directors had full power to "appoint and displace . . . all such managers, officers, agents as they shall think proper." It seems difficult to support this decision; this was not like an appointment to a continuing office; and cp. Reg. v. Justices of Cumberland, 17 L. J. Q. B. 102, where under very similar enabling words an appointment of an attorney by directors without seal was held good as against third parties. to enforce It has been decided (as indeed it is obvious in principle) that No equity inability to enforce an agreement with a corporation at law by informal reason of its not being under the corporate seal does not create agreement any jurisdiction to enforce it in equity (a). against corporation. Right of tions to sue on con cuted. The rights of corporations to sue upon contracts are somewhat more extensive than their liabilities. When the corporation has corporaperformed its own part of the contract so that the other party has had the benefit of it, the corporation may sue on the contract tracts exethough not originally bound (b). For this reason, if possession is Tenancy given under a demise from a corporation which is invalid for want and occuof the corporate seal, and rent paid and accepted, this will consti- pation. tute a good yearly tenancy (c) and will enable the corporation to enforce any term of the agreement which is applicable to such a tenancy (d), and a tenant who has occupied and enjoyed corporate lands without any deed may be sued for use and occupation (e). Conversely the presumption of a demise from year to year from payment and acceptance of rent is the same against a corporation as against an individual landlord: "where the corporation have acted as upon an executed contract, it is to be presumed against them that everything has been done that was necessary to make it a binding contract upon both parties, they having had all the advantage they would have had if the contract had been regularly made" (ƒ). And a person by whose permission a cor (d) Eccles. Commrs. v. Merral, L. (e) Mayor of Stafford v. Till, 4 (f) Doe d. Pennington v. Taniere, poration has cccupied lands may sue the corporation for use and occupation («). Corpora- In the case of a yearly tenancy the presumption is of an tions liable actual contract, but the liability for use and occupation belongs on quasicontracts rather to the class of obligations quasi ex contractu, which we generally. call by the very inconvenient name of "contracts implied in Statutory forms of contract. law" (b). It is settled that in general a cause of action of this kind is as good against a corporation as against a natural person. Thus a corporation may be sued in an action for money received on the ground of strict necessity; "it cannot be expected that a corporation should put their seal to a promise to return moneys which they are wrongfully receiving" (c). It was held much earlier that trover could be maintained against a corporationa decision which, as pointed out in the case last cited, was analogous in principle though not in form (d). Forms of contracting otherwise than under seal are provided by many special or general Acts of Parliament creating or regulating corporate companies, and contracts duly made in those forms are of course valid (e). But a statute may on the other hand contain restrictive provisions as to the form of corporate contracts, and in that case they must be strictly followed. An enactment that contracts of a local board whose value should exceed 107. should be in writing and sealed with the seal of the local board has been held, though with great reluctance and even indignation, to be imperative. The claim, like sundry others above mentioned, was for extra work done without any formal order, the principal work being provided for by a contract in due form (ƒ). The general results seem to stand thus: (a) Lowe v. L. & N. W. Ry. Co. 18 Q. B. 632, 21 L. J. Q. B. 361. (b) The liability existed at common law, and the statute 11 Geo. 2, c. 19, s. 14, made the remedy by action on the case co-extensive with that by action of debt, see Gibson v. Kirk, 1 Q. B. 850, 10 L. J. Q. B. 297. Since the C. L. P. Act the statute seems in fact superfluous. (c) Hall v. Mayor of Swansea, 5 Q. B. 526, 549, 13 L. J. Q. B. 107. The like of a quasi corporation em. powered to sue and be sued by an officer, Jefferys v. Gurr, 2 B. & Ad. 833. (d) Yarborough v. Bank of Eng. land, 16 East 6. See early cases of trespass against corporations cited by Lord Ellenborough at p. 10. (e) See Mr. Justice Lindley's account (1. 370-4). (f) Frend v. Dennett, 4 C. B. N. S. 576, 27 L. J. C. P. 314. In the absence of enabling or restrictive statutory provisions, Summary which when they exist must be carefully attended to— A trading corporation may make without seal any contract incidental to the ordinary conduct of its business; but it cannot bind itself by negotiable instruments unless the making of such instruments is a substantive part of that business, or is provided for by its constitution (a). A non-trading corporation, if expressly created for special purposes, may make without seal any contract incidental to those purposes; if not so created, cannot (it seems) contract without seal except in cases of immediate necessity, constant recurrence, or trifling importance. In any case where an agreement has been completely executed. on the part of a corporation, it becomes a contract on which the