The corporate existence may come directly in question or indirectly. It comes directly in question when a suit is brought by the state to forfeit the charter. In such case, nothing being presumed against the state, the proof of the performance of every act required, whether by the special charter or general law, must be strictly made. None of the decisions which follow applies to such a case. But when the due incorporation of a bank comes collaterally in question a very different rule applies. As to a shareholder or officer of the corporation, or as to any one who has contracted with the corporation as such, the fact of due incorporation is conclusively presumed.1 Even in a criminal case the defendant could not urge the non-existence of the bank, where he had performed acts as president thereof.2 "When collaterally attacked the existence of the corporation may be proved in favor of the corporation by the certificate of proper authority, and this certificate is conclusive.3 It may also be proved either by the special charter or a general law authorizing the incorporation with proof of user under the charter.4 Even if the charter is conditional, the proof of user is sufficient proof of the performance of the condition.5 If a double certificate is required, for instance, one by the county clerk and another by the secretary of state, proof of the first certificate with evidence of the transaction of business as a corporation is sufficient.6 Parol proof that the bank was actually in existence by doing acts of business,7 or was generally reputed to be a bank,8 has been held sufficient proof in favor of the bank. Where proof of due incorporation is made by a grant of a charter, it is not necessary to show that the bank commenced business.9 But it may be that the general law or. the charter forbids the doing of business by the bank until some certain act or acts have been done. If proof were offered that such an act had not been performed, where the objection is made by a third party as against the bank, it would seem that the person who had contracted with the bank, or a shareholder or officer who had acted in the corporation, would nevertheless be held responsible to the association.10 But if the objection be made by the corporation

1 See 1 Thompson on Corp., sees. 935-1053.

2 Bullard v. Bank, 18 Wall. 589, overruling a number of cases. See Sec. 54, post.

3 Nicollet Nat. Bank v. City Bank, 38 Minn. 85.

4 See Nicollet Nat Bank v. City Bank, supra. 5 See Sec. 234, post.

1 Casey v. Galli, 94 U. S. 673, citing a number of cases. Indiana permits a bill in equity by a stockholder against the corporation, in order to test the due incorporation. Albert v. State, 65 Ind. 413.

2 In re Van Campen, 2 Ben. 419; Fed. Cas. No. 16,835.

3 Casey v. Galli, 94 U. S. 673; Keyser v. Hitz, 2 Mackey, 473;

Thacker v. West River Bank, 19 Mich. 196. It seems to be intimated that if proof were made that the law did not authorize the granting of the certificate in such a case, the proof would not be sufficient, in Agnew v. Bank of Gettysburg, 2 Har.& G.478. On principle the certificate would be sufficient, even if obtained by fraud.

4 Henderson v. Union Bank, 6 Smedes & M. 314; Farmers', etc Bank v. Jenks, 7 Met (Mass.) 592; Bank of Manchester v. Allen, 11 Vt 302.

5 Williams v. Union Bank, 21 Tenn. 339.

6 Leonardsville Bank v. Willard, 25 N. Y. 571.

7 Way v. Butterworth, 106 Mass. 75; Farmers', etc. Bank v. Williamson, 61 Mo. 259; Yakima Nat. Bank v. Knipe, 6 Wash. 348.

8 State v. Fitzsimmons, 30 Mo. 236. Under a statute see the same case and Jennings v. People, 8 Mich. 81. Proof is sometimes dispensed with by statute, unless the incorporation be denied under oath. It seems that a different rule than that stated in the text was laid down in United States Bank. v. Stearns, 15 Wend. 314, as to the United States Bank.

9 People v. Peabody, 25 Wend. 472. 10 Berkshire v. Evans, 4 Leigh, 22a And see Sec. 32, post.

as against a third party, there is some confusion in the decisions. In the case of national banks it is settled that the proof would be good.11 This subject is, however, more properly a part of the discussion upon Unauthorized Banking.12