1852. THE BRITISH EMPIRE ASSURANCE CO. v. BROWNE. himself never did; for, he is a party, although he did not execute, and parties to an indenture may sue, though strangers cannot; and it makes no difference that the covenants of the defendant are therein stated to be in consideration of those of the covenantee. Of this there is no doubt, nor that a covenant binds without consideration. But, with respect to leases by indenture, the older authorities shew that the covenants, which depend on the interest of the lease, and are made because the covenantor has that interest,-such as those to repair and pay rent during the term, are not obligatory, if the lessor does not execute,-not because the lessor is not a party, but because that interest has not been created to which such covenants are annexed, and during which only they operate, as such covenants undoubtedly do not, if the term ends by surrender, and are suspended by eviction by the lessor, so they do not begin to operate unless the term commences: the foundation of the covenant failing, the covenant fails also. Unless there be a term, a covenant to repair during it, is void. But, with respect to collateral covenants, not depending on the interest in the land, it is otherwise, and they are obligatory." The matter was also discussed in Cooch v. Goodman, 2 Q. B. 580, where the court of Queen's Bench expressed an inclination of opinion, that it was not necessary that the landlord should have executed the lease, provided the tenant has had the enjoyment of the land. [Jervis, C. J. So I should have thought. In Pitman v. Woodbury, it may be that both parties had repudiated the contract, and elected to treat it as a tenancy from year to year: and in Soprani v. Skurro, it may be that the lessee never was in possession.] The 44th section is confined to cases where there is mutuality, where the execution of the contract by the company is essential, and would compel them to do something. [Jervis, C. J., referred to Smith v. The Hull Glass Com 1852. ARNELL WESTERN ing over the railway across Stanhope Street in a northwesterly direction 240 feet, leaving the line of Stanhope Street uninterrupted, with an easy access to Stanhope Place, each side of such bridge to be defended with a brick wall, coped with stone, of the height of six feet at the least." These bridges were accordingly built; and RAILWAY Co. afterwards, viz. in 1839, the company obtained from Lord Southampton a conveyance in fee of the land upon which this portion of the railway and these bridges were built, "excepting and always reserved out of the conveyance hereby made, the use and enjoyment of the bridges now under consideration; that is, the use of the roadway over them. That the bridges are the property of the company is clear the case sets out acts of ownership over them exercised by the company, and acts amounting to admissions that they are their property. Then these bridges are rateable either as public buildings, dead walls, or void spaces of ground,-it is immaterial which. The company are liable to indictment if they suffer the walls of the bridges to decay. [Jervis, C. J. Suppose, instead of a wall, there had been an iron railing on each side?] In that case, the company would be rateable in respect of a "public building" or a "void space of ground." It is not the thing which is paved or repaired by the parish, that is rated; it is the thing which abuts or is at the side of it. If not rateable as bridges, these buildings are clearly rateable as dead walls, -that is, walls without openings therein for doors or windows. Channell, Serjt. (with whom was Bovill), contrà. The material enactments to be considered are the 41 G. 3, c. cxxxi, s. 40, and the 57 G. 3, c. xxix, s. 30. These bridges are not "public buildings" ejusdem generis with those before mentioned in s. 30. By their act, the company are bound to build and keep in repair these bridges A A A 2 1852. EMPIRE ASSURANCE CO. v. BROWNE. of the words used. In The Copper Miners' Company v. THE BRITISH FOX, 16 Q. B. 229, in assumpsit by a corporation on a contract for the supply of iron-rails to the defendant, averring mutual promises, the defendant pleaded non assumpsit only. On the trial, the plaintiffs proved the making of the contract in fact; the defendant proved a charter incorporating the plaintiffs for the purpose of trading in copper-ore, but containing nothing as to trading in iron. No other charter was proved: nor was there any evidence that the contract proved was in any way ancillary to the trade in copper. It was held that the contract, not being under seal, and not being for the trading purpose for which the plaintiffs were incorporated, did not bind the plaintiffs, and that the defendant was entitled to the verdict on non assumpsit, as there was no consideration for his promise, Lord Campbell, in giving judgment, says: "By the statute of frauds, no action can be brought