at the prepent term, delivered the opinion of the court. At the trial of this cause in the court below, sis bills of exceptions were taken on the part of the plaintiffs, upon which this court is called on to decide. The suit was instituted upon an instrument of writing, purporting to be a bond, executed on the 30th of March, in the year 1805, to the plaintiffs, by Ralph Higginbothom, in the character of cashier of the institution, as principal, and the defendant and others, as his sureties. The declaration is in the usual form of debt oh bond. The defendant, among other pleas, pleaded in. the first instance general performance. The plaintiff replied, assigning various breaches, and several issues were joined, both of fact and in law, to'which it is not necessary here to advert. In this state Of the pleadings, the cause was continued by consent from term to term, with leave to the parties to amend their pleadings, until the term at which it was tried, when the defendant, by his counsel, asked leave of the court to amend his pleadings, by filing a special plea of non est factum, which was objected to by the counsel for the plaintiffs. But the court overruled the objection, and permitted the defendant so to amend his pleadings; which forms the subject of the first exception.
The grounds of objection to the plea being received at that Stage of the cause, are — First. That it came too late. Second. That it is inconsistent with the defendant’s plea of general performance, and other pleas; and Thirdly. That it is against the. eleventh and thirty-third standing rules of that court.
As to the first of these grounds, it might be sufficient to observe, that it is a general issue plea, and like other general issue pleas, need not be pleaded before the rule day, but may be received when the cause is called up for trial, and did not therefore come too late in this case. In addition to this, it is not at variance with the eleventh rule of the court, which expressly provides, that “the general issue plea may be pleaded by the defendant at any time before judgment by default, is entered against him, although he hath not pleaded before the rule day;” and also that “it will never be considered as a reason to delay the trial.” And by the act of assembly of this state of 1809, eh. 153, s. 1, it is declared, “that the courts of law shall have power to order and allow amendments to be made in all pro*405ceedings whatever before verdict, so as to bring the merits of the question between the parties fairly to trial; with the further provision, that “in all eases where amendments are made, the adverse party shall have time to prepare to support his case; but the case shall not be continued to the next term, unless the court shall be satisfied that the same is necessary.” That the court then had authority to permit the amendment, objected to, so far as concerns the time at which the plea was offered, is unquestionable. And the argument directed against that authority, drawn from the supposed surprise and hardship on the plaintiffs, would be more applicable to an objection to the forcing a plaintiff in such a case into an immediate trial, which is not presented by any thing appearing in this record; the question arising on this bill of exception, not being whether the plaintiffs were improperly forced into the trial of the cause at that time, but whether the plea was properly received. Besides, under the 11th rule referred to of the courl, the filings general issue plea, when a cause is called up for trial, is not of itself a cause of continuance. And although by the act of 1809» ck. 153, when an amendment is made at the trial, time is tobe given, during the term, to the adverse party to prepare to support his case; yet the cause is not therefore to be continued, unless the court shall be satisfied that a continuance is necessary. And there is nothing to show, either that a continuance of the cause, or time to prepare to support their case, was asked for in behalf of the plaintiffs, and refused by the court, or that they were forced into an immediate trial unprepared; on the contrary, the record exhibits an objection only to the plea being received, and that, on the three grounds stated in the bill of exceptions, that it came too late, was inconsistent with the defendant’s other pleas, and against the 11th and 33d rules of the court. Moreover, the cause appears to have been continued from term to term for several terms, to that at which it was tried, not under a rule on either party, but by consent, with, leave generally to the parties to amend their pleadings; so that in receiving the plea, there was no surprise or hardship on the plaintiffs to be complained of.
But if it rendered a continuance of the cause, or further time to the plaintiffs during the term, for preparation, necessary* *406which continuance or time was an application refused by the •court, an objection would more properly have laid to such refusal.
The second ground of objection. The incompatibility of the pleas of general performance and non est factum, is equally untenable. Whatever apparent inconsistency there may be between such pleas, .it is not of a character to prevent their being received; and such has been the practice of permitting them, under the construction of the statute, 4 Ann, eh. 16, that it may now be considered a settled rule or law of pleading.
To confine the defendants to pleas strictly consistent, would be greatly to narrow, the benefit of the statute; as a special, and a genera] issue plea, could in such case, seldom, if ever, be pleaded, the latter always denying, and the former generally confessing and'avoiding the charge. And as the statute itself makes no such distinction, it is not by construction limited to. strictly consistent pleas; but the-chance is given to the defendant of succeeding, not only on the strength of his own case, but on the weakness also of the plaintiffs, by permitting apparently incompatible pleas to be pleaded — as not guilty, and accord and satisfaction; not guilty, and sow assault demesne; not guilty, or non assumpsit, and the statute of limitations; non est factum and payment; non est factum and general performance, &c. Hence the common form of pleading such pleas, to be found in the most approved books of entries, and the many cases in the books of reports in which they have been received. Of which the case similar to this in Wright %sRus-sell, 3 Wils. 536, may be taken as an apposite example; where after the pleas of non est factum and performance, judgment ivas given for the defendant on his demurrer to the plaintiff’s replication.
Non assumpsit, or non est factum, and a tender, are not permitted to be pleaded, on the ground, that one goes to deny the existence of any cause of action, and the other admits it; and that if the general issue should be found for the defendant, it would appear on the record in the action of assumpsit, that no debt was due, in-the face of the defendant’s admission by* the plea of tender, that something was due; and in the action of debt, that, there never existed such a bond as ’hat declared on, when the plea of tender admits something to be due on that *407very bond. Maclellan vs Howard, 4 T. R. 194. Jenkins vs Edwards, 5 T. R. 97. But the pleas of genera! performance and non est factum, though apparently inconsistent, cannot produce on the record the same incongruity,, both going to deny the plaintiff’s whole cause of action. And the general issue and a tender, are the only pleas that are now disallowed on the mere ground of inconsistency; (1 Chitty's Plead. 541, 542. Step. on Plead 293, 459;) unless it be by the 33d rule of the court, that seems to have been relied upon, declaring “that no incompatible pleas shall be received;” but which is certainly at variance with the well established practice' on the subject of pleading, and inconsistent with that due exercise of discretion, which is required of the courts of this state by the act of 1809, ch. 153, giving them-power “to order and allow amendments to be made in all proceedings whatever before verdict, so as to-tiring the merits of the question between the parties fairly to trial;” since under that rule (if of binding authority,) a plea necessary to the bringing, the merits of the question between the parties fairly to trial might be excluded'.
The discretion vested in the courts by that act, is not a capricious, but a sound legal discretion, to the proper exercise of which the party claiming it is entitled, and from which he cannot properly be debarred, by any rule that is the mere creature, of the court; and the permitting the amendment proposed in this case to be made, was, we think, a proper exercise of that discretion, according to the spirit and i ntention of the acts, and tha settled practice, in relation to the pleading a special and general issue plea, although apparently inconsistent, notwithstanding the 33d rule, which was properly dispensed with.
