stantive alterations, such as those proposed by each of these supplementary acts, are not to be taken as parcel of a private charter, without the previous concurrence of the corporators, manifested in some way recognized by the law. Unless so sanctioned they are esteemed as unauthorized interferences with a solemn compact between the public and the individuals composing the corporation, and, therefore, obnoxious to the constitutional prohibition touching the obligation of contracts. Whether this sanction has been extended to both, or either of the supplements of January and April, are the leading questions presented for decision. Each of the contending parties claim this advantage for the enactment of their own procurement, and deny it to the antagonist statute. Neither of them, however, pretend that there was any express, formal and recorded act of acceptance, either by the corporators at large or the board of trustees, nor, as will be presently seen, was this absolutely necessary. That the then board of trustees tacitly gave their assent to the older supplement is not to be denied, for, while the petition in effect asserts this, the answer admits it was produced as a recognized act by the president of the board, at a meeting held on the 24th of January, 1849, and that the trustees, including several of the defendants, continued to hold their offices by virtue of the supplement after the period for which they were first appointed. Had these officers been clothed with power to accept or reject this statute, it is not to be doubted, their silent acquiescence in its provisions and continued exercise of authority by virtue of it, would have been sufficient to establish their assent.

Anciently, indeed, it was supposed that from the very nature of an artificial corporate body, it could legally manifest its acts and conclusions only by the use of its corporate seal, affixed to a deed in pursuance of authority previously given. But this idea has long since given way to the more reasonable doctrine that the act of assent of a corporation may be inferred from such circumstances of commission or omission as would raise a similar presumption in favor of or against a natural person. Corporations, it is now held, may be affected by implication, just as individuals are, and where its action. or acquiescence are the natural result, or necessary accompaniment of some other supposed precedent fact, the existence of that fact will be assumed, both for purpose of charge and discharge. In the leading case of the Bank of the United States v. Dandridge, 11 Wheat. 70, Mr. Justice STORY stated the principles thus: "Acts done by corporation, which pre-suppose the existence of other acts to make them legally operative, are presumptive proof of the latter," and this is true, though no minute of them can be found among the records of the corporation. By way of illustration, he instanced the case of one notoriously acting as cashier of a bank, and so recognized by the directors, which is sufficient of itself to raise a presumption of his due appointment, and his acts as cashier will bind the institution, though no written proof of the appointment can be produced. Both in England and with us, this principle has been liberally extended and applied, where the questions were of the acceptance of a charter. In

this country, where private corporations are very numerous, and constant use of their privileges naturally engenders indolence in the creation of regular evidence of corporate acts, and negligence in its preservation, the recognition of presumptions, as legitimate sources of proof, was a legal necessity. While, therefore, a charter granted to persons who have not solicited it, is said to be in fieri until after acceptance, yet it is not indispensable to show a written instrument, or even a vote acceding to the grant, unless the charter expressly prohibit it; every formality may be presumed, from a continual exercise of the corporate powers.

This is also true of assent to a new or additional charter by an existing corporation, which may, in like manner, be inferred from acts or omissions inconsistent with any other hypothesis; and where the new grant is beneficial in its aspect, it is thought very little is required to found a presumption of acceptance. Bank v. Dandridge, 12 Wheat. 71; The Charles River Bridge v. Essex Bridge, 7 Pick. 334; Trott v. Warren, 2 Fair'd 227; Bridge Co. v. Bragg, 2 N. H. Rep. 102; Riddle v. Proprietors of Canals, 7 Mass. 184; Penobscot Co. v. Lawson, 4 Shep. 924; Kings v. Avery, 1 Term Rep. 575; s. c. 2 Term Rep. 515; Newling v. Francis, 3 Term Rep. 189.

Nay, a single unequivocal act may be potent enough conclusively to establish assent; as, for instance, if a suit be brought and persisted in, where it could be sustained only under the provisions of the amended charter. A similar observation was made in deciding the Lincoln and Kentucky Bank v. Richardson, I Greenl. Rep. 460, and the court added that the stockholders of the bank are bound by every act, which amounts to an acceptance on the part of the directors. But if by this was meant that the whole body of the corporation may generally be so bound by the acts of their agents, selected to administer the affairs of the corporation, the proposition can not be acceded to.

