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trustees of and for the plaintiff, for and in respect of the said sum of 325,000l., and the interest to accrue due thereon: that in November 1825, great commercial distress was felt in London, and that then and in the early part of the year 1826, money became scarce, and the price of iron fell more than 40l. per cent., and that on the 29th of November 1825, the said R. Small wrote to the plaintiff a letter stating to the effect, that it would be inconvenient and detrimental to the interests of the company, to make or call upon them for a further instalment, and requesting the plaintiff to allow an extension of three months, for payment of monies then about to become due from the company to the plaintiff. The bill stated a correspondence of the parties on the subject of payment, which took place between November 1825 and April 1826.]

The bill then stated, that the said directors from the 4th of November 1825 to the 27th of June 1826, were the holders of 3,545 shares in the said company, and that on the 27th of June 1826, the said sixteen directors, together with the said P. Taylor, on behalf of themselves, and all others the members of the company, in direct breach of the faith on which the plaintiff had relinquished the personal liability of the said R. Small, J. H. Shears, and J. Taylor, and on which possession of the said estates and property had been given, and in direct breach of the trust aforesaid, filed their bill in the Court of Exchequer against the plaintiff and H. James, and R. Edwards, thereby praying that the said three several contracts or agreements might respectively be declared to have been obtained by fraud, and that the same might be delivered up, and that an account might be taken of the purchase-monies paid under the said several agreements, and that the plaintiff might be ordered to repay the same, with interest thereon; the plaintiffs in such bill offering to deliver up possession of the said property to the plaintiff, and to account to him for the rents and profits thereof, since the time that the said partnership had had possession thereof, and that the plaintiff might be restrained by injunction from bringing any action of ejectment, or otherwise proceeding at law to recover possession of the said property,

and from instituting any action at law against the said directors, or any of them, for the recovery of the interest on the purchase-monies unpaid: that at that time, the said first sixteen plaintiffs, being the persons mentioned in the said deed of copartnership, were the directors of the said company; and such of the said directors before named, were the managing directors and the trustees of the said company, and such trustees had vested in them all the freehold and leasehold estates and other property of the company: that towards the latter end of 1826, the said sixteen persons ceased to be directors of the said company, and gave up possession of the estates and property to other members of the said company; and that, by means of the said bill of complaint, possession of the said estates and property had continued to be had by the said company, or by the successive directors thereof, to the present time that on the 9th of November 1826, J. H. Palmer, Robert Muskett, J. Burton, W. Crawford, G. G. H. de Larpent, J. Mackillop, J. Morice, D. Muskett, and R. Small, were chosen directors of the company, in the place of the said former direc tors; and it was agreed between the former directors and the new directors, that the suit instituted as aforesaid, should be prosecuted as if no change had taken place in the direction, and that the plaintiffs in such suit should allow their names to be continued as plaintiffs, and that such suit should be carried on and considered in all respects as the suit of the company, and that the said former directors, and in particular the said R. Small, J. H. Shears, and J. Taylor, should be indemnified out of the estates and funds of the company, in respect of the matters aforesaid; and in case they or any of them should be decreed to pay the said sum of 325,000l., or any part thereof, or of the interest thereon, the said trustees should raise sufficient monies out of the estates or funds of the company to pay the said directors, or any of them, such sums as they might be so decreed to pay that in April 1827, the plaintiff put in his answer to the said bill : that between the time possession was given, as aforesaid, and the 12th of July 1827, there was raised out of the mines comprised in the said three agreements, up

wards of 120,000 tons of coal, and upwards of 60,000 tons of iron-stone, thereby greatly lessening the value of the said estates and property; and between such respective times, the greater part of the timber growing on the said estates was cut down, and material alterations made in the said works; and, in other respects, the said estates and property had been worked and partially worn out and exhausted, so that on the 12th of July 1827, it was impossible to restore the same to the plaintiff, in the plight or condition in which they were, on the 9th of November 1825, or on the 12th of May 1826, or on the 27th of June 1826 that on the 12th of July 1827, the plaintiff filed his bill in the Court of Exchequer, against the said R. Small, J. H. Shears, and J. Taylor, praying that they might be decreed specifically to perform the agreement of the 10th of June 1825, as varied by the said two subsequent agreements, and that a receiver might be appointed of the rents, profits, and produce of the said estates and property: that the half-yearly payments of 8,1251. each, which became due on the 1st of October 1826, 1st of April 1827, 1st of October 1827, and 1st of April 1828, were successively recovered by, and paid to the plaintiff, in consequence of actions brought by him for the same: that under an order of the 2nd of May 1828, made in the firstmentioned cause, the said bill was amended, by striking out the names of P. Taylor and J. Taylor, as plaintiffs, and making them defendants: that by an order of the 28th of February 1829, made in the said first-mentioned cause, the plaintiff was restrained in an action then commenced by him, for recovery of the sum of 8,125l., due on the 21st of October 1828, upon the then remaining plaintiffs paying the said sum into court, to the credit of the said causes; and it was ordered, that upon the said plaintiffs continuing from time to time so to pay the said half-yearly payments, the plaintiff should be restrained from bringing any action for the same: that the said plaintiffs accordingly paid the said sums into court from time to time up to the 8th of October 1830, making together 40,6251.: that all such half-yearly payments were made out of the funds of the company, and not by the said plaintiffs

