United States Bank v. Dandridge. opinion, that they are against the reasoning assumed on behalf of the defendants. To all the authorities cited at the bar on this point, the counsel for the defendants has made one answer, which he deems applicable to all of them. It is this, that where no particular form for the expression of the corporate will is prescribed by law, there it may be inferred from corporate acts; but that where such a fórm is prescribed, it must be followed. This distinction, he supposes, will reconcile all the cases. The distinction, if admitted, will not aid the argument. It may be, and, indeed, is conceded, that no corporate act can be valid, if done differently from the manner prescribed by law, as essential to its validity. If, in the present case, the statute had prescribed that nothing but a written vote on record should be deemed an approval of the bond, or that the cashier should not be deemed, for any purpose, in *office, until such approval, the consequence contended for [*88 would have followed. His acts would have been utterly void, and any unrecorded vote of approval, nugatory. But the very point in controversy is, whether such written record be necessary, by the charter or by-laws, not as a matter of convenience or discreet exercise of authority, but as a sine qua non to the validity of the act. The cases which have been commented on by the court, do not deny the distinction, but proceed upon the ground, that unless positively required by law, a written vote is not to be deemed indispensable. The court then is called upon, not to administer a doctrine of strict, and settled, and technical law, but to introduce a new rule into the law of evidence; and to exclude presumptive evidence, not only of the acts of corporations, but of their unincorporated agents. If such a rule be fit to be adopted, it must be upon the foundation of some clear and unequivocal analogy of law, and public policy and convenience. We are not prepared to admit, that it has any such foundation. On the contrary, we are persuaded, that the introduction of the rule itself would be attended with serious public mishiefs, and shake many titles and rights, which have been consummated in entire good faith, and the confidence that no such written record was necessary to their validity. We cannot, therefore, assent to the doctrine decided in the circuit court on this point. In respect to a collateral argument urged at the bar, upon the point whether the terms of the charter and by-laws would be complied with, without an express vote that the bond was "to the satisfaction of the directors," or that the sureties of the bond were "approved" by the directors, we are of opinion, that in either case there need not be express votes of approval and satisfaction. An acceptance of the bond by the directors. would, necessarily, in intendment of law, include the approval of it, and be conclusive of it. The remaining point is, as to the opinion of the court delivered in the first bill of exceptions. If that opinion meant to state, what it seems to import, that the cashier was not legally cashier, so as to bind the bank in its rights and interests by his acts, if permitted to enter upon the duties. of his office, before a satisfactory bond was given, we think, it cannot *be maintained. The cashier was duly appointed, and he was per[*89 mitted to act in his office, under the express sanction of the directors, for several years. If he had never given any bond whatsoever, during this period, yet his acts, within the scope of his authority, would have bound the United States Bank v. Dandridge bank. Notes signed by him would be lawful notes; moneys paid by him would be irrecoverable; records kept by him would be bank records. Indeed, it is conceded by the defendant's counsel, that the bank would, under such circumstances, be bound by his acts in favor of third persons, acting upon the faith of his public character. The same principle, in our opinion, applies in favor, as against the bank. If he could legally perform the duties of the office, for any purposes, he could for all. He was either an agent, capable of binding the bank in all his official acts, or those acts were void as to third persons as well as the bank. If he was held out as an authorized cashier, that character was equally applicable to all who dealt with the bank, in transactions beneficial as well as onerous to the bank. It seems to us, that the charter and the by-laws must be considered in this respect as directory to the board, and not as conditions precedent. The language is not more strong than that of the laws which came under the consideration of this court, in the United States v. Kirkpatrick, 9 Wheat. 720, and United States v. Vanzandt, 11 Ibid. 184. Our view of this matter is in exact coincidence with that entertained by the supreme court of Pennsylvania, in the Bank of the Northern Liberties v. Cresson, 12 Serg. & Rawle 306. The directors might have been responsible for their neglect of duty; but it was a matter wholly between themselves and the stockholders, and between the latter and the government, as a violation of the charter and by-laws. So far, indeed, as respects the sureties to the bond, they may not be responsible for any breaches of official duty by the cashier, before their obligation has been accepted. But this is a very different consideration from that which respects the legal effects of the acts of the cashier himself upon the interests and transactions of the bank itself. This is the substance of what we deem it necessary to say upon *90] the present occasion. We do not go into the consideration of the admissibility of every part of the documents and testimony offered in evidence. Perhaps, some of them were in a shape not exactly fit to be admitted as formal evidence, without further verification and proofs. But much of it was of a nature unexceptionable, as conducing to proof of the issues joined, if anything short of record proof were admissible, as competent to establish the approval or acceptance of the bond. It is not understood, that the circuit court entertained any doubt as to its general competency, except upon the ground already stated. We are of opinion, that the evidence was competent, in point of law, to go to the jury, notwithstanding there was no record of approval of the bond; it being in its nature competent, its sufficiency to establish the issues was matter of fact, the decision of which belonged to the jury; and upon which they ought to have been allowed to pass their verdict. The judgment of the circuit court must be reversed, and a mandate awarded, with directions to the circuit court to award a venire facias de novo. MARSHALL, Ch. J. (Dissenting.)