CT. OF APP.] Re THE GREAT WHEAL POLGOOTH LIMITED. Cookson, Q.C. and J. G. Wood for the appellant. -The covenant not to revoke the will is void, as it is a covenant in restraint of marriage, as that is one way in which a will is revoked. The covenant is not divisible, and is entirely void on that account: Price v. Green, 16 M. & W. 346. The covenant was ancillary to the sum secured by the mortgage, and the mortgage debt having been discharged by the bankruptcy, the liability on the covenant was provable in the bankruptcy, and is therefore now discharged: Collyer v. Isaacs, 45 L. T. Rep. N. S. 567; 19 Ch. Thompson v. Cohen, 26 L. T. Rep. N. S. 693; L. Rep. Cozens-Hardy, Q.C. and G. B. Finch, for the plaintiffs, were not called on. JESSEL, M.R.-There is nothing in this appeal. With regard to the first point the covenant is, as was pointed out by Kay, J., divisible. So far as it was in restraint of marriage it was bad; you could not of course bring an action for breach of covenant by the marriage of the covenantor, but that does not destroy the covenant. As to the second point, this is a covenant in a mortgage. The lady mortgages her life interest in the dividends, and then appoints the capital to the mortgagee by her will. That is a very good mortgage if the will is not revoked, and then she covenants not to revoke the will. It would have been just as good a covenant if there had been no debt from the covenantor; as, for instance, if there had been a suretyship. The covenant was ancillary not to the debt, but to the mortgage. It is clear that, there being no breach of covenant before the bankruptcy, the covenantee could not have proved in the bankruptcy. He could not prove for the possibility of a breach. Then why should not the executor of the bankrupt be now liable? I see no reason why the bankruptcy should destroy her liability under the covenant. I think that Kay, J. was quite right, and that this appeal must be dismissed with costs. COTTON, L.J.-I am of the same opinion. The covenant was in a mortgage deed, there had been no breach of it before the bankruptcy, and it could not be estimated so as to make it provable in the bankruptcy. That being so, and there being a breach after the bankruptcy, why should not this action be brought ? It is said that the covenant was ancillary to the debt, and that the debt being discharged the covenant is gone too. But it was not ancillary to the debt in any sense except in the sense that it is a covenant not to destroy the mortgage, and is ancillary to the mortgage by which the debt is secured. In my opinion the breach having been committed after the bankruptcy, this action is maintainable, and the appeal must be dismissed. BOWEN, L.J.-I am of the same opinion. Solicitor for the plaintiff, G. B. Wheeler, agent for G. M. Robinson, Settle. Solicitors for the defendan, Sutton and Omman ney. [CHAN. DIV. HIGH COURT OF JUSTICE. CHANCERY DIVISION. Re THE GREAT WHEAL POLGOOTH LIMITED. (a) Company-Winding-up- Solicitor — Officer-Promoter-Misfeasance-Jurisdiction-Companies Act 1862 (25 & 26 Vict. c. 89), s. 165-Companies Act 1867 (30 & 31 Vict. c. 131), s. 38. 66 The solicitor who acts as solicitor to a company in the early stages of its existence is not in that capacity a "promoter or officer" of the company, and therefore is not, as such, liable under the 165th section of the Companies Act 1862. A summons was taken out by the liquidator, in the winding-up of the company, under sect. 165 of the Companies Act 1862, to have it declared that the solicitor of the company was a promoter of the company, and as such promoter, and also as solicitor of the company, guilty of certain acts of misfeasance, gross negligence, fraud, and breach of trust, in relation to the company; that he was not entitled, owing to such acts, to be paid out of the assets of the company for any professional services which he alleged he had rendered to the company; or, if the judge thought fit, that his bill of costs might be referred for taxation with a direction that all charges and disbursements improperly made might be disallowed; and that he might be ordered to repay certain sums of money of the company which he had received, and to pay the costs of this application, as also the costs of taxation if ordered. The solicitor was appointed to be solicitor to the company shortly after its registration, and he acted as its solicitor in the completion of the purchase of its property. Shortly afterwards it was discovered that the starting of the company had been altogether fraudulent, and it was ordered to be wound-up. Held, that, so far as his duties of solicitor to the company were concerned, the solicitor was not a promoter or officer of the company, or as such within sect. 165; that there was no evidence that the solicitor had ever acted as a promoter of the company, or in any other capacity than that of solicitor; that there was nothing in this case to arouse in him any suspicion of fraud; and that as solicitor he had not been guilty of any misfeasance, and had done nothing to disentitle him to his costs. It was ordered that the solicitor's bill of costs should be taxed, he giving credit for the money of the company which he had already received, and that the liquidator should pay the solicitor's costs of this summons. ADJOURNED SUMMONS. This was a summons taken out in the windingup of the Great Wheal Polgooth Limited by the official liquidator under the 165th section of the Companies Act 1862, asking (1.) That it may be declared that Charles Turner (the solicitor