Bank of the United States v. Dandridge. 12 W. error, after a deliberate 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. 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 deliv ery. If this be true, they must be proved in every case [91] 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 in Bank of the United States v. Dandridge. 12 W. dividuals 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 members of the corporation and after they cease to be so, for every thing they do, whether in the name of the corporation or otherwise. The corporation being one entire impersonal entity, distinct [* 92] * from the individuals who compose it, must be endowed with a 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 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 any thing of importance, without deed. Lord Coke, in his commentary on Littleton, (66 b.) says: "But no corporation 93] aggregate of many persons capable" "can do homage." "And the reason is, because homage must be done in person, and a corporation aggregate of many cannot appear in person; [93] Bank of the United States v. Dandridge. 12 W. 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 Co. 676,) or of presenting a clerk to a living, (Br. Corp. 83,) or of appointing a person to seize forfeited goods, (1 Vent. 47,) or agreeing to a disseisin to their use, (Br. 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. Sir William Blackstone, in his Commentaries, (v. 1, p. 475,) enumerates, among the incidents to a corporation, the right " to have a common seal." "For," 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 only, 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 of the whole." The declaration that a seal is indispensable, is equally a declaration of the necessity of writing; for the sole purpose of a seal is to give full faith and credit to the writing to which it is appended. The seal in itself, not affixed to an instrument of writing, is nothing; is meant [*94 ] as nothing, and can operate nothing. The writing is the substance, and the seal appropriates it to the corporation. Though the rule stated 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." tion before the court depends very much on the extent of these The ques Bank of the United States v. Dandridge. 12 W. 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, (Br. Corp. 49,) that a corporation may have a ploughman, butler, cook, &c., without retaining them by deed; and in the same book, (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 no 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 [* 95] indictment and verdict are set forth at large by * Peere Williams, (v. 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 intrusted 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 it. I consider the appointment of Adams, then, as having been made in writing, though not under seal. Bank of the United States v. Dandridge. 12 W. Mr. Fonblanque says, vol. 1, p. 296, note o: "And the agreement of the major part of the corporation, being entered in the corporation books, though not under the corporate seal, will be decreed in equity." The inference is strong, that it will not be decreed unless it be entered on the corporation books. Consequently, unless it be so entered, it is not an agreement; for every lawful agreement, which is in itself equitable, will be decreed in equity." In the Mayor of Thetford's case, 1 Salk. 192, Lord Holt said, that though a corporation cannot do an act in pais without their common seal, they may do an act on record, and that is the case with the city of London, which makes an attorney in court annually by warrant; and the reason is, they are estopped by the record. Upon the same principle, a return to a mandamus is good, though not under the common seal. In these exceptions to the general rule, the substitute for the common seal must be writing; and the exceptions are stated in terms which exclude every idea that the act can be evidenced otherwise. * Yarborough v. The Bank of England, 16 East, 6, was [* 96 ] an action of trover and conversion, in which, after verdict for the plaintiff, it was moved, in arrest of judgment, that the action would not lie, because a corporation was incapable of committing a tort. The action was sustained; and Lord Ellenborough, in delivering the opinion of the court, said that a corporation can act only through the instrumentality of others; and, wherever they can act or order any act to be done on their behalf, which, as by their common seal they may do, they are liable to the consequences of such acts. "A corporation cannot be aiding to a trespass, nor give a warrant for a trespass, without writing." His lordship cited several old cases, showing the incompetency of a corporation to act in important matters otherwise than by deed; and added: "But many little things require no special command; as to chase cattle out of their land. Those things are incident to the appointment." Several cases are put in which a corporation may be liable for a trespass; but they are all consistent with his first proposition, that the liability of a corporation must be founded on writing. "If," he says, "the mayor and commonalty disseise me, and I release to twenty or two hundred of the commonalty, this will not save the corporation; and the reason is, because the disseisin is in their corporate character, and the release to individuals." So, in trespass against the mayor and commonalty of York, they cannot justify under a right of the inhabitants to common, because the right in natural persons gave no right to a corporation. Nor could the corporation give a warrant, without writing, to commit a trespass. The foundation of this action is, was |