been done from the earliest times, and is a solemn proceeding in the courts at Westminster. The lord mayor comes to the bar of this court attended by the late lord mayor, several members of the corporation, and the recorder, as the mouthpiece of the corporation; the appointment of the attorney is read and is entered on record on the prayer of the recorder (a). This proceeding has been sanctioned by ancient custom. It may rather be said-Exceptio probat regulam. Cresswell J. Could any other corporation come to the court and ask them to do the same thing? Coltman J. In The Mayor of Thetford's case the question was not with regard to the corporation of London, but to another corporation.] The case of London was there referred to as affording a good argument applicable to other corporations, that they might do certain acts by record. It may be that London is so high a corporation that they do formally every year what other corporations do only when necessary. The corporation of London appoints a common serjeant every year (Serviens ad Legem, 241). Other corporations also may surely employ counsel, but is it necessary they should do so [883] under seal? [Tindal C. J. A counsel could not maintain an action against them (a)2. Erskine J. An attorney duly appointed under seal would have the power to retain counsel.] In the same way it may be said that the mayor, being appointed the head of the corporation, may retain either counsel or attorney. In Hartwell v. The Thames Haven Dock and Railway Company (tried before Maule J., at Guildhall, on Saturday, 30th of April, 1842), where the plaintiff, the proprietor of a weekly publication, brought an action against the company, for advertisements inserted in the publication, an objection was raised that it was not shewn the authority to insert them was under seal; but the learned judge overruled the objection. [Tindal C. J. That would come within the exception that a trading corporation may do things necessary for the trade, without giving an authority under seal.] That doctrine has grown up merely from the inconvenience of adhering to the established rule, and not from any impossibility of doing so in the particular cases. There can be no doubt that attorneys do usually act for corporations, without having any appointment under seal. In actions by or against corporations the court never requires it to be shewn that the attorney on the record was appointed under seal.

The bills, Nos. 4 and 8 (supra, pp. 867, 868), arise out of the same proceeding, viz., the suit in Chancery; The Attorney-General v. The Corporation of Poole (2 Keen, 190; S. C. on appeal, 4 Mylne & Cr. 17). The question there was, as to the right of Mr. Parr, the plaintiff's predecessor in the office of town-clerk, to recover a compensation secured to him by bond, which it was alleged was fraudulent. In this instance there was not only a thorough recognition by the town council of [884] the plaintiff's employment, but an express authority and direction to him in the fullest terms to appear in the suit for the corporation, embodied in a resolution of the council. And they afterwards voted him the sum of 1001. on account of his expenses in that suit. The resolution authorizing the mayor to affix the corporate seal to the answer, amounted to a recognition in pais of the plaintiff's employment.

The bill, No. 5 (supra, p. 870), was in respect of an action brought by Mr. Parr on the same bond. The attorney on the record in that action was not the plaintiff, but his London agent. In this case the plaintiff had entered an appearance at the request of the mayor, and the act was confirmed by an express resolution of the council. These are the only bills in dispute.

(a) "The lord mayor's warrant" is in the following form :—

"Michaelmas term, in the

year of the reign of the Queen Victoria.

"London (to wit). The mayor, commonalty, and citizens of London, appoint Henry Belward Esq. to challenge, prosecute, and defend all the liberties, privileges, and franchises of the said city.'

This warrant, engrossed on parchment, is handed to the recorder, who reads it aloud; it is then handed back to one of the masters, who also reads it aloud. The recorder then prays that the warrant may be entered of record; which the Lord Chief Justice orders to be done.

(a) Counsel cannot maintain any action for fees, and they cannot sue a corporation for a salary pro consilio impendendo or for a retainer, unless the salary or retainer be granted by deed.

The senior master; formerly the senior prothonotary.

The expenses in question were all such as the corporation were justified in incurring. and in paying out of the corporation funds; The Attorney-General v. The Mayor, &c. of Norwich (2 Mylne & Cr. 408), Reg. v. The Mayor, &c. of Bridgewater (10 A. & E. 281), Reg. v. Paramore (id. 286), Holdsworth v. The Mayor, &c. of Dartmouth (11 A. & E. 490, 3 P. & D. 308).

