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and the action of the meeting was upheld upon the ground that power must be accorded the company to protect itself.

Was the notice left at his usual place of residence, at a time when he and his family were absent to remain until after the time fixed for the meeting, notice to him? Counsel insist that it constituted notice, and to sustain their position cite us to section 5206, Mansfield Digest; but that section has reference to notices mentioned in the code, and as notices to directors of business corporations are not included in such mention, we think the section inapplicable. The law provides for no constructive notice in such cases, and in the absence of such provision notice must be personal. Such seems to be the rule established by the authorities. 1 Beach Corp., § 281; Stow v. Wyse, 7 Conn. 214; s. c., 18 Am. Dec. 99, and note, 102-3; Covert v. Rogers, 38 Mich. 363; 1 Waterman on Corp., § 63, p. 205; 1 Morawetz Corp., § 531; Stevens v. Eden Meeting-house Society, 12 Vt. 688; Harding v. Vandewater, 40 Cal. 77.

Reversed.

Note. 1. Accord: 1828, Stow v. Wyse, 7 Conn. 214, 18 Am. Dec. 99, supra, p. 835; 1839, Stevens v. Eden Meeting-house, etc., 12 Vt. 688, supra, p. 836; 1841, Despatch Line v. Bellamy Mfg. Co., 12 N. H. 205, 37 Am. Dec. 203; 1842, Elliot v. Abbott, 12 N. H. 549, 37 Am. Dec. 227; 1859, Ross v. Crockett, 14 La. Ann. 811; 1876, Paola, etc., F. R. Co. v. Commissioners Anderson Co., 16 Kan. 302; 1877, Herrington v. District Tp. of Liston, 47 Iowa 11; 1878, Covert v. Rogers, 38 Mich. 363; 1878, Choteau Ins. Co. v. Holmes, 68 Mo. 601, 30 Am. Rep. 807; 1879, Baldwin v. Canfield, 26 Minn. 43; 1880, Pike Co. v. Rowland, 94 Pa. St. 238; 1882, Buttrick v. Railroad Co., 62 N. H. 413, 418; 1887, Chase v. Tuttle, 55 Conn. 455, 3 Am. St. Rep. 64, and note; 1888, Thompson v. Williams, 76 Cal. 153, 9 Am. St. Rep. 187, and note; 1892, Smith v. Dorn, 96 Cal. 73, 40 Am. & E. C. C. 196; 1895, Smith v. Cornelius, 41 W. Va. 59, on 68; 1895, First Nat'l Bank v. Asheville, etc., Co., 116 N. C. 827; 1895, Hamlin v. Union BrassCo., 68 N. H. 292, 44 Atl. Rep. 385; 1897, Limer v. Traders' Co., 44 W. Va. 175, 28 S. E. Rep. 730; 1898, Singer v. Salt Lake City Mfg. Co., 17 Utah 143, 53 Pac. Rep. 1024; 1899, Monroe Mercantile Co. v. Arnold, 108 Ga. 449, 34 S. E. Rep. 176; 1899, Broughton v. Jones, 120 Mich. 462, 79 N. W. Rep. 691. See next case, contra.

(2) In the absence of evidence to the contrary, notice is presumed to have been properly given and a quorum present: 1847, Sargent v. Webster, 13 Metc. (Mass.) 497, 46 Am. Dec. 743; 1883, Leavitt v. Oxford & G. S. M. Co., 3 Utah 265, 4 Am. & E. C. C. 234; 1887, Chase v. Tuttle, 55 Conn. 455, 3 Am. St. Rep. 64, and note; 1890, Rollins v. Shaver Wagon Co., 80 Iowa 380, 20 Am. St. Rep. 427; 1894, Benbow v. Cook, 115 N. C. 324, 44 Am. St. Rep. 454; 1895, Pauly v. Pauly, 107 Cal. 8, 48 Am. St. Rep. 98; 1899, Balfour-Guthrie Co. v. Woodworth, 124 Cal. 169, 56 Pac. Rep. 891.

(3) In the absence of statutory, charter or by-law provisions no qualifications, except such as the corporation may impose, are necessary in order to be a director. An officer may be, 1847, Sargent v. Webster, 13 Met. 497, 46 Am. Dec. 743; a non-resident may be, 1887, State v. Smith, 15 Ore. 98; an alien, resident or non-resident may be, 1890, Commonwealth v. Hemingway, 131 Pa. St. 614; and it has been held where the statute requires a director to be a shareholder, he may receive shares solely for the purpose of qualifying him 1891, In re Argus, etc., Co., 1 N. Dak. 434, 26 Am. St. Rep. 639. (4) Delegation of powers by directors:

(a) In general discretionary powers can not be delegated by those to whom they have once been delegated, and the powers of directors derived from share

holders are delegated powers: 1832, Percy v. Millaudon, 3 La. 568; 1837, Bank Commrs. v. Bank of Buffalo, 6 Paige Ch. (N. Y.) 497; 1850, Gillis v. Bailey, 21 N. H. 149; 1855, York, etc., R. Co. v. Ritchie 40 Me. 425; 1866, In re Leeds Banking Co., L. R. 1 Ch. App. 561; 1876, Farmers' Mut. Fire Ins. Co. v. Chase, 56 N. H. 341; 1877, Tracy v. Guthrie, etc., Soc., 47 Iowa 27; 1878, Silver Hook Road v. Greene, 12 R. I. 164; 1892, Weidenfeld v. Sugar, etc., R. Co., 48 Fed. Rep. 615; 1895, Temple v. Dodge, 89 Tex. 68.

