1840. THIS BALL v. Ross. May 29. plaintiff, in an action of trespass, was a man in HIS was an action of trespass, and Shee Serjt., in Where the the course of last term, obtained a rule calling upon the plaintiff and one William Boards to shew cause why the latter should not give security for the defendThe motion was grounded upon the affidavits of the defendant and those of two clerks of his attorneys, stating facts tending to shew that Boards had ant's costs. humble circumstances, and it appeared that the action was brought at instigated the action, which was conducted by his attorneys, and that the plaintiff was his tenant, and a the instigation person in humble circumstances. The affidavits of the The affidavits of the and costs of his landlord, the court clerks set forth conversations held with the plaintiff, wherein he was alleged to have admitted that he had stayed the no interest in the action, but had signed the authority until the proceedings for bringing it at his landlord's request, without being latter gave the aware of the object of the document, which, had he known its nature, he would not have signed. Wilde S. G. now shewed cause, upon the affidavits of the plaintiff and Boards. The plaintiff, in his affidavit, gave a direct contradiction to the affidavits on the other side, both with reference to the alleged conversations and the admissions stated to have been made by him; asserting that, although he had the concurrence of his landlord in bringing the action, he acted voluntarily, and on his own behalf, and to protect his own rights and interest as tenant of the premises in respect of the trespass on which such action was commenced. The landlord, in his affidavit, stated that his reason for countenancing the action by his tenant was a belief that, if the plaintiff submitted to the trespass which had been committed, the defendant would repeat it, and defendant security for his costs. 1840. BALL v. Ross. would take advantage of the poverty and forbearance of the plaintiff to use his own illegal conduct as evidence of legal right; and that he (the landlord) had sanctioned the proceedings, from a conviction that they were necessary to protect the plaintiff in his possession, and from feeling that he ought not to be denied justice by reason of his poverty. It is submitted that the fact of the plaintiff being assisted by his landlord is not a sufficient ground for compelling the plaintiff to find security for the costs, neither is the circumstance that the landlord may be responsible to his own attorneys for the plaintiff's costs a reason why the landlord should give such security. It is alleged that the action is brought in the name of the tenant for the benefit of the landlord, but it is not suggested that the latter can derive any advantage from the proceedings, or that they involve any question of title. Tindal C. J. Shee Serjt., in support of the rule, contended it was clear that the action had been brought at the instigation of the landlord, and that the case fell within the rule laid down in Hearsey v. Pechell. (a) there said, "The real question is, whether this is the action of the plaintiff, or substantially the action of Mr. Wood? If it were an action which the plaintiff would not have brought but for the instigation and countenance of Wood, the case would fall within the principle of Tenant v. Brown (b), and another case in the court of King's Bench, where a master was compelled to pay costs for his servant, whom he had put forward as a defendant instead of himself." (a) 5 New Cases, 466.; 7 Scott, 477. And (b) 5 B. & C. 208. & R. 442.; 10 B. & C. 113. n. Thrustout v. Nixon, 10 B. & C. 112.; 5 M. & R. 443. n. TINDAL C. J. Taking the whole of the affidavits together, I cannot help thinking that this is really and substantially the action of the landlord, and that the proceedings ought to be stayed until he shall give security for the costs. The rest of the court concurring, (a)" The Court will not make a rule in replevin, that he, in whose right the defendant avows (makes cognizance), should enter into a rule to pay costs; for he might have been made a party to the action." Anon. Comberbatch, 242. Formerly, if, in an action of Rule absolute (a). replevin brought by A. against 1840. BALL V. Ross. 1840. An act incor porating a joint-stock company di The SOUTHAMPTON Dock Company v. RICHARDS. DEBT for the first call, of 21. 