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affixing of the corporate seal to the document relating to such act. In short, the common seal has been termed, in the quaint phraseology of olden times, “ the hand and mouth of the corporation.”? This rule has been denounced in the United States as highly impolitic, and is now almost entirely superseded in practice; but in England, though it has recently been described by one of our most accomplished judges as "a relic of barbarous antiquity,"" it still partially holds its ground, and affords opportunities to corporate bodies, by the aid of unscrupulous counsel, to commit from time to time the most startling frauds.
§ 977. From the earliest traceable periods the rule in question $ 59 has, indeed, been subject to certain exceptions, which rest upon principle of convenience, amounting almost to necessity, and which relate either to trivial matters of frequent recurrence, or to such affairs as from their nature do not admit of delay. Thus,--to borrow the language of Mr. Baron Rolfe, in a well-considered case, —“A corporation, it is said, which has a head, may give a personal command, and do small acts; as it may retain a servant. It may authorise another to drive away cattle damage feasant, or to make a
1 May. of Ludlow v. Charlton, 6 M. & W. 823, per Rolfe, B. ; Church r. Imp. Gas Light & Coke Co., 6 A. & E. 861.
2 R. v. Bigg, 3 P. Wms. 423, cited by Tindal, C. J., in Gibson v. E. India Co., 5 Bing. N. C. 269. As to when a corporation may adopt a private seal, . see ante, 149.
3 In 2 Kent, Com. 289, it is said, " At last, after a full review of all the authorities, the old technical rule was condemned as impolitic, and essentially discarded ; for it was decided by the Supreme Court of the United States, in the case of the Bk. of Columbia v. Patterson, 7 Cranch, 229, that whenever a corporation aggregate was acting within the range of the legitimate purposes of its institution, all parol contracts made by its authorised agents were express and binding promises of the corporation ; and all duties imposed upon them by law, and all benefits conferred at their request, raised implied promises, for the enforcement of which an action lay.” See, also, 6 A. & E. 837, 838, per Patteson, J.
* South of Irel. Colliery Co. v. Waddle, 4 Law Rep., C. P. 618, per Cockburn, C. J., in Ex. Ch.
5 Church v. Imp. Gas Light & Coke Co., 6 A. & E. 861, per Ld. Denman, cited by Rolfe, B., in May. of Ludlow v. Charlton, 6 M. & W. 822.
6 Arnold v. May. of Poole, 4 M. & Gr. 895, per Tindal, C. J. ; De Grave v. May. of Monmouth, 4 C. & P. 111.
7 May. of Ludlow v. Charlton, 6 M. & W. 821.
distress, or the like. These are all matters so constantly recurring, or of so small importance, or so little admitting of delay, that, to require in every such case the previous affixing of the seal, would be greatly to obstruct the every-day ordinary convenience of the body corporate, without any adequate object. In such matters the head of the corporation seems, from the earliest times, to have been considered as delegated by the rest of the members to act for them.”
§ 978. His lordship then proceeds to point out, that? "in $ 897 modern times, a new class of exceptions has arisen. Corporations have of late been established, sometimes by royal charter, more frequently by Act of Parliament, for the purpose of carrying on trading speculations; and where the nature of their constitution has been such as to render the drawing of bills, or the constant making of any particular sort of contracts necessary for the purposes of the corporation, there the courts have held that they would imply in those, who are, according to the provisions of the Charter or Act of Parliament, carrying on the corporation concerns, an authority to do those acts, without which the corporation could not subsist." These observations are confined to trading companies, but several later decisions seem to warrant the assumption, that the rule may be now generally stated as applicable alike to all corporations aggregate, whenever the making of a certain description of contracts is necessary and incidental to the purposes for which the corporation was created.?
$ 979. In accordance with the rule thus expounded, it has been $ 898 held that assumpsit will lie against a gas company for meters sold to them, and a like action is maintainable by them against the consumer, either for not accepting gas according to his agreement,
1 May, of Ludlow v. Charlton, 6 M. & W. 821.
2 Clarke v. Cuckfield Union, 1 Bail Ct. Cas. 85, 86, 89, per Wightman, J., in an elaborate argument. See, also, Nicholson v. Bradfield Union, 35 L. J., Q. B. 176; 1 Law Rep., Q. B. 620; 7 B. & S. 744, S. C. ; Wells v. Kingstonupon-Hull, 10 Law Rep., C. P. 402 ; 44 L. J., C. P. 257, S. C.
