not have stood without question for forty years in Ohio, and in many of our sister states for a still longer period. But this case even does not show that injustice has been caused by its application. We know, as a matter of fact, that each of the two institutions is legally constituted, and recognized as such, by the courts of Virginia and Tennessee. No actual wrong was committed by the decision complained of, because the proof offered established nothing that was untrue. It is attacked, not for the individual wrong it has wrought in this case, but for the public good, lest, peradventure, it may work harm hereafter to somebody if allowed to stand as a precedent.

In argument, it is admitted that parol proof has hitherto "always been held sufficient in similar cases; but, it is said, this is because counsel have not objected that it was secondary evidence, and that omissions of counsel should not be allowed to establish a rule of practice, in opposition to the paramount principles of law." If the argument be sound that this kind of evidence, when offered by a third party, does not raise the inference that higher evidence, in the possession of the party, is withheld, and if the act of forgery implies a confession, by the forger, that the instrument which it purports to imitate is valid, it can not well be said to be secondary evidence, because it does not fall within the reason that distinguishes the two classes of proof. Is it always within the power of the prosecutor to prove the charters of banks incorporated by our sister states? That they may be procured by taking sufficient pains and ample time is not doubted. Certified copies of any legislative act may be had on application to the executives of the states of Virginia and Tennessee. But under our constitution, an accused person is entitled to "a speedy public trial." He can not lawfully be detained, and committed for trial, without evidence. Nor is that evidence, on a question of commitment, which is no evidence on a final trial. What, then, would be the effect of a rule that would, indispensably, require the production of the act incorporating a foreign and distant bank in like cases? It would afford immunity to crime in innumerable cases. It would be as fatal to the success of many necessary prosecutions for counterfeiting as a rule that would permit the forged signature of the officer of a bank to be disproved by him alone-a rule which has long since ceased to be recognized by the most enlightened tribunals of this country, and, at this day, is not law in England. Hess v. The State, 5 Ohio Rep. 7; Commonwealth v. Cary, 2 Pick. 47.

Some courts still consider the testimony of experts touching the genuineness of the handwriting as secondary and inferior evidence to the testimony of the supposed writer; others avoid the general rule by assuming that the testimony of each is primary evidence, while all alike admit the evidence and avoid the application of the rule which would exclude it. So, in cases of many public officers, proof of official character is permitted by parol when third parties make the issue, and even when the officer is a party. Thus one may show himself to be a constable by proving his own acts in that capacity, and by general reputation; Johnson v. Stedman, 3 Ohio Rep. 94. That he

The

is a collector of taxes; Eldred v. Sexton, 5 Ohio Rep. 215. The reason of the decision in these cases is applicable here. "It is more consistent with the ends of justice than to establish a contrary rule." It is not conclusive evidence, but is so prima facie, and, unless contradicted, must be conclusive. The character of a bank, indeed, whose paper is in general circulation, performing the offices of money in a business community like ours, becomes as well known as the official character of a constable or tax-gatherer who resides amongst us. people in general are as well informed upon the subject as upon many matters of public history. There is no county in the state where men of integrity can not be found competent to state whether paper, the money in general circulation among the people, is the paper of a real or unauthorized institution. The continuance of the rule that has obtained is, therefore, perfectly consistent with the security of individual right; and, while it subserves public convenience, the mere fact it is at war with a technical rule, if it be so at war, furnishes no good reason for changing the practice.

Judgment affirmed.

Note. See, also, 1886, Stultz v. Turnpike Co., 48 N. J. L. 596; 1893, Canal. Street G. R. Co. v. Paas, 95 Mich. 372. But compare, 1888, Plank-road Co. v. Hilton, 69 Mich. 115; 1899, James v. State, 77 Miss. 370, 78 Am. St. Rep. 527. As to injuries to non-dealers generally by the apparent corporation, it would seem that if they have done nothing to recognize the corporate existence there could be no estoppel; yet if the corporation shows it is a de facto one, the logic of the cases would seem to be that a non-dealer who is not estopped could not hold members individually liable, or successfully impeach the corporate existence, even if he is injured by such de facto corporation; however, if the apparent corporation can not show that it has acquired a de facto existence by being organized under a valid law, in good faith, followed by corporate acts, a non-dealer could ignore the apparent corporate existence.

NOTE TO ART VI. EXTENT OF THE DOCTRINE OF ESTOPPEL.

