Page:Harvard Law Review Volume 2.djvu/139

 LAW OF BUSINESS CORPORATIONS. 121

agreement was valid without seal. On the other hand, if the transaction was such as of itself gave rise to an obligation, it could J>e enforced; forfeitures and tolls could be recovered in assumpsit; ^ if land were demised without deed, and the lessee oc- cupied the premises, he was liable for rent in an action for use and occupation ; and similarly, no doubt, if goods were bought or sold by a corporation and delivery was made, the vendee could have been forced to return or pay for them.*

The courts were sometimes able to mitigate the hardships which followed from the necessity of doing everything under seal, by presuming, as a matter of pleading, that when performance by a corporation was averred, performance with all necessary formal- ities was intended,^ and partial relief was given in special instances by act of Parliament ; ^ but at best it would be hard to find a more striking instance of a rule of law which arose from the customs prevailing in an entirely different state of society still maintaining itself when every reason for its existence had ceased, and its only effect was to produce injustice.

The right to pass by-laws for the regulation of their affairs belonged to corporations in the Roman law^ from a very early period, and also in the English law. Indeed, the right is a conse- quence almost necessarily following from the nature of the early corporations. Institutions to which were delegated powers of government, whether ecclesiastical or secular, whether exercised over all within a certain locality or confined to those practising a particular trade, must have been allowed appropriate means of exerting their authority, and the scope of the by-laws must have been proportioned to the jurisdiction. Thus, the by-laws of a cor- porate town were binding on any one who came within its limits.^ The by-laws of a guild were binding not on its members only,

1 The Barber Surgeons v. Pelson, 2 Lev. 252 ; Mayor of London v. Hunt, 3 Lev. 37 ; and see Parbury v. Bank of England, 2 Doug. 524, where, at the suggestion of Lord Mansfield, a special action of assumpsit was brought on account of the bank's refusal to transfer stock on the books.

2 E. L Co. V, Glover, i Stra. 612.

< Edgar v. Sorell, Cro. Car. 169 ; Tilson v. Warwick Gas Co., 4 B. & C. 962 ; Rex v, B»gg» 3 P- Wms. 419.

chartered to make use of the freer pleading in vogue in the action of assumpsit when sued on their policies, which were under seal.
 * E. g.j 1 1 Geo. 1. c 30, § 43, which allowed the two insurance companies recently


 * Dig. xlvii. 22, lex 4.


 * Cuddon V, Eastwick, i Salk. 193, pi. 5.