be granted where the contract involves the performance of a duty, in which the public at large, and the plaintiff himself personally, are interested.(a) Illustration. The commissioners under the Tunstall Improvement Act became indebted to Ward and Son, architects. By a provisional order the commissioners ceased to exist, and their property was transferred to the Tunstall Local Board, who were empowered to satisfy all debts contracted by the commissioners, out of such transferred property, and to charge any deficiency on the rates. There was a deficiency, and the Wards sued the board (in the name of their clerk), claiming a mandamus to compel the board to raise a rate to satisfy their claim. It was held that they were entitled to have the writ to issue.(b) IV. An injunction to restrain the breach of a contract will be granted, where there is an agreement to abstain from doing a particular thing.(c) Illustration. Dr. Martin and Lady Arabella Howard, his wife, had a house near the parish church of Hammersmith, and were greatly disturbed by the ringing of a five o'clock bell. They agreed with the vestry to build a cupola, and erect a clock to the church, on the terms that the bell should no longer be rung. The cupola was built, and the clock erected, and the bell ceased to ring. After two years, one Nutkin became churchwarden, and started the bell again, upon which an injunction was sought, and granted, to restrain the vestry from ringing the bell in breach of the agreement. (d) (a) Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, s. 68; Judicature Act, 1873, 36 & 37 Vict. c. 66, s. 25, sub-sect. 8. (b) Ward v. Lowndes, 28 L. J. Q. B. 265. (c) Cf. Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, s. 79, (d) Martin v. Nutkin, 2 P. Wms. 266. CHAPTER XII. CONTRACTS WHICH MUST BE UNDER SEAL. [A DEED must be— 1. In writing, to express the contents. 2. Sealed with the seal of the parties, to express their consent. [NOTE. Signing is not necessary. (e)] 3. Delivered to the party, in whose favour it is made, to make it binding or perfect. [NOTE. If delivered to a stranger until certain con ditions be performed, and afterwards to be delivered to the party, to whom it is made, it is called an "escrow"; that is "a mere writing," escriver.] ] I. An executory promise with no consideration must, in order to be valid, be made by deed. For if Jones promises by parol to paint Smith's portrait for nothing, Smith cannot enforce the contract. But if Jones has covenanted to do so in a deed he will be bound. For II. A gift, if there has been no transfer of the thing given. if not made by deed it can be revoked at will.(ƒ) III. Feoffments. (g) That is, grants of land in fee simple by the delivery of seizin and possession of what is given. IV. Grants and transfers of land must, at common law, be made by deed. V. Grants and transfers of incorporeal hereditaments. As, a right of common, a seignory, or a rentcharge, must at common law be made by deed. VI. Exchanges of land. (g) That is, the mutual granting of equal interests, the one in exchange for the other. (e) Shep. Touch. 56. (f) See Cochrane v. Moore, 25 Q. B. D. 57 (C. A.). VII. Partitions of land. (a) That is, the dividing the lands of joint-tenants, tenants in common, and co-parceners, so that they may each hold their own in severalty. VIII. Surrenders of land. (a) That is, the yielding up of land and the estate a man has therein to another, who has a higher and greater estate in the same. IX. Assignments of leaseholds. (a) X. Leases which are required to be in writing by sect. 1 of the Statute of Frauds (see Appendix). That is, leases for a longer period than three years.(a) XI. Transfers of patent rights. For, what can only be created by deed, can only be transferred by deed. XII. Transfers of ships and shares of ships must be made by bill of sale, by the Merchant Shipping Act, 1854.(b) XIII. Transfers of shares in joint stock companies incorporated by Act of Parliament, by the Companies Clauses Con solidation Act, 1845.(c) XIV. Contracts with an urban sanitary authority, if over £50 in value, by the Public Health Act, 1875.(d) XV. Mortgage Debentures issued by land companies, by the Mortgage Debenture Acts, 1865, 1870.(e) XVI. A power of attorney to execute a deed. That is, an authority to another to execute a deed as agent. XVII. Contracts made by a corporation. For the only means a corporate body has of authenticating its contracts is by affixing its seal. Illustration. The guardians of Bethnal Green Union advertised for a clerk. One Austin applied, and entered on his duties, which consisted of keeping accounts of a somewhat complicated character. He was very (a) 8 & 9 Vict. c. 106, s. 3. (e) 28 & 29 Vict. c. 78; 33 & 34 Vict. c. 20. shortly afterwards dismissed, and sued the guardians for breach of contract. It was held that, as there was no agreement under seal, he could not maintain his action.(f) § EXCEPTIONS 1. Where power is specially given to a trading corporation, by the charter, letters patent, or statute, to which it owes its existence, to enter into contracts by certain of its own officers. 2. In the case of corporations, or companies, constituted for the purpose of trading, which may enter into all contracts of ordinary occurrence in their respective trades, without limit as to amount. Illustration. The South of Ireland Collieries Company, incorporated under the Companies Act, 1862, for the working of certain collieries, contracted with Waddle for the supply by him to them of a pumping engine and machinery. In an action by the company for not delivering the engine, &c., it was held, that the action was maintainable, although the contract was not under seal.(g) 3. Where the contract is for (i) The performance of insignificant acts. (ii) Of acts of frequent recurrence. (iii) The carrying out of the very purposes for which such corporations were created. Illustration. The Imperial Gaslight and Coke Company agreed to supply Church with gas at £12 16s. per annum. Afterwards Church refused to have the gas, and the company sued him for not accepting it. (f) Austin v. The Guardians of Bethnal Green Union, L. R. 9, C. P. 91. (g) South of Ireland Collieries Company v. Waddle, L. R. 3, C. P. 463. The court held that the company could maintain their action, though the contract was not under seal. (a) 4. Where the consideration is executed, and the corporation have got the benefit of the contract. Illustration. Nicholson supplied coals to the guardians of the Bradfield Union. The coals were used. It was held that he could sue the guardians for the price of the coals, though the agreement, under which he supplied them, was not under seal.(b) 5. Where one has acted on the faith of a contract with a corporation, which is not under seal, and has incurred expense in so doing. Illustration. The Corporation of Seaford passed a resolution, by which they agreed to let Crook a piece of foreshore for three hundred years. Crook entered, and built a sea wall and a terrace. Afterwards the corporation gave him notice to quit, and brought ejectment, relying on the agreement not having been under seal. The court restrained the action on Crook's application, and decreed specific performance of the contract. (c) (a) Church v. Imperial Gas Company, 6 A. & E. 846. |