The questions presented by the second and third bills of exceptions taken by the plaintiffs, arise on points of evidence.. The first as to the competency of a witness produced on the part of the plaintiffs; and the second on the admissibility of tt writing, headed “By-Laws,” which was offered to be read on the part of the plaintiffs, as and for the by-laws of the corporation, under which the president and directors acted, and' as prescribing, among other things, the duties of Ralph Higr ginbothom ( .he principal in the bond,) while he’was in their «íiployment as cashier. Henry Pay son, the person produced *408as a witness, being proved to be a stockholder in the bank at the time of the trial, his testimony was objected to, for any purpose but to prove himself a stockholder; and rejected by the court on the ground of interest.
It is admitted, upon general principles of evidence, that in a suit brought by a bank, one who is a stockholder, and interested in the event of the suit, is not a competent witness in behalf of the institution. But that general rule is not without exception; for though an interested corporator cannot be received to testify generally for the corporation, yet it does not therefore follow, that he is competent for no purpose; but he may be placed in a situation to render him .a necessary and competent witness for some purposes. Of which the case of The King vs The Inhabitants of the township of Netherthong, 2 Maul. & Selw. 337, is an appropriate example, where a rated inhabitant of the township of Netherthong, whose interest was admitted, was called by the respondents, and was held to be competent to give evidence as to the custody of a certificate from the township of Honley, (which was produced,) acknowledging the pauper’s grandfather and father to belong to Honley, in accordance with the decision in another case, that was mentioned by Lord Ellenborough.
Payson being a stockholder in the bank, was not a competent witness for the plaintiffs for all purposes; but he was offered to prove, among other things, that he was the president of the barde from the 27th of April 1812, until after the 27th of May 1819; that as such, he was the depositary of the bank; and that during the time he was president, a certain book called the By-Laws, was one of the books of the bank. And if an interested corporator is competent to give evidence in behalf of the corporation, as a depositary of the muniments, in relation to his custody, of a paper produced as one of the muniments, why was not Payson within the exception to the general rule, and competent to prove himself the depositary of the book called the By-Laws, as a muniment of the bank? .The only argument urged against his competency, as being within the exception is, that at the time he was called as a witness, he appears from the plaintiffs’ own offering to have ceased to be the depositary. But that, it ijs conceived, makes no difference, and that he was *409a competent witness to identify the book as a muniment of the bank, during the time that he was the despositary, Higginbotham, too, then acting as the cashier, and being a witness for that purpose, that he ought not to have been rejected as incotfl,potent to prove any of the matters for which he was offered.
He was not competent to prove that it continued to be on® of the books of the bank, after he had ceased to be the depositary, and when he stood only in the relation of a stockholder xTi the bank, any more than any other stockholder. But admitting the existence a3 to depositaries, of the exception to the general file of evidence, no reason is perceived, Why his having ceased to he the depositary at the time he was called as a witness, disqualified him from proving the book produced to have been a muniment of the bank, while he was the depositary; the nature of his interest as a stockholder not being changed, but remaining the same as it was, while he continued to be the depositary.
The objection to the admissibility of the writing headed “ByLaws,” is, that they purport, upon the face of them, to have been the by-laws of the banking association, styled “ The President and Directors of the. Union Bank of .Maryland,” when the business was transacted under the articles of association, and before the act of incorporation, and that they do not sufficiently appear to have been adopted by the corporation as their by-laws.”
By the ninth section of the charter the president and directors, for the time being, are authorised to make all such rules, orders, by-laws and regulations, for the government of the corporation, its officers and servants, as they, or a majority of them, from time to time may think fit, and the same at pleasure to revise, alter and annul. It may here be admitted, that the charter contemplates written by-laws; and then the question is, whether these are the written by-laws of the corporation?
They are in writing, and if they were ever adopted by the president and directors, or a majority of them, as by-laws fof the government of the corporation and its officers, they became, by such adoption, the written by-laws of the corporation. It appears from the statement of the evidence, that the book marked By-Laws, from which the writing objected to was offered t® *410bo read, .was one of the books of the corporation, and that, in which the proceedings of the president and directors were entered, from the time the charter was obtained, until the year 1819, so faf as. they were reduced to writing, and that'there was.no other book, in which, their proceedings were entered during that period, nor any other writing or memorandum of their proceedings. One of the witnesses, the cashier who succeeded Higginbothom, in the year 1819, and after other by-/ laws had been adopted, proves, that when he went into the bank, he found the same, book among the other books of the corporation, and that.it had in bank the reputation qf being the former by-laws and minutes of the corporation. If then there were, any by-laws of the corporation, they were contained in that book, and were they that were offered to be read, and were rejected by t]ie court — there were none other.
It is contended, 1st.. That there is no evidence that the entire writing, headed “By-Laws,” was adopted as the by-laws of the corporation. . And 2d. That there does not appear to have been any entry or memorandum Of such adoption, among-the minutes of.the proceedings of-the.corporation.
As to the' first of these positions. The writing,headed “ByLaws,” consists of 26 articles, thewitnesses who were examined in, relation to their adoption, had each of them been a director under the charter, except two who had been clerks; and the proof¡js, that the 19th article prescribing the duties of the cashier, which, in truth, is all that is material in this part of the. case,, was required by the corporation to be particularly observed; and. that Higginbothom, acting as the -cashier, after the act of incorporation, was in the habit of observing,or of professing to. observe it, but that he did not perform "the duties with, regularity. With regard to the rest, several of the witnesses, taking, their testimony together prove, that the government and proceedings of the bank were in conformity with all of them, with the exception only of the 20th and 23d, concerning which- they have no distinct recollection, arid" which" have no relation to the duties of the cashier; some, that the direction and goveinment of the bank was in general in conformity with them; one, that when he was elected a director, in 1817 or 1818} he inquired for the by-laws, and that a book" or- paper *411was delivered to him by an officer of the bank, containing bylaws similar to those in question; that he remembers them, among other things, from the, fact, that questions sometimes arose at the board, as to what were the rules in particular cases, which were decided agreeably to the by-laws offered to be read; and because the regulations and government of the bank corresponded, while he was a director, and until other by-laws were adopted in 1819, with the system prescribed by the articles, headed “By-laws.” And another, that when he was sworn in as a director, between the years 1806 and 1811, or about that time, certain by-laws were handed to him, as proper to be read by him as a director; but does not prove that these are or are not the same; and it appears that all the articles, headed “By-Laws,” and many of the minutes entered in the book, entitled, “By-Laws,” which was kept by Higginbotham, as cashier, were in his handwriting. This is the substance of the material part of the oral testimony stated in the third bill of exceptions, and it seems to us to be quite sufficient to show á practical adoption by the corporation of the articles, headed “By-Laws.”
