1839. GIBSON V. Wilde Serjt. for the Plaintiffs. The bankrupt having entered the service of the East India Company, upon a contract which entitled him to a pension after twentyEAST INDIA five years' service, and having served his time, the Company. pension became a legal right vested in him, and as such, passed to his assignees. The consideration having been executed, the bankrupt might have sued the company on their contract; and the right of action also, passed to his assignees. A contract entered into by resolution of the company, if confirmed by the Board of Control, is impliedly sanctioned by 33 G. 3. c. 52.; for, by sect. 125., no resolution of the company shall be available in law for new pensions beyond 2007. per annum, unless approved and confirmed by the Board of Control. There is no analogy between the pension in question, and the half-pay of officers in the army, for such halfpay is in the nature of a retainer for future services, and the receiver of it is always liable to be called on again; whereas here the party has ceased to be a soldier, and the company has no further claim on him: and though formerly it was requisite that contracts entered into by corporations should, with some few exceptions, be by deed, yet, in modern times, that law has been greatly altered. In The Mayor of Stafford v. Till (a), and The Mayor of Caermarthen v. Lewis (b), it was held that a corporation might sue in assumpsit for use and occupation and though, in The East London Waterworks v. Bayley (c), it was held that assumpsit would not lie for a corporation upon an executory contract, because it was thought there was no mutuality of remedy, yet in Beverley v. Lincoln Gas Company (d), it was decided that a corporation might be sued in assumpsit, as well as sue, where the contract has been executed; and in Church v. (a) 4 Bingh. 75. (c) 4 Bingh. 283. The Imperial Gas Light Company (a), that it makes no difference as to the right of a corporation to sue on a contract entered into by them without seal, whether the contract be executed or executory; and Lord Denman C. J. said, "The general rule of law is, that a corporation contracts under its common seal: as a general rule, it is only in that way that a corporation can express its will or do any act. That general rule, however, has, from the earliest traceable periods, been subject to exceptions, the decisions as to which furnish the principle on which they have been established, and are instances illustrating its application, but are not to be taken as so prescribing in terms the exact limit that a merely circumstantial difference is to exclude from the exception. This principle appears to be convenience amounting almost to necessity. Wherever to hold the rule applicable would occasion very great inconvenience, or tend to defeat the very object for which the corporation was created, the exception has prevailed: hence the retainer by parol of an inferior servant, the doing of acts very frequently recurring, or too insignificant to be worth the trouble of affixing the common seal, are established exceptions; on the same principle stands the power of accepting bills of exchange, and issuing promissory notes, by companies incorporated for the purposes of trade, with the rights and liabilities consequent thereon." Here, the bankrupt's contract with company was not such as could only be entered into by deed: it was not for an annuity, which must be by deed, and can be recovered only by writ of annuity: it differs in nothing from a contract for wages, upon which the employer may be sued at every period when the wages are payable. In Moore v. Lewis (b), it was held that an annual payment may be contracted for by parol: in Bin the 1839. GIBSON บ. EAST INDIA (a) 6 Adol. & Ell. 846. (b) 1 Ventr. 27. Sid. 413. 1839. GIBSON v. nington v. Wallis (a), the consideration of the promise on which the Plaintiff sued was an annuity granted by parol, and no objection was taken on that ground. In Gibson EAST INDIA V. Dickie (b), an agreement by the Defendant to allow the Company. Plaintiff, with whom he cohabited, in case they should separate, an annuity for her life, provided she continued single, was held valid. The bankrupt, therefore, might have sued the company on this contract, and if the legislature had intended that his pension should be inalienable, that intention would have been expressed in 33 G. 3. c. 52.: for Chelsea pensions are expressly made inalienable by 7 G. 4. c. 16. s. 26.; Greenwich pensions, by 10 G. 4. c. 26. s. 3.; excise pensions, by 7 & 8 G. 4. c. 53. s. 121., 54 G. 3. c. 151.; and halfpay, by 7 G. 4. c. 57. s. 29. Spankie Serjt. for the Defendants. The allowance made by the East India Company to retiring officers is in the nature of the half-pay given to officers retiring from the service of her Majesty. It was always intended, and always has been considered in the nature of a personal gratuity, and has never been granted by deed, or in any form indicating that the Defendants meant to become absolutely and irrevocably liable to the payment of such allowance: the circumstance of the allowance never having been granted by deed, shews that it was never treated, on either side, as part of the contract between the parties. And the grant is not for the benefit of the individual, but to ensure the general respectability of the service by enabling an officer of rank to support his station in society. All the circumstances must be taken into consideration. The allowance in question is no part of the original engagement; when the officer retires, he makes his request; the company take it into consideration; and the resolution follows: the directors of the company are only the executive body, and many of their grants are subject to the revision of the court of proprietors. But if this were in any sense a contract, it was a contract for an annuity which can only be granted by deed; Co. Lit. 142. In re Locke (a); at all events, when granted by a corporation. It is true that, in certain excepted cases, such as those which have been referred to, a corporation may contract without deed, and sue or be sued in assumpsit; as, in order to carry on the business for which they have been created, or to appoint inferior officers, such as a cook, or the like; Bac. Abr. Corporation, p. 266. But they cannot grant an annuity by parol Moore v. Lewis was not the case of a corporation—or make a parol demise: Rex v. Chipping Norton. (b) The 33 G. 3. c. 52. does not make a grant without deed binding, but superadds the necessity of confirmation by the Board of Control. The 53 G. 3. c. 155. s. 88. has the same operation with respect to gratuities. Therefore the company, though liable in foro conscientiæ, are not liable in a court of law. And it is contrary to public policy that such a grant should be assignable. Half-pay is not assignable; Flarty v. Odlum (c), Lidderdale v. Duke of Montrose (d), Stone v. Lidderdale (e); nor any grant for public services; Davis v. Duke of Marlborough (g); nor an annuity pro consilio impendendo, unless the word assigns be found in the grant; Maund's Case. (h) The mention of half-pay in the Insolvent Debtor's Act, and of pensions in the other acts which have been referred to, is only in the 1839. GIBSON v. EAST INDIA 1839. GIBSON v. EAST INDIA way of more abundant caution. There is no such clause in the Bankrupt Act. Wilde in reply. With respect to the form of this grant, it is clear, from the case in Plowden, 131., down to Binnington v. Wallis, that a contract to make an annual payment may be valid without deed; Ex parte Locke only decides that an agreement to sell an annuity cannot be enforced at law as an annuity, even if enrolled; and as to the substance, -the resolution of the directors is a binding contract; the company having acted on it, and no court of proprietors having signified any dissent. The stat. 33 G. 3. c. 52. is a legislative declaration that the funds of the company are charged by such resolution. Nor, according to the modern authorities, is this a case in which a corporation can only contract by an instrument under seal. The territorial defence of India is one of the purposes for which the company exists; and, according to Beverley v. Lincoln Gas Company, such purposes may be effected without affixing the company's seal to every engagement. If engagements for soldiers' wages cannot be entered into without deed, neither can engagements for the salary of any clerk, porter, or captain of the company's ships. It is true that payments for continuing duties and continuing services, are not assignable; but debts for past services may be assigned; Blachford v. Preston (a); and there can be nothing in such an assignment contrary to public policy: the power of assignment gives the grantee a credit which he would not possess if the grant were inalienable. The legislature has dealt with pensions from the East India Company as late as 1 & 2 Vict. c. 110. If it had been thought expedient to render (a) 8 T.R. 89. |