as to the particular entries on which the witness relies; but if he examines as to collateral or other entries, he makes them his evidence (n). A party, by producing a memorandum to refresh a witness's memory, makes it evidence for his adversary, but not for himself (o).

(n) 6 C. & P. 281.

(0) Payne v. Ibbotson, 27 L. J. Ex. 41.

P.

CHAPTER VIII.

ON MATTERS WHICH ARE REQUIRED TO BE PROVED BY WRITING THE STATUTES OF FRAUDS-OF LIMITA

TIONS OF PRESCRIPTION.

MANY matters can be proved only by deed or other writing; and, in such cases, oral evidence, however distinct and direct, is wholly inadmissible.

INCORPOREAL RIGHTS,

Such as advowsons, rents, remainders, reversions, profits à prendre, and easements, can be created or assigned only by deed, and must therefore be proved by deed. Thus, a ticket of free admission to a theatre or a race course is insufficient evidence of a title to enter, unless it be by deed (a).

CONTRACTS BY CORPORATIONS.

Contracts and acts done by corporations must generally be by deed, and can therefore be proved only by a deed bearing the corporation seal (b).

This rule is an ancient principle of common law, and still remains abstractedly unmodified; but, prac

(a) Wood v. Lead bitter, 13 M. & W. 842.
(b) Arnold v. Mayor of Poole, 4 M. & G. 860.

tically, a large class of exceptions has been engrafted on it, and their accumulative result appears to be that minor contracts, when there is a paramount convenience such as to amount almost to a necessity, or contracts in the direct course of the business for which the corporation was established, may be proved without being under the seal of the corporation. Thus, it has been said by Rolfe, B., "A corporation which has a head may give a personal command and do small acts; as, it may retain a servant; it may authorize another to drive away cattle, damage feasant, or make a 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" (c).

The practical question in such cases is, was the transaction incidental or foreign to the purposes and daily business of the corporation? If it be incidental, as to repair the premises of the corporation (d), or a contract to buy or sell such goods as the corporation is formed to buy and sell (e), such a matter does not require to be proved by the corporation seal. So, the East India Company has been held liable upon bills of

(c) Mayor of Ludlow v. Charlton, 6 M. & W. 821. (d) Saunders v. St. Neots Union, 8 Q. B. 810.

(e) Church v. Imperial Gaslight and Coke Company, 6 A. & E. 846. But see The London Dock Company v. Sinnott, 8 E. & B. 347.

exchange accepted on its behalf although its seal was not on them (ƒ). But when the goods to be supplied are not such as those in which the corporation usually deals (g); or when the contract is of such a magnitude, and of such an unusual description, as to require reasonably the formal and express assent of the corporation, the fact must be proved by writing under the corporation seal (h). It is also to be remarked, that a long current of recent cases has tended to restrict the general principle that corporations can only contract under seal. The courts are unwilling to hold such contracts void, merely because they are not evidenced by the corporation seal; and are becoming every year more and more inclined to hold corporations bound by them when they are entered into by duly appointed agents; but the agents of a corporation have no power to bind it by any act which the corporate body has not power to do. So, also, corporations will be bound by the misrepresentations of their agents (i). It is said by a pre-eminent authority, that, 'although corporations can only contract under seal, they are bound by their conduct, and by the acts of their solicitors, after their contract, just as an individual would be" (j). So, in torts, corporations are liable for the acts of their servants, although they have not been appointed under the corporation seal (k); and

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(f) Murray v. East India Company, 5 B. & A. 204. (g) Copper Miners Company v. Fox, 16 Q. B. 229. (h) Homersham v. Wolverhampton Railway Company, 6 Exch. 137.

(i) Conybeare v. New Brunswick Company, 8 Jur. N. S. 375. (j) Per Lord St. Leonards, Eastern Counties Railway Company v. Hawkes, 5 H. of L. Cas. 376.

(k) Eastern Counties Railway Company v. Brown, 6 Exch. 314; Goff v. Great Northern Railway Company, 3 E. & E. 672.

use and occupation may be maintained by a corporation against a tenant who has entered, but who has not been constituted by a demise under seal (7).

It has been doubted how far a corporation is bound by an executed contract, not under seal, but of which the corporation has received the benefit; but the effect of the latest cases seems to be that the corporation will be bound if the making of the contract was necessary for carrying into execution the purposes for which the corporation was established (m). "After the work is done and adopted for the purposes of the corporation, the objection that the contract was not under seal cannot be taken" (n). The doctrines of acquiescence and part performance are applied by courts of equity to contracts by corporations or incorporated companies as well as to those by private individuals. Thus, where the directors of a railway company entered into an informal agreement, upon the faith of which certain works were executed on a spot where the company was constructively present, the company was held to the agreement (o). Even where the contract is ultra vires and one which a corporation or incorporated company cannot lawfully enter into, still, if any benefit has been derived by the corporation or incorporated company from the contract, they are liable to the extent of such benefit. Thus, where a life as

(1) Mayor of Stafford v. Till, 4 Bing. 77.

(m) Arnold v. Mayor of Poole, 4 M. & G. 860; Clark v. Cuckfield Union, 21 L. J. Q. B. 349; Haigh v. North Brierley Union, E. B. & E. 873; Nicholson v. Bradfield Union, 7 B. & S. 774; but cf. Lamprey v. Billericay Union, 3 Ex. 307.

(n) Per Lord Denman, Sanders v. St. Neots Union, 8 Q. B. 810.

(0) Laird v. Birkenhead Railway Company, John. 500; cf. Wilson v. West Hartlepool Railway Company, 5 N. R. 270.