
    THE HAMBURGH MANUFACTURING COMPANY AND OTHERS v. JOSEPH E. EDSALL, ELIAS L’HOMMEDIEU AND OTHERS.
    1. A sheriff’s sale of land declared unlawful by reason of means used to prevent competition, and the consequent sacrifice of the property.
    2. Several executions had been levied by a sheriff on the lands of “ The Hamburgh Manufacturing Company,” of which the first in priority was in favor of E. The same sheriff had in his hands, at the same time, an execution issued on a decree in chancery, on the first mortgage, for the sale of the mine farm of “ The Clinton Manufacturing Company,” and also an execution at law against the said Clinton company, by virtue of which he had levied on the said Clinton company’s mine farm. E. held a subsequent mortgage on this Clinton mine farm. Prior to the sale, certain creditors of the Hamburgh company, having no judgments, together with E., entered into an agreement in writing, among themselves, that L., one of them, should buy the lands of both companies, as their trustee, as a means of securing their debts against tbe Hamburgh company, including E.’s judgment and other claims he had or made against the Hamburgh company, and his mortgage on tho Clin, ton mine farm. There was also an understanding with P., who held the bulk of the stock of both companies, and was carrying on or conducting the business of the Hamburgh company, that the said trustee should convey both properties to him, on his paying the debts of the said agreeing Hamburgh creditors, and the sums for which the properties should be struck off to the said trustee. By these means competition was prevented, and the properties were sold at a sacrifice, and bought by L., one of the agreeing Hamburgh creditors ; the other judgment creditors of the Hamburgh company not being present at the sale. The sheriff’s deed to L. was absolute.
    3. On a bill filed by the Hamburgh company and P. and his assignees under the insolvent law and a subsequent assignee of all his estate, it was held that the sales of both properties were unlawful; and that L. was a trustee of the Hamburgh property for the Hamburgh company and its creditors. But that as to the Clinton property no decree could be made, the Clinton company not being parties to the suit.
    Prior to December 7th, 1838, the sheriff of Sussex county had in his hands several executions, issued on judgments at law, against “ The Hamburgh Manufacturing Company,” a company incorporated by tbe legislature of this state, on the 10th of March, 1836, by virtue of which he had levied on all the real estate of the said company, and advertised the same for sale. Of these executions, the first in priority was in favor of Joseph E. Edsall.
    
      The same sheriff had in his hands, at the same time, an execution issued out of the Court of Chancery, on a decree in a ■foreclosure suit, for the sale of the mine farm of “ The Clinton Manufacturing Company,” another company incorporated by the legislature of this state, to raise about $2500, the mortgage on which the said decree was made being the first lien on the said mine farm ; and also an execution issued out of the Common Pleas of Sussex county, against the said Clinton company, in favor of Robert Lewis and Joseph M. Brown, for $1008.27. Joseph E. Edsall held a subsequent mortgage on this mine farm, for about $4000.' The sale of this farm had also been advertised, under these two executions, and stood adjourned to December 7th, 1838.
    On that day, Joseph E. Edsall, the first judgment creditor of the Hamburgh company, and a number of other creditors of the said Hamburgh company having no judgments against said company, including Elias L’Hommedieu, entered into an agreement in writing, among themselves, reciting that the real estate of the Hamburgh company was advertised to be sold at sheriff’s sale, and that they were in danger of losing their claims, or some part thereof, if the said property sold for less than $17,000 ; and that, for the purpose of endeavoring to secure themselves, they deemed it advisable to purchase the said real estate, and also certain real estate of the Clinton Manufacturing Company in the county of Sussex, whereon is an ore bed, advertised by the said sheriff; and covenanting'and agreeing with each other to unite ,in the purchase of the said real estates; and for that purpose constituting Elias L’Hommedieu their agent and trustee, in his own name and for his own and their use, to purchase the said properties, at any sum which, together with the encumbrances, should not exceed $32,000 ; and authorizing and instructing L’Hommedieu to purchase and procure the assignment of certain encumbrances upon the said property, to wit, two mortgages given by Winslow to said Edsall, about June 1st, 1836, on the said Hamburgh company’s property, or part thereof, and a mortgage given by Winslow to Joseph Sharp, on another part of said Hamburgh property, and of such mortgages and vouchers as might be necessary the better to secure the title to said property ; .and also to purchase and procure from Joseph E. Edsall a mortgage executed by “The Clinton Manfacturing Company” to him, on the said Clinton ore mine, dated January 10th, 1838, for about $4000, and authorizing and directing their said trustee to raise, by bond and mortgage on the said property, sufficient money to pay the purchase money thereof and the amount of the encumbrances above specified, and also $2000 for the purpose thereinafter mentioned, and also such further sum as might be necessary to pay the claims of such of them, the said creditors, as might desire the same in writing, and to purchase the necessary teams, wagons, and implements, and authorizing and directing the said trustee, in the event of his becoming the purchaser, to lease the said premises to some suitable, competent person, to conduct the furnace and works upon the said premises, for a term not exceeding three years, at a rent not less than ten per cent, on the whole cost of the property; and authorizing their said trustee to agree with the lessee, if he desires it, to sell to him the said premises, upon his securing to the said trustee the payment of the whole cost of the premises, including their respective claims, with interest, one-third part thereof, with interest on the whole, to be paid within one year, and the residue at such times as might thereafter be agreed upon; and, on compliance on the part of the lessee, with the contract or agreement for sale, the said trustee to make a deed of release to him in fee; and further agreeing, that if the said trustee should succeed in raising money for the purpose, he should appropriate it as follows: First, to the payment of the purchase mouey and expenses in procuring the title; second, to the procuring of the before-mentioned encumbrances; third, to retain $2000 for the purpose of putting the furnace (on the Hamburgh property) in blast; and, lastly, to the payment of the claims of such of them, respectively, as may have requested the raising of money for them in manner aforesaid; and if there be any deficiency in the money raised, then in proportion to the respective claims of the said creditors last mentioned; and further agreeing, that upon the payment to them, respectively, of their claims, or any part thereof, raised upon the said premises, they would severally execute and deliver to the loaner of the said money, a bond, with satisfactory security, conditioned that the said property, on a lawful sale thereof, should yield the amount that might be due thereon, with interest and costs; and that in the event of any deficiency, they would respectively refund so much money as might be necessary to make up such deficiency, in proportion to the amount paid them respectively; and further agreeing that, for the purpose of ascertaining the amount due them, respectively, they would forthwith settle and arrange the same with the Hamburgh Manufacturing Company, and procure their certificates of the amount due; and that in case of any dispute in such settlement with said company, the same should be referred to three indifferent persons, mutually chosen by the said differing creditors and the said company; and further providing, that in case the said company, or any of the said credit-tors, neglect or omit to settle the said claims, or choose three indifferent persons, as aforesaid, then the said claims should be determined by three disinterested persons, to be chosen by a majority of the said creditors, the report of any two of the persons so chosen to be conclusive; and further providing that nothing therein contained should prevent Joseph E. Edsall, one of the said creditors, from proceeding to the recovery of his encumbrances upon the said premises, in case the same should not be procured and purchased of him by the said trustee, in manner aforesaid.
    This agreement was signed by Elias L’Hommedieu, for himself, as creditor and as trustee, and by Joseph E. Edsall and some twenty other creditors of the Hamburgh company, by themselves, their attorneys, or assignees, no one of them, except Edsall, having a judgment against the said Hamburgh company.
    On ,the said 7th of December, 1838, the said mine farm of “The Clinton Manufacturing Company” was sold by the sheriff, and struck off to the said Elias L’Hommedieu,'for $4041.
    On the 14th of the same month, the said sheriff sold all the real estate of “ The Hamburgh Manufacturing company,” in seven different portions. They were all struck off to L’Hommedieu, at bids amounting, together, to $285. Different portions of the Hamburgh company’s property were subject to mortgages, amounting, together, to about $-.
    The deeds to L’Hommedieu, for both properties, were absolute. L’Hommedieu, on the 31st of December, 1838, executed a lease of all the Hamburgh company’s property, and of the said Clinton mine farm, to Edward W. Pratt, who owned the bulk of the stock of both said companies, and who, at the time of the making of the agreement by the said creditors among themselves, and at the time of the said sales, was carrying on or conducting the business of the said Hamburgh company. The terms of the lease were conformable to those of the lease provided for by the said agreement signed by the said creditors, except that $1500 instead of $2000 was the sum inserted therein to be furnished by L’Hommedieu to Pratt, for the purpose of putting the furnace in blast.
    On the next day, L’Hommedieu and Pratt entered into a written agreement, under their respective hands and seals, by which L’Hommedieu, in consideration of $30,000, to be paid to him by Pratt, covenanted to convey to Pratt in fee, by deed of release, with the usual covenants against his own acts, all the lands so struck off to him at the said sheriff’s sales, including the said mine farm of the Clinton company ; and Pratt covenanted to pay the said sum as follows: one-third thereof, with interest on the whole, on the first of December, then next, and the residue in two equal yearly payments thereafter, with interest, to be secured by bond and mortgage on the premises; the deed to be delivered on or before the said first day of December then next, on Pratt’s paying and securing the said purchase money in manner aforesaid.
    This agreement also provided that the mortgage held by Joseph Sharp, on part of the Hamburgh company’s property, for $2084.36, and two mortgages held by Joseph E. Edsall, on parts of the Hamburgh company’s property, amounting together to $5617.39, were to be paid out of the purchase money, or that if Pratt should pay them, the amount thereof should be deducted from the said purchase money.
    Pratt was discharged as an insolvent debtor on the 22d of August, 1839, and thereupon executed an assignment of that date, of all his property to Elias Ereeman and David Jones.
    On the 17th of July, 1841, Pratt executed to Joseph B. Nones an assignment of all his estate, of every description, in trust for his creditors, including Nones, who was to be first paid, and as to any residue that might remain after paying his debts, in trust for Pratt.
    On the 28th of January, 1842, a bill was exhibited by “ The Hamburgh Manufacturing Company,” Edward W. Pratt, Elias Freeman and David Jones, and Joseph B. Nones, complainants, stating the foregoing facts; and stating further, that Pratt had been endeavoring to effect a loan to pay off the said judgments against the Hamburgh company and the other debts of the said company, and that to give him an opportunity to do so, the sale under the said executions had been adjourned from time to time, and stood adjourned to December 5th, 1838. That progress had been made in the negotiation for a loan, and he had assurances that the money would be raised in three or four weeks. That under these circumstances, fearing that a sale might be forced, Pratt applied to some of his friends in New York, who determined to send a person with him to attend the sale, with authority to buy the property, if it became necessary. That accordingly, on the said 5th of December, 1838, Pratt went to Hamburgh, and that Aaron B. Nones accompanied him, with authority and with the means to purchase the property, if no agreement could be made between Pratt and the creditors of said company. That on the morning of the said 5th of December, 1838, and just previous to the hour of sale, Elias L’Hommedieu and Joseph E. Edsall, on the part and in behalf of the creditors of the Hamburgh company, most of whom were then present to attend the said sale, proposed to Pratt that some arrangement should be made that would be mutually beneficial to all parties concerned, and that to effect such arrangement they would undertake to raise money enough, by mortgage upon the property, to appropriate $2000 for the purpose of carrying on the business of the company, and to pay off all the creditors ; that they had had an interview with David Ryerson, Esq., and that he had offered to procure a loan of $30,000, or of whatever sum, not exceeding that amount, might be reouired for the purposes aforesaid ; but that the said loan could only be obtained on condition that the property should be sold, and some person become the purchaser of the said ore bed, (the Clinton company’s mine farm,) and the property of the said Hamburgh company; for that under the sale the title could be better perfected, and rendered free from all question, doubt or encumbrance; and that as soon as the said loan was effected, the property should be re-conveyed to the said Hamburgh Manufacturing Company, or to Pratt. That in view of this proposition, and to give time for reflection, the sale was adjourned, by consent of all parties, to the next day; that on the next morning a meeting of the said creditors and Pratt took place, Ryerson being present, and Joseph E. Edsall, in the presence of all parties, then stated again the terms of the proposed arrangement ; and that Ryerson then stated that he coidd procure the said loan, and that as soon as the property was sold, the money should be advanced to the purchaser, to be secured by mortgage on the property, on condition that the creditors then present would execute an agreement that, in proportion to their respective claims that should be satisfied out of moneys raised on the mortgage, they would be responsible to the mortgagor for any loss he might sustain on account of said loan, to which conditions the said creditors assented. That Pratt then .accepted the said proposition, and it was agreed that the property should be sold under the said arrangement, and that, immediately after the sale, in order to secure the possession to Pratt, and a re-conveyance of the property as soon as the loan should be effected, L’Hommedieu should execute a proper instrument for the re-conveyance of the property to Pratt, and also a lease for the same ; and by consent the sale was then adjourned, to take place at Newton, on the 7th December, 1838.
