[527] A printed paper, purporting to be the draft or copy of a deed of indemnity, was annexed to the last-mentioned statement or report at the time when the same was so sent and given to the plaintiff and other the shareholders, and was therewith in fact sent to the plaintiff and other the shareholders, which printed paper was and is of the purport and to the effect following; that is to say,

"This indenture, made the 27th day of February 1840, between the several persons whose names and seals are subscribed and affixed to these presents, being respectively holders of the shares set opposite their respective names in the same schedule, in the joint-stock banking company established at Manchester in the county of Lancaster, called the Northern and Central Bank of England, of the first part, and William Haynes, John Hunt, James Pickford Bloor, William Eckersley, John Haigh, Alexander Ogilvie, Allen Robins, and William Smith, being the present directors of the said company, of the second part: Whereas on or about the 29th day of August 1839 the proprietors of the said bank, in due form of law, came to a resolution to dissolve the said company and wind up and close the affairs thereof, and that the net assets of the same, after discharging all the charges and obligations thereof, should be returned to, and equally divided among, the shareholders, so far as such assets would extend, in the nature of a dividend on their respective shares in the capital of the said company: And whereas the said directors, in pursuance of such resolution, proceeded to realise the assets and discharge the obligations of the said company, and out of the net assets thereof did, on or about the 1st of October and the 1st of January now last past, respectively pay unto the respective shareholders two several dividends of 11. and 11. upon each share: And whereas since the payment of such last-mentioned dividend the directors [528] of the said company have realised further assets thereof, and have now in their hands funds sufficient, if applied for that purpose, to pay to the shareholders a further dividend of 10s. per share: And whereas various claims and demands have recently been made, and actions and suits at law and in equity threatened to be commenced and prosecuted against the directors, parties hereto, or against the company or the public registered officers thereof, in respect of the transactions of the said company or the said directors on behalf of the same, and the said directors are advised to retain the said funds and assets so being in their hands, for and towards their indemnity and reimbursement against and in respect of such claims, demands, actions, and suits, and the damages, costs, and expenses which may be recovered and levied or enforced from and against them and the said company by reason or means thereof; but the said directors being desirous, instead of so retaining the said funds, to apply the same, so far as they safely can, in making and paying a further dividend of 10s. per share to the shareholders of the said company, as before mentioned, have consented and agreed to apply the said funds in payment of such dividends to such of the shareholders as shall become parties to, and execute, these presents, and give and execute to them the said parties hereto of the second part such covenants, protection, and indemnity, as in these presents are contained: Now this indenture witnesseth, that in consideration of the premises, and more especially in consideration of the respective dividends, or sums of 10s. per share, paid by the said directors, at or before the execution of these presents, unto the several shareholders, parties hereto of the first part, upon or according to the number of shares of which each such party is or are a proprietor or proprietors, they the said several shareholders, parties hereto of the first part, do hereby jointly, for themselves, [529] their heirs, executors, and administrators, and every two jointly, and every greater number than two respectively jointly, do for themselves, their heirs, executors, and administrators, and each and every of them, the said several persons parties hereto of the first part, doth hereby for himself and herself separately, and his or her heirs, executors, and administrators, covenant with the said several persons parties hereto of the second part, their executors and administrators, and with every of them separately, his executors and administrators, that they the said parties hereto of the first part, their heirs, executors, and administrators, or some one of them, shall and will from time to time, and at all times hereafter, well and effectually defend, save harmless, and keep indemnified, the said directors,-parties hereto of the second part, their heirs, executors, administrators, and assigns, and each and every of them, and his heirs, executors, administrators, and assigns, and their and every of their estates and effects, and all and every other persons and person who may hereafter become directors or a director of the said company, their and his heirs, executors, and administrators, and assigns, and every of them, their and every of their estates

