
    The State of Mississippi vs. The Commercial Bank of Manchester.
    A judgment non obstante veredicto, cannot be rendered after a judgment upon the verdict has been entered ; the rule on that subject is, that the motion for such judgment (non obstante veredicto) must be made immediately after the verdict, and before a judgment is rendered on it.
    Where in a proceeding by information in the nature of a quo warranto against a bank, the court was asked to charge the jury, that if they believed from the evidence that the cashier, or teller, or clerks of the bank, as officers and agents of the bank, received either directly or indirectly from any one the notes of non specie-paying banks, in payment for any part of the capital stock of the bank, they must find for the plaintiff; it was held, that the charge was too broad ; that to make a payment binding on the corporation, it should be made to some agent authorized to receive it ■/ and that the charge as asked was properly rejected.
    The acts of a cashier of a bank are only binding upon the bank when he acts within the sphere of the agency prescribed to him; if there be no express regulation or restriction, all acts which appertain to his office will affect the bank ; if he be- restricted or limited in the scope of his agency by the bank, the act of the cashier in violation of the restriction, or beyond the limit, will not be the act of the bank.
    In a proceeding against a bank by information in the nature of a quo warranto, the acts of the cashier, when proved, will be prima facie binding on the bank when performed in the discharge of the ordinary duties which belong to that officer; and in order to avoid such acts of the cashier, it devolves upon the corporation to show a special restriction, imposed upon the cashier by the directors.
    A directory of a bank may, through its cashier, violate the charter of the bank; if, howeve'r, they can show that in the particular act of the cashier, alleged to be a violation of the charter, he departed from his duties as prescribed by them, such act will not cause a forfeiture of the charter.
    Where in an information in the nature of a quo warranto against a bank, the court tvas asked to charge the jury, that “ if they believed from the evidence, that it was agreed between the cashier of the bank and M., a holder of part of the capital stock of the bank, that M. should, to make payment of his stock, and evade the charter of the bank, procure the notes of the bank which was then a non specie-paying bank; that the cashier should receive the notes, count out their, amount in specie, and immediately take or receive back said specie, without M. being at liberty to take the same from the bank, and that he should thereupon receive a certificate of stock ; and that said M. did so pay an instalment on his stock, and receive a certificate, they must find for the plaintiff; ” there being proof that the board of directors had given positive directions that nothing but gold or silver, or the notes of specie-paying banks should be received in payment of stock; it was held that the charge as askedpvas properly refused, not having reference to the testimony before the jury.
    In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.
    At the May term, 1844, of the circuit court, Robert C. Perry, Esq. then district attorney in and for the tenth judicial district of the state, filed an information in the nature of a quo warranto, under the law passed and approved July 26, 1843, against the Commercial Bank of Manchester, charging the bank with the exercise of franchises to which it was not entitled, to wit: that of being a body politic and corporate in law, fact and name, by the name of the Commercial Bank of Manchester, and by the same name to plead and be impleaded, answer and be answered unto; and also the following liberties, privileges, and franchises, to wit, that of being or becoming the proprietors of a bank or fund for the purpose of issuing notes, receiving deposites, making discounts, and transacting other business which incorporated banks may lawfully transact by virtue of their respective acts of incorporation ; and also that of actually issuing notes, receiving deposites, making discounts, and carrying on banking operations and other moneyed transactions, which are usually performed by incorporated banks, and which they alone have a right to do; all of which liberties, privileges and franchises the bank, for the six months previous to the.filing of the information, it was alleged had usurped, and still did usurp upon the state, to its great damage and prejudice.
    Upon the filing of the information, process and a writ of injunction, as provided by the sixth section of the act issued, and were served.
    The bank appeared at the return term of the writ, and plead that by an act of the legislature of the state, passed on the 26th of February, 1836, the bank was incorporated; and set out the act of incorporation in her plea.
    To this plea the state filed fourteen replications; the second and fourteenth of which being the only ones relied on, the others are not farther noticed, except to state that the defendants filed a general demurrer to all of the replications of the state; which was overruled as to all but two, and sustained as to them. The defendant then moved the court to compel the plaintiff to elect which replication he would proceed under; which was refused by the court, and the case proceeded on the second and fourteenth replication.
    The second replication averred precludi non, because the subscribers for stock to the bank wholly failed to pay the first, second, third and fourth instalments due upon the stock, after the first regular meeting of the board of directors, as required by the charier, and instead thereof and in violation of the charter, made thfeir several promissory notes for the sums due from each on the instalments, which the bank fraudulently with intent to violate the charter, discounted and placed the proceeds to the credit of the subscriber, who then paid neither gold nor silver, nor the notes of specie-paying banks for his stock.
    The fourteenth replication was precludi non, because the subscribers and owners of the capital stock had wholly failed by contract with and consent of the bank, to pay the bank for their stock as required by the act of incorporation.
    The rejoinder to these replications was, that on the 15th of February, 1838, the legislature of the state had passed an act, which is set out in full in the rejoinder; the title of which was, “ An act to reduce the capital stock of the Commercial Bank of Manchester, and for other purposes;,” and which in substance provided for the reduction of the capital stock to a sum not exceeding a million of dollars ; and to enable the accomplishment of that end, releasing the bank from the establishment of a branch, as provided by the charter; the act was to take effect and be in force from and after its approval by the board of directors of the bank. The rejoinder averred further, that on the 22d of March, 1838, this act was approved, accepted and adopted as a part -of the charter by the directory, three-fourths concurring therein ; that the legislature, at the time of the passage of this act, knew of the alleged ground of forfeiture by the discount of notes in payment of stock; and by the passage of this act they had waived all such ground of forfeiture ; and that since the passage of the act, the bank had not received in payment of stock any of its own notes, or anything but gold and silver and the notes of other specie-paying banks.
    For surrejoinder to the rejoinder to the second replication, the state averred, that since the passage and approval of the above act of the legislature, the subscribers and owners of the capital stock of the bank had fraudulently paid, and the bank fraudulently accepted in violation of the charter, notes of the several banks of this slate, which were not at that time specie-paying banks, and which did not and would not, at that time pay specie.
    To the rejoinder to the fourteenth replication, the state averred, that since the passage of the act referred to, the owners and subscribers for the capital stock of the bank had wholly failed to pay the amounts unpaid on their stock at the time the said act was passed'by the legislature, in the manner required by the act of incorporation, and instead thereof they had paid their stock to the bank, and the bank had accepted from them payment therefor in the notes of the Agricultural Bank of the State of Mississippi, the Planters Bank of the State of Mississippi, the Commercial Bank of Natchez, the Commercial and Railroad Bank of Yicksburg, the Mississippi and Alabama Railroad and Banking Company, which banks were not, when the payments were made, paying specie on their notes when presented for payment, and were not specie-paying banks.
    By a rebutter the bank accepted the issue tendered by the surrejoinders to her rejoinders, and the case was submitted to a jury on the issues thus formed.
    A trial was had before the Hon. Morgan L. Fitch, then circuit judge, which resulted in a verdict in favor of the bank;. when the court granted a new trial on the motion of the state,. on the ground of newly-discovered testimony. The bank filed exceptions to the grant of the new trial, but the decision of the court on the second trial, renders it unnecessary to state the proceedings at the first at greater length.
    At the November term, 1845, of the circuit court, the Hon. Robert C. Perry, the former district attorney, having been elected judge of the district since the previous trial, was by consent of the bank, entered of record, permitted to preside as judge at the trial of the case, notwithstanding his having represented the state at the former trial. At the second trial, a verdict was on the 21st day of November, 1845, again rendered for the bank, and on the same day judgment according to the verdict was entered up. On the 26th of November, the state moved for a judgment in favor of the plaintiff, notwithstanding the verdict of the jury, which motion was overruled.
