case the charitable corporation against sir robert Sutton and about fifty  other LincolnsInnHall that August apply society of practical knowledge v  Abbott Beav see in re London and Birmingham railway company carpenter and  Weisss case de g sin Shrewsbury and Birmingham railway company v London and  north western railway company l I Ch refer to Overend Gurney company v Gurney  l r Ch n h l apply phosphate sewage company v Hartmont Ch d distinguish  metropolitan bank v heiron ex d bill to be relieve against committeeman for  breach of trust S c atk Hardwicke Lord chancellor after have take a great deal  of time to consider this case deliver the follow resolution this be a bill  bring by the charitable corporation against the defendant be fifty in number  some of they as they be modern report committeemen and assistant or director  of the corporation and other as their officer and servant and other as the  representative of they stand in their capacity and it be to be relieve and to  have a satisfaction in respect of diverse fraud mismanagement and breach of  trust charge on the defendant by mean whereof the corporation have sustain  many and great loss as the transaction in which these fraud and mismanagement  be allege to have arise take their foundation under a charter original grant  by the crown it will be proper to take notice that by a charter of the  twentysecond of December this society be incorporate by the title of the  charitable corporation for relief of industrious poor by assist they with  small sum upon pledge at legal interest the intent if such their corporation  be proper express by their title and as in all corporate body it be of  necessity that the executive power shall be lodge in a select part of they a  committee be by the charter appoint consist of seven person who be to be  invest with the management of their affair but subject to such restriction as  in the charter be mention of which committee it be or of the assembly  substitute in its stead call committeemen and assistant by virtue of the  bylaws of the corporation which by the charter they be enable to make that the  defendant or at least many of they be member by the original constitution it  be provide that the corporation shall be enable to raise a capital not less  than twenty thousand pound and not more than thirty thousand pound for carry  on the purpose of their incorporation which be relieve the poor by assist they  with small sum upon loan with a power reserve to the crown to enlarge their  capital further and by the charter several officer be appoint for the service  of the corporation and among other a warehousekeeper and the corporation be  restrain from bank or give out note except upon pledge and even on those  within the bind of their capital after this charter by virtue of the power  reserve it receive several subsequent enlargement of the capital by sign  manual from the crown as in it be enlarge to one hundred thousand pound in to  three hundred thousand pound till in it be enlarge to six hundred thousand  pound which enlargement of the capital as they be a departure from the  original intent of the charter so they be one principal handle to the abuse  which have since happen on the first obtain the charter it lie for some time  unexecuted but afterward be set on foot in march instruction be settle for the  several officer and bylaws be make and among other thing it be ordain that  there shall be three lock upon the pledge the key of one of they to be deposit  with the warehousekeeper another with the cashier and the three with the  bookkeeper and no pledge be to be deposit or take out but by use these three  key a surveyor be also appoint who be to attend at the warehouse every evening  and to examine the pledge and state in his book the modern report situation  thereof videlicet as to such pledge as be clear sufficient he be to keep one  column mark S and as to such as be dubious a column mark Q he be likewise to  state the quantum of the loan on the pledge and to sign his report and leave  it every evening with the secretary in order to be lie before the modern  report er p committee and that this officer as well as the three lock be  intend to be a permanent and continue check appear not only from the nature of  his office but from the instruction of the warehousekeeper who be direct to  permit the surveyor from time to time to make these inspection and if any  deficiency appear in the pledge the warehousekeeper be to make it good so this  show he be a material officer but as it have be mention that the nature of the  committee be alter to a committee and assistant so in process of time these  rule and order be take away and the cashier be direct to deliver over his key  of the warehouse to the accountant in the latter end of or beginning of John  Thompson be appoint warehousekeeper and on the thirteenth of may the  accountant be order to deliver over his key of the warehouse to one Lovel a  under servant whether it be ever so deliver over do not appear on the  twentyseventh of September the office of surveyor of the warehouse be abolish  by which mean all the check be take off the warehousekeeper on the eighteenth  of November Woolley and warren be appoint assistant to the warehousekeeper  Thompson and it be insist on at the hear of the cause on the part of the  defendant that these person be more effectual a check