tial 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 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 bylaws, 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 is then 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 mischiefs, 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 can not, therefore, assent to the doctrine decided in the circuit court on this point.

Reversed.

MARSHALL, CH. J., dissenting. 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 member-· ship, 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 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 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 nat ural 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 or gans belong only to individuals; the words they utter are the word 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 (66ỏ), says, “but no corporation 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 can not appear in person; for, albeit, the bodies natural, whereupon the body politic consists, may be seen, yet the body politic or corporate itself can not 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 (Bro. Corp., 83), or of appointing a person to seize forfeited goods (1 Vent., 47), or agreeing to a disseizin 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.

It is stated in the old books (Bro. Corp., 49) that a corporation may have a ploughman, butler, cook, etc., 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 can not 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 disseize to the use of another, they are disseizors in their natural capacity," "as a corporation they can regularly do no act without writing."

See note at the end of the next case; 1903, Nashua Sav. Bk. v. Anglo-Am. L. Co., 19 U. N. 221,

Sec. 238. Execution of contracts.

ZOLLER v. IDE.

1871. IN THE SUPREME COURT OF NEBRASKA. I Neb. Rep. 439.

This was a bill in chancery, filed to recover the legal title to lands. Zoller sought to make his title through a corporation called "The Sulphur Springs Land Company," by a deed which ran, "I, Thomas H. Benton, Jr., President of the Sulphur Springs Land Company, do hereby convey," etc., and was signed by Benton in the same way.

The court, by Lockwood, J., held that this conveyance did not pass the title of the company, and, therefore, Zoller did not show title in himself.

Note. See, as to use of seal, infra, pp. 1136-1153.

1.' Corporate meetings, both those of shareholders and directors, being deliberative assemblies are conducted in such ways as may be convenient and agreeable to the members, though, perhaps, in the absence of any specific charter or by-law regulations, or custom to the contrary, they are supposed to follow ordinary parliamentary usage: 1829, Phillips v. Wickham, 1 Paige Ch. (N. Y.) 590; 1834, People v. Peck, 11 Wend. (N. Y.) 604; 1849, Hughes v. Parker, 20 N. H. 58; 1851, Downing v. Potts, 23 N. J. L. 66; 1852, People v. Campbell, 2 Cal. 135; 1875, State v. Pettineli, 10 Nev. 141; 1879, In re Horbury, etc., Co., L. R. 11 Ch. Div. 109; 1889, Landers v. Frank St. M. E. Church, 114 N. Y. 626; 1890, Henderson v. Bank of Australasia, 62 L. T. Rep. 869.

2. It is not necessary to the validity of corporate action that the proceedings be recorded: 1848, Waters v. Gilbert, 56 Mass. (2 Cush.) 27; 1859, Langsdale v. Bonton, 12 Ind. 467; 1891, Handley v. Stutz, 139 U. S. 417; 1892, New Boston Fire Ins. Co. v. Saunders, 67 N. H. 249; 1896, Boggs v. Lakeport, etc., Assoc., 111 Cal. 354; 1897, Zalesky v. Iowa, etc., Co., 102 Iowa 512, 70 N. W. Rep. 187.

3. If corporate records are kept, they are the best evidence of the corporate action, and other evidence is not admissible until it is shown the records can not be obtained: 1817, Hallowell, etc., Bank v. Hamlin, 14 Mass. 178; 1820, Owings v. Speed, 5 Wheat. (U. S.) 420; 1830, Thayer v. Middlesex Co., 27 Mass. (10 Pick.) 326; 1852, Gould v. Norfolk, etc., Co., 63 Mass. (9 Cush.) 338; 1888, Dial v. Valley, etc., Assoc., 29 S. C. 560; 1891, Mullanphy Sav. Bank v. Schoot, 135 Ill. 655; 1891, Bowick v. Miller, 21 Ore. 25; 1895, Mandel v. Swan, etc., Co., 154 Ill. 177. But compare, 1845, Van Hook v. Somerville, etc., Co., 5 N. J. Eq. 137, 169; 1897, Johnson v. Okerstrom, 70 Minn. 303, on 308.

4. All corporate contracts and conveyances should be made in the legal name of the corporation, and be executed by it in its own name, and not in the name of the person representing it. It is usual, though not necessary, for the instrument itself somewhere to recite that the person who actually represents the corporation has been duly authorized to execute the instrument for and in the name of the corporation.

Illustrations. (a) Deed: The following would be proper: Know all men by these presents, that the A. B. Co., a corporation duly organized and existing under and by authority of the laws of in consideration of dollars to it paid, etc., does hereby grant, etc., unto the X. Y. Co., a corporation duly organized and existing under and by authority of the laws of its successors and assigns forever, the following, etc., etc.