    The bill then states that, on that day, and for the purpose of carrying out the arrangement before stated, the said creditors of the Hamburgh company entered into articles of agreement among themselves (being the articles before stated.) The bill then states the sales by the sheriff, as before stated. That the property of the Hamburgh company, and the ore bed of the Clinton company, so sold, were worth, at a low cash valuation, $100,000. That in November, 1838, Joseph E. Edsall and LfHommedieu had each given a written appraisement of the said Clinton ore bed, estimating its value at $50,000. That at the time of the sale there were persons present who were ready to bid a large amount, and particularly for the ore bed ; but they were informed by Joseph E. Edsall and L’Hommedieu and others interested, that the sale was made under an arrangement between the said company and the creditors, and in consequence thereof they were induced not to bid on the property. That. the aggregate amount due to the said creditors of the Hamburgh company who signed the said agreement, was about $17,000; that of that sum L’Hommedieu was a creditor of said Hamburgh company for about $140. That Edsall held two mortgages on a part of the Hamburgh property, and a mortgage on the Clinton comprny’s ore bed, and pretended to have a claim against the complainants, the Hamburgh company, for two or three thousand dollars, for expenses and services in procuring the charter of the said Hamburgh company, &c., but the items of said account he would never render to the said company, or to Pratt, and always insisted that the amount of his said claim should be allowed, without the production by him of any bill of particulars for the same, but which the complainants, the Hamburgh Manufacturing Company, and Pratt always refused to do, or to admit the justice of any such amount as said Edsall claimed. That Edsall was a large dealer writh the complainants, the Hamburgh Manufacturing Company, and became, largely indebted to them, and to an amount nearly if not quite sufficient to satisfy his mortgages, and any other just demand he had against the company. That at the time of said sale, the complainants, the Hamburgh Manufacturing Company, were in possession of the said property belonging to them, and were preparing for blast. That immediately after the sale, Pratt, being desirous to secure the possession of the property in order to carry on the business, urged upon L/Hommedieu and Edsall the immediate execution of the agreement to re-convey, and also of the said lease; and with the view of ascertaining the amount of the accounts of the respective creditors of the Hamburgh company who had signed said agreement, had effected a settlement of their respective amounts with all or most of them, except said Joseph E. Edsall, whose claim remains unascertained.
    The bill then states the lease from L’Hommedieu to Pratt, and the agreement between L’Hommedieu and Pratt for the conveyance of the property to Pratt, as before stated. That the said $30,000, mentioned in the said agreement to convey, was only a nominal sum, named as sufficient to cover the objects contemplated by the said arrangement, to wit, to put Pratt in funds, to the amount of $2000, to carry on the works and pay off all the debts; and as the amount of the debts had not been fully ascertained, it was thought best to borrow $30,000, and use enough of it for the purposes aforesaid.
    The bill states that the said writings were executed with the expectation, on the part of Pratt, that they would, in a few days, be canceled, as they were all based upon and entered into, on his part, relying upon the loan to be made by the said Ryerson; and that, with that expectation and understanding, the said creditors did, by their said agreement signed by them, agree to execute to the lender of the money their respective bonds, as stated in their said agreement.
    The complainants further state that the $1500 stipulated in the lease to be advanced by L’Hommedieu to Pratt, to put the furnace into blast, was inserted instead of the $2000 contemplated in the agreement of the said creditors for that purpose, with the consent of Pratt; but that neither L’Hommedieu nor any of the said creditors advanced anything whatever to put the said furnace into blast. That Pratt went on with his own means to do so; and while going on with the said work, applied from time to time to L’Hommedieu, Edsall and Ryerson, for the completion of the said arrangement, and the loan of money to effect it; and was continually promised that the money should soon bo advanced, and everything satisfactorily arranged, according to the understanding of the parties, until, at length, Ryerson told Pratt that the money would not be advanced.
    The complainants further state that while Pratt was proceeding, as aforesaid, to put the furnace into blast, and after ascertaining that the arrangement made at the said sale would not be carried into effect, he made arrangements in New York for money sufficient to pay off the said creditors, and requested L’Hommedieu to go with him to New York, to have the papers executed; that while on his way to New York, in company with L’Hommedieu, he was arrested on a recognizance of bail, and confined at Newark.
    
      The complainants state that they are informed and believe that while Pratt was thus in confinement, L’Homi«edieu and Edsall called a meeting of the creditors who had signed the said agreement, and proposed that they should take possession of the property, and themselves carry on the business of the said company; that all the creditors, except L’Hommedieu and Edsall, declined doing so, and remonstrated against any such proceeding under such circumstances; but that L’Hommedieu and Edsall, notwithstanding, determined themselves to take possession of the property. That on or about June 10th, 1839, they went into the office on the premises, where all the books of the company were kept, they, or one of them, breaking through the windows, the door of the office being locked, and then went to the tenants who occupied the dwelling-houses on the property of the complainants, “The Hamburgh Manufacturing Company,” about ten in number, and turned out of doors the families and furniture of such of them as would not agree to become tenants under them; and that in this way the said L’Hommedieu and Edsall took possession of the premises.
    The bill further states that when L’Hommedieu and Edsall took possession as aforesaid, there was a large quantity of charcoal and of wood cut, and of ore raised, besides other personal property, of various kinds, on the said premises, consisting of furniture belonging to the office, also mules, oxen, horses, wagons, carts, sleds, coal, implements for raising ore, cutting wood, and working the blast, owned by the complainants, “ The Hamburgh Manufacturing Company,” and Pratt, or in their possession, under lease and agreement with the owners thereof, all of which the said L’Hommedieu and Edsall took possession of and converted to their own use; and that ever since the said 10th of June,'1839, they have been in possession of the said property, and of the rents and profits thereof, and have cut and sold wood, and raised and sold ore, and have made two blasts on said premises, and are now in a third blast; and have, as the complainants are informed and believe, cleared out of the first blast upwards of $15,000,and out of the second more than' $10,000, after paying all the expenses thereof; being more than sufficient to pay all the debts of the said Hamburgh company; and that the said L’Hommedieu and Edsall have rendered no account, but have refused to do so; and that the claims of the said creditors remain unsatisfied, except a few which L’Hominedieu and Edsall have purchased, at one-half, and some at one-quarter of the amount thereof.
    The complainants further state that they have frequently, through Pratt, applied to L’Hommedieu and Edsall to account, &c., and to appropriate the proceeds, rents and profits, to pay off the said creditors of “The Hamburgh Manufacturing Company,” according to the agreement under which L’Hommedieu purchased and took the sheriff’s deed; and the balance, if any, to pay over to the complainants, some or one of them; and for L’Hommedieu to re-convey the premises to the complainants, some or one of them ; the complainants offering, and now offering, ifj on the taking of such account there should not be found funds sufficient in the said defendants’ hands to pay off the said creditors, to advance enough to make up the deficiency.
    The bill prays an account of all and every the said estate and effects of the complainants, “The Hamburgh Manufacturing Company ” and Pratt, taken possession of by L’Hommedieu and Edsall, and of the rents, issues and profits of the said real estate; and that the said deed to L’Hommedieu may be declared a trust deed, and the rights and interests of the complainants under the same be declared and secured; and that an account maybe taken of the respective debts due from the complainants, “ The Hamburgh Manufacturing Company,” to the said creditors, respectively; (they are all made defendants ;) and that the same may be paid, under the direction of this court, out of the said rents, issues and profits; and if it shall appear that the rents, issues and profits, and other receipts of the said Edsall and L’Hommedieu, exceed the said debts, they may be directed to pay to the complainants such excess; and that L’Hommedieu and Edsall may surrender and convey the said premises to the complainants, or such person as they shall appoint, free from all encumbrances made by them, and deliver up to the complainants all title deeds, &c.; and that the complainants may have such further relief, or such other relief in the premises, as the circumstances of the case may require.
    L’Hommedieu and Edsall put in their joint and several answer to the bill; the substance of which, so far as necessary to the consideration of the case, is as follows: They admit that Piatt made various efforts to prevent a sale of the real estate of “ The Hamburgh Manufacturing Company,” under the said executions against them, and procured adjournménts of the sale from time to time; and that he may have made efforts to negotiate a loan upon the said property, to pay off the judgments and other debts against the said company; and may have procured searches of the title, and certificates of competent persons as to the value of the property; but what success he met with in his efforts, or what assurances he may have received, these defendants say they are ignorant.
    They admit that on the 5th of December, 1838, the day the sale of the Clinton mine tract was to take place, Pratt came to Hamburgh in company with Aaron B. Nones; but say they are wholly ignorant whether Nones had authority or means to purchase the said property; and that if the facts were so, they were not disclosed by Nones or Pratt, either to these defendants or to any other persons, so far as they know and believe. They admit that they and a number of other creditors of the Ham-burgh company were present to protect their interests; but deny that on that, or any other occasion, they told Pratt that they would undertake to raise money enough by mortgage upon the property, to appropriate $2000 for the purpose of carrying on the business of the company, and to pay off all the creditors, or that they had any assurances from David Rycrson such as the complainants have represented in their bill, that he would or could procure a loan of $30,000, or whatever sum, not exceeding that amount, might be required for the purposes aforesaid, but that said loan could only be obtained on condition that the property should be sold, and some person should become the purchaser of the said ore bed and the property of the Hamburgh company, or that as soon as the said loan could be efifectedj the said property should be re-conveyed to the Hamburgh company «or Pratt, or that in the meantime the said property should continue in the hands of Pratt, or that at any other subsequent meeting of the said creditors, these defendants, or any other of the said creditors, to their knowledge, ever proposed any arrangement, or that any arrangement was at any time proposed, to the knowledge or belief of these defendants, by which any trust ■whatever was to be created in any person, in favor of Pratt or “ The Hamburgh Manufacturing Companyor that the sale of the Clinton mine tract was adjourned on the said 5th of December, upon any such arrangement or understanding with Praft, or that on the next morning Ryerson stated in the presence of Pratt and these defendants and other creditors, that he could procure the said loan on the conditions in the bill mentioned, or on any other conditions, or that there was any assent of the creditors to any such conditions, or any agreement that a sale should be made under any such arrangement as the complainants have alleged, o»r that L’Hommedieu should purchase under any such agreement or arrangement, or should execute any re-conveyance or lease to Pratt, founded on any such agreement or arrangement.
    They say that the sale of the Clinton mine tract, under execution in the hands of said sheriff against the Clinton company, having been adjourned from time to time, until the said 5th of December, and the whole of the real estate of the Hamburgh company being also advertised under executions in the hands of said sheriff against the Hamburgh company, and these defendants and the other creditors of the Hamburgh company deeming it important to the security of their claims against the Hamburgh company, that the Clinton mine tract, whence the Hamburgh company derived their principal supply of ore, should be purchased in for the benefit of the Hamburgh furnace, and the creditors of the said company despairing of Pratt’s being able to raise funds or make any arrangement for the payment or security of their debts, and having large claims against the said Hamburgh company, sometime in November, and several weeks previous to the time appointed for the sale of the said mine tract, held a meeting for the purpose of consulting together as to the best means of securing their debts ; and that it was then agreed among the said creditors, that if the said mine tract and the real estate of the Hamburgh company should be sold on the said executions, they would appoint one of their number to purchase the same, for the benefit of such of the creditors as should become parties to the agreement, in case no person should, at such sale, offer a sufficient sum to pay the encumbrances and secure the creditors ; and that at that meeting, the creditors settled upon most of the principles of the articles of agreement afterwards executed on the 7th of December, and which is set out in the complainants’ bill. They say that neither Pratt nor the Hamburgh company were known in the said arrangement, or had any part or interest in it, but that it was an arrangement determined upon and entered into by these defendants and the other creditors who became parties to it, solely on their own account and for their own protection and benefit, and induced solely by the belief that the said company and Pratt were utterly insolvent. That the debts and encumbrances then existing against the Hamburgh company, according to the best of the knowledge and belief of these defendants, exceeded $30,000; and that the debts of the Clinton company which existed at the time as liens on the said mine tract exceeded $10,000 ; and that, as the principal value of the Hamburgh property and of the said mine tract, depended upon its being all kept together, and used for the purpose of manufacturing iron, it became a matter of the last importance to the creditors to prevent it being sold in separate parcels, or for other purposes; as such an event must necessarily have resulted in a great sacrifice of the property, and consequently in a great and almost total loss to the creditors, the Hamburgh company and Pratt being without any other means to discharge the said debts, to the knowledge or belief of these defendants.
