Despatch Line of Packets v. Bellamy Man. Co.

12 N.H. 205 | Superior Court of New Hampshire | 1841

Parkeh, C. J.

The first question we have considered, is, whether Emery was a director, so that his act, as such, could have any validity. He appears to have been elected an associate of the company, and at the same meeting when the by-laws were adopted, to have been chosen a director. It was suggested that his election was under the first article of the by-laws, which made a temporary provision until the annual meeting in 1837, and that this article did not require that the person elected should be a proprietor ; but this position is questionable, and the consideration of it may be waived. The second article of the by-laws, that any person chosen a director should cease to be one when he ceased to be a proprietor, if construed according to its precise language would not prohibit the election of a person who was not a proprietor ; and it might possibly have been intended not to debar the corporation from electing one who owned no stock, but only to terminate the official character of any one, who, having been elected and trusted because he was a proprietor, no longer had the interest in the success of the company which formed the inducement to elect him. But this was not probably the construction intended. There is nothing in the proceedings of the company, to show that we ought to give this clause such a strict interpretation, and it may well be construed to render any one who was not a proprietor ineligible. Such seems to be the fair implication. The fact that Mr. Emery was elected to the office does not militate against this construction; for although he was never an owner, his election was very probably made under an anticipation that he would qualify himself for the office by a purchase of stock.

But this construction of the by-law does not alter the case. He was elected a director, and his election made matter of record; and he acted as such when the vote, out of which the mortgage to the trustees arose, was entered in the book provided for that purpose. If this election had been by a municipal corporation, coming into office under color of an election he would have been an officer de facto, and his acts valid so far as third persons had an interest in them. And the regularity of the election could not in such case be enquired into, except in some proceeding to which he was a party. 7 N. H. Rep. 131, 135, Tucker vs. Aiken, and cases cited. As a director of a private corporation, although called, in common parlance, an officer of the corporation, he is, perhaps, not technically to be considered an officer de facto. He is one of the agents elected by a vote of the corporation, for the management of its affairs, or some of them. But a similar rule must prevail in relation to the effect of his acts, so far as the corporation have held him out as an agent, and third persons have confided in his acts, done within the scope of the authority he appeared to possess. By electing him a director, and permitting him to act as such, the corporation held him out to the world as a director — as one of their agents, having all the powers of an agent of that description, and to be trusted as such. And it was only necessary, under such circumstances, for those who dealt with the corporation through him, to enquire what powers directors had, and what acts the corporation had authorized them to do. They were not required to investigate the qualifications which the corporation had prescribed to itself, as the condition upon which any one should be elected, or permitted to act. The corporation, when Emery was elected, had the means of knowledge whether he was qualified according to their by-laws. On the conjecture that he was expected to take stock, and that the election was made in anticipation of that, he might have been required forthwith to become a stockholder, before his acceptance, or the corporation might have proceeded to another election. Instead of this, they left his election as a director upon the record, as if he was duly eligible, and thus held him out, and permitted him to hold himself out, as a director ; and he so acted. It is a settled rule, that a person is bound by the acts of another, whom he has held out to the world as his agent for that purpose. Davis vs. Lane, (10 N. H. Rep. 156;) Beard vs. Kirk, (11 N. H. Rep. 397.)

Here, however, another question arises. Ira Haselton was a director, duly elected. Without considering whether the president was ex officio a director, as well as presiding officer of the board — and without enquiring into the particular effect of the provision in the second article of the bylaws, that the directors should jointly manage the affairs of the corporation — it is sufficient to say that there were three directors, and only two of them were present, and authorized this mortgage to the trustees.

