poration, where a new corporation is made party to a suit Chap. 4. in equity in respect of a breach of trust committed by Actions by or their predecessors, they are not entitled to costs. (Attor- against a ney-General v. Kerr, 2 Beav. 420.)

Assumpsit will not lie against a municipal corporation upon an executory contract for the reasons previously stated (supra, p. 15. See also, 1 Rol. R. 82), but for the same reasons it will lie in the case of an executed consideration; as to recover money wrongfully received by them. (Hall v. Swansea (Mayor, &c.), 5 Q. B. 526.)

Where an attorney had acted for a corporation, some. times having been retained under their corporate seal, and at other times without that authority; and the corporation had paid him a sum of money in part payment of his bills generally, it was held in an action brought by him against the corporation for the residue, that he was at liberty to appropriate the money so paid to him to that portion of his work which he had performed without a retainer under seal, as there was nothing to impeach the fairness of his bills or the amount due to him in this respect, although, from want of legal form, he might not have been able to sue upon them. (Arnold v. Poole (Mayor, &c.), 4 M. & G. 860; 5 Scott, N. R. 741.) But a mere resolution of the council, for the increase of salary of a corporate officer though duly entered on the corporation books, is not binding on the corporation, not having been made under the common seal. (R. v. Stamford (Mayor, &c.), 6 Q. B. 433.)

Debt will lie against a corporation, upon any contract entered into by them under the corporate seal.

By a bye-law, certain corporate lands which had been inclosed by Act of parliament, were ordered to be let to such of the burgesses as were willing to take them: and it was further ordered, that certain annual sums out of the rents arising from the inclosure should be paid and distributed yearly among the twelve senior burgesses re

corporation.

Chap. 4.

Actions by or against a corporation.

siding within the borough. It was decided (Hopkins v. Swansea (Mayor, &c.), 4 M. & W. 621; S. C. in error, 8 M. & W. 901) that an action of debt was maintainable on this bye-law at common law by the parties to whom pecuniary benefits were granted thereby; and that such action lay against the corporation at large, under the 2nd section of the Municipal Corporation Act, now repealed.

A corporation aggregate is, generally speaking, not liable to be sued in tort, for any tortious act of their own; thus trespass, or replevin, or trover will not lie against them for such an act (see 8 Ea. 229, and cases there cited), but they are liable to be so sued for the tortious act of their agent, though not appointed under seal, if such an act be an ordinary service, such as a distress, professedly made under a statute, for a debt due to the corporation; and a jury may infer the agency from the adoption of the act by the corporation, as from their having received the proceeds of the seizure. (Smith v. Birmingham Gas Company, 1 A. & E. 526. See also Maund v. Monmouth Canal Company, 4 M. & G. 452; 5 Scott, N. R. 457. Green v. London General Omnibus Company, 29 L. J.; C. P. 13.)

So trover will lie against a corporation for a tortious conversion by their agent; and, if it should be essential to the conversion that they should have authorized it under seal, such authority will be presumed after verdict. (Yarborough v. Bank of England, 16 Ea. 6. See also Duncan v. Surrey Canal Proprietors, 3 Stark. R. 50.)

It seems doubtful whether ejectment can be maintained against a corporation. If they are tenants to any party, such tenancy may be determined by a notice to them to quit, served on their officers: after which the owner of the premises may distrain the cattle of any persons found trespassing on his grounds, or he may bring his action against them, or he may maintain ejectment against any person in the actual possession of the premises. (Doe d Carlisle (Earl) v. Woodman, 8 Ea. 228.)

Formerly, a corporation would not be let in to defend Chap. 4. an ejectment, without entering into the usual consent rule Actions by or to confess themselves in possession: the object of that against a rule being merely to prevent the necessity of proving the identity of the premises at the trial. (Doe d. Parr v. Roe, 1 Q. B. 700.)

Ejectment cannot be maintained against the bailiffs, pro tempore, of a corporation, by merely proving payment of rent for the premises by the annual predecessors of the defendants in the same office for several years before, and service of the notice to quit on the defendants, the existing bailiffs; for the payment of such rent by the bailiffs in succession is merely evidence of a tenancy in the corporation. (Doe d. Parr v. Roe, 1 Q. B. 700.)

