Millard v. St. Francis Xavier Academy. The affidavits filed with the motion state various facts which tend to show that the judgment was for a sum considerably larger than the balance actually due on the note. It is also made to appear by said affidavits, that after the payment of the proceeds of the sale to said Belinda Hughson, and while the note was still in her hands, she agreed, in consideration of the fact that the defendant was a religious and charitable association, to desist from making any further claim for said deficiency, and that the plaintiff, when he took the note, had full notice of such agreement. On the hearing of the motion, the defendant read in evidence, in addition to said affidavits, the act of the General Assembly, approved February 27, 1847, by which the defendant was incorporated. Those portions of said act which are material in this case are as follows: The first section, after declaring the persons therein named a corporation under the name and style of "The St. Francis Xavier Female Academy, of Chicago, Illinois," provides that said corporation, by that name and style, shall have perpetual succession, with power to sue and be sued, plead and be impleaded, to acquire, hold and convey property, real, personal or mixed, in all lawful ways; to have and use a common seal, and to alter the same at pleasure; to make and alter, from time to time, such by-laws as they may deem necessary for the government of said institution, its officers and servants: Provided, such by-laws are not inconsistent with the constitution and laws of this State and of the United States, and to confer on such persons as may be considered worthy, such academical or honorary degrees as are usually conferred by similar institutions. "Sec. 3. Said institution shall remain located in or near the city of Chicago, Cook county; and the corporators and their successors shall be competent, in law and equity, to take to themselves, in their corporate name, real, personal, or mixed estate, by gift, grant, bargain and sale, conveyance, will, devise or bequest, of any person or persons whomsoever; and the same estate, whether real or personal, to grant, bargain, sell, convey, demise, let, place out at interest, or otherwise dispose Millard v. St. Francis Xavier Academy. of the same for the use of said institution, in such manner as to them shall seem most beneficial to said institution. Said corporation shall faithfully apply all the funds collected, or the proceeds of the property belonging to said institution, according to their best judgment, in erecting suitable buildings, supporting necessary officers, instructors and servants, and procuring books, maps, charts, globes, and philosophical, chemical and other apparatus necessary for the success of said institution: Provided, nevertheless, that in case any donation, devise or bequest shall be made for particular purposes, accordant with the design of the institution, and the corporation shall accept the same, every such donation, devise or bequest shall be applied in conformity with the express conditions of the donor or devisor: Provided, further, that said corporation shall not be allowed to hold more than one thousand acres of land at any time, unless the said corporation shall have received the same by gift, grant or devise; and in such case they shall be required to sell or dispose of the same within ten years from the time they shall acquire such title; and on failure to do so, said land, over and above the beforenamed one thousand acres, shall revert to the original donor, grantor, devisor, or their heirs. "Sec. 4. The treasurer of the institution and all other agents when required, before entering upon the duties of their appointment, shall give bonds for the security of the corporation in such penal sums and with such security as the corporation. shall approve; and all process against the corporation shall be by summons, and the service of the same shall be by leaving an attested copy thereof with the treasurer, at least sixty days before the return day thereof. "Sec. 5. The corporation shall have power to employ or appoint a president or principal for said institution, and all such professors or teachers, and all such servants as may be necessary; and shall have power to displace any or each of them, as the interest of the institution requires; to fill vacancies which may happen by death, resignation or otherwise, among said officers and servants; and to prescribe and direct the course of studies to be pursued in said institution." Millard v. St. Francis Xavier Academy. On the hearing of the motion, the court below entered an order vacating the judgment and dismissing the suit, to which order the plaintiff duly excepted, and now brings the record to this court by appeal. Mr. R. W. BRIDGE, for appellant; that when a contract is not, on its face, necessarily beyond the scope of the power of the corporation, it will, in the absence of proof be presumed to be valid, cited Bank of U. S. v. Dandridge, 12 Wheat. 29. The corporation having power by its charter to contract debts, had power to give evidences of such indebtedness: Parsons on Notes and Bills, 163; Ill. Con. Female Coll. v. Cooper, 25 Ill. 148; Aurora Agr'l Soc. v. Paddock, 80 Ill. 263; Angell & Ames on Corporations, § 187; Kelly v. Mayor, etc., 4 Hill, 263; Caltun v. First Univ. Soc. 46 Ia. 106; Jackson v. Brown, 5 Wend. 590; Gordon v. Preston, 1 Watts, 385; Leggett v. N. J. Mfg. Co. 1 Sexton, 541. The corporation had power to make all contracts necessary to carry on its business: Barry v. Mer. Exchange, 1 Sandf. Ch. 280; Galena v. Corwith, 48 Ill. 423; Clarke v. School Dist. 3 R. I. 199; Moss v. Harpeth Academy, 7 Heisk. 