and affords opportunities to corporate bodies, by the aid of unscrupulous counsel, to commit from time to time the most startling frauds. § 896. From the earliest traceable periods the rule in question has, indeed, been subject to certain exceptions, which rest upon a principle of convenience, amounting almost to necessity,' and which relate either to trivial matters of frequent recurrence, or to such affairs as from their nature do not admit of delay. Thus, to borrow the language of Mr. Baron Rolfe, in a well-considered case,' "A corporation, it is said, which has a head, may give a personal command, and do small acts; as it may retain a servant. It may authorise another to drive away cattle, damage feasant, or make a distress or the like. These are all matters so constantly recurring, or of so small importance, or so little admitting of delay, that, to require in every such case the previous affixing of the seal, would be greatly to obstruct the every-day ordinary convenience of the body corporate, without any adequate object. In such matters the head of the corporation seems, from the earliest times, to have been considered as delegated by the rest of the members to act for them." § 897. His lordship then proceeds to point out, that "in modern times, a new class of exceptions has arisen. Corporations have of late 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 States, in the case of the Bank of Columbia v. Patterson, 7 Cranch, 229, that whenever a corporation aggregate was acting within the range of the legitimate purpose of its institution, all parol contracts made by its authorised agents were express and binding promises of the corporation; and all duties imposed upon them by law, and all benefits conferred at their request, raised implied promises, for the enforcement of which an action lay." See also 6 A. & E. 837, 838, per Patteson, J. 1 Church v. Imp. Gas Light & Coke Co., 6 A. & E. 861, per Lord Den man, cited by Rolfe, B., in Mayor of Ludlow v. Charlton, 6 M. & W. 822. Arnold v. Mayor of Poole, 4 M. & Gr. 895, por Tindal, C. J.; De Grave v. Mayor of Monmouth, 4 C. & P. 111. Mayor of Ludlow v. Charlton, 6 M. & W. 821. 4 Id. making of any particular sort of contracts necessary for the purposes of the corporation, there the Courts 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." These observations are confined to trading companies, but several recent decisions seem to warrant the assumption that the rule may be now generally stated as applicable alike to all corporations aggregate, whenever the making of a certain description of contracts is necessary and incidental to the purposes for which the corporation was created.' § 898. In accordance with the rule thus expounded, it has been held that assumpsit will lie against a gas company for meters sold to them, and a like action is maintainable by them against the consumer, either for not accepting gas according to his agreement,' or for the price of gas supplied to him. Actions of assumpsit have also been held to lie against the guardians of the poor of an union, who are constituted a corporation by the Act of 5 & 6 Will. 4, c. 69, s. 7, in one case for iron gates,' and in another for water-closets, which had respectively been supplied under parol contracts for the union workhouse. So, a parol contract made by the directors of a chartered Navigation Company, by which they agreed to pay a person a certain salary in consideration of his going to Sydney and bringing home one of their ships, has been enforced as against the Company, the plaintiff having performed his part of the agreement. And when the same Company had bought some ale for the use of the passengers 1 Clarke v. Cuckfield Union, 1 Bail Ct. Cas. 85, 86, 89, per Wightman, J., in an elaborate argument. 2 Beverley v. Lincoln Gas Light and Coke Co., 6 A. & E. 829; 2 N. & P. 283, S. C. 3 Church v. Imp. Gas Light and Coke Co., 6 A. & E 846; 3 N. & P. 35, S. C. 4 City of London Gas Light and Coke Co. v. Nicholls, 2 C. & P. 365. 5 Sanders v. St. Neot's Union, 8 Q. B. 810. But see Smart v. Guard. of Poor of West Ham Union, 10 Ex. R. 687. 6 Clarke v. Cuckfield Union, 1 Bail Ct. Cas. 81. See Pauling v. London and North West. Rail. Co., 8 Ex. R. 867. 7 Henderson v. Australian Royal Mail Steam Navig. Co., 5 E. & B. 409. See also Reuter v. Electric Telegraph Co., 6 E. & B. 341. 6 2 on board one of their steamvessels, and had paid for it, they were allowed to recover damages from the vendors on account of the ale being unfit for use, though the agreement for the purchase was not under seal.' But, on the other hand, a contract with a copper mining company for a supply by them of iron rails; a contract with a water company for the supply to them of iron pipes; a contract for erecting engines and machinery for a water company; a contract with a railway company to execute extensive repairs on their permanent line of rails; a contract with guardians of the poor to make a map of the rateable property of a parish in the union; and a contract with guardians to do some extra work in building a poor-house,-have each and all of them been held to relate to matters which were not of such frequent occurrence, or of so small importance, or so essentially necessary for the purposes for which the corporations. were respectively instituted, as to be taken out of the general rule, which requires the contracts of corporations to be under seal; and even before the East India Company ceased to be merchants, it was held, that the allowance by them of a retiring pension to a military officer could not be enforced in a court of law, unless it were granted by deed." § 899. It has long since been determined that corporations may be liable in tort for the acts of their servants, though such servants be not authorised by any instrument under seal;" and 1 2 Australian Royal Mail Steam Navig. Co. v. Marzetti, 11 Ex. R. 228. East London Waterworks Co. v. Bailey, 4 Bing. 283; 12 Moore, 532, S. C.; explained by Lord Denman in Church v. Imp. Gas Light and Coke Co., 6 A. & E. 860-862. 