    At the second trial, James Minter, a witness on the part of the state, stated that he was the owner of a part of the capital stock of the bank after the 15th day of February, 1838; that about the middle of March, in that year, he paid upon his stock an instalment amounting to something like or near the sum of five hundred dollars, that the payment was made in the notes of non specie-paying banks of this state; he believes they were the notes of the Commercial and Railroad Bank of Yicksburg, or of the Brandon Bank or Bank of Yicksburg, as he had no other kind of money at that time; that he paid the money to some officer of the bank at the counter of the bank; but he did not remember what officer nor who it was; that he received a certificate, did not remember who delivered it to him; he did not think he paid the money to Hughes, the cashier, though he was about the bank at the time. He knew when he made the payment that it was in violation of the charter; he had since sold his stock to Mr. Barksdale.
    William Minter, on the part of the state, testified, that after the 15th of February, 1838, and in that year, he made a payment upon certain shares of the capital stock of the bank, held by him; that he paid the money to Hughes, the cashier of the bank; that it was at that time extremely difficult, and almost impossible, to obtain specie' in this state; before he made his payment he had an interview with Hughes, in which it was agreed between himself and Hughes, to obviate this difficulty-in obtaining specie to be used in payment of his stock, and to evade the charter of the bank in making the payment, that the witness should procure the notes of the bank, and present them at its own counter; that the bank should receive the same, count out the amount in specie, and immediately take or receive the specie back again, without witness being at liberty to remove it from the bank, and that witness should thereupon receive a certificate for his stock, as paid; that he accordingly procured said notes, presented them at the counter of the bank; the teller of the bank, by the direction of Hughes, counted and placed some specie on the counter; the witness did not count it or superintend the counting of it; Hughes pointed to the notes and specie as they lay on the counter, and said to the teller that it was a payment upon the stock of the witness; the teller then removed the notes and specie from the counter; the witness thought the arrangement designed to evade the charter; he regarded the payment as in fact made in the notes of the bank; that the bank had previously suspended specie payment, and was then a non-specie paying bank; the amount he paid was about two hundred dollars.
    H. I. Hughes was examined by the bank; he stated that he was the cashier of the bank from its first organization until in December, 1844; he transacted most of the business of the institution ; there was an order of the board of directors for the government of the officers, that no payment for stock should be received in anything else than gold and silver, or the notes of specie-paying banks; this order was carried out, so far as he knew, to its fullest extent; that he never knew stock to be paid for in anything else than gold and silver or specie notes; that this rule was communicated to, and directed especially to be observed by, all the officers of the bank; he instructed the teller to comply with this rule strictly; the teller invariably received his instruction from the cashier; the cashier invariably received his from the board of directors; the board of directors never revoked or changed this rule; that no payment, to his knowledge, of stock had been made since February, 1838, not in .accordance with this rule, and the requirements of the charter; the principal part of the stock paid since then, was paid in Philadelphia in specie; that he recollected the transaction with William Minter; Minter had about two hundred dollars in the notes of the bank; the bank had suspended; Mr. Minter presented the notes; witness directed the teller to pay them; he did so-and put them in the till; witness informed Minter that he could not receive payment in the notes of the bank; the specie was counted out by the teller on the counter, but not removed or counted by Minter; witness then pointed to the specie, and told Minter it was his money, and to do with it as he pleased; Minter then told the teller it was a payment on his stock; the teller removed the specie and applied it as a payment accordingly; witness regarded the arrangement as in conformity with,- and not as an evasion or violation of, the charter; he had received payment for stock in the same way in twenty different instances; the bank had then $30,000 in specie in her vaults; he made no agreement with Minter to evade the charter, nor suggested such a thing; he was in the bank when .Tames Minter made his payment for stock; but did not receive the money or see its character; it was paid to the teller, Mr. Garr; the sum paid was seven, hundred dollars; witness made out the certificate; and feels sure, that no violation of the rule and instructions given took place on that occasion, because he believes that Mr. Garr would in that event have informed him of it; he was sure Mr. Garr adhered to the rule, because so directed, and from his general fidelity in business ; witness was frequently absent for months from the bank; the board of directors, within witness’ knowledge, were never informed of any payment of stock in any other mode than that pointed out by the charter, and never authorized or sanctioned payment in any other mode. The defendant then read the affidavit of Tames Minter, on the faith of which, made at the previous term, the court had granted the state a new trial; in that affidavit he deposed that he was a stockholder and an original subscriber to the capital stock of the bank, and that since the 22d day of March, 1838, he had paid part of his subscription to her capital stock in notes of the banks of the state of Mississippi which were not paying specie at that time, and that such payment was made by him in the month of April or May, 1838.
    The defendant then read to the jury a power of attorney from James Minter to Charles Griswold, dated June 19, 1838, authorizing him to sell and transfer on the books of the bank his twenty-five shares of stock to Robson & Allen; and also Griswold’s transfer to Robson & Allen of the stock, as described by a certificate issued to James Minter, numbered 3, and dated March 15, 1838.
    The state then proved by Mr. Barksdale, that he had, as agent for Robson & Allen, made the arrangement with Minter for the purchase of his stock, and had the power of attorney made to Griswold, to complete the sale, as the doors of the bank were then closed ; that Minter did not know for whom he was buying it.
    This being, all the evidence in the case, the plaintiff moved the court to instruct the jury:
    1. If the jury believe, from the evidence, that since the fifteenth day of February, 1838, the cashier, or teller, or clerks of said bank, as officers and agents of said bank, received either directly or indirectly from any one, the notes of non specie-paying banks, in payment for any part of the capital stock of said bank, they must find for the plaintiff.
    2. If the jury believe from the evidence that since the 15th day of February, 1838, it was agreed between the cashier of said bank and William Minter, a holder of part of the capital stock of said bank, that said Minter, to make payment of his stock, and evade the charter of said bank, should procure the notes of said bank, which was then a non specie-paying bank, that said bank should receive said notes, count out their amount in specie, and immediately take or receive back said specie, without Minter being at liberty to take the same from the bank, and that he should thereupon receive a certificate for his stock as paid, and that said Minter did so pay an instalment on his stock and receive a certificate, they must find for the plaintiff.
    3. That if the jury believe from the evidence that since the 15th of February, 1838, said Commercial Bank of Manchester, while she was a non specie-paying bank, redeemed for any holder or owner of her stock any of her notes in specie, ,with the understanding and agreement that the money paid him should be immediately returned to said bank in payment for the stock of such stockholder, and that the money so paid by said bank was so immediately returned in payment for stock, then they must find for the plaintiff.
    These instructions were refused by the court; which, on motion of the defendant, gave the following charges to the jury.
    1. That if the jury believe from the evidence that the Commercial Bank of Manchester has not taken in payment of stock, since the 15th of February, 1838, the notes of non specie-paying banks, then they must find for the defendant.
    2. That the cashier, teller, and clerks of a bank are mere servants of the bank; and that their acts in violation of their instructions, and beyond the scope of their business and duty, without the kno\Vledge or assent of the directory, and against the rules prescribed by the charter, the directory and the usage of the bank, are not binding upon the corporation, nor are they in law the acts of the corporation.
    3. If the jury believe from the evidence, that the cashier, teller or other servant of the Commercial Bank of Manchester, did receive and take in payment of stock, since the 15th of February, 1838, the notes of non specie-paying banks, contrary to the charter and usage of the bank, and contrary to the express instructions given by the board of directors, and without the knowledge or consent of said directors, and without their subsequent knowledge and ratification or approval, such a taking was not a taking by the bank nor a cause of forfeiture, nor will it authorize the jury to find for the plaintiff.
    4. That the Commercial bank of Manchester, during 1838, had a right to redeem her own notes by the payment of specie; that it was her duty under her charter to do so, and that the payment of her own notes or any portion thereof in specie was not a violation of her charter or any provisions thereof, and that the taking of said specie back again in payment of stock, was not in contravention of her charter.
    
