required by the act to be done in futuro, to entitle it to corporate powers; but not where the corporation is declared to be such by statute, and nothing is required to be performed to give effect to the act incorporating it.' To prove the acts of a corporation, necessary to be done in order to their corporate existence, the books of the corporation, proved by the clerk or secretary, are competent evidence. Producing the books showing the election of the officers, together with the affidavit required by the act of incorporation, has been held sufficient prima facie evidence to prove that all the previous steps required were taken. It would be a very dangerous doctrine to the numerous corporations every day created, that at any distant day, at which a controversy might arise with them, they should be obliged to produce the advertisement calling the meeting which organized them. If charter commissioners are directed to ascertain the performance of a condition precedent to incorporation, and they declare it, though falsely, to have been performed, it shall be deemed true until the sovereign power interposes. A wrongdoer, sued by the corporation, cannot show the falsity of such declaration, for the purpose of defeating the suit of the corporation. And indeed when a corporation has gone into operation, and rights have been acquired under it, every presumption should be made in favor

'Fire Department v. Kip, 10 Wend. (N. Y.) R. 269; Bank of Auburn v. Aiken, 18 Johns. (N. Y.) R. 137; Onondaga Co. Bank v. Carr, 17 Wend. (N. Y.) R. 443.

* Wood v. Jefferson County Bank, 9 Cow. (N. Y.) R. 194.

Grays v. Turnp. Co. 4 Rand. (Va.) R. 578; King v. Mothersell, 1 Stra. 93; 12 Vin. Abr. Tit. Evid. 90, pl. 16; 2 Camp. N. P. R. 101; Turnp. Co. v. M'Kean, 10 Johns. (N. Y.) R. 156; Owings v. Speed, 5 Wheat. R. 424; Hagerstown Turnp. Road Co. v. Creeger, 5 Har. & Johns. (Md.) R. 122; Bank of Michigan v. Williams, 5 Wend. (N. Y.) R. 478, authorities cited by the counsel.

Tar River Nav. Co. v. Neal, 3 Hawks (N. C.) R. 520; and see Hamtranck v. Bank of Edwardsville, 2 Missouri R. 169; Hughes v. Bank of Somerset, 5 Litt. (Ky.) R. 47; Searsburgh Turnp. Co. v. Cutler, 6 Vermont R. 315; and see post, Ch. XXI. § 8.

of its legal existence.' Where a cognizance, mortgage, note, or other instrument is given to a corporation, as such, the party giving it is thereby estopped from denying the corporate existence of the corporation, and no further proof thereof is necessary until such proof is rebutted. The mere indorsement of a bill of exchange to a bank does not, however, in Illinois admit that the bank is a corporation; and in New York, by the course of recent decisions, it would seem that the mere fact, that, in a contract with a joint stock company, a party has designated it by a name which is appropriate to a corporate body, does not dispense with proof of incorporation, unless it be distinctly stated in the contract, that the company is an incorporated company. A judgment in favor of such company will, however, estop the defendant from denying its corporate existence, in an action on such judgment, or in a suit on the recognizance of bail, either in the original action or in error.

It cannot be shown in defence to the suit of a corporation, that the plaintiff's charter was obtained by fraud; nor es

1

Hagerstown Turnp. Road Co. v. Creeger, 5 Har. & Johns. (Md.) R. 122; Farmers & Mechan. Bank v. Jenks, 7 Met. Mass. R. 592; and see this matter considered, ante, Chap. II. § 3, § 7, and § 8.

'Henriques v. Dutch West India Co. 2 Ld. Raymd. 1535.

Den v. Van Hauten, 5 Halst. (N. J.) R. 270.

Congregational Society v. Perry, 6 New Hamp. R. 164; All Saints Church v. Lovett, 1 Hall (N. Y.) R. 191; John v. Farmers and Mechanics Bank, 2 Blackf. (Ind.) R. 367.

