Chap. 2.

Of the corporate seal and acts.

CHAPTER II.

Of the Corporate Seal; and herein of Corporate Acts, that must be done by Deed.

Another incident of a corporation is the having and using a common seal, by which the body corporate is considered to express their aggregate intention, as they cannot do so by any personal act or oral discourse. The individual members, indeed, may manifest their private assent to any act by words, or by signing their names, but that will not bind the corporation; it is only the affixing of the seal which unites the several assents of the individuals who compose the community, and makes one joint assent of the whole. (Dav. Rep. 44, 48.)

It is not necessary that there should be any clause in the charter of incorporation empowering them to use a seal; as it is a necessary incident to the existence of a corporation that it should have one, and as soon as the corporation is established the body may make and use what seal they will. (Sutton's Hospital (Case of), 10 Rep. 30.)

It is laid down that a corporation may do acts upon record without their common seal, but not acts in pais (Thetford (Mayor's) Case, 1 Salk. 192, S. C., Holt, 171); that is to say, that although in all matters which are not of record, any act, in order to bind the corporate body, must be witnessed by the affixing of their common seal, yet a corporation will be bound by any admission made upon record, as in the pleadings in the course of a cause, although such admission is not under their scal.

Generally speaking, when the corporate seal appears affixed to a document it will be presumed to have been regularly so affixed; and the party who impugns its legality has the burden cast upon him of showing in what manner the annexation was illegal or irregular. Skinn. 2.)

(See

Where the corporate seal has been affixed to an instru- Chap. 2. ment without the authority of the corporate body, it is of the corpoinvalid, and may be repudiated by them.

Mod. 423.)

(Anon., 12 rate scal and

But where

The due affixing of the corporate seal is sufficient to give validity to an instrument without a formal delivery. (See 1 Ventr. 257; 1 Lev. 46; Carth. 160.) the corporate seal was regularly attached to a conveyance, but at the same time the clerk of the corporation was ordered to retain the conveyance in his hands until some accounts were settled with the purchasers, it was held that the conveyance did not pass the estate. (Derby Canal Company v. Wilmot, 9 Ea. 360. See also Hill v. Manchester Waterworks Company, 5 B. & Ad. 866; Clarke v. Imperial Gas Company, 4 B. & Ad. 315.)

It appears that if a regular corporate resolution has been passed for granting an interest in the corporate property, and upon the faith of it expenditure has been incurred, the Court of Chancery will compel the corporation to make a legal grant in pursuance of the resolution, although it is not under the corporate seal. (Marshall v. Queenborough, 1 Sim. & St. 520.)

The annexation of the corporate seal being necessary for the purpose of expressing the assent by the corporate body to any act or thing, it follows that any corporate act, or at least any act of importance, must be by deed. (Bro. Ab. Corporation, 63; Y. B. 21 E. 4. 13.)

Thus a corporation could not, even before the statute of frauds, grant or surrender a lease without deed (Plowd. 150); yet they may make such surrender by operation of law, as by accepting a new lease. (See 10 Rep. 67.)

So, the appointment of a person to do any act which concerns the real property of the corporation, or by which their rights are to be asserted, must be by deed (Bro. Ab. Corporation, 54, 56; Y. B. 7 E. 4. 14; 12 H. 7, 25, 26; 16 H. 7. 2; 13 H. 8. 12); such, for example, as the appointment of an attorney to make or to take livery of seisin (Bro. Ab. Corporation, 51), or to conduct (Arnold v.

acts.

Of the corpo

acts.

Chap. 2. Poole (Mayor, &c.), 4 M. & G. 860) or appear in a suit (see Plowd. 91), or to manage the affairs of the corporarate seal and tion (Arnold v. Poole (Mayor, &c.), 4 M. & G. 860); and an attorney not appointed under seal cannot recover for business done, although the council of the borough had passed a resolution directing that the business should be done by him, and was cognizant of its progress. (Arnold v. Poole (Mayor, &c.), 4 M. & G. 860.)

So an agreement not under seal by a corporation with one of its officers, for an increase of the salary of an office retained by him, as a compensation for the loss of another office of which he was deprived under the Municipal Corporation Act, though upon an executed consideration, is not binding upon the corporation. (R. v. Stamford (Mayor, &c.), 6 Q. B. 433.)

But an attorney to a corporation may be appointed in a court of record, without any other writing than the record itself, because the corporation would be estopped by the record from repudiating their own acts. (See 1 Salk. 192, and Arnold v. Poole (Mayor, &c.), ut supra.)