      5. That the suspension of specie payments by the Commercial Bank of Manchester did not relieve her from- the liability to pay her own notes when presented in specie, and that such payment was not illegal or in violation of her charter.
    6. If the jury believe from the evidence that William Minter offered to pay two hundred dollars on his stock since the 15th of February, 1838, in notes of the Commercial Bank, of Manchester, and that such payment was refused by the cashier, on the ground that it would be in violation of the charter and the instructions of the directory, and that said cashier, to accommodate said Minter, did pay him specie for said notes, and that then said Minter directed said specie to be received back in payment of his stock, and that such transaction was bona fide on the part of said cashier, and without any intention of violating the charter, then such transaction was not illegal, nor in violation of the charter, and does not constitute sufficient ground for the jury to find the issues against the defendant.
    7. If the jury believe that a witness has sworn falsely in one matter, they have a right to disbelieve him as to all.
    8. If the jury believe from the evidence, that James Minter did, after the 15th of February, 1838, pay to the teller of the Commercial Bank of Manchester, one instalment of his stock in paper of non specie-paying banks, and the teller did receive such notes in payment, in violation of the rule laid down in the charter, and in violation of his duty, authority, and instruction from the board of directors, and cashier, and without their knowledge and consent, and without their subsequent knowledge and approval, or that of either of them ; such payment or receiving is not the act of the bank, and does not constitute a violation of the charter.
    To the rejection of the instructions asked for by tíre state, and to the giving of those asked for by the defendant, the plaintiff excepted, and embodying the proof and instructions in a bill of exceptions, appealed to this court.
    