Another question arises as to the bills, Nos. 4 and 8, namely, whether the plaintiff can now have a right to recover in respect of a suit which is not yet terminated. It was formerly considered to be the rule that when an attorney once appeared, or undertook to be attorney for another he should not be permitted to withdraw himself; but that it was his duty to proceed in the suit, although his client neglected to bring him money; Tidd's Prac. 26 (9th edit.). But the rule is now settled on the more equitable footing,—that he may abandon the conduct of the suit, and recover his costs up to that time; [885] Rowson v. Earle (Moo. & M. 538), Van Sandau v. Browne (9 Bingh. 402, 2 Moo. & Sc. 543), Lawrence v. Potts (c).

As to the question of appropriation. Money had been paid to the plaintiff on account generally; and the receiver has a right to appropriate a payment to any items of his demand which are due to him in equity and conscience, so long as such appropriation is not inconsistent with any directions given by the party making the payment; Mills v. Fowkes (d).

Channell Serjt., (with whom was Bere), for the defendants. The plaintiff's claim arises out of ten different bills of costs. The arbitrator has made his award in favour of the defendants except as to Nos. 6, 7, 9, and 10. The plaintiff requires the court to come to a different conclusion as to those bills from that at which the arbitrator has arrived. The defendants on the other hand say, that the amount of the verdict ought to be reduced by appropriating the sums that have been paid,-and which the plaintiff has improperly appropriated to Nos. 2 and 3,-to the further reduction of the four first-mentioned bills. The arbitrator was empowered to make interlocutory awards; and the one under consideration is final only as to the cause of action, and not as to all matters in difference. Suppose, then, the court should be of opinion that the action cannot be maintained in respect of the charges in Nos. 4 and 8, by reason of there having been no notice of the plaintiff's intention to discontinue his conduct. of the suit, he would still have it in his power to give such notice hereafter, and would not be concluded from recovering upon that ground.

[886] The bill No. 1 has been abandoned. With regard to the others in dispute, the arbitrator has expressly found that there was no retainer of, or contract with, the plaintiff under the seal of the corporation. And the first question is, whether in the absence of such a retainer or contract, the plaintiff is entitled to recover.

It is not necessary to consider the old authorities, which are uniform in establishing the rule, that a corporation cannot contract except under seal. Upon that rule two exceptions have been grafted, within one or the other of which it is imperative upon the plaintiff to bring his case. The first exception-which appears to be almost coeval with the rule-is, that in some trifling matters a corporation may make certain appointments without deed. The exception is thus stated in Bac. Abr. Corporations (E.) 3. "But a corporation may employ one in ordinary services without deed, as a butler, cook," &c.; and then it is added, "but not to appear for them in an assize, or any other act which concerns their interest or title" (a), which latter sentence is an authority against the plaintiff in the present case. The second exception is the creation of modern times, and refers only to trading corporations, which have been brought into life, for the specific purpose of some particular trade. This exception was not thoroughly admitted in The East London Water Works Company v. Bailey (4 Bingh. 283, 12 B. Moo. 532); but that case was distinctly overruled, and the exception in question firmly established, by the subsequent cases of Beverley v. The Lincoln Gas Light and Coke Company (6 ibid. 829, 2 ibid. 283), Church The Imperial Gas Light and Coke Company (ibid. 846, 3 ibid. 35); in which cases the distinction as to executory and executed [887] contracts, was overruled with respect to such trading companies. In all these modern cases the ancient rule is laid

(c) 6 C. & P. 428. See also ante, vol. iii. p. 484, n., and cases there cited. (d) 5 N. C. 455, 7 Scott, 444. See also Williams v. Griffith, 5 M. & W. 300. (a) Citing 1 Vent. 47; Horn v. Ivy, 1 Mod. 18, S. C. See also the case of Assize of fresh Force brought in London, Panel v. Moor, &c., Plowd. 91.

