McCall v. Byram Manufacturing Co.

Hosmer, Ch. J. I shall first enquire, whether the service of the attachment of Stevens, by the officer, who only left a copy with Sullivan Moulton, one of the directors and the agent of the company, was legal. It is unquestionably clear, that this was no compliance with the requisitions of the law. Moulton — 435 — was not the secretary of the company. As director and agent, there were assigned to him duties of an entirely different character. It is true, there was no secretary residing in the state; but this fact only proves, that there was an impossibility of making legal service. If the question of service depended on the common law, and on a rule of practice established by courts, there would be reasonable ground for the assertion, that impossibilia excusant legem. But the corporation is an artificial person, made by the legislature, and subject to such liabilities only, as that body has prescribed. The statute has made an imperative requisition, as to what shall constitute a legal levy on corporation shares : and it is not within the competency of the court to be wiser than the law. The attachment by Stevens, not being conformable to law, created no lien : and the execution, which subsequently issued in favour of Darling, was levied in a manner equally defective. I shall not further discuss this subject, as the result to which the Court has come, renders it unnecessary. I come now to consider the title of the plaintiff. His attachment of the shares, was served, by leaving with Timpson, the supposed secretary, an attested copy, with a competent return indorsed ; and in the same manner, service was made of his execution. If Timpson was secretary, this was in precise conformity with the law ; (Stat. 36, 7. s. 6. 58, 9. s. 80.) and invested the plaintiff with a legal title to the shares in question. That Timpson was secretary in fact, appears from the verdict of the jury. There is no foundation. for the pretence, that he was merely an usurper. The being sworn and acting, it must be admitted, do not constitute an officer de jacto. There must be an apparent election to office, although for some cause, the person chosen is not de jure qualified for his station. 1 Woodes. 491 As was said in Rex v. Lisle, 2 Stra. 1090., to constitute a man an officer de facto, there must be, at least, the form of an election, although upon legal objections, it may fall to the ground. In this case, there undoubtedly was, the form of an election, and the actual and sole exercise of the official duties by Timpson. Now, a secretary de facto, is a secretary within the letter of the law. In my opinion, he is equally within the reason and spirit of it. The object of the legislature was, notice to the corporation and the stockholders, and this is equally accom — 436 — plished, whether a secretary is in the exercise of his official duties, by an unexceptionable election, or under the form of an appointment supposed to be valid. His acts would be obligatory on corporation ; and not a solitary reason occurs, to show, that the legislature has required a secretary de jure, or that the shares of a stockholder shall otherwise be locked up from attachment and execution. This determines the case in favour of the plaintiff; but as the Court have no doubt on another point in the case equally conclusive, I will proceed to express their opinion upon it. I shall pass by the cases cited on both sides, relative to the liabilities on corporations resulting from parol contract, express and implied, They undoubtedly have a bearing on the question before the Court, and are staled in a very lucid and able manner in the “Commentaries on American law.” 1 Kent’s Comm. 232. & seq. There is, however, a more lucid and satisfactory way of settling the point in question ; and that is, by attending to the precise objections made by the defendants. The first of them is, that the board of directors sitting in New-York, could not do any legal act. I discern no principle, on which this proposition can be sustained. No law of the state of New-York, inhibiting the exercise of the authority contemplated, has been referred to; nor am I aware that any exists. If so, the defendants should have proved it as a fact. Moslyn v. Fabrigas, Cowp. 161.-It is undoubtedly clear, that this state cannot establish a corporation within the jurisdiction of another state. It would be an invasion of sovereign power. But, that authority conferred on certain individuals, by the legislature of this state, the exercise of which has relation to an establishment here, may not be put in use, by votes or revolutions in another state, I do not admit. By the appointment of a secretary in New-York, no law of Connecticut, has been contravened. Nor is there in the nature of a vote or election, which is the mere expression of the understanding and will, any thing that is local. The objection, then, if any exists, must be exclusively this ; that the charter of the company has conferred no power, that can be exercised without the state. It is not contended, that any locality is expressly given to the exercise of the authority in question. The directors of the company are agents; and on what principle is their author — 437 — ity, as such, annihilated, or the exercise of it by vote annulled, any more than a delegated authority to an agent in other cases ? Greenwich, the town in which the manufactory