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render the instrument effectual and operative, although no formal delivery thereof is necessary (d).

For general purposes, not affecting the interest or title of the corporation, a corporation may act through the medium of an agent, although he possess no authority under seal (e).

In the late case of the East London Water Works Company v. Bailey (f), which was a special action of assumpsit by the company to recover damages for the non-delivery of a quantity of iron pipes, pursuant to a contract not under seal, the Court of Common Pleas held, that the action was not sustainable, although the act which incorporated the company empowered the directors "to make contracts, agreements, and bargains with the workmen, agents, undertakers, and other persons employed, or concerned in making, completing, or continuing the works belonging to the undertaking." The Court considered that the corporation were not liable on such a contract, and therefore could not sue upon it, it being executory. And Best, C. J., in pronouncing the judgment of the Court, thus stated the general principles upon this subject, and the exceptions thereto :

"It is clear as a general rule, that a corporation cannot express its will, except by writing under the common seal of the body corporate. It has indeed been contended at the bar, that this rule is confined to contracts affecting real property: but the rule is by no means so confined, although undoubtedly it is subject to some exceptions; these are to be found in Brookes's Abridg ment (g); and the present case does not fall within any of them.

"The first is, where the contract is executed; in that case the law implies a promise, and a deed under seal is not necessary, as was decided in the Mayor and Corporation of Stafford v. Till (h),

(d) Derby Canal Company v. Wilmot, 9 East, 360. As to the seal being affixed by directors of an incorporated company, and the necessity of their having the express sanction of the company, &c., see Clarke v. The Imperial Gas Light Company, 1 N. & M. 206, 4 B. &Ad.315; S.C. The directors (managers by statute) of an incorporated company, when cannot sue the company for remuneration, though directed to be paid by a resolution of the company, not under seal, Dunston v. The Impe

rial Gas Light Company, 3 B. & Ad. 125. See post, 223.

(e) Roe v. Pierce, 2 Camp. 96.

(f) 12 Moore, 532; 4 Bing. 283, S. C. See Dunston v. Gas Light Company, 3 B. & Ad. 125.

(g) Title, Corporations, pl. 34, et seq.

(h)4 Bing. 75; 12 Moore, 260. S.C. In this case the defendant had held under the corporation and paid them rent. And see The Southwark Bridge Company v. Sills, 2 C. & P. 371, S. P.

where it was holden that a corporation might maintain assumpsit for the use and occupation of their land.

"The next exception is, where the acts done are of daily necessity to the corporation, or too insignificant to be worth the trouble of affixing the common seal: all these are enumerated in Bro. Ab. Corporation, 56; and in Horn v. Ivy (i).

"Another exception is, where a corporation has a head, as a mayor, or a dean, who may give commands which a party may obey without the sanction of a common seal; Randel v. Deane (k), or may bind the corporation by record (7).

"A fourth exception is, where the acts to be done must be done immediately, and it would be impossible to wait for the formality of the corporation seal; as where cattle are to be distrained damage feasant, which might escape before the seal could be affixed; Manby v. Long (m). But it is only in cases of necessity, occasioned by the hurry of the proceeding, that such a course can be pursued; for, in Horn v. Ivy (n), it is laid down, that the appointment of the bailiff, who is to make distresses for the corporation, must be under seal.

"The principle of necessity applies to corporations created for purposes of trade, such as the Bank of England (o). The very object of that institution requires that it should have the power of issuing bills of exchange and promissory notes. But this indulgence is not extended beyond cases of necessity; for, in Slark v. the Highgate Archway Company (p), the Court said, That assumpsit on notes would not lie against a corporation, unless the act which authorised the making of the promissory notes, EO NOMINE, by the corporation, ex vi termini, impliedly empowered the corporation to make a promise.' And in Broughton v. the

Debt by dean and chapter for use and occupation, Dean, &c. of Rochester v. Pierce, 1 Camp. 466. And a gas light company may, it has been held, maintain assumpsit for gas actually supplied. The London Gas Light Company v. Nicholls, 2 C. & P. 365. See Dunston v. Gas Company, 3 B. & Ad.

125.

(i) 1 Ventr. 47. As to a notice to quit by steward of corporation, upon which they bring ejectment, see Roe v. Pierce, 2 Camp. 96; Adams Eject. 3rd ed. 128, 9.

(k) 2 Lut. 1497. See Clarke v. Gas Co., ubi suprà.

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Manchester Water Works Company (q), which I should not cite, but that my judgment in the case has been confirmed by a decision in this Court, I am reported, and correctly, to have said :— When a company, like the Bank of England or East India Company are incorporated for the purposes of trade, it seems to result, from the very object of their being so incorporated, that they should have power to accept bills or issue promissory notes. It would be impossible for either of these companies to go on without accepting bills (r).' This, therefore, being an action of assumpsit on an express executory contract, where the party cannot recover on any legal implication, but only on the bargain as it actually exists, is an action which does not lie against a corporation, unless authorised by the act which constitutes the corporation. The contract not being binding on the corporation, there is no mutuality between the parties; and as the corporation cannot be sued, neither can it sue."

It seems that a foreign corporation may sue in this country by their corporate name (s).

