cannot vote upon it.18 A corporation cannot, either directly or through the intervention of a trustee, be a "stockholder" of its own capital stock.14 Stockholders who are not such on the day an election is held, cannot vote, although they were stockholders on the day the election should have been held.15 The right to vote by proxy does not exist at common law; 16 and it requires legislative sanction before any corporation can make a valid by-law authorizing members so to vote.17 And where, by the terms of incorporation, the right to vote by proxy is given to each stockholder, being a citizen, an alien is excluded.18 But under the charter of a religious corporation, which made no mention of citizen or subject, aliens, who were otherwise qualified, were permitted to vote at an election of officers. 19

1 Brewster v. Hartley, 37 Cal. 15; People v. Phillips, 1 Denio, 388; and see Rex v. Head, 4 Burr. 2515.

2 People v. Philips, 1 Denio, 388; Taylor v. Griswold, 2 Green, 222. 3 See Schaeffer v. Missouri etc. Ins. Co. 46 Mo. 248; State v Tudor, 5 Day, 329; Mills v. Stewart, 41 N. Y. 384.

4 Beckett v. Houston, 32 Ind. 393; and see Chester Glass Co. v. Dewey, 16 Mass. 94.

5 Downing v. Potts, 3 Zab. 66; see Highland Turnp. Co. v. McKean, 11 Johns. 98; Matter of Wheeler, 2 Abb. Pr. N. S. 361.

6 State v. Ferris, 42 Conn. 560.

7 Hoppin v. Buffum, 9 R. I. 513; and see Bank of Commerce's Appeal, 73 Pa. St. 539; Schoharie Valley R. R. Case, 12 Abb. Pr. N. S. 334; Mousseaux v. Urquhart, 19 La. An. 482; Downing v. Potts, 3 Zab. 66.

8 People v. Devin, 17 Ill. 84;-see Salisbury Mills v. Townsend, 109 Mass. 115.

9 Matter of North Shore etc. Ferry Co. 63 Barb. 556.

10 Matter of Barker, 6 Wend. 509; Wilson v. Proprietors of Central Bridge, 9 R. I. 590.

11 Ex parte Willcocks, 7 Cowen, 402; 17 Am. Dec. 525; and see Schol field v. Union Bank, 2 Cranch C. C. 115.

12 Dowell v. Thompson, 3 Cranch C. C. 423.

13 American Railw. etc. Co. v. Haven, 101 Mass. 398; ex parte Holmes, 5 Cowp. 426; Mousseaux v. Urquhart, 19 La. An. 482.

14 Brewster v. Hartley, 37 Cal. 15. Compare § 107, post.

15 Johnston v. Jones, 23 N. J. Eq. 216.

16 Taylor v. Griswold, 2 Green, 223; People v. Twaddell, 18 Hun, 427; and see Philips v. Wickham, 1 Paige, 590. Compare State v. Tudor, 5 Day, 329; 5 Am. Dec. 162.

17 Philips v. Wickham, 1 Paige, 590.

18 Matter of Barker, 6 Wend. 509.

19 Commonw. v. Woelper, 3 Serg. & R. 29; 8 Am. Dec. 628; see also Stewart v. Foster, 2 Binn. 120; Cammeyer v. United Churches, 2 Sand. Ch. 186.

§ 70. Validity of elections.-Unless the charter declares it void, an irregular election is voidable only, and not actually void. If no particular mode of proceeding is prescribed by law, an election conducted in good faith ought not to be set aside for mere informality. Where there was actual notice, and in the absence of fraud or surprise, the neglect of an officer to perform a merely ministerial act will not defeat an election. Thus, an election of directors is not invalid or to be set aside as irregular, because the oath actually administered to them was not subscribed by them.4 Nor is an election of trustees invalidated by the neglect or delay of the inspectors to give the proper certificate. Nor is an election rendered invalid by the fact that the inspectors kept the polls open longer than the time fixed by the notice, it appearing to have been done for the purpose of enabling stockholders present and offering to vote, to do so.6 But election means due election, and a merely colorable and elusive election is absolutely null and void. So, an election may be held void on the ground of a preconceived scheme, combination, or conspiracy to carry the election by the use and abuse of legal process and proceedings,8 But a combination among members owning a majority of the stock of a corporation, to secure the board of directors and the management of the corporate property, is not necessarily void, as against public policy. If the list of stockholders exhibited and acted upon on the day of election was a false list, and was known to be false by the parties who exhibited it, the election is not legal.10 But the reception of illegal votes does not alone vitiate an election; it must affirmatively appear, in order to avoid the election, that the wrongful action changed the result of the election, 12

1 Crawford r. Powell, 2 Burr. 1013; Rex v. Bridge, 1 Maule & S 76; and see Trustees etc. v. Hills, 6 Cowen, 23.

2 Philips v. Wickham, 1 Paige, 590; Hardenbergh t. Farmers etc. Bank, 2 Green, 68; Rex v. Thetford, 8 East, 270.

3 Gorham v. Campbell, 2 Cal. 1:5.

4 Matter of Wheeler, 2 Abb. Pr. N. S. 361.

5 People v. Peck, 11 Wend. 604.

6 People v. Albany etc. R. R. Co. 7 Abb. Pr. N. S. 265; 55 Barb. 344; 1 Lans. 308; 38 How. Pr. 228; Matter of Mohawk etc. R. R. Co. 19 Wend 135.