on the pledge than the  officer who be displace from whence it be argue that no evil be to be impute  from the removal of the surveyor or resume the key of the pledge but I think  it do not appear the assistant be any check at all upon the warehousekeeper  but to be consider rather as his servant for they give their security to he  and so be dependent upon he from this time it be plain the sole power over the  pledge be vest in Thompson Woolley and warren and then the great scene of  iniquity begin and the fraud that follow in the company affair the nature of  those fraud as charge by the bill be as follow first the renew of pledge that  be lend new loan on the same pledge without repay on the former loan or any  examination whether the pledge be to the value of the loan or not by which  mean there be new note coin for such further loan second the infamous cheat of  lend and permit money to be lend on fictitious pledge without any certificate  of a pledge bring in and those renew over and over again three the issue note  to Thompson sometime on pledge of the value whereof it be his office to judge  and so he be in fact both borrower and lender and sometime on fictitious  pledge modern report fourthly the issue note of the corporation without pursue  the necessary step or have the direction of the committee and all this arise  from Woolley and warren the assistant be permit to act as broker for the  borrower by which mean three part in four of the loan come to be in their name  on the twenty of may the court of committee take notice of this as a abuse and  that Woolley and warren advertise that borrower may apply to they for loan  whereupon the committee censure they and take their word not to publish any  more advertisement and order that all person may negotiate for themselves or  by such broker as they shall think fit yet on the eighteenth of November they  order that those very person Woolley and warren shall be assistant to the  warehousekeeper and it be insist b the plaintiff that if the committee have  not gross neglect their trust they must on the short inspection of the book  have see that the practice they have just censure be notwithstanding keep on  foot the name of Woolley and warren still run through their transaction for  the great Dart of the loan the account of the corporation at the time of their  failure stand thus money lend out on pledges pound value of the pledge  deficiency corporation debt so that the loss be modern report er p under these  circumstance the consideration material for this court will be the cause from  whence this deficiency have arise the several act of the defendant their  omission and neglect and how far they may have tend to create this loss and  whether the defendant and any or which of they and how far be liable in equity  to make good this deficiency there be several person liable to make good the  loss or loan upon fictitious pledge who be certain liable in case the evidence  be sufficient to charge they and that be a conspiracy call the partnership of  five four and three as to this Thompson have be examine by the plaintiff and  he say that in a agreement be enter into by sir Archibald grant Burroughs  squire Robinson all then committeemen and himself that they shall borrow  considerable sum of the company on fictitious pledge and dispose of they in  the purchase of corporationshares which they be to sell out again at a advance  price for their mutual benefit sir Richard grant at the same time represent  that he be interest in some leadmine which will enable they to turn the money  to good account and to reimburse the corporation this association or modern  report partnership he say be at first compose of those person name before but  some of they die or decline it be afterward reduce to four and then to three  and he believe that none of the committee know of this partnership except the  five four and three mention this evidence of Thompson have be read against the  plaintiff and certain may be so but it be object on the part of the defendant  that he be a party to the fraud and have abscond by a Act of parliament of the  Geo c S a reward be give to he of one five share of such effect as he shall  discover and restore to the corporation and therefore he be not a competent  witness this be plain a legal objection and as such be admit but though it be  a legal objection against these five person yet be be a good witness in regard  to the plaintiff and those defendant who have think fit to read they however  this may be a matter proper for enquiry the plaintiff insist that beside these  partner all those who be committeeman or assistant during this time be liable  to make good the loss occasion by these fraud and mismanagement and their  ground be these first that they have be guilty of manifest breach of trust and  duty by mean of which these loss have happen second that if they be not guilty  of any wilful breach of trust yet they have be gross negligent and that this  negligence in so many instance be tantamount to a breach of trust and  sufficient to charge they these question will admit of various distinction and  it will be proper to consider what be proper to be charge as actual breach  they be first the pass and sign note without pursue the requisite in the  charter and bylaws second pass note on pledge call renew of pledge know the  former note be not pay off