    They say that at some one or more of the meetings of the creditors of the Hamburgh company, held previous to the sale, David Ryerson was present, and was consulted by some of said creditors as to the possibility, in case the property should be purchased for the benefit of the creditors by one of their number, of raising, by loan to be secured on the same, money sufficient to satisfy their claims, provided they would agree to indemnify the lender against all losses, should the property, on a sale thereafter to be made, not bring the amount; that Ryerson offered to make an effort to procure a loan of $30,000 for that purpose, and expressed the hope that he should be able to effect such a loan, and did make efforts, as these defendants believe, to do so, but wholly without effect; but these defendants deny that he ever gave them, or the creditors, or Pratt, in their presence, or to their knowledge, any promise that he would, or assurance that he could raise the said sum, or any other sum, upon the property and security aforesaid.
    They admit that such articles of agreement by and between the subscribers thereto, creditors of the Hamburgh Company, as are set out in the complainants’ bill, were made and executed between them, on the 7th of December, 1838, the day of the date thereof; but they deny that said agreement was made or executed under any agreement or arrangement between them and Pratt, or for the purpose of carrying out any arrangement or agreement between them, or in the expectation that the said sum of money would be immediately raised, or with the understanding that the said property was to be re-conveyed to Pratt, or that a lease.was to be executed to him immediately after the sale, but that, on the contrary, the meaning and intent of the said agreement is fully and entirely expressed therein, and that it expresses all that was understood between the parties, as far as the knowledge or belief of these defendants extends.
    They admit that L’Hommedieu became the purchaser of the Clinton mine tract, at the sheriff’s sale thereoij for $4041, subject to all prior encumbrances, and that, on the 14th of said December, the said sheriff" sold all the real estate of the Ham-burgh company, and that L’Hommedieu became the purchaser thereof, for $285, subject to all prior encumbrances, and that deeds were delivered, by the sheriff, to L’Hommedieu.
    L’Hommedieu says he bought the Clinton mine tract and the Hamburgh property by virtue of the powers and instructions, and for the sole purposes set forth in the said agreement of December 7th, and for no other purpose whatever; that he acted as the agent or trustee of the creditors, as therein particularly named, and for none others; that there was not any understanding or agreement between himself and Pratt, or between himself and any other person or persons, that he was to hold the property, or any part of it, in trust for Pratt or the Ham-burgh company, or for their, or either of their use or benefit, or for any other purposes than those expressed in the said articles of agreement.
    They deny that the Hamburgh property and the Clinton ore bed were worth $100,000, or that there were any person or persons present at the sale or sales aforesaid, to the knowledge or belief of these defendants, who were ready to bid a large amount, either for the ore bed or for the Hamburgh property, and were prevented from bidding in consequence of the information of the arrangement among the creditors; but they say that, at the time of the said sales, many of the creditors doubted the propriety of buying in the property for the amount of the encumbrances, and considered its utmost value below $30,000 and that these defendants and the other creditors were then, and since have been willing to sell the whole property, including the mine, for that sum. That since the said sales, they have offered the whole property to Pratt for $29,000, though they had expended $2000 on it; and that they would be glad now to sell the property'for $30,000; and that they believe that the full value of the property, subject to the encumbrances and debts embraced in the said agreement, was given for it; and as to the ore mine tract, they say it was bid up to within one dollar of what it was struck off for, by Joseph H. Pettis, secretary of the Hamburgh company, as these defendants believe.
    They admit that sometime previous to the sale of the Clinton mine tract, they gave some such certificates as to its value as the complainants have charged; that Pratt called on them, on one occasion, when he was making efforts to borrow money on the property, and represented to them that he had had the ore bed examined by scientific miners, who had bored the ridge throughout, and found the bed inexhaustible; that from these representations, not having much personal knowledge of the matter themselves, and supposing Pratt’s representations of the extent of the ore to be true, and knowing that ore could then be raised from the mine at fifty cents a ton, they signed the said certificates; but that they soon after ascertained that said representations were untrue — that the said ore was far from being so extensive, and that the same is now so far exhausted, that for the ore they have recently procured from that mine, they have been obliged to pay at least three dollars a ton.
    Edsall says, that at the time of the execution of the said agreement, he held two mortgages on part of the real estate of the Hamburgh company, and a mortgage on the said Clinton ore mine; that the mortgages on the Hamburgh property, with interest, then amounted to about $6500, and that he had a claim against the Hamburgh company of about $3000, but he denies that the said claim was for services and expenses in procuring the charter of the company, or that he ever refused to furnish to the said company, or to Pratt, the particulars of said account, but says that the said claim was for coal, wood and other goods and personal property sold and delivered by him to said company, and for work and labor done and money advanced to and for the use of said company, at their request; and that the same was admitted by Pratt, in an agreement of November 29th, 1837, as a valid and existing debt due from said company, and set down as such by Pratt’s consent, among the debts to be secured by a mortgage to Abner Jones; and he denies that he ever was indebted to the said company, or that he ever bought any ore of the said company, or that they had or have any just account or demand against him, by way of offset, as is alleged in the bill.
    These defendants admit that (hey have purchased up, and taken an assignment of, debts due from the Hamburgh company, as stated in the bill; and that they now hold a largo amount of claims against said company, secured by the agreement of the creditors, before referred to; that, including the mortgages held by the defendant Edsall, and the Sharp mortgage assigned to Edsall, the whole amount of the claims of these defendants, existing at the time of the said agreement and purchased since, together with the purchase money paid for the Clinton mine tract, is §32,476.51, as near as they can at present ascertain ; and (hey admit that there are yet some outstanding claims embraced in the provisions of the said agreement, the amount of which they do not precisely know, some small amount of which may have been purchased up by Prait and Nones.
    They admit that, at the time of the sale, the Hamburgh company were in possession of the property belonging to that company, but deny that they were then at work preparing for a blast, and say they had suspended their operations, and the whole properly was lying idle, and nearly unoccupied, and had been so for months.
    The defendant L’Hommedieu denies that he was under an; obligation, by virtue of anything contained in the agreement of the creditors of the Hamburgh company, under which he was appointed their trustee, or by virtue of any arrangement or understanding had with Pratt previous thereto, or at the time of the execution of the said agreement, to make any lease or enter into any articles for the sale of the said property to Pratt, or that Pratt called upon him repeatedly to do so, as is stated in the bill; but he says that, upon a conference with the creditors, and at the solicitation of Pratt, and under the influence of the representations made by him that he could yet raise money to carry on the works and pay off the creditors of the company, a majority of the said creditors advised this defendant to execute a lease of the property to Pratt, and to enter into a contract for the sale of the premises to him, for $30,000, and that a lease and contract of sale were accordingly made and delivered to Pratt, as the same'are set out at large in the complainants’ bill; and he denies that the said sum was merely nominal, and named as being more than sufficient to cover the objects of starting the furnace and paying the debts, but that it was the sum for which the creditors and he were willing to sell the property to him, though below the actual amount of the claims by about $2000.
    L’Hommedieu denies that the lease and agreement were executed with the expectation of their being canceled, or that they were based on any expectation of a loan to be effected by or through Ryerson, but says that, at the time they were executed, it was distinctly known by the parties that.a loan could not be obtained through Ryerson ; but Pratt insisted that if he could get such lease and agreement, it would enable him to go on with the business, and finally complete the purchase; and the creditors, not being willing to attempt to carry on the works on their own account, preferred any plan which appeared to promise success and put the works in operation, rather than abandon them to ruin, and that the covenants binding Pratt to go on with diligence, under penalty of forfeiture, were inserted to secure that end.
    These defendants say that, after the making of said lease and agreement, Pratt left Hamburgh, and furnished no means, nor did anything towards putting the furnace in operation, but suffered the property to be idle, and everything to go to ruin, That the furnace dam was swept away, and no efficient efforts or preparations made to repair it. They deny that Pratt applied to them or either of them, for means to carry on the works j nor was he kept in suspense by these defendants; nor did he get up any ore, or put the furnace in blast, or procure wood or ore during any time after he received said lease.
    LTTommedieu admits that in April, after the lease and agreement, Pratt being in Hamburgh, and this defendant being desirous of satisfying himself whether there was any probability that Pratt would be able to go on, or comply with the agreement, he started with Pratt for New York, to see the persons who Pratt alleged proposed or were willing to advance him money j and that on the way Pratt was arrested, and was detained at Jersey City j and this defendant went over to New York with a letter from Pratt to his friends. That this defendant delivered the letter to the the persons to whom it was addressed, one of whom, he thinks, was Abner Jones, but they refused to do anything for Pratt, and be was taken to Newark jail, and in August following, took the benefit of the insolvent laws, making an assignment to Freeman and Jones, in which are embraced about 600 shares of Hamburgh stock, and the said lease, and from 600 to 1200 shares of the Clinton stock.
    These defendants say that from the time of the lease to that of the arrest, the property was unoccupied, the dam, in the meantime, mostly carried away, &c., and the whole property rapidly going to decay; and the creditors and these defendants apprehended that the whole works would be ruined, and at the instance oí some oí them, D. Haines and R„ Hamilton went U Newark to see Pratt, and learn his views, and what he expected to do. That Pratt told them he had given up all idea of being able to do anything with the property, that he relinquished all claim to the same, that the creditors might take possession, and might as well have done so before, as he had abandoned all idea of doing anything in the matter for some lime previous.
    These defendants admit they called a meeting of the creditors, after Pratt had been confined in jail, and that most of them met, and that it was proposed they should put the works in repair and go on; but the majority objected to engage in it, and many of them declared they would sooner lose their •claim than encounter the risk,* and it was then proposed that a few of the creditors should join and carry on the business; and it was finally agreed that some such arrangement should be effected, if it could be brought about.
    And these defendants deny that the creditors, except said defendants, opposed the possession of the property being taken out of regard to any supposed rights of Pratt, who had forfeited all right under his lease, by neglecting to proceed to put the property in order and carry on the works, and by abandoning the same to ruin, in express violation of the covenants of the ¡ease.
    They say that all prospects of Pratt’s doing anything being ended, the said Edsall having a mortgage on the furnace tract, and being a holder, to a very large amount, of the claims under which the property had been sold, entered into and took peaceable possession, of the property, about the time in the bill stated, in his own right as mortgagee; and the defendant L’Hommelieu, afterwards, as purchaser at said sheriff’s sale and trustee for the creditors, and as holder of the Jones mortgage, entered, peaceably, on the premises not included in the mortgage of Edsall, and also of the Clinton mine; and that the defendants afterwards agreed to unite in putting the property in repair, and the furnace in blast, and in carrying on the business. They deny that the creditors objected to their taking possession, but insist that, as far as they know, they acted in conformity with the wishes and desires of said creditors. They deny turning nut tenants of Pratt, or taking such forcible possession as the hill charges, but say that the premises were abandoned by Pratt; that he had forfeited his right under the lease, and had expressly declared to the accredited agents of the creditors, that he relinquished all pretentions of claim to the property.
