The Sun.
London, England, 1859-12-06 00:00:00

EDINBURGH AND GLASGOW BANK

ACTION AGAINST SIR WILLIAM JOIINSTON AND
• ormits.- •

The Mail publishes the defences of Sir William
Johnston, of Kirkhill, Knight, iu the action at 'the
instance of John Culled, Writer to the Signet,
against the said Sir William Johnston, and also
against Thomas Thomson, W.S., Edinburgh ;
Thomson, of Balgowan, Perthshire'; James Bonar,
W.S., Edinburgh ;'and the Rev. John James Boner,
minister of the Gospel, Greenock ; trustees and
executors of the now deceased John Thom son, some-
time manager of the Edinburgh and Glasgow Bank,
EdinbUrgh ; and Charles James Kerr, accountant
in Edinburgh, son etithe secretary, and thereafter
joint manager of the said bank. The defender's
anwers to the pursuer's condescendence consists
mainly of 'denials of the statements set forth
therein, with reference to the defender's statement
of facts. •'
DEFENDERS' STATEiLENT OF FACTS.' •
I: The defender beeathe a shareholder of the
Edinburgh and Glasgow.- Bank in 1845, when ho
acquired 150 shares. He afterwards• in 1846, ac-
quired other 350 shares, so that in the year 1850. he
was proprietor of 500 shares ; which amount of
stock he has held ever since, without increase or
diminution. He never offered to sell, or intended
to sell any shares in the Bank, whether belonging
to himself or others, to any person whatever. His
two brothers also are holders ; the one of 300 shares,
and the other of 368 shares in the said Bank. The
defender's own shares and those of his two brothers,
have cost them about £lO,OOO.
11. In or about the year 1849, the defender was
solicited to become a director in the Bank, and he
agreed to accept the office. Accordingly, the de-
fender was then elected a director, and he continued
to, be a director till 1858. Some time after the de-
fender's election as a director, he was appointed'
chairman of the directors, and he held this office
for some years.
111. The contract of copartnership of the Edin-
burgh and Glasgow Bank, is dated 29th February,
1844, and various other dates. A good many of the
articles of the original contract were from time to
time altered by resolutions of the partners, in terms
of and under powers conferred by .the contract it-
self. In particular, such resolutions and alterations
were made on 22d March, 1849, on 6th
February, 1851, on -sth February, 1832,
on 3d February, 1853, on sth February, 1857, and
4th and sth February, 1858. The contract ofeo-
partnery, with the various resolutions altering or
varying the same, is specially referred to, and held
as repeated. The whole alterations were effected
in due and competent form, and were legally bind-
ing on the whole partners' of. the 'company. The
present pursuer assented to the contract, and to the
whole successive alterations thereon.

IV. The contract of copartnery is referred to. A
great variety of powers are conferred upon the di-
rectors by the contract, and large discretionary
powers, are entrusted to them in relation to the
conduct and management of the affairs of the bank,
for all which reference is Made to the contract

V. The duty of the directors was to afford their
advice on whatever matters might from time to
time be submitted to them by •the manager, secre-
tarn or other officers of the Bank, and to give direc-
tions regarding the general management of the
Bank affairs. The whole details of the management,
however, were always and necessarily entrusted to
the manager, secretary, accountant, and other paid
officials of the Bank. The directors were not ex-
pected or required to make themselves conversant
with the whole details of the Bank's business. To
have done so would have required an amountof pro-
fessional skill and an expenditure of time which
none of the directors were either asked or expected
to give, as the nature of the remuneration given
sufficiently showed. This was perfectly understood
by all the partners and was and is the practice in
other banks, and in allpublic institutions of a simi-
lar description.
VI. By the contract a small allowance was made
to the directors, as an acknowledgment for their
trouble. This allowance was latterly fixed at £lO
per week for the whole directors, and was in prac-
tice divided among them according- to the number
of meetings they respectively attended. The whole
amount received by the defender never exceeded on
an average £4O per annum. If the defender had
been required to master and keep himself informed
from time to time of the whole affairs of the Batak,
this allowance wouldhave been absurdly dispropor-
tionate to the labour and skill required, and neither
the defender, nor any one else, would for a single
moment have undertaken such a task. Nothing of
this kind, however, was ever required or expected
of the defender.