The vote, authorizing the mortgage, purports to have been passed at a meeting of the directors; and it might, nothing appearing to the contrary, well be presumed that it was passed by all, or had the concurrence of the requisite number to render it valid. And it might not be sufficient to rebut this presumption, to show that the assent of the several directors was procured without any meeting, or consultation, each giving his assent at a different time and place ; although this is not perfectly clear. There are safeguards in consultation, and considerations of policy, as well as of construction, which, in the absence of special authority authorizing a different course, furnish an argument in favor of the position, that an authority to two or more officers or agents of a corporation, in their discretion, to do certain acts, is not well executed by the assent of all, if given separately to the acts. On the other hand, if all concur in assenting to or directing the act, it may be said, with much force, that all is done which the constituent required, where there is no express restriction rendering the presence of the whole number, together, necessary, in order to the validity of any act done. But it is not important to discuss this farther, at this time. However this may be, all presumption that the vote authorizing this mortgage had the concurrence of all the directors, is expressly negatived by the evidence in the case ; from which it appears that Ira Haselton never joined in it, or in any way assented to it, and that he was not even consulted on the subject before the mortgage was made. Taking the most favorable view of the matter, the vote was the act of two, out of three directors, without any consultation with the third, or any concurrence on his part; and is this sufficient to bind the corporation, and render the mortgage valid ?

It has been held that where the directors of a corporation have power to bind it by their contracts, that power may be exercised by a majority. 3 Fairf. 354, Cram vs. The Bangor House Proprietary. And this is cited as an authority in point, in this case. But it by no means settles the question now presented. It did not appear in that case, that all the directors were not present; or if they were not, that they had not been notified, and had an opportunity to be present; which, appearing here, constitutes a marked difference between the two cases.

Where is the authority to be found, in this case, for two of the directors to do this act, without the knowledge of the other? The sixth article of the by-laws provides, that “ the directors shall have power” (after other matters specified,) “to exercise the general superintendence and control over the affairs of the company, and to appoint an agent or agents, and such other officers for carrying on the business of the company,” &c.. “ as they may determine.” The second article gave them, jointly, similar powers. This is a very general authority, sufficient to authorize them to borrow money and execute a mortgage. But this power is given to the directors — not, in terms even, to a majority of them. There was here no vote of the corporation giving them any special power'to execute the mortgage, or to authorize it to be done. The mode in which the directors might act depends, therefore, upon the principles applicable to by-laws which confer powers upon the directors generally. The general principle in relation to agencies is, that where an authority is given to two or more persons to do a private act, the act is valid, to bind the principal, only when all of them concur in doing it. Story on Agency 44; 7 N. H. Rep. 304, Andover vs. Grafton, and auth. cited.

Where the authority is to do an act of a public nature, if all meet for the purpose of executing it, a majority may decide. 1 B. & P. 229, Grindley vs. Baker; Co. Litt. 181, b.; 5 Binn. 481, Case of the Baltimore Turnpike; 9 B. & Cres. 648, The King vs. Whitaker.

The duties of officers, so called, of corporations, where those duties are prescribed by the corporation itself, are in the nature of an agency; but such officers or agents, appointed not to do single acts, but for regular terms, and having by the by-laws a general or very extensive authority in the management of the concerns of the corporation, it is believed have not in practice been supposed to come within either of the above rules. And it might not only be inconsistent with the general usage upon the subject, but operate to impose unnecessary restrictions upon such bodies, to apply a rule requiring in all cases the assent, or even the presence, of all the directors, or agents of any other class, deriving from the by-laws regular powers.

Had the authority of the directors, to manage and exercise a general superintendence and control over the affairs of the company, 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 the major vote of those present. 6 D. & E. 278, The King vs. Miller; 4 D. & E. 823, The King vs. Bellringer; Cowp. 250, Rex vs. Varlo; 1 B. & P. 236; 7 Cowen 409, and note, 410, Ex parte Willcocks. Does it make tiny difference, in this respect, that the power is found in the by-laws, instead of being conferred directly by the charter ? The principle has been applied in other cases than those of public corporations. 9 Barn. & Cres. 851, Blackett vs. Blizard.

The directors of corporations generally, whose usages have been such as to deserve notice, (although no evidence of usage is found in this case,) are supposed to have had stated or notified meetings, at which a majority undertook to transact the business confided to the board ; and to hold that the act of the majority in such cases was invalid, might shake titles, or cause other inconveniences to a serious extent.

