defendant was a proprietor in the company, and the action was brought against him in respect of calls. He [554] had suffered judgment by default on the 10th of March last; but the affidavit on which the motion was made, [555] stated that it had only lately come to his knowledge, that there were only seven directors of the company at the time the calls in question were made.

company, and alter and vary the same from time to time as they in their discretion shall think fit; and all such rules and regulations shall have the force of bye laws, provided the same be not repugnant to any of the provisions of the act, nor to any bye law which may have been duly passed at any general or special meeting of the proprietors of the company; and no individual proprietor, not being a director (except as hereinafter provided), shall have a right to any interference, management, direction, or control in or over the business and concerns of the company, or the capital, stock, or effects thereof.

Sect. 109 enacts that nine individuals, therein named, shall be the first directors of the company, and that they shall, unless they or any of them shall sooner die, resign, or become disqualified, as thereinafter mentioned, continue in office until the first general meeting of the company to be held after the passing of the act; that at such meeting, all the directors shall go out of office, and twelve directors shall be elected in their place and stead, who shall continue in office until the first half-yearly meeting of the company in the year 1838; that at such half-yearly meeting in 1838, three of the directors who shall have been so elected as aforesaid (to be determined by ballot amongst themselves) shall go out of office; that at each first half-yearly general meeting in the three following years, three of the directors who shall have been so elected as aforesaid (to be determined by ballot amongst themselves) shall go out of office, and at each half-yearly general meeting in every subsequent year the three directors who shall have been longest in office since their last election, shall go out of office; and at every general half-yearly meeting at which three directors are to go out of office as aforesaid, three new directors shall be elected.

Sect. 110 provides and enacts, that any director who shall, by ballot or rotation, go out of office, may be immediately or at any future time re-elected by the company as a director, and that after such re-election he shall, with reference to the going out in rotation, be considered as a new director.

Sect. 111 provides and enacts, that no person holding any office, &c., or being concerned or interested in any contract, under the company, shall be capable of being chosen, or of continuing, a director, nor shall any director be capable of accepting any office, place, or employment, or of taking, or being concerned, or interested in any contract under the company; and that in either of the said cases, the party so offending shall forfeit the sum of 501. during the time he shall be a director; and that if any director shall, at any time subsequent to his election, accept or continue to hold any other office or place of trust or profit under the company, or shall either directly or indirectly be concerned in any contract with the company, or shall participate in any manner in any work to be done for the company, or shall at any time cease to be a proprietor of ten shares at least in the undertaking, the office of such director shall thereupon become vacant, and he shall thenceforth be disqualified from voting or acting at any succeeding meeting of directors: provided nevertheless, that until the disqualification of any director shall have been communicated to, and recorded by, a court of directors, every act and proceeding to which such disqualified director shall have been a party, shall be as binding and effectual as if no such disqualification had taken place provided also, that it shall be lawful for any general meeting to exempt any particular person from the operation of this present clause, in case they shall deem it advantageous so to do.

Sect. 112 enacts, that when any director elected by virtue of the act, shall die or resign or become disqualified or incompetent to act as a director, or shall cease to be a director by any other means than by going out of office, it shall be lawful for the remaining directors to elect some other proprietor duly qualified to be a director; and that every such proprietor so elected to fill up any such vacancy, shall continue in office so long only as the person in whose place or stead he may be elected would have been entitled to continue in office had he lived and remained in office.

Sect. 116 enacts, that the directors for the time being shall meet together at the office of the company once at least in every two calendar months, and at such other

[556] The learned serjeant contended that, as by the 108th section (supra, 552), all the business and concerns of the company were to be carried on by twelve directors, and that as there were only seven at the time the calls were made, in respect of which the action was brought, there were no proper parties to maintain the action. [Maule J. The 112th section (supra, 554) says, that when any of the twelve directors shall die, &c., "it shall be lawful for the remaining directors to elect some other proprietor, &c., to be a director." It does not say it shall be necessary to do [557] so. Cresswell J.

times as they shall think proper, and at such other times as they shall be convened as thereinafter mentioned; and each of such meetings shall be styled a court of directors ; but that no meeting shall be deemed a court competent to enter and determine upon business unless at least five directors shall be present at the commencement of the business, and when a decision takes place upon the whole or any part of the business; and if, on the day appointed for such meeting, a sufficient number of directors to constitute a court shall not attend, then and in every such case the meeting shall be adjourned to the next or some subsequent day by the directors then present, but if none be present, then by the secretary of the said company, or such other person as shall attend in his place; and that any director shall be at liberty to call an extraordinary meeting of directors, upon such notice and in such manner, and to consist of at least such number (not being less than five), as shall from time to time be provided by the bye-laws of the company, or the orders of the court of directors, &c.