of the company) is a promoter of the abovenamed company, and guilty of misfeasance, gross negli gence, and breach of trust, in relation to the company as such promoter, and also as solicitor of the said company, in obtaining payment of, and receiving the sum of, 2101. paid to him on or about the 22nd June 1881 out of the (a) Reported by A. J. HALL, Esq., Barrister-at-Law. CHAN. DIV.] Re THE GREAT WHEAL POLGOOTH LIMITED. moneys of the said company, and claimed by him under certain alleged resolutions of certain alleged subscribers to the memorandum of association of the company, and in obtaining payment of, and receiving, certain other sums paid to him out of the moneys of the said company, amounting altogether to 1001., and that the said Charles Turner may be ordered to repay the said sums to the said liquidator on behalf of the company with interest from the dates of the same being received. (2.) That it may be declared that the said Charles Turner was guilty of fraud and misfeasance in relation to the company in not disclosing to the directors of the said company, or such of them as were not previously aware of the fact, the substitution of an agreement dated the 8th March 1881, but made after that date, between George Everard Hooke of the one part, and Ledru Rollin Reynolds, the promoter of the company, under the name of James Anderson, of the other part, for a previous agreement in precisely the same terms, dated the 8th March 1881, made between the said George Everard Hooke of the one part and the said Ledru Rollin Reynolds of the other part, and in concealing from the said directors, or some of them, the articles of association of the company, and the arrangements and communications between himself, Frederick Culver James, and the said Ledru Rollin Reynolds, prior to the first meeting of the directors of the company, and in not disclosing to the said directors the information which he possessed as to the identity of the said Ledru Rollin Reynolds and James Anderson; and if the said Charles Turner shall prove to the satisfaction of the court that he was ignorant and had no notice of the identity of the said Ledru Rollin Reynolds and James Anderson, that it may be declared that he was guilty of gross negligence and misfeasance in relation to the company, in not making any inquiries as to the existence of the said James Anderson, the alleged vendor to the said company, and in not ascertaining the sufficiency of such authority, if any, as was presented to the directors as an authority from the said alleged James Anderson to the said Ledru Rollin Reynolds to receive the purchase money under the alleged agreement between James Anderson and Nicholas John Widdicombe referred to in the prospectus of the company, and in not inquiring as to the title of the said alleged vendor of the premises the subject of the said agreement of the 17th March 1881. (3.) That it may be declared that the said Charles Turner was guilty of misfeasance and gross negligence in relation to the company in advising the directors of the company to resist applications made by Alexander Horatio Baillie and Richard Broadhurst Postans, to have their names removed from the register of members of the said company, and in not advising the directors of the company that no payments ought to be made out of the moneys of the company to the said Ledru Rollin Reynolds in the name, or on behalf, of the alleged James Anderson, or otherwise, until they had satisfied themselves of the truth of the allegations in the prospectus, and in not advising the directors that no expense ought to be incurred by them on behalf of the company in relation to the formation of the Great North Polgooth Limited. (4.) That it may be declared that the said Charles Turner was guilty of misfeasance in opposing the petition to wind-up the said company without instructions from the board of directors of the said company. (5.) That it may be declared that, having regard to the aforesaid declarations, the said Charles Turner is not entitled to receive any payment out of the assets of the company in respect of the professional services which he alleges that he rendered to the company, and in respect of which he claims under four bills of costs delivered by him to the said liquidator; or if the judge shall be of opinion that he may have been entitled to some payment from the company, that subject to the aforesaid declarations, and to such other declarations as the circumstances of the case may render necessary, the said bills of costs may be referred to the taxing master for taxation, with all usual directions, and that all such disbursements and charges as have been improperly made may be disallowed. (6.) That the said Charles Turner may be ordered to pay to the company the sums amounting to 4501. received by him while he was acting as solicitor of the company from the said Ledru Rollin Reynolds, the promoter of the said company. (7.) That the said Charles Turner may be ordered to [CHAN. DIV. pay the costs of this application, including the costs of the taxation of the said bill of costs (if necessary). And that the adjudication as to the claim of the said Charles Turner against the company may be postponed until after this application shall have been disposed of, or that the said claim and this application may be disposed of at the same time, or that such other inquiry and investigation may be made as to the misfeasance of the said Charles Turner in relation to the company, and such other order made for contribution by him to the