said, and on the faith of and in pursuance of the terms of the said articles of agreement and memorandum, they the plaintiffs, confiding, &c. did deliver to the defendants, and the defendants then received from the plaintiffs the said survey and plans and valuations in the said memorandum mentioned, and being of great value, to wit, of the value of 10001.; and the defendants then and from thence hitherto have actually had and enjoyed the full benefit and advantage thereof according to the true intent and meaning of the said memorandum, and had derived great benefit and advantage therefrom; that, from the time of the making of the said articles of agreement and memorandum, and the said promise of the defendants in that behalf, and on the faith thereof, they, the plaintiffs, did withdraw all opposition to the introduction of the said bill, in the said articles of agreement mentioned and referred to, into parliament, and to the proceedings of the defendants necessary for that purpose; and that the said R. O. having then also in like manner withdrawn all such opposition as last aforesaid, thereupon and by reason of the withdrawal of such opposition to the introduction of the said bill as aforesaid, to wit, on the 23d of March 1838; and during the said session of parliament in the said memorandum mentioned, they, the defendants, ob-[138]-tained leave to bring in and introduce their said bill into parliament, to wit, into the House of Commons: and the same bill was afterwards, to wit, on the 26th of March in the year last aforesaid, accordingly brought in and introduced, to wit, into the House of Commons, and there promoted by the defendants, that is to say, for draining, embanking and reclaiming the said slob or waste land in Lough Foyle as aforesaid; which said bill was intituled, and in fact was, "A bill for draining and embanking certain lands in Lough Swilly and Lough Foyle, in the counties of Donegal and Londonderry," and was and is the said bill so intended to be brought into parliament, and promoted by the defendants, as in the said articles of agreement mentioned, in pursuance of the said petition therein also mentioned; that, after the bringing in of the said last-mentioned bill, and before any proceedings took place in committee of either house of parliament upon the powers and authorities to be thereby granted, or the clauses, provisoes, restrictions and stipulations therein contained or to be contained or any of them, to wit, on the said 26th of March 1838, and on divers days and times between that day, and any proceedings taking place as last aforesaid in committee of either house of parliament, the several powers and authorities granted or to be granted by the said last-mentioned bill, and the several clauses, provisoes, restrictions and stipulations therein to be contained, were discussed and considered by the respective solicitors of and for the plaintiffs and the said R. O. and the defendants respectively, to the intent and with the object that the said last-mentioned bill might be framed and perfected so as to be as perfect and beneficial for the interest of all the said parties in the reclamation of the said slob or waste land as it could be made, according to the true intent and meaning of the said articles of agreement and memorandum; that, in framing [139] and perfecting of the said bill as last aforesaid, and during such discussion and consideration, divers disputes and differences having then arisen between the said parties in regard to certain clauses, matters and things which the plaintiffs and the said R. O. and the defendants respectively then wished to insert, and to certain other clauses, matters and things which the plaintiffs and the said R. O. and the defendants then respectively wished to omit, in and from the said last-mentioned bill, the same disputes and differences were then, to wit, on the 4th of May in the year last aforesaid, in pursuance of the said agreement in that behalf, forthwith referred by the plaintiffs and the said R. O., and the defendants to the said P. B. B., for his opinion and determination: that afterwards, and before any proceedings were taken thereupon in committee of either house of parliament, to wit, on the day and year last aforesaid, the said P. B. B., with the consent, and at the request, of the plaintiffs and the said R. O. and the defendants, (the plaintiffs and the said R. O. and the defendants respectively, then mutually agreeing to be bound and concluded thereby, as to the said matters in difference and dispute,) did give his opinion and determination upon the said clauses, matters and things so in dispute and difference, and referred to him as aforesaid; that afterwards, and before any proceedings took place thereupon in committee of either house of parliament, to wit, on the day and year last aforesaid, the last-mentioned bill, and the several powers and authorities to be thereby granted, and the several clauses, provisoes, restrictions and stipulations therein to be contained to wit, as settled and determined by the said P. B. B. as aforesaid, were agreed upon, determined and settled by and between the C. P. XII.-17

