rowed large sums of money, more than 10,000l., for the purposes of the acts, whereas any further sum, beyond 10,000l. which had been borrowed by them, was improperly borrowed, and that neither the principal nor the interest thereof ought to be paid out of the trust funds;-that the rate, which had been imposed, was assessed in order to answer the private purposes of some of the trustees, and to enable them to complete works for the benefit of their own private property, and not of the town of Bolton ;-and that certain statements of their accounts, which had been given by them, were, and upon a full discovery would appear to be, altogether erroneous and delusive.

The prayer was,-that the trust funds might be administered under the direction of the court; that an account might be taken, so far as regarded the town of Great Bolton, of the balance received by the defendants from their predecessors, and of all the monies which the defendants had, or, without wilful default, night have received, applicable to the purposes of the acts of parliament, and also of the sums duly expended by them in the discharge of their trust; that the defendants might be declared to be personally liable for all such sums as they should appear to have expended improperly; that the balance, which was payable to the overseers of the poor, might be ascertained and ordered to be paid accordingly;-that it might be declared, that the rate already imposed ought to be quashed;-and that, in the mean time, the defendants might be restrained from using any legal means to enforce payment

of it.

The defendants demurred generally for want of equity.

Mr. Bell and Mr. Spence were for the information :

Mr. Horne and Mr. Pemberton, for the demurrer.

In support of the demurrer, it was argued, that this was a mere experiment, proceeding on the success of the Brighton case, to entangle in the proceedings of a court of equity, transactions, which, if there were any thing in them to set right, might be better and more simply regulated elsewhere; that the trusts, to which the present suit related, were not charitable uses;

and that the plaintiffs professed to sue on behalf of themselves, and all others the occupiers and tenants of premises within the township of Great Bolton, though many of these occupiers and tenants might be altogether averse to the prayer of the bill. Besides, the suit was, in three respects, defective as to parties.

First, one charge is, that there is a surplus of the funds, after the immediate purposes of the acts of parliament have been fully satisfied; that surplus ought to be paid over to the overseers of the poor in order to be distributed; these overseers, therefore, ought to be parties, for they, in their official character, have an interest in the accounts to be taken, since on these accounts must depend the amount of that surplus which they are to receive.

Secondly, the plaintiffs seek to charge the defendants with the sums which were misapplied by former trustees, on the ground that due means have not been used to recover the sums misapplied from the parties who were primarily liable for them. Admitting, for the present, that the plaintiffs have such an equity against the defendants, still the sums for which the latter are to be held responsible, depend on an account to be taken against the former trustees, who, in their turn, have a clear interest in keeping down the balance, for which, in respect of their default, third parties are to be made liable. The former trustees, therefore, or their representatives, ought to be before the court.

Thirdly, the information states, that the funds have been improperly pledged to creditors, and insists that these funds ought to be withdrawn from the appropriation of them which has been so made. The interest of these creditors being to be affected, they too ought to have been parties.

Vice Chancellor.-In this case there is first a demurrer for want of equity; and that ground of defence involves a general question of the utmost importance. Then, at the bar, a demurrer is taken ore tenus for want of parties. Though the habit of the court is to decide on the written demurrer first, yet, in this particular case, it will be more convenient to give precedence to the demurrer ore tenus; for the written demurrer, presenting a very important question, it is fit, before that question is

argued or determined, that we should ascertain, whether all are present at the argument who have interests to support in it, and a right to be heard in defence of those interests.

Though the bill charges that there is a surplus, which, according to the act, ought to be paid to the overseers of the poor for the purposes of distribution, it is not on that account necessary that the overseers should be made parties. The overseers are public officers; and, this being an information by the Attorney General, who is here to sustain and guard all public interests, they are sufficiently represented by him. The account taken between the Attorney General and these defendants would bind the overseers. Thus, the first objection fails.