three pass note for loan to Thompson the  warehousekeeper fourthly repeal several bylaws of the corporation and thereby  take off the check upon the warehousekeeper and put the whole management into  his power five make several order put their affair in the management of  Thompson Woolley and warren and thereby give they frequent opportunity of  commit f fraud there be three other thing insist on at the hear which I do not  take notice of before because they be matter of more doubt first the coin and  issue note in general modern report second the coin and issue bind three the  contract with Robinson to become their banker and circulate their note now as  to the coin note in general power be give to do it by the charter and it be  only the quantum and ill application of they that create the mischief so as to  the bind indeed there be no express power give by the charter but a  corporation may give bind and it be the frequency of they that create the evil  and in like manner of the contract with Robinson the mischief from thence  arise from variety of circumstance the consideration of which it will be  proper for I to reserve till after the enquiry which I shall at present direct  modern report er p as to the first three thing I be of opinion that they be  clear breach of trust first the pass note without pursue the requisite in the  charter and bylaws by which they be to be subscribe by one of the committeeman  which be intend as a check on the cashier if they be not so subscribe it be a  breach of trust second as to pass note for renew of pledge if the value of the  pledge be not certify it be a express breach of trust for it be lend double  Triple or four time the sum on the same pledge and exceed the value of it  three the pass note to Thompson be a most extraordinary piece of fraud or  gross negligence for it be give he the power of value his own pledge and make  they both borrower and lender and where that happen those who suffer it ought  to be answerable for it the four and five be of a more doubtful nature it be  certain they have tend great to the injury of the corporation but it be to be  consider whether they be actual breach of trust they will principal affect  those only who be present and concur in such measure but how far other have  make themselves liable by act under those order be a consideration under the  head of neglect only and certain it be a gross neglect the particular charge  under the head of neglect be first nonattendance on their employment second  not observe the order for balance the cash three not observe a order of the  twenty of June for lie account of forfeit pledge before the court of committee  fourthly not once inspect the warehouse five suffer the several have order for  take off the check to subsist and permit Thompson Woolley and warren to act  under those order modern report from hence a accumulate charge be form against  all the defendant who be committeemen or assistant by which it be say they be  liable to make good the whole loss sustain by mean of fictitious pledge it  will be proper here to consider the employment of a director or committeeman  it be a mix office partly in the nature of a public office and partly as a  private office in trust for other people it be public as it rise under a  charter and as the abuse of it tend to affect public credit but as it do not  concern public government but the negotiation of private property it be  therefore a private office like the director of the bank SouthSea and other  trade company where they be not oblige to qualify by take the sacrament and  oath as for a public office but be only entrust with the property of the  aggregate body so this be in the nature of a private trust for other person  and in this view the committeemen be responsible to the corporation for breach  of trust either by commission or omission for act of malefeasance or  nonfeasance and at the hear roof a Donats public law lib title S a be cite to  show they be responsible for breach of private trust there be no doubt but the  three first mention breach be such for which they be responsible but whether  the other of repeal the bylaws and make new order and how far they shall be  call breach of trust deserve consideration the event do oftentimes show that  the proceed or omission of person act in this capacity be of evil tendency yet  it will by no mean be just in a judge to determine from event that have happen  that they may be foresee because if so nobody will accept the direction of  corporate affair but when there be a series of neglect and breach of trust be  occasion by their absence then they be answerable for the malefeasance of  other how far the particular circumstance of the several defendant may bring  they within these reason I shall not at present examine the cause not yet be  ripe for that purpose to the relief pray by the plaintiff two objection have  be make by all the defendant the committeemen and assistant first that they  have no salary for the execution of their office and so ought not to be bind  to strict rule of judgement as between ordinary party in question of property  as to this there be certain no weight in it for if one voluntary accept a  trust be must execute it with fidelity integrity and diligence and where no  modern report er p allowance be annex to the trust when create this court will  not make any to this effect be