on by such person or persons directly by themselves, or by proxy, subject to the provision of the act of incorporation." There was nothing in the act of incorporation, which interfered to prevent the application of this provision. The court said, that the provision was broad enough literally to include all stockholders, whether in their own right, or as mere trustees for others; and then proceeded to observe: "But the question remains, whether the latter are to be deemed stockholders, within the spirit of the act. True, the stock on which they voted, in this case, stands in their name; but on the face of the entry they are declared to be mere nominal holders. The real owner of the stock should vote, especially where his name is truly expressed in the books; though it might be otherwise, if he choose to have the entry simply in the name of another, without expressing any trust. Now these three persons, a majority of whom claim a right to vote, are mere trustees; and they are trustees not for the directors, but the company, the corporation itself. If there could be a vote at all upon such stock, one would suppose that it must be by each stockholder of the company, in proportion to his interest in it.

"This brings us to the important difficulty in the case, which is, whether stock thus held can vote at all. And we think it is not to be considered as stock held by any one for the purpose of being voted upon. No doubt the company may, from necessity, as in this case, take their own stock in pledge or payment; and keep it outstanding in trustees, to prevent its merger; and convert it to their security. But it is not stock to be voted upon, within the meaning of the charter, or the general act upon which we are proceeding. It is not to be tolerated that a company should procure stock, in any shape, which its officers may wield to the purposes of an election; thus securing themselves against the possibility of removal. But a trustee holding stock in that character, for the benefit of others, may vote.'

In the case of Ex parte Willcocks, in the State of New

1 1 Barker, ex parte, rel. to Merc. Ins. Co. 6 Wend. (N. Y.) R. 509.

York,' the court say: "We do not hesitate to say that, in a clear case of hypothecation, the pledger may vote. The possession may well continue with him, consistently with the nature of the contract; and the stock remains in his name. Till enforced and the title made absolute in the pledgee, and the name changed on the books, he should be received to vote. It is a question between him and the pledgee, with which the corporation have nothing to do." In a subsequent case, in the same State, it was held that hypothecated stock may be voted upon by the pledger, in corporations created before the first of January, 1828. In a case in the Supreme Court of Massachusetts, it was held, that, if a stockholder of a bank transfers his shares by a writing absolute in form, and surrenders his certificate of stock, and leaves with the cashier an agreement, in which (after reciting that he had transferred the shares, as collateral security for the payment of a note to the bank.) he covenants that, if the note shall not be duly paid, the bank may sell the shares, and apply the proceeds to the payment of the note, and hold the surplus to his use,—that he was still entitled to the rights of membership. The stockholder, in this case, paid interest from time to time, upon the note after it had fallen due; but he continued to receive the dividends upon the

shares.1

There is a case, in which one of the reasons assigned, on a motion for a new trial, was, that aliens were not entitled to vote for vestrymen and church-wardens, in the corporation. called "The Ministers, Vestrymen and Church-Wardens of the German Lutheran Congregation in and near the City of Philadelphia." The decision, however, was that aliens, otherwise qualified, are entitled to vote. Yeates, J. made a distinction. between political and private corporations, as to this right of

'Ex parte Willcocks, 7 Cowen, (N. Y.) R. 402.

* The case of Ex parte Willcocks (supra) was relied on as governing this case, but there the shares stood in the names of the persons who were trustees for the corporation. And it was not intended, by the decision in that case, to open an inquiry into every case of hypothecation.

* Barker, ex parte, rel. to Merch. Ins. Co. 6 Wend. (N. Y.) R. 509.

aliens; and was unable to perceive any sound objection against aliens being included in grants with natural born subjects, merely for religious purposes. He observed: "Foreigners come to our shores, ignorant of our laws and customs, with all their different prepossessions for a particular system of polity. Should they think it expedient, they may distract, perplex and thwart the public measures of the country. The sovereign power would naturally guard against such events, and prevent these new comers from participating in all the rights of natural born subjects, until they become seasoned to the soil, and familiarized with the new government and its legal institutions. The same dangers are not to be apprehended from foreigners desirous of being incorporated with others, merely for the exercise of religious duties." Tilghman, C. J., who considered the point somewhat elaborately, remarked: "The point turns on the charter; there the qualification is fixed; and there is no mention of citizen or subject, either in the charter itself, or in the fundamental articles to which it refers. I do not conceive that we have any right to insert it."1

