Union Canal Company against Loyd et al., 4 Watts & Serg. 393

The Opinion of the Court was delivered by Sergeant, J. — The points brought before us on this motion for a new trial do not involve any question on the merits of the case as it may hereafter appear. Their consideration will more naturally arise after the evidence shall be given and the facts placed before the jury for determination upon .the evidence. I shall pass over, therefore, on the present occasion, all that has been said in relation to the titles of these parties under the contracts and deéds relied upon, and consider chiefly the reasons assigned for awarding a new trial.

The first of these reasons is, that the judge overruled the evidence offered by the plaintiffs of the minutes of the Union Canal Company of the 15th of March, 3d of May and 30th of June 1796, going to show that the company ordered the quantity of land occupied by the canal to.be.ascertained by the engineer; that a contract was made by Mr Morris with the company for so much of his land as was taken for the use of the canal; that the price 'was fixed at £57 10s. peí’ acre, and that a credit was given to Mr Morris for the damages he sustained.

It is objected that these minutes were not evidence, for two reasons; first, because they were not sufficiently authenticated as the books of the corporation; and secondly, because, if they were so authenticated, they are not evidence in favour of the corporation to affect a third person. . More latitude must certainly be allowed in the proofs of corporation books and entries, where they are ancient, than where they are recent. In the latter case, living witnesses may in most cases be produced to show they have been regularly kept by the proper officers of the corporation.

But to require this after the lapse of half a century, would be to exact an impossibility, which the law never forces any one to. That books purporting to be the books of a corporation, or indeed official papers of any kind, are such, cannot be better proved after a lapse of many years than by being found in their proper place, produced by the proper officer, and sworn to be the books or records of the company or office. Here that is done.

The secretary and treasurer of the company, who has been such for 21 years, produces the books from among the archives of the office, and swears they are the minutes of the Union Canal Company, and as such have been in his possession; that he found them in the office; and, in addition, there is the oath of a director of the company going to show that Mr Morris was in that year the president of the company. There is evidence sufficient, we think, at least prima facie, to go to the jury to show the authenticity of these minutes. Corporation books are not generally evidence against a stranger. 1 Phill. Ev. 320.

But if a corporator is present assenting, he is bound by a corporate Act which may affect his individual rights. Slee v. Bloom, (5 John. Ch. 382). Against Mr Morris, therefore, whom they show to have been a party to the contract, they are evidence, and against those claiming under him. 2.

The next reason assigned for a new trial is the rejection of five checks produced by the plaintiffs, drawn by Robert Morris as president, on the treasurer of the Delaware and Schuylkill Company, to whose rights the plaintiffs succeeded, dated from 30th of April 1793, to 8th of February 1797, in favour of Johnson & Napier, and receipted by them, the plaintiffs having previously given in evidence the contract between the company and Johnson & Napier, to dig the canal running partly through Mr Morris’s land.

This was offered to show that he was president, and also that the company proceeded to carry the contract into execution. So far as this evidence goes to show that Robert Morris acted as president, and drew checks or orders as such for the payment of the engineers employed to excavate the canal, these were evidence ; but they would not ordinarily be admissible to show payment, until the handwriting of Johnson & Napier to the receipts was proved.

After a lapse, however, of 50 years, such evidence is hardly to be expected; and I should think that where accompanied with proof that the work was contracted for by the parties to whom they were payable and the canal excavated, and being produced by the company from their archives or their treasurer, payment might fairly be presumed by the jury. An order to pay money is, in the hands of the drawee, evidence of payment. Blunt v. Starkey, (Tayl. 100.) As to the surveys, such as were made while Mr Morris was president, especially under the resolutions passed in 1796, are evidence.

That of 1804, however, stands in a different situation, and was not of itself evidence. Another rejection of evidence complained of, is the statement by Robert Morris in his examination on oath before the commissioners of bankrupt in 1801, with a reference to his leger. This is objected to, as being the declaration of a grantor after he had parted with his title.

