The executors of a deceased person may represent and vote the stock standing in his name without the necessity of a transfer of the stock to them. (Market St. Ry. Co. v. Hellman, 109 Cal. 571, 42 Pac. 225.)

ELECTION MAY BE POSTPONED.

Sec. 314, C. C. If from any cause an election does not take place on the day appointed in the by-laws, it may be held on any day thereafter as is provided for in such by-laws, or to which such election may be adjourned or ordered by the directors. If an election has not been held at the appointed time, and no adjourned or other meeting for the purpose has been ordered by the directors, a meeting may be called by the stockholders as provided in section 310 of this article. March 21, 1872.

Legislative History.

En.

Provision for postponed elections are found in the corporation act of 1850, page 347, section 168; the incorporation act of 1853, page 88; the railroad act of 1861, page 610; the savings and loan act of 1862, page 200; and the library act of 1863, page 624.

Annotation.

Adjournment.-It is too well settled to require comment that all corporations, whether municipal or private, may transact any business at an adjourned meeting which they could have done at the criginal meeting. Whether the meeting is continued without interruption for many days, or by adjournment from day to day, or from time to time, many days intervening, it is evident it must be considered the same meeting, without any loss or accumulation of powers. (Warner v. Mower, 11 Vt. 385, 391; Schoff v. Bloomfield, 8 Vt. 472; Smith v. Law, 21 N. Y. 296; People v. Batchelor, 22 N. Y. 128.)

COMPLAINTS AND PROCEEDINGS REGARDING ELECTIONS.

Sec. 315, C. C. Upon the application of any person or body corporate aggrieved by any election held by any corporate body, the district court of the district in which such election is held must proceed forthwith to hear the allegations and proofs of the parties, or otherwise inquire into the matters of complaint, and thereupon confirm the election, order a new one, or direct such other relief in the premises as accords with right and

justice. Upon filing the petition, and before any further proceedings are had under this section, five days' notice of the hearing must be given, under the direction of the court or the judge thereof, to the adverse party or those to be affected thereby. En. March 21, 1872. Amd. 1877-78, 79.

Legislative History.

The original section contains the words "or any proceedings thereof," following the words "any corporate body," and the word "summarily" after the words "must proceed forthwith."

The corporation act of 1850, page 348, section 15, contains a provision similar to the above.

Section Cited.

Wickersham v. Brittan, 93 Cal. 35, 36, 39, 42, 28 Pac. 792, 29 Pac. 51; Dulin v. Pacific W. & C. Co., 98 Cal. 305, 33 Pac. 123; Dulin v. Pacific W. & C. Co., 103 Cal. 364, 35 Pac. 1045, 37 Pac. 207; Foster v. Superior Ct., 115 Cal. 281, 47 Pac. 58; Smith v. S. F. & N. P. Ry. Co., 115 Cal. 587, 594, 609, 56 Am. St. Rep. 119, 47 Pac. 582; Whitehead v. Sweet, 126 Cal. 72, 58 Pac. 376.

Annotation.

Setting Aside Election of Directors-Action to.-In general, a court of equity has no inherent jurisdiction to review a corporate election, and oust the officers who claim to have been elected, but, in this state, under section 315, Civil Code, the superior courts bave jurisdiction, as courts of equity, to inquire into the validity of the election of directors of a corporation, and to set it aside if not in conformity with law. (Whitehead v. Sweet, 126 Cal. 67, 58 Pac. 376. To same effect: Wright v. C. C. etc. Co., 67 Cal. 532, 8 Pac. 70.)

The superior court has no jurisdiction, however, after proceedings have been stayed by appeal from judgment determining contest for election of directors of corporation to punish any of the other directors for contempt for refusal to recognize the director adjudged to have been elected, or to permit him to act as a director, in disobedience to the judgment. (Foster v. Superior Court, 115 Cal. 279, 47 Pac. 58.)

On the other hand, a writ of supersedeas will not be granted pending an appeal by the defeated party to restrain the party in whose favor the judgment was rendered from acting as a director, under the recognition of his fellow-directors, where no proceeding has been had or attempted upon the judgment. (Dulin v. Pacific etc. Co., 98 Cal. 304, 33 Pac. 123.)

And the abolition of the district court does not affect the right to invalidate a voidable election. The remedy still exists in favor of

anyone aggrieved, and is enforceable in a court of competent jurisdiction. (Wright v. Central etc. Co., 67 Cal. 532, 8 Pac. 70.)

The fact that a board of directors was illegally elected, and that the persons claiming to be directors are not such, does not affect the validity of the excuse for not making a demand upon the corporation to sue; and the question whether they are legal directors was not bound to be determined at the peril of the plaintiff's bringing the suit; but they have a right to have that fact determined by the court. (Whitehead v. Sweet, 126 Cal. 67, 58 Pac. 376.)

But when an action to set aside the election of directors is brought by stockholders, making the corporation, other stockholders, and the elected directors parties defendant, if the complaint alleges the control of the corporation by a single stockholder, and that it would be of no avail to make a demand upon the directors of the corporation to bring a suit to set aside their election, its averments are sufficient to excuse the necessity of making a demand upon the corporation to bring the action. (Whitehead v. Sweet, 126 Cal. 67, 58 Pac. 376.)

