

• Willcock on Mun. Corpor. 66; The King v. Whitaker, 9 B. & C.

$10 What we have said respecting the number required to be present in different corporations in order to do corporate acts, is confined to corporations whose charter or constitution is silent upon the subject. The rules we have stated as being the common law, may be, and frequently are, superseded by the express provisions of the charter; and there have been provisions of this nature introduced into charters, that have been the source of much discussion and controversy.' It was considered in England at one time, that the phrase "for the time being" referred to the state of the corporation from time to time, and that when an act was to be done by a definite class or the majority of them for "the time being,” it required only the presence of the majority of the surviving members at that time, although less than the constitutional number. The effect of this would be, that if the corporation ought to consist of twelve aldermen and twelve burgesses, an act, required to be done by a majority of each class for," the time being," might be done by two aldermen and two burgesses, if the number happened to be reduced to three members of each class. The law on this point is now, however, well settled in England; and the words "for the time being" are construed, (rightly, says Mr. Willcock,) to apply to the persons who shall from time to time be the members of such classes; so that such an act cannot be done by less than seven aldermen and seven burgesses, although at that time they are all who survive.' And it is immaterial into what combination of words this phrase is introduced, for a majority of the constitutional number of each definite class is requisite, if the charter direct the act to be done by the mayor, aldermen, bailiffs, capital and other burgesses, and inhabitants "for the time being" assembled, or the greater part of them by the majority of voices "of them so assembled." 3

1 See note to Ex parte Rogers, 7 Cowen, (N. Y.) R. 530.

* Willcock on Mun. Corp. 63; and see Rex v. May, 4 B. & Adol. R. 843; Rex v. Morris, 4 East, 26; Rex v. Bellringer, 4 T. R. 823: Rex v. Bower, 2 D. & R. 770; Rex v. Williams, 3 D. & R. 81; S. C. 1 B. & C. 614. Rex v. Bower, 2 D. & R. 770; S. C. 1 B. & C. 498.

The words "surviving and remaining" might, says Mr. Willcock, be imagined to refer to the existing number of members in a definite class, and to derive greater force from the presence of a majority of those surviving and remaining being required at elections to supply vacancies in the same class, when from necessity it must consist of at least one less than the constitutional number. But the implication from this even is not so strong as to induce the courts to admit a violation of the rule; and therefore if there ought to be twelve capital burgesses, and the charter directs, that when a capital burgess is dead or removed, the other capital burgesses, "at that time surviving and remaining," or the greater part "of the same,” shall elect another to be a capital burgess, the election is void, unless seven capital burgesses be present.'

The construction of a charter may sometimes require the assembly to consist of more than a simple majority of the select class; for it was held, that when the corporation consisted of a mayor and eleven aldermen, and the charter directed that two aldermen should be nominated, of whom one should be elected by "the then residue of the aldermen, or the major part of them," there must at least be present five aldermen (the majority of nine, the residue of the constitutional number after two had been nominated,) besides the mayor and the two nominees, making altogether seven aldermen instead of a simple majority of six. But perhaps, says Mr. Willcock, it is not necessary, that the nominees should be present, and the mayor and five, or at least six, aldermen may proceed to an election, if they nominate two of those who are absent. if the charter plainly and explicitly empower a less number to make an election, the court cannot assume to alter the constitution; and so if the charter require a greater number than the majority.

4

1 Rex v. Devonshire, 1 B. & C. 617; S. C. 3 D. & R. 81.

2 Rex v. Smith, 2 M. & S. 579.

Willcock on Mun. Corpor. 65.

• Rex v. Hoyte, 6 T. R. 432; Rex v. Richardson, 1 Burr. 541.

• Palmer v. Doney, 2 Johns. (N. Y.) C. R. 346.

But

2

The words, "a majority of the directors present shall be competent, &c.," in the 15th section of the act incorporating the Utica Insurance Company, were considered by the Supreme Court of the State of New York as not amounting to a declaration, that a minority, however small, might decide; and that it left the number competent to form a quorum, to be determined by the rules of the common law.' In Rex v. Beeston, a statute had authorized the church wardens and overseers of the poor to make certain contracts; they had all joined, with the exception of the defendant, one of the overseers, who refused to join, and made a contract, and the money was in the defendant's hands to be paid upon it. On a motion for a mandamus to compel him to pay, he insisted that he was not bound, inasmuch as the statute required the contract to be made by the church wardens and overseers, without saying, "or a majority ;" and that, therefore, they should all concur; and that he having dissented, the contract was void. But the motion was granted. It has been decided in New York, that when the charter prescribes, that every act of the corporation shall be done by the president and at least four directors, the president alone could not legally accept an abandonment." The agents of a corporation can never bind it, if they do not act pursuant to the requisites of the charter or incorporating act.4

$11. In the case of King v. Norris, at one of the assemblies of the corporation of Newcastle, (where the presence of the mayor was necessary,) as soon as the lists of certain persons were given in as candidates for freemen, and before they were admitted to their freedom, the mayor dissolved the assembly, who, notwithstanding, proceeded to admit them. The court

'Ex parte Willcocks, 7 Cowen (N. Y.) R. 409.

2 3 T. R. 492.

Beatty v. The Marine Insurance Company, 2 Johns. (N. Y.) R. 109. Head and Amory v. Providence Insurance Co. 2 Cranch R. 266; and see ante, Chapter relating to the power of agents to make contracts.

1 Barnard R. 385.