gesses might, in their corporate capacity, answer their matters in the usual way, but that the five defendants, particularly named in the bill, might answer upon oath. To this bill the five defendants demurred, insisting, that the plaintiff had not shown a title to discovery against them, they being mere members of the corporate body, not standing in any official or confidential situation. The chancellor observed that the case was in many points very important, and was quite new to him; but he thought there was no sound distinction between an individual, and the town clerk or servant. There might be, he said, no officer for the time, and the individual might perhaps be the only person who could give any information. He referred to the English chancery cases which we have cited; and from those cases he was able to extract the principle, that a bill might be entertained against the individuals, and that they could be called on under the circumstances for an answer.'

It is proper to refer to another ground of demurrer which, in the above case, was laid before the court ore tenus, viz., that every charge in the bill was made with the view to the discovery of an illegal conspiracy, which was an indictable offence. The chancellor was perfectly satisfied, as to this demurrer, that if he allowed it, he should destroy the jurisdiction of his court, as without the ordinary words, charging the parties with combining and confederating, in nine cases out of ten

1 Dummer v. Corporation of Chippenham, 14 Vesey, 245. The counsel for the defendants in this case relied upon Steward v. East India Company, 2 Vernon, 380; but Sir Samuel Romilly, counsel for the plaintiff, said it was among the many bad cases in that book; and the chancellor said he suspected a misprint. As it stood, observed the latter, that the demurrer was allowed without putting them to answer as to matters of fraud and contrivance, it was nonsense; but if it was read, that the demurrer was disalallowed, with liberty to insist by their answer, that they should not answer the charges of fraud and contrivance, it was unintelligible. As it stood, he could not comprehend it, unless the argument could be maintained, that the demurrer was allowed, as otherwise they would be put to answer those charges.

from all time past, they would, upon modern doctrine, be liable to indictment; yet courts of equity have been constantly compelling the discovery.

16. It appears to have been held in the State of New York, that an injunction against a corporation cannot be dissolved on bill and answer, unless the answer is duly verified by the oath of some of the individual members, who are acquainted with the facts stated therein. On a motion to dissolve an injunction against a canal company, upon bill and answer, B. & R., two former officers of the company, were made defendants for the sake of discovery merely. The answer of the company was put in under their corporate seal; and the then secretary, who was not an officer of the company, at the time of the transactions which were the foundation of the injunction, swore that the matters stated in the answer relating to his acts and deeds were true, and so far as related to the acts and doings of other persons, he believed them to be true. The president, who was an officer of the company at the time of those transactions, swore to the seal of the company affixed to the answer, but said nothing as to the truth of the matters stated therein. The separate answer of B. admitted the truth of the principal allegations contained in the bill. The motion was denied with costs, the chancellor, observing; the case of a corporation defendant is an anomaly in the practice in relation to the dissolution of an injunction. In most cases the injunction is dissolved as a matter of course, if the answer is perfect, and denies all the equity of the bill in the points upon which the injunction rests. It is not, however, a matter of course to dissolve the injunction where the defendant acts in a representative character, and founds his denial of the equity of the bill upon information and belief only. Corporations answer under their seal and without oath. They are therefore at liberty to deny everything contained in the bill, whether true or false. Neither can any discovery be compelled, except through the medium of their agents and officers, and by making them parties defendants. But no dissolution of the injunction can be obtained upon the answer of a corporation,

which is not duly verified by the oath of some officer of the corporation, or other person who is acquainted with the facts contained therein. There can be no hardship in this rule as applied to corporations, as it only puts them in the same situation with other parties. Other defendants can only make a positive denial as to facts within their own knowledge. In relation to every other matter, they must answer as to information and belief. If the agents of the institution, under whose direction the answer is put in, are acquainted with the facts, so as to justify a positive denial in the answer, they can verify its truth by a positive affidavit; and if none of the officers are acquainted with the facts, their information and belief can have no greater effect than that of ordinary defendants, however positive the answer in the denial may be. In this case, the officer of the institution, who was such at the time referred to in the claimant's bill, has studiously avoided saying anything as to the truth of the answer, leaving it to the secretary, who knows nothing of its truth or falsehood, to express his belief on the subject.' This view of the subject seems to differ from that expressed by Mr. J. Washington, in the case of Haight v. The Morris Aqueduct."

17. As the general rule, corporation books are evidence of the acts and proceedings of the corporate body, when it appears that they are kept as such by the proper officer, or some person authorized to make entries in his necessary absence.3

Fulton Bank v. New York and Sharon Canal Company et al. 1 Paige (N. Y.) Ch. R. 311.