assets of the company as, having regard to the circumstances of the case, the judge may deem expedient. The company was incorporated the 9th March 1881. Turner began to act as solicitor to the company on the 12th, and at a meeting held on the 23rd it was formally resolved that he should be appointed solicitor of the company. The chief question was whether he was a "promoter or "officer of the company, and so within the 165th section of the Companies Act 1862. The nature of the charges made against Turner appears from the summons and the judgment. The history of the case may be shortly stated as follows:-Early in 1881 Ledru Rollin Reynolds entered into negotiations with Hooke, an agent, for the purchase of certain mines in Cornwall, then known as the Godolphin Mine, and by an agreement, dated the 8th March 1881, Hooke agreed to sell the lease of those mines to Reynolds for 2000l. Reynolds promoted the Great Wheal Polgooth Limited to work these mines, in conjunction, as he alleged, with certain other persons whom he called a syndicate. The agreement of the 8th March 1881 was given to Turner as part of instructions for an agreement for a sale of the lease by Anderson, one of the alleged syndicate to the company. Turner pointed out that the agreement should be by Reynolds, as he was party to the agreement of the 8th March 1881, but Reynolds said that he objected to appearing in the matter, that it was immaterial by which member of the syndicate the agreement was made, and that if Turner took the agreement of the 8th March 1881 back to Hooke he would cancel it, and execute another to Anderson of the same date, and to the same effect. This was done. On the 17th March 1881 an agreement was made between James Anderson and Nicholas Widdicombe, described as secretary, on behalf of the company, for the sale of the lease of the mines to the company for 65,000l. The prospectus was issued giving a flourishing description of the mine. Subscriptions for shares were made, directors appointed, and steps taken to work the mine. The capital of the company was 100,000l., in shares of 11. each. Up to the time of the windingup 25,603 shares were subscribed for by bona fide applicants, and 17,386l. 1s. was paid up in respect of such shares. There were also applications for shares, stated by Reynolds to have been received by him, from certain persons, but these were not bonâ fide. It was soon discovered that the mines gave little, or no, profit, and that the statements in the prospectus were misrepresentations, and the prospectus fraudulent. Also that Anderson, and certain other persons said by Reynolds to have been members of the syndicate, and to have applied for shares in the company, had no real CHAN. DIV.] Re THE GREAT WHEAL POLGOOTH LIMITED. existence at all, Anderson being the name under which Reynolds carried on the business of a financial agent in Moorgate-street, and the other names which he used on various occasion, making his clerks, where necessary, personate these characters. Anderson was personated by a clerk of the name of Ellerman. On the 3rd Aug. 1881 the company was ordered to be wound-up. Considerable sums had by this time been paid by the company to Reynolds, under the name of Anderson, in respect of the purchase money of the mine. Reynolds was criminally prosecuted for this and similar transactions and convicted. The moneys received by Turner were 2101. as a fee, in pursuance of a resolution passed at a meeting of directors, held the 22nd June 1881; 1007. paid to him by Reynolds for expenses prior to going down to Cornwall to get information for the purpose of resisting the claims of Baillie and Postans to be removed from the list of shareholders. The 450l. referred to in the summons was money paid by Reynolds to Turner at different times in pursuance of a personal undertaking by Reynolds to supply Turner with the means of opposing the litigation against the company. The Great North Poigooth Limited was another company in the same district, in the formation of which the Great Wheal Polgooth Limited was concerned. Marten, Q.C. and Grosvenor Woods for the summons.-Turner cannot recover from the company remuneration for his services, inasmuch as the arrangement under which he received certain moneys of the company was concealed, and the shareholders have got no benefit from his services : Re Hereford and South Wales Waggon and Turner was a promoter of the company, and is therefore within the section. He exerted himself to start it, and it makes no difference that he first joined it after it was registered: Emma Silver Mining Company v. Lewis, 40 L. T. Rep. N. S. 749, 750; 4 C. P. Div. 396, 407. Millar, Q.C. and J. Cutler for Turner.Turner was not in any sense a promoter of this company; he was simply engaged as its solicitor after its registration. Moreover, to bring a case within the 165th section it is necessary to show some breach of trust. There is no suggestion of that here. Negligence alone, if proved, would not bring a case within that section. We say that he is not within that section at all: Re Forest of Dean Mining Coal Company, 40 L. T. Coventry and Dixon's case, 42 L. T. Rep. N. S. 559; There may have been fraud committed in the formation of this company, but Turner can, at the most, never have been more than a co-agent with these persons, and one agent is not responsible for the fraudulent acts of another, unless he makes himself a principal in the fraud: Cargill v. Bower, 38 L. T. Rep. N. S. 779, 782; 10 Fry, J. in that case adopts the language of Lord Bramwell in Swift v. Jewsbury, that "there are cases in which a man may be charged with having [CHAN. DIV. committed a fraud when he has not committed it himself; but I think that that ought to be held in as few cases as possible." We submit that this is not a case where it should be so held. As to the 210l. and the 100l., Turner is willing to account for these sums in the taxation of his bill of costs. The 450l. he is entitled to retain without accounting for it, as in the event of his being paid that sum he is bound by his undertaking to repay it to Reynolds. Marten, Q.C. in reply.