3 Beverley v. Lincoln Gas Light & Coke Co., 6 A. & E. 829 ; 2 N. & P. 283, S. C.
4 Church v. Imp. Gas Light & Coke Co., 6 A. & E. 846 ; 3 N. & P. 35, S. C.
or for the price of gas supplied to him.? So, where a colliery company had verbally contracted with an engineer for the erection of machinery to work their mine, and had paid him part of the price, they were permitted to recover damages from him for breach of this agreement. Actions of assumpsit have also been held to lie against the guardians of the poor of an union, who are constituted a corporation by the Act of 5 & 6 W. 4, c. 69, s. 7, in one case for iron gates, in another for water-closets,' and in a third for coals, which had respectively been supplied under parol contracts for the union workhouse. So, an accountant, employed to audit the books of a poor-law union, has been permitted to maintain an action for work done as against the guardians, although the contract was not under seal. A surgeon, too, who had been retained by the general manager of a railway to attend a servant of the company injured by an accident on the line, was held entitled to recover his charges, though he had only been verbally engaged.? So, a parol contract made by the directors of a chartered Navigation Company, by which they agreed to pay a person a certain salary in consideration of his going to Sydney and bringing home one of their ships, has been enforced as against the company, the plaintiff having performed his part of the agreement. And when the same company had bought some ale for the use of the passengers on board one of their steamvessels, and had paid for it, they were
1 City of Lond. Gas Light & Coke Co. v. Nicholls, 2 C. & P. 365.
2 South of Irel. Colliery Co. v. Waddle, 3 Law Rep., C. P. 463 ; 37 L. J., C. P. 211, S. C. ; 4 Law Rep., C. P. 617, S. C. in Ex. Ch. ; and 38 L. J., C. P. 338.
3 Sanders v. St. Neot's Union, 8 Q. B. 810. But see Smart v. West Ham Union, 10 Ex. R. 687.
4 Clarke v. Cuckfield Union, 1 Bail Ct. Cas. 81. See Pauling v. Lond. & N. West. Ry. Co., 8 Ex. R. 867.
s Nicholson v. Bradfield Union, 35 L. J., Q. B. 176 ; 1 Law Rep., Q. B. 620 ; 7 B. & S. 744, S. C.
• Haigh v. North Bierley Union, 28 L. J., Q. B. 62; E. B. & E. 873, S. C.
7 Walker 1. Gt. West. Ry. Co., 36 L. J., Ex. 123; 2 Law Rep., Ex. 228, S. C. This case overrules Cox v. Midl. Ry. Co., 3 Ex. R. 268 ; 5 Rail. Cas. 583, S. C., so far as relates to the necessity of a sealed contract.
& Henderson v. Austral. Roy. Mail St. Nav. Co., 5 E. & B. 409. See, also, Reuter v. Elect. Teleg. Co., 6 E, & B. 341,
allowed to recover damages from the vendors on account of the ale being unfit for use, though the agreement for the purchase was not under seal.
$ 980. But, on the other hand, a contract with a copper mining § 898 company for a supply by them of iron rails;" a contract with a water company for the supply to them of iron pipes ;3 a contract for erecting engines and machinery for a water company ;t a contract with a railway company to execute extensive repairs on their permanent line of rails ;5 a contract with guardians of the poor to make a map of the rateable property of a parish in the union; a contract with guardians to do some extra work in building a poor-house ;and a contract with guardians for the engagement of a clerk to the master of a workhouse, 8—have each and all of them been held to relate to matters, which were not of such frequent occurrence, or of so small importance, or so essentially necessary for the purposes for which the corporations were respectively instituted, as to be taken out of the general rule requiring the contracts of corporations to be under seal;' and even before the East India Company ceased to be merchants, it was held, that the
1 Austral. Roy. Mail St. Nav. Co. v. Marzetti, 11 Ex. R. 228.
Copper Miners' Co. v. Fox, 16 Q. B. 229. 3 E. Lond. Waterw. Co. v. Bailey, 4 Bing. 283; 12 Moore, 532, S. C. ; explained by Ld. Denman in Church v. Imp. Gas Light & Coke Co., 6 A. & E. 860—862. This case would seem now to be overruled. See ante, p. 822, n. 2.
