1860. Ch. Appeal. In re BURMESTER. Statement. "11 Gloucester-square, Hyde Park, London, "MY DEAR MR. EYRE-I am quite satisfied that the operation "TO THOMAS EYRE, Esq." On the 16th day of August, Mr. Kennedy received a letter from John Sadleir, written by him on the 15th of August, suggesting that Mr. Kennedy should go to Bath, to negociate with Mr. Eyre the proposed substitution of securities, and inclosing Mr. Eyre's letter of the 14th of August. And on the 16th day of August, Mr. Kennedy received from the said John Sadleir another letter, inclosing a copy of a share in the Swedish Railway Company, and of the charter, prospectus and reports of that Company. Mr. Kennedy, having received such letters, wrote and sent to Mr. Stevens, who was still at Killarney, a letter as follows: "5 Great Denmark-street, Dublin, 16th August 1855. "MY DEAR SIR-I have had letters from Sadleir, also from Mr. Eyre, and I consider my best course is to go to Bath to-night, and arrange with Mr. Eyre as to the exchange, and for releasing his lands. I shall be back, I hope, on Monday, and meet you here. I send you letters, and leave your bag and deeds with Mr. Johnston. The parcel came to-day from Nicholas-lane, but the deed I want is not in it. I have written for it.-Yours truly, "J. B. KENNEDY. "J. R. STEVENS, Esq." Mr. Kennedy had previously informed Mr. Stevens that an exchange of the securities so held by the petitioner was intended to take place. Mr. Kennedy left Dublin accordingly, on the 16th day of August, and arrived in Bath on the 17th of that month. On the 16th of August he sent the following telegraphic message to John Sadleir:-" "Dublin-To John Sadleir, Reform Club, London. I go to Bath to-night, and will telegraph to-morrow to Nicholaslane* what I do. I hope to leave Bath Saturday morning." And during his journey, Mr. Kennedy sent a second telegraphic message to John Sadleir:-" Stafford-To J. Sadleir, Reform Club, London. To secure £5000 a-year there should be 20,000 shares of £5 each; four per cent. only stated on the share sent." And on his arrival in Bath, on the said 17th of August, he received from John Sadleir two telegraphic messages in reply, as follows:-" From J. Sadleir, London, to J. B. Kennedy, White Hart Hotel, Bath. * Where Messrs. Wilkinson, Gurney & Stevens had their office. 2 1860. Ch. Appeal. In re BURMESTER. Statement. '1860. Ch. Appeal. In re Statement. The shares to the amount you mention can be given; if not, other property. Dargan's note for £12,000, due 1st May next, can be BURMESTER. given." From same to same:— "If requisite, James will guarantee the £5000 a-year; in May next, ten or twenty thousand could be paid." Mr. Kennedy did not send any telegraphic message to Nicholas-lane, inasmuch as, after his interview with Mr. Eyre, as next hereinafter stated, he was unable to state that Mr. Eyre would release his said security until the inquiries Mr. Kennedy was to make were satisfactorily answered. On the said 17th day of August, Mr. Eyre had an interview with Mr. Kennedy, when Mr. Eyre agreed to the arrangement proposed, subject, nevertheless, to the result of certain inquiries to be made as to the line of Railway, and the value of the said shares ; and Mr. Kennedy undertook to go to London, to make inquiry respecting the said line and shares. Mr. Kennedy accordingly proceeded to London, and met John Sadleir there, on the evening of the said 17th of August, and handed to him certain queries in writing, as to the Railway and shares; and, on the 18th of August the said Mr. Kennedy and John Sadleir had an interview, and the said John Sadleir then delivered to Mr. Kennedy answers in writing to the said inquiries, which answers Mr. Kennedy embodied in a letter written by him to Mr. Eyre, on the same 18th of August, recommending the acceptance of Sadleir's proposition. On Monday the 20th of August, and not before, Mr. Eyre wrote to Mr. Kennedy, according to a form inclosed in the said letter, a letter as follows: : "Bath, 20th August 1855. "DEAR SIR-Upon the terms stated in your memorandum of the 18th instant, I will release the Irish estates of Kilcommon, Skehana, Boggawn, Castlegrace and Clonmore, from the indemnity given me upon them under the deed of the 20th of August 1854, and I request you will prepare the necessary documents for my signature. Yours truly, THOMAS EYRE." And it was only then that Mr. Eyre had finally determined to accept Sadleir's proposal for a change of securities. However, Mr. Kennedy, on his arrival in Dublin, on Sunday the 19th of