-A solicitor has been held to be an officer of the company for the purposes of the 43rd section of the Act, and he cannot take the benefit of a charge in his favour unless it has been duly registered: Ex parte Valpy and Chaplin, 26 L. T. Rep. N. S. 228; L. Rep. 7 Ch. App. 289. It has, no doubt, been held that a banker is not Twycross v. Grant, 36 L. T. Rep. N. S. 812, 837; 2 Whaley Bridge Calico Printing Company v. Green, 41 L. T. Rep. N. S. 674, 678; 5 Q. B. Div. 109, 111; Emma Silver Mining Company v. Lewis (ubi sup.); Buckley on the Companies Acts, 4th ed., 508, 509 BACON, V.C.-In one sense this is a case of very great importance. The question I have to consider is, whether the 165th section of the Companies Act 1862 applies to Mr. Turner, who was the solicitor of the company. The 165th section is a provision which the Legislature has thought fit to make for the protection of companies. But the Legislature, intending to protect the shareholders in a company against any wrong that might be done to them by the executive power of the company-and a company cannot be carried on without an executive authority-introduced this section: "Where in the course of the winding-up of any company under this Act it appears that any past or present director, manager, official or other liquidator, or any officer of such company, has misapplied or retained in his own hands or become liable or accountable for any moneys of the company, or been guilty of any misfeasance or breach of trust in relation to the company, the court may, on the application of any liquidator, or of any creditor or contributory of the company, notwithstanding that the offence is one for which the offender is criminally responsible, examine into the conduct of such director, manager, or other officer, and compel him to repay any moneys so misapplied or retained, or for which he has become liable or accountable, together with interest after such rate as the court thinks just, or to contribute such sums of money to the assets of the company by way of compensation in respect of such misapplication, retainer, misfeasance, or breach of trust, as the court thinks just." Reference has been made to many authorities where the terms of this clause have been under discussion, and the judges have been greatly perplexed, as it seems to me, to know what to do with it. The words are words not very usual in Acts of Parliament, but the meaning I conceive is perfectly plain. One of the judges speaks of misfeasance amounting to, and which must amount to, in order to come within the clause, a breach of trust. Another judge thought it meant restitution of money taken awav. There has been no case in which it has been held that negligence in performing duties has amounted to that misfeasance which this clause intended to do away with. I am quite aware that the clause has been discussed very often in that collection of cases by way of note in Mr. Buckley's book, at pages 508 and 509. I will mention some of them. First, the late Lord Chief Justice, in Twycross V. Grant, defined a promoter to be " one who undertakes to form a company with reference to a given project, and to set it going, and who takes the necessary steps to accomplish that purpose." Bowen, L.J., in Whaley Bridge Printing Company v. Green, says: "The term promoter is a term not of law, but of business, usefully summing up in a single word a number of business operations familiar to the commercial world by which a company is generally brought into existence." Then Lindley, L.J., in Emma Silver Mining Company v. Lewis, says: "With respect to the word 'promoter,' we are of opinion that it has no very definite meaning. As used in connection with companies the term 'promoter' involves the idea of exertion for the purpose of getting up and starting a company (or what is called 'floating' it), and also the idea of some duty towards the company imposed by, or arising from, the position which the so-called promoter assumes towards it." All this is by no means satisfactory, nor is it in any degree satisfactory, that words dropped by judges in the course of discussions before them, or in the course of judgments pronounced by them, should be seized hold of as if they were expositions of the law. They are not expositions of the law. They are not to be so treated. The decision as pronounced in the case is the only thing which is to be regarded as an exposition of the law. I do not find in any of the cases referred to that much assistance is to be derived as to the exposition of the word "promoter." But I do find that the object of the section was to protect the shareholders from misconduct on the part of the persons to whom they had entrusted their money, and whom they regarded as the protectors of their interests. The question then arises whether a solicitor employed by a company can be said to fall within the meaning of any definition that may be proposed of the words contained in the 165th