Sect. 118 enacts, that the directors shall have full power from time to time to make such calls of money from the several subscribers to, and proprietors for the time being of, the undertaking, not exceeding in the whole, including the sums already paid in respect of such share, the sum of 1501. for each share, as they shall from time to time find necessary for the purposes of the undertaking; so that no call shall exceed the sum of 51. upon each share in the undertaking, and so that the total amount of such calls in any one year shall not exceed 201. upon each share, and that there shall be an interval of three calender months at least between every two successive calls; and that such several sums of money so to be called for shall be paid into such bank or banks, or to such person or persons and at such time and place and in such a manner, as the directors shall from time to time order and appoint, and that of such time and place twenty-one days notice at the least shall be previously given by advertisement, under the hand of the secretary for the time being, inserted in two or more London newspapers, and in one or more newspaper or newspapers usually circulating in the county of Essex.

Sect. 119 enacts, that the court of directors for the time being shall have full power and authority to use the common seal on behalf of the company; and that all contracts in writing relating to the affairs of the company, which shall be signed by any three of the directors in pursuance of a resolution of a court of directors, shall be binding on the company and all other parties thereto, their respective successors, heirs, &c. and actions and suits may be maintained thereon, and damages and costs recovered by or against the company or any other parties thereto, failing in the execution thereof.

Sect. 123 enacts, that the several parties who have subscribed, or who shall hereafter subscribe, for or towards the undertaking, and every proprietor of any share in the undertaking, shall pay the respective sums of money by them respectively subscribed for, or such parts or proportions thereof as shall from time to time be called for by the directors, by virtue of and pursuant to the powers and authorities of the act, to such persons and at such times and places as the directors shall from time to time, in manner therein before mentioned, direct and appoint; and that if any proprietor of any such shares shall refuse or neglect to pay his ratable proportion of the money, so to be called for at such time and in such manner as aforesaid, hen and in such case, and so often as the same shall happen, such proprietor shall pay interest for the same after the rate of five pounds per centum per annum, from the day appointed for payment thereof up to the time when the same shall be actually paid; and that if any proprietor of any such share shall neglect or refuse to pay such his r table proportion, together with interest (if any) accruing for the same, for the space of one calendar month next after the day appointed for the payment thereof, then it shall be lawful for the company to sue for and recover the same, with full costs of suit, in any of His Majesty's courts of record, by action of debt or on the case, or by bill, &c.

Is there any thing in the act that requires the action to be brought by twelve directors] Not in express terms; but it is submitted, that as twelve directors are required to transact the business of the company, when there are not so many, there is in fact no company. The expression, that "it shall be lawful" for them to proceed to an election in cases of a vacancy, must be construed in an imperative sense (vide 1 Wms. Saund. 58, n. (1)). The 116th section (supra, 554) provides that five directors may act as a quorum, but the five must be part of the twelve. [Maule J. The other directors may have died or become disqualified.] Then the remaining directors are bound to proceed to a new election. [Tindal C. J. There must be some interval between the death of a director and a re-election. Maule J. Or there may not remain twelve shareholders with ten shares each, which is the qualification requisite to become a director.] In that case the corporation would be at an end. [Maule J. There might be ground for applying for a mandamus in the present state of the company, to order them to proceed to a new election; but it would be going a great way to set aside the proceedings in an action.] Suppose there were only one director left, it could not be said that the company was then properly constituted so as to sue other parties. And the same principle will apply to the present state of facts. [Coltman J. There does not appear to be any irregularity on the face of the proceedings?] There does not; but they would appear equally regular if the action were brought by a stranger in the name of the company. In such a case the court would set aside the proceedings, on the ground that the action had been brought without authority. [Maule J. There might be some ground for that argument if the application were made on the [558] part of the company; but here, they appear to approve of the action. They might, if they had thought proper, have called a meeting and instructed counsel to state that the action was brought without their authority.] It is submitted that it is equally open to the defendant to rely upon that point, as there are no parties in existence legally competent to authorise the action. The present application has been made at the earliest possible period, as it appears from the affidavit that it was only during the present week that the defendant discovered there were only seven directors when the calls were made upon which the action is brought. [Maule J. It may be, that only seven attended at the meeting. Tindal C. J. Or the number may have been filled up before the action was brought; and the twelve directors may have adopted the acts of the seven. Cresswell J. The 123d section (supra, 556) says, that "it shall be lawful for the company to sue."] But the company have no power to act unless there are the proper number of directors. [Coltman J. If the defendant had paid these calls, could he have been required to pay them again?] It is submitted, that if fresh calls had been made by a meeting of twelve directors, he would have been liable to pay those calls. In order to constitute a proper meeting, it is necessary to summon twelve directors; five of whom may act. But, in the present case, there can have been a summons of seven only; and five of that number have no power either to make calls, or to authorise the action being brought.

