the company's special Act], which Act incorporates s. 65 of the Companies Clauses Consolidation Act, 1845, for money payable by the defendants to the plaintiff for work done and money paid by the plaintiff in and about obtaining the said Act. 2. The defendants have raised moneys sufficient to satisfy and applicable to the satisfaction of the plaintiff's claim, which is within and under the said s. 65 of the Companies Clauses Consolidation Act, 1845. By the Assignee of a Debt assigned by a Liquidator appointed under the Companies (Winding-up) Act, 1890 (e). 1. The Company, Limited, which was a company registered under the Companies Act, 1862, sold and delivered to the defendant tons of iron at £ per ton, payable on delivery [or, as the case may be]. 2. Afterwards, and whilst the price of the said goods was owing to the said company by the defendant, the said company was being wound up by the Court under the provisions of the Companies Acts, 1862 to 1893, and the liquidator appointed in the winding-up sold and assigned the said debt to the plaintiff. 3. The said debt is still unpaid. Particulars: The goods were delivered on the of 18-. of 18-. Money agreed to be paid by the promoters of a railway company to a landowner for supporting their bill is not within s. 65 above cited. (Earl of Shrewsbury v. North Staffordshire Ry. Co., L. R. 1 Eq. 593; 32 Ì. J. Ch. 156.) Except in cases falling within the last-cited section or other similar enactments, the preliminary expenses incurred in the formation of a company are not, in general, recoverable against the company, a contract made by promoters on behalf of the intended company for the repayment of such expenses being legally incapable of ratification by the company when subsequently formed. (See Kelner v. Baxter, L. R. 2 C. P. 174; 36 L. J. C. P. 94; In re Empress Engineering Co., 16 Ch. D. 125.) (e) The liquidator in a winding-up may assign things in action belonging to the company which is being wound up, and the assignee may bring or defend actions relating thereto in his own name. (Companies (Winding-up) Act, 1890, s. 12 (2); the Companies Act, 1862, ss. 95, 157; and as to voluntary winding-up, see s. 133.) Where the winding-up is under an order of the Court, the liquidator, if a person other than the official receiver, is to be called "liquidator,' and not "official liquidator." (Companies (Winding-up) Act, 1890, s. 4 (3).) See further, "Assignment," ante, p. 105. CONDITIONS PRECEDENT (a). Averment that Performance of a Condition Precedent was excused by the Defendant (b). The defendant excused and discharged the plaintiff from paying or tendering the said £or as the case may be, stating the condition or conditions excused]. Particulars: [State time and mode of excuse.] (a) As to what are conditions precedent to rights of action on contracts, see the notes to Pordage v. Cole, 1 Wms. Saund., 1871 ed., 548; Peeters v. Opie, 2 lb. 742, and Cutter v. Powell, 2 Sm. L. C., 10th ed., p. 1; Leake on Contracts, 3rd ed., pp. 550 et seq. The C. L. P. Act, 1852, by s. 57 modified the earlier practice requiring the pleader to allege expressly the performance or fulfilment of each necessary condition precedent to the rights claimed, by enabling him to make use of a general averment of the performance or fulfilment of such conditions. For this purpose, the form which was commonly in use in actions of contract for the declaration, which was equivalent to the present statement of claim, was "all conditions were performed, and all things happened, and all times elapsed necessary to entitle the plaintiff to have the said promise [or, agreement, or, covenant] performed by the defendant, and to maintain this action for the breach thereof hereinafter alleged " (adding, in some cases, where there were also negative conditions, a further averment to the effect that "nothing happened to disentitle the plaintiff from having such performance or from maintaining this action"); and a similar form was adopted in the case of pleas where there were conditions precedent to the defence. Now, by O. XIX. r. 14, it is provided that "any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant (as the case may be); and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.' The effect of this rule is to obviate the necessity for any allegation of performance or fulfilment of conditions precedent, and to throw on the opposite party the burden of objecting to any failure of the right claimed by reason of non-performance or non-fulfilment of any such condition. Notwithstanding the above rule, it is sometimes convenient to allege the performance or fulfilment of some one or more of the conditions precedent to the right relied upon. (b) Where a condition has not been fulfilled, the implied averment of the performance or occurrence of all conditions precedent, under the rule above cited, would be untrue, and might be met by a denial of the performance of the particular condition. The ground which the party may have for excusing the non-performance could not properly be set up in answer to this denial, and in support of his original averment of the performance of all conditions; for this would be an allegation of fact inconsistent with his previous pleading, or, as it is termed, a "departure," and the ground of excuse could, therefore, properly only be set up by way of an amendment of his original pleading. (See O. XIX. r. 16, cited; “General A like Form, alleging Prevention of Performance by a Breach of the Contract on the part of the Defendant (b). The plaintiff was prevented from performing the said agreement on his part in respect of [state what] by the defendant's breach of the said agreement hereinafter alleged. Particulars: A like Form, alleging that the Defendant disabled himself from performing the Contract (b). 