It is usual to say that in order to obtain a de facto corporate existence there must be a valid law under which to organize, an apparent compliance with the law, a bona fide attempt to organize under the law, and a user of corporatefranchises. See Elliott on Corporations, § 72; Clark on Corporations, §§ 41, 42, and Finnegan v. Noerenberg, supra, p. 614, and Society Perun v. Cleveland, supra, p. 617. If, therefore, any of these elements are wanting there can be no de facto corporation, and the only ground for holding a pretended corporation, where one or more of these elements is wanting, to be such must be upon grounds of estoppel, or something analogous thereto. It seems, however, that there is no perfect basis for an estoppel except against the pretended corporation itself or its members, for it or they only have misled others to believe it to be a corporaton. No one who contracts with such a pretended corporation as a corporation, has misled it or its members as to its real nature, for they know as much about it as he. The most that can be said is that the party so contracting is willing to accept the corporate security for the performance of the contract, and should not afterward be allowed to insist upon a different security, such as the individual or partnership liability of the members. The fact is, he has not misled the corporation, but it has misled him-yet, perhaps, not to his damage, when he willingly accepted the corporate security. Hence it would not be equitable to claim a greater security, when, upon being offered a certain security, viz., the corporate security, he accepted it. This is hardly an estoppel, but rather a mere term of the

contract, upon which the minds of the parties met, although it was false in fact, and known to be so by the pretended corporation at the time.

As to the validity of the law under which the corporation claims to be organized, there are three conceivable conditions: (1) A law in fact prohibiting such a corporation. (2) No law at all. (3) An unconstitutional law. It would seem there could be no de facto corporation in either case, and it is generally so held. Can there be a corporation by estoppel? According to the decision in Boyce v. The Trustee, etc., supra, p. 642; Jones v. Aspen Hardware Co., supra, p. 637, and Snyder v. Studebaker, supra, p. 634, there could not be a corporation under any circumstances of estoppel, either in favor of or against the pretended corporation; but it would seem that estoppels might arise in all of these cases, as well as others; yet in the first twoa prohibitory law, and no law at all-public policy might override all grounds of estoppel and say, in such cases, no corporate existence should be recognized. See Wright v. Lee, 2 S. D. 596; Empire Mills v. Alston Grocery Co., 15 S. W. Rep. (Tex. App.) 200, 505; Building and Loan Assn. v. Chamberlain, 4 S. D. 271, 56 N. W. Rep. 897; Oregonian R. Co. v. Oregonian R. & N. Co., 23 Fed. Rep. 233; but compare, 1870, Smith v. Sheeley, 12 Wall. (U. S.) 358, and 1883, Saunders v. Farmer, 62 N. H. 572; 1898, Carroll v. National Bank, 19 Wash. 639, 54 Pac. Rep. 32.

But in the third case-the unconstitutional law-many cases hold there can be corporations by estoppel (many erroneously calling them de facto corporations). See, 1870, Smith v. Sheeley, 12 Wall. (U. S.) 358; 1876, St. Louis v. Shields, 62 Mo. 247; 1878, McCarthy v. Lavasche, 89 Ill. 270, supra, p. 253; 1878, Dows v. Naper, 91 Ill. 44; 1880, Freeland v. Insurance Co., 94 Pa. St. 504; 1881, McClinch v. Sturgis, 72 Maine 288; 1883, Saunders v. Farmer, 62 N. H.572; 1884, Catholic Church v. Tobbein, 82 Mo. 418, on 424; 1887, Fresno, etc., Irrigation Company v. Warner, 72 Cal. 379, 17 A. & E. Corp. Cas. 37; 1889, Winget v. Quincy B. & H. Assn., 128 Ill. 67; 1892, Wright v. Lee, 2 S. D. 596, 37 Am. & E. C. Č. 588; 1893, Building & L. Assn. v. Chamberlain, 4 S. D. 271, 44 Am. & E. C. C. 49; 1893, Black River Improvement Co. v. Holway, 85 Wis. 344; 1894, Georgia S. & F. R. Co. v. Mercantile T. & D. Co., 94 Ga. 306; 1895, Coxe v. State, 144 N. Y. 396; 1898, Gardner v. Minn. & S. L. R. Co., 73 Minn. 517, 76 N. W. Rep. 282; 1899, Richards v. Minn. Sav. Bank, 75 Minn. 196, 77 N. W. Rep. 822; but compare, 1889, Eaton v. Walker, 76 Mich. 579, contra.

As to the next two requisites of de facto existence-apparent compliance with the law, and bona fide attempt to organize-both being questions of fact, it would seem that estoppels should be allowed to arise as in other cases. But in both of these cases it should be remembered that the law will not allow its privileges to be used, even if literally followed, as an engine for accomplishing frauds (see Metcalf v. Arnold, supra, p. 97), or without any effort in good faith to comply with it (as, see Montgomery v. Forbes, supra, p. 594, and Walton v. Oliver, supra, p. 565).

As to user, it seems that meeting, subscribing stock and completing organization is sufficient user to make a de facto existence, if the other elements are present. See, 1893, Union Water Co. v. Kean, 52 N. J. Eq. 111, 44 Am. & E. C. C. 13. But no organization, though corporate powers are claimed, is not such user as makes a corporation de facto See Walton v. Oliver, supra, p. 565, and Montgomery v. Forbes, supra, p. 594. In Eaton v. Walker, 76 Mich. 579, it was held that organization under an unconstitutional law, and assuming to act as a corporation, was not such user as made a de facto existence, and, under the facts of that case, it was held that no estoppel arose. Ames, §§ 83, 172, 635-6; Beach, §§ 13, 14, 866, 871; Boone, §§ 104, 118, 121, See Angell & 239: Clark, $$ 43, 44; Cook, § 637; Elliott, §§ 81-88; Morawetz, §§ 750, 774, 778 n; Taylor, §§ 146-151, 537-9, 739; I Thompson, §§ 518-533; VII Thompson, § 8213. The matter is closely allied to the subject of pleading and proof, upon which the cases are in much conflict. See, infra, §§ 327-333.

