Page:Federal Reporter, 1st Series, Volume 5.djvu/758

 746 FEDERAL REPORTER. �soon as 10 per centum on the capital stock sliall be sub- scribed, the persons named in the certificate of incorporation, or any three of them, may give notice for the stockholders to meet for the purpose of choosing directors. But we do not think it indispensable to an election that the notice should be given by the persons named. Suppose they should ail die before the time arrived for giving the notice, or any of the many contingencies should occur which would prevent their action, could not an election be had ? If the necessary amount of stock bas been obtained, and, at a meeting of the stocks holders for the purpose, they elect directors, the validity of their acts cannot be questioned, collaterally, on account of the irregularity in their election. The statute in regard to the notice is directory." �And in Field on Corporations, 229: "We have already allnded to the fact. that the right to notice of a corporate meeting may be waived. If ail the members assemble at any meeting, and it proceeds to business, this is a waiver of want of notice, and the action of the bodyis not affeeted thereby." Also, Brice, Ultra Vires, 300; Potter on Corporations, 425. �Now, as against this, I am referred to Angell & Ames on Corporations, 495, which says: "If the niembers be duly assembled, they may unanimously agree to waive the neces- sity of notice, and proceed to business ; but if any one person, having a right to vote, is absent or refuses his consent, ail extraordinary proceedings are illegal, and, if the charter re- quires a special notice, it cannot be dispensed with, even by unanimous consent." There, the learned counsel for the plaintiff says, the distinction is clearly drawn between a case where the act of incorporation requires a special notice to be given, and in such where it can be dispensed with. The only case referred to in support of that authority is the case of Rex V. Theodorick, 8 East, 543, and that case does not support the doctrine of the text of Mr. Angell. "Where the whole corpora- tion are summoned for the particular purpose of receiving the resignation of a common councU, where ail present consent, may, atthe same time, without any particular summons to them for that purpose in their select capacity, proceed to ����