own life, that prevented the performance of the balance of the service which he, as counsel, could otherwise have discharged at the spring term, and therefore it should be taken that he had performed. I admit the general rule that if either party to a contract by his fault prevents the other from performing, it furnishes an excuse for the non-performance, which will be as good as the performance to entitle the party so prevented to his action. I am, also, willing to allow that if Mitcherson had appeared in court at the spring term to answer the indictment, Dozier would have exerted his best talents in the defense. But still I am unwilling, considering the circumstances of this case, to decree money to Dozier which he himself acknowledges was never earned, and now never can be. If Mitcherson had died a natural death, surely Dozier would not have been entitled to the whole fee. Actus Dei laedit nemini. If the maxim is true that the act of God shall work injury to no man, it seems to me that it would be a violation of the maxim to permit Dozier to profit, without labor or expense, and to inflict a corresponding loss upon others, in case Mitcherson had come to his death in the ordinary course of age and decay, or by sudden disease or accident. If all this be conceded, yet it may be contended that the maxim quoted does not apply to the case of a felo de se, and as it is admitted that Mitcherson killed himself, it may be urged that his death was voluntary, and therefore it makes out an excuse for Dozier, equivalent to his performance.

It has always presented to me a question of difficulty, whether any one could be considered of sane mind who voluntarily takes his own life. Without deciding that a person who violates the first and paramount law of nature by laying violent hands on his own life must be insane, it may, I think, be safely affirmed that it requires powerful excitement to prepare the mind for such an act; and that under the state of feeling necessary to induce the deed, the faculties of the mind are not in a natural condition, and consequently that a felo de se is not in the general capable of reflecting and reasoning with that degree of perfection which he would if laboring under no such unnatural excitement. It frequently happens that those who take their own lives are absolutely deranged. Now it seems to me that if Mitcherson took his own life in a fit of derangement, it may have been done under such circumstances as that the act would be no more chargeable to him than if he had died a natural death. It does not appear under what circumstances

Mitcherson took his life. It is admitted that he killed himself, and that is all. The failure of the consideration is shown by the death of Mitcherson, admitted in the answer, and if his death took place under such circumstances as to entitle Dozier to his full fee, I think he ought to have shown it. He has not done so.

But again, could Mitcherson be in default for not appearing in court at the spring term, when he was dead? Will his recognizance be forfeited, and his executor, or bail, be compelled to pay the money, if he committed suicide, without the least palliation arising from the condition of his mind? I am disposed to think that his death, without regard to the manner of it, discharges the recognizance and releases his bail; and I am likewise inclined to consider the manner of his death, and seize on that as showing no failure of consideration, when, if he had died a natural death, it would, in my opinion, be a clear case. I do not regard the case as the same in principle as that of Majors v. Hickman, 2 Bibb, 216. I therefore dissent from the opinion delivered.

GARRISON V. COMBS.

[7 J. J. MARSHALL, 84.1

CORPORATE SEAL IS NOT NECESSARY to pass from a corporation its interest in a promissory note, especially if the assignment is made by its duly authorized agent; and in an action by the assignee of the agent on such promissory note, he need not aver or prove the agent's authority, unless it is impeached by plea.

POWER OF AGENT TO BIND CORPORATION.-An agent of a corporation has power within the scope of his authority to bind his principal by any written contract, or by any agreement by which, if made in his own name, or in his own right, he would bind himself.

CORPORATION MAY BE BOUND BY THE RECORD of its proceedings, without the annexation of a seal, when it acts through a board of directors and keeps a register of its acts.

APPOINTMENT of Agent of CORPORATION need not be made under its seal. Agreement Signed A. B., AGENT FOR C. D., is, in construction of law, the agreement of C. D.

PETITION and summons. Error to the Warren circuit. The opinion states the case.

Mills & Brown, for the plaintiffs.

Combs, for the defendant.

By Court, ROBERTSON, C. J. Leslie Combs, as assignee, ob

tained a judgment, by default, against the plaintiffs in error, on a petition and summons on a promissory note, executed by them to "The Southern College of Kentucky," and on which the following assignment was indorsed:

"We assign the within to Leslie Combs, agent, etc., November 12, 1829. Trustees of Southern College, by

A. W. GRAHAM.”

The assignment of error questions the right of Combs to sue as assignee; and presents a two-fold objection to his right. First, that the corporate seal not having been affixed to the assignment, the legal right to the note did not vest in the assignee; second, that the assignment is not in the true corporate

name.

