United States Bank v. Dandridge. of its proceedings." The sixteenth directs, that all notes and bills discounted shall be entered in a book to be called the credit book, in such manner as to discover to the board, at one view, on each discount day, the amount which any person is discounted, or is indebted to the office, either as payer or indorser. The thirteenth directs, that "the cashier of each office shall give bond to the President, Directors and Company of the Bank of the United States, with two or more approved securities, with a condition for his good behavior and faithful performance of his duties to the corporation." By whom the approval is to be made, whether by the directors of the parent bank, or by the directors, *of the office, is not stated. If the directors *80] of the parent bank might, by the charter, have committed it to the local directors, being found in a system of by-laws for their regulation, it would seem a natural inference, that it was their intention to commit it to the latter. When, as in the fourth rule, they reserve the appointment of the cashier to themselves, the language directly reserves it to "the directors of the Bank of the United States." If such authority could not, by the charter, be delegated, then it must be deemed to belong to the directors of the parent bank. It is in the latter point of view, that it has been argued at the bar, and in that view, it will be considered by this court. Assuming, then, that the directors of the parent bank were, as a board, to approve of the bond, so far as it respects the sureties, in what manner is that approval to be evidenced? Without question, the directors keep a record of their proceedings as a board; and it appears by the rules and regulations of the parent bank, read at the bar, that the cashier is bound "to attend all meetings of the board, and to keep a fair and regular record of its proceedings." If he does not keep such a record, are all such proceedings void, or is the bank at liberty to establish them by secondary evidence? In the present case (we repeat it), the whole argument has proceeded upon the ground, as conceded, that no such record exists of the approval of the present bond. The charter of the bank does not, in terms, require that such an approval shall be by writing, or entered of record. It does not, in terms, require that the proceedings of the directors shall generally be recorded, much less, that all of them shall be recorded. It seems to have left these matters to the general discretion of the corporation, and of the directors; and though it obviously contemplates, that there will be books kept by the corporation, which will disclose the general state of affairs, it is not a just inference, that it meant that every official act of the directors should be recorded, of whatever nature it might be. And if it had, it would deserve consideration, whether such provisions ought to be deemed conditions precedent, without which the act was void, or only directory to the officers in the performance of their duty, the omission of which might subject *themselves to 81 ] responsibility, and the corporation itself to the imputation of a violation of its charter. There are many cases where an act is prescribed by law to be done, and record made thereof, and nevertheless, if left unrecorded, the act is valid. By the English marriage act, registers of marriages are required to be kept in public books, in every parish, and signed by the parties and the minister, and attested by two witnesses. Yet, it has been decided, that such an entry is not necessary to the validity of the marriage, and that an erroneous entry will not vitiate it. 1 Phil. Ev. c. 5, § 2, p. 326. So, United States Bank v. Dandridge. where a magistrate omits to record an oath of office taken before him, parol evidence of the fact is admissible, though it is an omission of duty. Bassett v. Marshall, 9 Mass. 312. That some of the provisions of the charter and by-laws may well be deemed directory to the officers, and not conditions without which their acts would be utterly void, will scarcely be disputed. What are to be deemed such provisions, must depend upon the sound construction of the nature and object of each regulation, and of public convenience, and apparent legislative intention. If a regulation be merely directory, then any deviation from it, though it may subject the officers to responsibility both to the government and the stockholders, cannot be taken advantage of by third persons. United States v. Kirkpatrick, 9 Wheat. 720; United States v. Vanzandt, 11 Ibid. 184. In the case of the Bank of the Northern Liberties v. Cresson, 12 Serg. & Rawle 306, the directors were required by their own by-laws, to take a bond of the book-keeper, with sureties, and they took a bond from sureties, without joining the principal. The court held the bond valid, notwithstanding the by-law, and took notice of the distinction between such provisions of a statute as are essential to the validity of an act, and such as are merely directory. Mr. Justice DUNCAN said, that it was a matter between the directors and the stockholders, and that the obligors, who had voluntarily entered into the stipulation, could not withdraw themselves from their obligation. *But waiving, for the present, this inquiry, we ask, upon what [*82 ground it can be maintained, that the approval of the bond by the directors must be in writing? It is not required by the terms of the charter, or the by-laws. In each of them, the language points to the fact of approval, and not to the evidence by which it is to be established, if controverted. It is nowhere said, the approval shall be in writing, or of record. The argument at the bar, upon the necessity of its being in writing, must, therefore, depend for its support, upon the ground, that it is a just inference of law from the nature and objects of the statute, from the analogy of the board of directors to a corporate body, from principles of public convenience and necessity, or from the language of authorities, which ought not to be departed from. Upon the best consideration we