the case of clog v Barnard b salk S c ld ray S  c comy Rep b where one undertake to remove a hogshead of brandy out of one  cellar and lie it in another and by his negligence it be stave though he have  no reward yet holt chief justice hold he liable modern report a but see the  case of shield v Blackburn where it be determine that if a a general merchant  undertake voluntary and without reward to enter a parcel of good for b  together with a parcel of his own of the same sort at the customhouse for  exportation but make the entry under a wrong denomination whereby both parcel  be seize a have take the same care of the good of b as of his own not have  receive any reward and not be of a profession or employment which necessary  imply skill in what he have undertake be not liable to a action for the loss  occasion to b h Bl Rep a and in case of public direction even where salary be  annex to they it be perhaps pretty general understand that person who accept  these office be not incite to it from the salary which for the most part be  small but have other advantage in trade company the second objection be that  the nature of this case be such as it be impossible for the court to decree  for the plaintiff on this general point of breach of trust and gross neglect  of the several director for that some act be joint other separate and each be  answerable only for his own particular act and neglect and from thence there  be a general inference that this case be so complicate and of such a nature as  be out of the jurisdiction of any court of equity if this be so it be lie the  axe to the root of the tree and I have be state all this to no purpose but it  be not so for where there be many trustee and some be guilty of one breach and  some of other or where there be a gross negligence and the loss be so  complicate as it can be apportion I think they be all joint liable and I will  never establish this that breach of trust or any matter of fraud be above the  reach or out of the jurisdiction of this court the king court be to redress  every wrong and protect every innocent person and if the law do not extend to  do this new and more ample one will be provide for two mischief be to be avoid  first not to make it unsafe or too perilous for honest man to accept office of  trust by make they liable to loss in the execution of they and second to  prevent the fraud of dishonest man in such employment therefore at present as  far as I can be certain I will determine that the conspiracy call the  partnership of five four and three be answerable in the first degree but as to  the other I shall not now determine how far they be answerable but at most it  will be only in the second degree and this method I take in a similar case  that be before I the twentyeighth of may the lead company v hall their  treasurer their bill be for a satisfaction in respect of fraud commit by hall  and connive at or assent to or act under by the director and I hold hall to be  first liable and if be prove deficient then the director so here I be of  opinion that if it appear any other of the director committeeman or assistant  be liable it will be only in the second degree and upon the deficiency of the  partnership therefore I decree that against Adam Soresbery and jane his wife  as she be the representative of sir fisher tench the bill be dismiss there  have be a decree in another suit of the same modern report matter and as  against Ainsworth and several other it be dismiss with cost and as between the  plaintiff and other defendant declare that the principal question be whether  the defendant who be committeemen and assistant and their representative or  any and which of they be liable on the head of breach of trust or negligence  to make good the loss sustain by the corporation and it be swear by Thompson  that there be such partnership as before state in fraud of the corporation I  declare my opinion that in case that fact be true the party thereto be  original and in the first place answerable and if I shall determine that any  other of the defendant be responsible it will be only in the second degree in  default of the other therefore I refer to the master to examine into and state  the nature of the say partnership with the time when and for how long they be  subsist and all material circumstance relative thereto modern report er p I  declare that such of the committeemen and assistant as sign note to Thompson  be responsible and the loss be to be make good by they that such also as sign  note without pursue the rule and direction of the charter and bylaws be  responsible and the loss be to be make good by they and let the master inquire  into and certify these matter and also who do sign the say note and take a  account of the loss sustain thereby and also of loss arise from renew pledge  or fictitious pledge and by who the note for those be sign and whether this  appear or be know to the committee or which of they and let he inquire into  and certify the value of the pledge and what damage the corporation have  sustain and let the committeemen and assistant and all necessary party be  examine upon both and produce book and paper as the master shall direct and  let a proper representative of William aislabie late a committeeman be bring  before the court and as to all party except as to those against who the bail  be dismiss let cost be reserve