Rule that not be wood, &c.: origin thereof. 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). But only in 1596 was it finally decided that assumpsit was admissible at the plaintiff's choice where debt would also lie (p). The fiction of the action being founded on trespass was abolished by the Common Law Procedure Act. We need not stop to consider the requisites of a deed, deeds may but it may be noticed that when the books (e. g. Shepp. written on Touchst. 54) say a deed must be written on parchment or suggested paper, not on wood, &c., this is not due, as a modern reader might at first sight think, to mere exuberance of fancy or abundance of caution. The key is to be found, we believe, in the common use of 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 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 (1), and the Exchequer tallies used till within recent times were likewise written upon (r). Requirements of form now The foregoing sketch has shown how in the ancient view no contract was good (as indeed no act in the law was) treated as unless it brought itself within some favoured class by (p) Slade's ca. 4 Co. Rep. 91 a, in Ex. Ch. It was still later before it was admitted that the substantial cause of action in assumpit was the contract. O. W. Holmes, The Common Law, 284-287. (4) Trin. 12 H. 4. 23, pl. 3. The other citations we have been able to verify 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 in London; and Trin. 44 Ed. 3. 21, pl. 23. (r) See account of them in Penny Cyclopædia, s. v. Tally. The use of tallies appears not to be obsolete on the Continent. The French (art. 1333) and Italian (art. 1332) Čivil Codes expressly admit them as evidence between traders who keep their accounts in this way. tion. of Record. satisfying particular conditions of form, or of evidence, or the excepboth. The modern view to which the law of England 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. Before we say anything of these classes it must be men- Contracts tioned that contracts under seal are not the only formal contracts known to English law. There are certain socalled "contracts of record" which are of a yet higher nature than contract 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 (s). The kinds of contracts subject to restrictions of form are these: (1). At common law, the contracts of corporations. The Contracts rule that such contracts must in general be under seal is subject to special remarkable as not being an institution of modern positive forms. 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. (s) As to Contracts of Record, see Anson, p. 43, and for an account P. of statutes merchant, &c. 2 Wms. L Corpora tions. (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. The doctrine of the common law was that corporations could bind themselves only under their common seal, except in small matters of daily occurrence, as the appointment of household servants and the like (t). The principle of these exceptions being, in the words of the Court of Exchequer Chamber, "convenience amounting almost to necessity" (u), 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 : "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 (t) 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. (u) Church v. Imperial Gas, &c. Company, 6 A. & E. 846, 861. 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" (e). 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 (x). 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 (y). A company under the Companies Act, 1862, must have its name 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 (v) 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. (x) Bank of Ireland v. Evans' Charities, 5 H. L. C. 389. (y) 10 Co. Rep. 306, Touchst. 57. Yet the Shepp. 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 [carta] 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. Modern ехсерtions. Bank of Columbia v. Patter son (Supreme Court, U.S.) Not so wide in England. binding the company (*). 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. We now turn to the exceptions. According to the modern authorities it is now established, though not till after sundry conflicting decisions, that the "principle of convenience amounting almost to necessity" will cover all contracts which can fairly be treated as necessary and incidental to the purposes for which the corporation exists: and that in the case of a trading 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" (a). In England this rule still holds good only for trading corporations, and perhaps also for non-trading corporations established in modern times for special purposes. The former conflict of decisions is much reduced, but there (2) Notwithstanding the statutory penalty, there is an instance on record of the private seal of a director being used when the company had been so recently formed that there had been no time to make a proper seal, Gray v. Lewis, 8 Eq. at p. 531. The like direction and penalty are contained in the Industrial and Provident Societies Act, 1876, 39 & 40 Vict. c. 45, ss. 10, sub-s. 1, and 18, sub-s. 2. As to execution of deeds abroad by companies under the Acts of 1862 and 1867, see the Companies Act, 1862, s. 55, and the Companies Seals Act, 1864 (27 Vict. c. 19); in Scotland, the Conveyancing (Scotland) Act, 1874, 37 & 38 Vict. c. 94, s. 56. (a) Bank of Columbia v. Patterson, 7 Cranch, 299, 306. It is also held by the American authorities that the appointment by a corporation of an agent, officer, or attorney need not be under seal. |