10s. per share made by rects that the company shall, from time to time, cause the names, additions, and places of abode of the several persons entitled to shares in the undertaking, with the number of shares which they are respectively entitled to hold, and the amount of subscriptions paid thereon, and the number by which each share shall be distinguished, to be entered in a book to be kept by the secretary of the company, and that, in an action for calls, the production of the book in which the secretary is directed by the act to enter and keep a list of the names, additions, and places of abode of the several proprietors of shares, with the number and shares which they are respectively entitled to hold, shall be primâ facie evidence to prove the defendant a proprietor, and the number and amount of his shares. In an action against A. for calls, it is no objection to the admissibility of the book produced, as the book kept under the act, to prove him a proprietor, that an irregularity or omission is shewn to exist with respect to the entries in the book relating to other shareholders; the provisions as to the entries to be made in the book being directory only and not essential. Such an enactment does not require that the entries should be made by the secretary with his own hand. The statute also directs that the directors of the company shall keep a regular minute and entry of the orders and proceedings of every meeting of the directors, which shall be signed by the chairman at each respective meeting, and that the minutes and entries of the respective meetings, when so signed, shall be deemed original orders and proceedings, and shall be allowed to be read in evidence without proof that the meetings were duly convened, or that the persons making or entering such orders or proceedings were proprietors or directors of the company. Held, that signature of the minutes of the meeting by the chairman at the following meeting at which the same chairman presides, is sufficient. The statute having given power to the directors of the company to make calls, it was held that the power might be exercised by the court of directors, the statute appearing to treat the terms, "the directors 66 and a court of directors," as equivalent expressions. Where a statute empowers a joint-stock company, in actions against shareholders for calls, to declare and allege that the defendant, being a proprietor of so many shares, is indebted to the company in such sum of money as the calls in arrear amount to, for so many calls of such sums of money upon so many shares belonging to the defendant, whereby an action hath accrued to the company by virtue of the act, without setting forth the special matters; and that on the trial of such action, it shall only be necessary to prove that the defendant, at the time of the making 1840. AMPTON Dock v. RICHARDS. of such re ively. The declaration against Richards, (and in seventeen other actions, varying only as to the amount of calls) agreeably to the form given by the act, stated that the de- The SOUTHfendant, on &c. being a proprietor of divers, to wit, forty shares in the undertaking mentioned in a certain act of Company parliament, made and passed in the sixth year of the reign of King William the Fourth, intituled "An act for making and maintaining a dock or docks at Southamp- spective calls, ton," was indebted to the said company in 100l., for one was a procall of 21. 10s. upon each of the said shares in the said prietor of undertaking, belonging to the defendant, whereby an action hath accrued to the said company, by virtue of the said act of parliament, to demand and have of, and from, the defendant, the sum of 100l. above demanded: yet the defendant, although often requested so to do, hath not as yet paid the sum of 100l. above demanded, or any part thereof; to the damage of the said company given as diof 100l. Plea: nunquam indebitatus. At the trial of the first action (a), that against Richards before Erskine J. at the sittings at Guildhall in last Michaelmas term, the following facts appeared. such shares as such action is brought in respect of, and that such calls were in fact made, and that notice thereof was rected by the act, without proving the appointment of the directors who made Richards, being an original subscriber, was named such call, or any other matter what that the com pany shall in the Dock Act as one of the persons thereby incorporated. The course of proceeding before the passing soever, and of the act was this: Upon the payment by a party of the deposit upon the shares allotted to him, a receipt thereupon be was given, signed by the bankers, by which the bank- entitled to ers acknowledged that they had received the amount, shall appear not from the party paying, but from the company. due, including recover what interest at 5 per cent: the proper course is for the company to declare for the bare amount of the calls, and for the jury to add the interest (qu. as debt, or as damages (b)). It is not necessary to insert a count for interest; nor ought the amount of the interest to be added by the plaintiffs to the calls, and declared for as part of the calls. (a) In a similar action, Coltman J. having directed the jury strongly for the defendant, a bill of exceptions was tendered, on which no decision has yet taken place. London Grand (b) Post, 464. 467. |