upon certain agreements, unless there be a memorandum thereof signed by the party to be charged; and the courts have very properly held that a party who has signed a memorandum of the agreement, may be sued upon it, although the other party has not; because, there, the requisition of the statute has been complied with, and there is such an agreement as the party suing alleges. But, here, the consideration for the defendant's promise, is, an alleged promise by the plaintiffs; and, their supposed promise given in evidence being void, the contract alleged is not proved. It would, indeed, be strange if a corporation entering into a commercial contract, might enforce it at pleasure, but might break it with impunity, wherever fraudulently induced to do so. The plaintiffs finally rely upon a suggestion of Tindal, C. J., in The Fishmongers Company v. Robertson, 5 M. & G. 131, 192, 6 Scott, N. R. 56, 105, that, when a corporation have sued as plaintiffs upon a simple contract, they may possibly for ever be estopped from objecting that the contract was not binding upon them, so as to afford a remedy to the other side by cross-action, and to take away the objection of want of reciprocity. But there is great difficulty in saying what shall be the form of action to which the opposite side may resort, or from what point of time the estoppel is to operate; and, after all, it would only give a remedy upon the contract, where the corporation have deemed it for their advantage to enforce it by action, the other side being left without remedy where the corporation wish entirely to break and abandon it. Besides, giving full effect to the supposed estoppel, and supposing that hereafter the now plaintiffs might be sued in an action of covenant on this contract (the want of profert being somehow excused), still the estoppel would not prove the contract set out in this declaration, which supposes the promises on either side to be without seal. On no ground, therefore, can the action be supported." It is submitted, therefore, that, there being certain provisions in this deed which profess to bind the company, and the contract purporting to be made on behalf of the company, it is a contract within the 44th section of the statute, and void for not being executed in compliance with the provisions of the act. Willes was heard in reply. * JERVIS, C. J. I am of opinion that the plaintiffs in this case are entitled to judgment. It is admitted by Mr. Hill, that the 44th section of the statute applies only to such contracts as are entered into on behalf of the company; and, admitting that a bond or a deed-poll is not within that section, it is suggested that a more general application is to be given to the words used, by reason of the exception, and that every case which does not fall within the exception, must come within the general 1852. THE BRITISH ASSURANCE CO. EMPIRE v. BROWNE. 1852. THE BRITISH EMPIRE v. BROWNE. not " words. The 44th section in effect says that all contracts entered into on behalf of a completely registered comASSURANCE CO. pany, shall be executed in a given manner, and that, in the absence of such requisites, or of any of them, every such contract shall be void and ineffectual, except as against the company on whose behalf the same shall have been made. The question is, whether this is or is a contract made on behalf of the company," It seems to me that it is not. Mr. Hill says it is, from the form of the contract, because there is a covenant on the part of the trustees of the company to do certain things. I apprehend that is not the fair meaning of the contract. The contract is in effect this:-' -The company advance a sum of money to Loder, in consideration of which he grants them an annuity of 821. 5s. 6d. for three years, for the due payment of which the defendant covenants jointly with him; and Loder, by way of further security, deposits with the trustees certain policies, and, together with his wife, assigns to the company a reversionary interest of the latter, with power to the trustees to sell the same for the purpose of paying the annuity, in case of default. This is not a covenant that the trustees shall do an act, but a mere condition or qualification of the grant, and would be equally binding on the trustees, whether the company executed the deed or not. It seems to me that the 44th section was meant to be confined to cases where the company bind themselves to do something, in consideration of which something else is to be done by the other party: and then the contract must be under seal, and made with the additional formalities pointed out by the section. If it be not so made, the party contracted with may enforce the contract against the company, but the company cannot enforce it against him. That certainly seems somewhat hard; but the object evidently was, to compel these companies so to contract as to secure justice being done to |