replication would be good; as it must be taken that either the agreement itself, or the appointment of the agent, was under seal, if that be necessary to give validity to the agreement. In The Dean and Chapter of Windsor v. Gover (1), to debt for the rent of tithes, the defendant pleaded that he assigned the premises to one J. B., and that the plaintiffs had notice of the assignment, and received rent from J. B. as their tenant; *it was objected on the part of the plaintiff's that the plea was bad for not showing that such acceptance was by deed under the common seal. "But to this it was answered that if a deed be necessary, it is implied in the plea; for an acceptance being pleaded, every thing that makes it to be a good acceptance is implied, for otherwise it is no acceptance at all." And several cases are there cited to the same effect, and others are collected in a note by Serjt. Williams (2). So, in Tilson v. The Warwick Gas Light Company (3), which was an action of debt for work and labour against an incorporated Company, BAYLEY, J. said: "I think, that if a deed were necessary, we are justified, upon general demurrer, in presuming that there was such deed, and (in saying) that the neglect to set out the deed is mere matter of form;" and HOLROYD, J. expressed himself to the same purport. The first point in this case is the same as that in Arnold v. The Mayor of Poole (4); and the cases there cited are authorities for the plaintiffs here; especially Beverley v. The Lincoln Gas Light Company (5), Church v. The Imperial Gas Light and Coke Company (6), The Mayor, &c., of Ludlow v. Charlton (7), The Mayor, &c., of Stafford v. Till (8), and The Southwark Bridge Company v. Sills (9). These cases establish that, in reference to actions by or against corporations, there is no difference between assumpsit and debt, or between contracts executory and executed. It may be objected that this rule is applicable only to trading Companies established under Acts of Parliament; but that observation will not apply to the cases of The Mayor of Stafford v. Till and The Dean and Chapter of Rochester v. Pierce (10). * He then proceeded to argue that the rejoinder to the replication to the second plea by Robertson was bad, as being an informal (1) 2 Wms. Saund. 302. (2) 1 Wms. Saund. 305 a, n. (13). (3) 28 R. R. 529 (4 B. & C. 962; 7 Dowl. & Ry. 376). (4) 61 R. R. 664 (4 Man. & G. 860). (5) 45 R. R. 626 (6 Ad. & El. 829; 2 N. & P. 283). (6) 45 R. R. 638 (6 Ad. & El. 846; 3 N. & P. 35). (7) 55 R. R. 794 (6 M. & W. 815). (9) 2 Car. & P. 371. (10) 11 R. R. 673 (1 Camp. 466; 2 Camp. 96). MONGERS' COMPANY C. THE FISH- special traverse of the allegation that the contract, or the appointment of the agent, was under seal. (The argument upon this point is not reported, as the judgment of the COURT proceeded upon other grounds. The learned Serjeant cited Stephen on Pleading (1) and Pearson v. Rogers (2).) ROBERTSON, [ *169 ] The third plea is pleaded to all the breaches in the first count; and, unless it is an answer to each of the three breaches there set out, it is bad: Gray v. Pindar (3). It is clearly no answer to the third breach for the non-payment of 1,000l.; and that part of the plea which states that the bill was not as perfect and beneficial as it might have been made, is no answer to the declaration, since the declaration alleges that both parties were to be bound by the decision of the referee, and that he settled the bill. The fourth plea, which is pleaded to the same breaches as the third, states that the plaintiffs did not continually use all reasonable endeavours to pass the bill. The plaintiffs in the declaration have alleged certain acts on their part to promote the bill. The language of this plea is consistent with the neglect to perform some only of the acts stipulated to be done; but, that would be a breach of the agreement affecting part only of the consideration; such part not amounting to a condition precedent. The remedy for such breach would be by action. It would be like the case of the action on a covenant in a deed whereby the plaintiff conveyed an estate with the stock of negroes upon it; where a plea, that the plaintiff was not legally possessed of the negroes, was held bad, on the ground that otherwise the fact of any one negro not being the property of the plaintiff would bar the action (4). The fifth plea states that the plaintiffs presented a petition to the House of Lords in favour of other parties interested in the bill. That, however, would be no answer to this action; and the plea is open to the like objections as the fourth. The pleas by the other defendants, Booth and Staines, raise substantially the same questions; and the same arguments are applicable to them. R. V. Richards for the defendant Robertson: The main question is, whether it was competent for the plaintiffs, (1) Page 207, 4th edit. (2) 9 Ad. & El. 303; 1 P. & D. 302. (4) Boone v. Eyre, 2 R. R. 768 (1 in Campbell v. Jones, 3 R. R. 267 (6 MONGERS' 2. being a corporation, to enter into a contract not under seal; or THE FISHwhether they could take advantage of any contract made on their behalf by an agent whose appointment was not under seal. The ROBERTSON, agreement in question is one that affects the title to lands, and that fact makes an essential difference between this case and those principally relied upon on the other side. The Mayor of Ludlow v. Charlton (1) is an important authority against the plaintiffs. In that case, although there had been a formal entry of a resolution in the books authorising the contract attempted to be set off by the defendant, and although the contract had been executed, yet, as it affected lands of the corporation, it was held that it was invalid as not being under the corporate seal. (TINDAL, Ch. J.: That would have been a very strong authority in the case of an action brought against these plaintiffs upon this agreement.) It is equally strong here, since