proceedings in the second action until the costs of the former were paid, on grounds which are immaterial, not having been mentioned on shewing cause. His Lordship directed the case to be argued before the whole Court.

Barstow now opposed the rule, on the ground that, in the former action, the plaintiff had not proceeded as far as consent-rule or plea, and that the Court ought not in such a case to stay proceedings, unless on special cir

cumstances.

1833.

Dor dem.
LANGDON

against LANGDON.

Cowling, in support of the rule, contended, that wherever vexatious or improper conduct appeared in the proceedings of the lessor of the plaintiff, the Court would stay them, even though no trial had been had; and that the fact of the lessor of the plaintiff having dropped the former action before he had entered into a consent-rule was proof of vexation, since, until that step had been taken, he was not liable for costs; and he cited Smith dem. Ginger v. Barnardeston (a), where it had been so held by De Grey C. J., after consulting the Judges of the other Courts. [Barstow. There the plaintiff had previously brought two actions, here only one.]

The Court (b), however, stopped Cowling, saying, that he had shewn sufficient cause; and made the

Rule absolute.

(a) 2 W. Bla. 904.

(b) Denman C. J., Parke, Taunton, and Patteson Js.

1833.

Monday,
Nov. 25th.

In an action against a cor

poration on a

bond, the con

recited, that the company were, by act of parliament, authorised to raise money by

bond, and that

at a general

company of proprietors, it had been re

HILL against The MANCHESTER and SALFORD
Water Works Company (a).

EBT on two bonds, dated 31st August 1813, and

DEBT

21st December 1814, each in the penal sum of 2001. dition of which pleas, after craving oyer of the bonds and conditions, that neither bond was the deed of the company. Each bond contained a recital that the company were by 53 G. 3. c. xx. authorized to raise (in addition to monies already raised by them under the 49 G. 3. assembly of the c. cxcii. by which the company was incorporated) any sum not exceeding 100,0007. by mortgage, annuities, bonds, or promissory notes under the seal of the company; and that at a general assembly of the company of proprietors, held on the 13th of May 1813, it was resolved that, for the purpose of raising money as authorized by act of parliament, the company should issue bonds of 1007. each, bearing an interest of 5 per cent.; and it was further recited that the plaintiff had advanced to the company of proprietors the sum of

solved that the

bond in ques

tion should be
issued for that

purpose, the
defendants
pleaded non
est factum :
Held, that al-
though the
company could

not, under that
plea, shew that

the bond executed by them was invalidated by collateral matter, they

might shew

that it was void

because ex

1007.; and the condition was declared to be for the

payment of 100l. and interest. At the trial before Den

man C. J., at the London sittings after Hilary term,

ecuted contrary to the provisions of the act of parliament:

Held, secondly, that a clause in the act of parliament, whereby the company were authorised, at any general or special general assembly, to order and dispose of the custody of their common seal, and the use and application thereof, empowered them to make rules and regulations for its custody, but did not require their concurrence in each particular act of sealing; and that a bond to which the seal had been affixed by the company's clerk, under a general authority from the directors, was valid.

By another clause it was enacted, that the clerk should, in a book provided by the company, keep an account of all acts, proceedings, and transactions of the company, and that every proprietor should have liberty to inspect the same, and take copies of the entries: Held, that entries of the proceedings in the book so kept by the clerk were not admissible in evidence on behalf of the company, against one of their own members suing them. (a) See Hill v. The Manchester and Salford Water Works Company, 2 B. & Ad. 544.

1

1833.

HILL against

The

and SALFORD Water Works Company.

1833, the plaintiff produced the bonds, and proved that they had the common seal of the company affixed to them, that the seal had been so affixed by Cole, a clerk of H. Wright the chief clerk, Cole being authorized MANCHESTER by the chief clerk and by the directors to affix the common seal to bonds, when directed so to do by the actuary of the company; and that the bonds in question were executed in pursuance of orders from the actuary, in consideration of the plaintiff's having given up certain acceptances of the company held by him. The plaintiff further put in a deed, dated the 17th of April 1815, under the common seal of the company, whereby they assigned their property to trustees for the benefit of their creditors, and in a schedule thereto the plaintiff was described as a holder of the bonds in question. The defence was that the bonds were void, because they were not executed pursuant to the provisions of the 49 G. 3. c. cxcii. (a), whereby the company were incorporated and

em

(a) Sect. 7. authorises the company of proprietors to raise money by mortgage or assignment of the property of the company, under their com

mon seal.