And the said A. B. Co., for itself and its successors, does hereby covenant, etc., etc.

In witness whereof, the said A. B. Co. has hereunto caused its corporate name to be signed, and its corporate seal to be affixed, and the same to be at

tested by the signatures of C. D., its president, and E. F., its secretary, being thereunto duly authorized, on this

day of

A. B. Co.,

By C. D., its president, and
E. F., its secretary.

In Norris v. Dains, 52 O. S. 215 (1894), an instrument worded and executed as follows was held not to be the act of the company: Know all men by these presents, That I, G. F. Baker, treasurer of the S. I. & C. M. Co., by virtue of the power in me vested by virtue of the vote of directors of said company (a copy of which is hereto annexed), and in consideration of dollars, etc., to me paid by, etc., do hereby sell, etc., to G. W. Norris, etc. In witness whereof, I, the said G. F. Baker, treasurer as aforesaid, in behalf of said company, have hereunto set my hand and the seal of said company this eighth day of, etc.

G. F. BAKER, Treas. of S. I. & C. M. Co.

{Seal. Co.,

Organized 1864.

(Copy of vote of directors, authorizing lease to be made to Norris, and authorizing the treasurer to execute the same.)

Commw. of Mass., Suffolk Co., ss., Nov., 1864.

"Then personally appeared G. F. Baker, who executed the foregoing instrument, and acknowledged the same to be his free act and deed and the free act and deed of said company before me.

J. NICKERSON, Justice of the Peace.

Some of the older cases, however, hold that a conveyance by an authorized officer, sealed with the corporate seal, is valid as the act of the corporation. See 1830, Savings Bank v. Davis, 8 Conn. 191 (old cases collected in counsel's brief); 1832, Leggett v. N. J. Mfg. Co., 1 Saxton Ch. (N. J.) 541, 23 Am. Dec. 728, note, 746.

But the more recent cases, as well as many of the early cases, approve the rule above stated. I am indebted to J. H. Brewster, professor of conveyanc ing in the law department of U. of M. for most of the following: 1614, Combes' Case, 9 Co. Rep. 75, 76b; 1824, Hatch v. Barr, 1 Ohio 390; 1827, Coburn v. Ellenwood, 4 N. H. 99; 1847, Isham v. Bennington Iron Co., 19 Vt. 230; 1848, Brinley v. Mann, 2 Cush. (Mass.) 337; 1863, Miller v. Rutland R. Co., 36 Vt. 452; 1872, Merrill v. Montgomery, 25 Mich. 73; 1873, Northwestern Distilling Co. v. Brant, 69 Ill. 658, 18 Am. Rep 631; 1876, Hays v. Galion G. L. & C. Co., 29 Ohio St. 330, on 334; 1880, C., B. & Q. R. Co. v. Lewis, 53 Iowa 101; 1882, Merchants v. Goddin, 76 Va. 503; 1883 Eppright v. Nickerson, 78 Mo. 482; 1887, Galloway v. Hamilton, 68 Wis., 651; 1889, Alta Silver M. Co. v. Mining Co., 78 Cal. 629; 1890, McElroy v. Nucleus Assoc., 131 Pa. St. 393; 1891, Danville Seminary v. Mott, 136 Ill. 289; 1893, Brown v. Farmer's Supply Co., 23 Ore. 541, 32 Pac. Rep. 548; 1894, Norris v. Dains, 52 Ohio St. 215; 1894, Gray v. Waldron, 101 Mich. 612; 1895, Garrett v. Belmont Land Co., 94 Tenn. 459 (collecting cases as to seal); 1897, GlobeAccident I. Co. v. Reid, 19 Ind. App. 203; 1897, Jones v. Williams, 139 Mo. 1,61 Am. St. Rep. 436; 1898, Lewis v. Pulitzer Pub. Co., 77 Mo. App. 434; 1899, Little Saw Mill V. T. & Co. v. Fed, St. R. Co., 193 Pa. 144, 45 Atl. Rep. 66; 1900, New Memphis Gaslight Co. Cases, 105 Tenn. 268, 80 Am. St. Rep. 880, 60 S. W. 206.