    They deny that, when they took possession, there was a large quantity of charcoal, wood, ore, or personal property of various descriptions, or mules, &o., belonging to complainants, or any of them, on the same, but say that all the personal property which had been owned by the Hamburgh company had been before sold by the sheriff aud constables, and that most of the teams, &c., and other property had been bought by Edsall; and since being in possession, they have obtained their ore for the blasts from the mine, and have cut some wood on the premises ; but most of the wood and coal they have got from lands of Edsall, or other of the furnace property, or of other persons. They admit they have now on hand some pig-iron, coal, ore, wood, mules, &c. j but deny that any of them belong to the company, or Pratt, or were procured by their means, but say they have, ever since being in possession, carried on the business wholly with their own means ; and that, at their own expense, they rebuilt the dam, at an expense of $2500, put up a coal-house, rebuilt part of the flume, and made other extensive erections and repairs, and bought all the necessary personal property to enable them to carry on the works, and keep them in operation.
    They deny that they have cleared from the first blast upwards of $15,000, and out of the second more than $10,000; but say that the proceeds of the business have not, as yet, met the outlays and expenses of carrying it. ou, and paid a fair compensation to the defendants for their trouble and investments.
    They deny that they ever have refused to account with the creditors of the Hamburgh company, or that they have ever been called on to account by them; but say they are ready, and have always been ready to account with the said creditors, under the said agreement of December 7th, 1838.
    They deny that Pratt has frequently applied to them to account, as the complainants state in their bill, but admit that in .July last, (the answer was filed in March, 1842,) Pratt called an Edsall and wanted him to exhibit an account of their business, as trustee and agent of said Pratt or the Hamburgh company, and that Edsall told Pratt that neither he nor the Ham-burgh company had anything to do with the property or business, or had any right to any account whatever; and that Pratt, about the same time, called on L’Hommedieu, and made some like demand, but he, L’Hommedieu, being si,ek, referred him to Edsall.
    They deny that they took possession fraudulently, or in violation of any agreement or lease, or against the express wish of the creditors ; and deny that the complainants have any interest in or claim to said property, or any part thereof.
    
      The defendant Daniel Haines also put in his answer. He admits that the sales were adjourned from time to time at the request of Pratt, who alleged he was negotiating a loan to pay the executions. That while said real estate was advertised, some of the creditors of the Hamburgh company became fearful it might be sold to their prejudice, and their claims be lost, as a few of the large creditors might unite to the injury of the smaller ones; and they suggested that all the creditors should unite in the purchase of the property, for their common benefit To this some assented, and some declined unless the works could be carried on without their embarking in making iron. It was then suggested that the premises might be rented out, or perhaps sold at private sale, and the loss of a large part of the claims prevented; and while the matter was a subject of discus-don and reflection among the creditors, some person, not distinctly recollected, but he thinks Brown and Lewis, or one of them, came to the office of this defendant, and stated that Pratt, or some one he would appoint, would probably be lessee, if the ‘reditors should buy the premises; and afterwards Pratt, or some one on his behalf, not now recollected who, asked this defendant if an arrangement could not be made, by which the creditors should buy the property and lease it to Pratt. This defendant said he thought it might be done. The sale, however, was adjourned ; but from these suggestions, the creditors pretty generally concluded that it would be to their advantage to buy the property, particularly as they considered that the value of the Hamburgh property would be greatly increased by the addition of the Clinton ore bed ; the Hamburgh ore bed being then esteemed of little value. But the terms of purchase, and what disposition should be made of the property, was left undetermined, and was the subject of conversation from time to time, for several weeks before the sale.
    On the 5th of December, 1838, the day fixed for the sale of the Clinton property, on this defendant’s being informed that the sale was adjourned to the 6th, and that some arrangement between the said creditors was likely to be made, and that his aid was desired, he left Newton and went to Hamburgh. The whole business was then discussed, and David Ryerson informed the creditors, in the hearing of this defendant, that he had. come there to aid the creditors, and that he would make the attempt to raise, by loan, the money to buy the property and satisfy the liens on it, and $30,000 was thought sufficient. Ryerson stated openly to the creditors, and he believes in the hearing of Pratt, or of some of the persons acting with him, that lie did not know that he could raise all the money; that he could, perhaps, furnish part himself, and would go to New York and see what he could do there; that it might he necessary for him to go to Pennsylvania for it, and that he would do all in his power to effect the loan. It was then again suggested that Pratt, or some one named by him, would take a lease, to which the creditors generally assented, if they became die purchasers, and if they could agree on the terms of the lease. It was then also proposed that Pratt should have the privilege of buying the property, on payment to the creditors of their claims and expenses, whereupon a negotiation was entered into between some of said creditors and Pratt, as to the terms on which he would lease the premisos, and to give time for consideration, and a proper understanding of the matter, the sale of the Clinton property was adjourned to the 7th of December, at Newton. Pratt and many of said creditors went to Newton, and the terms on which the said creditors would become the purchasers, and how they should dispose of the property, were fully discussed among the said creditors. There was a variety of propositions, and a diversity of opinions, occupying all night, and to twelve o’clock next day; this defendant and Mr. Hamilton acting as counsel for the said creditors. The result was the agreement between the said creditors, dated December 7th, 1838, stated in the complainants’ bill. The terms of the said agreement were settled by the said creditors among themselves, and not between them and Pratt.
    Pratt was not, to his knowledge and recollection, present with the said creditors during the said negotiation among themselves, and some of the creditors refused to make any agreement with him respecting the property. But this defendant admits it was generally expected, and believed that Pratt would become the lessee, or, as a creditor, said Capt. Pratt was to have the refusal of the lease, on the terms agreed on by the said agreement among the creditors; and in that expectation, Pratt was occasionally consulted as to the terms of the said agreement between the said creditors, which was to contain the terms of any future ' lease; and Pratt made ' several suggestions in relation to it, he and his counsel occupying another room in the same house.
    That this defendant signed the said agreement as a creditor j his claim was then about $113, afterwards reduced to $40, on an account stated January 4th, 1839. That at the time of making the said agreement, the said company were further indebted to him as assignee of Mr. Longwell, in $85, and also in $126, the amount of a claim of Henry Darrah against said company, assigned to him, which claims were repeatedly recognized by the said company, and their president, Pratt.
    That he acted also as attorney for six other creditors of the company, (naming them,) John L. Adams, since deceased, being one of them, and he also signed said agreement in their behalf; and thereby this defendant and those for whom he acted became interested in the said real estate afterwards purchased by L’Hommedieu, under the authority and • instructions of (he said agreement. He admits that the other parties signed the said agreement, as in the bill is stated, and thereby became interested in the said real estate so bought by L’Hommedieu., He does not know what was the expectation of the said creditors about the money being raised immediately, and their debts paid ; but for himself, as well as he can now recollect, he may have hoped that the money would soon be raised, but did not expect that more would be raised than to pay off the purchase money a-nd encumbrances.
    He admits that, pursuant to the terms of said agreement, L’Hommedieu, as trustee of the said creditors, and not of Pratt, bought the Clinton property for $4041. That. Nones was present at the sale, but for what purpose he came, and what money he had with him, or whether he or any other person would have bid more, under any circumstances, or whether any person was deterred or hindered from ■ bidding, by any person, by persuasion, threats or otherwise, he does not kno'w; but some two or more persons besides L’Hommedieu bid at the sale.
    He admits that L’Hom'medieu, as such trustee of the said creditors, and under the said agreement, afterwards bough* V, the sheriff’s sale, the real estate of the Hamburgh company. That the property so bought by L’Hommedieu was and is very valuable ; but as the value depends on the extent of the ore-beds and many adventitious circumstances, to fix a certain value might be regarded as speculation. But he was and still is willing to relinquish all his claim to and interest in the property, on being paid his claim ; and he believes most, if not all the said creditors are like minded. He does not know, and has no certain means of ascertaining the amount of the debts of the Hamburgh company ; but it was understood among said creditors, and he thinks by the officers of said company, that the Hamburgh company’s debts, together with the purchase money of the Clinton property, and the prior encumbrances against both properties, would amount to between $28,000 and $30,000; and be has since seen a statement, supposed to be correct, amounting to more than $32,000.
    Soon after the sale, at the request of L’Hommedieu, he ¡ire-pared a lease to Pratt, the terms of which were intended to be in conformity with the agreement, of the said creditors, and the instructions therein to L’ilommedieu, There was not, to hi* recollection and belief, any unnecessary delay therein; but on one or more occasions, some of the creditors having urged the settlement of all the claims, and particularly of Edsall’s, before any lease should be executed, he stated that to Pratt, and urged the speedy settlement of all the accounts, and that of Edsall among the rest; and he admits that Pratt called on him several times, about the said lease, and perhaps urged its execution ; but thinks Pratt called rather for the purpose of settling the rerms of the lease and the articles for the sale of the said promises, than of urging their execution; and Pratt saw arid knew that L’Hommedieu, the trustee, was obliged frequently to confer with the said creditors about the terms of said lease and of said agreement, and (hat much time was necessarily consumed in the preparation of them; and this defendant thinks that after the drafts of said lease and articles of sale were made, one or both were taken by Pratt, to submit to his counsel; and that ho returned the same with some written observations and suggestions on them by James Spear, of Pater-*02?, who was consulted by Pratt.
    
      He admits the lease and articles of agreement were the same as stated in the bill. That Pratt, or some person with or under him, made the necessary arrangements to carry on the works; but on what funds or credit he cannot state ; nor does he know whether any advances were, made by L’Hommedieu under the said agreement. That no money was raised by Ryerson on the said property ; but he has been informed by Ryerson that he made great exertions to do so, and failed. That this defendant, at the request of the said trustee and of some of the creditors, applied to several capitalists for a loan, but they all declined j and he believes every reasonable effort was made without success. That L’Hommedieu and Pratt set out to go to New York to make some arrangements about the said property, and that Pratt was arrested, &c.
    He was present at a meeting of some of the creditors at Ham-burgh, to consider what disposition should be made of the said real estate, Pratt having, as they believed, failed.to fulfill the terms of said lease, and forfeited the same, the dam and works being in a state of dilapidation, and exposed to great danger; and some one there proposed that the creditors should take possession, and put the works in operation. Some objected, on different grounds; but all the creditors, except a few, objected to involve themselves in the hazard of that business, and some said they would rather lose their claims ; and he thinks Edsall said all the creditors would be too many, but with four or five he could name the business might be driven with advantage; and this defendant stated to said creditors that whatever might be their right to the possession, it would not be liberal to Pratt, in his then unhappy situation; and thereupon the said creditors requested this defendant, who was going to Trenton, to call on Pratt, and ascertain his views and prospects in relation to the performing his contracts for the said property. That on his return from Trenton, being in company with Robert Hamilton, he invited him to go with him to see Pratt, and they went; and this defendant stated to Pratt that the creditors were anxious to know what he meant to do with the said property, and that it needed attention, and that some of the creditors had proposed to take possession and carry on the works. Pratt said he was willing the creditors should take possession, and wished they had done so long before; that he had given up all hope of doing anything with it, and that he freely gave up all his right to it, and hoped the creditors would be^able to make their money out of it. This defendant told the creditors, at Hamburgh, of the result of his interview with Pratt; but he does not now recollect of any further proposition being made to take possession of the property ; but about that time, or a few days after, he heard that Edsall was in possession of the whole, or some part of it, claiming it as mortgagee in possession; and, soon after, he heard that L’Hommedieu had entered into partnership with Edsall; and he was afterwards told by L’Hommedieu that it was so. And this defendant then reminded L’Hommedieu, that he was the trustee of the creditors, and might and perhaps would be held responsible for the use of the property; and suggested to him the propriety of so keeping his books of account as to be able to render a satisfactory account, if required. He has no knowledge of the manner or precise time of Edsall and L’Hommedieu, or either of them, taking possession ; not of the personal property then on the premises; nor what profits have been realized, from the furnace, except that during the first blast made by Edsall and L’Hommedieu, he heard them say their business was very profitable, and he has since heard them say that their second blast was not profitable.
    He says that after Pratt was liberated, he came several times to Hamburgh, with divers persons who, he said, were desirous of buying the property and works, and on those occasions the creditors, or such of them as could conveniently be assembled, were called together, and propositions were made by Pratt for the purchase ; and on some or all those occasions, the creditors so assembled have stated to Pratt that they would ask no more than to be paid their debts and expenses; and that if he would negotiate a sale he could have the benefit of all he could get over; and at other times the creditors, or some of them, have offered to make, for his benefit, a liberal discount from their claims, if he could effect a sale; and that in all such negotiations, Pratt did not, to the knowledge or belief of this defendant, assert any right or interest in the premises; but, as this defendant then thought and still thinks, relied entirely on the liberality of the said creditors.
