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Rys., &c., Co., 49 N. J. Eq., 217, that the certificate of incorporation is equivalent to a special act of the Legislature.

This practically puts it in the power of the incorporators to decide for themselves the powers which the corporation shall have in addition to the powers expressly given by the act, and is in effect a delegation to them of the lawmaking power of the Legislature.

This provision may also be construed as meaning that whereas incorporators are enabled to create and define the powers which the corporation shall possess, in addition to those given by Section 1, that the certificate of incorporation shall then become the measure of the company's powers, and that powers not expressly or impliedly given by it are excluded.

Although the words "creating, defining, limiting and regulating the powers of directors' are broad and elastic, they do not give a corporation power, by its certificate, to permit the board of directors to act otherwise than as a united body. A method of corporate action which the law does not recognize cannot thus be created. Audenried v. East Coast Milling Co., 68 N. J. Eq., 450.

A provision in the certificate of incorporation that the registered holder of stock shall be liable for calls for the amount unpaid is not inconsistent with the statute, and one who had sold his stock at the time the assessment was made, but who had not surrendered his certificate or informed the company of the name of the vendee, is liable for the assessment. Brown v. Morton, 71 N. J. Law, 26.

The simple statement in affirmative language of the matters required by the Corporation Act to be contained in the certificate of incorporation of a company does not amount to such a limitation upon the future action of its stockholders as will prevent a change in the purposes of the corporation by the consent of two-thirds in interest of the stockholders under the same act. Meredith v. N. J. Zinc & Iron Co., 59 N. J. Eq., 257; aff'd 60 Id., 445.

As to the power of a corporation to enter into a partnership, see Oscillating Carousal Co. v. McCool, 35 Atl. Rep., 582, and Fechteler v. Palm Brothers & Co., 133 Fed. Rep., 462.

Various limitations and regulations of the powers of the corporation, the stockholders and the directors may be made; power may be given to the directors to make and alter by-laws (Sec. 11); directors may be classified (Sec. 12); power exclusively to choose a class of directors may be conferred on any class of stockholders (Sec. 12); the amount of interest required to be represented at any meeting, and at the annual election of directors to constitute a quorum, may be prescribed, provided it is not more than a majority of shares (Sec. 17); power to the directors to sell or mortgage any or all of the corporate property without the assent of the stockholders or with the assent of a majority or two-thirds of the stockholders; restrictions on the power of stockholders to examine the corporate books of account; voting

qualifications may be provided-for example, that each stockholder shall have a certain number of shares of stock to entitle him to one vote (Sec. 17). Other similar limitations and regulations might be made.

Under Section 17 as amended in 1901 a provision may be inserted in the certificate of incorporation that any action which now requires the consent of the holders of two-thirds of the stock at any meeting after notice to them given, or requires their consent in writing to be filed, may be taken upon the consent of and the consent given and filed by the holders of two-thirds of the stock of each class represented at such meeting in person or by proxy. See note to Section 17.

Similar statute construed.

Section 1105a of the Code of Virginia provides that the certificate of incorporation may contain: "Any provision which the incorporators may choose to insert for the regulation of the business and for the conduct of the affairs of the corporation; and any provision creating, defining or limiting or regulating the powers of the corporation, of the directors, or of the stockholders, or of any class or classes of stockholders; provided such provision be not inconsistent with this act.”

In a case involving the above statute of Virginia it was held, that a provision in the charter of a corporation that until a certain date the stockholders should have no right to vote or to participate in the control or management of the corporation or its affairs, but such control should be vested solely in the directors, who should have power to do any act which the stockholders might do in the absence of such provision, was valid, and not in conflict with further provisions of the act relating to meetings of stockholders, their powers, etc., which apply only to corporations whose charters do not otherwise provide. Union Trust Co. of Maryland v. Carter, 139 Fed. Rep., 717.

Cumulative voting.

Under Chapter 172 of the Laws of 1900 provision may be made in the certificate of incorporation for cumulative voting. Sec. 35a, post.

9. Authentication and record of certificate. Copy evidence.

The certificate of incorporation shall be proved or acknowledged as required for deeds of real estate, and recorded in a book to be kept for that purpose in the office of the clerk of the county where the principal office of such corporation in this state shall be

established, and, after being so recorded, shall be filed in the office of the secretary of state; said certificate or a copy thereof duly certified by the secretary of state, shall be evidence in all courts and places.

P. L. 1846, p. 65; P. L. 1849, p. 301; Act of 1875, §12.

Within the State of New Jersey the acknowledgment may be taken by the Chancellor, a justice of the Supreme Court, any attorney-at-law admitted to practice by the Supreme Court, a Master in Chancery, a judge of any Court of Common Pleas, a Commissioner of Deeds, a Clerk of the Court of Common Pleas of any county, a Deputy County Clerk, a Surrogate or Deputy Surrogate of any county, or a Register of Deeds of any county. "An Act respecting conveyances (Revision of 1898)," §22, P. L. 1898, pp. 670, 678, as amended by Chap. 247, Laws of 1906, p. 524.

All acknowledgments must be in the form prescribed by the New Jersey statute.'

A New Jersey Notary Public has no authority to take an acknowledgment.