And we are of opinion, 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 a major vote. 8 Conn. R. 191, Savings Bank vs. Davis. And when the act purports to be the act of the board, it may be presumed that it was the act of a majority, until the contrary is shown.

We are not aware of any well settled principle, or usage, which will carry us farther than this. The cases which hold that a majority of a definite body being assembled, a major part of those assembled may act, presuppose a regular meeting, or one on notice.

We consider the decision in Maine in concurrence with these principles, as far as it extends on the fac,ts in that case.

But this presumption just adverted to, may be rebutted, and is so in this case. Here was no assent of all the directors at any meeting, or even obtained separately, if that might be held sufficient. Nor were there a meeting and consultation of the whole board, and the vote of a majority, authorizing the act to be done. Nor was there a meeting regularly notified, or held at some regular period, at which, all not appearing, a majority assembled, and acted by a major vote. There is nothing to show that Ira Haselton had any opportunity to act; and the attempt, therefore, to show a preexisting authority to give this mortgage, by means of the vote of the directors, must fail, if the corporation were contesting the matter on the evidence before us.

In this view, it is not necessary to consider another question which has suggested itself, and that is, whether the directors, in case all had assembled, could have conferred authority upon one of their body, or any other person, as agent, to make the mortgage ; or whether it must, in order to its validity through the acts of the directors, as such, have been executed by at least a majority of the board of directors. The general principle is, that one who has a bare power to do an act, must execute it himself, and cannot delegate his authority to another — that the authority is exclusively personal, unless from the express language used, or from the fair presumptions growing out of the particular transaction, or of the usage of trade, a broader power was intended to be conferred on the agent. Story on Agency 14, 16; 7 N. H. Rep. 804. If this had been material, it might have deserved consideration whether the power given to the directors, to appoint agents for carrying on the business of the company, were not sufficient of itself to authorize the delegation in this case, or whether that were to be confined to the ordinary business of the corporation. 8 Conn. R. 201, 207; 12 Mass. R. 522.

The evidence failing to establish the validity of the mortgage to the trustees, through the vote of the directors appended to it, other questions present themselves on the case before us.

It has been contended that Palmer, as general agent of the company, had power to borrow money, and to pledge the machinery, to secure the loan, without vote. This was not a pledge. No possession appears to have been given, or intended to have been given, at the time. But if it had been, there is nothing in the by-laws, or in the nature of the agency, nor any thing in the authorities cited, which can sustain the right to pledge the machinery, even if that of borrowing money may be inferred. Stow vs. Wyse, 7 Conn. R. 219, contains a strong implication to the contrary. The by-laws provide that the directors may appoint an agent, or agents, for carrying on the business of the company. But it is not carrying on the business of the company to pledge or mortgage the machinery used by the company, and thereby suspend its operations, or place them at the will and pleasure of a mortgagee. Ang. & Ames on Corp. 172, and cases cited; 7 Wend. 33, Life & Fire Ins. Co. vs. The Mechanics Fire Ins. Co. Circumstances might be such, possibly, as to show an authority to pledge the manufactured goods, which he was authorized to dispose of, but that is not this case.

The note to the Savings bank is carelessly drawn; but there is sufficient on its face to show that it was intended to be the note of the Bellamy manufacturing company, and it might well subsist as such, if Palmer had authority to execute it. See 2 Stark. Ev. 477, n. 1; 2 East 142, Wilks vs. Back; 7 N. H. Rep. 484, Montgomery vs. Dorion; 10 Wend. 271, Pentz vs. Stanton; Savage vs. Rix, (9 N. H. Rep. 263;) 2 Wend. 325, Evans vs. Wells. There is no form prescribed, in which such an instrument shall be made ; and it is immaterial whether the name of the principal or agent be placed first, if the authority exist, and the intention be apparent. There can be no good reason why Palmer should have added, “ Agt. Bellamy Man. Co.” to the signature, if he intended to make a personal contract. It may be held to be the note of Palmer, if there were no authority, and no ratification of the act. But a ratification will exonerate him from liability. Story on Agency 246.