(b) But if the board of directors is a statutory body, it is frequently held that its powers are original, and not delegated as the power of an agent is, and so may be delegated by it to others: 1814, North Hampton Bank v. Pepoon, 11 Mass. 288; 1883, Leavitt v. Oxford, etc., G. S. M. Co., 3 Utah 265; 1891, Sheridan, etc., Co. v. Chatham, etc., Bank, 127 N. Y. 517; 1893, Black River, etc., Co. v. Holway, 85 Wis. 344; 1896, Burden v. Burden, 8 App. Div. (N.Y.) 160; 1896, Union, etc., R. Co. v. Chicago, R. I. & P. R. Co., 163 U. S.

564.

(c) Purely ministerial, non-discretionary power may be delegated: 1823, Fleckner v. Bank of U. S., 8 Wheat. (U. S.) 338, 355; 1840, Burrill v. Nahant Bank, 2 Metc. (Mass.) 163; 1848, Stevens v. Hill, 29 Maine 133; 1856, Manchester, etc., R. Co. v. Fisk, 33 N. H. 297; 1864, Arms v. Conant, 36 Vt. 744; 1881, Burleigh v. Ford, 61 Ñ. H. 360; 1893, Skinner v. W. M. & R. M. Co., 140 N. Y. 217.

(d) Directors can not vote by proxy: 1891, Craig Medicine Co. v. Merchants' Bank, 59 Hun 561. Neither can shareholders unless specially authorized by charter or statute or by law provision: 1812, State v. Tudor, 5 Day (Conn.) 329, 5 Am. Dec. 162; 1829, Philips v. Wickham, 1 Paige (N. Y.) 590; 1834, Taylor v. Griswold, 14 Ń. J. L. 222, 27 Am. Dec. 33: infra, p. 1591; 1883, Commonwealth v. Bringhurst, 103 Pa. St. 134, 49 Am. Rep. 119; 1890, Commonwealth v. Detwiller, 131 Pa. St. 614, 7 L. R. A. 357.

Sec. 236. Same.

EDGERLY v. EMERSON.1

1851. IN THE SUPERIOR COURT OF JUDICATURE OF NEW HAMPSHIRE; 23 N. H. Rep. 555-573, 55 Am. D. 207.

[The Rochester bank had obtained a judgment against Jones, Richards and Legro. Execution was levied by Edgerly, as deputy sheriff, upon the goods of Jones, and these were delivered to Emerson for safe keeping. Legro as surety for Jones paid the judgment, and the execution was discharged in writing on its back by the cashier of the bank. Edgerly, relying upon a later assignment of the bank to Legro, demanded the goods of Emerson, who failed to deliver them. Edgerly then sued him, alleging the goods were lost by Emerson's negligence, and proposed to show that the discharge was written upon the execution through mistake, and contrary to the agreement of the parties, and that the same was intended, and supposed at the time it was executed, to be an assignment of said execution to Legro; and to prove this he offered the testimony of John McDuffie, Jr., who signed said discharge, to which the defendant objected, but which the court admitted.

The plaintiff proposed to show by parol that it was agreed between 1 Statement abridged; arguments and part of opinion omitted.

the bank and Legro that Legro should pay to the bank the amount of the execution, and the bank, by its cashier, McDuffie, should assign to him the execution, and all its rights, as against Jones, at the same time that the discharge was written upon the execution; but no vote was passed upon the subject.

The defendant objected that the proceedings of the directors could be proved by the records alone; but the court decided that if the directors agreed in any matter of business, it was not necessary that any formal question should be put, or vote passed; and that if their agreement was not recorded, it might be shown by parol.

It appeared that the meeting of the directors, last referred to, was a special meeting, and that only four of the seven directors were present or notified. The defendant objected to the meeting as illegal, but the court ruled that if a quorum were present, the proceedings were valid.]

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*

BELL, J. It was also objected that the meeting of the directors, on whose action the plaintiff relies, was illegal and their proceedings invalid, because it was a special meeting at which only four of the seven directors were present or notified. In the case of The Despatch Line of Packets v. The Bellamy Manufacturing Company, 12 N. H. Rep. 205, certain questions were determined in relation to the powers of the directors of corporations, by which we feel bound to abide. The case was considered with great care and ability. In that case it was held:

I. That if the authority of the directors, to manage and exercise a general superintendence and control over the affairs of the corporation, had been conferred by the charter itself, it would have been in the nature of an original corporate power, in a definite number, and a majority of the whole number being duly assembled at a regular meeting might act by major vote of those present.

