such as ought to be made on an ordinary occupation, exclusive of trade, and also all such matters as are distinctly referable to the trade only, and do not enhance the value of the occupation. If so, the principle of the rate is right: whether sufficient in amount under each head has been allowed it is not for us to determine. Nine heads are first stated, which are intended to represent the annual expense of keeping in repair the way, stations, and other buildings, the rates and taxes, other than the property tax payable on them, the expenses of directing and carrying on the business, the government duty on passengers, and some incidental charges connected with the trade. Thus far the outgoings allowed for are annual. The appellants here first object, that besides an allowance for the merely annual repairs, they are entitled to one in respect of the depreciation and wear and tear of the rails and sleepers, the solid timber and iron work of their own principal line; and this, although hitherto they have not charged such expense against their income, but defrayed it out of their capital. In the case of the Grand Junction Railway, such an allowance was conceded; it is now disputed, and the circumstances must, therefore, be examined. In themselves, perhaps, repairs of the kind now under consideration are not to be distinguished in principle from what the case denominates maintenance of the way, and which the appellants include under their annual expenses; and although not called for in any particular year, yet if in the certainty that the charge would, in a given time, accrue, a proportionate sum had been actually deducted from the actual revenue to meet it, we see no reason why an allowance should not be made for it, as much as for the annual repairs actually done in the course of the year. But as, in the case of these last, the fact of repairs being needed would not entitle to a deduction unless they were done, and the charge incurred, so in the present case, as no deduction has been made from the revenue, it appears to us that no allowance can be made. For their own purposes, and, as suggested in argument, in violation of their act of parliament, the company have chosen to defray the amount, trifling probably, at present, out of their capital; so they have given that

which they now seek to consider as tenant's repairs the character of landlord's improvements, the capital expended for which will swell the rateable value of the land, but not be allowed in the rate. The appellants next claimed to deduct the rateable value of the buildings appurtenant to their own line, and also to the branch lines respectively, and rated or rateable elsewhere than in the respondent parish, separately from the railway itself. This also is an allowance which was conceded in the case last referred to; for it would be hardly worth while to distinguish between those rated and rateable only; and we have no means of drawing the distinction in fact. It is to be remembered, that the respondents properly treat the whole line, the whole profits, the whole outgoings, as entire; and then the question is, whether there is any distinction between this and other outgoings necessary to the earning the profits, by which the rateable value of the land in the respondent parish is enhanced. It seems to us there is none: and if so, we agree with the learned counsel for the appellants, that in principle it is indifferent whether the station be in the same parish or at a distance. The appellants claim, thirdly, an allowance for 21,000l. yearly interest on the sum expended in forming their company, obtaining their act of parliament, raising their capital, and other original expenses. For this there is no foundation. These expenses have no connexion with the rateable value of the railway; they might all have been incurred, and no railway ever constructed. might the purchaser of an estate with borrowed money, and after an expensive litigation as to the title, claim to deduct his interest and expenses from the poor-rate on the land when in his occupation. They neither add to the value of the occupation, nor are in any way necessary to the making it up. The appellants then claim to be allowed in respect of 10,000l. paid by them as income tax, under the 5 & 6 Vict. c. 35. This claim is very shortly and unsatisfactorily stated. In respect of what the payment has been made, we are not informed on either side; the argument in respect of it was short. The respondents treated the claim as made in respect of the charge on the property in land payable by the owner;

As well

8

the appellants claimed it in respect of the charge on the occupation payable by the tenant and to this extent, at least, it does not strike us that there is any reasonable distinction between this and any other outgoing chargeable on the tenant, which would certainly affect the amount of the rent he would be willing to pay. The fifth I claim is to be allowed for such additional parochial assessments as may become payable-it is not said when or where-in consequence of the recent decisions of this Court; upon which we will only say, we think the Court would have been well justified in refusing to permit this item to form part of the case. In the sixth place, the appellants claim to be allowed a deduction in respect of their loss on the two branch lines before referred to: we think this cannot be allowed. If the rate in question had been imposed on land forming any part of the branch lines themselves, it is clear that the circumstance of the receipts not equalling the rent, in other words, that the line was worked at a loss, could not have affected the rate : the occupation would still have been beneficial, in the sense in which that word is used for the purpose of assessing the rate; and the rent, which, from whatever motive, the appellants found it worth their while to give, would have regulated the amount. This is not that case, in the way in which it is sought to make this expenditure bear on the rates assessed on any part of the main line; it is more like money laid out in the way of improvement, for which no deductions should be made. If the lessee of a coal mine were to open roads through adjoining lands rented under a separate demise, in order to facilitate the access of customers to the mine, and so increase its profits, the expense of such roads would certainly not be an outgoing to be allowed for by the overseers. Two more questions are stated: the first, as to the mode of ascertaining the tenants' profit, in order to their deduction from the rateable value. The respondents have taken the original value of the plant, or moveable stock, and allowed 10l. per cent. upon it, for their profits, as the profits of trade. The appellants say, that the more correct mode would be to ascertain them by a per-centage on the gross receipts, and claim to have 15l. per cent. deducted from