—I should now, as is my custom, when I have the misfortune to differ from this court, acquiesce silently in its opinion, did I not believe that the judgment of the circuit court of Virginia gave general surprise to the profession, and was generally condemned. A full conviction that the commission of even gross error, after a deliberate United States Bank v. Dandridge. exercise of the judgment, is more excusable, than the rash and hasty decision. of an important question, without due consideration, will, I trust, constitute some apology for the time I consume in stating the reasons, and the imposing authorities, which guided the circuit court in the judgment that has been reversed. [*91 The case before that court depended on the question whether the official bond of the cashier, on which the suit was brought, bound the defendants. As preliminary to the investigation of this question, I shall state some propositions belonging to it, which are supposed to be incontrovertible. All admit, that delivery is essential to the validity of a deed, and that acceptance is essential to a complete delivery. If this be true, they must *be proved, in every case where they are put in issue by the pleadings. This proof varies according to circumstances. If there be subscribing witnesses to the instrument, it can be proved only by them, if attainable. If unattainable, or if there be no subscribing witnesses, other proof may be admitted; but in every case, a delivery and acceptance must be legally proved. If, in transactions between individuals, where a deed is without a subscribing witness, proof of the signature of the maker, accompanied with the facts that the instrument has passed out of his hands, and is in the possession of the person for whose benefit it was made, be prima facie evidence of its delivery, it is, because delivery by mere manual tradition, without witnesses, is good; and the assertion of title under it, is proof of acceptance, because that requires only the assent of the mind, which assent is legally manifested by asserting a claim to it. That a plaintiff may maintain his action, by this evidence, does not show that delivery and acceptance are unnecessary, or that proof of them can be dispensed with; but that, in ordinary cases, this evidence amounts to such proof. If, however, a case should occur, in which the possession of the instrument by the party claiming under it, does not afford legal prima facie evidence of delivery and acceptance, because such party is incapable of receiving and assenting to the instrument, in a form which can be legally proved or inferred from those facts, then such other facts must be shown on the trial, as will establish a lawful delivery and acceptance. I state these legal axioms, at the hazard of being thought tedious, because they appear to me to have a direct bearing on the case before the court. The plaintiff is a corporation aggregate; a being created by law; itself impersonal, though composed of many individuals. These individuals change at will; and even while members of the corporation, can, in virtue of such membership, perform no corporate act, but are responsible in their natural capacities, both while menbers of the corporation, and after they cease to be so, for everything they do, whether in the name of the corporation or otherwise. The corporation being one entire impersonal entity, distinct *from the individuals who compose it, must be endowed with a [*92 mode of action peculiar to itself, which will always distinguish its transactions from those of its members. This faculty must be exercised according to its own nature. Can such a being speak, or act, otherwise than in writing? Being destitute of the natural organs of man, being distinct from all its members, can it communicate its resolutions, or declare its will, without the aid of some adequate substitute for those organs? If the answer to this question must be in the negative, what is that substitute? I can United States Bank v. Dandridge. imagine no other than writing. The will to be announced is the aggregate will; the voice which utters it, must be the aggregate voice. Human organs belong only to individuals; the words they utter are the words of individuals. These individuals must speak collectively, to speak corporately, and must use a collective voice; they have no such voice, and must communicate this collective will in some other mode. That other mode, as it seems to me, must be by writing. A corporation will generally act by its agents; but those agents have no self-existing power. It must be created by law, or communicated by the body itself. This can be done only by writing. If, then, corporations were novelties, and we were required now to devise the means by which they should transact their affairs, or communicate their will, we should, I think, from a consideration of their nature, of their capacities and disabilities, be compelled to say, that where other means were not provided by statute, such will must be expressed in