section. If I took Lindley, J.'s last words it seems to me to be very difficult indeed: He says it involves "the idea of some duty towards the company imposed by, or arising from, the position which the so-called promoter assumes towards it." That is the most satisfactory of all these varying definitions I have been able to find in the cases. The duty which the solicitor bears towards the company is easily ascertained. It has nothing to do with promoters. It was said in the course of the argument that Turner had acted as a promoter because he negotiated the sale from the vendor, and had afterwards prepared the instru ment by which the supposed Anderson transferred to the trustee for the company the property in the original contract. There was no duty imposed [CHAN. DIV. upon him with reference to the management of the company. It is said he must be taken to be a promoter because the prospectuses having been handed to him he distributed them. It would be wrong to say that that was promoting the company. Persons applying for prospectuses would apply where they could get them, and if they applied to him it was his business as the solicitor of the company, not as promoter, that he should have the prospectuses to give them. On another occasion, when some attack had been made in a newspaper upon the company, he prepared an answer whith he caused to be inserted in several newspapers. I find that the only promoters of the company were Mr. Reynolds and the other persons engaged in getting up the company, preparing prospectuses, and inviting subscriptions. The thing is very well understood. A man recommends the company. It is put into the newspapers so that the public may be induced to subscribe. And is Mr. Turner who knew nothing of this matter until the purchase had been made, or supposed to have been made, from the vendor James, or somebody else, to be blamed because Reynolds says that for reasons known to himself personally he desired that his name should not appear, but that Anderson's name should be substituted for his? There is no evidence to show that he had the slightest reason to believe that there was any fraud or suspicion, or anything of the kind, nor is there a trace throughout the whole of this case that Mr. Turner had volunteered or was required to act in any other character than that of solicitor, or that he at any time took upon himself the performance of any duty implied or arising from the position of a promoter. Considering the gravity of these accusations, it becomes of the utmost importance in this case and all others to know whether a man who acts as solicitor, and only as solicitor, thereby comes within the 165th section, and is to be called a promoter. That a banker is not an officer of the company, although his name is in the list of persons engaged in carrying on the company, has been very plainly decided. Why should I hold that because a solicitor's name is printed in the body of the prospectus he becomes a promoter ? It seems to me to be a conclusion that I cannot for a moment draw. Suppose a company, the object of which is to construct buildings, or works, canals, or anything else, where it would be necessary that a contract should be entered into with builders and other persons. It is very reasonable that their names should be inserted in the prospectus to give confidence in the affair. Can it therefore be said that they are promoters, or that they were officers, because they were employed in the business of the company? Everybody knows what a solicitor's business is. There are a variety of matters transacted by a company where they must have the services of a solicitor, and they put his name in their prospectus, among other reasons, to show to whom to apply if there is any legal business arising from the transactions. It is perfectly evident now that Reynolds in Finsbury-circus was Anderson in Moorgatestreet. He carried on these two businesses without detection for some time. But with regard to the allegation against Turner, the only shadow of suspicion--and I have watched the case with the utmost attention, because of its great importance, in my opinion, on public grounds-is, that a certain CHAN. DIV.] Re THE GREAT WHEAL POLGOOTH LIMITED. other man, who was for the nonce Mr. Anderson, was the clerk of Mr. Reynolds-that Turner, calling upon Mr. Reynolds at his office, must have seen the other man as a clerk in his office. Turner is asked no question about that. He said in his affidavit, whoever the man was he did not know that he was not Anderson, and the matter dropped there. Fom one end to the other of this voluminous evidence that I have read there is not any ground, or any single fact, stated from which a reasonable man could suspect that during these earlier transactions of the company any fraud had been intended, or any fraud committed. What is a solicitor to do? He is not master over the directors. He is not to prescribe to the directors what they are to do. He is to carry into effect their directions, provided they are lawful, and not one of the things in which he was employed was in any sense unlawful. He had no interest in the matter, he never had any interest in the company except the right a solicitor has to be paid for his labour, and in my opinion there is no ground from which I can conclude, reading from the clause in the Act of Parliament, that Mr. Turner acted in any sense as a promoter. If he were a promoter, or rather an officer, of the company, there is no fact in evidence from which I can justly say that he has been