As the book, in which they are written, was one of the books of the corporation, and the only book in which any of the proceedings of the president and directors were entered, from the time the charter was obtained until 1819, and as there was no other writing or memorandum of their proceedings, it was necessarily the book that was put into the hands of the two witnesses, when they first went into the bank as directors. And what circumstance could be stronger to show, that the writing or articles, headed “By-Laws,” had before been adopted by the corporation as such, than the delivery of the book containing them, by one of its officers, to a newly appointed director, on his inquiring for the by-laws, and their being handed to another, on the occasion of his being sworn in, as proper to be read by him as a new director? The testimony of each of those witnesses goes to the whole writing, and. not to any particular article. It was put into their hands to read, as containing a system of by-laws, not confined to one portion more than another, but embracing all the articles of which it .consists. And although they do not identify the writing pro*412duced, by swearing it is the same which they saw in the banlc, and of which they speak; yet its identity is sufficiently established by the proof, that the book containing it was a book of the corporation, in which the proceedings of the president and directors were entered until the year 1819, and that there was no Other iri which any of their proceedings were entered, nor any other writing or memorandum of their proceedings before that period. The testimony then of these witnesses, clearly relates to the articles headed “By-Laws,” and evinces the understanding at the bank upon the subject, and the light in which they Were viewed. And the proof by some of the witnesses, that the direction and government of the bank was generally in conformity with the system they presribe; by one, that the regulations and government of the bank, corresponded with them as a system, and that they governed the decision of questions, Which occasionally arose as to what were the rules in particular cases; by some that the proceedings and government of the bank were in conformity with 24 of the 26 articles, particularly in the recollection of the witnesses; and by some, that the 19th article was required by the corporation to be particularly observed, and that Higgmbothom himself, acting as the cashier, professed to observe it, form together a mass of evidence relative to the acts and general government of the corporation, conclusive of their adoption as a system, and not of particular articles merely, if they could be adopted otherwise than by writing. They were treated and acted upon as a system, and there is nothing to show that they were partially adopted only, or that any particular articles of that general system were excepted. "■
But it is supposed, secondly, That an entry or memorandum in writing was necessary to their adoption by the corporation. No reason has been shown in argument, nor can we perceive any, why their adoption may not be proved, as well by the acts and uniform course of proceeding of the corporation, as by an entry or memorandum in writing. ' They were originally the by-laws of an association, and an entry or memorandum would have been evidence only as an act of the corporation of their adoption; and; without the common seal, which was once held to be necessary to every act of a corporation aggregate, could *413no more unite the several assents of the individuals composing it, so as to make it the act of the corporation, than any other act without the common' seal.
But it is admitted, that a corporation aggregate may now act without its common seal; and if so, why may not the adoption by such a corporation, of a set of written rules, (already prepared by others,) as and for its by-laws, be evidence otherwise than by writing? Where is the law substituting writing for the common seal, and declaring it to be necessary in all cases? If there is any act of a corporation that need not be in writing, it would seem to be such an act of adoption; not being a contract, but a recognition only, of certain written rules for its own government, and that of its officers and servants, which, when adopted, whether by writing or otherwise, become its written by-laws, speaking the sense of the corporation; and it does not appear to be material, in what manner, or by what acts, its assent to them is manifested, assuming that it need not be evidenced by the common seal.
In this case authority to make by-laws is specially delegated by the charter to the president and directors, without any direction as to the manner in which it is to be done. And if in the exercise of that authority, as the agents (under the charter,) of the corporation, they could adopt as rules for its government, the written by-laws-of the former associations, which is not denied, it was no more necessary to be done in writing, than the acts of any other duly appointed and authorised agents. And it will not be contended, that an agent, duly authorised and appointed by a corporation, can only act or contract by writing.
But authorities are not wanting to sustain the position, that acts or contracts of corporations may be proved otherwise than by writing, and may be inferred from other corporate acts; two only of which will now be noticed, which are we think conclusive upon this point of the case. The Bank of Columbia vs Patterson’s Adm’rs. 7 Cranch, 299, and Whittington vs The Farmers Bank of Somerset and Worcester, 5 Harr. & Johns. 489. The Bank of Columbia vs Patterson’s Adm’rs, was an action of assumpsit, by Patterson’s administrators, for work and labour done by their intestate, for the bank, growing *414but of a sealed agreement between Patterson, and an authorised committee of the directors of the bank, in their own names. There was no entry or memorandum in writing, produced, of the adoption. by the corporation of the contracts of the. pommittee, nor of any vote for the payment of the .money. But it appearing • that 'the corporation-had from dime to time paid money on the contracts to the intestate, .and that they .were for the benefit of’the corporation, the court said- the jury might' from that evidence “legally infer*, that the-corporation, bad adopted -the contracts of the committee,-and voted to pay the whole sum’which should-become due under the, con tracts,,and that the'plaintiff’s intestate-bad,; accepted the engagement.” And in Whittington vs The Farmers Bank of Somerset and Worcester, it was decided by Worcester^ county court, and on appeal’’affirmed; by this court,,that it,was not necessary an order of the’president and .directors should be in, writing to give it validity, büt-that it might- be proved, if not reduced to writ» ing, by oral testimony.
But the’proof in .this case of :tbe adoption by, the. corporation of the writing’produced, as its.’ by-laws, does not rest entirely on orál testimony.’ Í There.is among, the minutes of the proceedings*,which were produced, a written recognition of them in these Words: “Whereas hy an; act .to incorporate, the.stock» holders in th& 'Union Bank of Maryland, it is among ; other thingS'enaCted; that an election for sixteen directors to. conduct the affairs of said-’bank, .shall .be annually , held on the. first Monday in" July. And-whereas the. said-.first Monday in July may sometitóes fall on: the fourth o£j said month, on which the bank will be shut agreeably to the provisions of the fourth article of the-bylaws,-ordained and passed for the regulation and, government of the'said/’ corporation,” &e: Now that .this, entry relates- to th$writing or articles headed. ‘^By-Laws,’’ and could 'have related-to nothing- else, is.manifest,-not only from what hás-béeft already.said; and theproof that,there were no others, but also from the language of the fourth,article itself,under that heading-; which -is in--these words: ,‘fThat the, bank .shall, keep open ffor¡ordinary,business;.-from nine oiclock in the.morning till - three-o’clock’ P. M.every day,-except Sundays, Christmas day; and the:fourth day 'of July;”providing,«as stated in the *415entry, for the batik being shut on the fourth of July, It is not indeed a resolution of adoption, nor the act by which they were adopted and made the by-laws of the corporation, but are acknowledgment that they had been previously adopted and made, attd were then the by-laws of the corporation. It-will bear no other construction,, and it may, be- likened to the case of Fleckner vs The United States’ Bank, 8 Wheat. 338, where a resolution passed by the president .and directors of the Plan» ters Bank of New-Orleans, declaring that an endorsement Which had before been made of a note by its cashier, was made by the authority of the president and directors, and ratifying the act of the cashier, was held to be not a mere ratification of the transfer, but a binding acknowledgment of its original validity. As here, the subsequent entry is an acknowledgment of a previous adoption, not of a part only, hut of the whole writing as a system of by-laws, which are declared to have been, ordained and passed, for the government and regulation of the corporation. Besides they are set out in the replication, and alleged to be the by-laws of the corporation, and violations of them, so far as they prescribe the duties of the cashier, are assigned as breaches; on which breaches issues are tendered by the;defendant, and joined by the plaintiffs; so that they are virtually admitted by the defendant in his pleadings.