The mortgage which he executed at the same time, and which was part of the same transaction, and describes the note as the note of the company, is formal to convey as well real as personal estate. It purports to contain a conveyance, and covenants of the company, and to be executed by the company, and that the corporate seal is affixed. The signature and acknowledgment are that of the company, made by Palmer as agent. Being, in form, the deed of the company, executed by one who assumed to act as their agent, it is susceptible of ratification ; and. the next question is, whether it has ever been ratified, and if so, to what extent. This includes the consideration of what is necessary to a ratification.

There has been some diversity of opinion upon the subject whether a corporation, or the directors of a corporation, can constitute an agent for the conveyance of real estate, except by a power under the corporate seal. 8 Conn. R. 192.

In the case of an individual, whenever any act of agency is required to be done, in the name of the principal, under seal, the authority to do the act must be conferred by an instrument under seal. 6 N. H. Rep. 250, Montgomery vs. Dorion; Story on Agency 5Ü.

There seems to be no doubt that, according to the rule of law as held in England, a corporation cannot convey, nor mortgage, but under the corporate seal. 4 Kent’s Com. 443, and auth. cited; 8 Conn. R. 191.

But a different rule has prevailed to some extent in this state, so far at least as regards conveyances by towns, and the proprietors of common and undivided lands. 5 N. H. Rep. 458, Cofran vs. Cochran; 7 N. H. Rep. 275, Copp vs. Neal; Atkinson vs. Bemis, (11 N. H. Rep. 44;) 4 N. H. Rep. 102, Coburn vs. Ellenwood. In this latter case, Chief Justice Richardson said, “ It is not now to be doubted that the proprietors of common and undivided lands are corporations, or that they can by vote authorize agents to make conveyances in their name, or that deeds properly executed by such agents may be valid to pass the estate.”

And the weight of authority in this country seems to be in favor of the position, that private corporations, or boards of directors through which their business is transacted, may appoint an agent for the conveyance of real estate, by vote, without a power or instrument under the corporate seal. Angell & Ames on Corp. 114, 154; 8 Conn. R. 192, 202, and auth. cited. If the formality of an instrument under seal, conferring the power upon the agent who is to make the conveyance, should be required, it would add nothing to the authenticity of the conveyance, if the individual who affixes the seal to the power derive his authority from a mere vote of the corporation.

But there is here no vote of ratification, either by the corporation or by the directors; and we are not aware of any authority which will justify us in going farther, and holding that a deed of real estate may be ratified by a corporation, without vote or writing. The general principle is, that if the act of the agent purport to be under seal, and in the name of the principal, so as to be his deed, the ratification must be under seal. Story’s Agency 246. A parol acknowledgment by a principal, that an agent had authority under seal to enter into a sealed contract obligatory upon his principal, is competent evidence of such authority; but if, at the time of entering into it, the agent had in fact no authority under seal, the subsequent parol acknowledgment and ratification will not bind the principal. 12 Wend. 525; 9 Wend. 68, Blood vs. Goodrich; Holt’s N. P. R. 141, Sleiglitz vs. Egginton; 20 Wend. 258, Wells vs. Evans. And in a case where a sealed instrument was not necessary, but an agent was authorized, by parol, to enter into a contract for the purchase of timber, and he entered into a sealed contract, a counterpart of which in like form was delivered to the principal, and acknowledged by him as the evidence of the contract, and he received the timber and made some payments, it was held that an action of covenant could not be maintained on the contract. 9 Wend. 54, Hanford vs. McNair.

A ratification of an act, done by one assuming to be an agent, relates back, and is equivalent to a prior authority. Story on Agency 235, 239. When, therefore, the adoption of any particular form or mode is necessary to confer the authority in the first instance, there can be no valid ratification except in the same manner. If a sealed power were not necessary to this as a conveyance of the real estate, but a written vote would have been sufficient, because a corporation may constitute an attorney by vote for such purpose, then such vote at least must be held necessary to a ratification. We are of opinion, therefore, that this mortgage is inoperative as to the real estate. And this must apply to the fixtures.

