said, “It is very true that no new business can be proposed in the absence of such officer; but the assembly has always the right to proceed in the business begun when he was present." This case was cited, (and apparently with approbation,) in the Supreme Court of Pennsylvania by Duncan, J., in a case where the trustees of a corporation consisted of three clerical and eight lay members. The decision was, that if one of the clerical members be excluded from the board by a resolution of the lay members, without authority, the proceedings in the absence of such member were unlawful. But the opinion of the court in some degree implies, that if the member had voluntarily absented himself, after the business of the meeting had commenced, no such conclusion could be drawn.' The English authorities, however, since the case of King v. Norris, have been strict in requiring the actual presence of all the integral parts of a corporation. So strict have they been, that in several instances where a mayor has deserted his post, after business had begun, when he perceived that the corporation were disposed to act against him, they have adjudged the proceedings, in his absence, void. Thus, where it appeared by the charter, that the mayor, aldermen, and burgesses of the borough of S., or the major part of them, were on the charter day, to assemble in the Guildhall; when the mayor and aldermen, or the major part of them were to nominate and put in election for mayor two of the aldermen; and they were there to continue together, or in due manner adjourn, until the mayor and the other integral parts should have elected one of the two aldermen nominated for a year: being thus convened, B., the mayor, and two aldermen, nominated the two latter for mayor; but the other aldermen, a majority, nominating two out of their number, the mayor and his two nominees quitted the Guildhall. The other aldermen, with the burgesses, proceeded to an election of those nominated by the four. On a

1 Case of the Corporation of St. Mary's Church in Philadelphia, 7 S. & Rawle (Penn.) R. 517; See also Cowen's note to the case of Ex parte Rogers, 7 Cowen (N. Y.) R. 533.

a rule to show cause against B., the mayor, why a mandamus should not issue, commanding him to swear his successor into office, the above case of King v. Norris, was, at first, overlooked. On examination, afterwards, its authority appeared to the court somewhat questionable; and the election passed as irregular, for want of the actual presence of the old mayor. The decision of the court was upon the ground that the mayor was an integral part of the corporation.' In a still later case, the mayor, burgesses, and commonalty of C. were to elect a mayor annually. They being assembled at a quarter before 1, P. M., the mayor, contrary to the advice of the recorder and the sense of the burgesses, proposed to adjourn till 3, P. M. He did not do so, however, and in his presence, one E. was suddenly proposed and seconded as a candidate, before the mayor left the place; but he departed before E. was declared duly elected, though this was done immediately after his departure by the burgesses and commonalty. The King's Bench held, that the election was void for the absence of the presiding officer, an integral part of the corporation.2

It was held in Ex parte Rogers, in New York, that where a statute or charter requires, that a certain number of persons shall be present at the consummation of any act, they must all be so present; and the act is not good, though it be begun while all are present, if one of them depart, though wrongfully, before its consummation. The learned reporter, in a note to the case just cited, observes, "Where a public act is to be done, by three or more commissioners appointed in a statute, and a competent number have met and conferred, though they separate, and then a majority do the act, without the presence of the others, the act seems good in consideration of law; though it is otherwise where there is a positive statute or char

'King v. Buller, 8 East, 388. See also note to this case.

King v. Williams, 2 M. & S. 141; Dampier, J. relied on the case of King v. Buller, (supra.)

• Ex parte Rogers, 7 Cowen (N. Y.) R. 526.

ter, requiring, that a full board shall be present at the consummation."1

$12. Acts purporting to be done by corporations, which relate to the constitution and the rules of government of the body corporate, are not to be considered as having received a legal concurrence, merely because they appear under the corporate seal; and the court have authority to inquire in such cases by what authority the seal was affixed. Thus it was held, in the case of St. Mary's Church in Philadelphia, that proposed amendments of the charter, though authenticated by the seal, were not regarded as conclusive evidence, that the proposition was the legal act of the corporation. The C. J. in this case, (Tilghman) in delivering his opinion, remarked as follows: "Is the court bound to consider the proposal for alteration of the charter as the act of the corporation, because it is presented under the corporate seal; or may it look beyond the seal, and inquire in what manner, and by what authority it was affixed?

