CHAPTER V.

MATTERS WHICH ARE REQUIRED TO BE PROVED BY WRITING THE STATUTES OF FRAUDS AND OF LIMITATIONS-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.

A contract by a corporation must in general be either under the seal of the corporation or signed on its behalf by a person authorized under seal to do so, or must be ratified under seal (b).

Exceptions. This rule is an ancient principle of the common law, and still remains in the abstract unmodified; but practi

(a) Wood v. Leadbitter, 13 M. & W. 842.

(b) See Arnold v. Mayor of Poole, 4 M. & G. 860; and Mayor, &c. of Oxford v. Crow, (1893) 3 Ch. 535.

cally, a large number of exceptions have been engrafted on it, and their accumulative result appears to be that minor contracts, where there is a paramount convenience such as to amount almost to a necessity, or contracts connected with the objects 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). Although, as a general rule, an inferior servant can be retained even by a non-trading corporation by parol, the same principle does not apply to all such servants; for it has been held that the contract for the engagement of a clerk to a master of a workhouse by a board of guardians must be under seal (7).

The practical question in such cases is,-Was the transaction incidental or foreign to the objects and daily business of the corporation? If it was incidental, as to repair the premises of the corporation (e); or a contract to buy or sell such goods as the corporation is formed to buy and sell (ƒ), or to purchase goods for the purposes of the corporation (g), such a matter does not require to be proved by the corpora

(c) Mayor of Ludlow v. Charlton, 6 M. & W. 821; cf. Church v. Imperial Gas Co., 6 A. & E. 861.

(d) Austin v. Bethnal Green Guardians, L. R., 9 C. P. 91; cf. Dyte v. St. Pancras Guardians, 27 L. T., N. S. 342.

(e) Saunders v. St. Neot's Union, 8 Q. B. 810.

(f) Church v. Imperial Gaslight and Coke Co., 6 A. & E. 846.

(a) South of Ireland Colliery Co. v. Waddell, L. R., 4 C. P. 617.

tion seal. Thus, the East India Company was formerly held liable upon bills of exchange accepted on its behalf although its seal was not on them (). When the goods to be supplied are not such as those in which the corporation usually deals (i); 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 corporate seal (k); but magnitude per se is not an element in deciding whether a contract not under seal is binding on the corporation (7).

It may be remarked, that the tendency of recent decisions is 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 corporate seal; and are 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. Corporations are bound by the misrepresentations of their agents (m); and it has been said by a high 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" ("). So, in torts, corporations are liable for the acts of their servants, although they have not been appointed under the corporate seal (o); and use and occupation may be maintained by a corporation against a tenant who has entered, but who has not been constituted tenant by a demise

(h) Murray v. East India Co., 5 B. & A. 204.

(i) Copper Miners' Co. v. Fox, 16 Q. B. 229.

(k) Homersham v. Wolverhampton Railway Co., 6 Exch. 137.

(1) Per Erle, J., Henderson v. Australian Steam Navigation Co., 5 E. & B. 409.

(m) Conybeare v. New Brunswick Co., 8 Jur., N. S. 375.

(n) Per Lord St. Leonards, Eastern Counties Railway Co. v. Hawkes, 5 H. L. Cas. 376.

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

under seal (p). Entry, occupation, and payment of rent for corporate property under a demise not under seal will constitute a yearly tenancy (2).

As to executed contracts. Although it was at one time doubted how far a corporation was bound by an executed contract, not under seal, and of which the corporation had received the benefit; it is now settled that the corporation will be bound if it has accepted the benefit of the contract (r), except, of course, where any statute intervenes, as in the case of contracts by urban authorities (s). Where goods which a corporation has contracted by parol to buy have been received by it, or after work is done and adopted for the purposes of the corporation, the objection that the contract was not under seal cannot be taken (†).

Acquiescence and part performance. 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 (u).

Contracts ultra vires. 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 assurance company granted marine policies, and the policies so granted were held void as being ultra vires, the

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

(q) Ecclesiastical Commissioners v. Merral, L. R., 4 Ex. 162.

(r) Melbourne Banking Corporation v. Brougham, 4 App. Cas. 156. (s) See infra, p. 348.

(t) Saunders v. St. Neot's Union, 8 Q. B. 810.

(u) Laird v. Birkenhead Railway Co., Johns. 500; cf. Crook v. Corporation of Seaford, L. R., 6 Ch. 551; and see Mayor of Kidderminster v. Hardwick, L. R., 9 C. P. 13.

holders were held to be entitled to recover from the company the amount of the premiums paid by them (a).

CONTRACTS BY COMPANIES

Under the Companies Clauses Consolidation Act, 1845 (y), are provable under the following section:-Sect. 97, "The power which may be granted to any such committee to make contracts, as well as the power of the directors to make contracts on behalf of the company, may lawfully be exercised as follows; that is to say

"With respect to any contract which, if made between private persons, would be by law required to be in writing, and under seal, such committee or the directors may make such contract on behalf of the company in writing, and under the common seal of the company, and in the same manner may vary or discharge the same:

"With respect to any contract which, if made between private persons, would be by law required to be in writing, and signed by the parties to be charged therewith, then such committee or the directors may make such contract on behalf of the company in writing, signed by such committee, or any two of them, or any two of the directors, and in the same manner may vary or discharge the same:

"With respect to any contract which, if made between private persons, would by law be valid, although made by parol only, and not reduced into writing, such committee or the directors may make such contract on behalf of the company, by parol only, without writing, and in the same manner may vary or discharge the same:

(x) In re Phoenix Life Assurance Co.,2 J. & H. 441. (y) 8 & 9 Vict. c. 16.