plaintiffs and the said R. O. and the defendants, and their respective solicitors, to wit, to the intent and with the object aforesaid; and the same last-mentioned bill so [140] agreed upon, settled and determined as last aforesaid then was as perfect and beneficial for the interest of all the said parties in the reclamation of the said slob or waste land as the same could be made, according to the true intent and meaning of the said articles of agreement and memorandum, and the said promise of the defendants that, among other clauses, provisoes, restrictions and stipulations contained in the said last-mentioned bill so settled and agreed upon as last aforesaid, were contained divers clauses and stipulations whereby the said part of the said slob or waste land which was so agreed to be allotted and given and reserved to the plaintiffs as thereinbefore was mentioned, was and would be, on the passing of the said bill, as so settled and agreed upon as last aforesaid, allotted and absolutely reserved in and by the said intended act to the plaintiffs and their successors, free and indemnified of and from and against all costs, charges and expenses attending the embanking, draining and reclaiming the said slob, or any other charge, stipulation, restriction or condition whatsoever, according to the true intent and meaning of the said articles of agreement and memorandum respectively: that all opposition to the introduction of the said bill into parliament having been so withdrawn as aforesaid, and the same bill having been so introduced into the House of Commons as aforesaid, and the said several powers and authorities to be granted by the said bill when passed into a statute, and the several clauses, provisoes, restrictions and stipulations to be therein contained, having been determined, agreed upon and settled as last aforesaid by and between the plaintiffs and the defendants and the said R. O., and their respective solicitors, according to the true intent and meaning of the said articles of agreement and memorandum; they, the plaintiffs, further confiding, &c., did thenceforth continually from time to time, and at all [141] times up to and until the time of the passing the act of parliament thereinafter in that count mentioned, use all reasonable means and endeavours to promote the progress of the said bill so determined, agreed upon and settled as aforesaid, and to procure an act of parliament to pass thereupon, according to the true intent and meaning of the said articles of agreement and memorandum; and did withdraw all opposition of them, the plaintiffs, to the progress of the last-mentioned bill, according to the true intent and meaning of the said articles of agreement and memorandum; and that, after the making of the said promise of the defendants, and before the passing of the act of parliament lastly above referred to, to wit, on the 11th of May 1838, they, the plaintiffs, did, in further pursuance of the said articles of agreement, and on the faith of the said promise of the defendants, and at their request, present a petition to the House of Commons in favour of the said bill so brought in and promoted by the defendants, whereby it was prayed by the plaintiffs that the said bill might pass into a law; and that they, the plaintiffs, by means of the said petition and otherwise, did endeavour to promote the progress of the said last-mentioned bill, and to procure an act of parliament to pass thereupon, according to the true intent of the said articles of agreement and memorandum; that the said R. O. did also, in like manner, withdraw all opposition to the progress of the said bill so determined, agreed upon and settled as aforesaid, and also use all reasonable means and endeavours to promote the progress of the said last-mentioned bill, and to procure an act of parliament to pass thereupon as last aforesaid that, through and by means of the plaintiffs having so endeavoured, and in and about their said endeavours, to promote the progress of the said lastmentioned bill, and to procure an act of parliament to pass thereupon as aforesaid, they, the [142] plaintiffs, had been and were necessarily put to and occasioned, and obliged to, and did actually incur, sustain and pay, certain reasonable and proper costs and expenses, amounting to a large sum of money, to wit, 12001. that such costs and expenses were so incurred and sustained from time to time at the request of the defendants, and during the said session of parliament in the said memorandum mentioned that afterwards, and during the said session of parliament in the said memorandum mentioned, and long before the commencement of this suit, to wit, on the 27th of July 1838, the said last-mentioned bill so brought into parliament as aforesaid, with divers alterations in the same, and additions thereto, and which had not been settled or agreed upon by the plaintiffs, or their solicitor, or referred to or determined upon by the said P. B. Brodie, was passed and carried through parlia ment, and then received the assent of our Sovereign Lady Queen Victoria; and the same then, to wit, on the day and year last aforesaid, became and was, and thence