TINDAL C. J. This is confessedly a case of the first impression, no precedent having been shewn for a similar application.

The first observation that occurs is, that this is a [559] very late period for making the application. The judgment was signed in March, and the defendant at that time. had all the means of knowledge which he now possesses, so far as they are derived from the act of parliament, and an inspection of the books of the company; but he does not make this application till nearly the middle of Trinity term, when the consequence of acceding to it would be, that the proceedings would stand over till after the long vacation.

But, independently of this, I think there is no ground for the present application. The action is brought by the company for a debt, admitted by the defendant to be due, as he has allowed judgment to go by default. The act says that the company may sue; and they have sued in this instance. It is however contended, that upon this power to sue must be ingrafted, what is said in another part of the act that the business and concerns of the company shall be carried on under the management of twelve directors; but that I think is matter of direction only. If any party is dissatisfied with the proceedings of the company because there is not the full number of directors, he may apply for a mandamus to have the number completed. If the fact of the number not being completed is an answer to an action for calls, it is pleadable as such, and ought to have been pleaded in this instance; but a defendant can

not apply to the equitable jurisdiction or the discretion of the court, to set aside a judgment upon grounds which might have been pleaded as an answer to the action. It appears to me, that the proper parties to the record being before us, and the debt being admitted, the court ought not-especially at this period of time-to interfere in the matter.

COLTMAN J. This is an application to the summary jurisdiction of the court, which ought not to be acceded [560] to, unless for the purpose of furthering justice. It has not been shewn that, if the money were paid in this action, it could be recovered again from the defendant: and it appears to me that it could not. I agree, therefore, that there ought to be no rule.

MAULE J. I am of the same opinion. I do not think that, according to the act of parliament, it is necessary that there should be always twelve directors of the company. The question depends upon sects. 109, 110, 111 and 112 (supra, 553, 554). [The learned judge read those sections.]

By sect. 112, in the case of death or disqualification of any of the directors, a power is given to the remaining directors to elect others, but it is not compulsory on them to do so. If they are of opinion that the number of directors is not sufficient to enable them to carry on the affairs of the company, they may elect others. At present there are only seven directors; but it may be, that seven are a sufficient number for the purposes of the company. It appears to me that the provision referred to is a mere arrangement as to the internal affairs of the company, and that it does not apply to their external affairs, or prevent them from enforcing calls that have been duly made.

CRESSWELL J. concurred.
Rule refused.

[561] CROTTY v. HODGES. May 30, 1842.

[S. C. 5 Scott, N. R. 221; 11 L. J. C. P. 289.]

B., by the authority of A., wrote the name of A. as acceptor upon a blank paper, bearing a bill stamp, and added his own name as drawer. C. afterwards filled up the bill, and added the words, "payable at the Bank of E.," under the name of A. This was done without the knowledge of either A. or B.-To a declaration by an indorsee against A., as acceptor (not stating the bill to be payable at any particular place), the defendant pleaded non acceptavit. The bill being produced, Ĥeld, that it did not support the issue.

Assumpsit by the indorsee of a bill of exchange for 1001. drawn by one Watling upon the defendant, and by him accepted (generally).

Plea:
: non acceptavit; and issue thereon.

At the trial before Tindal C. J. at the Middlesex sittings after last Hilary term, it appeared that the name of the defendant, as acceptor, was written by Watling in the presence of the defendant, and by his direction, across the blank stamped paper, to which Watling then set his own name as drawer (no place at which the bill was to be payable being then specified thereon). This paper was then taken away by one Bowie (the plaintiff's indorser); who, in the course of the same afternoon, directed another person to fill up the body of the bill for 1001., and to add, to the signature of the defendant, the words "payable at the Bank of England." This addition was made without the authority or knowledge, either of the defendant, or of Watling.

It was contended, for the defence, that the addition was a material alteration, which avoided the contract, and that this defence was admissible under the plea of non-acceptance. By his lordship's direction a verdict was returned for the plaintiff ; leave being reserved to the defendant to move to enter a nonsuit upon this point.

