1840. Turner v. Hill.

[*15] sufficient notice, *when they respectively became possessed of and interested in the said 100th share in the said mines, that the said H. M. Grylls was such assignee as afore said, when he made such purchase of shares in the said mines in manner aforesaid; and that the said purchase was, in fact, made in manner and for the purposes and under the circumstances before in that behalf stated; and then there is another charge that Mrs. Hill and the defendants likewise always well knew and had full and sufficient notice, when and ever since they became, respectively, possessed of the said share in the said mines in manner aforesaid, that the creditors of the said bankrupts, and also the plaintiff, as such assignee as aforesaid, disputed such sale and purchase of the bankrupts' shares, and that such proceedings were being taken to set aside the same in manner aforesaid. It seems to me, therefore, that this is a mere pursuit, by means of a bill in equity, of a portion of the property of the bankrupts, which, by a fraudulent transaction of the assignees, became vested in the testatrix: and, that being so, it is reasonably plain that this is a case in which the Court will relieve, provided no sufficient answer is given to it.

That passage in the prayer of the bill, which asks for a receiver of the profits of the whole mines, is clearly a mistake; for the plaintiff is seeking, by his bill, to recover no more than a 100th share of the mines; and, therefore, in common fairness of construction, that passage ought to be referred to the profits of that share, and not to the profits of the whole mines.

With respect to the objection that all the other shareholders in the mines, ought to have been made parties to the bill, [*16] it is to be observed that what is *wanted, in this case, is to ascertain what profits have been received by the parties who hold that 100th share; and, for that purpose, it is not necessary to have an account taken of all the profits of the mines.

The bill also prays that the defendants may transfer that 100th share, to the plaintiff; and it seems to me that there is no difficulty in granting that part of the relief; for, as the matter is represented, it comes to this, namely, that, by the means and under

Turner v. Tyacke.

the circumstances stated, the defendants have in them, under the denomination of the 100th share, a portion of that share which originally belonged to the bankrupts.

Therefore the demurrer must be overruled.(a)

TURNER v. TYACKE.

1840 2d May.

THE object of the bill in this case was to recover, from the personal representatives of Richard Tyacke, (who was dead) the 100th share in the mines, which the deceased had become possessed of, in the manner and under the circumstances stated in the preceding case; and, the defendants having demurred, on the same grounds as in that case, the demurrer was overruled without argument.(b)

1840: 2d May.

*TURNER against BORLASE.

[*17]

THE plaintiff, in this case, was the same as in the two preceding cases. The defendants were the members of a company or copartnership called the Gweek Company. The object of the bill was to recover four shares in the mines, which Richard Tyacke (who had been a member of the company) had purchased on behalf of the company. In other respects, the circumstances of the case were precisely the same as those of the two preceding cases and, the defendants having demurred on the same grounds, the demurrer was overruled after a short discussion.

(a) See the two next cases.

(b) See the next case.

1840.-Turner v. Borlase.

The defendants appealed to Lord Cottenham, C. The appeal was argued in May, 1840; and, at the conclusion of the argument, his Lordship said, that the bill having been filed within twenty years from the time when the transaction complained of took place, and there being no allegations of acquiescence, the general demurrer, which was founded on the length of time, could not be supported.

On the 17th of November, 1840, his Lordship delivered the following judgment:

The only question in this case is whether the bill is defective for want of parties, there being no ground whatever, for the objection for want of equity. As to parties, the case being complicated, some difficulty arises in rightly comprehending the

facts, so far as they are applicable to the point; but, [*18] when understood, I do not think there is much difficulty, due regard being had to the allegations in the bill. Four objections were made for want of parties: on account, first, of the absence of all the new adventurers in the mines: secondly, of the representatives of Richard Tyacke; thirdly, of the representatives of Charles Trelawney, (a) and fourthly, of the trustees of the deed of the 4th November, 1819.(b)

The facts, as stated in the bill, so far as they apply to these several points, are as follows: That Thomas and John Gundry were entitled to a half or nearly a half of the shares in the original adventure; and John, having become indebted to the other adventurers, as purser of the mines, assigned some of his shares, to trustees, in trust, by sale or otherwise, to raise money to pay the debt; that the Gundrys having afterwards become bankrupts, an arrangement was agreed upon, between the then assignees and the other adventurers, that the whole of the mines should be sold, the shares of the remaining shareholders being re-purchased by them; and that the shares of the Gundrys should be sold, and the proceeds applied in payment of the debt due to the company; and that the purchasers and the old shareholders should constitute a new company that this arrangement was carried into effect by

(a) One of the new adventurers.

(b) The contents of this deed are stated in the subsequent part of the judgment.

1840.-Turner v. Borlase.

means of a decree for the sale of the mines, and of the property belonging to them, in the Vice-Warden's court, at the suit of certain creditors of the mines, who lent their names for that purpose; and that, for the purpose of *facilitating [*19] that object, the then assignees of Messrs. Gundry nominally relinquished the shares of the bankrupts: that it was previously agreed that certain other persons should become the purchasers of such shares, and, amongst others, that Richard Tyacke should have four 54ths, for himself and his co-partners in the Gweek Company: that the trustees of Charles Trelawney were to have other of such shares: that the sale under the decree was nominal and fictitious, the sums and future shareholders having been previously agreed upon: that the Gweek Company so became possessed of four 54th shares, and were so entered in the cost book of the mines: and that such four shares were part of the shares of the Gundrys which had been so relinquished: and that the Gweek Company were the legal owners of such shares, but that they had notice of all the circumstances stated with respect to the manner in which the shares of the Gundrys had been dealt with; and that such company was not, therefore, entitled to hold such shares against the creditors of the Gundrys, represented by the plaintiff, their present assignee. The defendants are the existing partners in the Gweek Company, Richard Tyacke being dead; and the bill prays that such shares may be restored to the estate of the Gundrys, upon such terms as the court may think fit, and for an account of the profits of such shares received by the defendants: and that a receiver may be appointed to receive the profits arising from the said mines: and that all proper accounts may be ordered for effectuating the purposes aforesaid.

This, therefore, is a very distinct statement that the shares sought to be recovered from the Gweek Company, were part of the shares that belonged to the Gundrys, and were possessed, by the Gweek Company, under a sale, impeached as fraudulent.

Upon the case so stated, I think that the other adven- [*20] turers and the purchasers of the other shares, are not only

1840. Turner v. Borlase.

not necessary parties to this suit, but that they would not have been properly made parties to the bill containing such allegations.

I see no reason for departing from the opinion I expressed upon this subject in the case of Mare v. Malachy.(a)

It was, however, observed that the bill prayed a receiver of the profits arising from the said mines; and, if that must neces sarily be intended to mean the general profits from the mines, it would be asking for that which could not be granted in the absence of all the other adventurers; but I do not understand the expression to have that meaning. All the case made, and all the relief asked, relate to the particular shares bought by the Gweek Company, and the profits which they have received therefrom; and I must understand the profits, as to which the receiver is asked, to be the profits before spoken of: which makes the whole consistent, and for which purpose the other adventurers would not be necessary parties.

As to the representatives of Richard Tyacke and Charles Trelawney, those persons are alleged to have been purchasers of other of the shares belonging to the Gundrys, under the same sale, it is true, but by distinct purchases; and, as such, they are not necessary, and would not be proper parties to the suit; and Richard Tyacke being dead, all his interest as a partner in the Gweek Company has merged in that of his surviving part

[*21]

ners.

*It only remains to consider the objection that the trustees of the deed of the 4th of November, 1819, are not parties. The other adventurers in the mines were the cestuisque trust of that deed; and the bill alleges subsequent transac tions, between the assignees of John Gundry, the author of that deed, and such cestuisque trust, by which the objects of that deed were accomplished, namely, the sale of the shares and payment, out of the proceeds, of the debts due from John Gundry; and thus, the bill alleges, that all the legal estate and interest of and in the said several last-mentioned shares, is now legally vested

(a) 1 Myl. & Cr. 577.