the other States, as a part of its jurisprudence; or that it acknowledges any rights but those which are secured by the constitution of the United States. The Court think otherwise. The intimate union of these States, as members of the same great political family; the deep and vital interests which bind them so closely together, should lead us, in the absence of proof to the contrary, to presume a greater degree of comity, and friendship, and kindness towards one another, than we should be authorized to presume between foreign nations. And when (as without doubt must occasionally happen) the interest or policy of any State requires it to restrict the rule, it has but to declare its will, and the legal presumption is at once at an end. But until this is done, upon what grounds could this Court refuse to administer the law of international comity between these States? They are sovereign States; and the history of the past, and the events which are daily occurring, furnish the strongest evidence that they have adopted towards each other the laws of comity in their fullest extent. Money is frequently borrowed in one State, by a corporation created in another. The numerous banks established in different States are in the constant habit of contracting and dealing with one another. Agencies for corporations engaged in the business of insurance and of banking have been established in other States, and suffered to make contracts without any objection on the part of the State authorities. These usages of commerce and trade have been so general and public, and have been practised for so long a period of time, and so generally acquiesced in by the States, that the Court cannot overlook them, when a question like the one before us is under consideration. The silence of the State authorities, while these events are passing before them, shows their assent to the ordinary laws of comity which permit a corporation to make contracts in another State. But we are not left to infer it merely from the general usages of trade, and the silent acquiescence of the States. It appears from the cases cited in the argument, which it is unnecessary to recapitulate in this opinion; that it has been decided in many of the State Courts, we believe in all of them where the question has arisen, that a corporation of one State may sue in

the Courts of another. If it may sue, why may it not make a contract? The right to sue is one of the powers which it derives from its charter. If the Courts of another country take notice of its existence as a corporation, so far as to allow it to maintain a suit, and permit it to exercise that power; why should not its existence be recognized for other purposes, and the corporation permitted to exercise another power, which is given to it by the same law and the same sovereignty, where the last-mentioned power does not come in conflict with the interest or policy of the State? There is certainly nothing in the nature and character of a corporation which could justly lead to such a distinction; and which should extend to it the comity of suit, and refuse to it the comity of contract. If it is allowed to sue, it would of course be permitted to compromise, if it thought proper, with its debtor; to give him time; to accept something else in satisfaction; to give him a release; and to employ an attorney for itself to conduct its suit. These are all matters of contract, and yet are so intimately connected with the right to sue, that the latter could not be effectually exercised if the former were denied."

The Court finding that the State of Alabama had not merely acquiesced by silence, but that her judicial tribunals had recognized the comity of suit in favor of corporations of other States, and there being no law prohibiting the contract in question, held that it was valid, and obliged the party to pay according to its tenor and effect. The doctrines of this case had been declared in several of the States, and may now be considered as the law of the land.' In New York it is held that the sixth

' Portsmouth Livery Company v. Watson, 10 Mass. R. 91; N. Y. Fire Insurance Company v. Ely, 5 Conn. R. 560; Bank of Marietta v. Pindall, 2 Rand. (Va.) R. 465; Taylor v. Bank of Alexandria, 5 Rand. (Va.) R. 471; Williamson v. Smoot, 7 Martin (La.) R. 31; Lathrop v. Bank of Scioto, 8 Dana (Ky.) R. 114; Bank of Edwardsville v. Simpson, 1 Missouri R. 184; Guaga Iron Company v. Dawson, 4 Blackf. (Ind.) R. 202; and see Henriquez v. Dutch W. India Co. 2 Ld. Raymd. 1532; S. C. 1 Stra. 612; 2 Ibid. 807; Hallett v. King of Spain, 1 Dow R. 169; S. C. 3 Simons, 338; St. Charles Rank v. De Bernales, 1 C. & P. 569; R. & M.

section of the act prohibiting unauthorized banking' relates merely to the keeping of an office for the purpose of receiving deposits or discounting notes or bills, &c., and not to a single isolated act of loaning money; and hence that a foreign banking corporation might recover on a check taken by its cashier in New York for money there loaned by him."

We will close this chapter by observing, that a corporation, keeping within the scope of its general powers, may contract or bind itself to do any act at any place; and wherever the engagement may be broken, it will be equally liable."