Acknowledgments out of New Jersey should, if practicable, be taken by a Master in Chancery of New Jersey or by a Foreign Commissioner of Deeds for New Jersey authorized to act in the place where the acknowledgment is taken. If a Master in Chancery or Commissioner is not available, the acknowledgment may be taken by a Notary Public or other officer, but in such case it is necessary to attach to the certificate of acknowledgment a certificate of the County Clerk or other officer performing similar duties, substantially as follows ("An Act respecting conveyances [Revision of 1898]," §23):

State of County of i,

and also Clerk of the

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the same being a Court of Record, do hereby certify, That whose name is subscribed to the Certificate of the proof or acknowledgment of the annexed instrument, and thereon written, was, at the time of taking such proof and acknowledgment, a Notary Public in and for said County, duly commissioned and sworn, and authorized by the laws of said State to take the acknowledgments and proofs of deeds or conveyances for lands, tenements or hereditaments in said State of And further, that I am well acquainted with the handwriting of such Notary Public, and verily believe that

'Precedents, Acknowledgment, p. 350. Subscribing Witness, p. 350.

the signature to said certificate of proof or acknowledgment is genuine.

In Testimony Whereof, I have hereunto set my hand and affixed the seal of the said Court and County, the

(L. S.)

day of

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See further as to taking acknowledgments out of the state, P. L. 1898, pp. 678, 679.

The omission of an immaterial part of the acknowledgment by an incorporator, as a failure to state that the contents of the certificate were made known to him and the omission of a certificate of notaryship to state that the notary was authorized by the laws of his state to take acknowledgments and proof of deeds, do not render the incorporators liable as partners. Stout v. Zulick, 48 N. J. Law, 599. See also Keyes v. Smith, 51 Atl. Rep., 122.

10. Corporate existence begins on filing certificate. Upon making the certificate of incorporation and causing the same to be recorded and filed as aforesaid, the persons so associating, their successors and assigns, shall, from the date of such filing, be and constitute a body corporate by the name set forth in said certificate, subject to dissolution as in this act elsewhere provided.

P. L. 1846, p. 65; P. L. 1849, p. 301; Act of 1875, §13.

This section of the Revision is a substitution for Section 13 of the Act of 1875, which provided that the incorporators might insert the time when the company would begin business. The case of Vanneman v. Young, 52 N. J. Law, 403, is often cited as authority for the proposition that a corporation may begin business before the filing and recording of its certificate in the office of the Secretary of State, but Section 10 settles the law on this point.

In Stevens v. Borough of Merchantville, 62 N. J. Law, 167, it was held that an ordinance by which a municipality makes a grant to a private corporation is void if such corporation was non-existent at the time the ordinance was introduced and passed upon second reading. See also Lake v. Ocean City, 62 N. J. Law, 160, 162.

De facto corporations.

The law on this subject is stated in Stout v. Zulick, 48 N. J. Law, 599, 601: "In the absence of a statutory provision making shareholders liable in case of failure to comply with the requirements of the

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charter, or with requirements of the act under which the company is incorporated, persons who have contracted with a de facto corporation, as a corporation, cannot deny its corporate existence in order to charge its shareholders individually as partners. Where it is shown that there is a charter or a law under which a corporation with the powers assumed might lawfully be incorporated, and there is a colorable compliance with the requirements of the charter or law and a user of the rights claimed under the charter or law, the existence of a corporation is established.

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"And it is entirely settled that the corporate existence of such corporation de facto cannot be inquired into collaterally. It is, as to all who contract with it, to be assumed to be a corporation de jure. The legality of its corporate existence may be inquired into only by the state. This is as true where the corporation is formed under a general law as under a special charter. Had this suit been brought against the company it could not have denied its corporate existence, neither can the plaintiffs, who contracted with it as a corporation, do so." See also Att'y-General v. Stevens, 1 N. J. Eq., 369; Hackensack Water Co. v. De Kay, 36 N. J. Eq., 548; Rafferty, Rec'r, v. Bank of Jersey City, 33 N. J. Law, 368; Vanneman v. Young, 52 N. J. Law, 403; Stockton v. American Tobacco Co., 55 N. J. Eq., 352; aff'd 56 Id., 847; MacMillan Co. v. Stewart, 69 N. J. Law, 212; aff'd Id., 676.

A court of equity is not the proper tribunal to inquire into the validity of such organization. The action must be brought in a court of law, on quo warranto, or information in the nature of quo warranto, by the Attorney-General in behalf of the state. See cases cited, p. 37.

Where rights of third persons have arisen by reason of the acts of a corporation, de facto, such corporation cannot be dissolved by any agreement or act of the incorporators, so as to affect such rights. McCarter v. Ketcham, 72 N. J. Law, 247; s. c. 74 N. J. Law, 825, 829. As to the right of one contributing toward the formation of a corporation, not in fact effected, see Sherwin v. Sternberg, 71 Atl. Rep., 117; aff'd 74 Atl. Rep., 510.

One who enters into a written contract purporting to be made with a corporation, is not estopped, where there is no colorable organization of a de facto corporation, from showing that the individuals with whom he dealt were trading under the corporate name. Cottentin v. Meyer, 76 Atl. Rep., 341.

A subscriber is liable on his stock although the corporation be only de facto. McCarter v. Ketcham, supra.

Nature of corporate existence.

A corporation, although an artificial person existing only in legal contemplation, may act per se through its officers as a natural person. American Soda Fountain Co. v. Stolzenbach, 75 N. J. Law, 721.

A corporation has a distinct legal existence as a person. Service

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