Chap. 3.

Power to make bye

laws.

DIVISION I.

A bye-law which provided that no person should erect any booth, or place any caravan, for the purpose of any show or public entertainment in any public place within the borough, without the license of the mayor, and that any such license given at any other time than fair time should be revoked by the mayor, if three inhabitant householders, residing within 300 yards of the place for which it was granted should memorialise the mayor to revoke it, was held to be unreasonable and bad. (Elwood v. Bullock, 6 Q. B. 383; 13 L. J. (N.s.) Q. B. 330.)

A bye-law may be good in part and bad in part; but that can only be so where the two parts are entire and distinct from each other (by Ld. KENYON, C. J., in R. v. Faversham (Company of Fishermen), 8 T. R. 356); thus, if a bye-law consists of several distinct and independent provisions, although one or more of these may be void, yet the rest of the bye-law may be valid. (Lee v. Wallis, 1 Ken. 295.)

But if a bye-law be entire, and one part be void, it is void altogether. Thus if a bye-law, instead of being limited to those within the jurisdiction of the corporation, professes to extend to strangers also, it is void not only as to the latter, but also as to the members of the corporation. (Dodwell v. Oxford (University), 2 Vent. 34.)

Any existing bye-law may be repealed by the corporate body. (R. v. Ashwell, 12 Ea. 22; R. v. Westwood, 4 B. & C. 806.)

It has been decided that a bye-law cannot be objected to in a summary way upon motion, on return to a habeas. corpus, except in cases from London. (Bellard v. Bennett; Same v. Clement, 2 Burr. 775.) But the validity of a byelaw may be tested in an action to recover a penalty, where that is the proper mode of proceeding (Piper v. Chappell, 14 M. & W. 624); or where a penalty has been enforced by distress, by an action of trespass (Moir v. Munday, Sayer, 181, 185), or in proceedings to enforce a penalty before justices. (Everett v. Grapes, 3 L. T. (N.s.) 669.)

Evidence of a practice in contravention of a bye-law is not receivable. (Sells v. Brown, 9 C. & P. 601.)

CHAPTER IV.

Of Actions by or against a Corporation.

Chap. 4.

Another incident to corporations is the power of suing Actions by or and being used by their corporate name.

They may maintain all such actions as are necessary to assert or maintain their rights, and all such actions may be maintained against them for the support of adverse claims.

As a corporation cannot appear in person, they must appear by attorney. (Bro. Abr. Corporation. 28 Co. Lit. 66, b.; Sutton's Hospital, Case of, 10 Rep. 30, b.);

If a corporation has a head or any other integral component part, they cannot sue or be sued without it, as in that case the corporation would be incomplete. (Bro. Abr. Corporation. 43 Co. Lit. 66, b.)

A foreign corporation may sue as such in the courts of this country, but they must prove they are incorporated in the foreign country. (St. Charles Bank v. De Bannales, 1 C. & P. 569; S. C. 1 Ry. & Moo. 190.)

As all contracts entered into by a corporation must be under seal, it follows that a corporation cannot sue in assumpsit on an executory contract (see East London Water Works Co. v. Bailey, 4 Bing. 283), as such an action is founded on a contract not under seal. (As to trading corporations, see Church v. Imperial Gas Co., 6 A. & E. 846; 3 N. & P. 37; Dunstable v. Imperial Gas Co., 3 B. & Ad. 125; London (City) Gas Co. v. Nicholls, 2 C. & P. 365; East India Co. v. Glover, 1 Stra. 612; Gibson v. East India Co., 5 Bing. N. C. 270.)

But they may maintain assumpsit upon an executed contract (see The Barber Surgeons of London v. Pilson, 2 Lev. 252; Rochester (Dean and Chapter) v. Pearce, 1 Camp. 466); as for the use and occupation of land (Stafford (Mayor, &c.) v. Till, 4 Bing. 75), or of tolls. (Carmarthen (Mayor, &c.) v. Lewis, 6 C. & P. 608.) As

against a corporation.

Chap. 4.

Actions by or against a

in such cases the party contracting with the corporation having had the benefit of the fulfilment of the contract, the law will raise an implied promise in favour of the corporation. corporation on which they may sue in their corporate character (see further Beverley v. Lincoln Gas Co., 6 A. & E. 839; 2 N. & P. 283); and it is no action of assumpsit by the corporation, that the corporation itself was not originally bound by the contract, by reason of its not having been made under their common seal.