writing. But they are not novelties. They are institutions of very ancient date; and the books abound with cases, in which their character, and their means of action, have been thoroughly investigated. In Brooke's Abridgment (title Corporation), we find many cases, cited chiefly from the Year Books, from which the general principle is to be extracted, that a corporation aggregate can neither give nor receive, nor do anything of importance, without deed. Lord Coke, in his commentary on Littleton (66 b), says, "but no corporation aggregate of many persons capable can do homage.' "And the reason *93] is, because homage must be done in person, and a corporation aggregate of many cannot appear in person; for, albeit, the bodies natural, whereupon the body politic consists, may be seen, yet the body politic or corporate itself, cannot be seen, nor do any act, but by attorney." So too, a corporation is incapable of attorning, otherwise than by deed (6 Co. 386), or of surrendering a lease for years (10 Ibid. 676), or of presenting a clerk to a living (Bro. Corp. 83), or of appointing a person to seize forfeited goods (1 Vent. 47), or agreeing to a disseisin to their use (Bro. Corp. 34). These incapacities are founded on the impersonal character of a corporation aggregate, and the principle must be equally applicable to every act of a personal nature. 99 66 Sir William Blackstone, in his Commentaries (vol. 1, p. 475), enumerates, among the incidents to a corporation, the right "to have a common seal.” "Fo," he adds, "a corporation being an invisible body, cannot manifest its intention by any personal act or oral discourse. It, therefore, acts and speaks only by a common seal. For though the particular members may express their private consents to any acts, by words, or signing their names, yet this does not bind the corporation; it is the fixing of the seal, and that alone, which unites the several assents of the individuals who compose the community, and makes one joint assent of the whole." Though this general principle, that the assent of a corporation can appear only by its seal, has been in part overruled, yet it has been overruled so far only as respects the seal. The corporate character remains what Blackstone states it to be. The reasons he assigns for requiring their seal as the evidence of their acts, are drawn from the nature of corporations, and must always exist. If the seal may be exchanged for something else, that something must yet be of the same character, must be equally capable of "uniting the several assents of the individuals who compose the community, and of making one joint assent 1827] United States Bank v. Dandridge. 93 of the whole." The declaration, that a seal is indispensable, is equally a Though the rule state by Blackstone may not be so universal as his language indicates, it is certainly of extensive application, and the exceptions prove its extent. Mr. Hargrave, in his notes on Co. Litt. 99, says, "In general, a corporation aggregate cannot take or pass away any interest in lands, or do any act of importance, without deed; but there are several exceptions to the rule." The question before the court depends very much on the extent of these exceptions, and on the manner in which this invisible impersonal being must act and speak, when it may act and speak without using its seal. It is stated in the old books (Bro. Corp. 49), that a corporation may have a ploughman, butler, cook, &c., without retaining them by deed; and in the same book (p. 50), WOOD says, "small things need not be in writing, as to light a candle, make a fire, and turn cattle off the land." FAIRFAX said, "A corporation cannot have a servant but by deed; small things are admissible, on account of custom, and the trouble of a deed in such cases, not by strict law." Some subsequent cases show that officers may be appointed. without deed, but not that they may be appointed without writing. Every instrument under seal was designated as a deed, and all writings not under seal were considered as acts by parol. Consequently, when the old books say a thing may be done without deed, or by parol, nothing more is intended than that it may be done without a sealed instrument. It may still require to be in writing. In 2 Bac. Abr. 13, it is said, "aggregate corporations, consisting of a constant succession of various persons, can regularly do not act without writing; therefore, gifts by and to them, must be by deed." In page 340, it is said, "if a corporation aggregate disseise to the use of another, they are disseisors in their natural capacity," "as a corporation. they can regularly do no act without writing." In the case of the King v. Bigg, 1 Str. 18, the prisoner was convicted for erasing an indorsement on a bank-note. The indictment and verdict are [*95 set forth at large by *Peere Williams (vol. 3, p. 419), and it appears, that the note was signed by Joshua Adams, who was intrusted and employed by the Bank of England to sign bank-notes, but not under their common seal. It was contended by Peere Williams, in an able argument, that the appointment was not valid, because not made under their common seal; and his argument contains an enumeration of decisions previously made, which go far in support of his proposition. The prisoner, however, was condemned, and consequently, the appointment was held valid. But there is no reason to suppose, that it was not made by writing. The verdict finds "that he was entrusted and employed by the governor and company of the Bank of England, but not under their common seal." Consequently, his employment was evidenced by writing, if it was necessary; and the negative finding that it was not under their common seal, strengthens the presumption that it was in writing. Peere Williams has reported his argument, and would certainly have taken this objection, had the case afforded 59 |