The Sun.
London, England, 1869-07-15 00:00:00

OVEREND, GUENEY, AND CO IPA NY.

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An appeal against the decision of Vice Chancellor
Malins, in the case of " Overend, Gurney, and Co. v.
Gurney and others," came before the Lord Chancellor on
Wednesday. The bill was filed by the company, now in
course of being wound up under the supervision of the
court, who sought to make Henry Thomas Gurney, John
Henry Gurney, Robert Birkbeck, Henry Ford Barclay,
Henry George Girdon, and William Rennie, the directors
of the company, and the executors of Thomas Augustus
Gibb, a deceased director, liable for the consequences of
having purchased the business of the firm of Overend and

Gurney. The allegations in the bill were in effect that
the directors, knowing the insolvent state of the
old firm, entered into the contract for the
purchase of the business, which had resulted in
considerable loss, that they did so withcut consulting
a general meeting of the company, and that no security
other than personal security was taken in respect of the
private estates of the partners. There was no allegation
of fraud or personal misconduct. The executors of Mr.
Gibb demurred that the bill was wholly unnecessary ; but
the Vice-Chancellor being of opinion that the bill,
charging as it did a breach of duty, required to be answered,
overruled the demurrer.

Sir Roundell Palmer, Q.C. (with whom was Mr.
Glasse, Q.C., and Mr. Jackson) now addressed the Lord
Chancellor in support of the appeal against the deci-
sion of Vice-Chancellor Maims. After commenting
at great length on the terms of the bill, he observed
that this was nothing but a case of alleged negligence of
an agent. But it was not even alleged that the agent had
disobeyed his actual instructions, and it was left to be
inferred that he exceeded his duty. Admitting for a
moment that there had been neglect of duty, an action of
this nature could not be against an executor. The pro-
spectus could have nothing to do with the matter, because
it simply announced that the contract had been made for
which power had been given before the prospectus was
issued. The company was formed for the very purpose of
taking this business, the directors being authorised to
acquire it ; so that the allegation that they should not have
done so without calling a general meeting was opposed to the
express terms of the articles of association. It was said
that the directors ought to have taken particular securities
on their estates, but by the very authority given them by
the company they were not to judge how far they would
benefit the concern by seeking to lock up the private
estates. They would be quite justified in not doing so
if they believed that they could fulfil the undertakings
they entered into; and there was no allegation that the
directors knew at the time that the company must sustain
a loss. It might be that they judged unwisely in taking
the business at such a time, but there was nothing to shew
that they did not act in perfect good faith. Could it be
supposed that the 0 verend and Gurney directors would have
embarked their fortunes and their reputations in this con-
cern if they knew it would be a loss? The allegations, he
contended, were flituFy and luizy, and did not even pre-
sent all the elements necessary to shew a case of negli-
gence. The whole proceeding was an abuse of the power
of :the officer winding up the affairs of the company.
If the bill were allowed to lie, the whole amount in (111C3-

tion could be recovered from the same estate tw ice. The
company might sue as an aggregate, and every individual
might sue for his own personal loss, and all these suits
might go on together.
Cottham, Q. 0., in reply, said that this bill was
fi:ed I y the official liquidator, in pursuance of his
duty to the m hole of the shareholders. It was put
on the other side that this was simply an
action for damages against directors, who, although called
trustees, were no more than agents, and an., the proper
tribunal before which it should be brought was one of law
and not of equity. Lot this was net exactly the nature
of the case. The bill all( ged that £1,5C0,000 had gone
out of the coffers of the company to meet the liabilities
of the firm, and this having occurred in consequence of the
breach of duty committed by the directors it► making this
contract, the bill sought to make them liable to return
that amount and make good the loss so incurred.
The directors were liable as trustees, not only for
the funds actually in their possession, but for those funds
over which they, in virtue of their position as directors,
would have control. The plaintiff's case was that it was
a breach of duty on the part of the directors to purchase
this business at all, or at any rate upon such terms as
were actually given. The learned counsel went on to
argue that, notwithstanding the contention of Sir Roundell
Palmer, the prospectus told against the directors.
The Lord Chancellor asked if he was judicially to
assume that a business of such credit as this had been
could not recover its balance at the time cf the formation
of the company and become profitable. The plaintiffs
did not say there was fraud ; what then was
he to conjecture except that these gentlemen
thought the business was good? He did not know
that he was even to assume that the business was not pro-
fitable. There must have been improper expenditure
amongst the partners themselves, or many other circum-
stances, to ac•:ount for the position of the company.
Mr. Cottham said they did not charge fraud, to
have done so would have prevented a demurrer, and the
case could not have come before the court.
The case was adjourned till next Wednesday.

The Guardian congratulates the subscribers to the
Keble College on the appointment of Mr. Edward Stuart
Talbot as principal. Mr. Talbot is a double first.
ONE VIEW OF THE DIVISIONS IN THE CHURCH.—
The Dean of Ripon, better known as Dr. McNcile, drew
a sad picture the other day of the antagonistic elements
which war within the bosom of the Church. Neverthe-
less, added the Dean, with all her difficulties, " with her
half-Popish doctors at Oxford, and more than half-infidel
doctors at Natal, the Church has been blessed by God
with a measure of success unparalleled in the history of
the world."

THE ATTEMPTED ASSASSINATION IN GALWAY.—
Captain Lambert is not yet pronounced out of danger.
At Galway Assizes, on Wednesday, the Chief Justice
asked if the trial of Barrett could be proceeded with, but
it was stated that the wound in Captain Lambert's side
was so serious that he could not safely attend to prosecute.
The trial was, therefore, postponed.
MYSTERIOUS ROBBERY OF £9OO AT A NOTTING-

11A31 lIOTEL.—An extraordinary robbery of £9OO has
taken place at the Lion Hotel, Climber-street, Notting-
ham. It appears that a betting-man named Briggs had
been staying at the hotel during the races, and on Tues-
day retired to his bedroom with a large sum of money.
On the following morning the boots saw Mr. Briggs's
door open, and about an hour afterwards an alarm was
raised that the room had been broken into by some one
who had stolen £9OO in bank notes. No trace of the
missing property bas been discovered. A curious feature
of the case is that in another of Mr. Briggs's pockets
were £BO in gold and a considerable quantity of bank
notes, which were left untouched. His geld watch was
also left behind.

ASSAULTING A NOBLEMAN.—At the Hampstead
Police-court, on Wednesday, Richard Tippett, toll-collector
at Shootup-hill-gate, Edgw•arc-road, was summoned for
having assaulted Viscount Stormont (eldest son of the
Farl of /.lansfield) ; and furthe.-, for having taken a
larger amount of toll on a horse than he was entitled to.
On the 3rd instant Lord Stormont came on horseback to

the tollbar, and seeing no one at the receipt of custom
rode slowly through. When his lordship was about ten
yards through the bar the defendant made his appearance
and told Lord Stormont that he ought to have waited fo
a few econds. In order that the penny toll upon the
horse might be taken his lordship gave the defendant a
shilling, and received twopence in exchange. This he
declined to take, and on pressing the defendant for the
right change, the latter produced a knife and threatened
to stick the horse. The bench inflicted a fine of 2s. 6d.
e pAault a4cl on 024 of
sad the costa, both on the charg
juktaltak2ll...