'Tirwit. Sir, you see well that his count is on a covenant, and he shows no such thing: judgment. Gascoigne. Seeing that you answer nothing, we ask judg ment and pray for our damages. Tirwit. This is covenant or nothing (ceo est merement un covenant). Brenchesley, J.-It is so perhaps it would have been otherwise had it been averred that the work was begun and then by negligence left unfinished. (Hankford, J. observed that an action on the Statute of Labourers might meet the case.) Rickhill, J.-For that you have counted on a covenant and show none, take nothing by your writ but be in mercy" (a). This was followed by at least one similar decision (b), but early in the reign of Henry VI. a like action was brought against one Watkins for failure to build a mill within the time for which he had promised it, and two out of three judges (Babington, C.J. and Cockaine, J.) were decidedly in favour of the action being maintainable and called on the defendant's counsel to plead over to the merits (c). Martin, J. dissented, insisting that an action of trespass would not lie for a mere non-feasance: a difficulty by no means frivolous in itself. "If this action is to be maintained on this matter," he said, "one shall have an action of trespass on every agreement that is broken in the world "—which was the very thing sought, and so it came to pass in the two following reigns, when the general application of the action of assumpsit was well established (see Reeves, 3. 182, 403). It is only since the Common Law Procedure Act that there has been in form as well as in substance a consistent and appropriate procedure for enforcing executory simple contracts. deeds can't We need not stop to consider the requisites of a deed, but it Rule that may be noticed that when the books (e.g. Shepp. Touchst. 54) be written say a deed must be written on parchment or paper, not on on wood, &c. sugwood, &c., this is not due, as a modern reader might at first gested orisight think, to mere exuberance of fancy or abundance of cau- ginthereof. tion. The key is to be found, we believe, in the common use of (a) Mich. 2 H. 4, 3b, pl. 9. (c) Hil. 3 H. 6, 36, pl. 33. Requirements of form now wooden tallies as records of contracts in the middle ages, and in the fuller statement of Fitzherbert (F. N. B. 122 I) that if such a tally is sealed and delivered by the party it will not be a deed. The Year Books there referred to (so far as we can verify the references some are wrong and we have not been able to set them right) show that attempts were in fact made to rely on sealed tallies as equivalent to deeds. These tallies were no doubt written upon as well as notched, so that nothing could be laid hold of to refuse them the description of deeds but the fact of their being wooden: the writing is expressly mentioned in one case (a), and the Exchequer tallies used till within recent times were likewise written upon (). The foregoing sketch has shown how in the ancient view no informal contract is good unless it falls within some exceptionally treated as favoured class: the modern view to which the law of England the excep- has now long come round is the reverse, namely that no contract need be in any particular form unless it belongs to some class in which a particular form is specially required. tion. Contracts of Record. Before we say anything of these classes it must be mentioned that contracts under seal are not the only formal contracts known to English law. There are certain "contracts of record" which are of a yet higher nature than contracts by deed. The judgment of a Court of Record is treated for some purposes as a contract : and a recognizance, i.e. "a writing obligatory acknowledged before a judge or other officer having authority for that purpose and enrolled in a Court of Record" is strictly and properly a contract entered into with the Crown in its judicial capacity. The statutory forms of security known as statutes merchant, statutes staple, and recognizances in the nature of a statute staple, were likewise of record, but they have long since fallen out of use (c). (a) Trin. 12 H. 4. 23, pl. 3. The other cases we have been able to find are Pasch. 25 E. 3. 83 (wrongly referred to as 40 in the last case and in the margin of Fitzh.) pl. 9, where the reporter notes it is said to be [by custom] otherwise ir. London; and Trin. 44 Ed. 3. 21, pl. 23. (b) See account of them in Penny Cyclopædia, s. v. Tally. The use of The kinds of contracts subject to restrictions of form are these: Contracts (1). At common law, the contracts of corporations. The rule subject to special that such contracts must in general be under seal is remarkable forms. as not being an institution of modern positive law but a survival from a time when the modern doctrine of contracts was yet unformed. Of late years great encroachments have been made upon it, which have probably not reached their final limits; as it stands the law is in a state of transition or fluctuation on some points, and demands careful consideration. Both the historical and the practical reason lead us to give this topic the first place. (2). Partly by the law merchant and partly by statute, the peculiar contracts expressed in negotiable instruments. (3). By statute only A. The various contracts within the Statute of Frauds. Certain sales and dispositions of property are regulated by other statutes, but mostly as