§ 7689. By Proving Charter and User thereunder. respect of corporations created by special charters, granted either by the Crown in England or by the legislature in England or America, the ordinary mode of proving the existence of a corporation is to prove a charter, and user thereunder, in the name therein designated, of the powers, franchises, and privileges granted. Briefly stated, the mode is proof of a charter and user thereunder.1

§ 7690. Proof of the Charter. - Where the corporation is created by a special act of the legislature, the courts will take judicial notice of the act if it so requires, or if there is a general statute of the State requiring the courts to take judicial notice of all acts of the legislature, general or special, — in either of which cases it is only necessary to produce to the judge the official book of statutes containing the act. But where the courts do not take judicial notice of the act, then it is, in strictness, necessary to prove the act by producing, from the office of the Secretary of State, a copy, duly authenticated by that officer, with the seal of State thereto affixed; and this is sufficient without further proof. But this strictness is probably dispensed with by statutes, or rules of evidence which make the books of legislative acts, printed by authority of the State, evidence of the private, as well as the public, acts contained therein. If the charter is the act of the legislature of another State of the Union, then the Act of Congress of May 26, 1790, which provides for the manner in which the official acts of one State shall be authenticated in order to have full faith and credit in another State, governs; and this statute provides that "the acts of the legislatures of the several States shall be authenticated by having the seals of their respective States affixed thereto." It is therefore not necessary that there should be the certificate of a Secretary of State, or other official authentication; but the seal of the State affixed thereto is alone a sufficient authentication.2 Where judicial notice is not taken of a charter under the rule about to be considered, proof of it is generally made by the production of the statute book, printed by public authority, or by an exemplified copy of the particular statute, as found in such book. Although there is a statute making the printed statute books issued by public authority evidence of the statutes

1 Rev. Stats. U. S., § 905.

2 State v. Carr, 5 N. H. 367; United States v. Johns, 4 Dall. (U. S.) 412; 8. c. 1 Wash. (U. S.) 363.

8

Post, § 7691.

Chenango Bank v. Noyes, cited

in Wood v. Jefferson County Bank, 9 Cow. (N. Y.) 194, 204; United States Bank v. Stearns, 15 Wend. (N. Y.) 314; United States v. Johns, 4 Dall. (U. S.) 412, 415.

therein contained, yet this does not, it has been held, dispense with the necessity of formally producing the statute book and offering it in evidence. In other words, it does not change the common-law rule that private statutes must be put in evidence.'

§ 7691. Judicial Notice of Charters and General Statutes of Incorporation. Unless the rule is changed, by statute or otherwise, the charters of private corporations, when granted by the legislature in the form of private acts, are not noticed judicially, but must be proved. But by statute in some of the States, all acts of the legislature are public acts, in the sense that the courts are required to take judical notice of them without the necessity of their being formally proved. Where such a rule prevails, the courts will, of course, take judicial notice of special acts of the legislature chartering corporations. In many cases special charters of incorporation themselves declare that the act shall be noticed judicially by the courts. In such a case it has been held that a denial of the incorporation of the plaintiff does not put the plaintiff to proof of it at the trial. So, the courts are bound to take judicial notice of any statute, although of a private nature, which contains a clause declaring it to be a public act. eral statutes also exist, under the provisions of which the courts are bound to take judicial notice of all special acts of incorporation. General enabling statutes authorizing asso

1 Bailey. Lincoln Academy, 12 Mo. 174.

Haven v. New Hampshire Asylum, 13 N. H. 532 (1843); s. c. 38 Am. Dec. 512.

3 By statute in Georgia, the charters of banks, granted by the General Assembly of that State, are public laws, and all courts take judicial notice of them. Terry v. Merchants' &c. Bank, 66 Ga. 177; s. c. 9 Am. Corp. Cas. 45; Davis v. Bank of Fulton, 31 Ga. 69.

⚫ Anderson v. Kerns' Draining Co., 14 Ind. 199; 8. c. 77 Am. Dec. 63;

Gen

Eel River &c. Asso. v. Topp, 16 Ind. 242; Agnew v. Bank of Gettysburg, 2 Har. & G. (Md.) 478.

