conferred upon the directors by a by-law of the company, so that it will not be necessary to the exercise of the power by the directors that the stockholders should expressly authorize them to act in conformity with it.1

§ 97. Evidence of Acceptance of Amendment by Corporation. It has been well said that it is an acceptance in fact of the amendment to the charter, and not the filing of any formal certificate of acceptance, that binds a corporation to the amendment. It is also a reasonable conclusion that the assent of a corporation to an alteration of its charter may be inferred from such facts or omissions as would raise such a presumption in the case of a natural person.3 There is a presumption of an acceptance where the amendment consists of a grant beneficial to the corporation. Such an acceptance may be shown by the exercise by the corporation of the powers conferred by the amendment; 5 by showing that the corporation has done particular corporate acts authorized by the amendment, but without which such acts would not have been authorized; by the fact that the officers of the corporation have exercised the powers conferred by it; or, in general, by showing acts or omissions on the part of the corporation inconsistent with any other hypothesis. Where such an assent is sought to be proved

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1 Eastern R. Co. v. Boston &c. R. Co., 111 Mass. 125; s. c. 15 Am. Rep. 13.

2 Cincinnati &c. R. Co. v. Cole, 29 Ohio St. 126; Zabriskie v. Cleveland &c. R. Co., 23 How. (U. S.) 381.

3 Sumrall v. Sun Mutual Ins. Co., 40 Mo. 27, 32; Commonwealth v. Cullen, 13 Pa. St. 133; s. c. 53 Am. Dec. 450.

4"Where the new grant is beneficial in its aspect, it is thought very little is required to found a presumption of acceptance." Bell, J., in Com. v. Cullen, 13 Pa. St. 133; s. c. 53 Am. Dec. 450, 454. See also Bangor &c. R. Co. v. Smith, 47 Me. 34.

5 Wetumpka &c. R. Co. v. Bingham, 5 Ala. 658; Palfrey v. Paulding, 7 La. An. 363; Bangor &c. R. Co. v. Smith, 47 Me. 34; Goodin v. Evans, 18 Ohio

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St. 150; Penobscot Boom Co. v. Lamson, 16 Me. 224; s. c. 33 Am. Dec. 656. A general act, amounting to an amendment of all railroad charters, was deemed to have been accepted by action under it by the officers, who had power to request amendments, no stockholders ever objecting to it. Smead v. Indianapolis &c. R. Co., 11 Ind. 104. And this rule applies when the powers are conferred by a general law, which is declared applicable to any one of a class of corporations that may accept its provisions. Goodin v. Evans, 18 Oh. St. 150.

6 Kent County Court v. Bank Lick Turnpike Co., 10 Bush (Ky.), 529.

1 Story, J., in U. S. v. Dandridge, 12 Wheat. (U. S.) 64.

Hope &c. Ins. Co. v. Beckmann,

by a vote of acceptance on the part of the corporation, it should appear that the vote was passed at a general meeting, duly convened, after notice to all the members: the election of corporate officers, in pursuance of a new charter or the alteration of an old charter, is but presumptive evidence of an acceptance of the amendment creating the alteration. So, if the taking effect of the act depends upon the performance by the corporation of conditions precedent prescribed by the act, an acceptance in strict conformity with the provisions is necessary to render the act operative, either as a grant to or an obligation upon the corporation.2

§ 98. Evidence of Acceptance by Stockholders. The rule of the preceding section does not, on principle, hold as against dissenting stockholders and their privies. When the question arises between a dissenting stockholder, or his privies, on the one hand, and the corporation or the majority shareholders on the other, and he has not lost his rights by laches or estoppel, then it is a fair view that he is not bound, because it is one of his rights as a member to have his dissent heard and discussed in a corporate meeting. But circumstances may of course exist from which the assent of the objecting subscriber to the alterations in the charter, which were made subsequently to his subscription, may be inferred, without direct evidence of such assent. And where it does not appear by whom an amendment to the corporate charter was accepted, or whether it was accepted at all, it is sufficient, prima facie, if it appear that the corporation is organized and acting under it ; and in an action by such a corporation, the plaintiff is not under the burden of showing such an acceptance. It is said that, while an issue might be made that would involve the question, yet in the prosecution of

47 Mo. 93; Hope &c. Ins. Co. v. Koeller, 47 Mo. 129; Wetumpka &c. R. Co. v. Bingham, 5 Ala. 657; State v. Sibley, 25 Minn. 387; Palfrey v. Paulding, 7 La. An. 363; Covington v. Covington &c. R. Co., 10 Bush (Ky.), 69; Bangor &c. R. Co. v. Smith, 47 Me. 34.

1 Com. v. Cullen, 13 Pa. St. 133; s.

e. 53 Am. Dec. 450.

2 Lyons v. Orange &c. R. Co., 32 Md. 18.

3 Vermont & Canada R. Co. v. Vermont &c. R. Co., 34 Vt. 50; Owen v. Purdy, 12 Oh. St. 73; Lyons v. Orange &c. R. Co., 18 Md. 32; New Orleans &c. R. Co. v. Harris, 27 Miss. 517.

