From an examination of the subjoined note, in which are cited all the English and Colonial cases in which the validity of contracts of employment made by corporations of the classes specified has been determined without any reference to the doctrine adverted in the following section, it will be apparent that modern judges have on the whole shewn no disposition to depart from the ancient rule, that a binding contract of service cannot be created by parol, unless the position to be filled is one of a comparatively unimportant character. In order to make the collection of authorities as complete as possible, the effect of some cases relating to employees who were agents or independent contractors rather than servants, has been stated.

unless the act be one of necessity. I say necessity, for that really embraces all the excepted cases, that is, matters too trivial or of too frequent occurrence, or, in the case of trading corporations, drawing bills, without which they could not carry on their trade, etc. With these exceptions, the old law remains as it did in the time of Henry VIII., and the earlier times before it."

5

(a) Municipal corporations.-No municipal corporation (except that of London) can appoint an attorney except under the corporate seal. Arnold v. Poole (1842) 4 Man. & G. 860 (attorney appointed by the mayor and town council to conduct suits, but not under seal, held not entitled to recover his costs against the corporation).

In R. v. Stamford (1844) 6 Q.B. 433, it was held that a resolution, on the reappointment of a town clerk by a corporation after stat. 5 & 6 W. 4, c. 76, to increase his salary in compensation for the loss of former emoluments, is not valid unless executed under seal. Such reappointments, therefore, cannot be proved by an entry of it in the minutes of the town council.

An unsealed contract for the employment of an agent to promote a bill in Parliament for the enlargement of the powers of a municipal corporation was held not binding in Clemenshaw v. Dublin (1875) 10 Ir. C.L. 1.

In Broughton v. Brantford (1869) 19 U.C.C.P. 434, Hagarty, C..J., expressed the opinion, obiter, that if the appointment of a manager of property which had passed by foreclosure into the possession of municipal corporation had been made under the corporate seal,-(as it had been in fact), the corporation would not have been bound by the contract, whatever might be the rule in the case of a trading corporation in a matter within the scope of their ordinary business. (See §§ 2, 3, post).

A distinction is taken between cases where the appointment of a municipal corporation is a mere servant, and those in which he is an officer. While in some instances the former kind of appointment may be good without a seal, an appointment to an office is invalid without a seal, unless it is made in accordance with immemorial custom; and in any action founded upon the right of the appointee to hold his office, the existence of the custom must be alleged and proved. In Smith v. Cartwright (1851) 6 Exch. 926, an action by a coal meter for disturbing him in the exercise of his privilege, the declaration claimed the right in the corporation "by

2. Same subject discussed in relation to corporations created for special purposes.-An important exception to the general rule, as stated at the beginning of the last section is, "that a company

the persons by them in that behalf from time to time deputed and appointed as thereinafter mentioned," and alleged that the corporation had duly and in the exercise of their said right in that behalf deputed and appointed certain meters, of whom the plaintiff was one. Commenting upon the averments, the Court said: "The corporation claim a right to measure by persons appointed by them. That alone would make the appointment merely that of a servant, and might well be without seal. But the payment in respect of the measurement is for the benefit of the meter only, the corporation takes no part of it. The meter is the plaintiff, and complains of being disturbed in the exercise of his privilege. This shews that the meter claims an office to which certain profits, to be fixed indeed from time to time by the corporation, are annexed, and he sues for a disturbance of his right to that office. If he had performed the duty, he must have claimed the prescribed fee as due to himself. Now this right to discharge certain duties in regard to the property of third persons (although against their will), and demand payment for so doing, must be by reason of his having an office; and he is not a mere servant of the corporation, but an officer appointed by them; therefore he must have an appointment under seal. And we do not think that the tenure of his office, which is said to be during the pleasure of the corporation, can make it unnecessary that he should have such an appointment, or convert him from an officer into a mere servant."

By the Supreme Court of British Columbia it has been held that a person duly elected, at a meeting of a municipal council, to municipal office, pursuant to a statute empowering the municipal council so to appoint its officers, becomes thereby the servant of the corporation without further evidence or ratification of the contract of hiring under the corporate seal or otherwise, and can maintain an action for damages, if not received into the employment in pursuance of the contract of hiring implied by such appointment. Tuck v. Victoria (1892) 2 B.C. 179. It seems quite doubtful, however, whether the statutory provision upon which the council acted was such as to justify the Court in assuming that the case was not within the scope of the principle which is ordinarily controlling in this connection, viz., that even a resolution of the members of a body corporate is not equivalent to an instrument under its seal. See note 1, supra. The designated method of appointment seems to have been in no essential respect different from that which, upon general principles, an official body, like a municipal council is presumably authorized, or rather bound, to follow, whenever it is acting in its corporate capacity, even though it may not have been expressly empowered or directed by the legislature to do so. Assuming this view to be correct, the statutory provision in question must be construed as one which was merely declaratory of the common law, Under such circumstances a decision which seems to involve the hypothesis that the provision in question had abrogated by implication the necessity for a formality which, if the provision had not been enacted, would indisputably have been necessary to create a binding contract of employment, cannot be accepted without much difficulty. It is conceived that the reported cases, so far as they have any bearing on the subject of the presumed intention of the legislature under such circumstances, afford some general support to this criticism. See Cope v. Thames Haven Dock & R. Co. (1849) 3 Exch. 841, (see subd. (c) of this note, infra), and Hughes v. Canada Permanent, &c. Soc. (1876) 39 U.C.Q.B. 221, (see § 3, note 7, post).