can give the subject, we do not think that the argument can be maintained, under any of these aspects. If the directors had been a board, constituted by an unincorporated company, or by a single person, for the like purposes, and with the like powers, it would scarcely occur to any person, that the acts of the board must, of necessity, be reduced to writing, before they would bind their principal. The agents of private persons are not usually in the habit of keeping regular minutes of all their joint proceedings, and hitherto there has been no adjudication, which requires such a verification of their joint acts. Yet, innumerable cases must have arisen, in which such a principle might have been applied with success, if it had ever been supposed to possess a legal existence. The acts of private and public trustees, of joint agents for commercial purposes, of commissioners for private objects, and of public boards, must have presented many occasions for passing upon such a doctrine. The silence of the books, under such circumstances, would form no inconsiderable answer to the argument, connected, as it must be, with the knowledge of the loose and inartifical manner in which much of the business of agencies United States Bank v. Dandridge. is generally conducted. There may be, and undoubtedly there is, some convenience in the preservation of minutes of proceedings by agents; but their subsequent acts are often just as irresistible proof of the existence of *83] prior *dependent acts and votes, as if minutes were produced. If a board of directors were created to erect a bridge, or make a canal or turnpike, and they proceeded to do the service, and under their superintendence, there were persons employed, who executed the work, and the board proceeded to pay them therefor, out of funds in their hands, the facts of public notoriety would be as irresistible evidence of the due execution of their authority, and of due contracts made, and proceedings had by the board, as if the proceedings were recorded in the most formal and regular manner. Can there be a doubt, that, in the cases put, many contracts are so varied and rescinded, many acts done and assented to by the board, which never are reduced to formal votes, and declarations, and written proofs? We think, we may safely say, that the sense of the profession, and the course of private business, have never, hitherto, in respect to private agencies and boards, recognised the existence of any rule which required their acts and proceedings to be justified by written votes. What foundation is there for a different rule in relation to agencies for corporations? The acts of a single duly authorized agent of a corporation, within the scope of his authority, bind the corporation, although he keeps no minutes of such acts. They may be, and they are, daily, proved aliunde. In what respects do the acts of a board of agents differ from those of a single agent, in their operation as evidence? A board may accept a contract, or approve a surety, by vote, or by a tacit and implied assent. The vote or assent may be more difficult of proof, by parol evidence, than if it were reduced to writing. But surely, this is not a sufficient reason for declaring, that the vote or assent is inoperative. If a board of directors agree to build a banking-house, and it is accordingly built, and paid for by their cashier, with their assent, is the whole proceeding to be deemed void, because, in the progress of the undertaking, from accident or negligence, the votes and the payments have not been verified by regular minutes? But it is said, that in the present case, the cashier is required to keep a fair and regular record of the proceedings of the directors. But if this be admitted, *84] it does not establish the purpose for *which it is used. It is a bylaw of the corporation, directory to its officers, enacted for its own security and benefit, and not for the purpose of restricting the acts of the directors. If the cashier should neglect to keep such records, or should omit any single vote, the by-law has not declared that the vote shall be void, and the proceedings nugatory. Suppose, no such by-law had been passed, would not the votes of the board have bound the corporation? If they had discounted notes, taken mortgages, advanced money, and bought stock, by faith of viva voce unrecorded votes, and evidence of the existence of these acts and votes necessarily resulted from the other proceedings of the bank, could it be the intention of the legislature, that they should be utterly void? or of the stockholders, that any by-law should operate a legal extinguishment of their title to the property? It seems to us difficult to imagine, that such could be the legislative or corporate intention. If, in ordinary cases, such an intention could not be inferred, in order to produce a very strict and inconvenient construction of the charter, there is still less reason United States Bank v. Dandridge. to apply it to the cases of approval of official bonds. These are taken exclusively for the security and benefit of the bank itself, and not of mere strangers. The approval is matter of discretion in the directors, and that discretion once being exercised, it is of very little consequence to the bank, whether a written minute of the vote be made or not. All that the bank is interested in, is, that there shall be an approval; and it matters not, whether the fact is established by a direct record, or by acts of the directors, which recognise its prior existence. It has been supposed by the defendant's counsel, that the case of Beatty v. Marine Insurance Company, 2 Johns. 