Two questions arise on the fourth and fifth bills of exceptions, growing out of the special plea of non ’est factum. 1st. Whether, there being no written acceptance produced, of the instrument on which the suit was brought, there was other sufficient legal evidence, from -which the jury might have inferred that it was duly delivered by the defendant, and accepted by the-plaintiffs; whieh is presented, both ;by the fourth bill of exceptions, and the first prayer of the plaintiffs in the fifth bill of exceptions. ' The.2d. Whether the,plea, that the supposed writing obligatory was delivered as an esérow, imposed upon the defendant the hurden of proving. the. special matter alleged in the plea which arises on the second prayer of the plaintiffs in the fifth bill of exceptions, and will he first examined.
It is a general principle of pleading, that where a plea produces a direct affirmative and negative, by denying the allega*416tion in the declaration, it should conclude to the country, whether the affirmative of the issue is held by plaintiff or defendant, and that the proof of the affirmative rests on him who asserts it. But when new.matter is introduced on either side, the pleading ought to conclude with a verification. Thus, in the application of these rules, the plea of general non est factum in an action of debt on a bond, which, by denying the allegation in the declaration that it is the writing obligatory of the defendant, makes the issue between the parties, concludes to the country, and throws the whole proof of the execution of the bond, including the delivery, upon the plaintiff, who in that case asserts the affirmative. '
But the defendant may, under that issue, give in evidence any thing which goes to show that the instrument of writing was originally void at common law, as lunacy, fraud, coverture, &c. or that it had become void subsequent to the execution, and before the bringing of the suit, as fay erasure, alteration, &c. because the’ plea of non est factum puts in issue as well its continuance as a deed, as its execution; and it is enough if it was not his deed at the time of pleading. Or the defendant may plead any such special matter. But if he chooses to do so, being new matter, he must do it with a verification, and holding the affirmative, he draws' the burden of proof upon himself. So if he seeks to' avoid the bond, for duress, infancy, usury, &c. which cannot be given in evidence under the general issue, (the bond not being therefore absolutely void, but voidable only,).he must plead such new special matter with a verification, and the proof lies upon him. In every such case the issue is upon the matter specially alleged in the plea.
That the defendant may give in evidence, under the plea of general non est factum, that the instrument of writing was delivered as an escrow on a condition not performed, is' every where to be found; and it is equally will settled, that he may plead it specially, and that the proper conclusion to that plea is to the country;, because it is a special negative to the affirmative in the declaration — the allegation in the declaration, that it is the writing obligatory of the defendant, including the allegation of the delivery of it as a deed; and it is this conclusion *417to the country that raises the question, whether the proof is on the plaintiff or defendant
In Bushell vs Pasmore, 6 Modern, 218, it is said by Holt, Ch. Justice, that “all these special non est factums in case of escrow, erasure, &c. are impertinent, for thereby the defendant brings all the proof upon himself; whereas by pleading non est factum generally, he would turn the proof, of whatever is necessary to make it his deed, upon the plaintiff;” thus making no distinction between the different pleas of special non est factum as to the burden of proof. And in 2 Stark. Evid. 482, the same broad position is laid down, that “where th'e plea is non est factum generally, the proof is upon the plaintiff; but where the plea shows that the deed is void for special matter, the issue is on the defendant,” with a reference to the case of Bushell vs Pasmore. This writer then, adopts as a rule of evidence, the doctrine asserted in Bushell vs Pasmore, that in all cases of special pleas of non est factum, without any distinction, as per fraud, lunacy, delivery as an escrow, erasure, &c. the proof rests on the defendant.
The position laid down by Holt in Bushell vs Pasmore, is translated into 5 Bac. Ab. 373, With a marginal quere, as to the case of an escrow. We have seen it no where denied; and the force of that quere, is much weakened by ihe reason there given for it, “for it is his deed though delivered to another on condition.” Now in such case, the instrument is not delivered as a deed on Condition, but given to another as an escrow, to be by him delivered as a deed to the obligee, on a condition precedent. And it is only on the ground, that it is not his deed, that the defendant can give it in evidence under the plea of general non est factum. The plea of escroto admits the signing and sealing only, hut denies the delivery as a deed, Which makes an issue between the parties; and the conclusion Being properly to the country, the plaintiff has no choice but to add the similiter; and the conclusion, &c. “and so,” &c. being a conclusion of law, and not issuable, the issue is upon the whole plea; and the question for the jury is a question of fact, whether it was delivered as a deed, and that depending upon the truth of the special matter alleged in the plea, whicli if not pleaded, the defendant could only avail himself of by *418proof. And what is there in the pleading the same matter that dispenses with the proof, and imposes upon the plaintiff the necessity of disproving it? It is but the assertion of the defendant in the shape of a plea, and cannot avail him, if unsustained by proof, apy more than any other special matter alleged in avoidance, or which shows, if true, that the instrument of writing was originally void at Common law; as for fraud, coverture, &c. or that it had become void subsequent to the execution, and before the bringing of the suit, as by erasure, &c. which it is incumbent upon the defendant alleging it to prove — every thing necessary on the part of the plaintiff, the signing, sealing Slid delivery being admitted, and the issue being upon the matter specially alleged in the plea. So where the delivery as an escrow is pleaded, the issue is upon that special matter; which being alleged and relied upon by the defendant to show that it Is not his deed, the proof of that allegation (he holding the affirmative,) rests upon him. And if there be no proof on the part of the defendant, the possession of the instrument by the plaintiff, is prima facie evidence of the delivery as a deed, which is all he has to show, and is sufficient to sustain the issue on his part — the signing and sealing being admitted, and the delivery, as a deed, being the only matter in issue between the parties, upon the special allegations in the plea. And the plaintiff is not driven to any further, or stricter proof of the delivery, than such as is held to be sufficient under the plea of general non est factum. When it is said, that the special pleas of escrow, erasure,- &c. throw all the proof upon the defendant, it is only meant, in relation to the special matter that is alleged, as operating to do away the effect of what is admitted, to wit, the signing, sealing and delivery, in the cases of erasure, &c. and the signing and sealing, in the case of escrow, but not the delivery as a deed, which is not admitted. Therefore, if the delivery as an escrow be proved on the part of the defendant as alleged in the plea, the proof of the performance of the condition lies upon the plaintiff where the affirmative is with him.
In this view of the plea of esbrow, if this was the case of any individual plaintiff, we think, in the absence of all evidence on the part of the defendant, the possession and production of the instrument of writing by the plaintiff, would be sufficient prima *419facie evidence of the due delivery and acceptance, to-entitle him to a verdict, on the issue joined upon the sixth plea. But being the case of a corporation, it is supposed to differ from the case of an individual; and that the possession and production of the instrument by the plaintiffs, is not sufficient legal evidence of the delivery and acceptance as a deed, without some entry or memorandum in writing of such acceptance. Which lead's to the inquiry, whether a written acceptance is essential' to the validity of a bond executed to a corporation; and that involves the consideration of the question arising on the fourth bill of exceptions, and the first prayer in the fifth bill of exceptions.
It is contended that a written acceptance must be produced; that nothing else will suffice; and that no other facts or circumstances, however conclusive they might be in the ease of an individual, can be received to raise a presumption in favour of a corporation, of its corporate assent, or from which its adoption or acceptance can be inferred, on the broad ground, that a corporation aggregate is ineapable of doing any act except by writing.