A plea, therefore, to an action by a corporation on an agreement which had been executed, that the plaintiffs were a corporation aggregate, and that the agreement was not entered into by them under the common seal of the corporation, or by any person authorized under seal, is bad on demurrer. (London (City) v. Goree, 1 Ventr. 298. See also Exeter (Mayor, &c.) v. Trimlet, 2 Wils. 95; Yarmouth (Mayor, &c.) v. Eaton, 3 Burr. 1402; Kingstonupon-Hull (Mayor, &c.) v. Horne, Cowp. 102.)

It seems also, that even if the contract had been executory only on the part of the corporation, their suing upon it might amount to an admission on record by them, that such contract was duly entered into on their part, so as to be obligatory upon themselves; and that such admission on the record would stop them from setting up an objection in a cross action, that the contract was not sealed with their common scal. (Fishmongers' Co. v. Robertson, 5 M. & G. 131; 6 Scott, N. R. 56. See also Liverpool Borough Bank v. Eccles, 4 H. & N. 139.)

Assumpsit will also lie for duties leviable within the jurisdiction of the corporation, such as the duty of scavage, due by the custom of London. (Fishmongers' Co. v. Robertson, 5 M. & G. 131; 6 Scott, N. R. 56. See also Liverpool Borough Bank v. Eccles, 4 H. & N. 139.)

Debt also will lie for such duties (see Hardres, 486, and the cases cited above), or for penalties incurred by breaches of the bye-laws of the corporation. (See Butchers' Co. v. Bullock, 3 B. & P. 434; Feltmakers' Co. v. Davis, 4 B. &. P. 98.)

So debt will lie upon a bond given to the corporation; Chap. 4. but a corporation cannot sue upon a bond made to the Actions by or mayor in his own proper name. (Y. B. 21 E. 4, 15; against a corporation.

Dy. 48.)

On the other hand, the mayor of a corporation, who on the sale of certain corporate lands by auction, signed a contract on behalf of himself and the corporation with the purchaser, for the due performance of the conditions of sale, cannot, in his individual capacity, sue the purchaser for a breach of the contract. (2 Taunt. 374, 387.)

A corporation may maintain trespass for a trespass committed upon their lands or other possessions; or case, as for disturbance in holding their courts, or taking the profits of liberties granted to the corporation, or against the sheriff of the county for executing process within the jurisdiction of the corporation, where the return of writs has been granted to them. (1 Rol. Rep. 118.)

They may also maintain trover, or ejectment. (See 1 Anderson, 202, 248.)

In ejectment by a corporation, it is not necessary that the demise should be stated to be by deed; and if so stated, it need not be proved. (2 Wms. Saund. 305 b. n. (c)).

A corporation may institute a suit in equity for setting aside transactions fraudulent as against it, although carried into effect in its name by members of the governing body and such right is not affected by the attorneygeneral having also power to call in question such transaction. (Attorney-General v. Wilson, 1 Craig. & Phil. 1.)

A suit or action by a corporation does not abate by the death of one of the members (Blackburn v. Jepson, 3 Swans. 138); for the body still remains a corporation.

A criminal prosecution will also lie at the instance of a corporation; but they should be described in the indict

с

(R. v. Patrick, 1 Leach

Chap. 4. ment by their corporate name. Actions by or C. C. 253; S. C. 2, Ea. P. C. 1059.)

against a

corporation.

In the case of an action against a corporation, it has been enacted, that the writ of summons may be served on the mayor or other head officer, or on the town clerk, or secretary, or treasurer of such corporation. (C. L. P. Act, 1852, s. 16.)

But this enactment does not apply to actions of ejectment or quare impedit, which may still be commenced by original writ. (As to process against a corporation by original writ, see Com. Dig. Franchises, F. 16.)

If a corporation does not enter an appearance to the writ of summons or original process, the proper proceeding is by distringas, which should go against them in their public character; and under this process the sheriff is authorized to distrain the lands and goods belonging to the corporation.

If a party has sustained injury by the act of others who he has reason to suppose acted under the authority of a corporation, and he is unable to ascertain that fact, he may file a bill of discovery in equity against them and any of their officers, before he brings an action at law, suggesting that he intends to bring one, but cannot do so without the discovery prayed. If, however, the discovery of any of the matters prayed for should be prejudicial to the corporation, and would not be material to the plaintiff's case, the defendants are not bound to reveal such facts. (Mordelly v. Merton, 1 Br. Ch. Rep. 471.)

An answer in equity must be made under the corporate seal; and if the proper officer refuses to affix the seal, where the majority of the members have agreed to the answer, the Court of Queen's Bench will compel him to do so. (R. v. Wyndham, Cowp. 317. See Diggle v. London and Blackwall Railway Company, 5 Exch. 442, 450, as to where it is inconvenient or impossible to affix the seal.)

A municipal corporation, as altered by the Municipal Corporation Act, being but a continuance of the old cor