The strict rule as to fixtures, that prevails between heir and executor, applies as between vendee and vender. 2 Kent's Com. 280; 6 Cowen 665, Miller vs. Plumbe; 20 Johns. 30; 1 Harr. & Johns. 291.

The same rule applies between mortgagee and mortgager. 15 Mass. 159, Union Bank vs. Emerson; 2 Adolph. & Ellis 167, Longstaff vs. Meagoe.

Machines, and other articles essential to the occupation of a building, or to the business carried on in it, and which are affixed or fastened to the freehold, and used with it, partake of the character of real estate, become part of it, and pass by a conveyance of the land. 3 N. H. Rep. 504, Kiltredge vs. Woods, and cases cited; Amos & Ferard on Fixtures, chap. 4, 132, 151; 3 Mason's R. 459, 464, Powell vs. The Monson & Brimfield Man. Co.; 7 Mass. R. 432, Goddard vs. Chace; 17 Pick. R. 192, Gaffield vs. Hapgood; 19 Pick. 314, Noble vs. Bosworth; 1 Harr. & Johns. R. 291, Kirwan vs. Latour.

Such articles pass by the conveyance, although disannexed for a temporary purpose. 11 Coke 50, Richard Liford's case, cites Wistow's case; Shep. Touch. 90. And some things are held to be constructively annexed. 11 Coke 50; Amos & Ferard on Fixtures 183; 20 Wend. 639. Exceptions have been made, or the property has not been deemed fixtures, in the case of a stone for grinding bark, (6 Johns. R. 5, Heermance vs. Vernoy,) machines for spinning and carding, attached by “cleats,” &c., (17 Johns. R. 116, Cresson vs. Stout; 9 Conn. 63, Swift vs. Thompson,) and carding machines, secured by nails or spikes driven into the floor, 14 Mass. R. 354, Gale vs. Wood. The report of this last case, however, is somewhat contradictory upon the point, and the case itself was doubted by Chief Justice Richardson, 3 N. H. Rep. 506. See, also, 20 Wend. 641; 3 Dane’s Abr. 156.

Articles of furniture, it is said, do not come within the rale, although temporarily attached. 20 Wend. 645, cites Gibbon on Fixtures 20, 21. And see Amos & Ferard 151, 154, 183-185.

Some of the excepted cases seem to have made the question depend upon the character of the fastening, whether slight or otherwise. But this is a criterion of a questionable character, not sustained by the weight of the decisions. More depends upon the nature of the article, and of its use as connected with the use of the freehold. Perhaps, however, the case, Farrar vs. Stackpole, 6 Greenl. 154, where a chain used with a saw-mill was held to be a constituent part of the mill, carried the doctrine of annexation to the extreme point; to say nothing of the mill bars, which it seems were admitted to have passed by the conveyance of the saw-mill.

it is not practicable to lay down a rale in a few words which shall be applicable to all cases. The particular circumstances of each case are entitled to special consideration.

Different rules prevail in the case of landlord and tenant.

Upon the general principles above stated, the kettles set in brick work were fixtures. So of the steam engine. Although not attached to any fastening, it could not be removed without taking down part of the building. It may with propriety be said to be constructively affixed. So as to the hand press let into the floor, and the steam pipe, probably ; although, as to these articles, perhaps farther evidence respecting the mode of annexation, and use, might be desirable. Respecting the cullender there is not sufficient evidence to determine its class.

Loose, movable machinery, not attached nor affixed, even where it is used in prosecuting any business to which the freehold property is adapted, is not to be regarded as part of the real estate, or as an appurtenance to it. 20 Wendell’s R. 636, 655, Walker vs. Sherman; 6 Cowen's R. 665; 1 Harr. & Johns. 291; 9 East 215, Horn vs. Baker.

The printing machine, printing shells, and the boiler which lay without the building, and tools, come within this description.

A further question then arises, whether the deed executed by Palmer might avail as a mortgage of the personal estate included in it, and whether there be sufficient evidence of its ratification as such.