Where the charter of a religious congregation conferred the right to vote on "the contributing members, being communicants of the said congregation," and by an act of assembly confirming the charter, it was provided, that no person should be entitled to vote who was under the age of eighteen years, it was held, that it was unnecessary that a member should have taken the sacrament after eighteen, to entitle him to vote. In the same case, it was held that a person may lose his membership, and consequently his right to vote, by uniting himself to another church professing an opposite creed.2

§ 9. If the right of election be reposed by charter in a select class, consisting of a definite number, (twelve, for example,) and the company have undertaken to increase the number,

1 Commonwealth v. Woelper, 3 S. & Rawle, (Penn.) R. 29; and see Stewart v. Foster, 2 Binney, (Penn.) R. 120; and Barker, ex parte, ut sup. * Weckerley v. Geyer, 11 S. & Rawle, (Penn.) R. 35.

the elections of all persons, chosen after the number of twelve is complete, are a mere nullity; and if such persons give their vote as members of that class, they may be rejected as illegal.' But the election of a certain number of persons to fill a certain office, if the number chosen by the body at large, is less than that prescribed by the charter, is valid. The charter of a company provided that its affairs shall be managed and conducted by twenty-three directors, of whom the major part shall constitute the board. On the charter day, an election was regularly held for an election of a new board of directors, when twenty-two individuals received the requisite number of votes. It was held that they were duly elected.*

The mere circumstance that improper votes are received at an election, will not vitiate it. The fact should be affirmatively shown that a sufficient number of improper votes were received for the successful ticket, to reduce it to a minority if they had been rejected; or otherwise the election must stand.3 In Ex parte Murphy and others, at an annual election of St. Peter's Church, in the city of New York, holden for the choice of four trustees, eight persons were voted for, four of whom had 102 votes, and four, 100. The voting was by ballot. The inspectors having certified that the four having 102 votes were duly elected, a motion was made for leave to file an information, in nature of a quo warranto, against them, as unduly elected. One ground of the motion was, that two ballots were put into the box in the names of two persons who were formerly voters, but who had died some weeks before the day of election. This fact was not discovered until after the inspectors had given their certificate; nor did it at the trial

'Rex v. Hearle, Str. 625; S. C. 3 Bro. Parl. C. 178; Cowp. 567.

In the matter of the Union Ins. Co. 22 Wend. (N. Y.) R. 591; and see People v. Jones, 17 Ib. 81. In the former case, when the old board, conceiving that under such circumstances the election had wholly failed, ordered a second at which twenty-three directors were chosen, the court, under a special authority in such cases, ordered a new election, to supply the vacancy of the one wanting at the first election.

Rex v. Jefferson, 2 Nev. & M. (K. B.) R. 437; Rex v. Winchester, 2 Nev. & P. (K. B.) R. 274.

appear for whom the two improper votes were given. The court held that "the motion must be denied. For aught that appears, the spurious ballots were for the ticket which was in the minority. To warrant setting aside the election, it must appear affirmatively that the successful ticket received a number of improper votes, which, if rejected, would have brought it down to a minority. The mere circumstance that improper votes are received, will not vitiate an election.' If this were otherwise, hardly an election in the state could be sustained." The following are two modern English decisions: To impeach the election of a party, returned as elected, it is not sufficient to allege that many votes were bad and fictitious, without showing that some other candidate had a majority of legal votes. But in a case where parties were declared to be elected town councillors by the mayor, and they accepted the office and made the declaration requisite, a mandamus to admit other candidates on the ground of improper votes having been received, was refused.*

3

10. If the charter declare that in default of certain acts the election shall be void, no formality is required to annul it, but the place is as vacant as though no election had ever taken place, and is not merely voidable. Another, therefore, may be eleted into the office, without the necessity of resorting to an information in quo warranto, to oust the officer elect. But if the charter do not so declare, an irregular election, as in case of the election of an unqualified person, is voidable only, and not actually void. And hence, the acts of trustees of a religious corporation, irregularly elected, yet in colore officii, will be valid, until such trustees are ousted by judgment at

At least, unless they were challenged. Chenango Mutual Ins. Co., Matter of, 19 Wend. (N. Y.) R. 635.

2 Ex parte Murphy and others, 7 Cowen, 153.

3 Rex v. Jefferson, 2 Nev. & M. (K. B.) R. 487.

Rex v. Winchester Mayor, &c. 2 Nev. & P. (K. B.) R. 274.

Rex v. Sanchar, 2 Show. 67.

6 Rex v. Bridge, 1 M. & S. 76; Crawford v. Powell, 2 Burr. 1016.