4 Com. v. Cullen, 13 Pa. St. 133; s. c. 53 Am. Dec. 450.

See in illustration of this, Connecticut &c. R. Co. v. Bailey, 24 Vt. 465; s. c. 58 Am. Dec. 181, 190.

its ordinary business, the assent to the new charter will be inferred from any acts or omissions which are inconsistent with any other hypothesis. In like manner it is said by the Supreme Court of Ohio: "The law protects any stockholder who, his assent being requisite to the amendment of a charter, has not assented. If a personal charge is sought to be fixed upon him by virtue of such amended charter, he may deny that he assented; he is not concluded by any presumption, arising from the acts of the other corporators or corporate body. If his interest in the corporation or rights as a stockholder will be affected by acting under the amended charter before it is accepted in the prescribed mode, he may invoke the aid of the State in a quo warranto; or, in an action by himself, the power of a court to restrain. But it cannot be permitted that a corporator, though his assent be in the first instance required, shall stand by, consenting to the progress of a corporation, under a charter, and then, when his interest shall so require, set up, either as a claim or defense, that, for want of his direct assent, the grant of a charter was not effective, and the acts done were illegal." 2

§ 99. View that Assent of Stockholder is to be Presumed, and Dissent Proved. It is said in an authoritative work that "no point is more clearly and firmly settled than that if a corporation procure an alteration to be made in its charter, by which a new and different business is superadded to that already contemplated, such stockholders as do not assent to the alteration will be absolved from liability on their subscription to the capital stock." 3 This language has been criticised as maintaining the proposition that affirmative assent is in such a case required. The following proposition in the work of Mr. Kyd has been judicially approved: "It seems to be the first suggestion of reason that an act done by a simple majority of a collective body of men, which concerns the common interest, should be binding on the whole; and that is the principle of the rule adopted by the common law of England with respect to aggregate corpora

." Reasoning from these propositions, the Supreme Court of Florida, speaking through Dupont, J., have said: "It would seem that, where the company undertakes to depart from or add to the original object or design, as set forth in the articles of association, or charter of incorporation there is this manifest difference between a simple partnership and an incorporated association: in the former, the assent of the individual member is not to be assumed - it is to be affirmatively established by positive proof; in the latter his assent will be presumed, unless he affirm atively proves his dissent. The ground of difference will be obvious to any reflecting mind. In the former case, the association being usually limited to a few members, they are generally competent to act in mass; whereas, the latter being composed of numerous individuals residing in remote localities, they are constrained, by the very necessity of the case, to speak through a conventional medium, viz., an organized majority. If this were not so, then would great inconvenience arise whenever it should become necessary for the interest of the association to vary from or add to the objects of the original enterprise. How would it ever be possible to obtain the express assent of each corporator? In many cases their particular localities would be unknown, and, if originally known, may have been changed from place to place. If this were not so, then, in every case of the decease of a stockholder, the corporation could accept no alteration of its charter, however such alterations might promote its interest and the consequent interest of each individual corporator, without reducing the original capital by the amount of stock standing in the name of the deceased; for it would not be pretended that the executor or administrator would have the authority, in such case, to assent, however clear it is that he would have the right to dissent, from the attempt to involve the estate in the new enterprise. Again, if this were not so, the rights and interests of the creditors would be at the mercy of the corporation; for, upon discovering that the prosecution of the original design of the charter had involved it in debt, and that its further pursuit was likely to prove unprofitable and disastrous, in order to absolve its members from liability for any further calls, it would only be necessary to obtain from the legislature an alteration of the charter, accepted by a meeting of stockholders composed of a bare quorum, under the provisions of the charter; and, as each individual might be sued upon his subscription, he would plead a want of express assent, and, unless it could be affirmatively proved that he was present at the meeting, he would be released, and the creditors defrauded of their just rights. But how is the fact of his presence to be

11 Kyd Corp. 422; Martin v. Pensacola &c. R. Co., 8 Fla. 370; s. c. 73 Am. Dec. 718.

proved? Who is the witness who will prove that he was at the meeting and consented to the alteration? The case before us fully illustrates these views; for, of all the witnesses interrogated, none could remember whether or not the defendant was present at the meeting which accepted the provisions of the internal improvement act, which, it is alleged, made a material alteration of the object contemplated in the original charter. And yet he may have been present, consenting to the act of acceptance, and, for the lack of this proof, he is to be absolved from his liability on his subscription, and the creditors, contractors, and laborers, who have given credit in part upon the faith of his subscription, to be deprived of their just rights; and this, too, without the slightest pretense that any injury or loss has or was likely to accrue to him from the alleged alteration. . . The individual subscribes to the contract, with the distinct knowledge and understanding that its terms may be varied at any time by a concurrence between a majority of his associates and the legislature, and that, too, without his assent and in defiance of his dissent. Nay, he subscribes with the distinct knowledge that, with such concurrence, the terms of the charter may be totally altered, so that the corporation may be authorized to embark in new enterprises wholly and essentially different from those originally contemplated, and that his only remedy is to dissent and withdraw from the association. With these distinguishing features, can it be seriously contended that the mere subscription to the stock of a corporation stands upon the same footing and is to be governed in all respects by the general law of contracts as applicable to private or individual agreements?" The court therefore held that no error was committed in giving the following instruction, in an action by a corporation against its shareholder for an assessment on his stock: "That the defendant must show that he made timely objection to the acceptance of the internal improvement act; and the presumption is, in the absence of proof to the contrary, that he assented to the action of the stockholders who unanimously accepted the act; and especially is the presumption proper where the company has contracted debts to large amounts before any objection is made." 1

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§ 100. Instances under the Foregoing Rules. - An act of the legislature, in addition to a former act, creating a corporation for the

1 Martin v. Pensacola &c. R. Co., 8 Fla. 370; 8. c. 73 Am. Dec. 713. "While it is true that each corporator may object to the repeal or to any material modification of the provisions of the charter granted for other than municipal purposes, and constituting a legislative contract protected

by the constitution of the United States, yet, in the absence of complaint, acquiescence in the change may be inferred, and ultimately its acceptance by the corporators." Western &c. R. Co. v. Rollins, 82 N. C. 523. Compare Mills v. Williams, 11 Ired. L. (N. C.) 558.