transfers of ownership or of rights good against third persons rather than as agreements between the parties. B. Marine insurances. C. Transfer of shares in companies (generally). D. Acknowledgment of debts barred by the Statute of Limitation of James I. E. Marriage: This, although we do not mean to enter on the subject of the Marriage Acts, must be mentioned here to complete the list. 1. As to Contracts of Corporations. tions. The doctrine of the common law was that corporations could Corpɔrabind themselves only under their common seal, except in small old rule: matters of daily occurrence, as the appointment of household Seal generally reservants and the like (a). The principle of these exceptions quired. being, in the words of the Court of Exchequer Chamber, "convenience amounting almost to necessity" (b), the vast increase in the extent, importance, and variety of corporate dealings which has taken place in modern times has led to a corresponding increase of the exceptions. Before considering these, however, it is well to cite an approved judicial statement of the rule, and of the reasons that may be given for it :--- (a) 1 Wms. Saund. 615, 616, and see old authorities collected in notes to Arnold v. Mayor of Poole, 4 M. & Gr. 876, and Fishmongers' Company v. Robertson, 5 M. & Gr. 182. (b) Church v. Imperial Gas, &c., Company, 6 A. & E. 846, 861. "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 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. Everyone 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 bound. 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 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 a whole body corporate, is a necessity inherent in the very nature of a corporation" (a). It is, no doubt, a matter of "inherent necessity" that an artificial person can do nothing save by an agent and the common seal in the agent's custody, when an act in the law purports to be the act of the corporation itself, or his authority under seal, when it purports to be the act of an agent for the corporation, is in English law the recognized symbol of his authority. But there is no reason in the nature of things why his authority should not be manifested in other ways: nor is the seal of itself conclusive, for an instrument to which it is in fact affixed without authority is not binding on the corporation (U). On the other hand although it is usual and desirable for the deed of a corporation to be sealed with its proper corporate seal, it is laid down by high authorities that any seal will do (c). A company under the Companies Act, 1862, must have its name (a) Mayor of Ludlow v. Charlton, 6 M. & W. 815, 823, adopted by Pollock, B., in Mayor of Kidderminster v. Hardwick, L. R. 9 Ex. at p. 24, and see per Keating, J., Austin v. Guardians of Bethnal Green, L. R. 9 C. P. at p. 95. (b) Bank of Ireland v. Evans' Charities, 5 H. L. C. 389. (c) 10 Co. Rep.306, Shepp. Touchst. 57, supra, p. 96. Yet the rule is doubted, Grant on Corp. 59, but only on the ground of convenience and without any authority. The like rule as to sealing by an individual is quite clear and at least as old as Bracton: Non multum refert utrum [charta] proprio vel alieno sigillo sit signata, cum semel a donatore coram testibus ad hoc vocatis recognita et concessa fuerit, fo. 38a. Cp. Britton, 1. 257 (Clarendon Press cd.) engraved in legible characters on its seal, and any director, &c., using as the seal of the company any seal on which the name is not so engraved is subject to a penalty of 507. (ss. 41, 42): but this would not, it is conceived, prevent instruments so executed from binding the company (a). The seal of a building society incorporated under the Building Societies Act, 1874 (37 & 38 Vict., c. 42, s. 16, sub-s. 10), "shall in all cases bear the registered name thereof," but no penalty or other consequence is annexed to the non-observance of this direction. v. Patter We now turn to the exceptions. According to the modern Modern authorities it is now established, though not till after sundry Bank of exceptions. conflicting decisions, that the "principle of convenience amount- Columbia ing almost to necessity" will cover all contracts which can son (Sufairly be treated as necessary and incidental to the purposes for preme which the corporation exists: and that in the case of a trading U.S.) Court, corporation all contracts made in the ordinary course of its business or for purposes connected therewith fall within this description. The same or even a wider conclusion was much earlier arrived at in the United States. As long ago as 1813 the law was thus stated by the Supreme Court : "It would seem to be a sound rule of law that wherever a corporation is acting within the scope of the legitimate purposes of its institution all parole contracts made by its authorized agents are express promises of the corporation, and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises for the enforcement of which an action may well lie (b)." England. This broad statement cannot at present be said to be correct Not so in England except for trading corporations, and it may be also wide in for non-trading corporations established in modern times for special purposes: and with all respect for the reasons of the Court of Exchequer in Mayor of Lullow v. Charlton, (c) one may perhaps venture to regret that we have not adopted the rule laid |