
    The President, Directors, and Company, of the Hallowell and Augusta Bank, &c., versus Lewis Hamlin and Others.
    A secretary of a banking company is not a certifying officer: his copies roust therefore be sworn to.
    The assignment of a promissory note, m discharge of a debt due from a banking company, whose charter had expired, does not come within the provision of a law which prohibited the issuing and circulating securities by such company
    This was assumpsit by the plaintiffs, a banking company, incorporated by an act passed June 23, 1812, in * which they declared upon a promissory note made and subscribed by the defendants, dated February 25, 1811, for 549 dollars, payable in fifty-seven days, with grace, to the president, directors, and company, of the Hallowell and A.ugusta Bank, incorporated by an act passed March 6, 1804, and upon an en dorsement thereof to the plaintiffs by the corporation last named, under the hand of Benjamin J. Porter, president thereof, duly authorized for that purpose.
    At the trial, which was had upon the general issue at the last October term in this county, before Thatcher, J., the plaintiffs produced the note subscribed and endorsed as declared on ; and to prove the authority of Porter to make the assignment, they read in evidence a copy of a vote passed at a meeting of the stockholders of the bank incorporated in 1804, holden on the 5ih of December, 1814, authorizing their president to transfer to the holder of any of their bills any of their property, real or personal. This vote was certified by David Pass, styling himself secretary of the bank This copy was not sworn to ; but a copy of a vote appointing the said Pass to the office of secretary was produced, and this last copy was verified by the affidavit of Pass, taken before a magistrate, but not certified in the manner prescribed by statute respecting depositions of witnesses. The defendants objected to the admission of these copies in evidence. It was also objected, that the charter of the bank, incorporated in 1804, having expired in October, 1812, and the statute of 1812, c. 57, $ 2, 3, having prohibited any banks, whose charters had expired, from issuing or putting in circulation any securities for money, it was not in the power of that bank to transfer or assign the note in question. It was in evidence, however, that, at the time of the said assignment, the old bank was indebted to the plaintiffs in a large sum of money. The judge overruled the objections, and a verdict was returned for the plaintiffs, subject to the opinion of the Court upon these points, with several others which received no decision.
    
      Orr and Williams, for the defendants,
    contended *that the books containing the votes of the corporation should have been produced and verified by affidavit, as the best evidence; but here the copy of the vote authorizing the endorsement was not attested by any 'person, and the law knows no such certifying officer as the secretary of a banking company. This transaction was within the prohibition of the act of 1812, o. 57, $ 2, 3, and was therefore a void act.
    
      Bond, for the plaintiffs.
    This note being assigned in part payment of a debt due from one corporation to the other, the transfer can never be considered as prohibited by the legislature. It was in no sense issuing or putting into circulation a security for money. v
    The president of the bank had authority, ex officio, to endorse this note in payment of a just debt. If not, the corporation was competent to clothe him or any other agent with authority for the purpose, and probably the directors alone.  ' Having proved by sworn testimony that Vass was the secretary of the corporation, copies certified by him are sufficient evidence. 
    
    
      
       11 Mass. Rep. 94, Spear & Al. vs. Ladd.
      
    
    
      
      
        Swift’s Law of Ev 23. — 3 Salk. 154. — Peake’s Law of Ev 93. — 2 Esp. Rep., 665, Marsh vs. Collnett.
      
    
   Parker, C. J.,

delivered the opinion of the Court. In this case, by the facts reported, the plaintiffs have a right to recover, if they have proved a regular assignment of the note to them.

The assignment appears to have been made by Porter, the president of the old bank ; but as he had not, ex officio, the power to transfer their property or securities, his special authority to do it in this case must be proved by legal evidence. This authority could only emanate from the stockholders or company directly, or indirectly through the directors, to whom, by the by-laws, is committed the management of the affairs of the bank ; but in either case it must be proved by a vote of one or other of those bodies.

The copy of the vote of the stockholders, mentioned in the report of the case, would be sufficient evidence for this purpose, if it were properly authenticated. It is certified by David Vass, who is admitted to have been secretary of the company, and he certifies as such ; but a secretary of a banking company is not a certifying * officer; and, indeed, no such officer is created by the act of incorporation. The copy could therefore only be evidence, if sworn to. At the time of the trial it was not sworn to, and was therefore improperly admitted in evidence.

It has been attempted to overcome this difficulty by referring to a copy of another vote sworn to by the said Vass, by which vote he was appointed secretary of the meeting of the stockholders. This copy was properly admitted; but it proves nothing but the fact of the choice of the secretary, and does not in any degree affect the other copy, which was offered to show the authority to endorse; for Vass, as secretary, is not a certifying officer; and all copies certified by him must be sworn to. An extrajudicial affidavit would be sufficient to authenticate the paper, according to the English practice upon sworn copies.

It is understood that this objection is rather formal than substantial ; as it is said that the plaintiffs have now in possession a copy of the vote sworn to by Vass. But the state of things at the time of the trial must govern our decision; and as there was then a defect of legal evidence to prove the title of the plaintiffs in the note declared on, the verdict must be set aside, and a new trial granted.

We are of opinion that an assignment of a note, for the purpose of paying a debt, no new obligation being created by the old bank, but, in fact, the extinguishment of an old one, does not come within the prohibition of the act which prohibits the issuing and circulating of securities.

Neiv trial granted.  