directors the right of bringing actions on behalf of the company; and an authority, therefore, in the deed of settlement, to some one or more of the directors to bring actions in his or their name against persons who are not parties to the deed, nor members of the co-partnership, will not justify an action brought in pursuance thereof. (n) But they may empower one or more of their number to sue, on behalf of the rest, all such of the members of the firm as have violated the special contracts and engagements subsisting between the partners themselves, such an agreement being, in effect, an undertaking not to object that all who otherwise ought to have joined in the action were not joined. If, therefore, several persons form a company for the purposes of trade, and agree that it shall be conducted by two persons, who shall be trustees so far that all rights of action shall be in them, one who is a shareholder, and has executed the deed, cannot object to the non-joinder of the rest in an action brought against him thereon. (o)

CO-PARTNERSHIPS and ASSOCIATIONS authorized to sue in the name of their SECRETARY, TREASURER, or PUBLIC OFFICER.-In order to obviate the inconveniences ensuing from changes in the board of trustees or directors, and the technical objections that might arise from the non-joinder as plaintiffs in an action upon a contract of all who were directors at the time the contract was entered into, recourse has been had to the legislature, and acts of parliament have from time to time been passed, empowering certain banking, trading, and other companies and co-partnerships, to sue in the name of their managing officer-or their treasurer or secretary for the time being, and providing that the actions so brought shall not abate or be discontinued by the death or removal of such nominal plaintiff whilst the action is pending, but that the officer for the time being shall always be deemed plaintiff or defendant in every action prosecuted or defended by the copartnership. (p)

Among the companies and associations invested with this power of suing and being sued in the name of a treasurer, secretary, clerk, or other public officer, are the commissioners of turnpike roads, certain dock and insurance companies; friendly societies and savings banks; and by the act of 1 Vict. c. 73, certain trading and other companies may be clothed with this privilege by letters patent. (7)

(n) Radenhurst v. Bates, 3 Bing. 470; 11 Moore, 421, s. c. Davies v. Harkins, 3 M. & S. 488.

(0) Davies v. Harkins, 3 M. & S. 488 (p) 7 Geo. 4. c. 46, s. 9. Whitmore v. Wilks, 1 M. & M. 214. Guthrie v. Fisk, 3 B. & C. 178; 5 D. & R. 24, s. c.

(g) 3 Geo. 4, c. 126, s. 74; 39 Geo. 3. c 69, s. 184; 39 & 40 Geo. 3, c. 47, s. 150; 53 Geo. 3, c. 216; 10 Geo. 4, c. 56, s. 21; 57 Geo. 3, c. 130. As to the general regulation and management of joint stock companies, see 7 & 8 Vict. c. 110, c. 111, c. 113; and as to the right of action of the public officer against members of

U

The right of action of the public officer is not affected by a change in the name of the firm, or the accession of new partners or shareholders; (r) and it is in general absolutely vested in him, so that the action upon all contracts entered into with the directors and trustees, must be brought in his name, and not in the names of those who are the actual parties to the contract. (s) But the power of entering into contracts on behalf of the company is not transferred to such treasurer, secretary, or public officer, but continues to reside with the directors in whose hands the management of the co-partnership is placed. The extent of the right of action of the public officer often depends upon the construction of private acts of parliament, the words of which are sometimes very large, vesting in him the right to sue upon all contracts in which the company is "concerned or interested,” or which have been entered into "with any person in trust for the company," or "with any person for the use or benefit of the company."

By a deed of settlement executed by the subscribers to the capital of a joint stock company, each of the subscribers and proprietors of shares covenanted with certain trustees to make due payment of the instalments and calls on their several shares; a private act enabled the company to sue in the name of its secretary upon any covenants which had been "entered into with the said company, or with any persons in trust for the said company, whether he is a proprietor of the said company or not;" and it was held, that the act vested the right of action upon the covenant with the trustees in the secretary of the company, and that the latter might consequently maintain an action upon the deed against such of the shareholders as had neglected to pay up their calls." (t)

CORPORATIONS AGGREGATE." All the individual members of a corporation that have existed from the foundation thereof to the present time, or that shall hereafter exist, are but one person in the law; as the river Thames is still the same river, though the parts which compose it are changing every instant." (u)

A corporation must either exist by prescription, by the king's charter, or by act of parliament. It must have a corporate name, by which alone it must sue and be sued, and perform all legal acts. To enable a corporation to sue upon a deed, the deed must be entered into with the body at large by its corporate name. If it is made with the members individually,

banking co-partnerships, 1 & 2 Vict. c. 97, and 5 & 6 Vict. c. 85.