They

these on that account. We are very unwilling to withhold our aid in settling questions for the Sessions of such novelty and difficulty as the railway rating must often bring before them; but we ought not to go beyond our province, and so, perhaps, mislead them. This question involves no principle of law, and we decline to answer it. The last is only raised by the respondents provisionally, in case any of the deductions claimed by the company should be allowed by us; but this has been done. In ascertaining the tenants' profits, they have calculated a per-centage on the original value of the moveable stock; but the Sessions have found, that at the time of the rate being made, the value had become less by 80,000l., and the respondents contend, that the per-centage should properly be paid on the smaller sum. This seems to us correct: they are to make the rate from year to year, or for whatever shorter period, conformably to the facts, as they exist at the time of making it. may not know, nor have any means of knowing what the value was originally, or in any former year. If, at the end of five or ten years, they are to be driven back to the original value, they may be equally required to ascertain it after an interval of a century. No hardship is inflicted on the appellants by this; they may, and they ought as prudent owners, to keep up the stock at its original value, and in this very case they have claimed a deduction for doing so. If that claim was properly made, the original and present value would be the same. Although, however, we thus answer this question in favour of the respondents, they cannot avail themselves of the decision so as to increase their assessment beyond its present amount. The consequence of the several decisions we have come to, will be the amendment of the rate in one or two particulars; but as the sums are ascertained by the Sessions, this may be done, we presume, by the counsel, without remitting the case again to the Sessions.

Rate to be amended.

Poor Law-Board of Guardians-Corporation Contract under Seal, Survey and Plan of Parishes-6 & 7 Will. 4. c. 96.— Parochial Assessment.

The Poor Law Commissioners, upon the representation of the board of guardians of the union, made at the request of the parish officers of C, one of the parishes of the S. union, ordered the guardians to have a survey and plan made of the parish of C, for the purposes of the stat. 6 & 7 Will. 4. c. 96. The board of guardians contracted under seal with the plaintiff to execute the survey and plan for 500l. After its completion they verbally ordered him to prepare a reduced plan as a key to the larger plan. It was executed accordingly and delivered to the board of guardians :-Held, as the contract for the reduced plan was not under the seal of the board of guardians, nor incident to the purposes for which they were incorporated, that it was not binding on them.

Assumpsit for work and labour, journeys and attendances, and goods sold and delivered.

Pleas-Non assumpsit, and payment.

At the trial, before Patteson, J., at the Middlesex Sittings in Michaelmas term, 1844, it appeared, that upon the representation of the defendants, made at the request of the parish officers of St. Clement Danes, one of the parishes of the Strand Union, the Poor Law Commissioners had, under the Parochial Assessments Act, (6 & 7 Will. 4. c. 96. s. 3.) ordered the defendants to have a survey and map executed of the parish of St. Clement Danes, for the purpose of having a fair and correct estimate made of the net annual value of the hereditaments to be rated in that parish. The defendants thereupon contracted with the plaintiff by agreement under seal to complete such survey and map for 500l., and they were executed accordingly. Subsequently, an order not under seal was given by the defendants to the plaintiff, to execute a reduced plan, as a key to the larger plan, and to resurvey certain parts of the parish. He was also

NEW SERIES, XV.-MAG. CAS.

required to attend certain special sessions to give evidence upon the hearing of some appeals against the rates made in pursuance of his estimate. The action was brought to recover the value of these items, none of them being included in the agreement under seal.

It was objected by the defendants' counsel, that the defendants, being a corporation, could not bind themselves by a contract not under seal; and further that the plaintiff had no right to recover for his attendances before the Magistrates at petty sessions. The learned Judge reserved leave to the defendants to move to enter a nonsuit upon the first objection, and to reduce the damages by the sum of 81. 8s. on the second objection. The plaintiff had a verdict for 231. 2s.: viz. 81. 8s. for the reduced plan, 61. 6s. for the resurvey, and 81. 8s. for his attendances at the petty sessions.