is located, touches the line that separates the two states. Did the legislature of Connecticut, by implication, (for it has not been done explicitly,) intend it should be understood, that the directors might sit and vote on one side of this line, but if they went on the other side of this line, that their proceedings should be void ? I cannot give such a construction to an unlimited grant of personal authority, consisting in the mere exercise of mind, and as little restrained by locality, as any other operation of the mind IS. I admit, that the laws of Connecticut are local, and intended to be local. They are rules of action to the citizens of the state, while living within its jurisdiction. But the question before us, has no relation to the laws of Connecticut; but it respects the construction of a grant only. The cases cited by the defendants have no bearing on the point in controversy. Jackson d. Wyckoff v. Humphrey, 1 Johns. Rep. 498. merely decides, that a judge of the state of New-York, authorized within that state to administer oaths, was incapable of administering an oath in Canada, to the witness of a deed. That the president of an insurance company cannot legally accept of an abandonment, when the charter prescribes, that every act of the corporation shall be done by the president and at least four directors, was the point decided in Beatty v. The Marine Insurance Company, 2 Johns. Rep. 109. And in McQueen v. The Middletown Manufacturing Company, 16 Johns. Rep. 5. it was said by the court, that if a president of a bank of another state were to come within the state of New-York, he would not so represent that institution as to authorize a suit against the corporation by attachment, under the act relative to absent and absconding debtors. That the bank might authorize him to appear and plead, was admitted. Between drawing a corporation after its president, wherever he moves, so as to make this artificial person suable in a foreign jurisdiction, and the appointment of a secretary or cashier, there is a most manifest difference. That Timpson, being a permanent resident in New-York, was disqualified for the appointment of secretary, is made a second objection. This exception has no support in point of fact. It does not — 438 — appear that his residence in New-York was contemplated by the directors, but only that at the time of his appointment, he was there. Let it, however, be admitted, that it was intended he should exercise his official duties in New-York. What duty of his required his residence at Greenwich ? He could, in New-York, at least act the part of a recording officer ; and if any duty required his personal attendance at the manufactory, he must go there, or it would be unperformed. That copies of attachment and execution are to be left with him, constituted no duty of residence on his part, but infers only, that if he is inaccessible, no service can be made upon him. Even if the duties of his office were of perpetual recurrence, requiring perpetual residence, his total absence from the place of their execution, would not be evidence of his not being eligible ; but it would be good ground of his removal. Bul. N. P. 206. This brings me to the third and last objection. It is said, that Timpson’s appointment as secretary had expired before the levy of the plaintiff’s execution. It is clear from an examination of the by-laws and the acts of the directors, that the appointments were intended to be annual ; and in fact, were so originally. Timpson was appointed secretary, in January, 1822, and likewise in January, 1823, for the ensuing year. After this, he was the sole acting secretary ; and, by virtue of the legal construction of his appointment, he was secretary de jure. It is a well settled principle, that an annual officer continues until superseded, by the appointment of another in his place. Foot v. Prowse, 1 Stra. 625. The Queen v. Durham, 10 Mod. 147. Bul. N. P. 206. The People v. Runkel, 9 Johns. Rep. 147. 158, 9. Slee v. Bloom & al. 5 Johns. Chan. Rep. 366. 378. 2 Kent’s Comm. 238. Kelsy v. Wright & ux. 1 Root 83. The time when such an appointment is to be made, is considered as directory, and not imperative. With what force does the reason apply to the present case, where neither charter nor by-law limits the official existence of the secretary, and where the indispensable necessity of his continuance in office until another shall occupy his place, is so strikingly apparent ? I admit, that a statute, or by-law, or even an appointment, may be so restrictive, by the expression or implication of a negative, as to terminate an annual office at the end of a year.But the election to office for a year, has never been considered — 439 — as of this description. Such is the appointment to our town offices; hut the persons appointed continue indefinitely, until the incumbent’s place is supplied. See,the cases before cited. In The People v. Runkel, 9 Johns. Rep, 147. the court inclined to believe, that an office which the statute in question vacated at the end of a year, would no longer continue ; but even of this they did not speak with confidence. In conclusion, I have no doubt, that the plaintiff has made out his case, and that there ought not to be a new trial. Peters, Brainard and Lanman, Js. were of the same opinion. Daggett, J. gave no opinion, having been of counsel in the cause. New trial not to he granted.