283; Thompson v. Lambert, 44 Ia. 239; Davis v. Proprietors, etc. 8 Met. 321; Abbey v. Billups, 35 Miss. 618; Manning v. Muscow Pres. Soc. 27 Barb. 53; Brown v. Winnisimet Co. 11 Allen, 326; Curtis v. Leavitt, 15 N. Y. 9; Clark v. Titcomb, 42 Barb. 122; Watts' Appeal, 78 Pa. St. 370. Appellee, under the circumstances, is estopped from denying its liability on the note sued on: Field on Private Corporations, § 270; West v. Madison Co. Agrl. Board, 82 Ill. 205; Aurora Agrl. Soc. v. Paddock, 80 Ill. 263; Bradley v. Ballard, 55 Ill. 413; Darst v. Gale, 83 Ill. 136; Epis. Charitable Soc. v. Epis. Church, 1 Pick. 371; Supervisors v. Schenck, 5 Wall. 772; City of Lexington v. Butler, 14 Wall, 282; Thompson v. Lambert, 44 Iowa, 239. As to the plea of ultra vires: Underwood v. Newport, Lyceum 5 B. Mon. 130; Moss v. Rossie Lead Co. 5 Hill 137; DeGriff v. Am. Linen Thread Co. 21 N. Y. 124. MR. JOSEPH F. BONFIELD, for appellee; that corporations Millard v. St. Francis Xavier Academy. have only such powers as are conferred by their charters, cited Thomas v. West Jersey R. R. Co. 11 Otto, 71. Appellee had no power to execute the note in question: Ashbury R'y Co. v. Riche, 7 H. L. Cas. 653; Milburn v. Larne, 23 How, 435; v. Leonard Canton, 35 Miss. 189. Appellee is an eleemosynary corporation, and holds its funds in trust for certain purposes: Green's Brice's Ultra Vires, 50; State v. Adams, 44 Mo. 576; Dartmouth Col. v. Woodward, 4 Wheat. 518. Appellee should have been served with process; confession of judgment as in this case was ultra vires: McMurry v. St. Louis Oil Co. 33 Mo. 377. BAILEY, J. The principal controversy in this case, arises upon the first ground specified in the motion to vacate the judg inent, viz: that the defendant had no power to execute the note sued on. The other grounds may be disposed of in a few words. The second, viz: that the defendant was not served with process as required by law, is an attempt to apply to this case the provisions of the fourth section of the defendant's charter prescribing special rules for the service of process on the corpora tion. Whether those provisions are to be regarded as still in force or not, we fail to perceive how any question as to the service of process can arise in this case, since the defendant, by its warrant of attorney waived such service. The right of the corporation to be served in a particular manner in no way interfered with its power to appear without process. But it may well be questioned whether the various amendments to the general law prescribing the manner of serving process on corporations, passed since the date of the defendant's charter, have not operated as a repeal, by implication, of the provisions of the charter on that subject. But even if there was no proper service, such fact could result only in a vacation of the judgment, and would be no ground for dismissing the suit out of court against the plaintiff's objection. The fifth ground, viz, that the note was not executed by the Millard v. St. Francis Xavier Academy. defendant corporation, does not seem to be true in fact. It purports, on its face, to be the note of the corporation, and it was executed by officers who, as between the corporation and third persons, will be presumed to liave been vested with sufficient authority to bind their principal, provided the execution of the note was not, as to the corporation itself, ultra vires. In the body of the note, the corporation appears in its corpor. ate name as the promisor, and the signature is in the following words: "The St. Francis Xavier Female Academy, of Chicago, Illinois: by Sophia Granger, President; Anna Drum, Secretary." This was an execution by the corporation, it not being pretended that the persons who signed as president and secretary were not such officers, or that their signatures were not genuine. The affidavits read in evidence on the hearing of the motion, tended strongly to support the third and fourth grounds for vacating the judgment, viz.: that the judgment was largely in excess of the amount due, and that the holder of the note, after the sale under the deed of trust, agreed to forgive, or in other words, to donate to the defendant whatever balance remained. unsatisfied. It may be doubted whether the latter of these grounds presented any defense to the note, it appearing that the transaction was at most a mere unexecuted gift, and therefore incapable of enforcement. But the showing made by the affidavits, that the judgment was largely in excess of the amount due, furnished a sufficient ground for vacating the judgment, and letting the defendant in to make its defense. It furnished no ground, however, for dismissing the suit. That should have been allowed to remain pending for the purpose of enabling the parties to litigate the matters thus in controversy. But if it be true that the defendant had no power to execute the note, it follows, necessarily, that the plaintiff could in on event be entitled to judgment, and that the suit was properly dismissed out of court. The decision of the court below, then, can be sustained only upon the theory that the execution of the note by the corporation was ultra vires. A corporation is said to be a mere creature of the law, and to possess only such powers and capacities as are given it by |