A corporation may prove a debt in bankruptcy, by an affidavit of a person authorized by a general power of attorney, and they may vote in the choice of assignees by a person authorized thereto by a special power of attorney, such powers of attorney being under the corporate seal. (Bank of England (Ex parte), 1 Swanst. 10.)

A presentation of a clerk to a living by a corporation must be by deed. (Bro. Ab. Corporation, 83.)

A corporation cannot command their bailiff to enter into land of their own leasing for years, for a condition broken, without deed. (1 Ro. Ab. 514. And see Dy. 102, pl. 83.) Nor can they, without deed, appoint a person to seize goods as forfeited to their use. (Horne v. Ivy, 1 Vent. 47; S. C. 1 Mod. 18; Cit. 3 P. Wms. 424.)

Generally speaking, the appointment of all subordinate corporate officers, such as bailiffs (see Vavasor's Case, Moo. 552), &c., must be by deed; but when once appointed, they may perform any act incident to the

nature of their office, without any special commandment Chap. 2. by deed or otherwise. (Y. B. 4 H. 7, 6, 13, 17; 7 H. Of the corpo7. 9.)

So in a case where, in pursuance of a resolution passed at a meeting of a sub-committee appointed for the management of the business, and whose report was adopted by the council, the plaintiff was employed as a witness on an arbitration to support the evidence of the defendants' valuer; and where no appointment of the plaintiff under seal was made; but he acted as a witness under the instructions of the valuer who was so appointed; it was held that in an action brought by the plaintiff against the corporation for his services as witness he could recover. (Andrews v. The Mayor, &c., of Ryde, L. R. 9 Ex. 302.)

In a recent case (decided in Queen's Bench Division, 5th May, 1882) it was held that a council may apply their funds to pay a just debt, although the contract was not under seal. (The Queen v, The Mayor, &c., of Norwich,)

When a council is acting as an urban sanitary authority there must be a strict compliance with the provisions of the Public Health Act, 1875, (Eaton v. Baskers and Others and the Mayor of Grantham, 44 L. T. (N.s.) 703.)

And an appointment by deed is not necessary in cases where the acts to be performed are of daily occurrence, and too insignificant to be worth the trouble of affixing the common seal, such as the employment of a butler.

The defendants, a municipal corporation, were possessed of a dock, of which they allowed the use to ships needing repairs, under certain printed regulations. The plaintiff entered into a parol agreement for the use of the dock upon the terms of such regulations. It was held that the contract need not be under the seal of the corporation.

The plaintiff supplied coal to the defendants, the guardians of a poor law union, under an agreement not under seal. The defendants received and used some of the coal. It was held, that as the goods had been supplied and accepted, and were such as must necessarily be supplied

rate seal and

acts.

rate seal and acts.

Chap. 2. for the very purposes for which the defendants were incorOf the corpo- porated, the defendants were liable, although the contract was not under seal. (Wells v. Mayor, &c. of Kingston-uponHull, L. R. 10, C. P. 402; Clarke v. Cuckfield Union, 21 L. J. (Q. B.) 349; Nicholson v. Bradfield Union, L. R. 1 Q. B. 620.

So, where the act to be done requires to be executed immediately; as where cattle are to be distrained damage feasant, which might escape before the formality of executing a deed could be gone through (Manby v. Long, 3 Lev. 107); in such a case the verbal authority of the mayor would be sufficient. (Randall v. Deane, 2 Lutw. 1497.)

It is said that it is only in cases of necessity, occasioned by the hurry of the proceedings, that such a course can be pursued (see East London Waterworks Company v. Bailey, 4 Bing. 287); yet it has been decided that a corporation may appoint a bailiff to distrain without deed, because the distress vests no interest in them. (Carey v. Matthews, 1 Salk. 191, 467.)

It has been seen that a corporation cannot grant a lease without deed; nor can they make any contract except under seal. (See Fishmongers' Company v. Robertson, 5 M. & G. 131; 6 Scott, N. R. 56; Campbell v. Billericay Union, 18 L. J. (N.S.) Exch. 282; Cope v. Thames Haven Company, Ib. 345.) Thus they cannot enter into a contract to pay a sum of money out of the corporate funds, for making improvements within the borough, except under the common seal (Ludlow (Mayor, &c.) v. Charlton, 6 M. & W. 815); and it seems doubtful whether they can borrow money except under seal. (Wilmot v. Coventry (Corp.), 1 You. & C. 518.)

But though a contract put in suit by a corporation is on their part executory only, and not executed, there seems little doubt that their suing on the contract would amount to an admission on record by them that such contract was duly entered into on their part so as to bind themselves, and that such admission on the record would stop them from setting up as an objection in a cross