Sect. 15. directs, that all future general assemblies shall be held upon the first Thursday in the months of January and July in every year, at such place as the company shall direct, and that twenty days' notice of such meeting shall be given by advertisement in a Manchester or London newspaper.

Sect. 16. authorises the company of proprietors, at their first general assembly, to appoint thirteen persons to be directors for conducting the business of the undertaking.

Sect. 18. provides for the subsequent appointment of directors by the proprietors.

Sect. 21. enacts, that to constitute a legal general assembly, ten proprietors possessing 200 shares in the whole, must be present.

Sect. 23. enables the company of proprietors, "at any general or special general assembly, to order and dispose of the custody of their common seal, and the use and application thereof."

Sect. 24. enacts, that if it shall at any time appear that, for the more effectually

1833.

HILL

against The MANCHESTER and SALFORD Water Works Company.

empowered to raise money by mortgage or bond. It was contended that the true construction of sect. 23., which authorized the company of proprietors, at any general

or

effectually putting the act into execution, a special general assembly of the company of proprietors is necessary, it shall be lawful for any five of the proprietors, possessing, in the whole, 100 shares in the said undertaking, to cause fourteen days' notice at least to be given of such special general assembly, in one or more of the Manchester and London newspapers, or in such manner as the company of proprietors shall, at any general assembly, direct or appoint, specifying in such notice the reason and intention of requesting such special general assembly, and the time when, and the place where, the same shall be holden; and the proprietors are authorised to meet pursuant to such notice, and such of them as shall be present at such special general assembly shall proceed to the execution of the powers by the act given to the company of proprietors, with respect to such matters alone as shall be specified in such notice; and all such acts, orders, or determinations of the proprietors, or the major part of them so met together, at every such special general assembly (provided that there be ten proprietors present, who shall be possessed of at least 200 shares in the undertaking), shall be as valid with respect to the matters specified in such notice, as if the same had been done at any stated general assembly.

Sect. 25. authorises the company of proprietors to nominate and appoint, under the common seal of the company, a clerk or clerks, and enacts that such clerk or clerks shall, in a proper book or books to be provided by the company of proprietors for that purpose, enter and keep a true and perfect account of the names and places of abode of the several proprietors of the said undertaking, and of all acts, proceedings, and transactions of the company of proprietors and directors respectively; and each of the said proprietors of the undertaking shall and may at all times have recourse to and peruse and inspect the same, and also the book or books to be kept by the chief or other clerk to the company of proprietors, gratis, and may demand and have copies thereof, or any part thereof, paying the sum of 6d. for every 100 words so to be copied.

Sect. 28. enacts, that the directors shall (subject to the orders and directions of the general or special general assemblies) have full power and authority to direct and manage the affairs of the company of proprietors; and makes other provisions as to particular powers and duties of the directors.

The 53 G. 3. c. xx., which received the royal assent on the 1st of April 1813, authorises the company to raise a further sum, not exceeding

100,000%,

or special general assembly, to order and dispose of the custody of their common seal, and the use and application thereof, was, that bonds which required the common seal, could only be issued in pursuance of the resolution of a general or special general assembly duly convened and constituted; and assuming even that in an ordinary case a bond executed by order of the court of directors would be valid, still as the condition of the bonds in question recited that they were given in pursuance of a resolution of an assembly of proprietors, held on the 13th of May 1813, it was essential to their validity, that that assembly should have been duly convened and constituted. It was said that the assembly, improperly described in the bonds as a general assembly (which can be held only in January and July,) must have been a special general assembly; and then, according to sect. 24., ought to have been convened only by requisition from proprietors to a certain number and value, after fourteen days' notice, and to have consisted of a certain number. To prove that the resolution to raise money by the bonds in question had been come to at a meeting not duly convened and constituted, the defendants produced the books of the company kept by their clerk, and it appeared by entries in them, that, in January 1810, it had been resolved at a general assembly of the proprietors, that the care and custody of the common seal should be committed to H. Wright, the chief clerk, to be used and

100,000l., by mortgage or by granting annuities, and for that purpose to assign the undertaking, and the works thereto belonging, under their common seal, or (sect. 10.) to give bonds or promissory notes under the said common seal.

Sect. 14. The clauses in the former act, 49 G. 3. c. xcii., to extend and apply to the monies to be raised, and all other matters and things to happen and arise under this act, as if they had been repeated and re-enacted.

applied