out of their own monies: that the plaintiff being unable to complete the examination of his witnesses in the said cause, within the time to which publication was enlarged, it was on the 2nd of May 1831 ordered that publication should be further enlarged until the 23rd of the same month, with liberty to the plaintiffs to examine witnesses, as therein mentioned, and that no further payment of interest should be made by the plaintiffs, until the hearing of the cause that the cause came on to be heard on the 7th of November 1831, and judgment therein was given, and a decree made, dated the 1st of November 1832, whereby the said several contracts or agreements were declared to be void; and accounts of money paid in respect of the same, and of the rents and profits of the said estates and property respectively, were ordered to be taken, and all other directions consequent upon the said declaration, were given: that in consequence of the said decree, the plaintiff obtained an order of the 7th of November 1832, dismissing his said cross-bill with costs: that on the 13th of November 1832, the said plaintiffs, on behalf of themselves and all other members of the said partnership, filed their supplemental bill against the plaintiff, and Phoebe Attwood and P. Taylor, praying that such plaintiffs might be declared entitled to the sum of 192,7661. 8s. 9d. new 31. 10s. per cent. bank annuities, as purchased with the monies paid to the plaintiff as therein mentioned, and might be declared entitled to a lien upon the same, and the dividends thereof, for or towards securing to them satisfaction of the demand of the said partnership: that by an order made in the said supplemental cause, dated the 4th of February 1833, the said Phoebe Attwood was ordered to transfer into court in trust in the said cause the said bank annuities, and receive and pay in the dividends then due thereon that in June 1833, the plaintiff presented his petition of appeal to the House of Lords, from the order of the 2nd of May 1828, and from the said decree that by an order of the 10th of August 1833, the sum of 49,4491. 4s. 1d. consolidated 31. per cent. annuities, and 1,4837. 9s. 10d. cash, which had been paid into court in respect of interest of the said in

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stalments, were transferred and paid to the said R. Small: that on the 26th of March 1838, the House of Lords ordered and adjudged that the said decree should be reversed, and the bill dismissed with costs, and the cause remitted back to the Court of Exchequer, to do therein as should be just and consistent with such judgment: that on the 18th of April 1838, the Accountant General was ordered to transfer to the plaintiff the said stock then standing in the name of the Accountant General, to the credit of the said supplemental cause: that by an order of the 19th of April 1838, made in the said original cause, the adjudication of the House of Lords was made an order of the Court of Exchequer: that on the 28th of April 1828, the plaintiff presented his petition in the said original cause, praying a declaration that he was entitled to be paid by the said plaintiffs the sum of 131,108/. 10s. 3d., being fourteen half-yearly payments of the interest of the said instalments, accrued due prior to the judgment of the House of Lords, with interest thereon, to the 25th of April 1838, and 53,750l. 12s. 8d. being the value of the stock, and the sum of 1,483l. 9s. 10d. cash, transferred and paid to R. Small as aforesaid, together with interest thereon to the 25th of April 1838, and also interest upon the said sums of 131,1087. 10s. 3d. and 53,7501. 12s. 8d. from the 25th of April 1838, until the same should be paid to the plaintiff, and also the sums which had been paid by the plaintiff in respect of the costs of the said suits: that independently of the monies, payment of which was sought by the said petition, there was due to the plaintiff, in respect of the matters aforesaid, the principal sum of 325,000l., and the sum of 8,125. the half year's interest due thereon, payable on the 1st of April 1838; and should the said Court of Exchequer be of opinion, that payment of the sums mentioned in the said petition could not be made by any order thereupon, there would be due to the plaintiff such of the said sums as might not be thereupon ordered to be paid: that pending the said proceedings, the said company, or the directors thereof, opened new pits on the said estates, and prior to the 26th of March 1838, raised out of the mines comprised therein, upwards of