VII. The defender accepted of the office of direc-
tor on the footing above explained, and in reliance
on the clause of indemnity which the contract con-
tained. He never, however, was a leading member
of the direction ; he never was a member of the
committee of directors, to whom the board of direc-
tors confided the more immediate direction of the
Bank ; he never was a member of any committee
which prepared the quarterly or annual states, from
the time he entered the direction until the last
year of the Bank. The defender was Lord Provost
during three years of the time when he was direc-
tor ; and from this and numerous other public calls
upon his time, he knew less of the affairs of the
Bank than many of the other directors.
VIII. For the full history of the defender's act-
ings as director, the defender is obliged to refer to
the books, minutes, and records of the Bank itself
to which at present the defender has no access. He
had no reason to doubt the accuracy of the states
and reports which were prepared, and he acted
on that footing. At other times he was absent from
Edinburgh, sometimes for considerable periods. He
was in Italy when the circular of Gth May, 1858,
was issued—he had been there for weeks before—
and he did not return to this country until some
weeks after its date. He never was consulted in
relation to that particular ; he never was asked, or
had any occasion to approve of it, and he never even
saw a copy of it until November,lBsB,long after the
bank had ceased to transact business. So, in like
manner, with many of the reports or states to which
the pursuer refers, but to which, in the absence of
the minutes, the defender cannot more particularly
refer.

IX. Everything done by the defender as
director, or in relation to the affairs of the bank,
was done in optima fide, in the honest discharge
of the defender's duty, without any design of
advancing the defender's own interests at • the
expense of any one, and without any motive
excepting fairly and honourably to promote the
interests of the bank, which were identical with his
own. From time to time the defender did rely,
and necessarily required to rely, on the statements
and information furnished to him by the paid
officials of the bank. He had no reason to doubt
the truth of these statements, which had been
passed and approved by previous boards of direc-
tors, and by the shareholders, before the period
when he himself became a director. On the con-
trary, he had every ground for believing that they
were correct; and upon these statements, to a lar:
extent, the defender's estimates and calculations
were based. His expectations have been disap-
pointed in many respects, but for this the defender
is in no way to blame. He is himself, as well as
his brothers, a severe sufferer, nor has he, directly
or indirectly, attempted to throw any part of the
loss upon others by disposal of any portion of his
shares, or in any other way.
X. and XI. State that the pursuer has been from
the first a shareholder in the Edinburgh and Glas-
gow Bank, and was present at various meetings of
the company ; and that from 1844 to 1858 he had
full means of making himself acquainted with the
position of the company.
XII. After it was found necessary to wind up
the business of the bank, and to transfer its whole
assets and liabilities to the Clydesdale *Bank, in
June 1858, the pursuer was one of the shareholders
who approved of and conourred in this being done.
The pursuer was present at the meeting of part-
ners, held on the 10th June, 1858. He moved an
alteration in the articles of agreement between the
Edinburgh and Glasgow Bank and the Clydesdale
Bank ; and the alteration which the pursuer pro-.
posed was agreed to. At this meeting certain
parties took a protest, reserving their claims against