But is it true that a corporation is incapable of doing any act. that is not evidenced by writing? It seems to have been formerly held, that a corporation aggregate could only act by its common seal, could do nothing without deed. But that doctrine is now no where sanctioned as a universal proposition. It has long since been held, that such a corporation may employ one in ordinary services without deed, as a cook, butler or servant, and may appoint a bailiff to distrain, without deed or warrant. 2 Bac. Ab. tit. Corporation, (E. 3,) 13. 3 Lev. 107. Anon. 1 Salk. 191. And in Harper vs Charlesworth, A Barn. & Cress. 575, Mr. Justice Bayley said, “a corporation can only grant by deed, yet there are many things which a corporation has power to do otherwise than by deed. It may appoint a bailiff, and do other acts of the like nature.” And it is now well settled, that it may be bound by a promise express or implied, arising from the acts of its agent, appointed and authorised by a corporate vote only, unaccompanied by the common seal.
It is said by different writers, treating of the manner in which corporations aggregate may act, that “gifts by and to them must be by deed.” That “in general a corporation aggregate *420cannot take, or pass away any interest in lands, or do any act of importance without deed,” &c. But conceding that anciently a corporation aggregate could do nothing but by deed, we jiave seen, that in more modern times the rule has been broken in upon, in the language of P. Williams in his argument in Rex vs Biggs, 3 P. Wms. 423, “for eonveniency’s sake.” And jn that case, which was an indictment for erasing an endorsement on a bank note, there being a special verdict, finding the prisoners guilty of the erasure, and that the note was made and signed by one Joshua Jldams, who was entrusted and'employed by the bank of England to sign bank notes, but not under the common seal, it was elaborately argued by P. Williams, that the appointment of Mams was not valid, because not made under the common seal of the corporation; and also strongly urged from the importance of the trust, and not being an ordinary employment, that if in any case whatever, an authority given by a corporation ought to be. under its common seal, it was that. The prisoner, however, was condemned, and the appointment of course held to be valid. It does not appear whether the appointment of Mams was or not by writing, but it was without deed, it was not under the common seal of the corporation; and it was not a small matter, nor an appointment on ordinary service, but of an agent, employed in an important trust, and the decision too, was in the case of felony, involving the life of the accused. If it be treated as an appointment in writing, for which the case, neither as reported in Strange 18, nor P. Williams, furnishes any sufficient warrant, it shows, that the old doctrine, that a corporation aggregate must in all things act by its common seal, and can do no act of importance without deed, is no longer regarded, that being a case of the appointment without deed, of an agent to an important trust, connected with the highest interests of the corporation; and if considered as an appointment not evidenced by writing, it is a (decision very strongly applicable to this case.
It is unnecessary to multiply cases to show» that the acts of corporations may now be evidenced by writing without seal — ■■ that is fully admitted; but it is strongly urged, that although they may now act without deed, yet that their acts cannot be evidenced otherwise than by writing. And for that we have-*421been referred to 1 Fonb. 306, (note o.) The Bank of Columbia vs Patterson’s. Adm’r. 7 Cranch, 299, and Fleckner vs United States Bank, 8 Wheaton, 338; but they do not support the position. In the note in Fonblanq-ue it is said, “and the agreement of the major part of a corporation being entered in the corporation books, though not under the corporate seal, will be decreed in equity.” The only ground upon which such an agreement can be enforced, is the capacity of a corporation to make a contract without seal, contrary to the ancient doctrine. But it is not there said, that a corporation can make no agreement, nor do any act except by writing; nor does the inierence appear to be a ready one, that an agreement not in writing, or not entered upon the corporation books, cannot be enforced. And opposed to such an inference, is the case of The King vs The Inhabitants of Chipping Norton, 5 East, 239; where a corporation at a court leet, let certain tolls belonging to the. corporation by a verbal agreement; and it was held, that the corporation could not pass the tolls by a verbal demise, but that it was a license to collect the tolls, and might be a ground on which to apply to a court of equity. The principle there decided, was not that the verbal agreement was a nullity, but only that it did not operate at law to pass the interest in the tolls, which could only be demised by deed; yet that it bound the corporation as a license, and was a contract or agreement fit to be enforced by a court of chancery In The Bank of Columbia vs Patterson’s, Adm’r. the court takes notice of the ancient doctrine, that corporations' could do nothing without deed. But says, they may now “by mere vote, or other corporate act not under their corporate seal, appoint an agent, whose acts and contracts, within the scope of his authority, would be binding on the corporation.” Now to say, that a corporation may “by a mere vote or other corporate act,” appoint an agent, is surely not to say, that it can only appoint an agent in writing, as a vote need not of necessity be reduced to writing, and “other corporate aet,” are very indefinite terms, and would rather seem to imply any act, whether in writing or otherwise; and the term “mero vote,” would seem to import a naked vote, not clothed with the solemnity of writing. And the case itself, with the opinion of the court upon the whole *422case, seems to show, that the terms “a mere vote or other corporate act,” were not intended to be restricted to mean, a vote or other act in writing. The contract which gave rise to the. suit, was personal, under the hands and private seals of the agents of the corporation. But it appeared in evidence, that it , was for the exclusive use and benefit of the corporation, and' made by their agents for purposes authorised by the charter,, and that the corporation had from time to time paid money on the faith of it to the plaintiff’s intestate. And from that evidence, the court decided, that “the jury might legally infer, that the corporation had adopted the contract of the committee, and had voted to pay the whole sum, which should become-due under the contracts, and that the plaintiff’s intestate had accepted their engagement,” although there was no entry or memorandum in writing of the adoption of the contract by the corporation, nor of any vote for the payment of any part of the money. Here, then, was an unwritten act of a corporation,, suffered to be inferred from other unwritten acts and circumstances. And no argument can fairly be drawn from the circumstance, that the corporation was defendant in that case; it was not put upon that ground by the court, or that the corporation might have kept any thing back, or that its recorded vote had been lost; but the decision went upon the broad principle, that a corporation might act without writing, and that its acts might be proved by circumstantial evidence; without adverting to any distinction between a corporation plaintiff and defendant for could a corporation, because defendant, be presumed to do, what by its constitution it .was incapable of doing. Besides, it-will be remarked, that the jury were permitted to inter, from the facts and circumstances in the case, that the corporation had adopted the contracts, and voted to pay the money, not by a written act of adoption, or a written vote, but generally that it .had adopted them, and voted to pay the money that should become due under them. And if an adoption in writing, or a written vote, had been intended, it would most probably have been so said; it is not so said, and there does not appear to be any thing in the whole case, from which it can be fairly implied. And in The King vs The Inhabitants of Chipping Norton, 5 East, 239, where the case states the agreement of the cor*423poration to have been a verbal one, which though not sufficient to pass the interest in the tolls, which from their nature could only be transferred by deed; yet it was held to be a ground for an application to a court of equity; which could not have been, if the agreement was void for want of being in writing. The case of Fleckner vs The United States Bank, does not sustain the position contended fot. It is the case of a written, vote of the board of directors; and the court, acting upon the facts of that case, says, the acts of such body or board, evidenced by a written vote, are as completely binding upon the Corporation, and as complete authority to their agents, as the most solemn acts done under the corporate seal. It vindicates only, the binding effect oí a written vote without seal, against the argument pressed at the trial, that a corporation could only act through the instrumentality of its common seal; but goes no farther, and does not touch the question, whether a corporation can act otherwise than by writing. It is admitted that in modem times corporations may act by writing without the common seal; but it is supposed, that the use of the seal grew out of the state of the times in which it originated, when seals were more common, and better known, than signatures, and the authentication of instruments by seals, was more certain, and attended with fewer difficulties and perplexities, than any other mode of authentication; and that the use of the seal is only dispensed with, because writing may now be proved with as much certainty as the common seal.