As to the personal estate, no instrument under seal was necessary. A bill of sale, or a sale without writing, accompanied by delivery, might have passed the absolute property, if the agent making it had authority. In order to a record of a mortgage of personal property, it must of course be in writing, but the statute has not made a seal essential to the validity of such a mortgage. If, then, this instrument cannot operate to convey the real estate, nor as a sealed instrument conveying the personal, it may not follow that it is not available as an unsealed instrument, if it contain any thing to authenticate which a seal is not necessary.

In Hanford vs. McNair, before cited, in which it was held that covenant would not lie on the sealed contract to pay for the timber, Mr. Justice Sutherland said, “ The subsequent act of the defendant, under this contract, recognizing and carrying it into effect, may be sufficient to make it binding on him as a parol contract, but cannot make it his deed.” Upon this, however, he gave no definite opinion. The case of Banorgee vs. Hovey, 5 Mass. 14, to which he referred as in some respects essentially different from that case, is also different from this. There was there perhaps a well founded objection against the declaration. But another question, and the one principally discussed, was, whether a bond which Smith was not authorized to make for the defendants, but by which he attempted to bind himself, and the defendants, as principals, with him, precluded the plaintiff from recovering for the money lent, in an action of assumpsit. Without extending this opinion by a discussion of the matters there decided, it is sufficient to say that the decision was based in no small degree upon the ground that the bond was good against Smith, who was one of the principals, and attempted to bind the rest as their agent; and that it therefore operated as an extinguishment of the simple contract debt, which otherwise might have existed against the principals. Mr. Justice Sewall dissented. The case seems to have been very much considered, but the enquiry presents itself notwithstanding, if Smith, as the agent, undertook to bind the other principals, in a manner in which he was not authorized to do, although he had effectually bound himself so that the plaintiff might have pursued his remedy against him upon the bond, on what principle was the plaintiff, by the receipt of such a bond, (by which he supposed Smith had well bound all the defendants,) precluded from resorting to an implied assumpsit, of all the supposed principals, to pay for the money which Smith borrowed in their behalf, and which it is assumed, in part of the case at least, went to their benefit ? The plaintiff had not accepted, nor intended to accept, such a bond as that in question turned out to be, (that is, the bond of Smith alone,) and in this respect there was a material difference between that case and some of the cases cited in support of the decision. If the bond which the plaintiff received had been what it purported to be, and bound the defendants as well as Smith, then it might well have been held that the acceptance of the higher security had barred the remedy on indebitatus as-sumpsit*

There seems to be no good reason why this instrument, if it may not operate as a conveyance under seal, should not operate as a mere writing without seal, if the evidence be sufficient to establish it as the transfer of the company, provided a seal had not been put to it. If an agent, authorized to make a promissory note, should make one in the proper form, signing the name of Isis principal, and put a seal to it — although this could not be declared on as the covenant of the principal, why should it not be valid as his note? If it were in such phraseology that the agent himself might be bound as on his personal covenant, at the election of the holder, why should the holder be compelled to resort to and rely upon that covenant, when neither party at the time contemplated the personal liability of the agent ? Why should not the creditor be permitted to reject the seal, which the agent was not authorized to put there, and treat it, as it ought to have been, and would then be, a legal parol promise of the principal ? Suppose this instrument had contained, in addition to the mortgage, a receipt by Palmer for a sum of money, which he as agent was clearly entitled to receive, would it not be as good evidence to show the payment of the money, as a simple receipt by him without any seal ? It does contain an acknowledgment of the receipt of the consideration. Whether that be not so connected with the conveyance, that if it cannot operate as a deed, it cannot properly be evidence, standing alone, to charge them with the receipt of the money, is a question of a character somewhat different, and which need not extend the present opinion.