AV'
v.', '1
4 .$
j -
directors, but the present pursuer di it con S
:ur in that protest, or adhere thereto.
XIII. By the articles of .agreement between the
Edinburgh and. Glasgow Bank and the Clydesdale
Banking Company, of Bth and 9th June, 1858, of
which-agreement the pursuer appreved, and in
width. he concurred—it was provided, " That the
stock and business of the said Edinburgh and
Glasgow Bank shall, as ou the evening of the, 19th
day, of Jane, 1858, be taken over by, so
.ns to. be
united with the' Clydesdale Banking .Company, Arid
that subject to the terms and conditions followifti”-
The agreement then specified the terms •on wkic h.
the stock,- assets, and business of the Ediablirgh
and Glasgow Bank wt.l!. to be hanckd over to tile
Clydesdale Bitching Company. The agreement is
.referred to. The agreement was, with the pursuer's
consent and concurrence, carried into •etfeet ; and
the whole stock and property of every description
belonging to the Edinburgh and Glasgow Bank
were transferred and made over to the 'Clydesdalet
Banking Company.
XIV. The various purchases made by the pur-
suer of stock or shares in the Edinburgh and GIAS.
gow Bank were made without any reference to, •
and without any communication with, the defender.
The purchases were made as speculations on the
part:of the pursuer, and in the hope that the valuk
of the stock would rise. The pursuer kne* the:
risks attendant on such stock, and the contingen-
cies to which it was exposed, Many of the
purser's alleged purchasers were made after the -
stoppage of the Western Bank, and during the
panic and depreciation of bank stock which fol-
lowed that event. The pursuer knew that if the
panic continued, the business of the Edinburgh and
Glasgow Bank might be destroyed altogether. On ,
the other hand, there was the chance that confidence
might be restored, in which case the shares
would rise in value., The pursuer was net'
induced to Ktrchase by the defender di-
rectly or indirectly, and there, was no Contract
between them in relation 'to these purchases. 'lf
the pursuer's Speculation had been profitable, the
gain would have been his own. The speculation
was made solely at his own risk.
XV. The defender is in no ways answerable for
the unfortunate result which has attended specula-
tions in stock of the Edinburgh and Glasgow Bank.*
The defender did all he could to promote the inte-
rests Of the bank. He retained his own stock to
the last, and still holds the full number of shares
which he ever possessed.
XVI. As .already mentioned, the whole books,
papers, and documents, of every description be-
longing to the Edinburgh and Glasgow Bank,
were handed. 'over to the Clydesdale Banking
Company in june, 1858: The defender has had
no. access to these books- and papers,. nor to any
copies thereof. The- pursuer,. before raising the
present action, obtained exhibition of the books and
papers of the Edinburgh and Glasgow Bank; and
had full opportunity of making, and did make, full
excerpts therefrom. The pursuer has not produced
a single document or paper of any kind with the
present summons, although the summons contains a '
great variety of details regarding the alleged entries
or statements contained in the bank books, or ab-
stracts, and- states of affairs. In these circum-
stances, while the defender has, in the' present de-
fences, given every explanation in his' power, and
as far as he could do so, without .access to the bank
books and papers, he reserves right to make such
additional statements as may be required, so soon
as he shall have had an opportunity of examining
the 'books and documents referred to.

PLEAS IN LAW.
I. All parties interested are not called. The pur-
suer is bound to call the whole directors of the
Bank who were parties to the acts complained, nor;
at all events, in so far as the action is laid upon ne-
glect or violation of duty.

11. The pursuer's statements are irrelevant and
insufficient to support the conclusion of the summons.
No sufficient grounds are stated inferring liability
against the defender. The allegations of fraud are
insufficient in detail and in precision.
111. The defender is not liable for the acts of his
co-directors, or for the acts of the other defenders.
He is entitled to the protection afforded by the
clause of immunity contained in the contract. Hav-
ing acted in bona fide, and to the best of his ability,
he is not answerable for the results.

- IV. The pursuer has not set forth any statements
or grounds sufficient in law to infer a conjunct and
several liability against the defenders, nor does
his statement contain the means or elements for
establishing a separate liability against the de-
fenders. There are no termini habiles by which
the alleged liability of either of the defenders can be
measured or ascertained.

V. The pursuer cannot found on any alleged acts
of the directors or officials, as involving any lia-
bility against the defender, in which acts the de-
fender was not individually participant.
VI. The pursuer having approved of, and con-
curred in the whole reports of the directors, and re-
solutions of the partners, including the transferenee
to the Clydesdale Banking Company, he is barred
from insisting in his present claim.
VII. The whole of the pursuer's essential state-
ments being false in point of fact, the conclusions
of the action cannot be maintained.

VIII. In the whole circumstances, and the.pur-
suer's statements and pleas being false and ground-
less, the defender is entitled to absokiter, with
expenses.

In respect whereof, &c.,
AD. GIFFORD.

211 E NAVY.

The screw steam troopship Vulcan, Commander
Strode, which came in contact with the brig Co-
quette on Saturday morning, had defects made good
at Plymouth late on Saturday night, and left the
Sound early on Sunday morning for Dublin to em-
bark additional troops for the Cape of Good Hope
and China.

The Himalaya screw troopship, Commander J.
Seccombe,'will shortly proceed from Portsmouth to
Halifax, United States, and convey,reliefs of troops
between that port and the West Indies.

The paddlewheel steam sloop Virago, ComrTin-
der M. Dunn, at Plymouth, will be out of the haids
of the shipwrights about the 22d inst.