When one of the objects of an action is to set aside a contract made by an illegal board of directors, to remedy a wrong done the corporation, all of the stockholders, whether plaintiffs or defendants, are equally interested in the result of the action in that respect. If the election of a board of directors was illegal and void, a contract made by them is without authority and void, and must be set aside. (Whitehead v. Sweet, 126 Cal. 67, 58 Pac. 376.)

And a complaint to set aside an election of a board of directors of a corporation as illegal, and to annul the illegal action of the directors, and an illegal contract made by them without authority, and also complaining of the violation of a contract made by the defendant controlling the election of directors, with the stockholders of the corporation, to give to one of the plaintiffs, as trustee, for the benefit and protection of the corporation, a transfer of stock, with irrevocable proxy to vote it for the period of five years, is not multifarious. (Whitehead v. Sweet, 126 Cal. 67, 58 Pac. 376.)

No legal obligation rests upon any stockholder to cast his votes for any particular person for director, and the court has no jurisdiction to declare a defeated candidate elected. (Dulin v. Pacific etc. Co., 103 Cal. 364, 35 Pac. 1045, 37 Pac. 207.)

Who May Sue.—The "corporate body' referred to in section 315 of the Civil Code is the corporation itself and not the board of directors, and the action therein provided for applies to elections by stockholders, and not to appointments by directors. (Wickersham v. Brittan, 93 Cal. 34, 28 Pac. 792, 29 Pac. 51; Wickersham v. Murphy, 93 Cal. 41, 28 Pac. 793.)

And a stockholder in a corporation may maintain an action to set aside an election of directors of the corporations, although at

time of election no stock had stood in his name on books of company sufficiently long to entitle him to vote. (Wright v. Central California etc. Co., 67 Cal. 532, 8 Pac. 70.)

Collateral Attack.-The validity of the election of directors cannot be collaterally attacked, and the act of one who, at the time of the authorization of the note in suit, was a de facto director of the corporation, cannot be impeached by showing any irregularity in his election; and an offer to prove that he was not a director is properly rejected. (Barrell v. Land Co., 122 Cal. 129, 54 Pac. 594.)

FALSE CERTIFICATE, REPORT, OR NOTICE TO MAKE OFFICERS LIABLE.

Sec. 316, C. C. Any officer of a corporation who willfully gives a certificate, or willfully makes an official report, public notice, or entry in any of the records or books of the corporation, concerning the corporation or its business, which is false in any material representation, shall be liable for all damages resulting therefrom to any person injured thereby, and if two or more officers unite or participate in the commission of any of the acts herein designated, they shall be jointly and severally liable. En. March 21, 1872. Amd. 1873-74, 203.

Liability of officer: Pen. Code, secs. 558, 564, post; secs. 303, 309, C. C., ante, and sec. 3, art. XII, Const., ante.

Legislative History.

The original section reads thus: "Sec. 316. Any officer of a corporation who makes or gives a certificate, official report, public notice, or entry in any of the records or books of the corporation, concerning the corporation or its business, which is false in any material representation, and who knew, or had full opportunity to know, the same to be false, is liable for all the debts of the corporation contracted while he was a stockholder or officer thereof; and if more than one violate the provisions of this section in concert, they are jointly and severally liable.”

Similar provisions to the above are found in the corporation act of 1853, page 90, section 19, the railroad act of 1861, page 626, section 55, and the insurance act of 1866, page 747, section 16.

Annotation.

Liability of False Entries.-The fact that the bookkeeper of a corporation was appointed by the president and not by the manager, and the books were actually kept by such bookkeeper, cannot relieve

the manager from liability for false entries in the books and defalcations made by such bookkeeper, where it appears that the manager connived at and procured for his own improper ends, and himself corruptly embezzled funds, which were concealed by such false entries, and the fraud and defalcations were made possible by the manager's own fraud. (San Pedro Lumber Co. v. Reynolds, 121 Cal. 74, 53 Pac. 410.)

Where defective bookkeeping shows a loss, it is at least prima facie evidence that a loss existed; and the manager is properly chargeable with losses so appearing, where there is no proof to the contrary. (San Pedro etc. Co. v. Reynolds, 121 Cal. 74, 53 Pac, 410.)

MEETING BY CONSENT TO BE VALID.

Sec. 317, C. C. When all the stockholders or members of a corporation are present at any meeting, however called or notified, and sign a written consent thereto on the record of such meeting, the doings of such meeting are as valid as if had at a meeting legally called and noticed. En. March 21, 1872.

Legislative History.

Section 10 of the corporation act of 1850, page 348, is the basis of this section.

Annotation.

Consenting in Person or by Proxy.-Notice of day, hour and place of annual meeting of stockholders must be given to elect a board of directors, or such meeting cannot be legally held, unless the stockholders are all present, and consenting either in person or by proxy. (San Buenaventura Mfg. Co. v. Vassault, 50 Cal. 534.)

PROCEEDINGS AT MEETING TO BE BINDING.

Sec. 318, C. C. The stockholders or members of such corporation, when so assembled, may elect officers to fill all vacancies then existing, and may act upon such other business as might lawfully be transacted at regular meetings of the corporation. En. March 21, 1872.

Legislative History.

Section 11 of the corporation act of 1850, page 348, is the basis of this section.