1850. May 28. A Railway agreement, not he should exe DIGGLE V. THE LONDON AND BLACKWALL RAILWAY ASSUMPSIT for goods sold and delivered, work, labour, and materials, &c.-Plea, non assumpsit; upon which issue was joined. At the trial, before Pollock, C. B., at the Middlesex Sittings after last Term, it appeared that the defendants were contractor that incorporated by stat. 6 & 7 Will. 4, c. cxxiii, for making and maintaining a railway from the Minories to Blackwall. By the 105th section of that statute, the directors for the time being superintend the affairs of the Company, use the common seal, and do all that the Company is empowered to do of locomotion by the statute, except such things as are required to be cute certain works upon their Railway, for the pur pose of chang ing the system which they pursuance of the agreement, then employ- done at some general or special meeting of the body; no ed, the rope and stationary meeting to consist of less than seven directors, and all matengine system, ters in discussion to be determined by the majority of votes. to the ordinary locomotive By the 106th sect. the directors are empowered to appoint principle. The contractor, in committees to act for them; and by the 107th, "all contracts and agreements in writing relating to the affairs of entered upon the Company, which shall be signed by any three of the directors of the said Company, shall be binding on the said them, but be- Company and all other parties thereto, their respective successors, heirs, executors, and administrators; and actions and suits may be maintained thereon, and damages and costs recovered by or against the said Company, or any of the other parties thereto failing in the execution thereof." the works, and performed a portion of fore they were completed he was dismissed by the Company:-Held, that he could not recover the value of this work. The original mode of working the line was by means of stationary engines at each terminus, the engines moving the carriages by ropes attached to them. In the year 1848, the Company resolved to substitute locomotive engines in the place of the stationary engines, and for that purpose, the following advertisement, signed by the secretary of the Company, was inserted in the newspapers: "London and Blackwall Railway Company," "The Directors are prepared to receive tenders for relaying the permanent way, and altering the gauge of this line. A section of the line, and a specification of the work required, may be seen at the office of the Company's engineer, No. 11, Adam-street, Adelphi. Tenders inclosed in sealed covers, and marked Tenders for Permanent Way,' are to be delivered at the offices of the Company, London Terminus, Fenchurch-street, before 12 o'clock on Monday, the 21st instant. The Directors do not pledge themselves to accept the lowest tender." As much of the specification referred to as is material, was as follows:-" The contract consists in taking up the old sleepers, rails, chairs, sheaves, and sheave-frames, and removing them and all other old materials, required by the Company's engineer to be so removed, to one of the termini to be hereafter decided on by the engineer; in the maintenance of all the works for two months after their entire completion to the satisfaction of the engineer; in loosening the whole of the ballast, and removing those portions that may be considered unfit for use, and providing additional ballast to alter the gradients to the level shewn on the section; in relaying the entire double line from the terminus at Fenchurch-street to the terminus at Blackwall, and all sidings connected therewith; also the laying fourteen switches and fourteen single crossings, together with the rails, chairs, &c., to form through connection; providing all tools required in completing the work, the keys, and trenails, and also the carriage of materials to whatever point they may be required. The Company undertaking to provide the rails, chairs, sleepers, points, and crossings, and to deliver them to the Contractor at Blackwall, &c." The plaintiff, by letter of the 19th of August, addressed to the Chairman and Directors of the Company, offered to do the work, according to the specification, for 14367. 15s., VOL. V. G G EXCH 1850. DIGGLE LONDON AND and, on the 3rd of October following, the Company, by a letter from the Secretary, accepted the plaintiff's offer. The plaintiff commenced the work in October, in pursuance of the preceding contract, no other contract having been entered into between the plaintiff and the Company; but before the work was completed, he was ordered by the Company to discontinue it, which he accordingly did. The present action was brought to recover the sum of 17787 188. for the work done, and for materials provided for it. The Attorney-General, on the part of the defendants, upon this state of circumstances, objected that the action was not maintainable, on the ground that the defendants, being a corporation, could not be bound by the contract, which was not under their seal. A verdict was