This action is not properly pending in this court, unless an affidavit for its removal has been filed pursuant to law by the defendant corporation, or some person on its behalf. Mr. Wightman, by whom the only affidavit for this purpose was filed, is shown by the evidence not to have had any express authority to do so from the corporation. The fact that he is a stockholder and has been formerly a director of the company, and is claimed by the plaintiff to be ultimately liable to pay such judgment as may be recovered, does not entitle him as of right to assume the defence of the action. This was expressly decided under St. 1851, c. 315, which provided for summoning in stockholders; and a fortiori the same rule must prevail under the present statute of 1862, c. 218, by which the provisions for summoning in stockholders have been repealed. Robbins v. Justices of the Superior Court. 12 Gray, 225. An affidavit duly filed by an authorized person transfers the cause from the superior court without any order of the presiding judge there, provided the action is duly entered here. St. 1862, c. 115. Rice v. Nickerson, 4 Allen, 66.
The question whether there was any mode by which Mr Wightman could have obtained leave of court to defend this action prior to the passage of St. 1867, c. 36, need not be con sidered.
The action must be remitted to the superior court, from which it has never been legally transferred. Any party entitled to the benefit of the act last cited may then petition for leave to defend the suit. Action remitted to the superior court.