4 Homersham v. Wolverh. Waterw. Co., 6 Ex. R. 137. This case is probably not law. See ante, p. 822, n. 2.
5 Diggle v. Lond. & Blackwall Ry. Co., 6 Ex. R. 442. See, also, as to this case, ante, p. 822, n. 2.
6 Paine v. Strand Union, 8 Q. B. 326.
$ Austin v. Guard. of Bethnal Green, 9 Law Rep., C. P. 91 ; 43 L. J., C. P. 100, S. C.
• Church v. Imp. Gas Light & Coke Co., 6 A. & E. 860—862, per Ld. Denman, explaining E. Lond. Waterw. Co. v. Bailey, 4 Bing. 283; 12 Moore, 532, S. C. See, also, Paine v. Strand Union, 8 Q. B. 326 ; Ernest t. Nicholls, 6 H. of L. Cas. 401; Lond. Dock Co. v. Sinnott, 8 E. & B. 347 ; 27 L. J., Q. B. 129, S. C. ; Prince of Wales Life Ass. Co. v. Harding, 27 L. J., Q. B. 297 ; E. B. & E. 183, S. C.
allowance by them of a retiring pension to a military officer, could not be enforced in a court of law, unless it were granted by deed.'
§ 981. It has long since been determined that corporations $ 899 may be liable in tort” for the acts of their servants, though such servants be not authorised by any instrument under seal ; and the rule requiring corporations to act by deed will not protect them, either from an action of trover, where goods have been wrongly taken by their agent,* or from an action for money had and received, where they have wrongfully possessed themselves of money belonging to the plaintiff. This last exception rests on necessity ; for, as a corporation would scarcely put their seal to a promise to return moneys wrongfully received by them, it follows that if a seal were necessary, the injured party would be without remedy. Again an action for use and occupation is clearly maintainable by a corporation, and is probably maintainable against a corporation, whenever the defendants have actually occupied the plaintiff's premises, and no demise under seal has been
Gibson v. E. India Co., 5 Bing. N. C. 262; 7 Scott, 74, S. C. See Cope v. Thames Haven Dock & Ry. Co., 3 Ex. R. 841.
? But in the recent case of Kelly v. Mid. G. W. Ry. Co., I. R., 7 C. L. 8, Whiteside, C. J., expressed a grave doubt whether an action for malicious prosecution could be maintained against a corporation aggregate.
3 East Cos. Ry. Co. v. Broom, 6 Ex. R. 314 ; Rail. Cas. 743, S. C. ; Whitfield v. S. East Ry. Co., 27 L. J., Q. B. 229 ; E. B. & E. 115, S. C. This was an action for a libel transmitted by telegraph from one station to another on the defendants' line of rails. See, also, Green v. Lond. Gen. Omnibus Co., 29 L. J., C. P. 13 ; 7 Com. B., N. S. 290, S. C.; Roe . Birkenhead, Lanc. & Chesh. Junc. Ry. Co., 7 Ex. R. 36 ; 6 Rail. Cas. 795, S. C. ; Goff v. Gt. North. Ry. Co., 30 L. J., Q. B. 148 ; 3 E. & E. 672, S. C.; Moore v. Metrop. Ry. Co., 8 Law Rep., Q. B. 36 ; Poulton v. Lond. & S. West. Ry. C., 2 Law Rep., Q. B. 534 ; 36 L. J., Q. B. 294 ; & 8 B. & S. 616, S. C.; Stewart v. Anglo-Califor. Gold Mining Co., 18 Q. B. 736 ; Stevens v. Midl. Ry. Co., & Lander, 23 L. J., Ex. 328; 10 Ex. R. 352, S. C.
4 Yarborough v. Bk. of Engl., 16 East, 6. 5 Hall v. May. of Swansea, 5 Q. B. 526.
May. of Stafford v. Till, 4 Bing. 77 ; 12 Moore, 260, S. C. ; Dean & Ch. of Rochester v. Pierce, 1 Camp. 466 ; Southwark Bridge Co. v. Sills, 2 C. & P. 371 ; May. of Carmarthen v. Lewis, 6 C. & P. 608. See Doe v. Bold, 11 Q. B. 127.
:7 Finlay v. Bristol & Ex. Ry. Co., 7 Ex. R. 409 ; 7 Rail. Cas. 449, S. C. Lowe v. Lond. & N. West. Ry. Co., 7 Rail. Cas. 524; 18 Q. B. 632, S. C.