The second objection relates to the absence of the former trustees. This information complains, that former trustees committed various breaches of trust; that it was the duty of the present defendants to have compelled them to account for the sums lost by their misconduct; that the defendants, instead of doing so, have been guilty of gross and wilful default, and have improperly admitted their accounts and adopted all their acts; that the defendants, therefore, are to be charged with the breaches of trust committed by their predecessors, and, in taking the account, must be treated exactly as these their predecessors would be. The court cannot make a decree on such a principle; for that would be to make a decree against those who were privy to a breach of trust, without there being any decree against those who had originally broken the trust. The case would have been different, if there had been an allegation, that the former trustees were dead and insolvent, so that it was in vain to proceed against them or their representatives. But there is no such allegation here. On the pleadings, as they now stand, there is nothing stated, that would prevent the Attorney General from filing another information against the old trustees. Though a decree were made in the present suit, a new information might be filed on the morrow, and then another account would necessarily be taken. It is not the habit of the court to make an imperfect decree; and any decree, that could

be pronounced on these pleadings, must be imperfect. Those persons, for whose breaches of trust the defendants are sought to be made answerable, must be brought before the court.

Further, the information alleges, that the defendants pretend, that they have borrowed at interest, on security of the funds in question, large sums of money, much exceeding 10,000l. in amount; and it charges, that they were not authorized to borrow more than 10,000l.; that all the moneys beyond that sum, for which the trust funds have been pledged, were improperly borrowed, and ought not to be paid out of the trust funds. Had nothing more been said, this might perhaps have been likened to the case of a petition to have the trustees of a charity removed, on the ground of their having granted improper leases of the charity estates; there the trustees may be removed, without touching the leases; and it is not necessary to have the lessees before the court. If an information contains such a charge, the lessees must be made parties; and for this reason, that upon an information the court grants complete relief; and the removal of the trustees, without setting aside the leases, would not be a sufficient remedy. But this information goes much further than a mere statement that undue incumbrances on the trust funds have been created, which ought not to be paid; for it prays, that the account may be taken against the defendants upon that principle, and that they may pay over the balance to the overseers. In other words, the trustees are not to be allowed any of the sums, which, it is pretended, have been improperly borrowed on the security of the trust funds, and are to pay over that balance, which, upon an account so taken, shall be found due from them. That balance must include the very monies with which the loans were to have been repaid; and, consequently, the direct operation of this suit is, to withdraw from certain creditors the funds upon which they lent their money. This cannot be done behind their backs. they must be made parties to a record, which seeks to affect their interests in so important a point.

Mr. Bell has argued, that these creditor s need not be made parties, because the in

formation does not seek to set aside their securities. It is a sufficient answer to say, that it seeks more; for it seeks to withdraw, and to apply to a different purpose, the funds which were pledged to these creditors.

- This record, therefore, must be amended, either by bringing before the court the creditors, from whom the funds are sought to be withdrawn, and also the former trustees, for whose breaches of trust these defendants are attempted to be charged, or by striking out the allegations which render it necessary that these classes of persons should be parties. The amendments, however, must not be such as to alter or disguise the principle of the information, or to affect the merits of the demurrer for want of equity.

Leave was given to amend the information in the points above mentioned; the consideration of costs was reserved.

If a solicitor withdraws from the conduct of a suit, he cannot claim to retain the papers necessary for the prosecution of it, till his costs are paid, but will be ordered to deliver them up, without preju dice to his lien, to the new solicitor of the party.

In this cause Mr. Hart moved, that Mr. Raphael, the late solicitor of one of the parties, should deliver up the papers and writings connected with the cause, to the new solicitor whom he had appointed to act, without prejudice to the lien of the former on them in respect of his costs.

The application was supported by an affidavit, that Mr. Raphael had refused to conduct the suit any longer, and had assigned his business over to another gentle

man.

Mr. Treslove opposed the motion. He contended, that the utmost length which the court could go, would be to order the papers to be produced when they were wanted. An order to deliver them up could not be made, unless the party were to pay into court the costs due from him.