Dutchess Cotton Manuf. Co. v. Davis, 14 Johns. (N. Y.) R. 245, Thompson, C. J.; Hamtranck v. Bank of Edwardsville, 2 Missouri R. 169; Hughes v. Bank of Somerset, 5 Litt. (Ky.) R. 47; Searsburgh Turnp. Co. v. Cutler, 6 Vermont R. 315; Tar River Nav. Co. v. Neal, 3 Hawks (N. C.) R. 520.

Hargrave & Jones v. Bank of Illinois, 1 Breese (Ill.) R. 84, 86.

Williams v. Bank of Michigan, 7 Wend. (N. Y.) R. 540; Welland Canal Co. v. Hathaway, 8 Wend. (N. Y.) R. 480; denying the dictum of Thompson in Dutchess Cotton Manuf. Co. v. Davis, 14 Johns. (N. Y.) R. 245; and see United States v. Stearns, 15 Wend. (N. Y.) R. 316.

8

• Williams v. Bank of Michigan, 7 Wend. (N. Y.) R. 540.

Charles River Bridge v. Warren Bridge, 7 Pick. (Mass.) R. 371; All

pecially by a subscriber who accepted the charter, and assisted in putting it into operation.' Neither can it be shown in defence, that the plaintiffs have forfeited their corporate rights by misuser or non user. Advantage can be taken of such forfeiture only on process on behalf of the State, instituted directly against the corporation for the purpose of avoiding the charter or act of incorporation; and individuals cannot avail themselves of it in collateral suits, until it be judicially declared. And where a company was incorporated for the purpose of removing from a river all obstructions to the free passage of logs, &c. and were authorized to demand tolls of the owners of logs, &c. freely passing down the river, in an action to recover tolls for logs that passed the river freely, it was held, that the defendant could not show, that the corporation had not removed the obstructions, even though the act of incorporation was to be void if they should not be removed within a year, and more than a year had elapsed before the action was brought."

3. In proceeding against a corporation, says Tidd,

Saints Church v. Lovett, 1 Hall (N. Y.) R..198; Bear Camp River Co. v. Woodman, 2 Greenl. (Me.) R. 404.

1 Centre, &c. Turnp. Road Co. v. McConaby, 16 Serg. & Rawle (Penn.) R. 140.

* Vernon Society v. Hills, 6 Cowen (N. Y.) R. 23; All Saints Church v. Lovett, 1 Hall (N. Y.) R. 198; McConaby v. Centre & Kishocaquillas Turnp. Road Co. 16 Serg. & Rawle (Penn.) R. 140; S. C. 1 Penn. R. 426; Lehigh Bridge Co. v. Lehigh Coal Co. 4 Rawle (Penn.) R. 9; Chester Glass Co. v. Dewey, 16 Mass. R. 102; State of Vermont v. Society, &c. Paine, C. C. R. 652; Bear Camp River Co. v. Woodman, 2 Greenl. (Me.) R. 404; Day v. Stetson, 8 Greenl. (Me.) R. 372; State v. Carr, 5 New Hamp. R. 367; John v. Farmers & Mechanics Bank of Indiana, 2 Black. (Ind.) R. 367; Canal Co. v. Railroad Co. 4 Gill & Johns. (Md.) R. 121; Webb v. Moler, 8 Ham. (Ohio) R. 552; Buncombe Turnp. Co. v. McCarson, 1 Dev. & Bat. (N. C.) R. 306; Tar River Nav. Co. v. Neal, 3 Hawks (N. C.) 520; Hughes v. Bank of Somerset, 5 Litt. (Ky.) R. 47; Searsburgh Turnp. Co. v. Cutler, 6 Vermont R. 315; Hamtranck v. Bank of Edwardsville, 2 Missouri R. 169; and see post, Ch. XXI. 3 Bear Camp River Co. v. Woodman, 2 Greenl. (Me.) R. 404.