Sir T. Wilde Serjt. obtained a rule nisi accordingly, in Easter term last, upon the authority of Calvert v. Baker (4 M. & W. 417). He also cited Rowe v. Young (b) ; Tidmarsh [562] v. Grover (1 M. & S. 735), Fenton v. Goundry (13 East, 459), Cowie v. Halsall (4 B. & Ald. 197, 3 Stark. N. P. C. 36), Mackintosh v. Haydon (Ryan & Moo. 362), and stat. 1 & 2 G. 4, c. 78.

(b) 2 Bro. & B. 165, 2 Bligh, 391. Vide Story's Commentaries on Bills of Exchange, s. 239.

Talfourd Serjt. now shewed cause. The alteration is immaterial. The authority to accept was general; and the addition does not alter the legal effect of the acceptance, so as to render it a qualified one. But assuming it to be otherwise; the defence is in confession and avoidance, and should have been so pleaded, according to the rule of Hilary term, 4 W. 4, I. 3. Thus in Hemming v. Trenery (9 A. & E. 926, 1 P. & D. 661), where the instrument declared upon appeared at the trial to have been materially altered by interlineations, it was held that the defence arising from the fact of these alterations could not be taken advantage of under the plea of non assumpsit. This was subsequent to the decision in Calvert v. Baker; where it was held that in an action by the indorsee against the acceptor of a bill (not stated to be payable at any particular place), it was a good defence, under a plea that the defendant did not accept the bill declared on, that after he had accepted it generally, it was altered, without his knowledge, by the addition of a memorandum making it payable at a banker's. That case must be taken to be overruled by Hemming v. Trenery. v. Coxwell (2 C. M. & R. 291, 4 Dowl. P. C. 187, 1 Gale, Exch. Rep. 177), the bill having been altered was declared upon in its altered state; and there the plea of non acceptavit was held a sufficient answer.

In Cock

The want of a second stamp would have been a good objection under this plea, because the instrument having been altered, was not admissible in evidence to support the affirmative of the issue raised upon the plea.

[563] Bompas Serjt., in support of the rule. The defendant has put upon the record a plea, which a solemn judgment of the court of Exchequer, has decided to be sufficient. Calvert v. Baker has not been overruled, and it cannot be distinguished from the present case. If the defendant had pleaded the facts specially his plea would have been bad, as amounting to a denial of the acceptance. [Tindal C. J. Might not the defendant have pleaded that the bill was altered after acceptance without his knowledge? Hemming v. Trenery seems to be a strong case.] There, a valid contract in writing had once existed; and it was held that a defence on the ground of the subsequent avoidance of that contract, by reason of the alteration, could not be raised under the general issue; but here, the authority given by the defendant was exceeded, and in fact he never did accept the bill produced. It would be a great hardship upon the defendant, if, after having pleaded in the precise form pointed out by the court of Exchequer, he should not be permitted to go into his defence under that plea. [Maule J. We are bound to consider whether the plea is an answer to the action.] In a question of mere form, the court will not decide contrary to what has already been determined. The variance from the authority given by the defendant is material, with reference as well to the defendant as to its legal effect upon the rights of third parties. In Tidmarsh v. Grover (1 M. & S. 735), the drawer and payee of a bill, accepted payable at B. and Co's., substituted E. and Co. for B. and Co. without the knowledge of the acceptor, and then indorsed the bill to the plaintiff. The acceptor was held to be discharged. [Talfourd Serjt. That was before 1 & 2 G. 4, c. 78.] That statute does not affect the present question. In Mackintosh v. Haydon (Ryan & Moo. 362) it was held by Abbott C. J., that [564] when the drawer of a bill, drawn since that statute, and accepted generally, adds to the acceptance a special place of payment without the knowledge of the acceptor, the latter is discharged. There, the acceptor was considered not to be liable upon the bill in any shape.

It was justly observed in that case, that "the right of the last indorsee to sue his immediate indorser would, as the bill appears, be complete upon default made at the banker's, and notice thereof; whereas, in truth, the acceptor, not having in reality undertaken to pay there, would have committed no default by such nonpayment" (a). [Maule J. Your argument would be well founded, if there were a profert, with non est factum pleaded. Suppose the alteration to be made after some indorsements were made, but before others. Cresswell J. The difficulty with respect to the stamp, appears to be this, that the stamp is insufficient unless the bill be read as it was originally drawn by Watling.]

TINDAL C. J. It appears to me that the question here turns, not so much upon

(a) It might also have been observed, that the last indorsee, by omitting to do that which, as the bill stood, appeared to be wholly unnecessary, namely, to present it to the acceptor for payment, would have discharged the prior indorsers.