      R. S. Holt, for appellant.
    It was the duty of the circuit court to pronounce such a judgment as was proper in view of all the facts disclosed by the record, whether those facts were admitted in the pleadings or ascertained by the verdict of the jury. Stephen on Pleading, 117, 118. 2 Tidd’s Prac. 920.
    1. The payment of stock in any other mode than in specie was utterly subversive of the objects of the charter, which were to afford a sound circulating medium, and afford safe commercial facilities to the community; and was calculated to totally defeat the purposes intended to be subserved by the charter, and therefore violated it; 15 J. C. R. 379 ; and having thus forfeited one of the conditions upon which the corporators held their franchises under the charter, they forfeited all their privileges. Angel and Ames on Corp. 662-3; 23 Wend. R. 193, 205, 573, 237, 245 ; 4 Gill and Johns. R. 121; 1 Black. (Ind.) R. 267.
    It was admitted by the pleadings, that before the act of February, 1838, stock notes were given in lieu of specie in payment of stock. Was then that act a waiver of the previous forfeiture 7 We insist that it is not such a waiver.
    On this point Mr. Holt cited the following authorities: 1 Bouv. Law Die. 376; Toml. Law Die. tit. Estoppel; 10 Vin. Abr. 421, 422 ; 4 Comyn’s Dig. 200, 201; 2 Jacob’s Law Die. 114, 115; Greenl. on Ev. 34,249, 250, 252; 1 B. & P. 203; 8 Wend. 483; 6 Term R. 220 ; 2 Phil, on Ev. 200,last edition ; 5 N. Hamp. R. 452; 9 Cow. R. 274; 4 Wend. 642 ; 6 Pick. R. 455 ; 10 Vin. Abr. 423-4; Com. Dig. 201; 9 Wend. 381; Jackson v. Sheldon, 5 Cow. 448; 1 H. Black. R. 311; 6 Term R. 220; Adams on Eject. 193, 150; 1 Saund. R. 287, c. d.; 3 Term R. 151; Cowp. R. 803; Hume v. Kent, 1 Ball & Beatty, 554 ; 23 Wend. 193.
    2. The instruction given to the jury that the reception of payments for stock, by the cashier or teller of the bank, in a mode different from that prescribed by the charter, was not within the scope of their powers, not binding on the corporation, and did not cause a forfeiture of the franchises.
    We contend that the corporators were answerable for such acts done by the cashier and teller, from the necessity of the case and upon general principles. Story on Ag. 18,103, 131; 1 Salk. R. 289; 3 Atk. R. 47; 23 Wend. 260; 2 Hill, 452; 1 Black. Comm. 430.
    