But that would seem to be a mistake, and that the greater facility and certainty, attending the authentication of an instrument by the, use of the common seal, was not the reason why it was originally held, that corporations could act in no other way. It would have been a very good reason for preferring the «se of the seal, to any other less certain mode of authentication, but not a sufficient reason for rejecting all other modes;' nor does it any where appear, that the rule was originally introduced for that reason. Blackstone, in his commentaries, vol. 1, page 475, Says, “a corporation being an invisible body, cannot manifest its intentions by any perspnal act or oral discourse; it therefore only acts and speaks by its common seat For though the particular members may express their private *424consents to any acts, by words or signing their names, yet this does not bind the corporation; it is the fixing of the seal, and that only, which unites the several assents of the individuals who compose the community, and makes one joint assent of the whole. ” It was not, therefore, as a mere rule of evidence that the common seal was required, because more certain, and more susceptible of pfioof than writing, or any other mode of authentication; but because it was supposed, that a corporation being an invisible body, it was incapable of manifesting its intentions, by any personal act or oral discourse; and that having neither hand nor mouth, it could no more write than speak.
But as some mode of action was necessary to its operations, the common, seal, which is incident toa corporation, was resorted to as an artificial representative; embodied in which shape, it could alone appear — the hand and mouth of the corporation, by which only it was permitted to act or speak. This technical nicety has however gradually given way to the public convenience, and the attenuated notion that the seal only was capable of uniting the several assents of the individuals composing the community, and making one joint assent of the whole, has yielded to the sober sense oí mankind, which no longer delights in mere technicalities. Yet the character and constitution of corporations remaining the same, and the united assents of the individuals composing the community, being as necessary now as formerly, to constitute an act of a corporation, their assent must be proved in some way. But by what law, ór on what principle, has writing been substituted for the common seal, and had imparted to it,.the magical power which it did not formerly possess, of uniting the several absents of the different individuals who compose the community? Let it be borne in mind, that at the time when-the seal was alone held to be capable of performing that office, writing was necessary to> Show to what it was the seal did unite the several assents of the individual corporators. But the writing alone was nothing, it had no agency in manifesting the assent of the corporation, it was the thing only assented to, and the seal it was,aippended to it, that spoke- the presence of the corporation, and manifested its assentl If there be' any law substituting writing for the common seal, and declaring it to be the only means by which' *425the assent of a corporation can be manifested, it has not been produced, and wó know of none such; or if there be any decisive authorities establishing that position, they have not been referred to. There axe many authorities showing that corporations may act without seal, among which may here be again mentioned the cases before referred to, of The King is Bigg, (in which the corporation was not a party,) where it was held, that the Bank of England might, without the common seal, entrust and employ a man to sign bank notes; the note (o) in 1 Fonb. 306, where it is said, “and the agreement of the major part of a corporation being entered in the corporation books, though not under the corporate seal, will be decreed in equity;” and Flecknervs The United States Bank, in which, in speaking of a written vote of the board of directors of that bank, the court says — “the acts of such a body or board, evidenced by a written vote, are as completely binding upon the corporation, and as complete authority to their agents, as the most solemn acts'done under the corporate seal.” But they go no farther. Seeing then, that the seal was originally required, not; for the purpose merely of authenticating the writing to which it was appended, but for the technical purpose of uniting and. expressing the joint assent of the corporation which could not he done by the particular members signing their names, and that writing was not competent to perform that office, and there being nothing peculiar to modern Times imparting to it that quality, it cannot ho required for that purpose; but if required at all, it can only be as evidence of the acts of a corporation, which, like the acts of natural persons, are subjects of proof And the seal being no longer regarded as a necessary agent, to express the intention of a corporation, by uniting the several assents of the individual members, and making pne joint assent of the whole, (which it is seen may now be otherwise manifested,) by what rule of evidence is it, that corporate acts are' all required to be evidenced by writing, which of itself, when unaccompanied by á seal, is only parol evidence? We know of no such rule in practice; the general principles of evidence acknowledge none such, and when the acts creating corporations, do not direct it, we do not perceive why .their acts must be established by positive record proof only; and why the corpo*426rate assent may not be inferred from facts and circumstances, which in regard to individuals, would be decisive in relation to transactions of a similar character. The question being, (now •that the seal is dispensed with for that purpose,)- nut as to the mode'of uniting the corporate assent, but as to the mode .of proving the assent or act of a corporation.. The proof by writing may be more eligible than facts and circumstances not reduced to writing, because more certain, and attended- with less, •difficulty and perplexity; but it does not therefore follow, that it is the only' mode of proof that can be admitted.
If that could be received as a sufficient reason for requiring written evidence of the‘acts .of á corporation, it would'apply with equal force to the transactions of natural persons, written -evidence of which would, as well as in the case of a eorporation, be attended with more certainty, and fewer difficulties, than circumstantial proof. But such a principle has never been •admitted among the general rules of evidence, and the acts of individuals are continually established by presumptions arising from other facts and circumstances; and that not confined to the ■acts of a single' individual, hut extending equally to the joint ¡transactions of .several, though of the most solemn and important ¡character. • And it seems to us, that (the seal being dropt -as necessary to unite the several assents of the individual members,) there is .nothing to show, that writing is substituted irr the place of the seal for that purpose, and that the same presumptions arise from-the acts of corporations, as from the acts of individuals; consequently, that the corporate assent, and corporate acts, not reduced to writing, .may be inferred from other-facts and circumstances, without a violation of any known rule of evidence; In -which we feel ourselves strengthened by authorities that will here be -briefly adverted to.