down, and the new principle adopted is clearly mentioned as an exception to that rule. It is quite an error, therefore, to suppose that the old rule has been abrogated. It was recognised and acted upon in this court in Gibson v. The East India Company (5 N. C. 262, 7 Scott, 74); where it was held that the retiring pension of a military officer of the East India Company, granted by the company, but not by deed, did not upon his bankruptcy pass to his assignees, as it could not have been enforced by the officer against the company. The previous cases of Beverley v. The Lincoln Gas Light and Coke Company, and Church v. The Imperial Gas Light and Coke Company were there brought under the review of the court; and the doctrine thereby established was upheld; but on the same ground, of its being an exception to the general rule. The rule was again recognised by the court of Exchequer in Mayor, &c. of Ludlow v. Charlton (6 M. & W. 815), which has been referred to by the other side. That case was not decided on the narrow ground that the contract related to land; but upon the general application of the old rule. In delivering the judgment of the court, Rolfe B. says, "Before dismissing this case, we feel ourselves called upon to say, that the rule of law requiring contracts, entered into by corporations, to be generally entered into under seal, and not by parol, appears to us to be one by no means of a merely technical nature, or which it would be at all safe to relax, except in cases warranted by the principles to which we have already adverted. The seal is required, as authenticating the concurrence of the whole body corporate. If the legislature, in erecting a body corporate, invest any member of it, either expressly or impliedly, with authority to [888] bind the whole body by his mere signature, or otherwise, then, undoubtedly, the adding a seal would be matter purely of form, and not of substance. Every one becoming a member of such a corporation, knows that he is liable to be bound in his corporate character, by such an act; and persons dealing with the corporation know, that by such an act, the body will be found. But in other cases, the seal is the only authentic evidence of what the corporation has done, or agreed to do. The resolution of a meeting, however numerously attended is, after all, not the act of the whole body. Every member knows that he is bound by what is done under the corporate seal, and by nothing else. It is a great mistake, therefore, to speak of the necessity for a seal, as a relic of ignorant times. It is no such thing: either a seal, or some substitute for a seal, which by law shall be taken as conclusively evidencing the sense of the whole body corporate, is a necessity inherent in the very nature of a corporation; and the attempt to get rid of the old doctrine, by treating, as valid, contracts made with particular members and which do not come within the exceptions to which we have adverted, might be productive of great inconvenience." The rule for the necessity of a seal has been carried so far, that in Yarborough v. The Bank of England (16 East, 6), it was held, in an action of trover against a corporation, that the court would, after verdict for the plaintiffs, presume that an authority to do the wrongful act complained of had been given under seal.

The present case falls within neither of the exceptions mentioned. The municipal corporation of Poole is obviously not a trading corporation; and the appointment of an attorney cannot be considered as a trifling matter.

It is said that a corporation may appoint an attorney by matter of record, as in the instance of the city of [889] London. But that example, as has been observed by the court, does not advance the argument; for that is one of the particular privileges of that city, like that of certifying their customs by their recorder, a privilege which other corporations have not; Day v. Savadge (Hob. 85 (87)). The recorder's certificate (b) is in the nature of a writ (c), and if it be false, no action will lie against the recorder, as he is but the mouthpiece of the corporation, but the action must be brought against the mayor and aldermen; Bac. Abr. Customs of London (citing Hobart, ut supra). [Tindal C. J. In the old forms of appearance by attorney it was not stated that he was appointed by deed, even when the action was against a corporation.] The appearance is only recorded by the attorney for a particular purpose. If an attorney, without authority acts for another, he may be punishable, but the court do not require him to shew his authority. But when he sues for costs, he is then bound to shew a retainer. It is said to have been suggested by Lord Tenterden, that an attorney ought always to have a retainer in writing (e); but at all events he is bound to shew some retainer

(c) Rather of a return.