Brookville Ins. Co. v. Records, 5 Blackf. (Ind.) 170; Whitewater Valley Canal Co. v. Boden, 8 Blackf. (Ind.) 130.

• Thus, it is enacted by statute in Massachusetts that "all acts of incorporation shall be deemed public acts, and, as such, may be declared on and given in evidence, without specially pleading the same." Rev. Stat. Mass. 1836, ch. 2, § 3.

ciations of individuals to become incorporated for trading or other purposes, are public acts, and are to be noticed judicially, without being proved in the ordinary mode.1

§ 7692. Distinction between Judicial Notice of Charter and Judicial Notice of Corporation. A distinction must consequently be taken between the judicial notice of charters, and the judicial notice of corporations; for a charter may have been granted without any acceptance of it, or without any organization, or user thereunder, in which case there will be no corporation. The charter of a private corporation, which has been recognized by the constitution of the State, acquires thereby the nature of a public statute of which courts are bound to take judicial notice. Where judicial notice is taken of special acts of the legislature, it is clear that, if a municipal corporation is created by such an act, a court of the State will take judicial notice of the existence of the corporation; because in such a case the assent of the corporators, that is to say, of the inhabitants of the town or city which is made a corporation, is not, in general, necessary to the taking effect of the statute, but whenever the statute, according to its terms, takes effect they become ipso facto incorporated. But where, as is generally the case with private corporations, the assent of the corporators is necessary to create the corporation, then the rule must be that a court, although it may take judicial notice of the statute creating a corporation, cannot judicially know the fact of the incorporation, because it cannot judicially know the fact that the persons named therein have accepted the charter and organized under it.*

1 Dutchess Cotton Man. Co. v. Davis, 14 Johns. (N. Y.) 238, 245; 8. c. 7 Am. Dec. 459; Methodist Episcopal Union Church v. Pickett, 19 N. Y. 482, 486; Ewing v. Robeson, 15 Ind. 26, 29; Delawter v. Sand Creek Ditching Co., 26 Ind. 407.

2 Vance v. Farmers' &c. Bank, 1 Blackf. (Ind.) 80.

• Ante, § 52, et seq.

3

Hammett v. Little Rock &c. R. Co., 20 Ark. 204, where the distinction is taken. A number of holdings in that State taking judicial notice of the existence of private corporations, such as banks, can only be upheld on the ground that the statute operated eo instanti to create a public corpora tion. See also post, § 7706.

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7693. Presumption of Ancient Charter. It is well settled, by analogy to the doctrine of ancient grants, that the existence of a corporation may be established by presumptive evidence, on proof of its having been in existence and in the exercise of the franchises claimed for a great length of time.' The company of Mercers, to prove its existence as a corporation, produced a series of books containing admissions of freemen and other acts of the company, commencing in the reign of Henry VI., and continuing down to the trial, which books were taken from a chest which had always been in the custody of the clerk of the company. These records were admitted as presumptive evidence that the company had a corporate existence. Upon the same principle, it is supposed that there existed in the original thirteen States many ancient grants of charters belonging to colonial days, which could not be produced now, and the production of which would be dispensed with. But it has been held that this principle cannot be appealed to in Missouri to establish the existence of a corporation which purports to have been organized in that State in 1839. The reason given was that there was then no general statute under which corporations might be organized; consequently no corporation could exist except by special act of the legislature. These acts being printed and preserved, although perhaps not noticed judicially by the courts, are easily accessible as public records of the State, and hence a body of persons claiming to have acquired a corporate existence prior to the passage of the general incorporation laws, could, without difficulty, if their claim were well founded, put their finger upon some act of the legislature empowering them to become incorporated. But it is held in New England that where the proprietors of common lands show a record of their incorporation under an enabling statute forty or fifty years previous to the controversy, it will not be competent for strangers, or the individual proprietors, or their heirs or assigns, to attack the validity of the organi

1 Ang. & Ames Corp., ch. I., § 70.

• Mercers v. Hart, 1 Car. & P. 113. 276.

Douthitt v. Stinson, 63 Mo. 268,

• Ibid.