    
      And this defendant submits himself to the judgment of the court; and if on the whole case, a trust in L’Hommedieu for the use of Pratt shall result and be decreed, he prays an account, and that L’Hommedieu, as trustee of the said creditors, may account for the rents and profits of the furnace and real estate, and pay to the said creditors the amounts due them, by a short day; or that the premises may be sold, and the said creditors paid out of the proceeds, in their order of preference.
    The common replicátions were put in,
    January 20th, 1843, decree pro confeeso, was entered against all the defendants except Elias L’Hommedieu, Joseph E. Edsall and Daniel Haines.
    The substance of the testimony is as follows :
    Aaron B. Nones. — He believes the ore-bed was advertised to be sold on the 5th of December, 1838 ; Joseph E. Edsall and Elias L’Hommedieu were present on that day; Edward W. Pratt was also there ; also Daniel Haines, Robert A. Linn, Robert Lewis and Joseph M. Brown ; the sale did not take place on that day, but was adourned; he understood from Edsall and L’Hommedieu and several other creditors, that the sale was adjourned in consequence of an arrangement entered into between the creditors and Pratt, respecting the sale of the property ; he made no secret of why he, went; it was generally known and understood there, why he did go; he was asked by several if he came to purchase the property, and he answered “ yes;” there was, on the day the sale was advertised to take place, a meeting of persons, said to be the creditors of the Ham-burgh company and Pratt, of considerable duration ; Edsall and L’Hommedieu were present with the creditors; during that meeting, witness and others were waiting in expectation of the sale; he understood it to be a meeting confined to Pratt and the creditors; immediately after that meeting broke up, Pratt submitted to witness a proposition in writing, said to have been made to him at that meeting; witness saw Pratt come out of the room where the meeting was held, with the paper in his hand ; after the meeting broke up, witness had a conversation with Edsall, L’Hommedieu, and several of the other creditors, respecting what took place at that meeting ; Edsall and L’Hommedieu told witness that they had an understanding with Pratt respecting the sale of the property; that the sale had been adjourned for a day or two, to give Pratt an opportunity of reflecting upon the proposition ; witness thinks the paper Pratt handed him was in the handwriting of Daniel Haines; he does not know what has become of that paper; he took a copy of it on the same day. [Being shown a paper marked Exhibit E on the part of the complainants, he says] — That is an exact copy of the original paper handed to him by Pratt; it is in witness’ handwriting j he had a conversation with Edsall, L’Hommedieu, and several others, respecting the contents of that paper; he stated prior to the sale, and it was known that if an arrangement was made between the creditors and Pratt, witness would not bid at the sale; he thinks it was two days after that meeting of the creditors, that the ore-bed was sold ; and before the sale of the mine tract, or ore-bed, he distinctly understood that an arrangement had been entered into between Pratt and the creditors, by which L’Hommedieu was to purchase the ore-bed; he understood this from Edsall, L’Hommedieu, and others; it was in consequence of that arrangement that witness did not bid on tlie property; he estimated the property to be worth $100,000; he had conversed with Edsall and L’Hommedieu respecting its value, and in making the estimate, relied more particularly upon what Edsall told him, than what any one else told him | when the sheriff sold the ore-bed, Joseph II. Pettis, of .New York, was present, aud, witness thinks, bid upon it; he does not; know why Pettis commenced bidding, but while he was bidding, witness went to him and told him it was foolish for him to bid, for an arrangement had been made with the creditors, and ho, Pettis, know what the arrangement was ; witness interfered and Pettis stopped bidding; recollects Pratt’s calling Pettis out and speaking to him respecting his bidding, and thinks Edsall and L’Hommedieu were present; that is his impression ; the amount of what Pratt said, was, that Pettis knew what the arrangement was, and Pettis’ bidding was only hurting Pratt; at a subsequent day of the same month, the Hamburgh property was sold, and all was sold under the same understanding; recollects, while he was up there, hearing about a loan for $30,000, to be made on the property; understood distinctly from Edsall, L’Hornmedieu, and others, that the property was to be sold, and L’Hommedieu was to buy it, iu order to perfect the title and enable him to make a mortgage; the sum stated to witness was $30,000, which sum, it was said, would be sufficient to pay off the debts of the company, and to give Pratt $2000 with which to carry on the works; the property was to remain in possession of Pratt, and after the debts were paid, was to be re-conveyed to Pratt; witness saw David Ryerson there, and heard him speak about this loan, but does not remember that it was in the presence of Edsall and L’Hommedieu; he heard Ryerson speak of it the same afternoon the arrangement was made between the creditors and Pratt; Ryerson confirmed to witness what he had heard from others, that Ryerson was either to loan, or procure a loan of $30,000; witness has had conversation with Edsall since the time above spoken of; he understood Edsall then, as he had always understood him, that when Pratt complied with the lease, the property was to revert to him; recollects distinctly of having heard from Mr. Haines, Edsall, and several other of the creditors, that the reason why the clause for the lease to Pratt was not inserted in the agreement, was because it would show a collusion between Pratt and the creditors to the agreement, and vitiate the sale; knows that Pratt requested them to execute an agreement to give him a lease and the right of redemption, prior to the sale, and they declined for the reasons witness has stated.
    Cross-examined. — "When he went to attend the sale, he had about eleven or twelve thousand dollars with him, and authority to draw for as much more as he wanted; does not know that he could state the amount nearer; does not know whether Pratt owed witness’ brother anything at that time; believes Pratt owes his brother since that time; does not know the precise amount, understands it is large; he presumes the reason why Edsall and L’Hommedieu stated to him the object of adjourning the sale was, because they, as well as others, had heard and knew the object of his being there, as it was talked of, he believes, in the room among the creditors; they each stated it to witness, but whether they' were both together at the time, witness cannot say; others also stated to witness what had been agreed upon at that meeting; he thinks Mr. Haines told him the same thing; heard it from Mr. Brown also; and thinks Mr. Holcombe told him the same thing; in conversation with Edsall and L’Hommedieu and Holcombe, and several other creditors whose names witness did not know, who said it was a first-rate arrangement for Pratt, witness said he would not bid; Pratt was present at some of the conversations ; Petris bid on the property, but whether to an amount exceeding the executions, witness cannot say; his impression is, he did not j at the sale, Pratt called Pettis apart from the place where they were selling ; at that time L’Hommedieu was near enough to make a bid 5 we were all within a few feet of each other, and he supposes Edsall and L’Hommedieu heard what Pratt said to Pettis, as witness heard it; after the adjournment of the meeting of creditors at Hamburgh, Edsall and L’Hommedieu stated the particulars of the loan, and again, at Newton, Mr. David Ryerson told witness about the loan; Pratt was present at the time.
    Direct examination.- — Witness distinctly understood at the time, that L’Hommedieu was to purchase the property for the benefit of Pratt and the creditors, and to perfect the title in L’Hommedieu; he was prevented from purchasing the property on account of that understanding, and should have purchased it if it had not been for that understanding.
    Franklin Holcombe, for the complainants.
    — Was employed and connected with the Hamburgh company a portion of the year 1838, as agent for the company ; was living at Hamburgh in 1838, when the sheriff advertised the ore-bed for sale, and was present at the public house where the property was advertised to be sold, when the meeting of the creditors was held there, and saw Pratt there, Aaron B. Nones, Elias L’Hommedieu, Joseph E. Edsall, Brown, and other creditors of the company ; the sale was adjourned from Hamburgh to Newton for a day or two; understood Nones had come there to be a bidder at the sale; so lar as witness understood, it seemed to be known that Nones was there for that purpose; understood Pratt and the creditors were about effecting an arrangement, and that was why the sale was postponed ; at the time of the adjournment to Newton, witness understood that a loan was to be obtained on the property, and a lease was to be given to Pratt; understood Pratt was to have a right of redemption of the property, to be inserted in an article; that L’Hommedieu was to be the purchaser j the amount of loan talked of was $30,000, or so much less as the debts of the company should prove to be; understood L’Hommedieu was to purchase the property in trust, for the purposes mentioned; the facts witness has mentioned were generally talked of among the creditors, Brown, Robert Lewis, Pratt, Edsall, Henry J. Simpson, William Simpson, Francis Hamilton ; he had no conversations direct with L’Hommedieu on the subject, but heard him make some statements on the subject; L’Hommedieu stated he had agreed to give a lease to Pratt for the property.; witness has no strong, distinct recollection of it, but his impression is, he saw Edsall in conversation with Nones; witness was present at the sale at Newton, a day or two afterwards, and understood the sale' took place on the terms he had heard of at Hamburgh ; he had no conversation with. L’Hommedieu on the subject, but had considerable conversation with Edsall, at Newton, at which Edsall stated to witness the understanding under which the property was to be sold, and that Pratt had consented to the sale on the terms talked of; Edsall stated that he and some of the creditors preferred giving the lease to witness, because he was practically better acquainted with the business than Pratt was ; Edsall afterwards said, that on consultation with the creditors, his, Edsall’s, proposition was rejected, and Pratt’s name put in the lease; witness understood the principal object had in view in Belling, was to secure their claims, by uniting and perfecting the two titles in one person ; witness means by the two titles, the Hamburgh and Clinton companies; the ore-bed belonged to the Clinton company, but the Hamburgh company derived their ore from it; he does not know that he had any distinct conversation with Edsall, as to who was to make the loan, but that was a matter generally understood; witness understood the loan was promised ; Ryersou said, in witness’ presence, he would undertake to procure the loan, if the title could be perfected in one person ; he said the money was to be secured by bond and mortgage on the property ; the creditors were to unite, in proportion to their shares, in that bond, to guaranty the payment of the money ; witness understood this arrangement prevented Nones from bidding at the sale; it was considered that if there was any written agreement between Pratt and the creditors, prior to the sale, it would vitiate the sale; it was pressed on the part of Pratt, to have the agreement executed previous to the sale; witness supposes Pratt to have relied on their verbal promises, and on their honor; Pratt requested witness, a very few minutes before the sale, to go and get from the creditors a renewal of their promises, and they began crying the sale before witness had seen them all; he spoke to Joseph M. Brown and William Simpson, when they commenced crying the sale, and witness desisted going to any more ; Brown said the agreement with Pratt should certainly be carried into effect; it was the understanding that the Hamburgh company should go on and settle with the creditors, in order to ascertain the amount of the respective debts j witness and Pratt went on with several of the creditors to ascertain the amount of the respective debts; le believes that Pratt, in the company’s office, in the presence of witness, did call on Edsall for his account; there was considerable talk about Eds'all’s account; he said Horace, his son, was making it out; he never rendered his account, to witneess’ knowledge - he said Horace had made it out up to some particular date, and he wanted it examined and passed upon up to that date; witness thinks Pratt waited at Hamburgh some days for the purpose of getting Edsall’s account; thinks the clerk of the company was sent to Edsall to get his account, but cannot say how often ; the Hamburgh company had a store on their premises, where they sold dry goods, groceries, &e.; Edsall had x running account with the company for two or three years; he purchased a pretty considerable quantity of iron from the company; also a pretty good account for store goods ; he was in the habit of giving orders on the store ; on one of the company ledgers the account against Edsall, witness thinks, was something like $1000; on another ledger there should be an •account for a boat load of iron, twenty-five or twenty-seven tons ; the iron must have been worth about $30 per ton ; there were other charges against him on that ledger; there was another account tor iron against Edsall, which should be upon that ledger, for about seventy or eighty tonsEdsall had other iron, at one time about fifty-three or fifty-five tons ; knows tin1 fact of Edsall and L’Hommedieu taking possession of the pro* perty of the Hamburgh company; recollects Pettis’ bidding for the ore bed.; did not hear L’Hommedieu and Edsall say anything to Pettis about his bidding, but Edsall requested witness to go to Pettis and stop his bidding ; and also requested Pratt to go to Pettis, and Pratt did go and stop his bidding.