The Lord Chancellor was clealy of opi

H., a solicitor, advances monies for subsistence to R., an infant, who, upon attaining his full age, was entitled to certain property; R., shortly after he reaches the age of 21 years, signs a memorandum, by which he acknowledges himself indebted to H., in respect of those advances, in the sum of 12181.; and upon this memorandum, H. recovers a verdict against him: Held, that, even though the memorandum could not be impeached as obtained by fraud, yet, in consequence of the relation in which H. placed himself towards R., it will not prevent R. from having an account taken in a court of equity of the sums really advanced to him by H.

The plaintiff, Mr. Revett, being, in 1817, of the age of 18 years, and entitled to considerable real estates when he should attain his full age, was involved deeply in pecuniary embarrassments. His mother, having occasion to go upon business to the office of Mr. K. a solicitor, met there, while she was waiting in an outer room, the defendant, Daniel W. Harvey, also a solicitor, who was then, as she stated, a perfect stranger to her, but who, at least, had no acquaintance with the circumstance of the family. She told him of the expectations and embarrassments of her son; and Mr. Harvey replied, by professing a readiness to relieve these embarrassments, and by desiring her to come to him at a stated time and to bring her son along with her. At this meeting Mr. Harvey agreed to assist the young gentleman with pecuniary advances, till he should come into possession of his fortune; and the first proposal made by Mr. Harvey was to allow Revett Sol. per quarter, for which the latter was to give security upon his future property. Harvey, however, having taken

the opinion of counsel on the subject, was advised, that any security given by the infant would be of no avail, but that he might make advances for his maintenance during his infancy, and that such advances might afterwards be recovered by action. Upon this statement being made to him, Mr. Harvey did not think it prudent to carry his assistance so far as had been originally intended; and the final agreement, come to between the parties, was, that Harvey should advance to Revett 150l. a year, by monthly payments of 10l. and 157. alternately. During all this time, Harvey had been in a mistake with respect to the age of Revett; for he had been informed, that he would attain 21 in 1819, whereas in truth he was not of age till the month of February 1820.

The bill, after stating these facts, alleged, that Harvey, from time to time, made various monthly payments to Revett according to the agreement;-that at the end of eleven months, from the commencement of these loans, he took from this infant a warrant of attorney for 500l. ;-that he continued his pecuniary advances, up to February 1820, when Revett attained his full age; that shortly afterwards a meeting was held for the purpose of settling the accounts between them;-that a clerk then drew up a memorandum, by which the plaintiff acknowledged himself indebted to the defendant, leaving a blank for the precise sum;-that the defendant afterwards, without having communication with the plaintiff, filled up this blank with the sum of 1218., though in truth only about 400l. was due to him, and that the defendant had brought an action for the sum of 12187. The prayer was, that the memorandum might be cancelled, that an account might be taken of the pecuniary transactions between the parties, that no more should be paid to Harvey than was actually due to him, and that he might be restrained from producing that memorandum at the trial of the action, and also from proceeding in the action.

The defendant, by his answer, asserted, that there never was any agreement with respect to payments being made to the plaintiff monthly;-that the agreement was, that the defendant should advance such sums as the plaintiff might want;

that, accordingly, the defendant had advanced sums to the amount of 12187. ;— that the advances made in the first year alone amounted to 500l., for which the young man had executed a warrant of attorney;-that it was not true that the figures expressing the sum in the memorandum were inserted by the defendant;— that, on the contrary, they were in the hand-writing of Revett himself, who wrote them after he had examined the accounts and inspected the documents;-and that Harvey, upon receiving that signed memorandum, had delivered up or destroyed all vouchers and evidences relating to his dealings with Revett.

The defendant had proceeded in his action at law, and, upon the evidence of the memorandum, had recovered a verdict for the sum of 12181. However, after the verdict, the Lord Chancellor granted an injunction to stay proceedings upon it.

The evidence for the plaintiff proved the origin of his connexion with Harvey as stated in the bill, and that some payments of 10%. and 15. were made to him. There was no proof of his having received any larger sums.

For the defendant, there were witnesses, who, from the inspection and comparison of the hand-writing, swore, that they believed the figures, expressing the sum of 1218/. in the memorandum, to be in the handwriting of Mr. Revett.

