authority to appear for the company; 1 and it has been held that a bond given to secure costs, in an action to which an incorporated company is a party, filed in the regular course of legal proceedings, is not beyond the power of the directors to make.2 The directors can be examined on interrogatories in an action against their company, and if the company has infringed upon the rights of any other mining corporation or company, the costs and damages resulting from the suit can be assessed against them.3

1 Boone on Cor., §§ 46-147. But all actions for the company must be brought in corporate name; ante.

2 Beach on Pri. Cor., 859 et seq.

3 Ante, idem. Yohoola R. M. Co. v. Irby, 40 Ga. 479; Kielley v. Belcher Sil. Min. Co., 3 Saw. 437.

CHAPTER XX.

MINING CORPORATIONS.

SECTION 302. How created.

303. Name and place.

304. Residence of corporation.

305. Corporate seal and by-laws.

306. Meetings and records.

307. Corporate stock-Transfer of.

308. May sue and be sued.

809. Right to buy and sell.

810. Same Sale or purchase by agents.

311. Corporate contracts.

312. Corporate deeds.

313. Corporate officers and agents.

314. Same

Promoters distinguished from agents. 315. Corporate liability for promoters' contracts. 316. Liability of directors who exceed authority. 317. Same - Limitation on authority.

318. Same Acts ultra vires.

319. Same-Irregular acts intra vires.

320. Authority of the president.

321. Rights and powers of mine superintendent.

322. Company bound by what acts of superintendent.

323. Same-Power to bind company on commercial paper.

324. Liability for torts of agents.

325. Same Miscellaneous cases.

326. Power to remove and disfranchise.

327. How dissolved.

§ 302. How created. Most of the States in the Union provide for the creation and organization of different kinds of corporations by statute, and when a corporation is organized in a State possessing such a statute, the organizers or promoters of the corporation must conform to the requirements of the statute of the State where the corpo

1 See Statutes.

ration is to be organized.1 If the corporation is not organized according to the State statute, it is held to be void in law, and cannot afterwards have legal existence, even though the legislature of the State should pass a special act, in recognition of the validity of the organization. It would seem, however, that the authority to create would necessarily have the power to dispense with the formalities to be observed in the creation, and since, in this country, corporations can only be created by authority of the legislature, there is no reason why a corporation could not exist by prescription, which would presuppose a previous legal organization, or by a subsequent action of the legislature dispensing with the formalities to be observed in the original organization, and in recognition of the legal creation of the corporation. Mining, like other business corporations, are created by a charter from the State or United States government, which is in the nature of a grant of the rights and privileges necessary for carrying out the purposes of the undertaking. The words generally used

1 State v. Curtis, 9 Nev. 325; 10 Id. 141; same, 167; Indianapolis Fur. M. Co. v. Herkimer, 46 Ind. 142; In re Lancaster Min. Co., 30 Pa. St. 151; 64 Pa. St. 43.

2 Makeluma Hill Co. v. Woodbury, 14 Cal. 424; Orobelle &c. Co. v. Plumas Co., 37 Cal. 354; Densmore Oil Co. v. Densmore, 64 Pa. St. 43; Abbott v. Omaha Smelting Co., 4 Neb. 416. But see, contra, as to legislative recognition, Kanawa C. Co. v. Kanawa O. C. Co., 7 Bl. C. C. R. 391; Basshor v. Dressel, 34 Md. 503.

3 Kanawa C. Co. v. Kanawa O. C. Co., 7 Bl. C. C. R. 391; Basshor v. Dressel, 34 Md. 503; People v. Sierra Buttes Co., 39 Cal. 511. 4 Frost v. Frostburg C. Cor., 24 How. 278. As to what is necessary to establish existence of corporation, see Abbott v. Omaha Co., 4 Neb. 416. When existence of the corporation is denied there must have been a substantial compliance with the statute (Makeluma Hill Co. v. Woodbury. 14 Cal. 424); but as to such acts as are not prerequisite to the assumption of corporate powers and the right of others than the government to raise the question, see, Donnebroge I. M. Co. v. Allment, 26 Cal. 286; Doyle v. Peerless Petroleum Company, 44 Barb.