      
      W. R. Miles, for appellee.
    1. The motion for judgment non obstante veredicto came too late. Steph. on Pleading 129; 8 Taunt. R. 413; 3 Barn. & Aid. R. -702; 1 Barn. & Ores. 223; 2 lb. 293, 302; 4 lb. 138 ; Tidd’s Prac. 712, 935 ; 6 Cow. 225.
    2. Had the motion been in time, it would not have availed; the act of Feb. 15th, 1838, was a waiver of former forfeitures. 9 Wend. R. 351, 379, 380,381; 23 Wend. 193, 212, 319, et seq.; 16 Mass. R. 245, 270, 710.
    3. The servants or agents of the bank cannot, by violating instructions given, and acting beyond the scope of their authority, disfranchise the corporators. Ang. and Ames on Corp. 239, (2d edition); 8 Mass. R. 299; 5 Wheat. R. 337; 12 lb. 40, S3 ; •3 Day (Conn.) R. 493; 1 Hill (N. Y.) R. 572; 1 Black. (Ind.) R. 273; 2 N. Hamp. R. 352; 7 Dana R. 28; 22 Pick. R. 24; 21 lb. 270; 11 Serg. and Rawle, 267, 269; 17 Mass. R. 29, 30; 19 Pick. 516, 517; 7 Cow. R. 219; 1 Black. 190; 19 Pick. 517; Ang. and Ames, 250, 251; 1 Greenl. R. 81; 14 Mass. R. 58.
    4. This case is such an one as when once fairly determined, should not be disturbed by granting a new trial, unless upon the clearest showing. 9 Johns. R. 264; 4 D. & E. 753; 5 lb. 19; 6 B. & C. 566; 9 D. & R. 566; 2 Tidd’s Pr. 941; Brooke v. Middleton, 10 East, 268 ; 1 Camp. 450.
    