    Cross-examined. — His impression is, Pettis bid the property up to an amount exceeding the two executions; he is under the impression there were but two bidders, Pettis and L’Hommedieu ; from information, he should say Edsall furnished the principal supply of coal for the first blast the company made, and furnished some wood ; has heard it said he furnished the company with one team and one wagon, a three-horse team ; the company got grain and flour and feed at his mill; the company never made out their account in full against Edsall, to witness’ Knowledge.
    Direct examination. — At Newton, the evening before the sale, Edsall proposed an arrangement to have L’Hommedieu bid off the property without any arrangement at all as to the said sale, and to have three or four join in the arrangement; and requested witness to communicate it to Pratt, and see if he would go into it; said the object was to transfer the property and cut off all the other claims; Pratt was to come in for a share; the arrangement was to be effected by breaking up the other arrangement; L’Hommedieu called witness aside, and asked him if Edsall had made a certain proposition to him, that he thought very well of the proposition and he was willing to go into the arrangement; witness started to communicate it to Pratt, and found he had gone to lawyer Thomson’s; and witness placed himself in a situation by which he supposed he should see him, but missed him, and soon after'saw Edsall, who said to witness, I thought you said you’d see Pratt; I have seen him and spoken to him, supposing you had communicated to him ; the captain said he’d think of it, but did not receive' the proposition very favorably.
    Cross-examination resumed. — The proposition of Edsall was, substantially, that four were to join in the purchase; on the 24th September, 1838, there was a sale of the personal property of the Hamburgh company, consisting of teams, wagons, wood, charcoal, &c., necessary to carry on the furnace, the furnace then being in full blast; Edsall purchased most of this personal property, and told witness he had made arrangements with the other purchasers, so that he had control of pretty much all the personal property; Edsall made a verbal arrangement with Pettis and witness, by which they were to have the stock, wood and coal, teams and tools, to carry forward the blast; and that half the iron made, from day to day, was to be delivered to Edsall, until the amount of iron received should equal the amount that he had bought the personal property in for, when the balance of all that personal property was to be set over to witness individually ; we proceeded to use the stock and to deliver iron from' day to day; afterwards, a written consent was given by witness, that the iron Edsall had received and should receive under that verbal contract, might be applied by him to the credit of the Hamburgh company; the iron spoken of, as delivered under these agreements, witness supposes amounted to seventy or eighty tons, and which is the same parcel of iron above spoken of by witness; the written agreement spoken of by witness was brought to witness by Edsall and Hamilton; and that was a consent on witness’ part, that Edsall might apply the iron as above described; the paper was presented to witness at Hamburgh, and he signed it, and Hamilton signed it as a witness ; witness and Edsall have not been on sociable terms formerly; he had a suit against me; we are now on good terms; witness is not sensible of any feelings that would influence his testimony against Edsall.
    Joseph M. Brown, for the complainants.
    — In December, 1838, he was one of the firm of Brown & Lewis; that firm was creditor of the Hamburgh Co. and also of the Clinton Co. at that time; the firm was one of the party to an agreement between the creditors of the Hamburgh Co.; the creditors had a meeting, at which witness was present; Pratt was there; before the property was sold, there was an agreement that it should be set up and sold under an execution which Brown and Lewis had against the Clinton Co.; the written agreement was drawn up at Mr. Haines’ office in Hamburgh; previous to the sale by the sheriff, there was no written agreement with Pratt by the creditors ; but as far as witness understood, Pratt had the right to redeem the property if he complied with an agreement which was to be executed after the sale; the firm of Brown & Lewis had a judgment against the Clinton Co., and under that judgment an execution was issued, and under that execution the ore-bed was advertised to be sold; witness saw Pratt in New York; Pratt wished witness to adjourn the sale, witness replied that he was only one of the firm of Brown & Lewis, and could not adjourn it without Lewis’ consent; but if he could adjourn it, he would be willing to do so, provided he could be satisfied the money would be paid; Pratt then wished witness to go to Hamburgh with him, and witness consented to do so after Pratt had referred him to Morris Robinson, and Silas M. Stillwell, and W. C. Boardman, who gave witness the strongest assurances the money would be raised by a loan; witness went to Hamburgh with Pratt in company with Nones; when witness go * there, inquiries were made of him respecting the prospects of raising the money; he replied that Pratt had failed to raise the money, and wanted a still further adjournment, if it could be obtained; some of the creditors told witness it would be all folly to wait any longer, as the sale had been adjourned two or three times already; about this time the proposition of Mr. Ryerson was made; Ryerson proposed that, if the property could be so arranged as to be security to him, he would undertake to raise the money ; it was then suggested, either by some of the creditors, or by Ryerson, or Mr. Haines, that the property should be sold and bought in by L’Hommedieu, for the purpose of perfecting the' title in L’Hommedieu, in order that he might make a legal encumbrance on it as security to Ryerson; witness then suggested, that in case it was sold, Nones might buy it in; he thinks about this time he was asked by some of the creditors if he knew Nones, who he was, and what he was, and whether he had anything to buy it in with or not; witness replied, as near as he recollects, that he knew little or nothing about Nones, except that he had seen him at his brother’s office a few times ; and that when about leaving the office to go to Hamburgh, Pratt and witness stood near the door of the hall, when witness inquired of Pratt what he was waiting for, who replied that Nones was waiting for his brother to get some money; Mr. J. B. Nones came in and gave his brother some money, but what amount witness does not know, and then Pratt replied they were ready to go; it was talked over then among the creditors that it might be Nones had the money to buy it; and then Haines suggested it should be made known to Pratt in some way what Ryerson had proposed to do, and why it was advisable to have the property sold; this was to prevent Nones’ buying the property and frustrating the arrangement; these matters were communicated to Pratt; witness does not know whether Pratt interfered to prevent Nones from bidding, but Pratt and Nones were talking together; the sale was then adjourned for a day or two to Newton ; witness supposed the adjournment was made to give the creditors time to perfect the arrangement, because there-was but little time left, and it was feared Nones would buy it in ; witness did not understand that Pratt was to remain in possession of the property; L’Hommedieu was to become the purchaser, and take the title and possession of the property, and then he was to make a bond and mortgage to David Ryerson to secure the payment of a loan ; and L’Hommedieu was to give Pratt a lease of the property ; witness understood Pratt was to have the right of redeeming the property, on complying with that lease; witness had not, and presumes no creditor had, any object in view except to secure their debts; this understanding was had previous to the sale, and to keep Nones from bidding; it was understood that L’Hommedieu was to act as trustee for the creditors ; he understood that if Pratt had effected his loan in New York, the title would have been in Pratt in fee simple, with no encumbrance but the mortgage upon it; but as it was, L’Hommedieu would hold the property, to be deeded back by L’Hommedieu to Pratt, when Pratt complied with the agreement entered into with L’Hommedieu ; Edsall and L’Hommedieu have both told witness they were in possession of the property; L’Hommedieu has never rendered any account of his trust, and never offered to do so to witness; witness called upon L’Hommedieu two or three times to bring the matter to a close; L’Hommedieu offered to buy witness’ claim, and offered him fifty cents; and Edsall also offered to buy at fifty cents; two years ago this summer, Edsall met witness in Broadway, and offered him twenty-five cepts for his claim; at first, witness, when in Broadway, offered to take fifty cents, and Edsall offered twenty-five; at the time of the sale of the property, witness had an opinion as to the value of it; he thought if the ore-bed turned out as it was expected, it would be worth $20,000; he formed his opinion from Mr. Fowler’s opinion, who thought if it held out as it looked, it would be worth ten or fifteen thousand dollars.
    Cross-examined. — The agreement, as witness understood it, was that L’Hommedieu was to buy in the property, as trustee for the creditors, and to raise money upon it, if he could, sufficient to pay off the creditors; and witness felt sanguine, from what Ryerson said, that the money would be raised, without any if’s or and’s about it; he understood Ryerson to say that if a legal encumbrance could be given on the property, he had no hesitation in saying a loan of that kind could be raised ; and Ryerson said he had about $6000 in his hands, and had no doubt he could raise the rest through his friends in New York; Ryerson expressed his surprise that Pratt had not been able to make the loan ; he recollects that a majority of the creditors refused to give Pratt the refusal of the lease in the contract drawn up and signed by the creditors; when witness called upon L’Hommedieu, he wished L’Hommedieu to show him a statement-of what he had done in relation to settling up the affairs of the Ham-burgh company; L’Hommedieu said they would have to call upon the creditors for an assessment, to pay up some debts against the property ; witness told L’Hommedieu he wanted him to make out his statement and bring the matter to a-close, and witness was ready and willing to pay his share, in proportion to the debts witness held against the company; witness does not know that the creditors or company had any objections against L’Hommedieu and Edsall’s taking possession of the property and putting it into operation.
    Direct-examination resumed. — Mr. Haines, as counsel for some of the creditors, objected to its being put into this agreement that Pratt should have the refusal of the lease, because he said it would show an agreement between the creditors and Pratt, and let in the New York creditors through the Court of Chancery; by the New York creditors, was generally understood those who resided in New York, some of whom had judgments and some had not.
    Cross-examination resumed. — He thinks there were other creditors present when Mr. Haines gave his reasons, but cannot recollect who; thinks it was to the creditors generally, the reasons were given ; thinks some of the creditors there stated that they preferred giving a lease to Franklin Holcombe.
    Robert Hamilton, for the defendants.
    — Is acquainted with Pratt, one of the complainants, and has been since about the time he became connected with the Hamburgh Co.; has done business as an attorney, both for and against the said company, and became familiar with their affairs while they were carrying on operations at Hamburgh; after Pratt became concerned in the Clinton Co., he acted as attorney for them, and became familiarly acquainted with their business and affairs; at the instance of Pratt and other persons interested in the said companies, he entered appearances for them in mostly all the suits brought against them respectively, in all to which they appeared, except in the suits brought against the said Hamburgh Co. by Joseph E. Edsall and John Givans, in which cases he was employed for the plaintiffs; soon after Pratt became interested in the said companies, many suits were brought against them, in which judgments were afterwards obtained and executions issued to a considerable amount, and by virtue of which the sheriff advertised the property of the said companies in the county of Sussex to be sold; the property of the said Clinton Co., in the county of Sussex, being a tract called the mine farm, which was adjourned for several months — until December 7th, 1838 — at the instance of Pratt, to enable the said company, if possible, to meet the demands against them, or make some arrangement; the real estate of the Hamburgh Co. was advertised to be sold on the 14th of December, 1838; and certain creditors of the Hamburgh Co. (for some of whom he acted as attorney) having large demands against said company, and believing that the said real estate of the said companies would be sold by the sheriff, to prevent a sacrifice of the property, and to endeavor to secure their claims against said Hamburgh Co., entered into an agreement among themselves to buy in the property of the said company, and also the said mine tract of tne Clinton Co., in order to supply the furnace on the said Ham-burgh Co. property with ore, which agreement was finally concluded by the said creditors, and reduced to writing by me, at; their request, and signed by the parties thereto, on the 7th of December, 1838, a copy of which is set forth in the complainant’s bill; he was present when the object and terms of the said agreement were talked over and agreed upon, and signed the agreement, as attorney for one of the creditors; and, so far as his knowledge and belief extends, the said agreement was not entered into in pursuance of any arrangement or agreement with Pratt, nor had he any part or interest in the same, either in his own behalf or the said company’s, nor was there any offer or engagement on the part of David Ryerson to procure a loan'; Ryerson told the creditors — who doubted their ability to raise money to effect the purchase and carry on the business —that he would aid them in endeavoring to raise money for that purpose; the creditors, mostly, were averse to carrying on the furnace themselves, and therefore authorized their trustee, in the agreement, to lease the same, and to make sale of the same, also, if possible, for an amount sufficient to secure their debts; he recollects at the time, that Pratt made propositions as to how he would lease the premises, and wanted the creditors, in case they became the purchasers, to give him the refusal of the same, but the majority of the creditors expressly refused to give him the refusal of the lease, and were, at that time, opposed to his having the same, believing, as they said, that they could get the premises in the hands of a more efficient man; after the property had- been bought in by the trustee of the creditors some little time, Pratt assured them that if they would give him a lease of the premises and contract for sale, for $30,000, he had friends in New York who would assist him, and he would be able to raise the money; the creditors, not knowing what better to do with the premises, gave him the lease and contract for sale set forth in the complainants’ bill; from this time on, until L’Hommedieu and Edsall entered into possession of the premises, they were mostly unused and unoccupied; in January. 1839, part of the dam gave way, and the waters carried away part of the flume, and otherwise injured the premises; the creditors felt alarmed for the safety of the property, but forebore to act in the matter until May following, when Pratt was confined in Newark jail; Daniel Haines, Esq., and myself, on behalf of the creditors, went to the said jail and saw him about the middle of May, and inquired of him what he expected to do, and whether he had any objections to the creditors taking possession ; and Pratt then stated to us, that he had given up all idea of doing anything with the property, and that he relinquished all claim to the same, and said that the creditors might have taken possession before then, for he had relinquished the idea of doing anything with the property for some time previous; in June following, none of the other creditors being desirous or willing to carry on the furnace, L’Hommedieu and Edsall, by the consent of the other creditors, as I have always understood and believe, commenced putting the furnace in blast, rebuilt the dam, repaired the premises, and have been in possession ever since ; since they have been in possession, I have been present at one conversation between Pratt and Edsall, in which Pratt was negotiating for the re-purchase of the property.