In the same term,

Platt obtained a rule nisi for a nonsuit, or to reduce the damages pursuant to the leave reserved, citing The Mayor, &c. of Ludlow v. Charlton (1), and Arnold v. the Mayor of Poole (2).

Willmore (Dec. 9) shewed cause.-First, this question does not depend upon the general principle, that a corporation cannot bind themselves except by deed. For the board of guardians are not, strictly and for all purposes, a corporation. Under the stat. 4 & 5 Will. 4. c. 76. they were not constituted a corporation, but only a board of individuals. Then came the stat. 5 & 6 Will. 4. c. 69, the preamble of which announces and limits its object: "Whereas there are certain legal difficulties attending the title, purchase, sale, and disposal of property, which, with respect to work houses, and other property belonging to parishes, incorporations, or unions, it is expedient to remove; and it is also expedient to simplify the assurances for the conveyance, exchange, or transfer of such property," &c. By the 7th section of that statute, for the more easy execution of the purposes of this act, and of the laws relating to the poor," it is enacted, that the guardians of the poor of

(1) 6 Mee. & Wels. 815; s. c. 10 Law J. Rep. (N.S.) Exch. 75. (2) 4 Man. & Gr. 860; s. c. 12 Law J. Rep. (N.s.) C.P. 97.

N

every union, shall be,-not absolutely, but"for all the purposes of the act, a corporation ;" and then the section goes on to define in detail the various properties and powers which are thereby conferred on them; which enumeration would have been unnecessary, if they had been absolutely created a corporation, because all the incidents of a corporation would in that case have thereby at once attached to them. The schedule to the same statute also shews, that it was intended to give them only certain limited corporate powers. And this is confirmed by similar language used in the stat. 5 & 6 Vict. c. 57. s. 16, where boards of guardians are empowered to act in certain cases as a corporation, not that in every case they are to possess that character, but "to be sued and sue in their corporate name." In The Mayor of Ludlow v. Charlton, Rolfe, B. observed, "Boards of guardians are only corporations for particular purposes." But, secondly, supposing the defendants to be a corporation, they are still liable, though the contract was not under seal, being within the principle of the exceptions to the general rule. "Wherever to hold the rule applicable would occasion very great inconvenience, or tend to defeat the very object for which the corporation was created, the exception has prevailed"-Lord Denman, C. J., in Church v. the Imperial Gas Light and Coke Company (3). Here the guardians are incorporated for the express purpose of "the more easy execution of the laws relating to the poor." It would be utterly impracticable to administer those laws, if guardians were in all cases compelled to contract under their common seal. The items for which the plaintiff has recovered a verdict are all charges for matters directly incident to the very purpose for which the board of guardians are constituted a corporation. The survey, the plan, and the valuation of the parish were essential for the purpose of calling into existence the new rates of which the guardians have the distribution. Another ground of exception from the general rule is, the fact that the matter contracted for is of small amount. The original plan here cost 500l.; the reduced plan, which was necessary as a key to it, and which was ancillary

(3) 6 Ad. & El. 861; s. c. 7 Law J. Rep. (N.S.) Q.B. 118.

and auxiliary only to that which the defendants have contracted for under seal, is charged 81. 8s. only. It would be as absurd to require a contract under seal for such a matter, or for attendance at a petty sessions, as it would be for a contract for every pound of meat which may be required for the food of the paupers. Again, the contract has been executed, and the defendants have had the benefit of it: in such case no contract under seal is necessary-East London WaterWorks v. Bailey (4), Beverley v. the Lincoln Gas Company (5), De Grave v. the Mayor and Corporation of Monmouth (6). The cases cited on moving for the rule do not apply here. In Arnold v. the Mayor of Poole, the charges did not come within the exceptions to the admitted general rule. The contract there was not made in the ordinary course of the defendants' functions as a corporation, and it was also for a very large amount. So in The Mayor of Ludlow v. Charlton, the subject matter of the contract amounted to 500l. So in The Fishmongers' Company v. Robertson (7), the contract was to pay the plaintiffs 1,000l., and it was held to be not such a contract as fell within the exceptions to the general rule requiring corporate contracts to be under seal; but in that case, the contract having been executed, the defendants were held bound by it. As to the attendances at the sessions, the plaintiff was entitled to be remunerated for his loss of time, the defendants having contracted so to remunerate him, and not having subpoenaed him-Collins v. Godefroy (8), Lonergan v. the Royal Exchange Assurance (9).