Perhaps a distinction exists, arising out of the peculiar circumstances of this case, inasmuch as it is alleged that Robert Morris conveyed to those under whom the defendants held with express notice to them of the plaintiffs’ previous title from him, and therefore they stand in his place, and an admission by him of things rightfully done under the contract, and whilst he held the title, would be evidence.

But, independently of this, we are of opinion it comes within that class of cases in which it has been decided that entries made by a third person against his own interest are evidence after the decease of such person. Such was the character of the evidence here, as it asserts that he had received payment of the strip of land from the company by its appropriation of its price to the instalments on his shares, as by reference to the entry in his leger.

A power of attorney from the Bank of North America to Robert Lewis, dated in June 1809, to transfer four shares of the Delaware and Schuylkill Canal, was also rejected. The Bank of North America owned the defendants’ title, it seems, from December 1798 to February 1809; and in January 1809 they were stockholders in the Delaware and Schuylkill Canal Company. The plaintiffs contended that, being stockholders, they had thereby constructive notice of the claim of that company on the land they held.

It seems to me that it would be carrying the doctrine of constructive notice very far to hold that a stockholder had notice of all the rights and claims and doings of the company. In practice he knows but little about them; indeed it is to be regretted he does not know more, for then these companies might, perhaps, be saved from the too frequent mismanagement which attends them. In effect, the administration of the company’s affairs is lodged in the directors and officers; the stockholders generally do no more than vote, and often but few even perform that important duty.

They seldom interfere with the administration of the company’s affairs till some danger awakens them to avert if possible a catastrophe. I think it would be going too far to hold the stockholders constructively cognizant of all the claims, titles and proceedings of the corporation, and that the evidence was properly overruled.

We next come to the testimony offered of William Read, a stockholder in the company, to prove service of a notice on Samuel Anderson on the 14th of October 1835, not to build on the premises, which, it is contended, is not evidence, because he does not go to show service of a notice on Anderson, but only Anderson’s admissions that he had served a notice upon him. I see no ground of objection. The witness, though a party to the cause, was competent to prove service of a notice, and that seems to be all he did.

If so, he is competent also to prove that the person served was on the ground engaged in superintending the buildings, and was the superintendent. As to the contents, it is not usual to give notice to produce a notice; though it is said to have been done here, it is to be presumed to be delivered to the defendants, and in their power to produce. The remaining evidence is of letters and acts of third persons, and minutes of the company, to show a recognition of their title, and a care and superintendence over the property, and exercise of acts of ownership by the plaintiffs.

Here it is to be observed that the plaintiffs’ title is of a peculiar kind, acquired under the provisions of the Act of Assembly of the 29th of September 1791, and claimed under a memorandum or entry in writing, not signed by the parties, but accompanied with payment of the purchase money and the'taking of such possession as the nature of the title authorized and required, by excavation of the bed of the canal, by the Delaware and Schuylkill Canal in the first instance, and continued by them and by the plaintiffs, successors to their rights and franchises. See Union Canal Company v. Young, (1 Wharf. 410).

Claiming, as the plaintiffs did, under this peculiar sort of title, the evidence offered was admissible to show the possession taken and held by them, the ownership over the property asserted and exercised during the subsequent periods of time, and the assertion at all times of their claim, as well as to repel any equity which might be set up from the defendants’ acts or acts of others on the property, or any alleged dereliction of the equitable title by the plaintiffs. In Woolway v. Rowe, (1 Ad. & El. 114, 28, E. C.

L. 53), in ejectment, the defendant, to show the land was not the plaintiff’s, but was part of the waste of a manor, was allowed to give in evidence a perambulation of the land as part of the manor made by the lord when no person on behalf of the plaintiff was present, because the lord thereby claimed and dealt with it as his own, and the evidence showed

an act of ownership. As to the question of title by possession on which the court charged, or by presumption of a grant from lapse of time and accompanying circumstances, which has been argued here, it seems unnecessary now to express an opinion, since it is probable the question will depend on the title by contract. New trial granted.-