II. That where the by-laws of a private corporation confer upon the directors power to act in behalf of the corporation without special limitation as to the manner, a majority may act within the scope of the authority given to the board and bind the corporation, either where there is a consultation of all together and a concurrence of a majority or where there is a regular meeting at which all might be present, and a majority actually meet and act by major vote.

III. That the act of a majority of such board, in the case last supposed, does not bind the corporation, unless

1. There was an assent of all the directors at a meeting, or, perhaps, separately obtained.

2. Or there was a meeting and consultation of the whole board and a vote of a majority.

3. Or a meeting held at some regular period, at which a majority were present and acted by a major vote.

4. Or a meeting regularly notified, at which a majority assembled and acted by major vote.

IV. When the act purports to be the act of the board, it may be presumed it was the act of a majority until the contrary is shown.**

But this applies only to a regular meeting, which is a stated meeting, at which all have, of course, the needful notice and opportunity to be present, or a special meeting, at which all have been duly notified to be present. The question which arises in this case is different. The meeting in question was not a stated meeting nor a meeting at which all had been duly notified to be present. Four only of the seven directors were present, and no others had been notified. The general principles applicable to the exercise of joint powers are well settled. When individuals or corporations give an authority jointly to two or more persons, in order to bind the principal all the agents must act. Jewett v. Alton, 7 N. H. Rep. 253; Andover v. Grafton, 7 N. H. Rep. 304. But where a number of persons are by law entrusted with power not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority and their act will be the act of the whole. Grindley v. Barker, 1 B. & P. 236; King v. Beeston, 3 D. & E. 592; Green v. Millar, 6 Johns. 39; Farwell's Petition, 2 N. H. Rep. 124; Damon v. Granbly, 2 Pick. 345.

There are, however, many cases where an authority is granted to a board or to several persons, or a majority of them, or a certain limited number, either more or less than a majority, who are thereby constituted a quorum. Thus, in the usual form of bank charters there is a provision that "no less than four directors shall constitute a board for the transaction of business, of whom the president shall be one, except in case of sickness or necessary absence, in which case the directors present may choose a chairman for the time being, in his stead." The effect of this clause we deem the same as a provision that the directors, or any four of them, shall be competent to transact any business of the bank. Four constitute a quorum, and when assembled possess all the powers of the entire board.

*

*

We are, therefore, of the opinion that where a quorum of the directors of a bank meet and unite in any determination the corporation are bound, whether the other directors are or are not notified.

Such, we understand, to be the construction, practically given to this part of their charters by all our banking institutions, and we think their convenience requires that it should be sustained.

Verdict set aside on other grounds.

Note. Accord. 1876, State v. Smith, 48 Vt. 266; 1885, Bank v. Flour Co., 41 Ohio St. 552, on 558-9. Compare, 1898, Troy Mining Co. v. White, 10 s. D. 475, 42 L. R. A. 549. See, however, contra, cases in note, supra, p. 850.

ARTICLE III. MODE OF ACTION GENERALLY.

Sec. 237. Presumptions.

PRESIDENT, DIRECTORS, ETC., OF BANK OF THE UNITED STATES v. DANDRIDGE ET AL.1

1827. IN THE Supreme Court of the UniteD STATES. 12 Wheat. (25 U. S.) Rep. 64-116.

[Writ of error from the circuit court.

The original action was debt upon a bond, purporting to be signed by Dandridge as principal, and six sureties, to insure the faithful performance by Dandridge of the duties of cashier of the bank. The plea was non est factum, the ground of which was that the bond had never been approved according to the rules and regulations of the bank. These required the cashier "before entering upon the duties of his office to give bond, with two or more sureties, to the satisfaction of the directors" in a sum named. Evidence to show the execu tion and approval of the bond was offered, but upon objection was rejected by the court. This is the error assigned.] STORY, J. It is material to state that the rejection of the evidence did not proceed upon the ground that it was of a secondary nature, leaving behind, in the possession of the plaintiffs, evidence of a higher and more satisfactory nature. On the contrary, the whole structure of the case shows that there was, in the understanding of both the parties, no record ever made of the approval or acceptance of the bond in question, and the principal controversy was whether it could be established by any evidence short of such record proof.

The propositions maintained by the circuit court were, in substance, these: First, that the cashier could not legally enter upon the duties of his office, nor make his sureties responsible for his non-performance of those duties, before his official bond was accepted as satis factory by the board of directors, according to the terms of the charter. Secondly, that such acceptance could be established only by proof drawn from the records of the board of directors; and if no record had been kept of such assent and acceptance, the bond was ineffectual, and no secondary evidence could be admitted to establish the fact.

The last proposition will be first considered. The correctness of it in a great measure depends upon the soundness of the distinction taken between the acts of private persons and the acts of corporations. It is admitted, in the opinion of the circuit court, that the evidence offered would, in common cases, between private persons, have been prima facie evidence, to be submitted to the jury as proof that the bond was fully executed and accepted. But it is supposed that a different rule prevails in cases of corporations; that their acts

1 Statement abridged; much of Story's opinion, and most of the dissenting opinion of Marshall, Ch. J., are omitted.

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