[LORD DENMAN, C.J.-I do not understand a bargaining to give evidence, especially in a case where, if the party for whom he appeared was successful, he might recover the costs from the other side.]

It is doubtful whether his attendance could have been compelled by legal process.

[LORD DENMAN, C.J.-Some such means must exist. Why not a Crown Office sub

(4) 4 Bing. 283; s. c. 5 Law J. Rep. C.P. 175. (5) 6 Ad. & El. 829; s. c. 7 Law J. Rep. (N.S.) Q.B. 113.

(6) 4 Car. & Pay. 111.

(7) 5 Man. & Gr. 131; s. c. 12 Law J. Rep. N.s.) C.P. 185.

(8) 1 B. & Ad. 950; s. c. 9 Law J. Rep. K.B. 158. (9) 7 Bing. 725.

pœna?-The Queen v. Greenaway (10), The Queen v. Carey (11)].

The plaintiff will abandon his claim for attendances.

E. V. Williams and Pashley, contrà.The statute 5 & 6 Will. 4. c. 69. s. 7. may be somewhat superfluously worded; but the board of guardians are thereby created a corporation, and all that is added may be rejected as surplusage. If they are to be sued in their corporate name, it is difficult to contend that they are not a corporation. The whole learning on this subject is to be found in The case of Sutton's Hospital (12) and The Conservators of the River Tone v. Ash (13). Being a corporation, they can only bind themselves by deed, and the present contract is not brought within the exception to that general rule. In the first place, the attempted distinction between executed and executory contracts, was expressly denied in Church v. the Imperial Gas Light and Coke Company. In the next place, there is a clear distinction between the case of a corporation when plaintiffs and when defendants. A corporation may sue on a parol contract, though they cannot be sued upon it-Beverley v. the Lincoln Gas Light Company and The Fishmongers' Company v. Robertson: just as, under the Statute of Frauds, a plaintiff may sue upon an instrument signed by the defendant only, though he himself would not be liable upon it by reason of his nonsignature.

[LORD DENMAN, C. J. Suppose the guardians to have lost their seal, and that they had bought meat largely for the food of the paupers, could they take advantage of their own wrong, and refuse to pay for what they had had? Can there be a stronger necessity than the necessity of doing justice by paying for that of which they have obtained possession, and which they do not return?]

In the case supposed, if the guardians acted without proper authority, trover might lie against them. But the strict rule of law prevents them from contracting except under seal; and it is safer to adhere to that

rule, and not extend the exceptions to it. Can it be said that this contract is within the principle of the exception, as laid down in Gibson v. the East India Company (14) and The Mayor of Ludlow v. Charlton. Was it a contract," the allowance of which is necessary for, or incidental to, the carrying into effect the purposes and objects for which the corporation was originally created;" or was it one of necessity, or of paramount convenience, amounting to necessity, for the existence and carrying on of the corporation? It was no part whatever of the duty of the guardians to have this reduced plan made. It was a plan for a particular parish in the union, and for the benefit of that parish only, not for the purposes of the union, for which alone the defendants are incorporated. Nor could it be a matter of necessity, for the contract for the large plan was under seal, and no reason can be given why this should not have been included in the same

contract.

[LORD DENMAN, C.J.-How can you distinguish this case from De Grave v. the Mayor and Corporation of Monmouth?]

That was a Nisi Prius decision only, which cannot be supported.

Cur. adv. vult.

(Feb. 12th) delivered by— The judgment of the Court (15) was now

LORD DENMAN, C.J.-This was an action of assumpsit for work and labour, to which the defendants pleaded the general issue. At the trial, it appeared that the defendants, who are a corporate body by statutes 5 & 6 Will. 4. c. 69. s. 7, and 5 & 6 Vict. c. 57. s. 16, had, by direction of the Poor Law Commissioners, under 6 & 7 Will. 4. c. 96. s. 3, proceeded to make a survey and map of the parish of St. Clement Danes, one of the parishes comprised in the Strand Union. An agreement, under seal, was entered into between the defendants and the plaintiff, for making such plan and survey, and they were accordingly made; but afterwards it became desirable that a reduced plan should be made, for which a verbal order, not under seal, was given to the plaintiff. The action was brought for the price of such

(14) 5 Bing. N.C. 262; s. c. 8 Law J. Rep. (N.s.) C.P. 193.

(15) Lord Denman, C.J., Patteson, J., and Wightman, J.