corporation may sue. The rights and obligations arising from the tenancy or occu pation of land without an express contract apply to corporations both as landlords and as tenants or occupiers in the same manner (b) and to the same extent as to natural persons. A corporation is bound by an obligation implied in law whenever under the like circumstances a natural person would be so bound. It will be seen that as touching non-trading corporations the law still leaves a good deal to be desired in certainty, and perhaps something in reasonableness; and it is much to be wished that the whole subject should be reviewed and put on a settled and consistent footing by a court of appeal. In he present writer's opinion this could not be satisfactorily done without expressly overruling a certain number of the decided cases. 2. Negotiable instruments. The peculiar contracts undertaken by the persons who issue or indorse negotiable instruments must by the nature of the case be in writing. A bill of exchange is defined as a written order for the payment of a certain sum of money unconditionally; a promissory note as a written promise to pay a certain sum of (a) See p. 112 supra. (b) Assuming Finlay v. Bristol and Exeter Ry, Co. 7 Ex. 409, 21 L. of results. Negotiable instru ments. Statute of Promises by exe-' cutor, &c. money unconditionally (a). The acceptance of a bill of exchange, though it may be verbal as far as the law merchant is concerned, is required by statute to be in writing (19 & 20 Vict. c. 97, s. 6, extending and superseding 1 & 2 Geo. 4, c. 78, s. 2, now expressly repealed by the Stat. Law Revision Act 1873). Additional forms were required in the case of negotiable instruments for less than 107. by 17 Geo. 3, c. 30; but this was repealed by a temporary Act, 26 & 27 Vict. c. 105, which has since been continued from time to time by the annual Expiring Laws Continuance Acts. 3. As to purely statutory forms. A. Contracts within the Statute of Frauds. To write a commentary on the Statute of Frauds would be quite beyond the scope of this work. It may be convenient however to state as shortly as possible, so far as contracts are concerned, the contents of the statute and some of the leading points established on the construction of it. The statute (29 Car. 2., c. 3) enacts that no action shall be brought on any of the contracts specified in the 4th section "unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized." The peculiar operation of this section as distinguished from the seventeenth will be considered in another place (Chapter XII). The contracts comprised in it are a. "Any special promise by an executor or administrator to answer damages out of his own estate." No difficulty has arisen on the words of the statute, and the chief observation to be made is the almost self-evident one (which equally applies to the other cases within the statute) that the existence of a written and signed memorandum is made a necessary condition of the agreement being enforceable, but will in no case make an agreement any better than it would have been apart from the statute. A good consideration, a real consent of the parties to the same thing (a) Smith, Merc. Law, 199, and c. 8 [Rev. Stat: al. 9] s. 1. as to promissory notes, 3 and 4 Ann, in the same sense, and all other things necessary to make a contract good at common law are still required as much as before (a). B. "Any special promise to answer for the debt default or mis- Guarancarriage of another person." A promise is not On this the principal points are as follows. within the statute unless there is a debt &c. of some other person for which that other is to remain liable (though the liability need not be a present one): for there can be no contract of suretyship or guaranty unless and until there is an actual principal debtor. "Take away the foundation of principal contract, the contract of suretyship would fail ()”. Where the liability, present or future, of a third person is assumed as the foundation of a contract, but does not in fact exist, then independently of the statute, and on the principle of the Couturier v. Hastie class of cases (explained elsewhere, Chap. VIII. ad fin.) there is no contract. On the other hand a promise to be primarily liable, or to be liable at all events, whether any third person is or shall become liable or not, is not within the statute and need not be in writing. Whether particular spoken words, not in themselves conclusive, e.. "Go on and do the work and I will see you paid," amount to such a promise or only to a guaranty is a question of fact to be determined by the circumstances of the case (b). Nor is a promise within the statute unless it is made to the principal creditor: "The statute applies only to promises made to the person to whom another is answerable (c)" or is to become so. A mere promise of indemnity is not within the statute (7), though any promise which is in substance within it cannot be taken out of it by being put in the form of an indemnity (e). A contract to give a guaranty at a future time is as much within the statute as the guaranty itself (ƒ). (a) As to these contracts of executors, 2 Wms. Exors. Pt. 4, Bk. 2. c. 2 § 1. (b) Mountstephen v. Lakeman, L. R. 7 Q. B. 196, 202 (in Ex. Ch.) per Willes J., affd. L. R. 7 H. L. 17 nom. Lakeman v. Mountstephen. (c) Eastwood v. Kenyon, 11 A. & E. 438, 446; concess. Cripps v. Hartnoll, 4 B. & S. 414, 32 L. J. ties. |