entered for the plaintiff for the amount claimed in the action, leave being reserved to the defendants to move to set that verdict aside, and to enter a nonsuit. The Attorney-General having obtained a rule nisi accordingly Sir F. Thesiger, Knowles, and Atherton now shewed cause. -The question is, whether the defendants are to be freed from all liability with respect to a contract, the benefit of which they have enjoyed, upon the mere pretext that the contract was not subject to the ceremony of being under the seal of the Company. In former times, the law which required the common seal to be affixed to contracts entered into with corporations, was extremely strict, and very few exceptions were admitted to the general rule; but in more modern times such exceptions have become of more frequent occurrence, and the strict rule has been relaxed in order to meet the exigencies of a more advanced state of society and of an increasing commercial intercourse. In Com. Dig. tit. Francise,' F. 13, the rule is thus laid down:— "So a corporation aggregate can do nothing but by deed under the common seal." But several exceptions follow: -"But a corporation which has a head, may give a personal command, and do small acts without deed; as it may retain a servant, a cook, butler, &c." And Rolfe, B., in delivering the judgment of this Court in Mayor of Ludline v. Charlton (a), says, "In modern times a new class of exceptions has arisen. Corporations have of late been established, sometimes by royal charter, more frequently by Act of Parliament, for the purpose of carrying on trading speculations; and where the nature of their constitution has been such as to render the drawing of bills, or the constant making of any particular sort of contracts necessary for the purposes of the corporation, there the Courts have held, that they would imply in those who are, according to the provisions of the charter or Act of Parliament, carrying on the corporation concerns, an authority to do those acts, without which the corporation could not subsist. This principle will fully warrant the recent decision of the Court of Queen's Bench in Beverley v. Lincoln Gas Light and Coke Company (b).” The present case falls within the class of cases excepted from the general rule, on the ground that the contract is an executed contract; and also because the subject matter of the contract is within the very scope and object for which the Company was formed, namely, the making and maintaining of their line of railway. Thus, in Dunston v. The Imperial Gas Light Company (c), Lord Tenterden, C.J., said, "I wish, however, to be understood as by no means deciding the question, whether third persons who may sell coal or other materials to the Company, or who may be employed by them as servants or workmen, may or may not maintain an action against them for remuneration, though the contract was not under seal." Taunton, J., in his judgment, also adverts to such an exception. And in Gibson v. East (a) 6 M. & W. 815. (b) 6 A. & E. 829. (e) 3 B. & Ad. 125. 1850. DIGGLE V. LONDON AND 1850. DIGGLE 2. LONDON AND India Company (a), Tindal, C. J., in delivering the judgment of the Court, said, "And indeed the same principle, that a corporation, established for the purpose of carrying on trade or manufacture, may differ from other corporate bodies as to the power of contracting in matters relating to the purposes for which the company was formed, seems also to have been the opinion of Lord Tenterden, as may be collected from his judgment in Dunston v. The Imperial Gas Light Company." Sanders v. St Neot's Union (b) is a strong authority in favour of the position, that a corporation may be liable upon an executed contract, although not under the corporate seal, where the work is for purposes connected with the corporation: Lord Denman, C.J., there said, "A motion in this case was made for a new trial, on the ground that no contract under seal was proved against the defendants. But we think that they could not be permitted to take the objection, inasmuch as the work in question, after it was done and completed, was adopted by them for purposes connected with the corporation." In 2 Kent's Com. 289, it is said, "At last, after a full review of all the authorities, the old technical rule was condemned as impolitic, and essentially discarded; for it was decided by the Supreme Court of the United States, in the case of The Bank of Columbia v. Patterson (c), that whenever a corporation aggregate was acting within the range of the legitimate purpose of its institution, all parol contracts made by its authorised agents were express and binding promises of the corporation; and all duties imposed upon them by law, and all benefits conferred at their request, raised implied promises, for the enforcement of which an action lay." Mayor of Ludlow v. Charlton, which may be relied upon by the defendants, is distinguishable from the present case, for there the work done was not connected with the purposes of the corporation. In Lamprell v. The Billericay Union (d), |