The Reporter then cites the following case: "The statute of March 1st, 1788, (2 Greenleaf, 116, § 11, ch. 48, s. 2,) declared that no permit should be granted to retail spirituous liquor, unless three commissioners (a full board) should be present at the granting thereof." This provision came under consideration in Palmer, q. t. v. Doney, (2 John. Cas. 346,) which was an action of debt for several penalties alleged to be incurred by the defendant under the 10th section of the act for selling without a permit. The main question was, whether the permit was granted by a competent board. The supervisor and two justices (a full board) being met, the defendant applied to them for license. The supervisor decided against granting it; whereupon the two justices retired into another room, and gave the license required. In this case it is evident, from the language of Lewis, C. J., who delivered the opinion of the court, that they considered the statute as substantially satisfied in its equity and spirit; but they yielded to its strong letter; expressly putting themselves on the positive proviso, that three commissioners should be present. This is a case which stands almost alone in our statute book; and is evidently founded on the extreme jealousy of the legislature against the heedless multiplication of taverns. The provision is continued to this day, with the addition, that the supervisor of the town shall be one of the three who shall be present; and that unless they are all actually present, the license shall be void. (1 R. L. 177, § 3.)

Undoubtedly it may and it ought. Suppose amendments should be voted at a meeting of the corporation, not lawfully convened, and some of the members who were absent should dissent. Suppose a meeting lawfully convened, and then the majority should force the minority to retire, after which they should pass a resolution for amendments. Suppose, by the constitution of the corporation, a certain quorum should be required to do business, and a number less than the quorum should pass resolutions for amendment, and affix the seal. Or suppose the constitution provided, that the assent of certain members should be necessary, and the others proceeded to act without their assent. In all these cases, it is too clear to admit of argument, that the court would do flagrant injustice, if it suffered the seal to preclude an examination of the truth." " As the affixing the corporate seal is a mere ministerial act, the seal may be affixed to a contract by a less number than was competent to enter into the contract, provided it is done by the direction of a legal quorum. Thus, where the charter required a certain number of managers to constitute a quorum for the purpose of entering into contracts, a contract, to which the seal of the corporation was affixed by a less number than were competent to make the contract, was holden to be valid, provided it was done by the order of a legal quorum. If the seal, the court say, were in fact affixed by persons having no authority, it was matter for subsequent consideration by the jury.

The books and minutes of a corporation, if there is nothing to raise a suspicion, that the corporate proceedings have been irregular, will of course be treated and referred to as evidence of the legality of the proceedings. Thus, the books are admissible to prove the organization and existence of the corporation. And it has been held, that where the charter requires

1 Case of St. Mary's Church, 7 S. &. Rawle (Penn.) R. 530. President, &c. of B. & D. Turn. Road v. Myers, 6 S. & R. (Penn.) R. 12.

'Grays v. Lynchburg and Salem Turn. Co. 4 Rand. (Va.) R. 578; Bun

two-thirds to form a quorum, and it is stated on the minutes, that on due invitation the corporators met, and it is not usual to mention on the minutes the names or number of those present, it is prima facie evidence, that two-thirds did assemble.'

In the case of Grays v. Lynchburg and Salem Turn. Co., in Virginia, it was objected, that the entry in the book did not show that the meeting consisted of "a number of persons, entitled to a majority of all the votes, which could be given on all the shares subscribed," which the law requires. The court said, "The entry certainly has not followed the words of the law; and if it intended to express the same idea, it has done it a little awkwardly; yet that it did so intend, we are strongly inclined to think. It must have been apparent to every member, that the law required a majority of the stock to be represented in the first meeting; and to that end, directed that those who first met, should adjourn from time to time, until such majority should attend. We can conceive no motive for the departing from the law. The meeting consisted of partners in the firm, all interested in putting the institution legally into operation. They did organize it, and it has gone on ever since without objection that we hear of. Under these circumstances, may we not fairly conclude, that the meeting was a legal one? That by the words "majority of the stockholders," the clerk meant such a majority as the law required, to wit, holders of a majority of the stock? We think this by no means a strained inference.' The recording officer of a corporation may make and verify copies of its records, and of the verity of such copies his certificates are evidence; but it is no part of the duty of such officer to certify facts, nor can his certificate be received as evidence of such facts. But the

combe Turn. Co. v. McCarson, 1 Dev. & Bat. (N. C.) R. 306; and see ante, Chap. II. § 7.

2

Commonwealth v. Woelper, 3 S. & Rawle (Penn.) R. 29.

Grays v. Lynchburg and Salem Turn. Co. 4 Rand. (Va.) R. 578. 3 Oakes v. Hill, 14 Pick. (Mass.) R. 442.