Lord PORTMORE v. GORING. A RULE was obtained by Mr. Serjeant Wilde, on a former day in this Term, calling on the defendant to shew cause why he should not give the plaintiff oyer of an indenture of lease, or permit him to take a copy thereof. The motion was founded upon an affidavit, stating that the action was brought against the defendant, as assignee of the lessee, under an indenture of lease, bearing date in December, 1811, between the plaintiff's father and one W. Furlong, to recover damages for arrears of rent and for nonrepair of the demised premises; that the plaintiff's father died in 1823, when the premises in question descended to the plaintiff; that the defendant had paid the plaintiff rent under the lease, as the deponent was informed and believed; that there was no copy or counterpart of the lease now in the possession or power of the plaintiff; that the defendant was in possession of the lease, as the deponent believed; that the attorney who prepared the lease and counterpart had absconded from the country; and that the plaintiff could not safely proceed to trial without oyer or a copy of the lease. Mr. Serjeant Taddy now shewed cause.-In Street v. Brown (a), where two parts of a charter-party were supposed to have been interchangeably executed, and the part of which the master of the chartered vessel had the custody was lost at sea with the ship, the Court refused to compel the charterer to grant inspection and a copy of the other part, for the purpose of the plaintiff's declaring with certainty. Ratcliffe v. Bleasby (b), and other authorities (c), shew (a) I Marsh. 610; S. C. 6 Taunt. 302. (b) 3 Bing. 148; S. C. 10 J. B. Moore, 523. (c) See Rowe v. Howden, I Moore & P. 334; S C. 4 Bing. 1827. Ld. PORTMORE บ. GORING. that the Court will only make an order for an inspection or a copy of an instrument, where the party who holds it may be considered as holding it as trustee for the party requiring the inspection. Mr. Serjeant Wilde, in support of the rule. In Blakey v. Porter (a), it was held, that, if one part only of an indenture is executed, the Court will compel the party having the custody of it to produce it for inspection, upon an action commenced against him by the other party. Sir James Mansfield there said—“ Of what use would the defendant's covenant be, if the plaintiff could not get access to it? Parties, in order to save the expense of double stamps, are unwisely content to execute one part only of an indenture. Is it not, however, the necessary consequence of this practice, that the party who has the custody undertakes to produce the deed when wanted for the use of both?" So, in King v. King (b), the Court compelled the production of a deed of which one part only had been executed. Although in this case there were originally two parts of the indenture executed, yet, as it appears that one part only is now to be found, the principle of the above-cited cases will apply. A copy has always been granted where it appears that the party requiring it has an interest in the instrument. Here, both parties are clearly interested in the lease, the one holding under, the other granting by it. Unless the application be acceded to, the plaintiff will be driven into a Court of equity. The plaintiff has declared, and the only object of the motion is to prevent a variance. Lord Chief Justice BEST.-A Court of equity would im 539, n.-Rundle v. Beaumont, 1 (a) 1 Taunt. 386. pose on the plaintiff certain terms, which we have not the power to do. The short ground on which we decide is, that the plaintiff has not shewn that the counterpart is not in existence. Mr. Justice PARK.-In Street v. Brown, where two parts of a charter-party were executed by both the parties, each keeping one, and one part was lost, this Court would not compel the party holding the other to produce his part, in order to support an action brought against him on the instrument-on the ground that the party who held it did not hold it as trustee for the other. This is by no means a case of such hardship as that. Mr. Justice GASELEE.-The application should have been for a copy only. Rule discharged. 1827. Ld. PORTMORE บ. GORING. WILLIAM HENRY NEALE v. Sir THOMAS TURTON, Bart., and five Others. THIS was an action of assumpsit brought against the defendants, the directors of the London Patent Steam Washing Company, on two bills of exchange, drawn by the plaintiff in the following form, the one for 115l., the other for 1157.3s. : "£115. "London, 1st March, 1826. my order the sum "Three months after date, pay to of one hundred and fifteen pounds for value received. William Henry Neale." "To the directors of the London Patent Steam Washing Company.") Tuesday, May 15th. The plaintiff, a shareholder in a Joint-Stock Company, sued the directors on two bills drawn by him for goods supplied to the Company, and accepted by their secretary. The evidence was, that the secretary had been authorized by the directors to accept in their names, bills drawn by the plaintiff's brother:-Held, that this did not authorize the secretary to accept bills drawn by the plaintiff; and that the plaintiff, being a member of the company, and consequently a partner with the defendants and the rest of the shareholders, could not sue them. 1827. NEALE v. TURTON. The acceptance was thus: 66 Accepted, payable at the Bank of England, per procuration of the directors of the London Patent Steam Washing Company, Isaac Buxton." The declaration contained counts on the bills, and also counts for goods sold and delivered. The cause was tried before Mr. Justice Park, at the Sittings at Westminster after the last Term, when the following facts appeared in evidence: On the formation of the Company, the plaintiff had applied for and obtained therein twenty shares of 251. each. The plaintiff's demand arose out of a supply of hay and corn for the use of the company, for which the directors had authorized their secretary to accept bills, in pursuance of a resolution to the following effect: "1 Stamford Street, Wednesday, 1st March, 1826. "At a meeting of the Court of Directors of the London Patent Steam Washing Company, held as above, this day-Present-four of the defendants "Resolved-That bills at three months be offered to the following persons, who have applied by letter to the board for the amount of their respective accounts, viz. It was contended, on the part of the defendants, that the secretary had no authority from the directors to accept in their name or on their account bills drawn by the plaintiff; that all the defendants were not present and concurring in the above resolution; and that the plaintiff, being himself a shareholder and a partner in the concern, could not sue his co-partners for goods supplied for the use of the company generally. A verdict was found for the plaintiff, for the amount of the bills, leave being reserved to the defendants to move to set aside that verdict and enter a nonsuit. Mr. Serjeant Wilde, on a former day, accordingly obtained a rule nisi.-He referred to Castar v. Drury (a), and Holmes v. Higgins (b), to shew that persons associating themselves together to form a company are partners, and that a subscriber to the company cannot maintain an action against them; and he contended that the directors, being themselves merely agents of the company, had not power to authorize the acceptance of bills by their secretary. If Mr. Serjeant Taddy now shewed cause.-The company not being a body corporate, the mere fact of the plaintiff's being a holder of shares did not constitute him a member or partner in the scheme: it did not appear that he had ever paid the deposit on the shares allotted to him. any partnership existed, it must be taken to be confined to the directors, upon whom the management of the affairs of the company, and the whole responsibility incurred on behalf of the company rested. It was not necessary that all the directors should actually concur in the authority given to Buxton to accept bills for them and in their name. It must be assumed that he had every authority necessary to the carrying on the concern. The fact, that he was authorized to accept, is, however, concluded by the finding of the Jury. A bill of exchange carries the consideration on the face of it, and the only parties liable are those whose names appear upon it. If the bills in question had been accepted for the directors and company, the plaintiff might have been precluded from suing on them; (a) 18 Ves. 157. (b) 11 Barn. & Cress. 74; S. C. 2 Dow. & Ryl. 196. 1827. NEALE v. TURTON. |