In The King vs Amory, 1 T R. 575, it is clear from the course of reasoning, both of the judges and the counsel concerned' in the -argument of the cause, that the acts of the corporate officers of an éxisting corporation, were considered as admissible evidence, from which the fact of the acceptance of a new charter might he inferred, and that it was not necessary to produce a written instrument, or recorded vote of acceptance-And if thg acceptance of a new charter by an existing corpo*427ration, need not be in writing, but may be inferred from other facts and circumstances, it is difficult to imagine, why other acts of a corporation, or the acceptance of other instruments, may not be inferred in like manner. In The King vs The Inhabitants of Chipping Norton, we have seen, that the verbal agreement of a corporation was held to be a ground for an application to a court of equity. The agreement, therefore, was not considered void, for the want of being in writing. In Wood vs Tate, 5 Bos. & Pull. 246, which was an action of replevin, founded upon a distress for rent by the bailiff, of the bailiffs and burgesses of the borough of Morpeth, it was held by the court, that the payment of rent from time to time, by the plaintiff, to the officers of the corporation, was alone sufficient evidence of a tenancy from year to year under the corporation, to entitle the corporation to distrain for rent in arrear. In Doe, on the demise of the Earl of Carlisle, vs Woodman and Forster, 8 East, 228, it was held, that the payment of rent by the bailiffs of the borough of Morpeth, was evidence of a tenancy in the corporation. We have before seen, that in The Bank of Columbia vs Patterson’s Adm’rs. where it appearing in evidence that the corporation had from time to time paid money on the personal contracts under- their private seals of its committee, which were for the benefit of the corporation, it was held by the supreme court of the United States, that the jury might legally infer from that evidence that the corporation have adopted the, contracts. In The Proprietors of the Canal Bridge vs Gordon, 1 Pick. Rep. 297, it was held, that corporations could be bound without a vote or deed by implications from corporate acts. Chief Justice Parker, in delivering the opinion of the court, said, “It is true that the acts, doings ánd declarations of individual members of the corporation, unsanctioned by the body, are not binding upon it; but it is equally true, that inferences may be drawn from corporate acts, tending to prove a contract or promise, as well as in the case of an individual ; and that a vote is not always necessary to establish such contract or promise.” The question was, whether The Proprietors of the Canal Bridge had assented to a proposition by another corporation? And proceeding to comment upon the evideftce, the judge said, “here was a direct and plain pro*428position, and if it had been met by as plain an acceptance-by-vote recorded, no one would imagine that any question could arise as to the effect.” And he added, “the question is narrowed to this; have The Proprietors of the Canal Bridge assented to this proposition and acted under it? We find no vote to this effect; but we do find, that the cross bridge was suffered to unite with theirs pursuant to the proposition, and that for four years, all were suffered to pass without toll, who came from Charlestown to Cambridge, or vice versa. Now corporations can be bound by implications, as well as individuals, as has been before stated, and no acts could be stronger to show an assent to a proposition, an agreement or bargain, than those which have been mentioned.” Here was no vote or written memorandum, nor any foundation for presuming a vote, or Other written assent of the corporation. On the contrary, the (court went expressly on the ground that there was no vote, but that the assent of the corporation might be inferred from other corporate acts. And in Whittington vs The Farmers Bank of Somerset and Worcester, before adverted to, it was decided, that it was not necessary an order of the president and directors should be in writing to give it validity, but that it might be proved, if not reduced to writing, by oral testimony, Other decisions in Pennsylvania, New-York and Massachusetts, might with effect be brought into this discussion, but it is thought to be unnecessary. In Smith and others vs The Governor and Company of the Bank of Scotland; in the House of Lords, 1 Dow’s Rep. 272, the appellants were sureties in bond to the bank of Scotland, with Patterson the principal, who was an agent of the bank. The bond was at first sent to the bank, but returned to Pa tier-son to get it properly executed, and was then sent back again to the bank; but while it was in transitu, and before it got back to the bank, or into the hands of its officers, Patterson was removed from his office. One of the questions raised in the House of Lords was, as to the due' delivery of the bond. Lord Eldon said, “the court below had attended to the objection with respect to the delivery of the deed, they seemed to have considered it properly delivered, and he did not think, there was sufficient ground to quarrel with their decision on that head.” Lord Redesdale said, “as Patterson seemed tp *429have acted as the agent of the bank in the transaction, delivery to him might be considered as delivery to the bank.” And the House of Lords decided, “that if not impeachable on other grounds, it was to be considered as a delivered deed.” The case was argued by Sir Samuel Romilly and Mr. Brougham for the sureties, and is a very strong case. The opinion of Chief Justice Mashall, in The Bank of the United States vs Dandridge, in the Circuit Court of' Virginia, (which was exactly similar to this,) “that the bond was inoperative, unless the assent thereto of the directors, had been entered on the recoftí of their proceedings,” was pressed upon us in the argument. And if any thing could have caused me to doubt, it would have been the opinion of that distinguished judge; the decision however, of the circuit court, has we are informed been reversed in the Supreme Court of the U. S. by the unanimous opinion of all the other judges. It will be admitted, that a corporation, may be bound by the acts of its duly authorised agent, although .such acts are not reduced to writing. The charter of this bank requires, that the cashier shall give bond with two or more securities, “to the satisfaction of the president and directors.” If there had been no such provision, and the corporation had .appointed an agent, or board of agents, or a committee, for that purpose, could it have been successfully contended, that the acceptance of the bond by such agent or committee, or board of agents, must have been in writing? If not, what is there in •this case, to distinguish it materially from that? Are not the directors constituted by the charter the duly authorised agents of •the corporation?
I3y the seventh section of the charter, it is provided, that “the affairs of the said company shall be conducted by a president and sixteen directors, together with such other directors as the state shall appoint.” By the eighth section, the directors are empowered to appoint a cashier and other officers for conducting the business of the corporation. By the ninth section, the president and directors are empowered to make by laws, &c. for the government of the corporation, &c. By the 9th fundamental article of the constitution, the president and eight directors are constituted a board for the transaction of business; and by the 14th, the cashier is required to give bond *430with two or more sureties, to the satisfaction of the president and directors.
The directors then are agents of the corporation appointed by the charter, and why should their acts, within the scope of their authority, be required, to be in writing, more than the acts of agents appointed by the corporation itself? The acceptance of the cashier’s bond, is within the scope of their authority, and the terms of the charter from which they derive that authority, do not require their acceptance, or their being satisfied with the sureties in the bond, to be in writing, nor do we perceive on what ground the affirmative of the proposition can at this day be maintained. But it is thought unnecessary farther to prosecute the examination of this branch of the' case. The bond in question, which was not attested, having been found deposited among the archives and valuable original papers and documents of the bank, in an iron chest in the banking-house of the corporation, together with other papers, purporting to be the bonds of the tellers, book-keepers, and other inferior officers; and having .been produced at the trial by the plaintiffs, and Higginbotham, whose original appointment as cashier, is ¡recited in the bond,.having been continued in the constant employment of the bank from that time until he was dismissed in 1819, without any reappointment, or on any other bond being given, we think the jury, in the absence of all other evidence respecting the execution of the bond, ought to have been permitted to infer, that it was duly executed and .delivered by the defendant, and.accepted by the plaintiffs; which acceptance necessarily included the approbation of the board, or their satisfaction with the sureties, and was not necessary to be in writing-
The question presented by the plaintiffs’ sixth bill of exceptions, is upon the admissibility of the corporation books, on proof that they were kept by Pierce L. Tanner and Jacob Hart, as officers of the corporation; that the several entries contained in the books, were in the proper handwriting of Tanner and Hart', that they were kept under the superintendence find direction of Higginbothom; that Hart was dead, and that Tanner was residing out of the jurisdiction of the court jin parts unknown; which were rejected by the court as inad*431missible. And perhaps it could not well have been otherwise, after the bond on which the suit was brought had been rejected.