7 Rex v. Mayor etc. 4 Burr. 2008; Reg. v. Corp. of Pembroke, 8 Dowl. 302.

8 People v. Albany etc. R. R. Co. 7 Abb. Pr. N. S. 265; 1 Lans. 308. 9 Faulds v. Yates, 57 Ill. 416; S. C. 11 Am. R. 24.

10 Johnston v. Jones, 23 N. J. Eq. 216.

11 M'Neely v. Woodruff, 1 Green, 352.

12 Downing v. Potts, 3 Zab. 66; State v. Lehre, 7 Rich. 234; Wardens etc. v. l'ope, 8 Gray, 140; People v. Cicotte, 16 Mich. 283; Judkins v. Hill, 50 N. 11. 140; Johnston v. Charleston, 1 Bay, 441; Rex v. Jefferson, 2 Nev. & M. 487; and see Matter of Long Island R. R. Co. 19 Wend. 37; Hartt v. Harvey, 10 Abb. Pr. 321; 32 Barb. 55; State v. Swearingen, 12 Ga. 23; Mousseau v. Urquhart, 19 La. An. 482.

§ 71. Presumptions bearing on elections.—Where an officer is required to be chosen by ballot, and the record of his election does not specify the mode, the legal presumption is, that he was chosen as required.1 If votes are cast by proxy at an election, it will be presumed that the proxies were regular and proper, in the absence of proof that they were properly executed, or that the persons executing them were members of the society. If it be averred that the directors of a company were duly elected by the stockholders, in pursuance of notice, it will be presumed that the requisite amount of stock has been subscribed to authorize such election.3 Persons acting publicly as the officers of a corporation, are to be presumed rightfully in office. A corporation cannot object that its directors, who have acted as such, were not elected at a meeting properly notified. And the right of de facto directors of a corporation to act as directors cannot be questioned collaterally.

1 Blanchard v. Dow, 32 Me. 557.

2 People v. Crossley, 69 Ill. 195.

3 Ashtabula etc. R. R. Co. v. Smith, 15 Ohio St. 328; and see Smith . Erb, 4 Gill, 437.

BOONE CORP.-8.

4 Bank of U.S. v. Dandridge, 12 Wheat. 64, 79; and see Baird v. Bank of Washington, 11 Serg. & R. 411; Trustees etc. v. Hills, 6 Cowen, 23; McCollough v. Annapolis etc. R. R. Co. 4 Gill, 58.

5 Sampson v. Bowdoinham etc. Co. 36 Me. 78; and see State v. Lehre, 7 Rich. 234; Partridge v. Badger, 25 Barb. 146; Royal British Bank v. Turquand, 5 El. & B. 248.

6 People v. Stevens, 5 Hill, 616; Rex v. Hughes, 4 Barn. & O. 368; People v. Hills, 1 Lans. 202.

CHAPTER VIL

CORPORATE LIABILITIES.

5 72. Capacity to be sued, generally.

§ 73. May be sued by members.

5 74. In what courts.

§ 75. In what name to be sued.

§ 76. Liability upon contracts, generally.

§ 77. Liability upon negotiable instruments.
§ 78. Liability for wrongs.

§79. In cases of fraud.

§ 80. Tortious acts of agents.

§ 81. Trespass to the person.

§ 82. Trespass to property.

§ 83. Libel, malicious prosecution, etc.

§ 84. Negligence.

§ 85. Wrongful acts resulting in death.

§ 86. Liability to indictment.

§ 87. Liability to taxation.

§ 88. Place of taxation.

§ 89. Modes of valuation and assessment.

$ 90. Exemption from liability to taxation.

§ 72. Capacity to be sued, generally.--The capac ity of being sued is one of the incidents of a corporation, although it is usually contained among those powers expressly given; 1 subject to the qualification, that it is in relation to some matter within the scope of the legitimate purposes of the corporation.2 Assumpsit will lie against a corporation; so will an action on the case; so of an action of trover; 5 or of trespass. And certain bodies created by the legislature, having a corporate capacity for particular specified ends, have an incidental capacity to be sued, independently of any express power, and for such purpose are regarded as corporations sub modo. A liability imposed by statute generally, includes corporations as well as natural persons.8 But a corporation is