the only proof of corporate existence that is required is proof of the corporation de facto; and this was abundantly proved by the articles of incorporation. They were under the seals of the companies, respectively, and were duly signed, acknowledged, and proved: 2 Mor. Priv. Corp. 746, 750, 776-778. But it is said that there was no proof of the corporate existence de facto as to some of the constituent companies that entered into, and in part. formed, the amalgamated companies. We are not prepared to say that the execution of the articles by them under their seals is not prima facie evidence of their existence de facto; but the fallacy of this claim will be seen by tracing this title in detail. The government conveyed this land to the Central Pacific Railroad Company of California. This conclusively proves the incorporation of this company, not only de facto, but de jure. The grant of real estate by the government to an association of individuals by any name denoting it as other than a natural person, thereby clothes it with corporate capacity to take, hold, and convey the same. Bing. Real Prop. 854. This company amalgamated with the "Western Pacific Railroad Company," and together they formed the Central Pacific Railroad Company, and the title was passed to the new company. Suppose, according to the contention of the appellant, that there is no proof of the existence of the Western Pacific Railroad Company, and that it is to be presumed that it did not exist, then the new company would be but a reincorporation of the Central Pacific Railroad Company of California, and would be its successor, with the title of the property transferred to it. The new incorporation thus formed again joined with various other companies in forming still another company. If it is to be presumed that the companies joining with it did not exist, then it is again but another reincorporation, with the title again transferred to the new company, and this company conveyed to the plaintiff. In other words, all the companies through which this title passed were shown to exist de facto, by articles of incorporation. The existence of these companies, their amalgamation and consolidation, is specially recognized by the act of Congress of May

7, 1878 (20 St., 56), and thereby, also, their existence is established de facto. But it is said that, without proof of the laws of California, there was no proof that the corporations were authorized by law to hold real estate at all, or to transfer it, or that it was within the purposes and objects for which they were incorporated. This it is not necessary to show. Transfers of property to, and transfers by, corporations that have no such right or authority by law, are not void; they are only voidable, at the instance of the government, in a direct proceeding for that purpose. 2 Mor. Priv. Corp. 648-653, inclusive, 709-711, 746; 1 Devl. Deeds, sec. 121; Telegraph Co. v. Telegraph Co., 22 Cal., 398; Water Co. v. Clarkin, 14 Cal., 544; Bank v. Matthews, 98 U. S., 628; Leazure v. Hillegas, 7 Serg. & R., 313; Banks v. Poitiaux, 15 Amer. Dec. 706; Oil Co. v. Railroad Co., 32 Fed. Rep. 22. As to whether transfers to and by corporations that are expressly prohibited therefrom by positive legislative enactments are absolutely void as between third parties, the authorities differ, but the burden of showing that there is such prohibition is upon the party attacking the transfer: Burrill v. Bank, 35 Amer. Dec. 395. The question of authority on the part of the corporations was purely a collateral one in this case. The defendant was in no situation to attack their passed and fully-executed contracts; at least, without showing that they were wholly and absolutely void: Devl. Deeds; Water Co. v. Clarkin; Banks v. Poitiaux, supra. The rules are the same as to foreign corporations. The power and the right of a foreign corporation to hold and convey property is not to be determined under the laws of the home government under which they are organized, but it is to be determined by the laws of the government in which they are doing business, and in which they acquire the property: Runyan v. Coster's Lessees, 14 Pet., 122; Bank v. North, 4 Johns. Ch., 370; Lumbard v. Aldrich, 28 Amer. Dec., 381. This must be true, as the result of the rule that it is a question only between the corporation and the government. If lands acquired by a foreign corporation are liable thereby to be forfeited to the government under which it is organized, a foreign government

might, in this indirect way, acquire lands within the domain and jurisdiction of other governments, which might not be permitted. By the general comity which exists throughout the United States and territories, in the absence of positive prohibitions, corporations created in one state or territory are permitted to carry on any lawful business in any other state or territory, and to acquire, hold, and transfer property there, equally as individuals. If the policy of a state or territory does not permit the business of the foreign corporation in its limits, or allow the corporation to acquire or hold real property, it must be expressed in some affirmative way by the state or territory where the property is acquired: Cowell v. Springs Co., 100 U. S., 55. The deeds or transfers of these corporations, under their seals, properly affixed, and duly executed and proved, produced by the party claiming under them, is sufficient prima facie proof of title. Burrill v. Bank, supra. In Water Co. v. Clarkin, supra, the supreme court of California say: "It would lead to infinite inconveniences and embarassments if, in suits by corporations to recover the possession of their property, inquiries were permitted as to the necessity of such property for the purposes of their incorporation, and the title made to rest upon the existence of that necessity." In that case the corporation was a party. Here, where the transaction is fully passed and executed, the reasoning applies with greater force. If the title to every piece of land which happened to be traced to and from a poration was made to depend upon whether the corporation was duly and legally organized, strictly according to the laws of the government under which it claims existence, and as to whether the taking, holding and conveying of the property was strictly within their corporate powers, and for their corporate purposes, it would tend to lessen the value of corporate franchises, and to impair the marketable value of lands thus situated by reason of the difficulties in determining the title.