900,000 tons of coal, and upwards of 450,000 tons of iron-stone, as well as other minerals; and that by means of getting and raising such coal and iron-stone, and by cutting timber on the said estates, and by alterations in the works, and wear of the machinery, the said estates and property had been deteriorated or lessened in value since possession thereof was given, to the amount of 280,000l. at the least, and since the filing of the said original bill to the amount of 260,000l., and upwards, and if the said estates and property were then to be sold, they would not produce so much as they would have produced at any time prior to the 28th of February 1829, and that the security of the plaintiff for the payment of the instalments and interest due to him, so far as confined to such estates, was lessened to the extent of such deterioration: that the said company, having, in manner aforesaid, worked out or deteriorated the said estates and property, were liable to the plaintiff for the sum to which the estates and property were by such means become an inadequate security that the said plaintiffs in the original suit, having in manner aforesaid obstructed and delayed the plaintiff in making his said security available, had become and were then personally liable to pay and make good to the plaintiff the said instalments and interest, and to procure such mortgage as in the said agreement mentioned: that the said R. Small, J. H. Shears, and J. Taylor having jointly with the other plaintiffs, so obstructed and delayed the plaintiff, as aforesaid, in violation of the faith on which the plaintiff consented and agreed to exonerate them from personal liability, as aforesaid, were not entitled to insist upon such exoneration, and had rendered themselves personally liable to the plaintiff, as if the agreement of the 4th of November 1825, had not been made: that the said trustees were authorized, and had agreed to indemnify the said directors and R. Small, J. H. Shears, and J. Taylor, out of the pecuniary assets, or by sale or mortgage of the other estates or properties of the company, in case the said plaintiffs in the original suit, or the trustees or managing directors should be decreed to pay such sums as thereinbefore mentioned; and that, under the cir

cumstances, the plaintiff was entitled to have the same indemnity made available to him, and to have the benefit of such equitable charge, or charge in equity: that at a general meeting of the said company, on the 4th of May 1838, it was resolved, that the directors should be authorized to raise a loan of 300,000l. on the security of the estates and property of the company, and thereout to discharge all sums which the plaintiff should be found entitled unto, under the said decree, to the extent of 200,000l. that on the 11th of May 1838, the present directors, with the consent of the said former directors, caused to be printed and circulated, amongst the shareholders of the company, the following statement :-"The unqualified opinion of counsel being, that there is no liability to Mr. Attwood for the payment of 325,000l., the directors do not think it necessary to make the provision with respect to that sum. An extract from the contract is subjoined. If at a future period it should be thought desirable by the directors and proprietors to reduce the interest payable, whilst the possession and working of Corngreaves be continued, they may do so, either by giving their assent to calls for that purpose, or by disposing of any part of the property of the company." The bill charged, that it was the intention of the defendants not to pay the plaintiff the said sum of 325,000l., or any part thereof, but wholly to defraud the plaintiff of the same. That J. Burton was then dead, and A. Burton was his personal representative; that J. Morice was also dead, but there was no personal representative of the said J. Morice; that W. Leathley was also dead, and that R. H. Innes was his personal representative; that H. Logan was also dead, and that W. E. Logan was his personal representative: that the true intent and meaning of the parties to the said three agreements, and the said sixteen directors, when the same were entered into respectively, was, that the plaintiff should absolutely sell, and the company, through the medium of the said R. Small, J. H. Shears, and J. Taylor, should purchase and pay for the said estates and property; and that the said R. Small, J. H. Shears, and J. Taylor were the agents of the company, and they alone signed, and their names only were mentioned in the

agreements to give effect to the plaintiff's right to enforce performance thereof, and not to withdraw the company or their estates or property, or the members thereof, from the obligation or liability to pay the said purchase-money: that the said agreement of the 4th of November 1825, on the part of the plaintiff, was altogether voluntary, and without consideration, and that the said sixteen directors, or some of them, took advantage of the then situation of the plaintiff, to extort such agreement from him: and that it was impossible to make all the members of the said company parties to this bill.