(b) See Crosby v. Hetherington, post.
(e) In Owen v. Ord, 3 C. & P. 349. See also 1 Lill. Prac. Reg. 134, 137.

any

retainer

to entitle him to recover; and the question here is, whether there can be by a corporation, otherwise than by deed. And certainly if any one appointment more than another requires to be under the corporate seal, it would appear to be that of an attorney, who has of necessity so much authority delegated to him.

With regard to the bill No. 2, the arbitrator has found that there was no retainer, and that the plaintiff had no right of action in respect thereof; but the question is left for the court to decide, whether the town council could bind the corporation funds by the resolu-[890]-tions that are set out in the award. Assuming the necessity of an appointment under seal, there was clearly no valid contract. There was not even a resolution by the council previously to the work being done in respect of which the charges are made. The resolutions are merely as to the payment of the plaintiff's bill. The sixty-ninth section of the 5 & 6 W. 4, c. 76, points out the manner in which meetings of the town council are to be summoned; and unless that course was followed, a resolution passed at a meeting would be of no avail. [Tindal C. J. Where the arbitrator says it was resolved by the town council, must we not take it that they were properly summoned (a)?] Admitting that to be so, still there is no resolution in this particular instance, authorising the employment of the plaintiff. There is only an order from the mayor in the first instance, and the subsequent resolution as to the payment, which is relied upon as a ratification. As town-clerk, the plaintiff had the custody of the voting papers, and it was his duty to permit any burgess to inspect them, on payment of 1s. for every search, under sect. 35 of the 5 & 6 W. 4, c. 76. A mandamus was moved for to compel the plaintiff to permit an inspection of these papers; the costs were incurred in opposing that rule; but the plaintiff was bound to defend himself and pay the costs out of his own pocket, especially as he had a salary allowed him as town-clerk. An overseer is in certain cases bound to produce the poor-rate (see Wethered v. Calcutt, ante, 566); and a mandamus would lie against him if he neglected his duty in doing so; but could he charge upon the poor-rate his expenses of opposing the rule? The plaintiff, therefore, having no legal claim to these costs, and the corporation being under no legal liability to pay them, the subsequent resolution to [891] pay him is of no value. [Cresswell J. Does it not admit that if there could be a binding retainer there has been one?] It is submitted that such is not its effect. The plaintiff in fact was acting as his own client and his own attorney. The supposed ratification by the town council could not create a liability that did not exist previously.

As to the bill No. 3, the plaintiff has already received the costs as taxed between attorney and client; and there is nothing to shew a contract to pay him any further costs.

As to Nos. 4 and 8, it may be admitted, that as far as the town council can, by their resolutions, bind the corporation, the corporation would be bound in respect of the charges in these two bills. But the question would still remain as to the right of the plaintiff to recover, the suit not being determined. There is no doubt that an attorney is not compelled, in all cases, to conduct a suit or action to its end, and that he may put himself in a position to recover his costs pending the suit. But the general contract arising out of his retainer is, to conduct the suit to the end; and he can only vary that contract by giving a regular notice of his intention not to continue to act as attorney. That principle is laid down in Harris v. Osbourn (2 C. & M. 629, 4 Tyrwh. 445), and indeed in the cases cited upon this point on the other side.

In No. 5 there was a resolution of the town council previous to the employment of the plaintiff; but that, for the reasons before stated, it is submitted does not amount to a valid retainer.

As to the reduction of the verdict:-that turns on the right of the plaintiff to appropriate the money he has received to the payment of the bills Nos. 2 and 3. But if those bills are not recoverable, the plaintiff has no such right. A party can only appropriate a pay-[892]-ment where a legal liability to make the payment exists on the part of the debtor, or at least has at some time existed; Wright v. Laing (3 B. & C. 165, 4 D. & R. 783).

