Arnold v. Mayor of Reg. v. Corn and coal Smith v. Attorney to pany under their act. And, therefore, where (g) an attorney, who was town clerk and clerk of the peace, received instructions from the mayor and other members of the town council to take all necessary steps to oppose certain measures in Parliament, and to conduct certain suits in Chancery relating to the borough, but no authority was given to him under the seal of the corporation, it was held, that he could not sustain an action against the corporation for his costs. So where (h) a person, who, previously to the passing of the statute 5 & 6 Will. 4, c. 76, had held the offices of town clerk and clerk of the peace, and also clerk to the justices, was, after the passing of that statute, re-appointed to the offices of town clerk and clerk of the peace at an increased salary, by a resolution passed at a meeting, and entered upon the minutes of the town council; but there was no agreement under the seal of the corporation: it was held, upon issue joined on a return to a mandamus for compensation under 5 & 6 Will. 4, c. 76, s. 66, bringing in question the fact of the re-appointment, that it could not be proved by an entry in the minutes of the town council; and, therefore, although there was no doubt that an agreement to the effect contended for had been made, yet that it could not bind the corporation without being sealed. And so it has been held (i) that a corn and coal meter to a corporation, who was entitled to receive for his own use certain fees for weighing coals from ships arriving at a port, must be appointed under seal, as he was an officer, and not a mere servant; and it was also held, that the tenure of his office, which was said to be during the pleasure of the corporation, did not make it unnecessary that he should have such an appointment, or convert him from an officer into a mere servant. But where the Act of Parliament constituting a railway railway com- company enacted that the directors should have the management and superintendence of the affairs of the company, and might appoint and displace any of the officers of the company, it was held by Wightman, J., to be clear, that under that section the directors might appoint the officers of the company by parol, and if so, that they might appoint an attorney in the same way (k). R. v. Lichfield. And where an attorney had been retained generally under the common seal of the borough, and had also been authorized and retained by a resolution of the town council, to take proceedings in opposition to a rule nisi for a mandamus, it was held (g) Arnold v. Mayor of Poole, 4 M. & G. 860. In Hall v. Mayor of Swansea, 5 Q. B. 544, Patteson, J., said, "The only difference I see between Arnold's case and that of a servant employed at small wages, is the comparative inconvenience of insisting on a contract under seal in the latter case." (h) R. v. Mayor of Stamford, 6 Q. B. 433. (i) Smith v. Cartwright, 6 Exc. 927,quære, whether a corporation, by prescription, might prescribe to do certain corporate acts without seal, which acts by the general law would require the use of a seal. Ibid. 939. (k) R. v. Justices of Cumberland, 5 D. & L. 431, note. that this was a sufficient retainer to warrant the payment to him of the costs of so doing (1). which There are, moreover, some cases (m) in which it has been held, Cases in that the solicitors employed in obtaining the Acts of Parliament, solicitors incorporating certain companies, had a legal claim against recovered them when incorporated, in respect of their services in obtaining against corthe act of incorporation, although they were not, and, from the portions, though not nature of the case, could not be, appointed under the seal of the appointed corporate body. But in each of those cases there was a clause under seal, explained. in the act directing that the costs of obtaining the act should be paid, in preference to all other claims, out of the first money received by the defendants, and those cases were decided on the ground, that the meaning of the legislature was to make the incorporated companies, as soon as they had obtained funds, debtors to the solicitors who had obtained the acts, for all the costs which they had incurred (n). Those cases do not, therefore, as at first might appears, form any exception to the general rule above stated. rule. of servants. There are, nevertheless, some exceptions to that rule, pro- Exceptions bably coeval with the rule itself, in those matters which, from to general their very nature or necessarily frequent occurrence, it would be difficult or, perhaps, impossible to execute with the formality of a seal. Those are matters of trifling importance and of frequent Appointment occurrence, such as the appointment of a servant, cook or butler, or such as from their nature do not admit of delay, such as the appointment