and effects, and all the officers of the said company and every of them, and their and every of their heirs, executors, and administrators, of, from, and against all and all manner of actions, suits, attachments, and other proceedings whatsoever, either at law or in equity, which have already been, or may hereafter be, had, commenced, prosecuted, brought, or sued out, against, and all and all manner of costs, charges, losses, damages, and expenses, which may be paid, incurred, or sustained, by the said directors, parties hereto, or any of them, their or any of their heirs, executors, or administrators, or any future directors of the said banking company, or any one, two, or more of them, their or [530] any one, two, or more of their heirs, executors, or administrators, or any officer of the said company, or the heirs, executors, or administrators of any such officers, for or on account or in respect or by reason of the application of the assets now in hand, or any part thereof, in or towards payment of the aforesaid dividend of 10s. per share, or for, or on account, or in respect, or by reason of the past or present management, transactions, dealings, operations, acts, or deeds of or in or about or concerning the affairs, accounts, or business of the said banking company, or for or on account or in respect of any matter or thing whatsoever in anywise relating to the premises: And whereas it may frequently be necessary to transmit these presents to various places for execution by shareholders or for other purposes, and in order to guard against the consequences of loss or destruction of these presents, it has been deemed expedient that two parts thereof (duplicates of each other) should be prepared and executed, and inasmuch as many of the persons who shall execute one part of these presents may not execute the other part, it has also been thought expedient that two parts thereof (duplicates of each other) should be prepared and executed; and inasmuch as many of the persons who shall execute one part of these presents, may not execute the other part, it has also been thought expedient, in order to preserve conformity between the two, that each shareholder, a party to these presents of the first part, who shall personally execute one part of these presents, shall empower some one or more person or persons as the attorney or attorneys of him, her, or them, to sign, seal, and deliver the other part of these presents: Now, therefore, this indenture also witnesseth, that for effectuating the purposes last aforesaid, each of the shareholders, parties hereto of the first part, personally executing one part of these presents, doth hereby make, [531] ordain, constitute, and appoint John Farrer, gentleman, who is one of the present cashiers of the said banking company, and James Drew of Manchester, gentleman, who is one of the present clerks of the Alliance Bank, and also such other person as shall for the time being be the acting cashier of the said company, severally and any of them separately, the lawful attorneys and attorney of him or her the shareholder so executing one part of this deed as aforesaid, for and in the name, and as the act and deed of him or her and either jointly or severally, to sign, seal, deliver, and execute the duplicate or counterpart of this present deed, each such constituent respectively hereby declaring that every duplicate or counterpart of this deed so executed by his or her said attorney or attorneys as aforesaid shall be of the like force and effect as if executed by him or her, each such constituent hereby agreeing to ratify and confirm all and whatsoever such attorney or attorneys shall lawfully do in the premises by virtue of this present power. In witness, &c."

The above written indenture was signed, sealed, and delivered, on parchment duly stamped, by the several persons parties thereto, in the presence of the several persons whose names are respectively written on the dexter side of the respective signatures of the parties so executing.

The schedule to the above written indenture :

Name of each
Proprietor.

Number of each
Proprietor's Share.

Signature of
Proprietors.

L. S.

Witnesses'
Signature.

The defendants, so being such directors as aforesaid, at the time of so sending and giving to the plaintiff and [532] other the shareholders, such statement or report and such printed paper annexed thereto as aforesaid, did also annex to the said state

ment or report a certain notice which was and is to the purport following, that is to say:

"Northern and Central Bank of England.

"Third Instalment, 10s. per share.

"Manchester, 27th February, 1840.

"Notice is hereby given that a third instalment, being at the rate of 10s. per share out of the capital stock of the above company, is now payable to the proprietors thereof at the Alliance Bank, at, &c., in pursuance of the resolutions passed at the extraordinary general meeting held on Thursday the 29th of August, 1839, for dissolving the company and dividing the assets.

"The scrip certificate must be produced, and the payment of the instalment will be noted thereon. In consequence of the necessity which exists for requiring the signature of each proprietor to the deed of indemnity previous to receiving the instalment, the directors are obliged in the present instance to omit the order which has hitherto been annexed for the convenience of distant shareholders, but it is intended to transmit the deed together with the instalment to the several towns where any number of shareholders reside, and of which due notice will be given.

"By order of the Board of Directors."

