that a corporation occupying land may be sued in assumpsit generally (i)." The exigency of the case has also led to a relaxation of the general and ancient rule" in matters of frequent requirement (k) and of small amount," as to which a trading corporation may make a valid contract relating to the trade which they carry on (1) without affixing the common seal, although such corporation be a corporation aggregate without a head (m)." A grant, not under seal, of a retiring pension by the East India Company to a military officer in their service, does not however fall within the principle of these exceptions, " and consequently it must be governed by the general rule of law, that a corporation aggregate cannot be sued upon a contract not being under their common seal (n).”

A distinction was taken in the case of The East London Waterworks Company v. Bailey (o), with respect to assumpsit being maintainable by a corporation on a contract according as the contract was executed or executory. The Court of Queen's Bench has however since laid it down in the case of Church v. The Imperial Gas Light and Coke Company, that no such distinction exists between contracts executed and executory, with respect to the resulting rights and liabilities of corporations upon them (p).

It seems that a foreign corporation may sue in this country by their corporate name (q).

In Carden v. The General Cemetery Company (r), it appeared that by the act of parliament constituting the company, the company were to apply the first moneys received under the act in discharge of the expenses incurred in obtaining the act, and it was held, that the plaintiff, though a member of the company, might sue them in debt for his time and trouble, and for money by him expended in obtaining the act.

Guardians of the poor, acting under a statute enabling them to sue and be sued by their treasurer, and to take conveyances to themselves and their successors, &c., were so far in the nature of a corporation, that they might be sued as guardians in the name of their treasurer for money paid for their use, &c. (s).

And now by the 7th section of the 5 & 6 Will. IV. c. 69, they and their successors are expressly constituted a corporation, and as such may take, accept, and hold for the benefit of the union or parish, buildings, lands, or hereditaments, goods, effects, or other property, and may use a common seal.

7.-OF CONTRACTS WITH GOVERNMENT AGENTS.

The general rule is, that an officer appointed by government, as for instance the governor of a colony, a naval or military

(0) 2 Moore, 532; 4 Bing. 283, S. C.

(p) Church v. Imperial Gas Light and Coke Company, 6 A. & E. 846,

860.

(9) The National Bank of St. Charles v. Bernales, 1 C. & P. 569; R. & M. 190, S. C. It was an action of assumpsit by a commercial corporation on bills of exchange; proof was given

that it was a corporation by the Spanish law.

(r) Carden v. General Cemetery Company, 5 Bing. N. C. 253; 7 Dowl. P. C. 275, S. C.; and see Tilson v. The Warwick Gas Light Company, 4 B. & C. 962; 7 D. & R. 376, S. C.; Vin. Ab. Debt, 12, and Com. Dig. Action on Statute.

(s) Jefferys v. Gurr, 2 B. & Ad. 883.

officer, acting officially, or as a public agent, is not liable personally upon contracts made by him in that capacity (t); unless he expressly pledge his personal credit and responsibility (u); or perhaps act without or exceed the authority given him (x).

The captain of a troop, during the time of his absence, and while another officer is in actual command of it, and by whom the orders for subsistence are issued, and the subsistence money is received from government, is not liable to pay for subsistence furnished to the men; although he continued to be entitled to a profit upon the sum issued on that account, and the troop still remained under his military orders (y).

It has also been decided, that the captain of a troop for which forage is furnished by the orders of a clerk appointed by such captain, is not liable in an action for money had and received for such forage, though present with the troop at the time; it not appearing that he had received any money for the purpose from the paymaster, to whom it is issued by government, and upon whom the captain is entitled to draw for a certain sum, regulated by the returns of the preceding month (z).

A purser of one of his Majesty's ships is not liable to the purser's steward upon an implied contract to pay wages; for the steward, although named by the purser, cannot be appointed without the sanction of the commander, and is entitled to pay from the crown, and the purser has no fund allowed him out of which he can pay the steward, although the latter acts under his immediate authority (a).

An action does not lie against a public officer by individuals, for sums which, as a public officer, he is autherised to pay them, although he may have received the money applicable to that purpose. Consequently, a retired clerk of the War-office cannot

(1) Macbeath v. Haldimand, 1 T. R. 172. Semble, not even though the contract be under seal, Unwin v. Wolseley, 1 Term R. 674; Thomson v. Pearce, 1 Brod. & B.25; Cunningham v. Collier, 4 Doug. 233, contra; see ante, 227; 1 Chit. Pl. 6th ed., 37.