      George Yerger, on same side.
    A charter is forfeited for abuse, or non-user. To constitute an abuse, it must be the act of the corporation, either in doing an act, which it is not authorized to do, and which is prohibited by its charter, or in not doing an act it is required to do.
    The authorities on this point are believed to be all one way. To hold otherwise would be to make the act of forfeiture, not that of the corporation, but of some servant or agent, who could at any time, at his own will, cause a forfeiture.
    The leading case is that of the city of London. Before this case it was considered doubtful, whether the corporation could forfeit for abuse, or non-user. That case shows it must be the act of the corporation.
    
      If an act is done contrary to the charter, the act must be done by and with the authority of the corporation. The directory, by law and by the charter, can only act so as to bind the corporation. The cashier and teller act as their agents, and under their direction, and their acts, in contravention of the orders of the directors, are not the acts of the corporate body. If they were, every corporation is at the mercy of its servants or sub-agents, who act without authority.
    Acts of a negative character, as when the corporation are required to act, and they neglect to do so; this neglect is the act of the whole body, because they are required to act, and do not.
    In all cases, therefore, where the corporation is charged with doing a thing prohibited to them, it must appear that it is the act of the corporation. 2 Bac. Ab. 285, note, case of City of London; 23 Wend. R. 581, 582, 586; 13 Lou. R. 270. The quo warranto act requires it to be the act of the corporation. See acts of 1843.
    The same rules apply to forfeiture of corporate rights that do to forfeiture of estates. 9 Wend. 351; 23 Ibid. 586.
    If a person without authority, or a stranger, commit waste, it is not a forfeiture. 23 Wend. 587.
    As to the power of the directory, and that it is their acts which constitute the acts of the corporators, &e. See Angel & Ames, 211 -214; 2 Metcalf’s R. 163; 11 Mass. R. 288.
    2. The ninth replication alleges that in 1837 and 1839, it failed to pay specie. The bank rejoined, and set out the act of 1840, which waived this, and averred a compliance with its provisions, and that it has paid specie ever since.
    That the legislature had the right to waive the forfeiture is undoubted law; and that the act of 1838 is a waiver, see 5 Mass. R. 232; 9 Ohio R. 203; 13 Lou. R. 203; 9 Wend. 351; 9 Connecticut, 45; 4 Gill & Johns. 122, 127; 2 McMullen’s R. 451.
    3. To the thirteenth replication there is a demurrer. The •replication avers that the bank loaned to Pope money, at less than twelve months, and took real estate as a pledge, or seenrity; for its payment. This it was authorized to do, both by its charter and by the law. Nolen v. The Commercial Bank of Manchester, 7 How. Reports.
    5. The third instruction was properly refused, for two reasons. 1st. Because the bank was bound by her charter to pay specie at all times, therefore she had a right to pay her notes to a stockholder as well as any other, although she knew he intended to pay his stock with the silver.
    But 2d. This instruction was properly refused, because it asks for a mere abstract principle of law, and whether right or wrong the case cannot be reversed, for the evidence shows that it was the cashier who paid the notes and took back the silver, in payment of stock ; and the evidence further is, that the bank knew nothing of it, that is, the directors.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This was an information, in the nature of a quo warranto, instituted under the act of 1843, against the Commercial Bank of Manchester. To the information the corporation pleaded the charter, to which there were fourteen replications. A trial was had at the May term, 1845, of the Yazoo circuit court, which resulted in a verdict for the defendant. On the part of the state a new trial was moved for, on the ground of newly discovered evidence, which was granted; but the defendant excepted to the decision of the court in granting the new trial. The next trial also resulted in an acquittal of the bank, and the case comes up by writ of error on exceptions taken by the district attorney, during the progress of the trial.

The replications were all abandoned except the second and fourteenth, and the questions to be determined, arise under those replications.

The second replication is, in substance, that the subscribers failed to pay the first, second, and third instalments for stock, but gave notes for the amounts due, .which were discounted by the bank fraudulently, and with intent to evade the charter, and the proceeds placed to the credit of the subscribers. To this replication the defendant rejoined, that since the making and discounting of such notes, to wit, on the 15th of February, 1838, with full knowledge that such notes had been taken in payment of stock in lieu of money, the legislature passed an act continuing said corporation, entitled “an act reducing the capital stock of the Commercial Bank of Manchester, and for other purposes.” The act is set out at length, and it is averred that the legislature thereby waived the said cause of forfeiture, and that the bank has not, (since the passage of said act, received anything but gold and silver for stock.

The fourteenth replication contains a general allegation that the subscribers for stock had wholly failed to pay as the charter required, and that such failure was with the consent of, and by contract with the corporation. To this the defendant rejoined the same act of the legislature, with the same averments contained in the rejoinder to the second replication.

The case having been submitted to the jury, the district attorney, on the part of the state, requested these charges, to wit: 1st. “ If the jury believe, fronrthe evidence, that since the 15th of February, 1838, the cashier, or teller, or clerks of said bank, as officers and agents of said bank, received either directly or indirectly from any one, the notes of non specie-paying banks, in payment for any part of the capital stock of said bank, they must find for the plaintiff.”

2d. “ If the jury believe, from the evidence, that since the 15th day of February, 1838, it was agreed between the cashier of said bank and William Minter, a holder of part of the capital stock of said bank, that said Minter, to make payment of his stock, and evade the charter of said bank, should procure the notes of said bank, which was then a non specie-paying bank; that said cashier should receive said notes, count out their amount in specie, and immediately take, or- receive back said specie, without Minter being at liberty to take the same from the bank, and that he should thereupon receive a certificate of stock, and that said Minter did so pay an instalment on his stock, and receive a certificate, they must find for the plaintiff.” The third charge presents, in substance, the same proposition. At the request of the defendant the court gave several charges to the jury, and the plaintiff excepted to these several decisions of the court in refusing and giving the charges.

