Abbildungen der Seite
PDF
EPUB

1842.

ARNOLD

2.

no right to appropriate the several sums of 1411. 11s. 10d. and of 821. 7s. 1d. to the payment of the same, or either of them, then I do direct the said sums of 1417. 11s. 10d. The Mayor of and 821. 7s. 1d., or such of them as the court shall be of opinion the plaintiff had no right to appropriate, to be deducted from the debt for which I have directed the verdict to be entered.

POOLE.

"If the court shall be of opinion, that, in the absence of any authority given to the plaintiff under the seal of the corporation to do the work contained in the bill, No. 5., the facts above stated furnish evidence of a retainer, or valid contract, binding the corporation, in relation to the matters contained in the said bill, and that the same was for matters concerning which the town council had power to make a valid contract, or to give a retainer binding the corporation, then I direct the debt for which I have ordered the verdict to be entered to be increased by the amount of the said last-mentioned bill.

"If the court shall be of opinion that the facts above stated, in the absence of any authority given to the plaintiff, under the seal of the corporation, to do the work contained in the bills, Nos. 4. and 8., furnish evidence of a retainer, or valid contract, binding the corporation, in relation to the matters contained in the said last-mentioned bills, or either of them, and that the same were for matters concerning which the town council had power to make a valid contract, or give a retainer, binding the corporation, and also that the plaintiff had a right of action to recover the same, or either of them, notwithstanding the suit to which they refer had not been determined, then I direct the debt for which I have ordered the verdict to be entered, to be increased by the amount of such bill or bills, deducting therefrom the sum of 100l. paid to the plaintiff in pursuance of

the resolution above-mentioned on account of the said bills."

The case was argued in last Easter term.

Bompas Serjt. (with whom was Barstow) for the plaintiff. The principal question in this case is, whether or not a corporation can appoint an attorney to act for them otherwise than under their common seal. Secondly, it is a question, whether, under the circumstances disclosed in the award, there has not been substantially an appointment under seal. And, lastly, whether, supposing there was not a valid retainer of the plaintiff as to some of the services performed by him, he was at liberty to appropriate payments, that were made to him generally, to the costs of the proceedings in which he had not been properly retained.

With regard to the first question, it is to be observed, that no point can be made in favour of the defendants, grounded on any distinction between executory and executed contracts. The work has been bona fide done by the plaintiff; and in most of the instances he is shewn to have been employed to do the particular work either by the mayor, as the head of the corporation, or by the body, pursuant to resolutions passed by them; and in all the cases the corporation recognised and sanctioned the employment. The question is, whether, under these circumstances, a narrow technical rule is to stand in the way of the plaintiff's right to recover for his services? The general rule undoubtedly is, that a corporation can only act by deed under their common seal. (a) That rule however has been much broken in upon by modern authorities; and even in the older cases, at a time when the rule was more strictly adhered to, it was considered that a corporation might do certain acts

(a) Bro. Abr. Corporations et Capacities, pl. 34. .

.1842.

ARNOLD

v.

The Mayor of

POOLE.

1842.

ARNOLD

V.

The Mayor of
POOLE.

and make certain appointments, such as of a servant, cook, butler, &c., without deed; Bro. Abr. Corporations et Capacities, 47 (a), 49 (b). 50 (c), 56 (d); Com. Dig.

"Debt. (a) Townsend J. A dean and chapter may retain and assign a bailiff, receiver, or other servant without writing. Brian C.J.of C. P., contrà ; and that he could not be a servant without writing, nor demand his salary without writing; but they may charge a man for his occupation without deed, as a guardian in socage, bailiff of the king, and receiver of his own head, and such like, and he was positive (precise) in this. 4 H. 7. 6."

(b) "Townsend J. C. P. A corporation may have ploughmen and servants of husbandry, butlers, cooks, and such like, without retainer by deed; and a servant may justify by the command of a body politic without having a deed of command. Brian C. J.C. P. contrà. And that they can do nothing without writing. Vavisour K. S. In the time of Edw. 4., it was agreed that a corporation cannot assign auditors without writing, And Brian was of opinion, that a bailiff (ought) to be charged as here, by reason of his occupation. 4 H. 7. 17."