August, immediately had an interview with Mr. Stevens; and, assuming that Mr. Eyre would act on his recommendation, told Mr. Stevens that the release would be executed, and, at his request, then wrote a letter, which, however, was dated the 18th of that month, and was as follows: "Great Denmark-street, 18th August 1855. "DEAR SIRS-We have arranged with Mr. Eyre to release the Kilcommon, Castlegrace and Clonmore estates, and hope to have the necessary deed executed in a week or ten days. Yours truly, "MORROGH & KENNEDY. "To Messrs. WILKINSON, GURNEY & STEVENS." On the 13th day of October 1855, Mr. Eyre executed a certain deed of re-conveyance, made between him of the one part, and John Sadleir of the other part, and purporting to bear date the 5th day of October 1855, whereby, after reciting the deed of the 20th October 1854, Mr. Eyre, at the request of the said John Sadleir, re-conveyed all the lands therein comprised to the said John Sadleir, discharged of the trusts of the said indenture of mortgage. In this deed no consideration was stated, nor any reason given for such re-conveyance. It was executed by Sadleir, in the office of the solicitors of the bank in London, in presence of one of their clerks and of Mr. Kennedy, and taken by Mr. Kennedy to Dublin, for registration; and Mr. Stevens deposed that, in the subsequent November, being in Dublin, he had inquired and was satisfied that the release was registered. On the same 13th of October 1855, Mr. Eyre executed certain indented articles of agreement, purporting to bear date the 6th day of October 1855, and made between the said John Sadleir of the first part, Mr. Eyre of the second part, and the said James Sadleir of the third part; whereby, after reciting the said indentures of the 20th of October 1854, and of the 5th October 1855, and that Mr. Eyre had agreed, in lieu of the said mortgage, to accept the securities therein mentioned, and reciting the delivery of the said Swedish Railway shares, and reciting that, by virtue of a special resolution of the said Railway Company, of the 26th of August 1855, the said shares bore interest at £5 per cent. per annum, it was witnessed that the said shares should be vested in Mr. Eyre, sub 1860. Ch. Appeal. In re BURMESTER. Statement. 1860. Ch. Appeal. In re BURMESTER. Statement. ject to redemption on the terms therein expressed, and corresponding to the terms contained in the said deed of the 20th of October 1854. And by the said agreement the said John Sadleir covenanted to convey, by way of mortgage and further security, to Mr. Eyre, certain lands called the Wall or Coolnamuck Estate, subject to a certain other agreement of the 13th of May 1855, relating thereto, and entered into between Mr. Eyre and the said John Sadleir, and in which said articles were contained certain powers of sale, respecting the said last mentioned lands; and by the said articles, the said James and John Sadleir covenanted with Mr. Eyre for the payment of an annual sum of £5000, in liquidation of Mr. Eyre's demands; and it was declared, that any moneys received by Mr. Eyre, on foot of the said promissory, note for £12,000, of the said William Dargan, should be applied in liquidation of his said demands. At the time of the execution of the said agreement by Mr. Eyre, the said Swedish Railway shares, and also a copy of the said resolution of the 26th day of August 1855, and the said promissory note of the said William Dargan, were handed over to Mr. Eyre by Mr. Kennedy. The intended mortgage of the lands of Coolnamuck was never executed, nor was any payment of money ever made under the provisions of the agreement of the 6th day October 1855. And it was discovered by Mr. Eyre, after the death of John Sadleir, and not before, and established by the evidence in this matter, that the Swedish Railway shares were forgeries; that no such minute or resolution of the said Railway Company was ever made, as pretended, and that the promissory note for £12,000, of the said William Dargan, was also a forgery. It was also proved that in fact the Wall or Coolnamuck lands were, previously to the date of the articles of the 6th day of October 1855, subject to charges which exceeded the value of such lands, and that the guarantee of James Sadleir was wholly worthless. By an indenture of the 7th day of September 1855, executed between the said John William Burmester, Farmery John Law, and James Sadleir, of the one part, and the said John Sadleir of the other part, after reciting the execution of the said twenty deeds of |