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:

hitherto has been, and still is an act of parliament made and passed in the session of parliament held in the first and second years of the reign of Queen Victoria, and was and is intituled, "An act for draining and embanking certain lands in Lough Swilly and Lough Foyle, in the counties of Donegal and Londonderry," of which the defendants then had notice; that the plaintiffs and the said R. O. had been at all times since the making of the said articles of agreement hitherto ready and willing that such part of the said slob or waste land as is opposite to the said estate of the plaintiffs, and bounded by the before-mentioned canal on the one side, and by the said property of the said Mr. Maxwell on the other, and extending to the site of the said proposed embankment as laid down in the said Mr. M'Neil's plan, should be allotted and given to the plaintiffs, and should be absolutely reserved to them [143] and their successors in and by the said intended act in the said articles of agreement mentioned; and that the said allotment or proportion of the said slob or waste land so proposed to be allotted and given to the said R. O. should be allotted and given to him, and absolutely reserved to him and his heirs by the said intended act, according to the true intent and meaning of the said articles of agreement and memorandum: that they, the plaintiffs, had also always from the time of the making of the said articles of agreement, hitherto been ready and willing to receive and take the aforesaid proportion or allotment so agreed to be allotted and given and reserved to them, as in the said articles of agreement mentioned, of the slob or waste land in full of all rights and claims of the plaintiffs, and of all and every of their respective tenants claiming from or under them or him in respect of the said slob or waste land, and to protect and indemnify the defendants from and against any right or claim derived from or under the plaintiffs or their successors, which should or might be made by any of their respective tenants in, to or upon the said slob or waste land, or any part thereof, save and except as in the said articles of agreement mentioned, according to the true intent and meaning of the said articles of agreement; and that no such claim or demand had hitherto been made by the tenants of the said plaintiffs, or by any or either of such tenants, in, to or upon the said slob or waste land, or any part thereof.

Breach that although, from the time of the making of the said articles and memorandum respectively, the plaintiffs had always well and truly observed, performed, fulfilled and kept the same in all things on their part and behalf to be observed, performed, fulfilled and kept; of all which premises the defendants before the commencement of the suit, and before and at the several times of the committing of the several [144] breaches of promise by the defendants in that count after mentioned, respectively had notice yet the defendants, disregarding their said promise in that behalf, after the said bill had been so settled, determined and agreed upon as aforesaid, according to the true intent and meaning of the said articles of agreement, and before the said bill had passed the said House of Commons, and during the said session in the said memorandum mentioned, to wit, on the 24th of May 1838, and on divers other days and times between that day and the time of the said bill passing the said House of Commons, did, without the consent and against the will of the plaintiffs and their solicitor, of which the defendants then had notice,-cause and procure divers powers and authorities, and divers clauses, provisoes, restrictions and stipulations to be inserted and contained in the said bill, and certain proceedings to take place thereupon, at the several times aforesaid, before the said committee of the House of Commons, without the said last-mentioned powers and authorities, clauses, provisoes, restrictions and stipulations, or any or either of them, having been first agreed upon or settled by the said plaintiffs, or their solicitors, or any other person on their behalf, and without the same or any or either of them having been approved of, settled or determined by the said P. B. B., according to the terms of the said agreement, although divers disputes and differences then arose between the plaintiffs and the defendants respecting the same, and in framing and perfecting the said bill in respect thereto : that such lastmentioned powers and authorities, clauses, provisoes, restrictions and stipulations were not nor are, nor were nor are, nor was nor is, any or either of them, in accordance with the said bill and the said powers and authorities, clauses, provisoes, restrictions and stipulations so settled and determined by the said P. B. B. as aforesaid, and so agreed upon, determined and settled by and between [145] the plaintiffs and defendants and the said R. O. as thereinbefore mentioned, but contrary thereto, and to the true intent and meaning of the said articles of agreement and the promise of the defendants; and through and by means of such last-mentioned powers and authorities,