It is thus sure that two questions are presented. 1st. Was the act of the 15th of February, 1838, a waiver of the previous cause of forfeiture; and 2d. Did the court err in refusing to give the charges asked by the district attorney, and in giving those asked by the defendant 1

The question of- waiver is raised by a motion for judgment non obstante veredicto, predicated on the admission in the rejoinder, that the bank had, prior to the act of February, 1838, forfeited its charter, and that the forfeiture was not waived by the act.

The verdict and judgment seem to have been rendered on the 21st of November, 1845. On the 26th of the same month the district attorney moved to set aside the judgment, and for judgment non obstante veredicto, which was overruled. It is now objected that this motion was too late after judgment entered. That, like a motiqn in arrest of judgment, it must precede the entry of judgment, it being too late to arrest that which is already entered. This objection is quite technical, and yet it is in strict accordance with law. The objection is made, and there seems to be but one rule on the subject; and that is, that such a motion must be made immediately after the verdict, and before a judgment is rendered on the verdict. 2 Tidd’s Practice, 840.

We proceed then to the consideration of the charges of the court. Corporations, from their nature, act by agents. They can act in no other way. The directors are but agents; but as the business ef the corporation is conducted by them, their acts are regarded as corporate acts. But the sub-agents are subject in their transactions to the -general rules of agency, as applicable to the agents of individuals. Their unauthorized acts do not in general bind the corporation, unless they have been acquiesced in. The first charge was evidently too broad. It cannot be that a banking corporation is left, in all respects, entirely at the discretion of all its agents or servants.' The charge asked contains the broad proposition, that payments for stock may be made to the cashier, teller, or any of the clerks, without any proof as to their authority to receive such payment. In the management of a corporation, different duties are assigned to different agents. It cannot be law that the whole machinery may be managed by any or all of the agents indiscriminately. To make a payment binding on the corporation then, it should be made to some agent who is authorized to receive payments. But the charge goes further. It would make any payment, made directly or indirectly, to any of the officers, binding on the corporation. This would extend to out-door transactions of an infinite variety of forms. It is sometimes customary for banks to employ messengers to deliver notices; if the charge asked be law, a payment made to such messenger, in the course of his daily excursions, would be binding on the corporation. On this hypothesis, every agent employed by a bank, may bring about a forfeiture of the charter.

The second charge asked is more limited. It confines the alleged illegal transaction to a contract or agreement made with the cashier. If the acts of the cashier are in all cases to be regarded as the acts of the bank or corporation, then it must be conceded that this charge should have been given. We have said that the cashier is but the agent of the corporation; and that his power is to be determined by the same rules which apply to. agents in general. The general rule is, that if an agent exceed his authority, his acts are not binding on his principal. This particular description of agency has been the subject of frequent adjudication, and the question must be regarded as in a great degree settled. The power of the cashier of a bank was considered by the supreme court of the United States, in the case of Fleckner v. The Bank of the United States, 8 Wheat. 338. The cashier had transferred a promissory note by indorsement, and his right to do so was questioned. Judge Story thought it necessary to make an argument of some length to show that he had power to indorse a note, and that too after such indorsement had been sanctioned by a vote of the board of directors. In speaking of the power of the cashier, the court said, “he is considered the executive officer, through whom, and by whom, the whole’ moneyed operations of the bank in paying or receiving debts, or discharging or tranferring securities, are to be conducted. It does not seem too much, then, to infer, in the absence of all positive restrictions, that it is his duty as well to apply the negotiable funds, as the moneyed capital of the bank, to discharge its debts and obligations.” The quálification under which this general power is conceded to the cashier, is striking and not to be overlooked. The power can only be exercised in the absence of alhpositive restrictions.” The language admits of no other meaning than, if such restrictions do exist, then they limit the power of the cashier. As the cashier is held out to the world as the general agent of the bank in regard to its funds and securities, prima facie he is to be deemed as having authority to superintend the moneyed affairs, and no special authority need be proved. But if a bank chooses to limit his authority, it certainly has the power to do so. 3 Mason’s R. 506. This power results necessarily from the superior authority of the directors. The corporate functions are concentrated in them; the cashier is but an agent of their appointment. His duty is not prescribed by the charter, but originates with the directors, and may be extended or limited as they may think proper. From the general character of the agency, it may be incumbent on the bank to show the restriction or limitation. This does not change its effect when shown.