66

"estab

in the creation of corporations are found," lish," or "incorporate," sometimes one and sometimes another being employed; but no particular words are necessary to constitute a valid creation,' and it is generally held sufficient if the assent of the State or government can reasonably be implied from the words used; 2 and where certain rights and privileges have been legally granted to a collection of individuals, under one name, to carry on mining operations at a given place, if such operations could not be carried on and the rights and privileges exercised, unless in a corporate capacity, the persons to whom the grant had been made, would be considered a corporation, as far as would be necessary to permit them to enjoy the rights previously granted. And if such rights had been granted under an act of incorporation, and the persons to whom the grant was made held meetings, adopted by-laws and perfected other corporate arrangements, this would be held sufficient to enable the company to take and hold property, although there had been no record of a formal acceptance of the charter.

239.

As to burden of showing organization, see Warner v. Daniels, 6 Mor. Min. Rep. 436.

1 Beach Priv. Cor., Chap. I. As the organization of corporations in the various States is now generally controlled by general statutes, the corporation is legally formed and its existence dates from the time of the compliance with the statute. Coyote Min. Co. v. Ruble, 4 M. M. R. 88; Abbott v. Omaha Co., 4 M. M. R. 8; Makeluma Hill Co. v. Woodbury, 14 Cal. 424.

2 Abbott v. Omaha Co., supra; Indianapolis Furnace Co. v. Herkimer, 46 Ind. 142; Beach on Priv. Cor., Chap. I.

3 Ordinarily a charter or law conferring the franchise and a user thereunder will be held sufficient. Abbott v. Omaha Smelting Co., 4 Neb.

416.

4 Hawes v. Anglo-Saxon Petroleum Co., 101 Mass. 385. As to taking property before organization and validity of conveyance, see Vermont M. & Q. Co. v. Windham Bank, 44 Vt. 489; Snow v. Thompson Oil Co., 3 Mor. Min. Rep. 15. And as to existence of cause of action prior to or

§ 303. Name and place. In order to constitute a corporation, the organization to be incorporated must have been given a name before it can properly perform its corporate functions.1 A name may be acquired by usage, or assumed by implication, if none is expressly given the corporation, but when it is given a name by the charter, the corporation cannot, as a general rule, perform any corporate act, by any other name than that given by the charter; and while the name of a corporation may be changed by action of the legislature, the change would not affect the rights of third parties acquired before the change occurred, provided the identity of the corporation still appeared.'

3

ganization and subsequent right of corporation on creation, see Snow v. Thompson Oil Co., supra; 59 Pa. St. 209. "Until the statutory requirements to organize a corporation have been complied with, a subscriber to the articles of association is not estopped to deny the exist ence of the corporation." Indianapolis Furnace & M. Co. v. Herkimer, 46 Ind. 142; M. M. D. 47. “The right of a company, doing business as a corporation de facto, and claiming in good faith to be a corporation under the laws of this State, to act as a corporation cannot be inquired into collaterally in a private action to which the corporation de facto may be a party." Dannebroge G. Q. M. Co. v. Allment, 26 Cal. 286; M. M. D. 48. "If there is any defect in the proceedings for the organization of a corporation, or any abuse of its powers, or of the statute authorizing the formation of corporations under general or specific laws, the question is one of law, and it is for the State alone to take steps to dissolve such corporation, or forbid the exercise by it of corporate rights and franchises." Doyle v. Peerless Petroleum Co., 44 Barb. 239. "It cannot be shown in a collateral proceeding that a corporation (mining) has forfeited its charter." Crump v. U. S. M. Co., 7 Gratt. (Virg.) 352; M. M. D. 48.

1 Ex parte Harrison, 3 Mont. & Ayr. 506. But as to immaterial mis

nomer see People v. Sierra Buttes M. Co., 39 Cal. 511.

2 Harrison v. Heathary, 6 Scott N. R. 735; 12 J. C. P. 282.

3 Davis v. Flagstaff Co., 2 Mor. Min. Rep. 660; Merrick v. Peru Mining Co., 3 Mor. Min. Rep. 584.

4 In other words, although the new company would take the propery of the old, it would also succeed to its liabilities as to third parties. Birdsdale v. Finney, 14 Grattan, 338; Miners Ditch Co. v. Zel