clauses, provisoes, restrictions and stipulations, so caused to be inserted and contained in the said bill by the defendants as last aforesaid, the said allotment or proportion of the said slob or waste land so agreed to be allotted and given and reserved to the plaintiffs as aforesaid, was not so allotted, given or reserved in or by the said bill, to the plaintiffs and their successors, according to the true intent and meaning of the said articles of agreement and the said promise of the defendants: that, on the passing of the said intended act, and by reason of the premises last aforesaid, the said last-mentioned proportion or allotment of the said slob or waste land was not nor is absolutely reserved to the plaintiffs and their successors in and by the said act of parliament so made and passed as aforesaid, contrary to the said articles of agreement and promise of the defendants in that behalf, and in breach thereof; and the plaintiffs had thereby not only lost and been deprived of divers great profits, benefits and advantages, to wit, of the value of 10001., which they, the plaintiffs, might, and otherwise would, have derived and acquired from the said last-mentioned part of the said slob or waste land being so reserved to them as aforesaid, but, by means of the premises aforesaid, they, the plaintiffs, were and had been put to and occasioned, and forced and obliged to incur, and necessarily did incur and sustain, divers other costs, charges and expenses, to wit, amounting to the sum of 13001., in and about the endeavouring to procure the said part of the said slob or waste land so agreed to be allotted and given to the plaintiffs as aforesaid, to be absolutely reserved to them in and by the said intended [146] act, according to the true intent and meaning of the said articles of agreement, and in accordance with the said bill so agreed upon, settled and determined, as thereinbefore mentioned.

Second breach that the defendants did not nor would, nor did nor would any or either of them, or any persons or person on their behalf, on, or at any time after, the passing of the said act of parliament, pay or cause to be paid to the plaintiffs the said sum of 10001. in the said articles of agreement and memorandum mentioned, or any part thereof, although a reasonable time for paying the same elapsed after the passing of the said act and before the commencement of this suit, and although the defendants were during that time, to wit, on the 1st of September 1838, and often afterwards, requested to pay the said sum of 10001. in the said articles of agreement and memorandum mentioned, to the plaintiffs; but the defendants, to pay the same or any part thereof to the plaintiffs, had wholly neglected, &c., and the last-mentioned sum of 10001., and every part thereof, still was and remained wholly due and owing, and in arrear and unpaid from the defendants to the plaintiffs.

Third breach that the defendants had not at any time before or since the passing of the said act of parliament, although often requested so to do after the making of such default in payment of the last-mentioned sum of 10001. as last aforesaid, to wit, on the 14th of May 1839, returned the said survey, plans and valuations in the said memorandum mentioned, and being of the value aforesaid, or any of them, to the plaintiffs; but the defendants to return the same or any of them to the plaintiffs had wholly neglected, &c., and had kept and retained the same, contrary to their said promise.

Fourth breach and that, although such reasonable costs and expenses were, at the request of the defendants, incurred, sustained and paid by the plain-[147]-tiffs, as therein before mentioned, in using their best endeavours by petition and otherwise as aforesaid to promote the progress of the said bill so agreed, determined and settled by the plaintiffs and the said R. O. and the defendants as aforesaid, and to procure the same to be passed into an act of parliament as thereinbefore mentioned, to wit, to the amount of 12001.; of which the defendants, after the passing of the said act of parliament, and before the commencement of this suit, to wit, on the 1st of September 1838, had notice; and although the defendants were then requested to pay the same, and a reasonable time for that purpose had thereafter and before the commencement of the suit elapsed; yet the defendants had not paid the said last-mentioned sum of money, or any part thereof, to the plaintiffs, or to any other person or persons, but had thitherto wholly neglected, &c., and the same and every part thereof was still due and owing and unpaid by the defendants.