The affairs of the company before and at the time of the said dissolution thereof were and thence continually had been greatly involved and embarrassed, and the company, and the defendants as such directors as aforesaid, for and on behalf of the company, respectively entered into divers covenants and agreements, and had [533] thereby subjected themselves to divers liabilities to a much greater amount in the whole than the amount of all the assets of the company by them the defendants ever realised, and which liabilities at the time of giving and sending the said statement or report, bearing date the 27th of February, 1840, were and continued and thence had continued and still were outstanding and undischarged, and legal proceedings had shortly before the time of giving and sending the last-mentioned notice or statement, been threatened to be commenced against the company and the defendants as such directors as aforesaid in respect thereof; and thereupon the defendants had just before the giving and sending the last-mentioned statement or report determined not to make or pay the said third instalment or dividend, to wit, of 10s. per share, unless the shareholders of and in the company would execute a deed of indemnity to such purport or effect as the printed paper so annexed to the said statement or report, and had thereupon caused such deed of indemnity thereinbefore-mentioned, and which was to such purport and effect as the said printed paper,-to be, and the same was, accordingly prepared and ingrossed, and was, to wit, on the day and year last aforesaid, and thenceforth had been, ready to be executed by the said several shareholders, and was, in fact, thereupon in due manner executed by divers of the shareholders of and in the company, and the last-mentioned instalment or sum of 10s. per share was in due manner paid by the defendants to such of the shareholders as executed the deed of indemnity, and the defendants were, on and from the day and year last aforesaid, ready and willing to pay the same to all and every other the shareholders of and in the said company upon their executing such deed of indemnity; of all which premises the plaintiff during all the time aforesaid had notice. The plaintiff so being such shareholder as aforesaid, after the giving and send-[534]-ing to him of the said statement or report, bearing date the day and year last aforesaid, together with the said printed paper and notice thereunto annexed as aforesaid, to wit, on the 16th of November 1840, caused a certain paper writing, signed with his hand, to be delivered to the defendant William Smith, which said paper writing was and is to the purport and effect following; that is to say,

"To William Smith, Esquire, the managing director, and to the other directors of the Northern and Central Bank of England: I hereby demand payment from you of the two instalments of 10s. each, upon the shares held by me in the above bank, which instalments you have admitted to be ready for each shareholder, but which you refuse to pay to me unless I execute a certain deed of indemnity required by you; which I decline to do, being advised that I am improperly required to sign it. And I hereby give you notice, that I am prepared and ready to give you a valid discharge C. P. XII.-22

for the amount of the said instalments, and that I shall require interest to be paid on the amount thereof for the time the same have been illegally withheld, and that interest will also be required by me from the date of this demand."

The plaintiff hath always hitherto refused to execute the deed of indemnity, and the defendants, so being such directors as aforesaid, have always hitherto refused to permit the last-mentioned instalment or sum of 10s. per share mentioned in the said statement and notice, bearing date the 27th of February 1840, to be paid to the plaintiff, or to other the shareholders, until he and they should respectively execute the said deed.

The special verdict concluded in the usual form, with the finding of the jury upon each issue subject to the opinion of the court.

The case was argued in Michaelmas term last by Bompas Serjt. (with whom was Starkie and Crompton) for [535] the plaintiff, and by Sir T. Wilde Serjt. (with whom were Channell Serjt. and John Henderson) for the defendants; but it has not been thought necessary to report their arguments, as they are fully adverted to in the judgment pronounced by the court.

Cur. adv. vult.

TINDAL C. J., now delivered the judgment of the court. This was an action of assumpsit, brought by Matthew Lyon against William Haynes and seven other defendants. The first count of the declaration, in substance, alleged that the plaintiff and defendants and others had, for three years, carried on the business of bankers under the provisions of the statute 7 G. 4, c. 46, by the name of The Northern and Central Bank of England, and that the plaintiff was the holder of 100 shares in the capital of the said bank, of 101. each; that shortly before the making of the promise thereinafter mentioned, the bank or company and the business thereof were duly dissolved and altogether ceased and determined; that the defendants were shareholders and directors of the company; and that at a general meeting of the shareholders, at the time of the dissolution, it was agreed by and amongst the shareholders that the assets of the said bank or company should be realised with all convenient speed, and that such portion of them as might not be required to meet the engagements of the said bank or company should be divided amongst the said shareholders ratably and in proportion to the shares respectively held by them in such dividends as the directors might from time to time deem fit, a dividend to be declared at least once in every six months. The declaration then proceeded to allege that thereupon and in consideration that the defendants were allowed and permitted to realise, and were then intrusted with, the assets of the company by the other shareholders, for [536] reward to them the defendants in that behalf, they the defendants promised the several shareholders to realise the said assets with all convenient speed, and to divide such portion of them as might not be required to meet the engagements of the company, amongst the shareholders rateably and in proportion to the shares respectively held by them in such dividends, as they the defendants might from time to time deem fit, a dividend to be declared at least once in every six months. The declaration then proceeded to aver that although the defendants were allowed to realise, and were intrusted with, the assets of the company, and although they did realise a large sum of money, of which a large portion was not required or necessary to meet the engagements of the said bank or company, and which portion was sufficient when divided amongst the shareholders to allow to each shareholder a dividend of 10s. for each share, and although the defendants did deem fit that such dividend of 10s. for each share should be paid to each shareholder, and although they were requested by the plaintiff to pay him the dividend on the shares so held by him, yet that the defendants would not declare or pay to the plaintiff the said dividend or any part thereof. The declaration then proceeded to assign a second breach of the defendant's promise by alleging that although the defendants were so allowed to realise, and were intrusted with, the assets of the company, and although they did, after the expiration of the two first six months from the agreement and promise, realise a large amount, of which a large portion was not required or necessary to meet the engagements of the said bank, and which was sufficient when divided among the shareholders to allow to each shareholder a dividend of 10s. for each share, and although the defendants in part performance of their promise did within the two first six months after the said meeting and promise deem fit [537] to declare, and did declare two dividends according to their promise, yet they did not within the third space of six months or at any other time afterwards, although the