(r) Wilson v. Craven, 8 M. & W. 584. Whitmore v Wilks, 1 M. & M. 214.

(s) Steward v. Greaves, 10 M. & W. 719. (t) Skinner v. Lambert, 4 M. & Gr. 477, 500; 5 Sc. N.R. 197, s. c. Smith v. Goldsworthy, 4 Ad.

& E. N. S. 461. As to the appointment of the public officer, see Steward v. Dunn, 12 M. & W. 655. The effect of this private legislation in some instances appears to be, to enable companies to sue upon deeds upon which they could never have been sued!

(u) Bl. Com. 468.

or with part of them, on behalf of the corporation, the action upon the contract must be brought by the parties with whom the contract is so made, and not by the corporation on whose behalf or for whose benefit it was made. (x)

If a covenant is made with a corporation by name, it is sufficient if the name and description inserted in the deed is "the same in substance with the true name, it need not be the same in words or syllables." (y)

Generally, when there is a corporation aggregate of many persons, such as a mayor and commonalty, dean and chapter, master of an hospital, and confreres, a contract made by the head alone without the body cannot operate as the contract of, or be put in suit by the corporation; and vice versâ, a contract made by the body without the head cannot be regarded as the contract of the corporation; but if it have any effect at all, it can operate only as the contract of the individual parties executing the same. (2)

Although a corporation cannot in general bind itself to the performance of an executory contract, unless such contract has been entered into under the common seal, which is said to be the mouthpiece of the corporation, yet if a person has had the benefit of the fulfilment of a contract which could not have been enforced against the corporation whilst it remained executory, the law will raise an implied promise in its favour, upon which it may sue in its corporate character. (a)

Where, for example, a party has enjoyed all the benefit and advantage of a parol contract entered into with a corporation, he shall not be permitted to discharge himself from the ordinary liability, on the ground that the contract was not entered into under the common seal of the corporate body. A municipal corporation, therefore, may sue upon the ordinary implied promise in respect of money received by a third party, under a special contract with the corporation, which is void by reason of its not having been made under the common seal. It may maintain an action upon the ordinary implied promise for the use and occupation of tolls, when the tolls were not granted to the occupier under the common seal; (b) also for the use and occupation of houses and lands, the property of the corporation, where the tenant has actually occupied and taken and enjoyed the profits of the land under a lease void by reason of its not being granted

(x) Com. Dig. Franchises, F. 19, ante.

(y) The King v Haughley, 4 B. & Ad. 655. Sussex Sidney College v. Davenport, 1 Wils. 184. (2) Walford on parties to actions, 1105. Bro. Abr. tit. Corporation.

(a) East London Water Company v. Bailey,

4 Bing. 287. Beverley v. Lincoln Gas Company, 6 Ad. & E. 839; 1 N. & P. 883, s. c. Mayor of Ludlow v. Charlton, 6 M. & W. 821; ante, p. 35. (b) Mayor, &c. of Carmarthen v. Lewis, 6 C. & P. 608.

under the common seal. (c) In these cases a benefit having been enjoyed by the defendant under the void contract, the law will imply a promise in favour of the corporation, upon which implied promise it may sue in its corporate character.