The case of Wyman v. Hallowell and Augusta Bank, 14 Mass. R. 58, is a decision to the same effect. A new bank was chartered by the same name with a previous one, and employed the same president and cashier. Affidavits were read tending to prove, that the new corporation had put in circulation the notes of the old one; and the cashier had declared that there was no difference between the notes of the old and the new corporation, upon the faith of which declaration the notes obtained currency. It was held that the officers who had so undertaken to pledge the credit of the bank, had acted- unwarrantably, and could not implicate the stockholders or company, who are supposed to rely upon the faithful and correct discharge of duty by their agents and servants. The stockholders, said the court, would be in an extremely unsafe situation, if their property was bound by the irregular transactions, or by the declarations or confessions of their officers, beyond the legal sphere of their action.

It cannot be denied that the acts of the cashier of a bank, performed within the sphere or scope of his duty, are binding on the corporation. But what is the sphere of his duty? It extends no doubt to all acts which peculiarly pertain to his office, in the absence of any express regulation. But if there be an express regulation, that of course limits the sphere of his action. The directors may prescribe every duty he shall perform, and the manner of its performance, and the sphere of his authority is then confined within the limit so prescribed. And his authority may be from time to time changed or restricted.

This question as to the power of a cashier to bind the corporation, was again raised before the supreme court of Massachusetts, in the case of Salem Bank v. Gloucester Bank, 17 Mass. R. 28, and the court said, “ The directors are the agents of the company; the officers are its servants. . The duties of both are pointed out by statute, or prescribed in the by-laws, which are the promulgated will of the company. Acting within the limits of the authority thus given, the company is liable for their acts; but beyond those limits, they cannot bind their principals.” And again, in the case of Foster v. The Essex Bank, 17 Mass. R. 505, it was said the cashier could not, by his undertaking, make the bank answerable for a deposit, contrary to its usage, without previous authority or subsequent assent.

In the case of Everett v. The United States, 6 Porter’s Alab. R. 166, the transfer of a promissory note by the cashier of a bank, was sustained on the ground that it was within the scope of power ordinarily conferred upon the cashier, and yet the court admitted that the inference would not be conclusive ; that it would be competent to show that the indorsement was made in prejudice of the rights of the bank, in which case it would not be a valid transaction.

This question is very fully considered in the Treatise on Corporations, by Angel and Ames, 239, et seq., where the doctrine of the foregoing cases is fully recognized, and no case has been found which holds the contrary. Many other decisions are there referred to in support of the same doctrine. The result of all these authorities seems to be that bank officers, acting within the scope of their power, may bind the corporation ; that the acts of the cashier, who is the general executive officer of the bank, ar e prima facie binding when performed in the discharge of the ordinary duties which belong to that officer, and that in order'to avoid such acts, it devolves upon the corporation to show a special restriction. And I go further; the restriction must not arise from the charter alone, but from a limitation imposed upon the cashier by the directors. Through the cashier the directors may doubtless violate the charter, unless they can show that he departed from his duties, as prescribed by them. But it is believed to be a clear and indisputable principle, that the cashier cannot cause a forfeiture of the charter by a direct and palpable violation of his authority or instructions. We repeat that the scope of his duty is limited by the regulations of the directors. They may confer on him, or permit him to exercise, the powers which are usually exercised by cashiers, and then his acts will be binding, but they may limit his power if they think proper. If they cannot do so, his authority is superior to theirs, and the franchise is placed entirely at his mercy. It was remarked, in one of the cases referred to, that there is a difference between the acts of a bank officer and a mere private agent in this, that persons dealing with a bank are presumed to know the extent of the agency, because it is limited by the charter, or by the proceedings of the directors, which are subject to the inspection of every one.

According to this view of the authorities, the charge asked does not accord with the law. Some qualification should have been added, to indicate to the jury that if the act of the cashier was in direct violation of the express instruction of the directors, the corporation was not bound by his acts. This was necessary, because the proof was explicit, that the board of directors had given positive directions that nothing but gold or silver-, or the notes of specie-paying banks should be received in payment of stock, and charges must be given with reference to the evidence before the jury. There was no proof tending to show that the directors had acquiesced in any violation of the charter, if any such occurred, or that they even knew of the commission of such violation. If, under such circumstances, such an act as that referred to in the charge, be binding on the corporation there can be no limit to the power of the cashier. He may forfeit the charter, sell its property, or squander its money at pleasure. By the 7th section of the charter, the power to appoint and remove all officers, clerks and servants, is expressly conferred on the corporation, and the charter being silent as regards the duties of the cashier, it results that he derives his authority from the directors, by whom it may be limited.

We think, therefore, that the judgment must be affirmed.  