We see no good reason why, if there be sufficient evidence of ratification, this instrument should not operate as a mortgage of the chattels. As between the parties, no formal appointment is necessary for the execution of an instrument of that character. The agent may be appointed by parol, and his authority shown by evidence of that character. And a mortgage or pledge of the personal property of a corporation, by one undertaking to act as agent, may be shown to be valid, either by evidence of the acts of the corporation, prior to the mortgage, from which an authority to make it may be inferred, or by subsequent acts showing a ratification. 4 Shepley 439, Warren vs. Ocean Ins. Co.; 21 Wend. 296, Troy Turnpike vs. McChesney; 2 Conn. 252, Bulkley vs. The Derby Fishing Co.; 1 Pick. R. 297, 304, Proprs. of Canal Bridge vs. Gordon; Story's Agency 49, 51, 53, 55, 247, 248; A. & Ames on Corp. 174, 122; 8 Wheat. 363, Fleckner vs. U. S. Bank; 12 Wheat. 64, 70, 74, Bank U. S. vs. Dandridge; 19 Pick. 511, Thayer vs. The City of Boston.

Was there any ratification here, so that this instrument may operate as a mortgage of the personal property ? There is evidence from which it may be inferred that the money received of the Savings bank went to the use of the Bellamy Co. This is not directly proved, and seems not to be admitted in the argument. But there is nothing to contradict this evidence. It is not shown that James and Ira Haselton had not knowledge that the money was so received, and used. They did not assent to the mortgage, and had no knowledge that any authority was given to Palmer to make it. Still the money may have been used by Palmer, the agent, in the operations of the company. There is no evidence that the Bellamy Co. have ever objected to the mortgage, or that they have contested the right of possession by the Savings bank.

If the act of one professing to be authorized as agent, in the sale or mortgage of property of a corporation, be such as will admit of ratification without any formal instrument or express vote, and the consideration come to the use of the corporation, and is retained, that will be evidence of a ratification. It would clearly be so in the case of an individual. The principal cannot be permitted to appropriate the money to his own use, and disclaim the act by which it is acquired. If he take the benefit of what is thus done, he cannot reject the burthen. If an agent, on the purchase of goods, draw a bill at a shorter date than his instructions permit, the principal may disclaim the transaction ; but if he claim the property, he cannot deny the agency. 2 Shepley 180, Newhall vs. Dunlap. A party who has received a legacy under a will, must return or tender it, in order to contest the will. 6 N. H. Rep. 337, Hamblett vs. Hamblett; see, also, Story on Ag. 245, 253; 12 Mass. R. 60, Clement vs. Jones; 4 Mason 296, Richmond Man. Co. vs. Starks; 8 Cowen 60, Shiras vs. Morris.

We are of opinion that the instrument, considered as a mortgage of the personal property, has been sufficiently ratified, and may avail, thus far, to the benefit of the trustees. Possession having been taken by the mortgagees, it is not necessary to enquire whether, in order to a valid record of a mortgage of chattels made by an agent, it is not necessary that the authority, or the ratification, as well as the mortgage, should be in writing and recorded.

Whether the Savings bank might not have waived the ratification, and elected to consider Palmer as their debtor, we need not determine. 8 Wend. 494, Rossiter vs. Rossiter; 22 Wend. 344; Story 246.

If the Savings bank had held the goods, as trustees, at the service of the writ, a taking of them from their possession, by a wrong doer afterwards, would not discharge them ; blit it might furnish a ground for delaying the proceedings, until the damages could be recovered. 5 Pick. 181, Swett vs. Brown & Trustee.

As was suggested, on the argument, this case might have been determined by a much shorter process. At the time of the service of the writ, the trustees had nothing in their hands. They had not taken possession under their mortgage, and the mortgage itself did not charge them with the possession. 8 N. H. Rep. 273, Greenleaf vs. Perrin & Trustee. When they took possession, afterwards, it was either by right, as mortgagees ; or as trespassers, if the mortgage was invalid ; and a party who takes goods by trespass cannot be charged as the trustee of the owner, to whom the wrong is done. But deciding the case upon this ground would, it seems, have been only to bring these questions before us in another shape, and we have therefore passed upon them now, in order to save further expense to the parties.

Trustees discharged.