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Page:Harvard Law Review Volume 2.djvu/137

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LAW OF BUSINESS CORPORATIONS. Up

century, and it also appears that there were some slight exceptions to it.^ Just what these were, was by no means definitely marked out. In Y. B. 4 Hy. VII. 17 b, one of the judges, Townsend, said : " A body corporate cannot make a feoflfment or lease or anything relat- ing to their inheritance without deed, but of offices and things which pertain to servants they can. For they can appoint plowmen and servants of husbandry without deed, and butlers and cooks and things of that kind, and can depute their servants to do any- thing without deed. They can do this because it is not in disinher- itance of the corporation, but only by way of service, and it is the common course to justify by command of the body corporate, and not show anything from it'* Brian, however, was of a con- trary opinion, saying, " A body corporate can do none of those things without deed." Townsend's opinion undoubtedly made more sweeping exceptions than were afterwards allowed, but his statement that a corporation could appoint a cook or butler without a deed was for centuries cited as indicating the extent of the power of acting without using the corporate seal.' In Y. B. 7 Hy. VII. 9, it was held that the defendant in an action of trespass could not justify as acting for a corporation without showing authority by deed. Wood adds: "But of little things the law is otherwise, for it would be infinite if each little act was by deed, as, a command to their servants, to light a candle in church, or to make a fire, or such things." With this the court with one excep- tion agreed. This statement of the law is based on a principle which continued to be decisive in the eighteenth as in the six- teenth century. In transactions which from their nature could be done under seal only with great inconvenience, the formality of sealing was dispensed with. The inconvenience might arise from the pettiness of the act, or from its being of every-day occurrence and necessity, or from the importance of immediate action. The exception was wrested by common sense from the scope of the rule.

Accordingly, when business corporations arose, it must have been tacitly admitted that the daily business need not all be transacted under seal. For instance, the bills of the Bank and of the East India Company were never sealed. The right to make

1 Y. Bka. 9 Edw. IV. 39, 4 Hy. VII. 17 b. 7 Hy. VII. 9,

^ Home V, Ivy, i Vent. 47 ; Dunston v. Imp. Gas Co., 3 B. & Ad. 125, 129; Tilson V. Warwick Gas Co., 4 B. & C. 962, 964.