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.1

4

§ 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; a contract for erecting engines and machinery for a water company; a contract with a railway company to execute extensive repairs on their permanent line of rails; 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.

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.

7 Lamprell v. Billericay Union, 3 Ex. R. 283.

8 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 v. 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.1

3

§ 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.5 This last exception rests on necessity; for, as a corporation would scarcely put their scal 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

6

1 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.

2 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; 6 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 v. 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.

6 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.

executed; but this doctrine seems to rest on the peculiar language and object of the statute enabling landlords to bring such a form of action,1 and it certainly does not extend to cases of mere constructive holding.

§ 982. In the application of the above rule, and its exceptions, § 900 the question has often been discussed, as to how far a distinction. can be recognised between executed and executory contracts, and the decisions on this subject are confessedly irreconcilable. No doubt, where the contract falls within one of the exceptions, and, consequently, need not be under seal, the corporation may equally sue or be sued upon the parol agreement, whether it be executed, or be merely executory; but the question is, what says the law, where a parol contract, which should have been under seal, has been executed by the one side before action brought, so that the other has received the whole benefit of the consideration for which it bargained 25 For example, can a corporate body, after having actually received goods ordered by its servants, refuse to pay for them on the technical pretext that no contract under seal has been executed? The Court of Queen's Bench,-apparently shocked at the gross injustice that might be perpetrated were such a system of repudiation allowable, and, peradventure, bearing in mind the sage apophthegm of a great judge of the last century, that corporations, having neither bodies to be kicked nor souls to be damned, are not wont to be over nice observers of either honour or honesty,—has, in accordance with morality, if not with law, decided this question in the negative on several occasions.

§ 983. Thus, where an action was brought against the guardians § 901 of an union for the price of some gates which had been erected at

1 11 G. 2, c. 19, § 14.

2 Finlay v. Bristol & Ex. Ry. Co., 7 Ex. R. 409; 7 Rail. Cas. 449, S. C.

3 See ante, § 974, and post, §§ 1036, 1043.

4 Church . Imp. Gas Light & Coke Co., 6 A. & E. 846 ; 3 N. & P. 35, S. C. ; recognised in Gibson v. E. India Co., 5 Bing. N. C. 271, and in Arnold v. May. of Poole, 4 M. & Gr. 895.

See Eccles. Commiss. v. Merral, 4 Law Rep., Ex. 162; 38 L. J., Ex. 93, S. C.

the poor-house under a parol order, and it was objected for the defence that the order was not by deed, the court overruled the objection, on the ground that it did not lie in the mouths of the defendants to take it, inasmuch as the work in question, after it was completed, had been adopted by them for purposes connected with the corporation. On another occasion, Lord Denman, in a considered judgment, expressed himself as follows:-"To enforce an executory contract against a corporation, it might be necessary to show that it was by deed; but where the corporation have acted as upon an executed contract, it is to be presumed against them that everything has been done that was necessary to make it a binding contract upon both parties, they having had all the advantage they would have had if the contract had been regularly made. This is by no means inconsistent with the rule that, in general, a corporation can only contract by deed; it is merely raising a presumption against them, from their acts, that they have contracted in such a manner as to be binding upon them, whether by deed or otherwise; and we are not aware of any decision or authority against this view of the case." 2

984. Decisions and authorities, however, may be found, which § 902 are wholly inconsistent with the law as thus propounded; for it has more than once been held by the Barons of the Exchequer, that a corporation is not precluded from relying on the absence of a seal, when works have been executed under a parol contract, even though such works have received the approval of the corporation, which has enjoyed the full benefit of them. The judges

3

Sanders v. St. Neot's Union, 8 Q. B. 810. See, also, Clarke v. Cuckfield Union, 1 Bail Ct. Cas. 81; Beverley v. Lincoln Gas Light & Coke Co., 6 a. & E. 829; De Grave v. May. of Monmouth, 4 C. & P. 111, per Ld. Tenterden; Pauling v. Lond. & N. West. Ry. Co., 23 L. J., Ex. 105; 8 Ex. R. 867, S. C.

2 Doe v. Taniere, 12 Q. B. 1013, 1014. See, also, Henderson v. Austraì. Roy. Mail St. Nav. Co., 5 E. & B. 409 ; Austral. Roy. Mail St. Nav. Co. v. Marzetti, 11 Ex. R. 228; Reuter v. Elect. Teleg. Co., 6 E. & B. 341.

3 Lamprell v. Billericay Union, 3 Ex. R. 307. See, also, Diggles v. Lond. & Blackwall Ry. Co., 5 Ex. R. 442; Homersham v. Wolverh. Waterw. Co., 6 Ex. R. 137; 6 Rail. Cas. 790, S. C.; May. of Ludlow v. Charlton, 6 M. & W.

of the Common Pleas, too, seem to have adopted the same rule; for where a solicitor, who had been appointed, but not under seal, by the mayor and town council of a borough to conduct suits, brought an action against the corporation for his costs, they held that he could not recover.1

§ 985. In order to authorise an agent to execute a deed for § 907 his principal, the authority must be given by an instrument under seal; and as such an instrument, or power of attorney, transfers no interest, the agent or attorney being merely put thereby in the place of the principal, it follows that the deed must be executed by the agent in the name and as the act of him who gave the power." Neither can a parol ratification, not amounting to a re-delivery, by the principal of a deed executed by his agent give validity to the deed, when the agent has not been authorised to act by an instrument under seal; 5 though it seems that evidence of an express, if not of an implied, recognition or adoption of the deed by the principal, will, as against him, raise a presumption that the agent was thus formally authorised to act, so as to dispense with the necessity of proving that fact."

$986. Proceeding now to a consideration of the documentary § 908 evidence which is rendered necessary by statute law, the first Act which arrests attention is the Companies Clauses Consolidation Act, 1845. This statute enacts, in § 14, that, subject to the regulations therein and in the special Act contained, every shareholder in any company, to which the provisions of the general Act apply, may sell and transfer his shares in the undertaking, or his

1 Arnold v. May. of Poole, 4 M. & Gr. 860. See, also, Clemenshaw v. Corp. of Dublin, I. R., 10 C. L. 1.

Berkeley v. Hardy, 5 B. & C. 355 ; 8 D. & R. 102, S. C.; White v. Cuyler, 6 T. R. 176; Steiglitz v. Egginton, Holt, N. P. R. 141; Williams v. Walsby, 4 Esp. 220; Callaghan v. Pepper, 2 Ir. Eq. R. 399.

3 Hunter v. Parker, 7 M. & W. 343, per Parke, B.; M'Ardle v. Irish Iodine Co., 15 Ir. Law R., N. S. 146.

4 Tupper. Foulkes, 30 L. J., C. P. 214; 9 Com. B., N. S. 797, S. C.

Hunter v. Parker, 7 M. & W. 343, per Parke, B.

Tupper v. Foulkes, 30 L. J., C. P. 214; 9 Com. B., N. S. 797, S. C. But see Ld. Gosford v. Robb, 8 Ir. Law R. 217.

7 8 & 9 V., c. 16.