As is well remarked of this proposition in another place, it is founded upon the consideration that certain persons have been invested with sufficient power to bind the whole body by their acceptance, for where it is otherwise the charter must be accepted by a majority of the whole number of the company. Angell & Ames on Corporations, 53. Corporate powers are usually distinguished into legislative, electoral and administrative; in private corporations aggregate, though sometimes all the members act immediately in the administration of its affairs, usually, for the sake of convenience, the direct management is entrusted by the charter to certain officers, or board of managers, elected by the members at large, though deriving their ordinary powers from the act of incorporation. These officers exercise the legislative and administrative functions—the former in the institution of by-laws for the general government of the company, the latter in the superintendence and execution of its general business. Union Turnpike Company v. Jenkins, 1 Caine 381.

In other instances, a select few, representing all those interested in the object of the association, are erected into and vested with all the powers of a corporation, and sometimes the selected branches are divided into

distinct classes, as is the case in the corporation of St. Mary's Church, in this city. When the corporate existence is devolved on a board of officers, they not only wield the whole corporate authority, but may apply for and agree to radical changes in the instrument to which they owe their corporate being. When such a board is separated into intregal parts, occupying distinct positions, both must concur in any act, having for its object an alteration of the fundamental law, though in the exercise of the ordinary powers of a corporation, they act jointly, and are governed by a majority of the united bodies. Case of St. Mary's Church, 8 S. & R. 517. But these and other authorities evidence that where the whole body of stockholders, or other persons in interest, compose the corporation, the right of assenting to any proposed change in the charter resides in them, though ordinarily represented by a board of directors charged with the exercise of the corporate powers. These in their capacity of managers have no authority, either to call for or assent to a change of the corporate constitution, but by the agreement of a majority of the corporators. Being neither legislative nor administrative, the express assumption of such authority by the servants of the corporation would be an usurpation, for it is paramount not only to every corporate function, but the constitution itself, and as it may touch the very existence of the body, it can only be exerted by that body. It can not then be said that the assent of the original trustees to the January supplement is such an act of acceptance as will bind the corporation. Yet, as we have seen, a long acquiescence by the members of the company in acts and declarations of the trustees, recognizing the supplement as part of the charter, might constitute conclusive evidence of assent to it. Was there here any such acquiescence? Is there anything shown from which we can safely draw the inference that the company, knowing of the supplement, agreed to it as a portion of their constitution?

Perhaps it may be said that as the terms of the additional grant were favorable to the company, slight circumstances would justify a presumption of acceptance. But is there any ground, however narrow, upon which we can safely erect such an hypothesis? I have looked with some solicitude, but in vain, for a precedent that might justify an affirmative answer to this proposition, to which my judg ment refuses its assent.

It does not appear that the company was ever officially notified of the enactment. The defendants swear it was first produced at a meeting of the board by Mr..Claghorn, then president, on the 24th of January. By the provisions of the original charter, the trustees then in office might legally continue until about that time. From thence until the enactment of the second supplement, was a little over two months. During this interval we are not informed that the trustees or their agents performed any official act, or distinctly exerted the corporate power with the knowledge of their constituents. For aught the pleadings show, they sat still with folded arms, doing nothing, and requiring nothing. Now it seems to me, that the mere omission of the stockholders to assemble in formal meeting within that period,

for the purpose of electing other trustees, affords no presumption of assent sufficient to fasten upon them radical changes of their charter. Mere non-action for so brief a time ought not to draw after it a consequence so serious, particularly when it is recollected that the call of such a meeting would come most appropriately from the board itself. In answer to this it is not sufficient to suggest that a failure to elect trustees ought to be received as strong proof of acceptance; since, without this, a dissolution of the corporation must ensue. Perhaps, anciently, such would have been the result; but the present doctrine is, that a corporation does not become defunct from a simple neglect to elect officers, while the capacity to elect remains in the members. Lehigh Bridge Co. v. Lehigh C. & N. Co., 4 Rawle 24; Slee v. Bloom, 5 John. Ch. Rep. 336. It is said a corporation possesses a strong and tenacious principle of vitality (Corp. of Colchester v. Seaber, 3 Burr. 1816), and it therefore requires a long non-user of franchises to induce the courts to presume a surrender of corporate rights. Briggs v. Penniman, 1 Hopk. Ch. Rep. 300.