    William W. Gillmau, for the complainants.
    — Is acquainted with Joseph E. Edsall, and has seen and is acquainted with the iron works called the Hamburgh Manufacturing Co. Witness was there in the fall of 1839 ; his object in visiting them was to purchase the same ; and he had an interview with Edsall at that time, in relation to purchasing the same, and had also another interview with him in the city of New York, in August, 1841, in reference to the same object; Edsall called upon the witness at that time; witness had written to LTIommedieu previous to that time, in relation to the situation and condition of the property, and he presumes that it was in consequence of that letter that Edsall called upon him ; the estimate Edsall then made of the property was $30,000, embracing the ore-bed ; Edsall valued the whole personal property at $15,000.
    Cross examined. — He thinks that Edsall over-valued the real estate, and it was his impression that he could have purchased it for $15,000; witness thought Edsall was desirous of disposing of the property, although he does not recollect that he so stated; Edsall and L’Hommedieu stated that if witness really wished to purchase the property, they were willing to enter into negotiations with him respecting it; and he stated in a letter to L’Hommedieu, that such was his intention when Edsall called upon him, as before mentioned.
    Re-examined. — Question propounded to witness: How did you get the impression that the property could be purchased for fifteen thousand dollars? Answer — Witness got the impression from Mr. Curtis that the property could be bought for $15,000, as it was somewhat involved, provided Pratt’s consent could be obtained, which witness thought might be done. Question— What did you understand by the property being involved ? Answer — Witness says that he understood that the property was in the possession of other persons, and that Pratt had a claim upon it, and unless his consent was obtained, there might be some trouble about it, and he might become involved in a lawsuit.
    Re-cross-examined. — Witness offered $12,000 for the property, although he thought it was worth much more; his impression was, that it was worth from $25,000 to $30,000; one offer only was made by witness; he thinks that they offered it to him for $30,000, and for no less sum ; witness supposed that they had an asking price and a taking price.
    Carlos J. Huntington, for the complainants.
    — He was formerly employed by the Hamburgh company as clerk ; he thinks that it was in the years 1837 and 1838 ; and he resided at Hamburgh during the time he was a clerk in said company, and became acquainted with L’Hommedieu and Edsall during that time; he was in Hamburgh at the time of the sale; soon after the sale he had conversations with L’Hommedieu at Ham-burgh, about the property; in the conversations referred to, L’Hommedieu stated that he was agent for the company and the creditors, and that he had bought the property in trust for the company and creditors of the said company, and that one of the objects of the sale was to secure a loan of twenty or thirty thousand dollars; what originated the conversation was, that witness had a claim of about $100 against the company, and he called upon L’Hommedieu respecting it, who stated that he knew nothing about it, that he was trustee for the company and the creditors only.
    Cross-examined. — Witness is positive that L’Hommedieu stated that he was acting as trustee for the company, and the creditors of the company, as the property, he said, was to go Back to the company, if the arrangement between it and the creditors thereof was carried out; witness cannot say what that arrangement was; he understood that Pratt had, or was to have a lease of it; L’Hommedieu stated that it was not their object to take advantage of the company, but merely to secure the claims of its creditors ; witness understood from this conversation, that the company was to have the property back, if they complied with certain conditions; the loan referred to was twenty or thirty thousand dollars, which was to have been obtained from David Ryerson; the loan, witness supposed, was to pay the debts of the company, though he does not know that L’Hommedieu so stated it.
    David Ryerson, for the defendants.
    — I recollect’ being at Hamburgh, at one time, when the property was advertised for sale, and several of the creditors of the Hamburgh Co. were present; it was the day before the mine property was sold at Newton ; I went to Hamburgh to attend the sale ; the sale did not take place that day, but was adjourned over until the next day, at Newton; my object in attending the sale vvas to aid, if X could, in any way, the creditors, to get them secured; several of the creditors about Hamburgh were particular iriends of mine; I supposed their claims were in danger; I understood that some arrangements were made amongst the creditors for the purpose of protecting themselves from loss; and I understood that L’Hommedieu was to purchase the property in trust, for the benefit of the creditors; and 1. understood, or was under the impression that Pratt was also consulted on the occasion, and understood the arrangements that were made; he was there, and I saw him conversing with Edsall, and, I supposed, about the arrangements; I understood the adjournment was made for the purpose of enabling the creditors to perfect their arrangements; I know that the creditors talked of making a loan for the purpose of paying off the debts of the company, and I told them that I would try and assist them in making the loan ; and I think I went so far as to tell some of them that I thought a loan might be obtained ; I am not certain, now, as to the amount that was required to be raised by that loan — I think somewhere about §30,000; the loan was wanted for the purpose of paying debts or demands against the property; when I made the proposition, or suggested the probability of their obtaining a loan, I told the creditors there that I supposed it would be absolutely necessary for them to pledge their own personal responsibility for the amount that would be required, and that they would have to make satisfactory security to the person who should loan the money; I think I never stated in the presence of Edsall or Pratt, or of any of the creditors, that I would procure the loan for them, or that the money should be advanced as soon as the property was sold; I don’t know that I would have advanced that amount upon the property if I had had it; but I had not any such amount to advance, if I had had a desire to do it; I never made that as a condition, if the property should be sold ; I think I never did agree to advance the money to the purchaser of the property, to be secured by a mortgage upon the same, upon the condition that the creditors would execute an agreement to be responsible to the mortgagee for any loss that might be sustained on account of the loan, in proportion to their several claims; I am not acquainted with Aaron B. Nones, but I think there was a person of that name at Hamburgh, at the time spoken of, and that I saw the same gentleman at Newton the next day, at the sale; I have no recollection of having had any conversation with him at any time about this business; to my recollection I never told Aaron B. Nones that I was to loan, or was to procure a loan of $30,000;' I think I never told' him so; I am very confident I never could have told him that I was going to loan the $30,000 myself, for I had no such sum at my command; I have no recollection of ever having any conversation with Nones upon the subject; I certainly never told him that I would make such loan myself, for I had no such sum to loan; I think I stated publicly, in the presence of the creditors and others, and it is probable that Nones was present, that such a loan might possibly be procured, and that I would endeavor to aid them in procuring such a loan; I had no knowledge, at that time, of any money that could be got for that purpose; I did, afterwards, at the request of the creditors, make some efforts to get this loan;; I went to New York, and spent some time there for the purpose of ascertaining whether the money could be had or not; upon reflection, I think, when the subject of procuring the loan was mentioned, it was understood that Pratt was to receive a portion of it, for the purpose of putting the furnace in blast; I think this was the understanding between the creditors and Pratt, and that some of'the principal creditors so informed me; the agreement the creditors had upon the subject was reduced to writing; I am not certain that I saw the writing, but think I did; and that the adjournment was made for the purpose of getting time to prepare the writing; I did afterwards, myself, loan to L’Hommedieu $3000, to pay on account of the purchase of the property made by him.
    Cross-examined. — In reference to this business, the matters are not strongly impressed upon my memory, for, at the time, I did not suppose I should be called to testify about it, and I find that my memory is not now as good as it formerly was ; at the time spoken of, there appeared to be a perfect understanding between the creditors and Pratt, but as to particulars I cannot speak ; I think, however, that it was understood that a part of the money to be procured was to go to Pratt, or some other person, for the purpose of carrying on the works, and by that means enable them to pay the debts due from the company • my impression is, that part of the money to be loaned was to be applied for the purpose of carrying on the works, and it was the insistment of Pratt that he was to have the management of it; and after some conversation apart, between Edsall and Pratt, I think Pratt insisted or desired that there should be some memorandum of the agreement between them made, and that it should not rest in mere parol; to which I think Edsall replied that he would have to abide by it as it then was, or something to that effect; I do not recollect that any reason was given by Edsall at the time ; at the time of the sale [ understood that L’flommedieu purchased the property for the benefit of the creditors, and was to hold it in trust for them until the debts and claims against the company were liquidated and settled ; I know nothing of any reversionary interest in Pratt, or any one else ; I understood that there was a written agreement between L’Hommedieu and the creditors upon this subject, but whether Pratt is a party to it or not I do not know; I do not know or recollect of any reason being given at that time why Pratt was not made a party to that agreement; if any was stated, I do not recollect it; I believe that the conversation spoken of by me above, as having' taken place between Edsall and Pratt, was before anything was said in reference to getting up the loan or carrying on the works.
    In chief. — I believe that a principal part of the creditors were without any liens upon the property, and would have been in danger of losing their debts, upon a sale of the property being made; the creditors thought it a matter of importance to secure the mine property as an appendage to the furnace, and to be connected therewith ; it was my impression that it would add much to the value of the furnace property, for the creditors to secure the mine property.
    John Black, for the complainants.
    — I have worked for Edsall and L’Hommedieu since they had the Hamburgh furnace, about nine months and a half; I had charge of the blast furnace; I had a conversation with L’Hommedieu before I began to work there for him and Edsall; I carried my claim in to L’Hommedieu, against the Hamburgh company, to know when he could give me-some money upon it; I cannot say in how long a time he said it would be before he could give me some money upon it; it was but a short time that he took ; he said he expected to receive some money from Mr. Ryerson ; I called three or four times, but did not get any money from him ; at one time my family was a good ways from here, and I called on him for some, as I calculated to go home, and he said he had not raised the money on the Hamburgh property that he expected; I asked him if Ryerson did not agree, or was not to advance money to pay on the debt, dr the debts; I did not understand whether all or a part of the debts were to be paid ; he said that was the understanding, that Ryerson was to raise some money, or advance some money, but had not done it; I then asked him if he had not the Hamburgh property in hand for the purpose of raising money on it; he said he held it as trustee for Pratt and the creditors; he spoke of its being hard times, and wished to know from me if I could tell him where he could find a man that would loan money on the property; I was at Ham-burgh once when Ryerson was there, and heard him say he would advance money to assist in paying the debts; there was a meeting of the creditors of the company, but cannot say whether it was the clay the property was advertised to be sold or not; Ryerson said he would advance the money, but I think he said nothing to bind him ; I think I have had conversations with some of the creditors, and was told by the person, whoever it was, that they had no more right there than he or I had, or any other person ; I mean by they, L’Hommedieu and Edsall ; I do not know that it was said by the person in what manner or way they held it.
