
    The President and Directors of the Highland Turnpike Company against M‘Kean.
    NEWYORK,
    May, 1813.
    book,/a dence of the oeedings ’’of' tlon “buT'it" must be made they’’are the corporation*kept as sufh, o'fficer,’ or ’ person audionzed to make entries, in his necessary ab< sence*
    It is not prove' the book to be in ting of a per-the book Itself crJanf but not otherwise the proper oftcer.
    THIS was an action on the case, tried at the Dutchess circuit,, in September, 1812, before Mr. Justice Yates.
    
    The declaration stated the incorporation of the plaintiffs, by an the 2d April, 1806, and that thirteen persons named in the act were appointed commissioners to perform certain duties, open subscription books, &c. and averring a performance of duties, and that the defendant subscribed his name, and affixed thereto the number of twenty shares, and thereby became a stockholder, &c. and liable to pay the plaintiffs 500 dollars, for the shares so subscribed, at such time and place as should be determjned by the plaintiffs. The plaintiffs also averred the subscrip tion of the number of shares required by the act, the advertisement and notice for the choice of directors, and the meeting of the stockholders and the election of 13 directors, and the choice of one as a president; and that they commenced their operations on the road, and laid out large sums of money, and made a call on the stockholders to pay the amount subscribed by them; and that ^Ie defendant, though called upon and requested to pay for the shares subscribed by hinl, refused, &c. Plea general issue,
    At the trial, to prove the proceedings under the act, and some of the averments in the declaration, the plaintiffs produced a book of minutes, purporting to be the minutes of the plaintiffs: and a witness was called to prove the book, who said that the minutes were in the handwriting of Joseph Howland, stated therein to be secretary; that he did not know it to be the book of the original minutes of the company; but that he received it from Joseph Howland.
    
    The defendant’s counsel objected to the admission of the book as evidence, without further proof, but the objection was overruled. The plaintiffs’ counsel proceeded to read from the book the minutes of the proceedings; but which, from the ground taken by the court, it is unnecessary to state.
    Under the direction of the judge, a verdict was taken for the plaintiffs, for 616 dollars and 66 cents, being the amount of the defendant’s subscription, with interest, from the time the payment was required.
    
      A motion was made in arrest of judgment, and also for a new trial. It is necessary only to state the argument on the second motion.
    
      J. Tallmadge, jun. for the defendant,
    contended that corporation books were only evidence when publicly kept by the proper officer; and when produced, their authority must be established before they can be read in evidence.
    
    Again, the act requires 13 books to be kept by the commisaioners, and five only were produced.
    The act of incorporation was conditional; and no corporation could exist until certain acts were done, and the company duly organized. The essential averments in the declaration have not been proved.
    
      Oakley, contra,
    insisted that there was a legal existing corpora* tion. It had existence from the time of passing the act, and was not made to depend on the performance of their duty by the commissioners, who could not, by their neglect, defeat the intention of the legislature. But the books produced show that the company was legally organized. Though the minutes produced may not be evidence to prove a direct matter of contract, or to make out a title from an entry in the corporation books; yet, as to any collateral point, as the organization of the company, or user, or nonuser, there can be no other proof. The averment of the regularity of the proceedings in the declaration was not material, or necessary to be proved. It would have been sufficient merely to have stated that the plaintiffs were a legal corporation. The act of the legislature shows the creation of such a company.
    If the book is used by the defendant as evidence to any purpose, it will be evidence to every purpose; and it appears that the plaintiffs have held regular meetings as a corporation, from year to year.
    In The Union Turnpike Company v. Jenkins,
      
       Radcliff, J. considered the act in regard to the commissioners as merely directory, and if they did not strictly execute their trust, it could not affect the existence of the company, nor any contracts made with them.
    
      
       1 Stra. 93. Johns. Rep. 226. 8 Johns. Rep. 212. 378. Bull. N. P. 283.
    
   Per Curiam.

The motion for a new trial and a motion in arrest of judgment were argued together, but as the court are in favour of the flrst motion, it is unnecessary, at present, to express an opinion upon the second.

The plaintiffs were bound to prove, upon the trial, the aver~ ments in their declaration, a~nd if the book of minutes which was introduced had been legally authenticated, it would have contained the requisite proof of those averments. The general rule is, (and it is a rule of evidence essential' to public convenience,) that corporation books are evidence of the proceedings of the corporation, but then it must appear that they are the corporation books, and that they have been kept as such, and the entries made by the proper- officer,' or some other person in his necessary absence. (King v. Mothersell, 1 Stra. 93. 12 Vin. tit. Ev. 90. pl. 16. 2 Camp. N. P. 101.) In this case there was no legal evidence of the authenticity of the book, as being the minutes of the company, or that it had been regularly kept as such, by the proper officer. The whole evidence consisted of the fact that the book was in the handwriting of one Howland, who appeared, from the entries in the book (but in no other way) to have been secretary to the board. Unless, then, the book be considered as proving itself, there was no proof of its being the book it purported to be.

The motion for a new trial is accordingly granted, with costs to abide the event of the suit.

New trial granted. 
      
       1 Caines Rep. 881.
     