The paddlewheel steam sloop Ardent, Comman-
der J. E. Parish, under repair at Plymouth, will be
ready on Thursday, the Bth inst., to sail for the
West Coast of Africa. "

The Colossus, 80, screw, in the first-class steam
reserve at Portsmouth, is under orders to be brought
down the harbour and prepared for immediate coast-
guard service. The furnace with which she has been
recently fitted will be taken down and landed from
her.

Workmen are employed preparing the blocks in
the building-shed, from which the Victoria, 121,
was recently launched, for laying down the keel of
the Royal Alfred, 91, screw ; portions of her keel
and floor timbers are alongside the shed in prepa-
ration for laying down. The Royal Alfred's prin-
cipal dimensions are the same as those of the Dun-
can, 101, about to be launched from the next shed
—viz., extreme length, 252 ft. ; length of keel, for
tonnage, 213 ft. Kin.; breadth, extreme, 58ft. • do.,
for tonnage, 57ft. 2in. ' • do., moulded, 56ft. 4in.; depth
in hold, 25ft. bin. ; burden in tons, 3,715 63-94.

The Princess Royal, 91, screw, Capt. the Hon. T.
Baillie, was paid off at Portsmouth yesterday. She
passed inspection by the officials of the dockyard
and steam reserve in a manner highly creditable to
her officers.

The following appointments were made yester-
day at the Admiralty :—Commander J. J. S. Jos-
ling, to tJe Queen ; Lieut. H. Packe, to the Queen;
Lieut. A. Salivey, to the Excellent; H. H. Boys,
proinoted to Lieut., dated the 26th ult ; H. F. Nor-
may, master, to the Cumberland; B. B. Dowling,
second master, to the Queen • Richard B. Wilkin-
son, G. R. Beadon,'
and C. T. Scholefield, naval
cadets, to the Queen ; John Hotham, W. J. Ogilvy,
W. C. J. Blount, Francis 0. Hartshorne, and Thos.
Ramsbotham, midshipmen, to the Queen ; and
W. Young, assistant-engineer, to the Asia, as super-
numerary.

THE LIBERAL CAUSE IN EAST SUFFOLK.—The
Liberal party at the late official revision of the register of
electors in East Suffolk made very strenuous exertions to
retrieve their apathy and neglect in this particular informer
years. Their efforts are stated to have been highly success •
ful, and the gain in the various registration districts is re•
turned as follows :—lpswich, 250 ; Needham Market, 24;
Woodbridge, 28; Framlington, 26; Sairmundham, 12;
Halesworth, 80; Beccles, 71; tradbroke, 59 ; Loweitoft,
178; total, 728. As the majority by which Sir F. Kelly de-
feated Col. Adair, the Liberal candidate, in May last was
only 634, the gallant colonel's adherents regard his fixture
candidature with hope.
A STORY OF THE RIFLE MOVEMENT.—Lord
Elcho has been among the most strenuous promoters of vo-
lunteering, and most diligent students under Gen. Hay, at
Hythe. Lord Elcho is an old and crack deer-stalker ; and to
his mortification he found, at Hythe, strive as he would, he
could not get into the first class. Among his more success-
ful competitors was 2 by-no-means distinguished-looking
Londoner—a true son of Cockneydom—who gradually out-
stripped all his fellow-shooter's and ended by carrying off
the first prize. The Londoner was evidently no novice at
ball practice, yet he was, just as evidently, the last man in
the world likely to have had any shooting in the deer fo-
rest. Lord Elcho, curious to learn how he had gained his
proficiency, asked him how he had acquired it. " Oh," was
the unpretending reply, " on cats in my garden at Bramp-
ton lronrearrstso.—w,
as well as
schooltat
undignified,hmust hawtvheea
Manchester Guardian. PloPredaredof tsihneguideaef
[ADVERTISEMENT.] —Mr. Benson, Ludgate-hill, has
just published a new illustrated pamphlet on watches (free
by post for two stamps). It should be read by all who are
about buying a watch,' as it contains prices and important
information as to—What watch to buy where to buy it !
and how to use it 1

This day, price 7s. 6d., post Bvo., cloth,
THE DAY OF SMALL THINGS.
Author of "Mary Powell."
Arthur, Hall, Virtue, and Co., 25, Paternoster-row,

By the

.ENGLISH OPERA,
COVENT-GARDEN. . _