See note 91 Am. St. R. 598.

ARTICLE VII. EFFECT OF FAILURE TO COMPLY WITH CONDITIONS, AND NO ESTOPPEL, UPON THE LIABILITY OF MEMBERS OF THE PRETENDED CORPORATION; THEORIES.

Sec. 179. (1) Makes the associates partners (if the pretended corporation was for a business purpose) and liable as such, or with the rights of such.

MARTIN ET AL., APPELLANTS, v. FEWELL.1

1883. IN THE SUPREME COURT OF MISSOURI. 79 Missouri Rep.

401-412.

HOUGH, C. J. This is an action of assumpsit by plaintiffs as partners against defendants as partners. There are three counts in the petition. The first is to recover judgment for goods alleged to have been sold by plaintiffs to defendants, March 30, 1877, amounting to $553.89; the second count is for goods sold August 14, 1877, amounting to $72.09, and the third is for goods sold October 9, 1877, amounting to $422.40. In addition to the usual averments as to the sale and delivery of goods, each count contains substantially the following allegations: That at the time of said sales the defendants were partners in the retail mercantile business in Calhoun, Henry county; that one M. Woods was the general agent of defendants, and was by them authorized to conduct, manage and superintend said business, to buy and sell goods and merchandise, and to do all things in and about said business as fully as if he were himself sole owner thereof, and to do all things usual and customary to be done by merchants carrying on that sort of business; that M. Woods, as such agent, and with the knowledge and approbation of these defendants, carried on said business under the name "M. Woods," and the defendants had no other partnership designation; that prior to December, 1876, plaintiffs had had dealings with said defendants, and had sold and delivered to them goods and merchandise, through Woods as defendant's agent; that plaintiffs had at no time business transactions with Woods in any other capacity than as agent for defendants.

The answer contains a general denial, and also alleges that the goods in the petition mentioned were sold and delivered by plaintiffs to the "Calhoun Grange Store Company," a duly organized corporation of Missouri, and not the defendants; that the certificate of incorporation was duly filed in the recorder's office of Henry county, on the day of, 1876, and on May 18, 1877, a similar certificate was filed with the secretary of state, and on the same day the said secretary executed to said Calhoun Grange Store Company a certificate of incorporation as provided by law. The replication is a general denial of the new matter pleaded in the answer.

1 Only part of the opinion given.

43-WIL. CASES.

At the request of the defendants, the court gave the following instructions:

1. If the jury believe from the evidence that prior to the sale of any goods by the plaintiffs to Woods for the grange store in question, the defendants had, for the purpose of organizing a business corporation for running and conducting what is commonly known as a grange store, agreed to subscribe and pay shares of stock to such organization, and did take such stock with such understanding and for such purpose, and took initiative measures for the incorporation of said business, and organized as if incorporated, and elected directors for the management and control of said association, and designated said Woods to conduct and superintend said store for such directors, and did make and acknowledge the articles of association read in evidence, and at the time of the first sale of any goods by plaintiffs to said Woods, said defendants, through directors, were acting under the said articles of association as a corporation, and not otherwise, and the said Woods had no authority from them to buy goods except as the agent of said association, then, although said articles of incorporation may not have been filed and recorded as by statute provided, the defendants are not liable as partners to the plaintiffs for any goods bought of them by said Woods.

2. Even though the articles of association read in evidence were not filed with the secretary of state, yet, if defendants were acting alone under such articles of association, claiming to be a corporation, such omission to file the same with the secretary of state did not, of itself, make the defendants liable as partners for any goods bought for the store after said articles were actually drawn up, signed and acknowledged.

*

The court, of its own motion, gave the following instruction to the jury:

If you believe from the evidence that the defendants, or some of them, in the fall of 1875, or in the spring of 1876, made an agreement with each other to contribute money or capital for the purpose of carrying on the business of buying and selling merchandise for their mutual profit, and that they did so contribute and carry on said business, either personally or by their agent, then such of defendants as did these things became and were partners in such business, and each partner was individually liable for all the partnership debts, provided that it does not further appear from the evidence that they did not intend to act and carry on business as partners, but that they intended to do business as an incorporated company and each one to be liable only for the amonnt of his stock.

Upon the giving of these instructions the plaintiffs took a nonsuit, and on the refusal of the court to set the same aside, they appealed to this court.

The only question remaining to be determined is whether, on the facts stated in the first and second instructions given at the instance of the defendants, and in the instructions given by the court of its own motion, the defendants are liable as co-partners. Neither the case of Hurt v. Salisbury, 55 Mo. 311, nor that of Richardson v. Pitts, 71