INCORPORATED joint stock companies.-The ancient maxim of law, too, that a corporation can only contract under the common seal, and in the corporate name, has in modern times been made subject to a very numerous class of exceptions." Corporations have of late years been established sometimes by royal charter, more frequently by act of parliament, for the purpose of carrying on trading speculations; and where the nature of their constitution has been such as to render the drawing of bills, or the constant making of any particular sort of contracts necessary for the purposes of the corporation, there the court have held, that they would imply in those who are, according to the provisions of the charter or act of parliament, carrying on the corporation concerns, an authority to do those acts without which the corporation could not subsist, (d) and to do which it was expressly called into existence. The wants and necessities of a body incorporated for the purposes of trade, are of course materially different from those of an institution established for municipal purposes, and the government of towns and colleges; and if a trading corporation was unable to contract, in the ordinary course of its trade, except under the common seal, its usefulness for trading purposes would be destroyed, and it would be utterly unable to accomplish the object of its existence. It has been held, therefore, that a trading corporation may maintain actions for goods sold and delivered in the usual course of its trade, (e) and may sue upon executory contracts for the supply of goods, for the manufacture and supply of which the company was incorporated,— for the non-acceptance of goods sold,—and the non-delivery of goods purchased by the corporation. (ƒ) It may also draw and accept bills of exchange and promissory notes. (g)

Rights of CORPORATORS inter se.-Bodies of persons who have received charters from the crown, under the statute 1 Vict. c. 73, sect. 29, which enables the crown, when it creates a corporation, to confer upon it any of the rights and incidents of the joint stock companies authorised to be created by that act, or who have been incorporated through the medium of a private act of parliament for trading purposes, partake in some degree

of the nature of a corporation, whilst in other respects they are governed by the ordinary law of partnership. When the rights and liabilities of the members inter se are not expressly regulated by statute, they will in most respects be the same as those of ordinary partners inter se. The aggregate existence of a corporation, and the individual existence of the members composing it, are indeed perfectly distinct; and there is no objection to an action by the corporation against one or more of its own members in a court of law, or by one or more of such members against the corporation itself, on implied promises in respect of benefits received, but this right, as between parties, who unite to the character of corporators, that of ordinary partners, must be restricted and modified by the ordinary law of partnership. Upon all covenants and express contracts, however, between the incorporated company on the one hand, and any one or more of its members on the other, for any claim or demand which can be ascertained and settled without going into the general accounts of the company, an action is maintainable.

Most corporations have the power of making bye-laws, imposing penalties on their own members, and regulating the right of action for the recovery of such penalties. (h)

Corporations remain always the same as to debts and rights, so that if an old corporation is incorporated by a new name, it may recover in its new name debts contracted with the old corporation. (i) A corporation revived by a new charter has all its rights revived and put in action, and is entitled to the credits of the old corporation, and may therefore sue on a bond given to the old corporation. (k)

Parish officers.-The right of action in respect of parish lands and hereditaments is regulated by act of parliament, and is vested either in the churchwardens and overseers of the poor of the parish for the time being, who are empowered to take and hold parish lands in the nature of a body corporate; (7) or in the guardians of parishes and unions under the recent. act of 5 & 6 Vict. c. 57, whereby it is enacted that it shall be lawful for every board of guardians constituted under 4 & 5 W. 4, c. 76, "to accept, take, and hold, on behalf of the union or parish respectively for which they may act, any lands, buildings, goods, effects, or other property, as a corporation; and in all cases to sue and be sued in their corporate name."

(h) 2 Selw. N. P. 10th ed. 1158. Graves v. Colby, 9 Ad. & E. 356. Dunston v. Imperial Gas Company, 3 B. & Ad. 125. Hill v. Manchester and Salford Water Company, 5 B. & Ad. 875. Carden v. General Cemetery Company, 5 Bing. N. C. 257. Feltmaker's Company v. Davis, 1 B. & P. 101.

(1) Mayor, &c. of Scarborough v. Butler, 3

Lev. 237,

(k) Mayor and Commonalty of Colchester v. Seaber, 3 Burr. 1872, 1873.

(4) 59 Geo. 3, c. 12, s. 17. Doe v. Harper, 2 D. & R. 708. Doe v. Terry, 4 Ad. & E. 274. Addey v. Woolley, 3 Moore, 21; 8 Taunt. 691, s. c. Pope v. Sale, 5 M. & P. 336; 7 Bing. 477, s. c.