time had long elapsed before the commencement of the suit, deem fit to declare, or declare any dividend in respect of the said shares whereby the plaintiff had lost the dividend of 10s. for every share so held by him as aforesaid. The declaration also contained counts for money had and received, and on an account stated.

The defendants pleaded-first, to the whole declaration non assumpserunt; secondly, to the first count, that the plaintiff was not the lawful owner of shares, as alleged; thirdly, also to the first count, that the bank or company and the business or trade thereof, had not been nor was duly dissolved, nor had the said bank or company, and the business or trade thereof, ceased or determined, nor did the same cease and determine, modo et formâ; fourthly, also, to the first count, that it was not agreed by and amongst the shareholders, modo et formâ, &c. ; fifthly, also to the first count, that the defendants were not allowed to realise, nor were they intrusted with, the assets of the company, modo et formâ, &c.; sixthly, to the first breach of the first count, that the defendants did not realise the amount in that count mentioned; seventhly, also to the first breach of the first count, that the portion of the amount so realised, as in that count mentioned, was required and necessary to meet the said engagements of the said bank or company, and that there never was any portion of the said amount, not being so required or necessary, which was sufficient when divided, as in the first count mentioned, to allow each shareholder such dividend as in the first count mentioned: eighthly, also to the first breach of the first count, that the defendants did not deem fit that such dividend should be paid and divided amongst the shareholders, modo et formâ; ninthly, also, to the same [538] first breach, that the defendants had no notice of the several premises, modo et formâ; tenthly, also to the same first breach, that the defendants did declare and pay to the said plaintiff the said dividend; eleventhly, to the second breach in the first count, that the defendants did not realise the amount in the breach mentioned, modo et formâ; twelfthly, also to the second breach, a plea like that secondly pleaded to the first breach; thirteenthly, also to the second breach, that the defendants had no notice, modo et formâ; fourteenthly, also to the second breach, that the defendants did within the said third space of six months, deem fit to declare, and did declare, a dividend of 10s. in respect of the shares in the bank; fifteenthly, to the last two counts of the declaration, payment in full satisfaction and discharge, &c.

The plaintiff by his replication traversed the allegation in the last plea, upon which issue was joined, and joined issue on all the other pleas.

Upon the trial a special verdict was found by the jury; and we have been called upon to decide how the finding upon the several issues is to be entered.

Upon the argument it was contended on the part of the plaintiff that, upon the facts found by the special verdict, he was entitled to have the verdict on all the issues entered for him. On the part of the defendant it was admitted that the plaintiff was entitled to have the verdict entered for him on the second and sixth, tenth and eleventh and fifteenth issues; but it was contended that the rest, either in part or altogether, ought to be entered for the defendants. In order to determine this case, therefore, it will be necessary to consider the several disputed issues in connection with the facts applicable to each as found by the special verdict; but as the decision upon the first issue must depend upon the result of the argument upon some of the other issues, it [539] will render the explanation of our judgment more distinct if we postpone the consideration of the first issue at present.

Under this arrangement the third issue will be the first in order for discussion, and that is, whether the bank or company had been duly dissolved, and the business or trade thereof had altogether ceased and determined. Upon reference to the special verdict, it appears that the company had, for some years prior to and up to and upon the 29th of August 1839, carried on the trade and business of bankers under the provisions of the 7 G. 4, c. 46, upon the terms and conditions contained in two deeds of settlement, dated respectively the 1st of July 1834, and 30th of August 1836, and after setting out those provisions of the first deed of settlement, wherein are contained the circumstances under which, and the manner in which, the bank and company might be dissolved at an extraordinary general meeting of the shareholders called for that purpose by the Manchester board of directors, the special verdict proceeds to state in detail the calling of an extraordinary general meeting by the Manchester directors, pursuant to these provisions of the deed of settlement; the meeting of the shareholders on the 29th of August, in pursuance of such call; circumstances which, according to the provisions of the deed, authorised the shareholders present at the