guilty of any neglect of his duty such as is suggested in this summons. It is suggested that he ought to have suspected this, that, and the other. Why should he suspect it? It is not said that the persons were not persons enjoying a certain degree of respectability. They were not then convicted. None of them were then, as far as I know, objects of suspicion to anybody. The matter seems to me to have been conducted with as much regularity as could be expected, and the solicitor never did anything which anybody could find fault with. If the facts which were not then known were as they were supposed to be, what else could the solicitor have done? An agreement is signed, and another agreement is signed the next day. The only suspicious circumstance (if it is a suspicious circumstance) is the enormous increase of the price from 2000l. to 65,000l.; but what had the solicitor to do with that? He did not manage the company. He was not to advise them that it was not worth the money which they were going to pay for it. I cannot find, through all the history of the case, any one period at which the solicitor's suspicions ought to have been aroused, nor any one fact known by him from which it could be inferred that he had any other knowledge than that which he now possesses. An attack is made upon the company, and he is sent to Cornwall to collect evidence. He does so. There is nothing in that. The petition was presented, and be is directed to defend it, and he does; and then there is not shown at any period of these transactions from one end to the other anything from which I can say that he ever took upon himself any duty other than that of a solicitor, or that he did not discharge that duty in a regular professional manner. Now the summons is a somewhat extraordinary document, and in order that nothing may be forgotten I pass to the summons. [His Lordship read the first paragraph of the summons, and continued:] That is the first thing. That mixes up two things-one what he did as promoter, and the other what he did as solicitor. Although I have said in my opinion there is no ground on which he could be held in any sense [CHAN. DIV. under any construction of the Act of Parliament a promoter of this company, yet, as he undoubtedly was the solicitor of the company, and an officer of the court, and therefore under the jurisdiction of the court, if any ground could be named for saying he neglected his duty as solicitor, then, as regards the 165th section, he would be under the jurisdiction of the court, and liable to obey any orders which the court thought right to make; but as to the 2101. I am relieved from all difficulty on that subject as to the substance of it. Mr. Turner says: "I received 2101. I was not entitled to more than my proper fees. I do not claim any more. I do not ask to have that 2101. treated otherwise than as a payment on account; and the same as to the 1007." Then the solicitor had a greater degree of forbearance than is commonly practised. When Mr. Turner is told, "We are so well satisfied with what you have done for us that we make you a present of 200 guineas," he ought, it is said, to have replied, "I will not take it." He did take the 200 guineas, because he was engaged in the business of the company. He is willing to account for it. He did take the 1007. As a solicitor I see nothing which lays him open to the charge of misfeasance in taking those two sums of money. The company might become indebted to him for as much money. Then the second charge is that: [He read the 2nd paragraph down to "the identity of the said L. R. Reynolds and James Anderson."] There that proposition ends. It is the most imaginary charge that I can conceive. There was no impropriety in substituting one purchaser's name for another. Anderson was substituted for Reynolds, but, as the charge states, it was in precisely the The interests of the company were same terms. the same. If the company were interested in that agreement at all, the agreement was identical in terms, subject only to the substitution of Anderson's name for Reynolds', which made no difference whatever, and left the matter exactly as it was before. That it was his duty to explain that to the company I have not heard the particle of a suggestion. In the agreement first of all the name of Anderson is substituted for Reynolds. Reynolds may take it in his own name, or take it in the name of his nominee. That is his affair, and we have nothing to do with it. What could he do? What was he to do? Then it is said, "He concealed from the directors the arrangements between James and Reynolds," of which Mr. Turner is proved to have known no more than any person who was not in any degree connected with the business, "in not disclosing the knowledge and information he possessed as to the identity of Reynolds and Anderson," of which there is, as I have said, not a particle of proof. But then this second charge resorts to an alternative, and supposes what in my opinion might be very well supposed. [He continued the 2nd paragraph, down to "misfeasance in not making any inquiries as to the existence of James Anderson, the alleged vendor to the company."] He knew of the existence of the man who was called James Anderson. He was face to face with him and saw him sign the agreement; what reason had he to doubt that the supposed James Anderson was James Anderson ? How should he have set about inquiring into his identity? The purchaser says, "I want to buy it at the price. There is the agreement; I will sign it." Does not the matter |