4 Homersham v. Wolverhampton Waterworks Co., 6 Ex. R. 137. S Diggle v. London and Blackwall Rail. Co., 5 Ex. R. 442. Paine v. Strand Union, 8 Q. B. 326. Lamprell v. Billericay Union, 3 Ex. R. 283. Church v. Imp. Gas Light and Coke Co., 6 A. & E. 860-862, per Lord Denman, explaining East London Wat. W. Co. v. Bailey, 4 Bing. 283; 12 Moore, 532, S. C. See also Paine v. Strand Union, 8 Q. B. 326. * Gibson v. East India Co., 5 Bing. N. C. 262; 7 Scott, 74, S. C. See also Cox v. Midland Rail. Co., 3 Ex. R. 268; 5 Rail. Cas. 583, S. C.; and Cope v. Thames Haven Dock and Rail. Co., 3 Ex. R. 841. 10 Eastern Counties Rail. Co. v. Broom, 6 Ex. R. 314; 6 Rail. Cas. 743, the rule requiring corporations to act by deed will not protect them, either from an action of trover, where goods have been wrongfully taken by their agent,' or from an action for money had and received, where they have wrongfully possessed themselves of money belonging to the plaintiff. This last exception rests on necessity; for, as a corporation would scarcely put their seal to a promise to return moneys wrongfully received by them, it follows that if a seal were necessary, the injured party would be without remedy. It further deserves notice that an action for use and occupation is clearly maintainable by a corporation,' and is probably maintainable against a corporation, whenever the defendants have actually occupied the plaintiff's premises, and no demise under seal has been executed; but this doctrine seems to rest on the peculiar language and object of the statute enabling landlords to bring such a form of action, and it certainly does not extend to cases of mere constructive holding." § 900. In the application of the above rule, and its exceptions, the question has often being discussed, as to how far a distinction can be recognised between executed and executory contracts, and the decisions on this subject are confessedly irreconcileable. No doubt, where the contract falls within one of the exceptions, and consequently, need not be under seal, the corporation may equally sue or be sued upon the parol agreement, whether it S. C.; Roe v. Birkenhead, Lancashire and Cheshire Junct. Rail. Co., 7 Ex. R. 36; 6 Rail. Cas. 795, S. C.; Stewart v. Anglo Californian Gold Mining Co., 18 Q. B. 736. See Stevens v. Midland Rail. Co., & Lander, 23 L. J., 3 Mayor of Stafford v. Till, 4 Bing. 77; 12 J. B. Moore, 260, S. C.; Dean & Chapter of Rochester v. Pierce, 1 Camp. 466; Southwark Bridge Co. v. Sills, 2 C. & P. 371; Mayor of Carmarthen v. Lewis, 6 C. & P. 608. See Doe v. Bold, 11 Q. B. 127. Finlay v. Bristol & Exeter Rail. Co., 7 Ex. R. 409; 7 Rail. Cas. 449, S. C.; Lowe v. London & North West. Rail. Co., 7 Rail. Cas. 524; 18 Q. B. 632, S. C. 11 Geo. 2, c. 19, § 14. Finlay v. Bristol & Exeter Rail. Co., 7 Ex. R. 409; 7 Rail. Cas. 449, S. C. 7 See ante, § 893, post, §§ 946, 953, 954. be executed, or be merely executory; but the question is, what says the law, where a parol contract, which should have been under seal, has been executed by the one side before action. brought, so that the other has received the whole benefit of the consideration for which it bargained? For example, can a corporate body, after having actually received goods ordered by its servants, refuse to pay for them on the technical pretext that no contract under seal has been executed? The Court of Queen's Bench, apparently shocked at the gross injustice that might be perpetrated were such a system of repudiation allowable, and, peradventure, bearing in mind the sage apothegm of a great judge of the last century, that corporations, having neither bodies to be kicked nor souls to be damned, are not wont to be over nice observers of either honour or honesty,-have, in accordance with morality, if not with law, decided this question in the negative on several occasions. § 901. Thus, where an action was brought against the guardians of an union for the price of some gates which had been erected at the poorhouse under a parol order, and it was objected for the defence that the order was not by deed, the Court overruled the objection, on the ground that it did not lie in the mouths of the defendants to take it, inasmuch as the work in question, after it was completed, had been adopted by them for purposes connected with the corporation." On another occasion, Lord Denman, in a considered judgment, expressed himself follows:-"To enforce an executory contract against a corporation, it might be necessary to show that it was by deed; but where the corporation have acted as upon an executed contract, it is to be presumed against them that everything has been done that was necessary to make it a binding contract upon both as 1 Church v. Imp. Gas Light & Coke Co., 6 A. & E. 846; 3 N. & P. 35, S. C.; recognised in Gibson v. East India Co., 5 Bing. N. C. 271, and in Arnold. Mayor of Poole, 4 M. & Gr. 895. 2 Sanders v. St. Neot's Union, 8 Q. B. 810. See also Clarke v. Cuckfield Union, 1 Bail Ct. Cas. 81; Beverley v. Lincoln Gas Light & Coke Co., 6 A. & E. 829; De Grave v. Mayor of Monmouth, 4 C. & P. 111, per Lord Tenterden; Pauling v. London and North West. Rail. Co., 23 L. J., Ex., 105; 8 Ex, R. 867, S. C. |