which is established for the purpose of trading may make all such contracts as are of ordinary occurrence in that trade with

(b) Other public corporations established for specific purposes.-The parol appointment of an assistant or clerk to the master of the workhouse, whose duties were principally the keeping of accounts of a somewhat complicated nature, requiring some amount of skill and capacity, was held not to be binding on the defendants. Austin v. Guardians of Bethnel Green (1874) L.R. 9 C.P. 91 (action for wrongful dismissal, not maintainable).

On the ground that it was not a case of necessity, and not made under seal, it was held that the appointment of a salaried "medical officer" for a fixed and definite period was not binding. Dyte v. St. Pancras Board (1872) 27 L.T.N.S. 342.

That the appointment, by the guardians of an Union, of a collector of the poor-rate must be under seal, was decided by Parke, B., in Smith v. West Ham Union (1855) 10 Exch. 867, aff'd in Exch. Ch. 11 Exch. 867 (validity of appointment not discussed in the higher court). It was suggested by Willes, (afterwards Justice), in his argument as counsel in Henderson v. Australian Royal Mail S. Nav. Co. (1855) 5 El. & Bl. 409, that this case probably proceeded on the distinction taken in Smith v. Cartwright (1851) 6 Exch. 928 (see subd. (a) of this note, supra) ;-that the appointment of a servant for the benefit of the corporation, being an incident to their every day existence as a corporation, may be by parol; but that the appointment of an officer for his own benefit, not being incident to such every day existence, must be under seal. But this theory does not seem to be applicable to the circumstances of the case.

An agreement for the hire of a teacher by a body of school trustees is invalid, if not under seal. Quin v. School Trustees (1850) 7 U.C.Q.B. 130.

But it seems that, where public school trustees have entered into an agreement for the hire of a teacher, and have directed the officer, who has the custody of the seal, to affix it, and both parties have for two years acted on it as a binding agreement, the fact that the seal was not actually affixed will not invalidate the agreement. McPherson Trustees S.S. No. 7 (1901) 1 Ont. L.R. 261.

In Paine v. Strand Union (1846) 8 Q.B. 326, a. parol order for making a survey and map of the ratable property in one of the parishes forming the Union was held not to be binding on the Union, for the reason that such a plan was not incidental to the purposes for which the guardians of the Union were incorporated. They had nothing to do either with making or collecting rates in the several parishes of the Union, nor had they power to act as a corporation in a single parish.

(c) Business corporations.-As a general rule an attorney-at-law cannot be retained by parol. Sutton v. Spectacle Makers Co. (1864) 10 L.T.N.S. 411. But after an attorney has appeared and acted for a corporation in legal proceedings, the corporation cannot, as against the other party to the litigation, dispute his authority on the ground that he was not appointed under the corporate seal. Thames Haven Dock Co. v. Hall (1843) 5 Man. & G. 274. Nor can the other party dispute it on this ground, after taking steps in the proceedings. Faviell v. Eastern Counties R. Co. (1848) 2 Exch. 344.

In R. v. Justices of Cumberland (1848) 17 L.J.Q.B. 102, 5 Engl. Ry. Cas. 332, Wightman, J., construing the effect of a statute which gave the directors power to "appoint and displace any of the officers of the company," said their appointment of an attorney without seal was clearly good. Sir F. Pollock apparently is of opinion that the controlling consideration in the case is the fact that the appointment was not one to a

out the formality of a seal, and that the seal is required only in

continuing office. See his comments (contr. p. 154) on Cope v. Thames Haven, &c. Co. (referred to infra). With all deference to the learned judge who decided this case, it may be suggested that this question is not so easy of solution as he here assumes. See the comments in Tuck v. Victoria, in subd. (a) of this note. Is it a reasonable inference that a legislature when it simply names the board of directors as the appointing power, intends thereby to empower them to make appointments without using the corporate seal?

It has been held that, assuming that a contract with attorneys for obtaining the passage of an incorporating act should have been under seal, the omission to set out a deed in a declaration by them for work and labour was a mere matter of form, and therefore ground for a special demurrer only. Tilson v. Warwick Gaslight Co. (1825) 4 B. & C. 962.

In Washburn v. Canada Car Co. (U.C.Q.B. 1875) an unreported case cited by the Court in Canada Permanent, &c. Soc. (1876) 39 U.C.Q.B. 229, it was held that a corporate seal was necessary to validate the appointment of a general manager of a car company.

In another Canadian case a similar ruling was made by Street, J., as to the appointment of a manager of a milk company. Birnie v. Toronto Milk Co. (1902) 5 Ont. L.R. 1.