in every contract there must be mutuality. (MAULE, J.: The contract here is executed (2).) So it was in The Mayor of Ludlow v. Charlton. (CRESSWELL, J. Upon what ground is it that there must be mutuality in a contract? Is it not that there must be a good consideration? And have not the defendants here got a good consideration.) It is submitted that they have not; for they never were in a situation to sue the corporation; and unless the corporation could be sued in assumpsit, they cannot sue the defendants. The other side (MAULE, J.: That is the very point in the case. do not contend that the corporation could have been sued.) This is an action on a precise contract, and there is no case to show that one party to such a contract has the power to sue, and not the other. (TINDAL, Ch. J.: An infant can sue on a promise of marriage, though he cannot be sued upon it (3).) In that case the contract is merely voidable and not void. (1) 55 R. R. 794 (6 M. & W. 815). (2) The plaintiffs did not declare upon the executed contract, but upon the antecedent executory contract; (3) See Holt v. Clarencieur, 2 Stra.937. [ *170 ] THE FISH- v. ROBERTSON. [171] The necessities of modern times have introduced an extension as to the liability of corporations; but the relaxation of the ancient rule has obtained only in favour of trading Companies. None of the cases cited, therefore, are applicable to the present. Neither do the more ancient exceptions apply; as this contract does not relate to matters of a trifling nature, or of constant occurrence. This is a contract affecting the lands of the corporation. The general rule as to the nature of contracts binding upon corporations is laid down in 1 Blac. Com. 475 (1) and Co. Litt. 94 b. And in Frevill v. Ewbancke (2), it is said by Coke that no action lies at common law against a dean and chapter upon a promise made by them, because a corporation cannot be bound without deed. If one party is not bound by a contract, the other is not. Unless, therefore, the Court shall be prepared to overrule The Mayor of Ludlow v. Charlton, there is an end of this case. The cases relied upon on the other side are distinguishable from the present. In Bowen v. Morris (3) the contract was entered into by a mayor on behalf of himself and the corporate body; and upon the question whether he could sue in his individual capacity, it was held that he could not. In Laythoarp v. Bryant (4), the question turned purely upon the construction of the Statute of Frauds, and had no reference to a contract by a corporation. The same remark applies to Kennaway v. Trelearan (5). Beverley v. The Lincoln Gas Light Company (6), Church v. The Imperial Gas Light and Coke Company (7), and that class of cases were all cases of trading Companies, which have been introduced of late years by the Legislature, for the purpose of trade alone; they are not corporations in the proper sense of the term. The sound reason why the general principle is not applicable to them will be found in the case of Church v. The Imperial Gas Light and Coke Company. The Dean and Chapter of Rochester v. Pierce (8), The Mayor of Stafford v. Till (9), and The Mayor and Burgesses of Carmarthen v. Lewis (10), were all actions for use and occupation, and were decided upon the grounds explained by Lord ELLENBOROUGH in the first mentioned case; namely, that an action for use and occupation under the statute 11 Geo. II. c. 19, s. 14, does THE FISHnot imply a demise by deed. (MAULE, J.: Those cases were decided upon the plea of nonassumpsit. *In this case the plea is that there was no agreement. The declaration states an agreement; and if the plaintiffs could not agree, except by deed, that allegation in the declaration may be held, on general demurrer, to mean that the plaintiffs promised under seal; and if Towse agreed, and the plaintiffs afterwards under seal promised to perform the agreement, must not that now be taken to be a good consideration ?) The declaration states an agreement in writing; and contains merely the averment of a promise on the part of the plaintiffs to perform that agreement. In Roe d. Dean and Chapter of Rochester v. Pierce (1), the authority of the agent to give the notice to quit had been fully recognised by the corporation. Marshallv. Queenborough (2), and Edwards v. The Grand Junction Railway Company (3), show that if parties are obliged to have recourse to a court of equity, it is because no relief is to be had at law. In De Grave v. Monmouth (4) the contract was for weights and measures, a small matter, falling within the old recognised exception. And the consideration there was executed. It is contended, indeed, that the consideration in this case is executed; but that is not so. The contract declared upon is executory; and although in subsequent averments it is alleged that the contract was performed, that will not alter the original nature of the contract. The subsequent ratification is matter of evidence; but it is clear that the original contract is executory. The cases cited as to the ratification and adoption of the act of an agent have no application; for the present contract can only be ratified as an executory contract. In Whitehead v. Taylor (5), the point in question was as to the power of executors to ratify a distress for rent *made in the name of the testator, and by his direction, but after his death; and the ratification was held good. Perhaps that case may be doubtful law; but at any rate it is very distinguishable from the present. The act had been authorised by the testator, and the ratification was after his death. (CRESSWELL, J. It does not appear in that case that any positive act was done by the executor after the death of the testator.) (1) 11 R. R. 673 (2 Camp. 96). (2) 24 R. R. 220 (1 Sim. & St. 520). (3) 43 R. R. 265 (1 My. & Cr. 650). (4) 4 Car. & P. 111. (5) 50 R. R. 385 (10 Ad. & El. 210; 2 P. & D. 367). MONGERS' COMPANY v. ROBERTSON. [ *172 ] [173] |