It appears from the pleadings in the cause, which are very prolix and complicated, that the fact of there being in the books, false and decéptious entries, made by the clerks with the knowledge and connivance of Iligginbothom, were distinctly put in issue on several of the breaches assigned in the replication. The books were not offered for the purpose of proving the truth of the facts which the-entries professed to assert, as in the case of an offer t,o’ prove, by the entries in a book, the delivery of the articles charged. But to show as facts what entries were in the books; which could only be done by the production of the books themselves. For which purpose, under the pleadings in the cause, and being of opinion that the bond was improperly rejected, we think the books ought to have been received in evidence, on proof that they were kept by Tanner and Hart as officers of the bank, and that the entries were in their handwriting; which we think might well be done in such a case, in order to lay a foundation for letting in other testimony to show fraud, malconduct, neglect, or violation of duty on the part of Higginbotham, and of Tanner, in relation to the entries, and the manner of keeping the books. Moreover, it is stated in the exception, that the plaintiffs offered to prove that the books were kept under the superintendence and direction of Higginbotham-, and if that were the fact, their admissibility was no more subject to objection, than if they had been kept by himself.
Upon the whole, then, we concur in opinion with the Baltimore county court on the plaintiffs’ first bill of exceptions, and differ from that court upon all the other exceptions taken by the plaintiffs.
The questions raised on the demurrers by the defendant, ira relation to the duration of the cashier’s bond, present, we think, but little difficulty, and will be briefly disposed of. The original act of incorporation 'was limited in its duration to the expiration of the year 1815, and to the end of the next session of ■assembly thereafter, which was the 6 th day of February 1817; and by the act of 1815, eh. 167, it was extended to the 1st of *432January 1835, and to the end of the session of the general assembly next thereafter. By the' charter the directors are to be chosen annually, and for that reason, connected with the eighth Section authorising the directors for. the time being to appoint a cashier.and other officers, it has been contended first, that the appointment of cashier is an annual appointment, and that the* obligation of the bond in question did not extend beyond the end of the year-next ensuing the' áppoiníment of Higginbo thorn as cashier. If the premises were true, the conclusion would be unavoidable. But the premises, we think, are not true; and that the appointment of cashier is not an annual appointment, but limited only by the duration of the charter, subject to the removal of the incumbent by the directors, as occasion may require. If the cashier was-a mere clerk or agent j>f the directors, who are themselves annually appointed, it might be otherwise; but he is not' the mere servant or clerk of the directors who appoint him, but an officer of the corporation, appointed by its agents duly authorised for that purpose, whose limited term of service has no connexion with the duration of his appointment. The provision in the charter, “that the directors for the time being shall have power' to appoint a cashier,” docs not mean that the office of cashier must annually become vacant, .and that every new set of directors are to appoint a new cashier. The eighth section of the charter provides for' the annual election of directors; and if it had been intended that a cashier should be also annually appointed, the reasonable presumption is, that it would have been so directed And in the absence of any such provision, the words “the directors fori the time being shall have power to appoint a cashier.” &e. must* be understood as meaning only, that whenever, for any reason^ the appointment of a cashier should be necessary, the then-board . of directors should be authorised to make the appointment. In giving, this- construction to the eighth section, some aid is derived from the use of the same language in the ninth Section, which provides “that the president and directors for the time being, may make all such rules, orders, by-laws and regulations, for the government of the corporation,” &c. Now it cannot be intended that every new board shall make a new s¡et of by-laws, &c. but only when by-laws, &c. are to be made, *433ío authorise the making them by the then board of president, and directors.
But it is contended, secondly, that the bond in this case is «inly co-exfensive with the limitation of the original act of incorporation; that is, that it does not reach beyond the expiration of the year 1815, and the end of Ihe next session of assembly thereafter, which was the 6th ol February 1817, and that the defendant is only responsible for violations by Higginbotham of the condition of the bond, between the date and the 6th of February 1817. ■ In construing this bond, we must look to the intention of the parties at the time it was executed. It is a question of intention which, when ascertained, must govern the construction. When the bond was executed then the act ol incorporation, under which it was given, was limited in its duration to the 6th of February 1817. The bond looked to the time for which lligginbothom was appointed, and that was restricted by the limitation of the charier as it then stood. What then was the intention of the parties? And where is that intention to he found? Where but in the original act of incorporation, under wiiich the bond was executed? And looking to that act, it would seem to be very dear, that no responsibility watj contemplated beyond the period of its duration- — -“Ibero was no idea then, of carrying it any further.” The parties knew the legal duration of the charter expressed upon the face of it; they contracted with a view to that duration, and the contract must be expounded as the law was when the contract was made. The president and directors, under the authority given them by the act of incorporation, to appoint officers of the corporation, could not appoint them tor a term of service exceeding the legal existence of the corporation. Willi that corporation, limited in its duration to the 6th of February 1817, the defendant contracted for the fidelity of one of its officers while in its service, which service could not, as the law then was, point to a period beyond the exislence of the Corporation itself. It is true a power rested in the legislature to extend the duration of the charter, which has since been done. But it was not with the corporation in its enlarged shape, that the defendant contracted. And what the contract was, at tho, time it was entered into, so it remains; and the act of 181S;, *434extending the duration of the charter, could not enlarge the liability of the defendant without his consent. If he had been asked at the time of executing the bond, whether he would be willing to become a surety for Higginbothom, for any length of time to which the charter might be extended by the legislature, of which it was a creature, it may be, that he would hayo assented to it; but it is by no means evident that he would; and we are not to speculate on what he might have been willing to do. We can look only to what he did. The bond is general to The President and Directors of the Union Bank of Maryland, and recites, that they had employed Higginbothom in the capacity of the cashier, and such other business as they might think fit to employ him about; without a word in relation to any extension of the charter, or any services to be performed beyond the time to which the then charter was limited. We-cannot then presume, that any Extension of the charter was in the contemplation of the parties, but that the contract was made with .a view to -a law, which by -its own limitation was to expire on the 6th of February 1817; and we must expound the contract, by the law as it then was, and not by the continuing act of 18-15, which did not enter into the contract, and could not enlarge it. We think, therefore, that the defendant is not responsible on that bond or contract, for anything done, or omitted to be done, by Higginbothom, after the -6th of February 1817, acting in the character of cashier; and that the several demurrers -on the part of -the defendant were properly sustained by the -court below.
The authorities relied upon by the counsel for the plaintiffs to show, that the day laid is often immaterial, and that the demurrers could .not be supported, Whatever might be the legal duration of the bond-, are not applicable to such a case as this. It is very certain, that the day laid is frequently not material; as in .trespass, where the injury charged may be proved to have been committed on a day before or after the time stated in the declaration; provided it appears to have been before the action was brought, the substantial part of the issue being, whether the trespass was committed, and not on what day it was committed. And if in such a case, the day was material, as the ob*435jection would not appear upon the record, but depend upon the evidence, it could' not be taken advantage of by demurrer.
But here, so-far as the breaches demurred to allege matter as violations of the condition of the bond, after the sixth of February in the year 1817, the time laid is material; it is the very matter in controversy between the parties, depending upon the true construction of the contract, and raises the question of the legal responsibility of the defendant for any acts or omissions of Higginbotham as easbier, after the period of the original limitation of the-charter, and'the objection-does not depend upon the evidence, but appears upon the record,.
The objection is not to the form in which the breaches are assigned, nor to the introduction of merely immaterial matter; that might be treated’ as surplussage; But to the allegation of material matter beyond' the responsibility' of the defendant, on* which he could not with safety have gone to issue.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED..