Turner v. Trelawny. which a defendant stated he was ignorant, were not admissible, especially in a case like that before him, in which the plaintiff was showing cause on merits confessed in the answer. His Honor added that, in Hodgson v. Dean, Sir J. Leach seemed to think that it was a mere accidental omission to state the fact as to which the affidavit was received. *TURNER v. TRELAWNY. [*49] Bankrupt.-Assignee.—Purchase of Bankrupt's Property.—Breach of trust.-Principal and agent.-Lackes.--Length of Time. 1841: 10th, 11th, 12th, 13th and 15th March. In January 1820, A. and B., who held more than a third of the shares in a Cornish mine, which was then a losing concern, and the shares were of very little if any value, became bankrupt. At a meeting of the other shareholders, held in February, at which G., though not then a shareholder, was present, it was resolved, in order to prevent the mines from being abandoned and the injury which the neighborhood would sustain thereby, that a new company should be formed, consisting of old shareholders and of persons who might be inclined to purchase shares in the mine, and that, for the security of the latter, the mine should be sold under a decree of the Court of Stannaries, and the debts of the mine paid with the proceeds. Shortly afterwards, G. was appointed assignee of the bankrupts; and then, in order to avoid the responsibility of continuing to hold their shares, he relinquished them under counsel's advice. Afterwards the shares were disposed of amongst old and new adventurers, and G., who had proposed to the trustees for the defendant, then a minor, to take some of the shares, agreed to take eleven, for himself and friends; and about the same time the trustees authorized him to take four shares for the defendant. The mine was afterwards sold, in the Court of Stannaries, to G. on behalf of the new company; the purchase money was paid into court, and then applied to pay the debts of the mine. Soon afterwards the defendant came of age; and his agents paid G. for the four shares at the rate at which he had purchased the eleven, and the four shares were transferred into defendant's name. The mine continued to be a losing concern to the new company, until after they had prevailed on defendant, who was the owner of the freehold, to accept a surrender of the lease under which it had been held, and to grant a new lease at reduced dues, and including new mining ground. Afterwards G. was removed from the assigneeship, and a renewed commission was issued, under which the plaintiff was chosen assignee of the bank. rupts. Turner v. Trelawny. Notwithstanding the term granted by the old lease had long expired, and the defendant had no knowledge of the bankruptcy, and fifteen years had elapsed, during which there had been a large expenditure on the mine, the court declared the defendant to be a trustee of his shares in the mine, including the new ground, and decreed him to account for and pay, to the plaintiff, the profits thereof. THIS case arose out of the transactions stated in Turner [*50] v. Hill, Turner v. Tyacke and Turner v. Borlase, *reported ante, Vol. XI., pages 1, 16, and 17. Those cases came before the court on the argument of demurrers, and, therefore, in the reports of them, the allegations in the bill were stated as facts. This case, however, was brought to a hearing, and therefore it will be necessary to state the facts as they appeared from the evidence in the cause. In and before 1819, Messrs. J. and T. Gundry were the owners of more than one-third of the shares in certain mines in Cornwall, which were held for terms of years ending in 1831, which had been granted by George Woolcombe and George Leach, the trustees under the will of the defendant's late father. At the end of 1819 and the beginning of 1820, the Messrs. Gundry were much embarrassed in their circumstances, and were greatly indebted to the mines; and, owing principally to their embarrassments and mismanagement, the mines were a losing concern; and there was reason to apprehend that the working of them must cease. In the early part of January, 1820, the late Mr. Grylls, who was a gentleman of considerable influence and property in the neighborhood, exerted himself to keep the mines in work, as they afforded employment to a great number of laborers, and tended to promote the trade of the neighboring town of Helston. Accordingly, on the 6th of January, 1820, he wrote to Mr. Henry Woolcombe, the solicitor to the trustees, stating that the mines could not, at the then price of tin, be worked so as to do more than pay their expenses, that the trustess must feel the necessity (if they could not give immediate assistance,) of promising that Turner v. Trelawny. the matter should be taken into consideration as soon as the defendant, *the tenant in fee under the will, (but who [*51] was not then quite of age,) should attain 21, and that an abatement in the dues payable for the mines would induce the adventurers to continue the working of them with spirit. On the 20th of January, 1820, a commission issued against Thomas Gundry, and, on the same day, a commission issued against John Gundry, under which they were found bankrupts respectively. On the 24th of the same month, a joint commission issued against them, under which also they were declared bankrupts. On the 5th of February, 1820, a meeting of the adventurers was held, at which Grylls, though he had then no interest in the mines, was present; and it was then resolved, as the only mea sure that could prevent the mines from stopping, that at least one-half of them should be offered for sale at the price of 500% per share; and, in case that one-half could be disposed of at that rate, it was proposed, for the security of the new adventurers, that the mines, materials, and halvans should be sold by the de. cree of the vice-warden of the Stannaries, and entered upon as on the 1st of February then instant, clear of all debts and demands contracted before that day; that the amount of shares to be sold to new adventurers, should be paid into the vice-warden's court; that the sum which might be raised from John Gundry's shares should be appropriated to pay the amount due from the mines to the end of October then last; that the old adventurers who should continue their shares, should give an undertaking, to the vice-warden, to pay their proportions of the deficiency which might remain due, from John Gundry, after the produce of his shares should have been appropriated as above; that communication *should be made, to Mr. Grylls, respect- [*52] ing the purchase of the half of the mines agreed to be offered for sale, and that he should be requested to correspond with such persons as might be willing to become purchasers thereof, and that the adventurers present at the meeting would endeavor to dispose of some part thereof amongst their friends. Turner v. Trelawny. Mr. Grylls did not sign these resolutions; but, in consequence of them, he applied to several persons to take shares in the mines; but neither he nor any of the adventurers could then dispose of any of the shares. On the 15th of February, 1820, Grylls and Charles Read were chosen assignees of John Gundry's separate estate; and the creditors present on that occasion, authorized the assignees to relinquish J. Gundry's shares in the mines, to the other adventurers. On the 16th of February, 1820, another meeting of the adventurers was held, at which also Grylls was present; and it was then resolved that the principal creditors of the mines, should immediately petition the vice-warden of the Stannaries for a decree to procure the payment of the sums due to them; and that they should represent, to the vice-warden, at the same time, that there was a great number of other creditors, and request him to ap point a day for the proof of their claims before his secretary, with a view to have a decree for the sale of the mines, materi als, and halvans, for the purpose of defraying the whole sum which might be due; that the vice-warden should be then petitioned for a decree to sell the mines, &c., in one lot; that the proceeds of the sale should be paid into the vice-warden's court, and be considered in precisely the same situation, with [*53] respect to the claims of the creditors, as *the mines, &c., would have been if no sale had taken place. On the 18th of February, 1820, Grylls and Read were chosen assignees of Thomas Gundry's separate estate, and, on the 23rd of the same month, they were chosen assignees of J. and T. Gundry's joint estate. On the 18th of that month, Grylls and Read relinquished, to the continuing adventurers, the shares of both John and Thomas Gundry in the mines, in order, as the answer alleged, to protect themselves from the future responsibility which they would have incurred, to a great extent, if they, as assignees of Turner v. Trelawny. insolvent estates, had continued adventurers in the mines, and from which they had no prospect of being otherwise relieved, after the refusal of so many persons to take shares in the mines: for, as the defendant believed, the produce of the mines did not then pay the expenses thereof, and the debt on them then exceeded the value thereof and of the property belonging thereto. On the 23d of February, 1820, another meeting was held (at which also Grylls was present) between the old adventurers and persons who had then proposed to become new adventurers in the mines, for the purpose of coming to an arrangement as to the terms upon which the new adventurers were to take up their shares; and it was then resolved that four persons should be ap pointed to value the materials, halvans, (a) &c., on the mines, two by the old and two by the proposed adventurers, and that the mines(a) should be sold at the valuation to be so made; and such of the parties as were old adventurers, agreed to take such additional shares as were set *opposite their respec- [*54] tive names, and such of them as intended to become adventurers, to take such shares as should be set opposite their re spective names: and it was further resolved that immediate measures should be taken to induce the vice-warden to grant a de cree for the sale of the mines, in order to pay the debts due in January then last; and that, in case of such sale at the valua tion above mentioned or at any higher sum, the purchase money should be paid into the vice-warden's court, and be considered precisely in the same situation with respect to the responsibility of the then adventurers, as the mines, materials, &c., would have been in if no such sale had taken place. Grylls signed these resolutions as taking three shares; and, on the 29th of February, he wrote a letter to Henry Woolcombe, as the solicitor to the defendant's trustees, enclosing the last-mentioned resolutions, and stating that some of the shares which had been relinquished, had been taken; but he despaired of finding persons to take the remaining shares, and that the consequence (a) So in brief. |