An action on the case also may be supported against a corporation by any individual who may have sustained a direct and particular damage by reason of the neglect of any public duties which by law may be thrown upon them, such as for the non-repair of highways, bridges, or gaols. (Lyme Regis (Mayor, &c.) v. Henley, 3 B. & Ad. 77; S. C. Bing. 91; Lynn v. Turner, Cowp. 86.)

They may also become liable in damages for the improper and careless construction, and management of dangerous premises or machinery (Cowley v. Sunderland (Mayor, &c.), 3 L. J. Exch. 127); or for an assault and battery or false imprisonment committed by their servants in the exercise of the orders of the corporation, or in the discharge of their ordinary duty; or for the negligence and unskilfulness of their servants in the execution of the ordinary work and business of the corporation (Scott v. Manchester (Mayor, &c.), 1 H. & N. 59; 2 H. & N. 204), without proof of any authority under seal. (Eastern Counties Railway Company v. Broom, 6 Exch. 314. See also Goff v. Great Northern Railway Company, 30 L. J. Q. B. 148; Chilton v. London and Croydon Railway Company, 16 M. & W. 231; Tollemache v. London and South Western Railway Company, 26 L. T. R. 222.) But it is otherwise where the servant is not acting under orders nor within the general scope of his authority. (See Poulton

corporation.

Chap. 4. Actions by or

against a corporation.

v. London and South Western Railway Company, L. R. 2 Q. B. 534.) And a corporation, who have employed a solicitor to conduct legal proceedings, are not necessarily liable for unlawful acts of which the solicitor may have been guilty in the conduct of the proceedings (Eggington v. Lichfield (Mayor, &c.), 5 El. & B. 112), or for a misfeasance, thus an indictment will lie against an incorporated railway company for obstructing a highway by their works. (R. v. Great North of England Railway Company, ut supra.) In such cases an indictment is maintainable. against the corporation, in its corporate name. (See Dogherty's Crown Circ. Comp. 398; see also R. v. Birmingham and Gloucester Railway Company, 3 Q. B. 223; S. C. 2 C. & P. 478; R. v. Great North of England Railway Company, 9 Q. B. 315.)

As to the liability of a corporation for a malicious prosecution, see Stevens v. Midland Counties Railway Company, 10 Exch. 352; or for a libel, see Whitfield v. South Eastern Railway Company, El. Bl. & El. 121; 27 L. J.

Q. B. 229.

An indictment also will lie against a corporation, in the same manner as against the inhabitants of a county or parish, for such neglect of public duties. (See Dogherty's Crown Circ. Comp. 398; see also R. v. Birmingham and Gloucester Railway Company, 3 Q. B. 223; S. C. 2 C. & P. 478; R. v. Great North of England Railway Company, 9 Q. B. 315.)

A criminal information also will lie for a breach of duty and trust, as for applying to private purposes the revenues which are vested in them for public uses. (Limerick (Chamberlain, &c.) v. Attorney-General, 6 Dow. 136; see also Drummer v. Chippenham (Corp.), 14 Ves. 250.)

It may not be out of place here to remark that the members of the governing body are considered for some purposes as the agents of the corporation: and if they

corporation.

exercise their functions for the purpose of injuring its Chap. 4. interests and alienating its property, they are personally Actions by or liable for any loss occasioned thereby. And where such a against a liability arises from the wrongful act of several parties, each is liable for all the consequences, there being no contribution between them, and each case is distinct, depending upon the evidence against each party. (AttorneyGeneral v. Wilson, 1 Cr. & Ph. 1.)

Since the 1st November, 1875, all actions at law and suits in chancery commenced by information must be instituted by a proceeding called an action. Every such action must be commenced in the High Court of Justice by writ of summons. The High Court is a superior court of record, to which have been transferred the jurisdictions of the superior courts (see Supreme Court of Judicature Acts, 1873 and 1875).

The method of proceeding in ejectment is prescribed by the Common Law Procedure Act. The rules, however, annexed to the Judicature Act, 1873, make no special mention of the action of ejectment; and it may be doubtful how far the practice as prescribed by the Common Law Procedure Act will be retained, inasmuch as every action is to commence by a writ of summons (Steph. Com. III. 7th ed. p. 620).