It follows the argument derives no aid from this source to establish a presumption of assent. But is there not evidence of positive dissent? We find that very shortly after its passage a sentiment of active hostility to the first supplement is manifested by a majority in number and value of the stockholders. When this began, we are not precisely informed, but we know that in less than three months after the date of the objectionable enactment, the feeling of opposition led to its repeal. It is fair, therefore, to infer it commenced at the moment the law was communicated to the board of trustees. How, then, with a knowledge of this important fact, can we regard the assertion that a majority of the company had agreed to accept it as an approved amendment of the first act of incorporation? It is, however, claimed that the supplement of April recognizes that of January to be in full force, because the latter repeals the former. The position is that if invalid, a formal repeal of the unaccepted act was unnecessary. Admitting this, I am at a loss to perceive how mere supererogation can derive an unintended positive effect from its nonusefulness. Besides, the repealing clause is not the work of the dissenting members of this corporation. Their rights are consequently unaffected by it. But the argument in favor of the first supplement is chiefly founded upon certain passages in the answer of the defendants, by which it is said they concede the first board of trustees were continued rightfully in office by virtue of this supplement. It is obvious, however, these passages are but echoes of the relator's petition, introduced, not in confirmation of it, but with reference to the immediately preceding denial of acceptance formally averred, and thus putting in issue the title of the relators. It is replied, this denial is not responsive to the bill, which does not distinctly aver acceptance. I think this is a mistake. Although in this part of the complaint. there is no direct assertion of the assent of the company to the January supplement, the act is distinctly referred to as an operative portion of the charter, which it could not be without acceptance. But

were this not so, the counter allegation would be by no means valueless. In equity proceedings, the distinction seems to be that an answer, if responsive, is evidence of the fact it alleges, requiring testimony to rebut it, but if the matter set forth be not responsive, it is not evidence of that matter at all, but must be proved. I Smith's Ch. Pr. 272, in note; Clark's Executors v. Van Ramsdyk, 9 Cranch 160; Hart v. Ten Eyk, 2 Johnson's Ch. Rep. 90. But this is in fact a proceeding at common law. Under its system, a new defensive averment, if it answers the plaintiff's case, is admissible. As, under our act of 1840, to be presently more particularly noticed, the relator's title may be put in issue under the quo warranto, any allegation affecting it may be material, and its truth will be conceded by a demurrer. If, therefore, in this instance, we adhered strictly to technical rule, we might, perhaps, be compelled to say that the plaintiffs, by their demurrer, admitted the non-acceptance of the first settlement and are thus concluded now to deny it. But as we think neither party contemplated this, when framing their pleadings, we prefer to rest our conclusions, as to this part of the case, on the absence of reliable proof of assent, either direct or inferential.

This brings us to the second question, whether there is an evidence of the acceptance of the April supplement? Our own determination in Shortz v. Unangst, 3 Watts & Serg. 45, following earlier decisions, settles, that to make a vote of acceptance valid, as the act of a corporation, it should be passed at a meeting duly convened, after notice to all the members. In such cases, congregated deliberation is deemed essential, and where an opportunity for this is afforded, the decision of a majority is binding, if no other mode be prescribed by the charter. The private procurement of a written assent, signed by the majority of the members, will not supply the want of a meeting. Such an expedient deprives those interested of the benefit of mutual discussion, and subjects them to the hazard of fraudulent representation and undue influence. Notwithstanding the objection, however, it seems to be agreed that a written acceptance, though not executed at a meeting, may be sufficient, if signed by all the stockholders or parties in interest. Davies v. Hawkins, 3 Maul. & Selw. 488; Stow v. Wyse, 7. Conn. Rep. 214; Livingston v. Lynch, 4 John. Ch. Rep. 573; St. Mary's Church, 6 Serg. & Rawle 498. As this is not true of the paper of the 9th of April, 1849, the defendants very properly disclaim it, as furnishing evidence of acceptBut they rely on the unanimous act of the majority of stockholders at a meeting convened by public advertisement, for the purpose of electing trustees, at which those now exercising that office received the whole number of votes of those in attendance. I concede there can scarcely be stronger evidence of acceptance than that furnished by an election of corporate officers in pursuance of a new, or the alteration of an old charter. King v. Larwoad, 1 Lord Raym. 32; Lewling v. Francis, 3 Term Rep. 189. Yet, like other corporate acts, it is but presumptive evidence of the prior assent of the company, by a vote of its members, at some supposed meeting, or at least of a

ance.