* 4 Washington, C. C. R. 600, and cited in this chapter (ante, § 8) more fully.

Rex v. Mothersell, 1 Stra. 93; Highland Turnpike Company v. M'Kean, 10 Johns. (N. Y.) R. 154. Entries in corporation books, and in the books of public companies, relating to things public and general, and entries in other books, may be proved by examined copies. 1 Stra. 93, 307. Entries in the books of the custom-house, of the Bank of the E. India Company, of the South Sea Company, and the like, may be proved in this manner. Ld. Raymd. 851; 2 Stra. 594, 605; Hardw. 128; 2 Doug. 593, n. 3; Peake, 30; 4 Taunt. 787. But instruments of a private nature, such as a

2

Thus we have seen, that the books and minutes of a corporation, if there is nothing to render them suspicious, may be referred to, in order to show the regularity and legality of corporate proceedings, &c.' But entries which are made in corporation books, of matters relative to any property or right claimed by them, can never be evidence for them, unless made so by act of the legislature. It is true, the following case is to be found in the English books. In an action by a corporation for nonpayment of certain tolls, called "water bailiff's dues,” an entry had been made in the corporation books, as follows: "A particular note of all such duties, &c., as by the water bailiffs are to be received for the use of the mayor and burgesses of Kingston, according to the order prescribed and set down in the year 1441, J. B. then being mayor, and continued and put in use from that time to the present day." This was permitted to be given in evidence. This case was afterwards cited before Wilson, J., who said he was counsel in the case, and that the books were admitted by consent. In the Supreme Court of New York, entries that were made by a clerk in the books of trustees, being a corporation, by the direction of the trustees, were considered not evidence in a cause in which they were interested." The English Court of Chancery has

5

letter found in a corporation chest, (1 Stra. 401,) or the like, must be proved in the ordinary way, as any other private instrument. So, the books of a private company must be produced, and they cannot be proved by examined copies. 9 Petersdorf, Abr. 212, Tit. Ev.

1 Ante, Chap. XIV. § 12, and Chap. XVIII. § 2; Coffin v. Collins, 17 Maine R. 444; Buncombe Turnp. Co. McCarson, 1 Dev. & Bat. (N. C.) R. 306; Mayor, &c. v. Wright, 2 Port. (Ala.) R. 230; Owing . Speed, 5 Wheat. R. 420.

23 B. & Ald. 142.

3 1 M. & Sel. 569.

v.

5 Mayor of London v. Lynn, 1 H. Bla. 214, n. The court, in this case, refused to permit the defendants to give in evidence their corporation books to prove their own rights.

* Jackson ex dem; Donally v. Walsh, 2 Johns. (N. Y.) R. 226. Nor is the evidence of the clerk, who made the entries of the declarations of the trustees, admissible.

recently decided, that private entries in the books of a corporation, which are under their own control, and to which none but the corporation have access, cannot be used to establish rights of the corporation against third parties. In this case the question was, to whom the nomination of a curate belonged,— to the vicar or to the corporation. Entries in their books were not received in evidence to establish the right of the corporation, as against the vicar.'

It has been decided in New York, that if a dealer with a bank send his bank book, with money to be deposited, and the clerk enter the amount to his credit in the bank book, at the time the deposit was made, it is conclusive on the bank; but aliter, if the deposit is first made, and the entry is afterwards copied from the ledger into the dealer's bank book." In Massachusetts, the books of a bank are deemed evidence to prove receipts and payments of money; and if the clerk, who made the entries be dead or insane, the book is admissible, proving his handwriting.3

4

$ 18. With respect to the members of a corporation, the books of the company are public books; they are common evidence, which must of necessity be kept in some one hand, and then each individual possessing a legal interest in them has a right to inspect, and to use them as evidence of his rights. The board of directors of a bank have no authority to pass a resolution excluding one of the members of the institution from an inspection of its books, although they believe him to be hostile to the interests of the institution. But with respect to a mere stranger, unconnected in interest, such books are to be considered as the books of a private individual, and

1 Attorney-General v. Corporation of Warwick, 4 Russ. 222.

* Manhattan Co. v. Lydig, 4 Johns. (N. Y.) R. 377.

' Union Bank v. Knapp, 3 Pick. (Mass.) R. 196.

2 Starkie on Evid. 734. The acts, resolutions, and proceedings of a corporation, through their directory, are evidence against the company. Gratz v. Redd, 4 Mon. (Ken.) R. 185.

'People v.

Throop, 12 Wend. (N. Y.) R. 183.