There was also a count upon an account stated.

The defendants severed in pleading, the defendant Robertson pleading inter alia as follows:

Secondly, that the plaintiffs, at the time of the making of the said articles of agree

ment, and also of the said memorandum in the first count mentioned, were and still are a corporation aggregate, and which same corporation aggregate was then and still is called and known by the name of The Wardens and Commonalty of the Mistery of Fishmongers of the City of London; that the said articles of agreement and memorandum were not, nor was either of them, made or entered into by the plaintiffs by or under the common seal of the corporation; and that the said articles and memorandum were not, nor was either of them, made or entered into by any person for that purpose, duly authorised by any instrument in writing under the common seal of the said corporation. Verification.

[148] Thirdly, as to all the several breaches in the first count of the declaration above assigned-except as to the breach above assigned, whereby it was alleged that the defendants had not returned the said survey, plans and valuations in the said first count mentioned to the plaintiffs, but had neglected and refused to return the same, and had kept and retained the same, contrary to their said supposed promise, in manner and form as in the said first count alleged and expressed that the said bill in the said first count mentioned, so agreed upon, settled and determined as in the same count mentioned, was not as perfect and beneficial for the interest of all the said parties in the said first count mentioned, in the reclamation of the said slob or waste land in the same count mentioned, as the same bill could be made, according to the true intent and meaning of the said articles of agreement and memorandum in that count mentioned, modo et formâ :-concluding to the country.

Fourthly, as to all the several breaches in the first count of the declaration above assigned except as to the breach above assigned, whereby it was alleged that the defendants had not returned the said survey, &c.-that the plaintiffs did not continually from time to time, and at all times up to and until the time of passing the act of parliament in the first count mentioned, use all reasonable means and endeavours to promote the progress of the said bill in the same count mentioned, and to procure an act of parliament to pass thereupon, modo et formâ :-concluding to the country.

Fifthly, as to all the said several breaches in the first count of the declaration above assigned-except as to the breach above assigned, whereby it was alleged that the defendants had not returned the said survey, &c.-that the plaintiffs had not, from the time of the making of the said articles of agreement and memorandum in the first count mentioned, always well or truly observed, [149] performed, fulfilled or kept the same in all things on their part and behalf to be observed, performed and fulfilled and kept in manner and form as the plaintiffs had above thereof in the first count alleged against the defendants; but on the contrary thereof amongst other things, they the plaintiffs, after the making of the articles of agreement and memorandum respectively, and before the said bill in the first count mentioned was passed or carried through parliament, or received the assent of our Sovereign Lady the Queen, or became an act of parliament, as in the first count mentioned (a), and before the said bill had been passed by the House of Lords, and whilst the said bill was in and was passing through the House of Lords, to wit, on the 18th of June 1838, did present a petition to the House of Lords, and did thereby petition the said House of Lords, against the preamble of the said bill, and against the passing of the said bill, contrary to the form and effect of the said articles of agreement and memorandum. Verification.

The defendant Booth pleaded, secondly, as to the first count, that the plaintiffs, at the time of the making of the articles of agreement and also of the memorandum in the first count mentioned, were and from thence have been and still were a corporation aggregate, and which corporation aggregate was then and still was called and known by the name of "The Wardens and Commonalty of the Mistery of Fishmongers of the City of London ;" that the articles of agreement and memorandum and each of them were made concerning certain estates and interests in lands and tenements, and that the same articles and memorandum did not, nor did either of them, relate to or concern any trade or merchandise whatso-[150]-ever; that the articles of agreement and memorandum were not, nor were either of them, made or entered into by the plaintiffs by or under the common seal of the plaintiffs (so being such corporation as

(a) In the defendant Booth's sixth plea the following words were here introduced, And before any breach by the defendants of the promise of the defendants in that count mentioned."