1. It is a general rule that a corporation, as it is a fictitious or merely legal being, must be identified by its effigy or seal, and that its contracts must be authenticated by its common seal. But this common law doctrine had been relaxed in England prior to the American revolution. As early as the reign of Henry VII., it was decided that the bailiff of a corporation could justify without an authority certified by the corporate seal. So in Manby v. Long, 3 Lev. 107, it was decided that the agent of a corporation might make distress, although his appointment had not been authenticated by the corporate seal. In Rex v. Rigg, 3 P. Wms. 419,' it was decided that a corporation might, by a corporate act, certified by its record and without its seal, appoint an agent, whose acts, within his prescribed sphere, would be obligatory on the constituent. The same principle, with extended application, has been established by the supreme court of the Union: See The Bank of Columbia v. Patterson, 7 Cranch, 299; Fleckner v. U. S. Bank, 8 Wheat. 338; Osburn v. U. S. Bank, 9 Id. 738, and U. S. Bank v. Dandridge, 12 Id. 64; and has also been recognized in various shapes by many of the state tribunals: See 1 N. H. 26; 1 Pick. 297; 3 Halst. 182; 3 Serg. & R. 16; 12 Id. 312; 1 Nott & McC. 231; 6 Mass. 40.

A corporation which acts through the intervention of a board of directors or managers, and keeps a register of its acts, may be bound by its record without the annexation of a common seal. Its acts are identified and authenticated by its own corporate registry, which it should be estopped to deny or impeach when genuine and authoritative: 1 Salk. 191. In this

1. Rex v. Bigg, 3 P. Wms. 419.

particular the American corporations are unlike most, if not all, of the common law corporations; the former being represented, generally, by a board of directors, who keep a record of their proceedings, and the latter seldom, or never, thus acting; and hence, however rigidly the ancient practice may have required a seal to all the acts of common law corporations, the same reason does not, with equal force, apply to modern corporations, such as that of "The Southern College of Kentucky," whose record may be as authentic and as effectual for ordinary purposes as its seal: See 2 Kent Com. 291.

Having thus referred to some of the British and American adjudications which have relaxed the ancient rule requiring the corporate seal, this court will not now determine how far it will recognize and apply the modern cases. They have been cited merely to show that the rule which requires the seal is not, and can not, justly and reasonably, be universal in its application.

In this case the authority of the agent has not been disputed. There can be no doubt that a corporation may appoint an agent, and be bound by his acts. It was not necessary for Combs to prove or aver that the agent who assigned the note was regularly appointed, and derived competent authority from a power under seal or on record. It was not necessary to prove the authority of the agent, unless the assignment had been impeached by plea. The authority of the agent being thus admitted, it is not material how it was or ought to have been delegated.

But it may be supposed that, as Graham had authority only to subscribe the name of the corporation to the assignment, and could not assign the note in his own name, the assignment can have no more effect than it would have had if it had been made by the trustees themselves precisely as it was made by their agent in their name; or, in other words, that the annexation of the corporate seal was as necessary as it would have been if the corporate name had not been subscribed by an agent, but had been signed by the corporation itself; and that, consequently, there being no seal to the assignment, the legal title did not vest in the assignee. There is much plausibility, if not solidity, in this idea; but we are disposed to consider it more specious than sound. A seal is not essential to the effectiveness. of an assignment of assignable paper by a natural person in his own right. A seal could, then, be required in this case, if necessary at all, only because the assignment was, in effect, the act of the corporation. But the only reason why, in ordinary

contracts by a corporation, the corporate seal is necessary, is because, as a corporation is an ideal existence created by law, and compounded, when aggregate, of a plurality of natural persons, it is known by its common seal, which represents and identifies it. Therefore, if it be conceded that the seal would have been indispensable if the assignment had been directly by the corporation itself, it would not necessarily follow, as a legal or rational consequence, that the assignment by the agent without a seal had no legal operation.

It must be admitted that the authority of the agent was unexceptionable, and that, therefore, it was authenticated by the corporate seal, if the seal were necessary (and if it were not necessary to the power of attorney, it was not necessary to the assignment). If, then, the college had delegated to Graham competent power to assign the note, its act authorizing the assignment was sufficiently authenticated and identified to be obligatory upon it. If its seal were necessary, it had been affixed. Must it be reannexed to the assignment? Is such repetition required by the reason of the law? Suppose that the power of attorney, authenticated by the corporate seal, had been indorsed on the note, would not the assignment as made, and succeeding the power, be effectual without a repetition of the seal? Would not the assignment have been as effectual as it would have been if the corporation, instead of authorizing an agent to act, had substituted an assignment for the power of attorney? In either case the seal would have appeared and authenticated the assignment as the act of the corporation. And we are not able to perceive why this should not be sufficient. If it would be sufficient in the case supposed, the seal was not necessary to the assignment which was made; because, if the seal were necessary, the affixation of it to the power of attorney must be taken for granted in this case, as the authority of the agent has not been questioned by plea.

But might not the corporation have transferred the legal right to the note by a simple entry to that effect in its registry? We suppose that such an assignment might have been made, or that the authority to the agent may have been vested by such an entry. The corporate seal was not necessary, therefore, to the authority of the agent, nor to the effectiveness of an assignment by the college, without the intermediation of an agent.

It must be admitted that an agent may bind his principal by an agreement without seal, and signed by himself as an agent. An agreement, to the validity of which a seal is not essential.