A person appointed as provincial engineer of a railway company at a monthly salary of $300 was held to be an important official whose engagement must be under seal. Armstrong v. Portage, &c. R. Co. (1884) 1 Man. L.R. 344. This case is in direct conflict with an earlier one, (which, strange to say, was not referred to), in which the appointment of a chief engineer without a seal was held valid, on the ground that the appointment of such an officer was not only within the scope of the corporating act, but that it was essential and absolutely necessary for the purposes connected with the objects of the corporation. Murdock v. Manitoba S. W. Col. R. Co. (1881) Thom. & Wood (Man.) 334. In the opinion of the present writer, the earlier of these two cases shews a clear departure from the doctrine of English judges, whose decisions with relation to the principle relied upon by the Canadian court, although they have not been entirely consistent, (see next section), afford no support to the theory, that the principle may operate so as to validate a parol appointment of a permanent official of high rank.

For other Canadian cases see § 3, note 7, post.

A railway company was incorporated by an Act of Parliament, one section of which enacted, that the directors should have power to use the common seal on behalf of the company, and that all contracts relating to the affairs of the company, signed by three directors, in pursuance of a resolution of a court of directors, should be binding on the company. The following section enacted, that the directors should have full power to employ all such managers, officers, agents, clerks, workmen, and servants as they should think proper. By a resolution of the board of directors, signed by their chairman, the plaintiff was appointed agent to negotiate with another railway for the lease of the line. Held, that the contract was not binding on the company, since it had not been sealed, or executed with the required formalities. Cope v. Thames Haven Dock & R. Co. (1849) 3 Exch. 841, Parke, B., said: "The rule must be absolute, on the ground that this is a contract by which the company cannot be bound, unless made in the form required by the 119th section, which gives a power of binding the company by an instrument under seal, or in writing signed by three directors, in pursuance of a resolution of the board. Neither of those requisites have been complied with... We ought not to extend the exception

matters of unusual and extraordinary character which are not likely to arise in the ordinary course of business"".

to cases where, from the Act incorporating the company, it is the obvious intention of the legislature that the contracts of the company should be made with certain formalities. The question then is, whether we can collect from this Act of Parliament, that a contract of this description, that is, for the employment of an agent, not in the course of the ordinary concerns of the company, can be binding on the company without a formal instrument. I am clearly of opinion that the case does not fall within the 120th section. The section may be explained as pointed out by my Brother Rolfe, by saying that it intended to give the directors power to do certain acts for which, by the 114th section, if they are to be indemnified out of the funds of the company. But if not, it only extends to the employment of managers, officers, agents, clerks, &c., on the ordinary works of the company. If they may, without any formality, appoint servants for the management of their affairs at the different stations, we cannot from that collect that they shall be bound by contracts out of the ordinary course, and from the employment of every description of servant." Platt, B., said: "I am of the same opinion, and for the same reasons. Take the case of a surveyor employed to survey two hundred miles of railway,-is it not important that the company should not be bound by a mere verbal arrangement?" With all respect for the opinion of so eminent an authority as Sir F. Pollock, the present writer ventures to think that the doubts which he has expressed as to the correctness of this decision (contr. p. 154) are scarcely warranted. The ground upon which his criticism is based is that no "appointment to a continuing office" was involved. But it is submitted that, having regard to the fact that the meaning of certain statutory provision was the only point to be determined, the permanent or temporary character of the office was not an element which could with propriety have been treated as material, and that the case was correctly viewed as one which was governed by the familiar principle that powers granted to a corporation for specific purposes cannot lawfully be exercised with reference to a subject matter which does not by a reasonable intendment fall within the scope of the grant.

(d) Ecclesiastical corporations.-In a case already cited it was remarked that from very early times exceptions to the general rule "have been allowed in the case of municipal and ecclesiastical corporations, to enable them, without the formality of a seal to transact matters of minor importance and of daily occurrence." Montague Smith, J., in South of Ireland Colliery Co. v. Waddle (1868) L.R. 3 C.P. 463. In the absence of specific authority to the contrary this passage may be taken as indicating that, in respect to the extent of the duty of using the corporate seal, ecclesiastical and municipal corporations are placed by the law upon the same footing.

1 Montague Smith, J., in South of Ireland Colliery Co. v. Waddle (1868) L.R. 3 C.P. 463 (p. 474), (aff'd by the Exch. Ch. L.R. 4 C.P. 617). In the same case Bovill, C.J., made the following remarks: "It seems to me that the exceptions created by the recent cases are now too firmly established to be questioned by the earlier decisions, which, if inconsistent with them, must, I think, be held not to be law. These exceptions apply to all contracts by trading corporations entered into for the purpose for which they are incorporated. A company can only carry on business by agents,-managers and others; and if the contracts made by these persons are contracts which relate to objects and purposes of the company, and are not inconsistent with the rules and regulations which govern their acts, they are valid and binding upon the company, though not under seal." In this case,