As to seal, see powers of corporation to have a seal, infra, pp. 1136-1153. (b) Acknowledgment: The American Bar Association (5 Report, 1882, p. 304) recommends the adoption and use of the following form for the acknowledgment by a corporation. According to the last edition of Jones' Forms of Conveyancing, p. 9, this form has been authorized by Iowa, Code 1897, §§ 2959-60; Massachusetts, Acts 1894, ch. 253; Michigan, Public Acts 1895, p. 346; Minnesota, 2 G. S. 1894, ch. 72; Missouri, R. S. 1889, § 2408; New Mexico, Comp. Laws 1897, § 3945. It undoubtedly would be sufficient in many other states, though perhaps not in all; and in any event, if there is any stat

ute of the state upon the subject it should be consulted and carefully followed. The form suggested is:

"State of On this

county of day of

SS:

19-, before me, the subscriber [insert here the title of the officer], appeared C. D., to me personally known, who, being by me duly sworn (or affirmed), did say that he is the president [or other officer or agent of the corporation or association] of [describing the corporation or association], and that the seal affixed to said instrument is the corporate seal of said corporation [or association], and that said instrument was signed and sealed in behalf of said corporation [or association] by authority of its board of directors [or trustees], and said C. D. acknowledged said instrument to be the free act and deed of said corporation [or association].

[In case the corporation or association has no corporate seal omit the words "the seal affixed to said instrument is the corporate seal of said corporation (or association) and that" and add at the end of the affidavit clause the words "and that said corporation (or association) has no corporate seal."]

["In all cases add the signature and title of the officer taking the acknowledgment."]

See the following: 1872, Merrill v. Montgomery, 25 Mich. 73; 1877, Kelly v. Calhoun, 95 U. S. 710; 1880, C. B. & Q. R. Co. v. Lewis, 53 Iowa 101; 1883, Eppright v. Nickerson, 78 Mo. 482; 1894, Gray v. Waldron, 101 Mich. 612; 1894, Jinwright v. Nelson, 105 Ala. 399.

(c) Notes, etc. The ordinary form of a note would be:

"One year after date, for value received, The A. B. Co. promises to pay to the X. Y. Co. or order, the sum of - dollars, at with interest, etc.

"The A. B. Co., by C. D., its president (or officer duly authorized).” This would be properly indorsed as follows:

"Pay to the order of John Doe.

"The X.Y. Co., by E. F., its president (or other officer authorized)." It is not necessary to attach the corporate seal 1868, Jones v. Horner, 60 Pa. St. 214, and some of the earlier cases held that affixing the seal to what would otherwise be a negotiable instrument would make it non-negotiable: 1810, Warren v. Lynch, 5 Johns. (N. Y.) 239; 1836, Clark v. Farmer's Woolen Mfg. Co., 15 Wend. (N. Y.) 256; 1840, Frevall v. Fitch, 5 Whart. (Pa.) 325, 34 Am. Dec. 558; 1866, Conine v. Junction, etc., R. Co., 3 Houst. (Del.) 288, 89 Am. Dec. 230; 1881, Coe v. The Cayuga L. R. Co. (C.C. N. D.), 8 Fed. Rep. 534.

But the recent cases all hold otherwise: 1873, Bank v. Railroad Co., 5 S. C. 156; 1875, Jackson v. Meyers, 43 Md. 452; 1889, Miller v. Roach, 150 Mass. 140; 1891, Stevens v. Ball Club, 142 Pa. St. 52; 1894, Weeks v. Esler, 143 N. Y. 374; 1896, Chase National Bank v. Faurot, 149 N. Y. 532; 1897, Landauer v. Sioux, etc., Co., 10 S. D. 205, 72 N. W. Rep. 467; 1898, Clark v. Read, 12 App. D. C. 343.

Judge Thompson, however, thinks it is useful to affix the corporate seal, as showing it is the note of the corporation, and not that of the officer signing for the corporation, and also furnishing prima facie evidence of agent's authority, and of everything else necessary to the validity of the act: IV. Thompson, §§ 5054, 5105, 5123 n. 1, p. 3839; 1840, Burrill v. Nahant Bank, 2 Met. (Mass.) 163, 35 Am. Dec. 395; 1867, Gashwiler v. Willis, 33 Cal. 11, 11 Am. Dec. 607, note collecting cases, p. 616; 1889, Miller v. Roach, 150 Mass. 140. See, infra, pp. 1147–1153.

There is much conflict as to the effect of making and signing promissory notes in a way different from that suggested above: e. g. Where a note read "We promise to pay, etc.," signed "Dubuque Matress Co., John Kapp, Pt."-it was held to be the note of Kapp as well as of the corporation, and parol evidence was not admitted to show it to be only the note of the corporation. 1893, Mathews v. Dubuque Matress Co., 87 Iowa 246, 54 N. W. Rep. 225. On the other hand, 1889, Liebscher v. Kraus, 74 Wis. 387, where the note read "We promise to pay, etc.," signed "San Pedro Mining and Milling Co., F. Kraus, President," it was held to be the note of the corporation alone, and