Our attention is not directed to any error in the record, and the judgment should be affirmed.

ZANE, C. J., and BOREMAN, J., concurred.

ANDREW BRIXEN, RESPONDENT, v. DESERET NATIONAL BANK, APPELLANT.

BANKS AND BANKING-NEGLIGENCE OF DEPOSITOR. Where a real estate agent, whose character was considered good, according to the common and ordinary practice, negotiated a loan upon certain property, and a mortgage ostensibly executed by the owner of the property was made, and the person making the loan gave to the real estate agent a check for the money loaned, payable to the order of the owner of the property, and the check was presented and paid at the bank, and subsequently it was discovered that the name signed to the mortgage and also that endorsed on the back of the check were forgeries; held, that the delivery of the check to the real estate agent for the payee, was not such carelessness as to exempt the bank from liability.

ID. -DELAY IN DISCOVERING FORGERY EXAMINING PASS-BOOK.-A customer and depositor of a bank is not presumed to know the signature of the payee of his check, and if it does not appear that he in fact knew the signature, he is not guilty of negligence in not discovering a forgery, and if the bank's officers before paying the forged check could have ascertained by proper care and skill that the check was forged, the bank in any event would be liable.

ID.--DELAY OF DEPOSITOR IN TENDERING BACK CHECK.-A depositor on discovering a forgery, on the same day went to the bank and notified it, and said that he would hold the bank responsible. The bank not having paid, twenty-four days thereafter, he tendered them the check; held, that if it was necessary for the depositor to tender back the check, such tender within a reasonable time was sufficient. EVIDENCE-LOSS BY DELAY.--When a bank claims to have been injured by delay in discovering a forgery, or in tendering back a forged check, evidence that the bank has recourse upon another solvent bank, and could not be injured by the delay, is not improper.

APPEAL from a judgment of the district court of the third district, and from an order refusing a new trial.

The following is the charge of the court to the jury: Gentlemen of the jury, the court charges you that the relation of a bank and its depositor is one simply of debtor and creditor, and the depositor is not chargeable with any payments except such as are made in conformity with his

orders; and if you believe that the endorsement of Dunbar's name on the check in question was forged, then the defendant, in paying such check, paid its own money, and discharged no part of its indebtedness to the plaintiff. The defendant was bound to see to it at its peril that the endorsement of W. A. Dunbar was genuine; that it paid the check to one entitled to the payment thereof; and the loss, as between it and the plaintiff, for a wrongful payment, must fall upon it, unless the plaintiff has been guilty of negligence in the discovery of the forgery, or in notifying the defendant thereof after discovery, by which negligence defendant has suffered damage; but if the plaintiff was not acquainted with Dunbar's signature, it cannot be said that he was guilty of negligence in not discovering, on the return of the check to him, the fact that somebody else had forged Dunbar's name in the endorsement.

You are further charged that if the plaintiff delivered. the check in controversy to C. J. Smith, claiming to be Dunbar's agent, for transmission to said Dunbar, and received from said Smith, as consideration therefor, a note and mortgage purporting to be signed by said Dunbar, and if the plaintiff was not acquainted with Dunbar's signature, and believed the same genuine, and had no reason to believe the same forged, then it was not negligence in him to rely on the presumption that no crime had been committed, and to make no inquiries.

You are further instructed that if you believe from the evidence that the endorsement of the payee, Dunbar, was forged on the check in question, and that the defendant's officers before paying the same, could by ordinary and proper care and skill have detected the forgery, then the defendant cannot receive a credit for the amount of the check, even if the plaintiff was thereafter guilty of negligence in discovering the forgery or returning to the defendant the check with the endorsement so forged.

If you believe from the evidence that the plaintiff, on November 11th, 1884, was a depositor of the defendant's bank, and as such drew the check in controversy, then the defendant, before paying such check, was bound to ascer