190; Brown v. Minis, 1 McCord (S. C.) R. 80; Silver Lake Bank v. North, 4 Johns. (N. Y.) Ch. R. 370; Atterberry v. Knox et al. 4 B. Monroe (Ky.) R. 92

1 1 R. S. 712, sec. 6.

2 Suydam et al. v. The Norris Canal and Banking Co. Superior Court of City of New York, July Term, 1843, MS. for which see 5 Hill (N. Y.) R. 491. n. a.; Pennington v. Townsend, 7 Wend. (N. Y.) R. 276, 279; New Hope Delaware Bridge Company v. The Poughkeepsie Silk Company, 25 Wend. (N. Y.) R. 648.

* Bank of Utica v. Smedes, 3 Cowen (N. Y.) R. 684; M'Call v. Byram Man. Co. 6 Conn. R. 420.

CHAPTER IX.

OF AGENTS OF CORPORATIONS, THEIR MODE OF APPOINTMENT AND POWER.

2

§ 1. In general, the only mode in which a corporation aggregate can act or contract is through the intervention of agents, either specially designated by the act of incorporation, or appointed and authorized by the corporation in pursuance of it.' It is an old rule of the common law, that such a corporation cannot lay a fine, acknowledge a deed, or appear in a suit, except by attorney or agent; and corporations with power to sue and be sued perform necessary services incident to such business by agents. At the civil law, it was one of the privileges of a corporation (universitas) to act by an attorney or agent, who was known by the name of actor, or procurator, or more familiarly, by the name of syndic. Quibus autem permissum est corpus habere, collegii &c. et actorem, sive syndicum, per quem, tanquam in republica, quod communiter agi fierique oporteat, agatur, fiat.*

The power to appoint officers and agents rests, of course, like every other power, in the body of the corporators, unless some particular board or body, created or existing within the corporation, is legally vested with it. Where the charter or act of incorporation speaks upon this subject, it must be strictly pursued, or the appointment may be avoided. The directors of a corporation, specially empowered by the charter to contract on its behalf, have no power to appoint sub-agents to

1 Co. Lit. 66 b.

Com. Dig. Attorney C. 2.

The Planters & Merchants Bank v. Andrews, 8 Porter (Ala.) R. 404. Dig. Lib. 3, tit. 4, 1. 1, § 1; Pothier Pand. Lib. 3, tit. 4, n. 39; Vicat. Vocabul. Syndicus.; Heinecc. ad Pand. P. 1, lib. 3, tit. 3, § 419; Id. tit. 4, 439; Pothier on Oblig. art. 49.

contract for the corporation, unless such power is expressly given them; and accordingly contracts made by such subagents will not be binding on the corporation. Canal commissioners cannot delegate the authority vested in them to enter upon and take possession of lands for canal purposes; but this must be done by themselves, or under their express directions, as in other cases of personal confidence and trust, where judgment and discretion are required, or relied on.' And where by a bank charter the power of discounting notes and bills was vested in the board of directors, it was held, in Louisiana, that they could not delegate this trust to an agent or agents of the board. In such case, indeed, it would be a violation of the charter for which the corporation would be held responsible, for the board of directors to authorize their president or cashier, or any other officer of the bank, to make loans and discounts, without having the same formally passed upon by the board. Neither can an agent, appointed by the corporation, and authorized to make a particular contract, or to do a certain piece of business, delegate his trust, unless specially empowered so to do; the personal confidence of the principal in the agent being the supposed motive of the selection and appointment of the latter. Accordingly, where the directors of a turnpike corporation were empowered by the corporation to contract for the making of the turnpike road, and they, without authority so to do, appointed sub-agents, who covenanted on behalf of the directors to pay certain sums for the making of the road; it was decided by the Supreme Court of Massachusetts, that the corporation was not bound by the contract, since it had given the directors, its immediate agents, no power to substitute agents under them.*

In Massachusetts, however, a board of bank directors is a

Lyon v. Jerome, 26 Wend. (N. Y.) R. 485; and see Rex v. Gravesend, 4 D. & R. 117; 2 B. &. C. 602.

2 Percy v. Millauden et al. 3 Louisiana R. 568.

* Commissioners v. Bank of Buffalo, 6 Paige (N. Y.) Ch. R. 497.

Tippets v. Walker et al. 4 Mass. R. 595; S. P. Emerson et al. v. The Providence Hat Manufacturing Co. 12 Mass. R. 237.