In Tilson v. The Warwick Gas Light Company (t), it appeared that the act of parliament which incorporated the company, enacted, that all the costs of obtaining the act should be paid and discharged out of the monies subscribed, in preference to all other payments: it was held that the attorney who obtained the act, might maintain an action of debt against the company, founded upon the statute, for his costs. The declaration contained other counts, stating that the defendants were indebted to the plaintiff for work, labour, &c. It was decided upon general demurrer, that, admitting a corporation could not contract otherwise than by deed, the omission to set out a deed was a mere matter of form, and therefore ground of special demurrer only.

(q) 3 B. & Ald. 12. It was there held that the company could not bind themselves by a bill. In Clarke v. The Gas Company, 1 N. & M. 206; 4 B. & Ad. 315, S.C., it was held that the company, though incorporated for the purpose of supplying gas, &c., might legally, under the common seal, grant an annuity as a pension for past services, to a retiring officer, under reasonable restrictions.

(r) In Murray v. East India Company, 5 B. & Ald. 204, it was held that the company might be sued in

assumpsit as the acceptors of bills; they being a trading corporation whose power to draw and accept bills is recognised by statute.

(s) The National Bank of St. Charles v. Bernales, 1 C. & P. 569; R. & M. 190, S. C. It was an action of assumpsit by a commercial corporation on bills of exchange: proof was given that it was a corporation by the Spanish law.

(t) 7 D. & R. 376; 4 B. & C. 962, S. C. See ante, 221, note (d); and post, 226.

Guardians of the poor, acting under a statute enabling them to sue and be sued by their treasurer, and to take conveyances to themselves, and their successors, &c., are so far in the nature of a corporation, that they may be sued as guardians, in the name of their treasurer, for money paid for their use, &c. (u).

7thly. OF CONTRACTS WITH GOVERNMENT AGENTS. The general rule is, that an officer appointed by government, as for instance, the governor of a colony, a naval or military officer, acting officially, or as a public agent, is not liable personally upon contracts, made by him in that capacity (x); unless he expressly pledge his personal credit and responsibility (y).

The captain of a troop, during the time of his absence, and while another officer is in actual command of it, and by whom the orders for subsistence are issued, and the subsistence money is received from government, is not liable to pay for subsistence furnished to the men; although he continued to be entitled to a profit upon the sum issued on that account, and the troop still remained under his military orders (z).

It has been also decided, that the captain of a troop, for which forage is furnished by the orders of a clerk appointed by such captain, is not liable in an action for money had and received for such forage, though present with the troop at the time; it not appearing that he had received any money for the purpose from the paymaster, to whom it is issued by government, and upon whom the captain is entitled to draw for a certain sum, regulated by the returns of the preceeding month (a).

A purser of one of his Majesty's ships is not liable to the purser's steward upon an implied contract to pay wages; for the steward, although named by the purser, cannot be appointed without the sanction of the commander, and is entitled to pay from the crown, and the purser has no fund allowed him, out of which

(u) Jefferys v. Gurr, 2 B. & Ad.

833.

(x) Macbeath v. Haldimand, 1 T. R. 172, 674 ; 1 Chitty Pl. 5th ed. 42.

(y) See Appleton v. Binks, 5 East, 148; Burrell v. Jones, 3 B. & Ald. 47; Gidley v. Lord Palmerston, 3 B. & B. 286; Prosser v. Allen, Gow. 117.

The latter was an action against the colonel of a regiment to recover the price of knapsacks furnished to the regiment. See Keate v. Temple, 1 B. & P. 158; an action by a slop-seller, against a lieutenant in the navy, for clothes supplied to the crew.

(z) Myrtle v. Beaver, 1 East, 135. (a) Rice v. Chute, 1 East, 579.

he can pay the steward, although the latter acts under his immediate authority (b).

An action does not lie against a public officer, by individuals, for sums which, as a public officer, he is authorised to pay them; although he may have received the money applicable to that purpose. Consequently, a retired clerk of the War-office cannot sue the Secretary at War, for the allowance provided for such elerk, although the defendant has funds in hand applicable to such allowance (c). Nor are justices of the peace contracting on behalf of the public, for rebuilding a public bridge, under an act of parliament which provides a fund for the payment, liable to the contractor (d).

The agent of a regiment appointed by the colonel, under the usual power of attorney, is the agent of the latter, and bound to account to him for money received from government; although such money was eventually payable not only to the colonel, but to other individuals in the regiment (e).

A foreign consul resident in England, and receiving a salary from his own government, cannot maintain an action for his trouble and labour in transacting business for merchants here, in which he acted as the officer of his own government, and in con formity to their express instructions (ƒ).

8thly. OF CONTRACTS WITH COMMISSIONERS OF ROADS, TRUSTEES, &c.

In Horsley v. Bell (g), a bill having been filed by the plaintiff, the undertaker of a navigation at Thirsk, in Yorkshire, against the commissioners named in the act for carrying it on, who had signed the several orders, it was contended; first, that the defendants were not personally liable, because they were exercising a public trust, and the credit was given to the undertaking itself, and not personally to them, and the remedy was therefore in rem : secondly, that those who had been present at the meetings, and had signed some, but not all the orders, were liable only to those which they had respectively signed. But Lord Chancellor Thur

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