(u) See Appleton v. Binks, 5 East, 148; Burrell v. Jones, 3 B. & Ald. 47; Gidley v. Lord Palmerston, 3 B. & B. 286; Prosser v. Allen, Gow, 117. The latter was an action against the colonel

sue the Secretary at War for the allowance provided for such clerk, although the defendant has funds in hand applicable to such allowance (b). Nor are justices of the peace contracting on behalf of the public, for rebuilding a public bridge, under an act of parliament which provides a fund for the payment, liable to the contractor (c).

The agent of a regiment appointed by the colonel, under the usual power of attorney, is the agent of the latter, and bound to account to him for money received from government; although such money was eventually payable not only to the colonel, but to other individuals in the regiment (d).

A foreign consul resident in England, and receiving a salary from his own government, cannot maintain an action for his trouble and labour in transacting business for merchants here, in which he acted as the officer of his own government, and in conformity to their express instructions (e).

8.-OF CONTRACTS WITH COMMISSIONERS OF ROADS, &c.

Where commissioners or trustees are appointed to execute a public duty, they act as principals, and are in general liable on orders given for the purpose of executing the trust; for it must be presumed that the goods were supplied or the work performed on the individual credit of those who made the order, and not on the funds which they may happen to have at their command.

In Horsley v. Bell (ƒ) a bill having been filed by the plaintiff, the undertaker of a navigation at Thirsk, in Yorkshire, against the commissioners named in the act for carrying it on, who had signed the several orders, it was contended, first, that the defendants were not personally liable, because they were exercising a public trust, and the credit was given to the undertaking itself,

(b) Gidley v. Lord Palmerston, 3 Brod. & B. 275; 7 Moore, 91, S. C. Though it might be otherwise if a sum of money had been placed in the hands of such officer, to the credit of the individual, and specifically granted and appropriated to him, Priddy v. Rose, 3 Merivale, 102; Rex v. The Lords of the Treasury, 4 Ad. & E. 291. A mandamus will not be issued to the Lords of the Admiralty requiring them to pay arrears of half-pay to a naval officer, Ex parte Ricketts, 6 Nev. &

M. 523; 4 Ad. & E. 999, S. C. See
also Rex v. The Lords of the Treasury,
in re Hand, 4 Ad. & E. 984; Er parte
Carmichael Smyth, 4 Ad. & E. 286.
(c) Allen v. Waldegrave, 2 Moore,

621.

(d) Knowles v. Maitland, 4 B. & C. 173.

(e) De Lema v. Haldimand, 1 C. & P. 183; R. & M. 45, S. C.

(f) 1 Brown Ch. Cases, 101; Amb. 770, S. C.; Paley, 251.

and not personally to them, and the remedy was therefore in rem: secondly, that those who had been present at the meetings, and had signed some but not all the orders, were liable only to those which they had respectively signed. But Lord Chancellor Thurlow, assisted by Ashurst and Gould, Justices, held, first, that the commissioners were personally liable; and secondly, they were all liable in respect of all the orders. Lord Thurlow said, "Who would make a contract on the credit of toll, which it is in the power of the commissioners to raise or not at their pleasure? Then upon whose credit must the contract be? Certainly that of the commissioners who act. It is their fault if they enter into contracts when they have no money to answer them. They have made themselves liable by their own acts." And this doctrine was confirmed in the modern case of Eaton v. Bell (g). It there appeared that an inclosure act empowered the commissioners to make a rate to defray the expenses of passing and executing the act; and enacted that persons advancing money should be repaid out of the first money raised by the commissioners. Expenses were incurred in the execution of the act before any rate was made. To defray these expenses, the commissioners drew drafts upon their bankers, requiring them to pay the sums therein mentioned, on account of the public drainage, and to place the same to their account as commissioners. The bankers, during a period of six years, continued to advance considerable sums, by paying these drafts; and it was held that the commissioners were personally responsible to the bankers for the drafts so made. But where by a private act of parliament the expenses attending its passing were directed to be paid out of the tolls raised, or to be levied under it, and the attorney who prepared and solicited the bill sued the commissioners named in it, in the name of the clerk, for the amount of his bill, it was held that he was bound to show that there were sufficient funds in the hands of the commissioners, in respect of the tolls, to satisfy his demand (h).

Where the plaintiff, a clerk to commissioners of paving, drew up a contract for paving, of which contract the defendant, the contractor, was by agreement to pay the expense, and defendant offered to execute the contract, but refused to pay plaintiff's charges as unreasonable; and the plaintiff refused to allow the

(g) 5 B. & Ald. 34.

(h) Andrews v. Dally, 4 Bing. 566;

1 M. & P. 490, S. C.; and see ante, 278.