109, is in point, in his favor. Upon an examination of the facts of that case, we think it is otherwise. In that case, the incorporating act provided, that no losses should be paid, without the approbation of at least four of the directors, with the president and his assistants, or a majority of them. The attempt was to charge the company with a total loss, upon a verbal agreement made by the president and assistants, to accept an abandonment, and pay a total loss, at a meeting, when it did not appear that a single director *was present. The board therefore was not so constituted as to bind the company. [**5 Mr. Justice THOMPSON, in delivering the opinion of the court, said, "no part of the case will warrant an inference that any of the directors were present at the time of the alleged acceptance. When the plaintiff's agent called to know the determination of the company, in relation to the payment of the loss, he says, the secretary went into the room where the president and assistants were convened, and the answer returned was, that the president and assistants had agreed to pay a total loss; but no mention is made of any of the directors being present, or assenting to it. When the testimony is positive as to the persons by whom the acceptance is made, there is no room left for presumption. If any of the directors were present, so as to make the act binding on the company, the plaintiff ought to have shown it affirmatively. We are, of opinion, therefore, that the acceptance, not having been made by the agents constituted by the act of incorporation, cannot be binding on the company." The case, therefore, so far as it goes, is against the defendIt carries an almost irresistible inference, that the court did not think a written vote of acceptance necessary, and that parol proof would have been sufficient. No other authority has been produced, to sustain the argu ment; and it cannot be doubted, that if any did exist, the researches of the counsel would have brought it before the court. We may, therefore, corsider that it is a new doctrine, unsupported by prior cases, and to be established now for the first time. We think, that the reasons of public convenience and individual safety and protection, would not be promoted by establishing it. ants. On the other hand, every case, which has been adduced to show that corporate acts need not always be reduced to writing, but may be proved by presumptions, is, à fortiori, an authority against the argument. There are, however, some cases, which confirm in a very clear manner, the doctrine for which we contend, and which have not been yet particularly adverted to. In the case of Apthorp, Treasurer of the Commonwealth, v. North, 14 Mass. 167, a suit was brought on the official bond of a coroner. By the laws of Massachusetts, the bond was required to be approved by *the court [*86 of common pleas of the county. It was delivered into the court of United States Bank v. Dandridge. common pleas, by the first justice thereof, and remained on its files for some. time. No record was ever made of its approval by the court of common pleas; and at the trial, contradictory evidence was offered, of a presumptive nature, as to its approval and rejection by that court. It was held, that notwithstanding there was no record of any approval, the bond might well, upon the circumstances, be deemed to have been duly delivered and approved. Chief Justice PARKER, in delivering the opinion of the court, said, "a formal act, or certificate of approbation by the court, is not made necessary by the statute;" and after commenting on the terms of the statute, he added, "it is not then, required, expressly, that any record or certificate should be made, that the bond given was approved. But if such bond is found upon the files, without any evidence accompanying it, that it has been rejected, and the principal has proceeded to execute the duties of his office, the presumption is violent, if not conclusive, that the bond was received by the court as the security required by the statute." In Foster v. Essex Bank, 17 Mass. 479, there was no clause in the charter respecting the receipt of special deposits, and no by-law had ever been made by the corporation or the directors on the subject. But the practice had long prevailed, to receive such deposits, and was known to the directors, though no vote could be found recognising them. The court held the bank liable for the safe-keeping of such deposits, like a common bailee, without hire, upon the ground, that there was a plain adoption of them, from the knowledge and acquiescence of the directors. The case of the Dedham Bank v. Chickering, 3 Pick. 335, approaches still nearer the present case, and discussed the very point now in judgment. It was the case of an official bond, given by the cashier of the bank, with sureties. The charter required, that the cashier, before he entered upon the duties of his office, should give bond, with two sureties, to the satisfaction of the directors. After the cashier was elected, the directors passed a vote, that A. B. and C. D. be accepted as sureties in a bond to be given by the cashier for the faithful discharge of the duties of *87] his office. The bond in question was dated before this vote; but it seems to have had but one surety. That circumstance, however, was not relied on at the argument; but the principal ground was, that there had been no approval of the bond, by the board of directors. It was found on their files, and the cashier had been frequently re-elected. Chief Justice PARKER, in delivering the judgment of the court, said, "We should have supposed, that in the case as well of a corporation as of an individual, a paper intended for their benefit, and found on their files, would be considered as accepted by them ;" and after alluding to the decision of the circuit court in this case, which required the record of a vote of the directors, he added, "We think, however, that the case before us may be decided, without touching that principle, for, admitting it to be correct, we are, nevertheless, of opinion, that the vote to accept the sureties, and the bond being in possession of the president, are a sufficient acceptance of the bond." It is impossible, we think, to doubt, that the real opinion of the court was, that the acceptance might be proved, without any record of a vote, and that the very facts of the case brought the point of implied and presumptive acceptance from other acts of the directors, completely in judgment. So far, then, as authorities entitled to very great respect and deference go, we are of |