There is no provision in these articles for stated elections of trustees; but every vacancy among the trustees by death, resignation, or otherwise, was to be filled at the annual meeting of the stockholders. The fifth article declared that there should be a stated meeting of the stockholders once in every year, on the first Monday of ■--. This blank was never supplied or filled; and no such stated meeting appears to have been held. The seven trustees were elected in July, 1841, and the election in question was in August, 1843.
The first inquiry is whether Jacob Berry’s place as trustee was vacant at the time of the latter election. He never resigned. This is alleged in the bill, and is admitted by the silence of the answer in regard to it. If he had resigned, the fact must have come to the personal knowledge of some one of the trustees who are defendants. (Rule 17th.)
Instead of his having resigned, he was present acting as a trustee, and his right thus to act conceded, on the second of August, 1843, which was after the election had been ordered and the notice published; and again on the fifth of August, which was the last meeting held before the election, and was only two days before it took place. So far as the complainant participated in the proceedings prior to the day of the election, his conduct is clearly referable to the vacancy occasioned by the resignation of A. Boerum, one of the trustees. There was thus, no vacancy up to the day of the election.
It is insisted that the complainant’s voting for seven trustees on that day, was in effect a vacatur "of his office, if not a distinct resignation. I think the former proposition depends upon the latter. There was no vacancy unless it were made by the voluntary act of the complainant; which act, whatever it may *5have been in form, would be a resignation. Then was his vote, a resignation of his office? He voted for himself and all the trustees who were in office, excepting Boerum. His object is to be derived from this act alone. He said nothing which indicated a design to vacate or give up his post. This act surely indicated a directly contrary intention. It showed that he did not wish or intend to leave his place as a trustee. And I cannot perceive how there can be a resignation derived from conduct which evinces a determination not to leave the office, and where there is no proof of any intent to resign or vacate.
It will not do to say that his vote for seven trustees, shows that he considered the whole number vacant. There is no evidence of what his view was ; but it is plain he could not have deemed the whole vacant. There had been but one resignation, and no other was known to be in contemplation. He could not have known that the five other trustees would vote for any more than one person to fill the existing vacancy; and there is no proof that they did vote for more than one person. The notice of the election did not specify the number of trustees which was to be chosen. In fine, the complainant’s explanation in his bill, is as probable as any that has been suggested ; and far more probable than the idea that he intended to resign his office, or what is equivalent, leave it to the stockholders to say whether or not he should continue.
The whole thing appears to be a misconception. If the act of voting at the election produced the vacancy, how could the stockholders there present, know of such vacancy so as to vote for supplying it 1 The vote was by ballot, and until the poll was closed, and the votes counted, it could not regularly be known that Mr. Berry, or any other of the six trustees, had voted for seven trustees, or had so voted as to vacate their offices; and thus none of the stockholders would know till it were too late, whether there was one vacancy or seven in the board of trustees. '
This view of the case relieves me from considering the regularity of the election in point of time. It is said that it was not at the stated annual meeting, and was not advertised as such. *6On the other ground, I am satisfied that the complainant is still a trustee and was warranted in filing his bill.
The arrangement made between the parties, will dispense with any farther provision than this, that the defendants pay the costs of the suit.