of a bailiff to distrain cattle damage feasant (o). And it has been held, that a corporation was liable to an action for an illegal distress, though not damage feasant, by one who acted as their bailiff, although he was not appointed under seal (p). And that a corporation might maintain an action of ejectment after a notice to quit, given by a steward who was not appointed under seal (q). liable for torts of So, also, it has been held, in The Eastern Counties Railway Railway Company v. Broom (r), that a railway company may be liable companies to an action of trespass for assault and false imprisonment, in consequence of their servant having given a person into custody servants. on an unfounded charge, although the directions to the servant were not under seal. In that case, indeed, it does not appear False impriwhether the original appointment of the servant was by deed, sonment. though most probably he was not so appointed, as he was only an inspector. It is clear, however, that a corporation may be liable to an action for a wrong done by their servant, although (1) R. v. Lichfield, 10 Q. B. 534; and see R. v. Prest, 16 Q. B. 32. (m) Tilson v. The Warwick Gas Light Company, 4 B. & C. 962; and Carden v. The General Cemetery Company, 5 Bing. N. C. 253; Hitchins v. The Kilkenny Railway Company, 9 C. B. 536. (n) See Pardoe v. Price, 16 M. & W. 460. (0) Manby v. Long, 3 Lev. 107; Cary v. Matthews, 1 Salk. 191; (p) Smith v. The Birmingham (q) Doe v. Pierce, 2 Campb. 96; and see Doe v. Bold, 11 Q. B. 127; Lowe v. The North Western Railway Company, 18 Q. B. 632. (r) 6 Exc. 314. Malicious prosecution. Libel. Foundation his appointment be not under seal (s). And it would seem to be the better opinion that an action for malicious prosecution may, in some cases, be brought against a corporation for the acts of its officers and servants (t). And it has been held, both in England (u) and America (r), that a railway company is responsible, in its corporate capacity, for a libel published by its agents in the course of its business and of their employment. But the above exceptions do not apply to cases in which an interest is vested in or divested out of a corpration; and, therefore, a corporation cannot, without deed, appoint a bailiff to seize goods as forfeited to the use of the corporation (y). The cases, however, in which it has been held that a cook or of exceptions. butler, or other inferior servant to a corporation, need not be appointed under the common seal, are said to rest on a fiction that some individual has been duly authorized to make contracts of that nature on behalf of the corporation (z). And it has not yet been settled whether the exceptions introduced by them, apply to the case of a corporation where no individual member is appointed head of the corporate body (a). When, however, the case shall arise, there can, it is conceived, be little or no doubt that the further development of the principles, founded on expediency and convenience, amounting almost to necessity, which have led, in England, to the engrafting of exceptions on the ancient rule of the common law, and, in America, to its total abolition (b), will lead to the conclusion that the excep (s) Ibid. (t) Stevens v. Midland Counties (u) Whitfield v. South Eastern Railway Company, ubi supra. (x) The Philadelphia, Wilming ton and Baltimore Railroad Cor- sion for centuries;" and of the adjudications it presents itself," says he, "as solitary and eccentric, and in opposition to the most inveterate, the clearest and reiterated distinctions announced by the sages of the law-distinctions having their foundation in reason and in the essential character of the subjects to which those distinctions have been applied." The author, however, ventures to think there is little doubt but that it will be upheld, should the question ever be carried to a Court of Appeal. (y) Horne v. Ivy, 1 Mod. 18. (z) See per Lord Cranworth in Mayor of Ludlow v. Charlton, 6 M. & W. 819, 821. (a) Per Lord Wensleydale in Cope v. Thames Haven Dock and Railway Company, 3 Exc. 844. (b) See Story on Agency, s. 53; 2 Kent's Comm. 288, 291 (Part 4, Lect. 33); and see Beverley v. Lincoln Gas Light and Coke Company, 6 A. & E. 837, where Patteson, J., says, "There are obvious circumstances which justify their advancing with a tions above mentioned apply equally to the case of all companies, whether with or without a head. trading There is also another class of exceptions to the rule, that cor- Exception in porations can only be bound by contracts under seal, which has cases of arisen in modern times. Corporations have, of late, been esta- corporations. blished 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 (c). incident to Accordingly, in a variety of cases, corporations have been Contracts held bound by, and able to take advantage of, contracts neces- necessarily sarily