Exchequer. M'ARDLE บ. THE IRISH 1ODINE CO. M. T. 1864. which this action is brought. And it may be further assumed that the articles of association of the Company were registered, together with the memorandum of association, under the Act of Parliament. The first question is, did the articles of association authorise the three directors to bind, by the articles of agreement of the 12th of February, the Company which was incorporated by the Registry, so as to make them liable to a covenant entered into by the directors under the directors' seals? It is apparent from several provisions of the articles of association, that no such power was intended to be conferred. The 47th clause of those articles provides that the directors shall have power to contract for the purchase, from James M'Ardle, of the patent right in question. The 46th clause makes three directors a quorum. But in no part of the deed is any power expressed to be conferred upon them of entering into any such contract of purchase in any prescribed form. Where it is intended that the directors should enter into contracts, otherwise than in the ordinary mode by which a corporate body is bound (that is, by means of their common seal), there is an express provision for that purpose. Thus, the 50th clause provides that the directors may make, issue, indorse, and accept bills of exchange in the name or on the account of the Company. And the absence of any similar provision as to the form in which other contracts, to be binding on the Company, are to be entered into, leads directly to the inference that such contracts should be effected by the ordinary form generally prescribed by law for the contracts of a corporate body; namely, by the use of their common seal. Accordingly, the 75th clause provides:-" That "the seal of the Company shall be placed in the custody of such "person or persons as the directors shall, from time to time, deter"mine on, and shall be used only upon the authority of two or more "directors." It appears to me that the articles of association did not authorise the directors, or any three of them, to make a contract by a deed under their own seals, which should, by such deed, be binding at law as the contract of the Company; and there is no evidence of any other authority in the three parties to those articles of agreement, so as to bind the Company at law. But in the next place, the frame and contents of the deed show that such was not its scope or operation. The instrument purports M. T. 1864. to be, in terms :- "Articles of agreement made and entered into 66 on the 12th day of February 1863, by and between James Smith "M'Ardle," of, &c., "of the one part, and Thomas Nunn," of, &c., "Thomas Higginbotham," of, &c., "and John Aldridge," of, &c., "on behalf of and in trust for the Irish Iodine and Marine Salts Company (limited), of the other part." This shows that the contract contemplated by the instrument was to be, not between M'Ardle and the Company, but between M'Ardle and the parties of the second part, as the Company's trustees. The instrument then recites the formation of the Company, and that the Company "is “intended to be registered with limited liability, as provided by the "Acts of Parliament in that behalf;" showing that when the instrument was prepared, the Company had not yet been incorporated by registry; a plain reason for the contract being, for their. benefit, made by and in the name of their trustees. After reciting that, by the articles of association, the parties of the second part were constituted three of the directors of the Company, the instrument proceeds further to recite, that M'Ardle had exhibited (not to the Company, but) "to the parties hereto of the second part," certain reports, testimonials, and figures, which are set out at considerable length. It then recites that M'Ardle had agreed to sell the patents and patent rights previously mentioned (being a British and a Belgian patent), "to the parties hereto of the second part, on behalf of and for the said Company," for certain considerations specified, and that "the said parties hereto of the second part agreed to purchase the said letters patent, with all the rights," &c., "under them," upon the specified terms. It recites that M'Ardle had stated (not to the Company, but) to the parties of the second part, that a sum of £1500 was sufficient for certain purposes set forth in the instrument; and then follow the words of express contract:-It is agreed by "the "said James Smith M'Ardle, and the said parties hereto, of the "second part, that," &c., setting forth the terms of the agreement. Among these terms is a proviso that, upon payment of a certain sum (£600) to M'Ardle, the several letters patent shall be deposited with the law agent or agents of "the said intended Company, to Exchequer. M'ARDLE v. THE IRISH IODINE CO. Exchequer. M'ARDLE v. IODINE CO. M. T. 1864. "be held in trust for the said parties hereto of the second part, "on behalf of the said Company, and the said James Smith "M'Ardle, until the whole of the purchase-money" shall have been THE IRISH paid; and that, upon such payment, "the said James Smith "M'Ardle shall execute and perfect a proper deed of assignment "or other assurance, transferring and making over" (not to the Company, but) "to the said parties of the second part, or to such "other person or persons as may be nominated and appointed by "the said Company as their trustees, on behalf of and in trust "for the said Company, the said several