the process should be served on the mayor, or other head officer; and if the defendants do not appear before or on the quarto die post at the return of the original, by an attorney appointed under their common seal, (for they cannot appear in person,) the next process is a distringas, which should go. against them in their public capacity; and under this process the sheriff may distrain the lands and goods, which constitute the common stock of the corporation. If they have neither lands nor goods, there is no way to compel them to appear, at law or in equity, but only in parliament; for it is a rule, that for a public concern, the sheriff cannot distrain any private person, who is a member of the corporation.' Serving a summons on any private individual of a corporation is not sufficient notice to hold the corporation to trial; and the individual summoned may plead the want of notice to the corporation.' Members of a corporation aggregate, not being liable to a capias, cannot be holden to bail for anything done by them in their corporate capacity. No precedent of an original writ against a corporation has been known; and in all the elementary writers, and in all books of practice, which treat of the proceedings against corporations, it is laid down as the universal

'I Tidd's Practice, 116. The process against a corporation, must be served on its head, or principal officer, per Spencer, J. in M'Quin v. Middletown Man. Co. 16 Johns. (N. Y.) R. 6. And see Chap. XI. § 12; and Ch. XVII.; and Wood v. Dummer, 3 Mason C. C. R. 308. Proceedings against aggregate corporations must be by original summons, and distringas, 2 Archb. Practice, 98. In England by 2 Will. 4, Ch. 39, every writ of summons against a corporation aggregate may be served on the mayor, or other head officer, or on the town secretary of such corporation. Har. Dig. Addenda, 2402. A corporation may be sued in their corporate capacity, and need not be named individually; but in a suit against the trustees of a town they must be severally named. Trustees of Lexington v. M'Connell, 3 Marsh. (Ky.) R. 224.

441.

Rand v. Proprietors of Locks on Connecticut River, 3 Day (Conn.) R.

3 Bro. Corpor. pl. 43; and see ante, Chap. XVII. § 1. Proceedings against aggregate corporations are very much the same as against peers of the realm. 2 Archb. Practice, 98; 1 Tidd's Practice, 115.

rule, that the process must be by summons, and not by attachment.' In 1816, several suits were brought against certain banks in New York, on notes issued by those banks, which they had refused to pay in gold or silver, that had been demanded of them; the banks generally having suspended their payments in specie. The suits were commenced by original writs. The court held, that the original writ in assumpsit, against a corporation, must be in the nature of a summons, and not by pone, or attachment. It is held, in Pennsylvania, to be necessary, in an action against a corporation, to serve the summons at the place, where the corporation is located within the State; and an action against the Bank of Pennsylvania, which is located in Philadelphia, cannot be instituted in the county of Berks by a service of the process upon the cashier of the bank located in that county."

$ 4. No exception can be taken to the service of a writ in favor of a corporation, for the reason that it was made by an officer who is a member. In an action brought by the Merchants Bank, in Massachusetts, the writ was served by a deputy sheriff who was a member of the corporation; and the court held, that he was not a party to the writ within the meaning of St. 1783, ch. 43. The court observed, that it was true, a sheriff or his deputy in serving process by or against corporations of which he is a member, has an opportunity to commit frauds in his own favor, which it may be difficult to guard against or detect; but that the sheriff was an officer in whom great confidence is necessarily reposed. It was well deserving of attention, the court remarked, whether a slight pecuniary interest is a greater cause for taking from him the power of serving a writ, than his standing in the relation of

1 Per Curiam, in Lynch v. Mechanics Bank, 13 Johns. (N. Y.) R. 137; and see also 1 Kyd, 271; 2 Impey, C. B. Pr. 675, n.; 6 Mod. 183; Com. Dig. Plead. (2 B. 2); 1 Bac. Abr. 507; Tit. Corp. 2 Sellon, 148.

2 Lynch v. Mechanics Bank, 13 Johns. (N. Y.) R. 137; Contra, Styles, 367, cited in Cowp. R. 85.

3 Brobst v. Bank of Penn. 5 Watts & S. 379.