to be liable, although the money was borrowed to prevent ALDERSON, B., now said-This was a motion for a new trial, which was argued before us last Term. The question was, whether the directors of a Company, by whom certain German mines were to be worked, had power to borrow money for that purpose. It appeared from the circumstances of the case, and the jury found as a fact, that it was necessary for the purpose of working the mines that the money should be borrowed; but, notwithstanding that finding, we are of opinion that the directors of the Company had not any such power. The Company was to levy a sum of 50,000l. with which to carry on the undertaking; and (b) 2 Hare, 218. (a) 6 Moo. P. C. 152. 1851. BURMESTER v. NORRIS. 1851. BURMESTER V. NORRIS. the deed of settlement, by which the directors were authorised to act, contains a power in these general terms:"That the affairs and business of the Company shall be under the sole and entire control of the directors, of whom there shall not be less than five, nor more than nine; that three of them shall, at all meetings of directors, and for all purposes, be competent to act." No doubt those are very large words, but they must be taken in conjunction with the general words and purport of the deed, and those confine the undertaking to the working of the mines by levying a large sum of money as capital, to be applied to that purpose. It follows, therefore, that the directors had the exclusive and entire control only with respect to the management of the Company by means of the monies so to be levied and applied, and that they had no power whatever to borrow money. It would make a vast difference to the shareholders, if the power contained in these words. were to be construed as imposing on them an unlimited responsibility beyond the capital which they supposed they would have to subscribe, and with which the concern was to be entirely carried on. We think, therefore, that my Brother Platt was wrong in leaving the point to the jury; and that though, in their opinion, it might be necessary for the purpose of working the mine that the money should be borrowed, yet that could not be done without the consent of all the subscribers. With the consent of all the subscribers no doubt it might be done; but that would be on a totally different footing. We think, therefore, there must be a new trial. Rule absolute. 1851. CARNE & VIVIAN V. MALINS & Others. June 28. tion to recover the balance of an account, the defendants proposed a referject matter of ence of the sub the suit; and the plaintiffs having agreed thereto, an ar bitrator was appointed, but, after a delay the reference was abandoned Upon the coming on for discovered that of three years, by consent. THIS was a rule calling on the defendants to shew cause Two members of a partnership why the plaintiffs should not be at liberty to amend the firm having writ and all subsequent proceedings, by adding the name brought an acof B. Reynolds and seven others as plaintiffs in the action. It appeared by the affidavits, that the present action was brought to recover the balance of an account ending in July, 1841; that the writ was issued in July, 1846; and that in February, 1847, after the defendants had pleaded non assumpserunt, they proposed a reference, stating that they had a cross claim against the plaintiffs, and that they were advised to bring an action to recover the amount of their claim. This proposal was acceded to on the part of the plaintiffs, and an arbitrator was named; but, after much correspondence upon the subject, the reference was abandoned in 1850, and notice of trial was given for the Cornwall Summer Assizes of that year. The cause, how ever, did not go to trial. It was stated in an affidavit of the plaintiffs' attorney, that the plaintiffs' business had been carried on in the names of "Sandys, Vivian, & Carne," that, at the time the debt accrued, Sandys had died; and that the action had been brought in the names the present plaintiffs; but that, shortly before the trial was to have come on, it had been discovered that eight other persons, whose names were now sought to be added to the writ, were interested in the firm at the time the debt accrued; and that the Statute of Limitations would be a bar to a fresh action. In last Easter Term (May 13), eve of the action trial, it was other persons then living were interested in the firm at the time the It was sworn of that the Statute debt accrued. Willes shewed cause.-The amendment ought not to be allowed. The plaintiffs seek by the present application to obtain a new writ. There is no suggestion by them that they have been misled. It is not even stated that the parties, whose names are now sought to be added, of Limitations would be a bar to a fresh action. The Court al lowed an amendment of the writ and all subsequent proceedings, by the addition of the names of the other parties as co-plaintiffs. 1851. CARNE บ. MALINS. consent to have their names placed upon the record. The rule of practice by which the Court allows the addition of parties to the suit, applies only in cases where the party sues in a representative character, as in Brown v. Fullerton (a), where the Court amended the writ and subsequent proceedings by adding the name of an official assignee in bankruptcy as a co-plaintiff. The simple ground, that the Statute of Limitations will bar a fresh action, is not a sufficient reason for the interference of the Court. In Phillips v. Lewis (b), the Court of Common Pleas laid down the following rule, which strictly applies to this case:- "The view which the Court take of the question is this: If there be a sufficient reason for making an amendment, the fact that the Statute of Limitations will be available if the amendment be not made, is no reason for refusing to make it; but if there be no other reason for making it, than that the Statute will be a bar, that is not a ground upon which such an application will be granted." The case of Plowden v. Thorpe (c) is analogous to the present, where it was held that the amended bill was the commencement of the suit. Montague Smith in support of the rule.-The practice of the Courts is in favour of this application. The rule is the same whether the party sought to be added sues in his personal or his representative capacity. The amendment is allowed where the party suing, by the mistake, would lose his entire debt: Goodchild v. Leadham (d), Horton v. Inhabitants of Stamford (e), Lakin v. Watson (f), Christie v. Bell (g), and Craufurd v. Cocks (h). No injustice is worked by the addition of these parties. The defendants obtain the security of a greater number of plaintiffs, and the proceedings are not delayed. Here, by the act of the defend (a) 13 M. & W. 556. (e) 1 Cr. & M. 773. (f) 2 Cr. & M. 685. (h) Ante, p. 287. ants themselves, the action has been so far deferred as to PARKE, B., now said-In this case we think the amend ment ought to be allowed. We have considered the authorities upon the subject, and think that, as the consequences would be so highly penal to the plaintiffs if the application were refused, the rule must be absolute, upon payment of costs. Rule absolute accordingly. 1851. CARNE v. MALINS. YATES v. EASTWOOD and Another. ASSUMPSIT for money had and received, and on an statute. June 24. A landlord, who distrains to the distress, and sells the goods, is not liable to his tenant in an ac tion for money had and receiv ed for the overplus of the sale, which he does not leave in the hands of the sheriff under the stat. 2 W. & M. sess. 1, c. 5; the proper remedy being an action on the case for not leaving the The plaintiff had a verdict for the sum of 200l., leave overplus in the being reserved to the defendants to move to set that verdict aside, and to enter a nonsuit. hands of the sheriff, under that statute. |