incident to the purposes and objects for which the corpo- purposes of ration was created, although such contracts have neither been corporation. under the corporate seal, nor entered into by an agent or servant authorized in that manner to act for the corporation. The exception established by these cases (d), depends upon the principle, before adverted to, of expediency and convenience, amounting almost to necessity,-a principle, however, which, although in many cases equally applicable to contracts of hiring and service as to contracts of other descriptions, yet it is conceived would only apply to contracts for services of an ordinary description, and such as might be necessary for carrying on the business of the corporation (e). company to pay for Thus, a contract made by the directors of a steam navigation Contract by company, incorporated for the purpose of trading as shipowners, shipping to pay for services in bringing home a disabled vessel, has been held to be binding upon the company, though not under seal, bringing as one of the most ordinary incidents to the ownership of trading-abled vessel. vessels is the necessity of employing persons to bring home such somewhat freer step to the discussion of ancient rules of our common law than would be proper for ourselves." (c) Per Lord Cranworth in The Mayor of Ludlow v. Charlton, 6 M. & W. 821; and see Beverley v. Lincoln Gas Light and Coke Company, 6 A. & E. 829; Paine v. Strand Union, 8 Q. B. 326; Clarke v. Cuckfield Union, Bail C. C. 81; Smart v. West Ham Union, 10 Exc. 867; 11 Exc. 867. (d) Mr. Justice Story says truly "that this exception affords a beautiful illustration of the expansive power of the common law, which acquires flexibility and moulds itself from time to (e) Dunston v. The Imperial home dis By Poor Law Guardians to pay for auditing clerk's vessels as may have been accidentally disabled at a distance from home (ƒ). Upon similar principles in a case (g) in which the guardians of a Poor Law Union, having reason to believe that their clerk had been guilty of fraud, and that sums of money had been misappropriated, employed the plaintiff, who was an accountant, to audit their accounts, investigate them generally, and make up the books; and resolutions to this effect were from time to time entered in the rough minute book; but there was no contract under the seal of the guardians: it was held by Erle, J. (though Crompton, J., doubted), that the plaintiff having done the work agreed upon was entitled to recover, although the contract was not under seal. And Erle, J., said, "Here the work which was done by the plaintiff was incidental and necessary to the purposes for which the corporation was created, and was done at the request of the corporation. They had appointed proper officers to do the work, and they had reason to believe that there had been fraud, embezzlement, and a system of false accounting. Then, by the first resolution, they employ the plaintiff as an accountant to audit the accounts of the union. These services were quite essential to the purposes for which the guardians were created, and the first of them would probably be of short duration and not very difficult. It seems to have been highly important that the investigation should be made, and the subsequent employment was of much the same description, arising upon subsequent inquiries being made, and it was ordered by the guardians. The question of fact is, was this done by the plaintiff for the effecting of the purposes for which the guardians were appointed. It seems to me that it was." Crompton, J., however, thought otherwise, and was unable to distinguish the case from The London Dock Company v. Sinott (h). That was an action by the dock company against the defendant for not performing a contract into which he had entered for scavenging the docks. But it was held by the Court of Queen's Bench that it could not be maintained, as the contract was not under the seal of the company; and the plaintiffs did not bring themselves within any of the exceptions to the general rule, that a corporation aggregate can only be bound by contracts under seal. Contracts of this nature are, in many cases, regulated by The Joint Stock Companies Act, 1856 (i), and The Companies Clauses Consolidation Act, 1845 (k), which last applies to all joint stock companies incorporated by Act of Parliament for purpose of carrying on any undertaking, so far as the same the (f) Henderson v. The Australian Royal Mail Steam Navigation Company, 5 E. & B. 409; S. C. 24 L. J., Q. B. 322; and see Reuter v. The Electric Telegraph Company, 6 E. & B. 341; S. C. 26 L. J., Q. B. 46. (g) Haigh v. North Bierley Union, 28 L. J., Q. B. 62. (h) The London Dock Company v. Sinott, 27 L. J., Q. B. 129. (i) 19 & 20 Vict. c. 47. (k) 8 & 9 Vict. c. 16; see Homersham v. The Wolverhampton Waterworks Company, 6 Exc. 137. |