Bompas Serjt., in reply. The distinction between trading corporations and others does not appear to be well founded. The Mayor of Stafford v. Till was the case of a municipal corporation. There may be a good reason why an act relating to the lands

(a) Or that all were present; in which case the summons would be immaterial.

of corporations should require the solemnity of a seal, as was the case in The Mayor of Laudlow v. Charlton. So as to what is said in Bac. Abr. Corporations (E) 3 as to authorising a party to appear for them in an assize. But it is nowhere said that they cannot, except under seal, appoint an attorney to appear for them in an action. It is stated in Tidd's Practice (p. 84, 6th edit.) that attorneys were anciently appointed in court, when actually present; but that they are now usually appointed out of court by warrant (vide infra, p. 897, n. (c)), which should regularly be in writing; but an authority by parol is sufficient to support a payment. Gibson v. The East India Company was decided upon the ground that the pension was in the nature of half pay. From the case of Rex v. Arnold it appears that it was the duty of the plaintiff to refuse the inspection of the papers; and surely he ought to be paid for resisting the mandamus, especially as the town council resolved that it should be resisted. As to the plaintiff's right to recover his expenses before the termination of the proceedings in Chancery, no injury can arise to the defendants from the demand; although the suit is going on, the bill has been called for by the defendants. In Wadsworth v. Marshall (2 C. & J. 665) it was held that an attorney who has undertaken a cause is not bound to proceed without adequate [893] advances from time to time by his client, for expenses out of pocket; and therefore that the court would not compel an attorney, even after notice of trial, to carry the cause into court, unless the client supplied him with sufficient funds to pay the expenses out of pocket thereby incurred. [Erskine J. The distinction made in that case seems to be, that an attorney may say he will not go on with a suit without funds to meet expenses out of pocket; not that he can demand payment for his services.]

Cur. adv. vult.

TINDAL C. J. now delivered the judgment of the court.

This was an action of debt brought by an attorney who was town-clerk and clerk of the peace of the borough of Poole, to recover from the corporation of the mayor, aldermen, and burgesses of Poole, the amount of ten several bills of costs, numbered from 1 to 10.

By an order of nisi prius the cause was referred to an arbitrator, who found, as to all the bills except those numbered 6, 7, 9 and 10, that the plaintiff had no retainer under the common seal of the corporation, and decided that he could not recover. As to the bills numbered 6, 7, 9 and 10, he found that the business therein mentioned was done by the plaintiff in his capacity of town clerk and clerk of the peace, and directed that a verdict should be entered in his favour for the sum of 7181. 9s. 7d., which he found to be due in respect of those bills. He also found, that after all the bills had been delivered, money was paid on account, generally, by the corporation, and that the plaintiff had applied a portion of it to the bills numbered 2 and 3; and he stated specially the facts upon which his award proceeded, and submitted for the opinion of the court the following questions:-First, whether the facts [894] stated in the award, furnished sufficient evidence of a retainer of the plaintiff, so as to enable him to maintain this action in respect of the charges contained in the bill No. 1 against the defendants. Secondly, whether, in the absence of any authority under the seal of the corporation, the facts stated furnished evidence of a valid contract or retainer, binding the corporation, so as to enable the plaintiff to maintain this action for the whole, or any, of the bills No. 2, 3, 4, 5 and 8, against the defendants. Thirdly, whether the charges in the bills No. 1, 2, 3, 4, 5 and 8 were matters for concerning which the corporation could enter into a valid contract or give a retainer binding the funds of the corporation, so as to enable the plaintiff to maintain this action in respect of such bills, or any of them, against the defendants. Fourthly, whether the plaintiff had any right of action against the defendants to recover the charges contained in the bills Nos. 4 and 8, the suit to which they refer being undetermined. Fifthly, whether the plaintiff had a right to appropriate the payment of two sums, viz. 1411. 11s. 10d. and 821. 7s. 1d., part of the said sum of 3501., to the bills No. 2 and No. 3 respectively. Of these questions, however, it is only necessary to determine those relating to the sufficiency of the retainer, and the application of the money paid on account.

The case was elaborately argued in last Easter term, when it was conceded, and rightly conceded, that, in respect of the bill No. 1, amounting to 15911. 1s. 4d., the action was not maintainable, there being no sufficient evidence of a retainer of the plaintiff by the corporation. But, as to the residue of the bills disallowed by the arbitrator, it was contended, that the facts appearing on the face of the award were