The bill prayed, that all such declarations might be made as the rights and interests of the plaintiff, in respect of the said matters, should require; and particularly in regard to the personal liability of the said R. Small, J. H. Shears, and J. Taylor; and as to the personal liability of the said R. Small, J. H. Shears, J. Taylor, F. Bailey, M. Bland, J. Burton, T. F. Colby, S. Donaldson, C. Herring, C. Kerr, H. Logan, J. Mackillop, J. Morice, C. S. Onley, J. Small, and W. Leathley, as such directors of the said company; and as to the personal liability of the said R. Small, J. H. Shears, J. Taylor, F. Bailey, and S. Donaldson, as such trustees; and as to the liability of the said company, and the respective and several members thereof; and as to the liability of the freehold, copyhold, and leasehold estates, and other properties of the said company; and as to the personal liabilities of the plaintiffs in the said original cause, in respect of the said matters, and that all necessary directions might be given to carry into effect such declarations. And that the said defendants, R. Small, J. Taylor, F. Bailey, M. Bland, T. F. Colby, S. Donaldson, C. Herring, C. Kerr, J. Mackillop, C. S. Onley, and J. Small, might be decreed personally, and the other defendants out of the respective estates of their respective testators or intestates, to pay the plaintiff the said sum of 250,000l., together with such interest on the said sum of 325,000l. at 51. per cent. as should remain due and unpaid at the time when the said sum of 250,000l. should be paid to the plaintiff, or to pay to the plaintiff the price or value of the coal and iron-stone, and other minerals so

raised or gotten out of the estates and mines comprised in the said three agreements, after deducting the costs of getting the same to the pit's mouth, or so much thereof as should amount to the said sum and the said interest; and in such latter case, that all necessary accounts might be taken to ascertain such price or value and costs; and if such price or value should not amount to or be sufficient to pay the said sum and the said interest, that the deficiency might be paid, or raised and paid by the persons and means and in manner prayed in respect of the said sum and the said interest, or that the said defendants the trustees of the said company, might be decreed, or that such of the defendants as were plaintiffs in the said original cause might be decreed, to procure such person or persons as might be necessary by and out of the assets and estates of the company, or by sale or mortgage of all or a sufficient part of the freehold, and copyhold, and leasehold estates, and other the properties of the company, but subject, as regards the estates, mines, works, and property comprised in the said three agreements, to the mortgage so to be made to the plaintiff as aforesaid, to pay to the plaintiff the said sum and the said interest: and that all necessary directions might be given to make the said indemnity, or equitable charge, or charge in equity, available for the purpose of the plaintiff being paid the said sum and the said interest: and that all necessary directions might be given to secure and procure payment of the said sum and the said interest, having regard to the rights and interests of the plaintiff in the premises, the plaintiff offering to join in and execute and procure all necessary parties, consistent with the provisions contained in the said three agreements, to join in and execute all such deeds and conveyances, and all such acts as the Court should direct, in regard to the matters aforesaid, and that all necessary directions might be given for having made and executed by all necessary parties, a proper mortgage of the estates, mines, works, and property comprised in the said three agreements, to secure the said sum of 75,000l., and that, in the meantime, the said company, their directors and agents, and particularly the said five trus

tees, might be restrained by injunction from making or executing any sale, mortgage, or charge of or on the freehold, copyhold, and leasehold estates, and other the properties of the company, or any of them, or any part thereof. And that the said company, their directors, agents, and workmen might also in the meantime be restrained from raising and getting, and from permitting to be raised and got any coals, iron-stone, or other minerals, in or out of the said estates and mines, or otherwise working the mines, and from using, and from permitting to be used, the works comprised in the said three agreements, until the said sum and the said interest should be paid to the plaintiff. That, if necessary, to give effect to the said last-mentioned injunction, the said R. Small, J. H. Shears, J. Taylor, F. Bailey, and S. Donaldson, might be ordered to resume or take possession of the said estates, mines, works, and property comprised in the said three agreements, and to hold possession thereof, subject to the orders and directions of this Court; the plaintiff offering, if necessary, to allow his name, and procure any other person or persons, whose name might be necessary, to allow his, her, or their name or names to be used in any action or actions of ejectment, for the purpose of enabling such possession as aforesaid to be resumed or taken; and that, if necessary, a receiver and manager might be appointed of all the estates and other properties of the said company, with all proper and necessary directions, and for further relief.

To this bill the defendants, A. Burton, Innes, and W. E. Logan, demurred for want of equity, multifariousness, and want of parties. The defendants, Bailey, Bland, Colby, Donaldson, Herring, Kerr, Mackillop, Onley, and J. Small, demurred on like grounds, and on the ground that it was not stated in the bill that any legal personal representatives, constituted in the proper court, of J. Burton, Leathley, or H. Logan, were parties. The defendants, Small, Shears, and Taylor, also demurred on similar grounds.

The three demurrers were argued together.

Mr. K. Bruce, Mr. Jacob, Mr. Wigram, and Mr. Sharpe, for the defendants.-The

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