letters patent, and all "rights and privileges under or by virtue of the same." This provision is the clearest possible indication that it was intended that the legal ownership in the patents should be vested in trustees for the Company; and that, in the first instance, that ownership should vest in the parties to this instrument of the second part; and, coupled with the other portions of the instrument to which I have referred, it leaves no room for doubt that the contract contained in the articles of agreement of the 12th of February was made, not with the Company, but with the three trustees of the Company, who signed the articles, and who sealed them with their separate seals. There is a provision at the close, which still further confirms this view of the instrument. It provides "that the foregoing articles of agreement shall apply to the sur"vivors and assigns of the said several parties hereto of the "first and second parts respectively." Whatever may be the legal effect of the provision, it plainly shows that the parties contemplated, at all events, this, that some of the trustees might die before the contract should be performed, and that the rights under the contract should enure to the survivors. Wholly independently of the views which I have stated, it appears to me that the form of this instrument is such as to bring it within a rule of law, founded upon the strictness with which instruments under seal are regarded by the law of England, and laid down in several authorities, both ancient and modern, to which, I own I am surprised that, no reference was made at the Exchequer. v. THE IRISH IODINE CO. Bar, including Frontise v. Small (a), Appleton v. Binhs (b), and M. T. 1864. Berkely v. Hardy (c). According to that rule (with some very special exceptions, which have no application here), no person can be sued upon an instrument under seal, made inter partes, who is not a party to the deed; and, where a deed is executed by one person on behalf of another, either he must, in order to bind that other person, execute it, either using the name of his principal, or he must employ such words as show that he executed it, not as himself a party to the deed, but as the agent, in the act of executing it, of his principal. The form of words is immaterial, if in substance this is done. In this instrument, not only is the Company not named as a party, but there is no contract whatever expressed to be made with the Company; and their seal is not to the deed; and the three directors, in executing the instrument, not only do not profess to do so in the name, or on the part of the Company, but show, on the contrary, that they execute it as being themselves parties to the deed. The words used are—“ In "witness whereof the parties aforesaid have hereunto set their “hands and seals, the day and year first in these presents written;" and thereupon follow the separate signatures and separate seals of M'Ardle and of the three directors. We are all of opinion that the nonsuit directed by my Brother DEASY was right; and the cause shown against this conditional order must be allowed. (a) Lord Ray. Rep. 1418. Cause shown allowed. (b) 5 East, 748. (c) 5 Barn. & Cress. 355; S. C., 8 Dow. & Ryl. 102; and see Combe's case (5 Coke, part ix, p. 76 b, 77 a); and Barford v. Stukely (3 B. & B. 333; S. C., 5 B. Moore, 23); White v. Cuyler (6 T. R. 177). M. T. 1862. THE QUEEN, at the prosecution of CHARLES LANYON, บ. THE MAYOR for the time being of the Borough of BELFAST.* Nov. 20, 21, 24. (Queen's Bench.) A burgess of a MANDAMUS.-The material facts which appeared in the prosecutor's borough (other than Dublin) affidavit were these:-For several years preceding the 1st of May in Ireland, is disentitled to 1862, the prosecutor had been in occupation of the dwelling-house have his name retained on the 14 Wellington-place, Belfast, at the side and rere of which were burgess-roll, if the rate-book, offices, entered by a separate door in Upper Queen-street, and for the time being in force, occupied and used by him and his two partners in their business does not evi dence that the of architects and engineers. very premises, in respect of which he claims a right to the municipal franchise, the twelve On the 25th of June 1861, the Poor-law Guardians of the Union of Belfast struck a rate, wherein the prosecutor was rated as occupier of the entire of said premises, which were described as during house and offices No. 14 Wellington-place, and of the annual value months prior of £114. The prosecutor was enrolled a burgess in respect thereof to the last day of August pre- for the year 1862. ceding the re vision, rated to the relief of annual rated value of not less than £10. On the 1st of May 1862, the prosecutor, having sublet the the poor, at the dwelling-house 14 Wellington-place to Dr. Stronge, ceased to occupy it; but continued with his partners to occupy, and they still occupy, the offices in Upper Queen-street, which now are, and from the 1st day of May 1862, have been separate and detached from the dwelling-house 14 Wellington-place. The Commissioner of Valuations for Ireland, in pursuance of the provisions of the 15 & 16 Vic., c. 63, made a valuation of the union, and rated the entire premises at the annual value of £120. That valuation having been completed some months earlier, and * Before HAYES and FITZGERALD, JJ.-[LEFROY, C. J., was absent from indisposition, and O'BRIEN, J., was sitting as one of the Members of the Court of Appeal in Chancery]. |