(c) "Trespass. The defendant said, that it was the freehold of the president and scholars of C., and he, as servant to them, and by their command, entered &c. Keble, Serjt. He cannot be retained with the the corporation without specialty; nor make a feoffment without specialty. Hussey C.J. of K.B. (in the year book, 'Non,

[ocr errors]

par Dieu '). They cannot be disseisors without an agreement by deed, nor enter on the land without a command given by deed. Wood K. S. As to small things, there is no need for a writing; as for lighting candles, making hay or fire, nor for putting cattle out of their land. Oxenbridge apprehended to the contrary: for these things belong to a servant to do without command; but entering and such like ought to be by deed. And Fairfax J. K. B., agreed as to small things; but that a corporation could not have a servant but by deed. And Tremaile agreed with Wood as to small things. Nevertheless, in the same place, the last folio in the same year, it was agreed that a corporation could not vest in them, or divest out of them, any freehold by any person without authority given by deed. Nevertheless several e contrà as to the small things above-mentioned, by reason of the usage and of the great trouble that it would be to the contrary; but not by the law: ideo quære. 7 H.7.9." (d) "Debt upon arrears of account, by the mayor and commonalty of S. against the executors of T. P. their receiver: and they counted that auditors were assigned by the aforesaid mayor and commonalty."

"and by Littleton, The opinion of all the justices of both benches is, that an assignment of auditors by a corporation is good without deed; and the

1842.

ARNOLD

บ.

POOLE.

Franchises (F. 13.); Vin, Abr., Corporations, (K.); Bac. Abr. Corporations, (E.) 3. [Tindal C. J. The principle to be collected from the old cases appears to be, that an appointment under seal was not necessary in The Mayor of the case of officers or servants required to perform acts of trifling import or of immediate necessity. If cattle were damage feasant, and it were necessary to appoint a bailiff under the corporate seal in order to distrain them, the cattle might escape while the deed was preparing.] It is submitted that cannot be the only reason; for in such a case the appointment might, if it were necessary, have been made out after the act was done, so long as it was in existence at the time of pleading. There may be many cases where the presence of an attorney at the time the act is done may be most important, and where there would be neither time nor opportunity to execute a deed for the purpose of retaining him. The only object for which a seal can be required is to testify the fact of the appointment—and in this case that has been done sufficiently by the resolutions of the body. A seal is by no means a protection against an improper appointment-for a seal may be affixed by some subordinate officer, without the assent of the body. In Roe dem. The Dean and Chapter of Rochester v. Pierce (a) a notice to quit, given by a person acting as steward of a corporation, was held sufficient, without evidence that he had an authority under seal from the corporation for that purpose. A corporation, it is true, can only appear by attorney; Case of Sutton's Hospital (b); but in London an attorney for the cor

same of a justification by their command; and the same of a command by a convent, in the time of vacation, to saw their trees and other necessaries. 12 E. 4. 9. 10."

(a) 2 Campb. 96.

(b) 10 Co. Rep. 22, 32b. See also Bro. Abr. Corporations et Capacities, pl. 28., (citing 19 H.6. 80.,) Co. Litt. 66. b., Com. Dig. Pleader (2 B. 2.), and see infrà, p. 897. n. (d).

.1842.

poration is appointed every year in open court without

ARNOLD

seal. [Tindal C. J.
Thetford's case. (a)]

That is matter of record; Mayor of

บ.

POOLE.

It has been held that a stranger

The Mayor of may receive a deed to the use of a corporation, without a letter of attorney from them to receive it; Cooper v. Gooderich (b). Formerly it was thought that a corporation could not be sued for a tort; but that doctrine has been overruled; Yarborough v. The Bank of England (c); and it has been decided that tort will lie against a corporation even for the act of their agent, though not appointed under seal; Smith v. The Birmingham and Staffordshire Gas Light Company (d). It has also been held that a corporation aggregate, strictly partaking of the corporate character, may sue in assumpsit upon an executed consideration; The Barber Surgeons v. Pelson (e), or in debt for use and occupation; The Dean and Chapter of Rochester v. Pierce (g); The Mayor and Burgesses of Stafford v. Till (h); and if such actions are maintainable, the remedy must be mutual. (i) In The East London Waterworks Company v. Bailey (k) it was held that assumpsit would not lie by a corporation upon an executory contract not under seal. The applicability of that doctrine to a manufacturing or trading corporation was, however, questioned in Dunstan v. The Imperial Gas Light Company (1); and it was at length established

(a) 1 Salk. 192., 3 Salk.
103., Holt, 171. S. C. per nom.
Rex v. Chalice, Mayor of Thet-
ford, 2 Ld. Raym. 848., Vide
infrà, p. 897. (d).

(b) Cro. Eliz. 862.
(c) 16 East, 6.

(d) 1 A. & E. 526., 3 N. &
M. 771. And see Maund v.
The Monmouthshire Canal
Company, antè, p. 452; S. C.
5 Scott, N. R. 457., and cases
there cited.

(e) 2 Lev. 252. (g) 1 Campb. 466. (h) 4 Bingh. 75., 12 B. Moo. 260.

(i) See the judgment in Beverley v. The Lincoln Gas Light and Coke Company, 6 A. & E. 829, 841. 2 N. & P. 283, 291.

(k) 4 Bingh. 283., 12 B.

Moo. 532.

(1) 3 B. & Ad. 125.

« ZurückWeiter »