Mr. Heald and Mr. Collinson for the plaintiff.

Mr. Horne and Mr. Wakefield for the defendant.

The argument for the defendant was,— that the question put in issue in the cause turned entirely on the fact, whether or not the figures, inserted in the space which had been originally left blank in the memorandum, were or were not in the handwriting of the plaintiff;-that, upon the evidence in the cause, this point was clearly established in favour of the defendant;that, therefore, the memorandum could not be impeached, and, consequently, the account between the parties could not be opened.

Vice Chancellor.-The plaintiff has not established, that the figures expressing the sum were introduced into the memorandum by Harvey; and the defendant has given

considerable evidence of their having been written by the young man himself. Judicially speaking, therefore, I must take it to be true, that the figures were in fact written by the plaintiff. Then, the counsel for the defendant say, that this is the material issue in the cause, and that, the plaintiff having failed upon it, he must have his bill dismissed. I am not of that opinion. If, without the introduction of the allegation that these figures were written by Harvey, the plaintiff has stated a case which would have entitled him to relief, is he the less entitled to relief, because he has stated something else, which is not essential to the case he makes? This young man has stated enough, has proved enough, to give him a right to the assistance of the court; that he has stated more, and has not proved it, is immaterial to his right to relief, though it is not immaterial to the question of costs. The charge, which he has brought against the defendant, is important with a view to costs, because it is of a nature which ought not to have been introduced, unless it was likely to be established; but it does not constitute the equity of the plaintiff's case.

Putting aside the unproved allegation, that the figures expressing the amount of the debt were inserted in the memorandum by the defendant, the question is,-whether the plaintiff is on the rest of his case entitled to relief? No principle is more familiar than this, nor is there any of more importance to the well-being of society; that, if persons, who, during the infancy of a young man, have had a duty to perform with respect to him, calculated to give them an influence over him, will alone, the moment he comes of age or shortly afterwards, without giving him the protection of other advisers, call on him to sign and execute instruments relative to transactions which took place during his minority, a court of equity will say, that the instruments, &c. signed and executed, shall not conclude the accounts. Had, then, Mr. Harvey placed himself in such a connection with this infant, that he may be fairly supposed to have acquired so much influ ence over his mind, as to have rendered it proper that the precaution should have been taken, of having the weaker party assisted by advice qualified to protect him in the

adjustment of his accounts, with a person on whom he had been in no small degree dependant? The admitted facts of the case answer this question. Mr. Harvey, according to his own account, becoming acquainted with the pecuniary embarrassments of this young man, who had augmented his difficulties by a very early marriage, proffers his assistance, and for three years maintains him and his family. He becomes his confidential friend, his adviser in all his concerns, his solicitor, where the interference of a solicitor was required; and yet, within two months after Mr. Revett attains his full age, he calls on him to sign this memorandum; and, accordingly, it is signed without the intervention of any third person between these two parties, who had stood in so peculiar a relation to each other. My clear opinion, therefore, is, that the relation in which Mr. Harvey had placed himself to Mr. Revett, was calculated to give the former a degree of influence over the mind of the latter, and that a memorandum, signed under such circumstances, ought not to prevent this young man from having a complete account taken of the pecuniary transactions between him and Harvey.

Such would be my decision, even if the case were free from circumstances of suspicion, and if it were evident on the face of the accounts that nothing could have been more fair. I cannot say, however, that this case is without circumstances of rather a suspicious character. Harvey affirms in his answer, that he never kept any regular accounts of his dealings with Revett, and that he is utterly unable to say, what were the sums actually lent, and when, and by whom they were advanced. This must be admitted to be an extraordinary instance of negligence for a man of business to fall into. Another feature of the transactions is this: the advances were to be made expressly for the maintenance of the young man; there is no suggestion that any payments were to be applied to liberate him from pressing debts; nor was that necessary, for his age protected him: now, though it had never been proposed that more than 3201. should be advanced yearly, and though the actual agreement was, that the annual payments should be limited to 150/., yet Harvey asserts, that, in the be