1. The defendant absolutely disabled himself from performing the said contract on his part, and thereby waived and excused the performance by the plaintiff of all conditions precedent on his part to be performed. Particulars: Specific Averment that a particular Condition Precedent has been fulfilled: see R. S. C. 1883, App. C. Sect. V. No. 10, cited Marriage," post, p. 283. Forms of Reply," post, p. 562.) Accordingly, in the case of any necessary condition remaining unperformed, the party should state the matter of excuse in the first instance. This was the rule before the C. L. P. Act, 1852 (Co. Lit. 304, a; Cort v. Ambergate Ry. Co., 17 Q. B. 127; 20 L. J. Q. B. 460; 24 L. J. Q. B. 460), and it has not been altered. If the promiser disables himself from performing the contract on his part, he thereby waives or excuses the performance of future conditions precedent to his liability. (Ford v. Tiley, 6 B. & C. 325; Caines v. Smith, 15 M. & W. 189; Short v. Stone, 8 Q. B. 358; Lovelock v. Franklyn, 8 Q. B. 371; Leake on Contracts, 3rd ed., pp. 580, 749.) The mode by which the promiser has disabled himself should be stated. It is in general a sufficient excuse for non-performance of a condition precedent that the performance was prevented by the breach of contract or wrongful act of the promisee. (See Com. Dig. Condition L.; Roberts v. Bury Commissioners, L. R. 5 C. P. 310, 326; 39 L. J. C. P. 129.) An absolute refusal to perform an agreement, or an absolute repudiation of it, communicated to the opposite party, is a waiver and excuse of the performance by him of future conditions precedent (see Ripley v. M'Clure, 4 Ex. 345; Cort v. Ambergate Ry. Co., 17 Q. B. D. 127; 20 L. J. Q. B. 460; Bank of China v. American Trading Co., (1894) A. C. 266, and the cases below cited), and, if accepted as a termination of the agreement, gives to the opposite party, in general, an immediate right of action, even though the time for performance by the promiser has not arrived (Frost v. Knight, L. R. 7 Ex. 111; 41 L. J. Ex. 79, cited Marriage," post, p. 282; Hochster v. De la Tour, 2 E. & B. 678; 22 L. J. Q. B. 455, cited "Master and Servant," post, p. 285; and see "Rescission," post, p. 808.) 66 (b) See preceding note. CORPORATION (a). Statements of Claim by or against an Incorporated Company (a): see "Company," ante, p. 182; and " Carriers," ante, p. 174. Statement of Claim by a Municipal Corporation (b). 18-. M. No. In the High Court of Justice. Writ issued the of 18-. Between the Mayor, Aldermen, and Burgesses of the Borough of M [or, the Mayor, The plaintiffs' claim is, &c., or, The plaintiffs claim, &c. [proceed to state the cause of action, giving particulars where necessary]. (a) For the mode generally in which corporations aggregate sue and are sued, see Company," ante, p. 182. In the case of an English corporation duly constituted, it is not requisite that there should be any express statement of the fact of its incorporation (see Woolf v. City Steamboat Co., 7 C. B. 103), except in cases where the mode of incorporation is material (see R. S. C. 1883, App. C. Sect. IV., Form No. 9, cited "Company," ante, p. 183). If, however, the corporation is a foreign or colonial one, it is usual and proper that the fact of its incorporation should appear in the pleading. Corporations Sole.]-Where a corporation sole has a name of dignity, he should sue and be sued in that name, his own Christian name being prefixed to his name of office, as for instance, "John, Lord Bishop of (See "Names of the Parties," ante, p. 46.) In other cases, even in actions brought by or against him in his corporate capacity, he sues and is sued in his individual name (see Ib.; and 2 Inst. 666); but where he sues in his corporate capacity, his name of office should be added after his own christian and surname (see Grant on Corporations, p. 636). (b) Municipal corporations are now regulated by the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), which has consolidated the general statute law relating to such corporations. By sect. 8 of that Act, the proper style of the municipal corporation of a borough is "the mayor, aldermen and burgesses of the borough of -;" and the proper style of the municipal corporation of a city is, the mayor, aldermen and citizens of the city of By a County Council (c). Between the County Council of [Monmouthshire], Plaintiffs, and (c) County councils were established by the Local Government Act, 1888 (51 & 52 Vict. c. 41). By s. 79 (1) of that Act, "the council of each county shall be a body corporate by the name of the county council, with the addition of the name of the administrative county, and shall have perpetual succession and a common seal." By s. 64 (1), all county property held by county justices, &c., for the public purposes of the county was (with certain exceptions therein specified), transferred to and vested in the council of the county, subject to all debts and liabilities affecting the same. (d) By the Local Government Act, 1894 (56 & 57 Vict. c. 73), a district council is created for every rural sanitary district (see s. 21), and is incorporated by the name of the district council with the addition of the name of the district, and has perpetual succession and a common seal (see s. 24 (7)). All urban sanitary authorities are to be called urban district councils, except that the style or title of corporations and councils of boroughs is not to be altered. (See s. 21.) All urban sanitary authorities, not otherwise incorporated, were incorporated by s. 7 of the Public Health Act, 1875, with perpetual succession and a common seal, and that section is not affected by the Local Government Act, 1894, consequently all urban district councils are bodies corporate. By the Local Government Act, 1894, s. 3 (9), every parish council shall be a body corporate, by the name of the parish council with the addition of the name of the parish, and have perpetual succession; but, instead of a common seal being granted, it is enacted that in cases where an instrument under seal is required, it may be under the hands and seals of the chairman presiding at the meeting, and two other members of the council. In those smaller rural parishes which have not a parish council, the chairman of the parish meeting and the overseers are a body corporate by |