    Cross-examined. — Does not know how far he was, or how far he was not, a party to the agreement with the creditors to purchase the property ; does not think he signed the agreement; his claim at that time against the company was about $1000; nothing has been paid to him upon it; he cannot say that he is certain his claim will be in a better situation if Pratt succeeds in this suit, than it is at present; he has not seen Pratt very frequently since this suit has been commenced, but when he has seen him they have spoken about the Hamburgh affairs, and Pratt has spoken about his rights or claims to the property, and witness thinks he has told him what he knew about it, and what he could testify to; Pratt has not told witness that if he succeeds in this suit witness would get his claim, or a part of it, secured, or anything like it, that he knows of, and witness has no assurance or expectation, from anything that has been said, that he should get his claim secured, any more than he ever had ; witness does not remember that he has ever told any person, since this suit was commenced, that he expected to get his pay, or anything to that effect; he has said, and always has said, that he had hopes some day that he would get his pay, but he did not know, and does not know now, that he shall ever get the first cent; the conversation witness had with L’Hommedieu, when he called for his pay, was, he thinks, in May, after the sale of the property ; he did not explain to witness how he held the property for Pratt; he only said he held it as trustee; before this, he told witness that Pratt was going to put the furnace in operation; there was some dispute between Edsall and witness three or four months before witness left; witness felt himself abused, and he supposes Edsall felt himself abused. Question — Was not Edsall the cause, and did he not occasion you to quit, the employment at the time you did ? Answer — He was not wholly, but in part, and myself also, in making the arrangement, so that we were both satisfied. Question — Was there not a dispute and ill-feeling between you after you quit; in your settlement, or other matters ? Answer — I do not think there was any dispute in regard to the settlement, but there was about some other matters after I came back from the west. Question — Have you not been on bad terms ever since ? Answer — I have no bad or willful feelings against Col. Edsall; I wish him no wrong, in any shape, that I know of. Question —Have you since then béen on good and friendly terms ? Answer — We have not met often since, and sometimes we spoke, and sometimes we did not, but spoke as often as we did before we had any difficulty.
    Robert A. Linn, for the defendants.
    — Was acquainted with the Hamburgh Co., and transacted business with them when they, were engaged in carrying on the works here. [This witness is objected to by the complainants, as being a party to this suit.] At a meeting had by their creditors, at one time, witness thinks it was estimated that the company owed to the amount of $30,000; this was some time before the sale of their property — some three or four months, perhaps; there were several adjournments after the meeting, and before the sales, witness thinks; when the creditors met, they concluded if they could not get the benefit of the mine property, that the property of the company would not be sufficient to secure the debts, and, therefore, they appointed L’Hommedieu as their agent, to buy the mine property; there was an agreement, as witness understood, finally concluded amongst the creditors of the Hamburgh Co., that L’Hommedieu should purchase the mine property for their use, and also the Hamburgh property ; witness was one of the creditors, and one of-the parties to that agreement; the object of purchasing in that property was to have the control of it, so as to save their debts; the sales of the property were adjourned several times, and, as witness understood, at the request of Pratt, who it was said had proposed or suggested that he could procure means that would save the necessity of the sale; witness does not know that he heard Pratt say this, but, at one of the adjournments, he heard Pratt say that he had $17,000'in escrow, which would be forthcomIng in a little time; witness did not exactly understand what it meant, as he had never heard the term used before; he was present at the sale made at Newton; the property was purchased by L’Hommedieu, for the benefit of the creditors; he did not understand that it was for the benefit of Pratt; witness understood at the time, from some persons there, tiiat if the property was purchased in for the use of the creditors, and the title could be made secure, David Ryerson had said he would aid and assist, or do what he could to assist them in procuring a loan for the purpose; witness thinks he did not hear Ryerson say anything himself on the subject; the loan, as he understood, was to be for the amount of flu; debts, which was about $30,000; witness does not know that he heard Ryerson say that the personal responsibility of the creditors would be required to obtain the loan, but that was said by somebody; witness made up his mind that he would not give his joint responsibility, but would give his own responsibility for the amount he might receive ; the object of procuring the loan was, as he understood it, to pay the claims of the creditors; he thinks he understood there was a lease of the property made to Pratt by LfHommedieu, and a contract for a sale to him of the premises; witness thinks he saw the lease; he thinks he was present when it was made, and there warsome difficulty about it; he understood that Pratt wanted more of the proceeds resulting from the blast or the works to enable him to carry them on, and less of them to be applied towards liquidating the debts; witness recollects at one time it was proposed by some one, that a lease should be made of the property to Joseph H. Pettis, or to Franklin Holcombe, but to this Pratt objected, stating that they were hit. hirelings, and he would not consent to it; witness does not know who were Pratt’s agents after he took the lease; there were several persons there who said they were his agents; it must have beesi several months after the lease was made to Pratt, before X/Hommedieu and Edsall took possession of th© works; during that time they were idle; while the works were thus idle, Edsall proposed to witness that as we were two of the largest creditors, we should put the works in ope= ration, but witness declined having anything to do with it, as he considered it a losing business ; our claims were more In amount than one-half of the whole debts due from the company.
    William Simpson, Jr., for the defendants.
    — The Ham-burgh company were indebted to him at one time; he assigned his claim against the company to L’Hommedieu; sometime before the sale, the creditors began to think they would not get their money; the creditors, before the sale, had several meetings to concert some measures by which to secure their debts; there was finally an arrangement made by them to buy in the property at the sheriff’s sale; the arrangement made was to buy in the mine property with the furnace property; witness thinks the talk was that it was deemed of importance to have that bought in with the other to secure their money, and they appointed L’Hommedieu as their trustee, to buy in the property for them; witness was at Hamburgh the day before the property was sold at Newton and he was also at Newton the next day, when the property was sold ; L’Hommedieu was appointed trustee to purchase the property solely for the creditors; witness never understood that Pratt was to have any interest in the purchase, or any other person except the creditors, to his knowing; the understanding was, at the time, that if the creditors purchased in the property, they would endeavor to raise money upon the property to pay the debts ; witness recollects that David Ryerson was at Hamburgh the day before the sale, and said that if the creditors would purchase in the property, he would endeavor to assist them in raising the money, and he spoke of one or two places where he thought the money might be obtained; they, the creditors, failed to raise the money; Ryerson said that it would be necessary for the creditors to give their own responsibility to enable them to raise the money; after L’Hommedieu purchased the property, witness recollects something about a lease and contract being made out from him to Pratt; he, as one of the creditors, was consulted about the terms of it; there were a number of creditors together on that occasion, and consulted upon the subject; something was said about the prices of the wood and ore that he was to pay, and there was a difficulty also about some money that Pratt wanted the creditors to raise for him, to help him along with the works; there was also a difficulty about some money required by Pratt to be raised by the creditors for him, to aid him in putting the works in operation ; at first the creditors refused to raise any money for him, but afterwards we agreed to advance some, but a difficulty then arose as to the way in which it should be paid in; the creditors were willing only to pay in in small sums, as he went along with the works, and not to pay in the whole amount required by him; it was finally settled, however, and a lease, witness thinks, was made to him by L’Hommedieu; there was difficulty, also, he thinks, about the amount of the yearly payments that were to be made by Pratt, but he cannot state what the difficulty was, exactly; there were a good many of the creditors then opposed to driving on the works by themselves; witness thinks after Pratt got the lease, there were some stones drawn there by some of his hands, for the purpose of repairs, but nothing more was done, and the property lay idle through the course of that winter and spring, until L’Hommedieu and Edsall took the possession.
    Cross-examination.- — L’Hommedieu paid witness fifty cents on the dollar, on the amount of his claim; he gave his note for it; witness does not recollect whether there was anything said about a lease to Pratt on the day before the sale; he thinks there was something said about it at Newton, on the day of the sale; it was understood, at that time, that Pratt was to have a lease of the property; it was so talked among the creditors; witness does not recollect of any reason being given, at that time, why the agreement was not then executed; he does not recollect that Pratt was desirous this should be done before th< sale; he does not know that he was, or was not; witness does not think that he remembers all that took place among the creditors, at that time, nor the one-half of it; he thinks that Mr. Ryerson spoke, also, at Newton, of assisting to raise the money; he does not know but what it was talked, at Newton, about raising money for Pratt, to enable him to carry on the works; he thinks all these arrangements were talked over at Newton, on the day of the sale; he understood the object of raising that loan was to assist Pratt, so as to enable him to put the works in order; he understood that the creditors were to assist in raising tor Pratt the money required to put the works in operation; each one was to pay his proportion; he thinks $1500 was the sum that Pratt wanted ; the money spoken of to be raised by the assistance of Ryerson, was to go to pay off the claims of the creditors, as he understood; that, also, was talked of at Newton; it was understood, if this loan was obtained, that whatever the' property sold for, less than the amount borrowed, the creditors were to make up the deficiency ; the property was to be mortgaged for the amount borrowed, aud if it was not worth it, we were to make up the difference.
    In chief. — Witness meant, by the loan to assist Pratt, the money that was to be advanced to him by the creditors, as mentioned in the lease; the lease and contract, as made out to and with Pratt, are in conformity with the arrangement and understanding made and had at Newton, and was made out shortly after the sale.
    Cross-examination. — Witness saw the lease after it was drawn and he thinks it was in conformity with the agreement made with the creditors; he does not know that he ever saw any other contract that was made with Pratt, nor does he know of any other contract being made with him, except this lease; nor does he know that he ever heard of any other; he saw the lease, on the day of the sale, at Newton, that was drawn there; that lease, as he understood, contained the agreement between the creditors and Pratt.
    In chief. — After the sale, witness thinks it was, he met with some of the creditors, at Mr. Haines’ office in Hamburgh, on the subject of making out the lease to Pratt; it appears to him that Mr. Haines read the lease over then; witness almost forgets about it; he supposed that the lease aud contract spoken of was all one and the same thing; he may be mistaken about hearing the lease read over at Newton; it might have been the contract that he heard read there. [The paper marked Exhibit E 2 on the part of the defendants, being shown to the witness, and parts of it read over to him, he says] — It sounds like the same that was read over in Mr. Haines’ office, at the time mentioned, when the creditors met there; he is now satisfied that the lease was made out at Mr. Haines’ office, after the sale, and that it was the contract that he heard read over at Newton, and not the lease.
    
      John Vandegriff, for the complainants.
    — He was present at a meeting of the creditors of the Hamburgh company, at Ham-burgh, a day or two before the property was sold ; he recollects seeing Mr. David Ryerson there j there was a conversation at the time among the creditors that Ryerson would, or was about to raise a loan, to assist Pratt; he understood it so; the way witness understood it, and the way it was talked there, Ryerson was about to raise a sum of money for Pratt, and it was to be paid, so much of it to the creditors of Pratt, but he does not recollect the amount, and Ryerson was to advance some of it to Pratt, to enable him to go on with ihe works and keep Ihe furnace in operation; he understood that the real estate was to be set up and sold, but Pratt was to have it restored back after the sale, or something to that effect; he cannot recollect distinctly the express terms; he heard it talked of about the door, among the creditors; he did not understand who was to buy the property j he was at that time a creditor of the company to a considerable amount; he has no interest in it now; at that time witness was there for the purpose of looking after Ids rights; he was not at Newton the day of the sale of the property.
    Cross-examined» — The company wzs indebted to the firm of which witness was a partner, but not to him individually; the amount of the indebtedness was considerable; he thinks the debt due the firm is not paid, but he has assigned away his interest to William Edsall $ witness owed William Edsall, and transferred his claim to Mm, that is, his share of the claim, for the amount.
    In chief. — Witness understood that the property was to be sold at Newton on the day to which the adjournment was made, and that Pratt was to go on with the works,
    Samuel Truex, for the complainants.
    — Was at Hamburgh at the time the property was advertised for sale j David Ryerson was there; there was a meeting of the creditors of the Hamburgh company there that day; the understanding of witness was, at the time, that Ryerson was to raise, he thinks is was $30,000, for the purpose of paying the debts of the company ; L’Hommedieu was to purchase as trustee, between the creditors and the company ; that was the general report among the creditors; Robert Lewis, witness thinks, was the one who told him what the arrangement was at the time; his understanding at the time was, if Ryerson raised the money, and the property was sold, the company was to carry the works on.
    Cross-examined. — Witness had been, shortly before, employed by the company as clerk for them, and as an agent for them, so far that he sold goods for them and had a superintendence over their works j Mr. Howard was the principal agent ; witness thinks he commenced there about the 12th of January, 1838, and continued until about the 12th of August then next j he made contracts of purchases for them, and managed their business here; the creditors of the company about then manifested a good deal of anxiety about the safety of their claims ; a good many of them considered their money very doubtful, and he heard a number of them so express themselves ; alter Pratt had the lease, witness thinks he heard it from some quarter, but does not recollect that he heard it from Pratt, that he, Pratt, was to get some man in New York to purchase the property, and witness understood that Pratt and L’Hommedieu had gone to New York for that purpose; witness thinks the balance that was coming to him from the company was about forty-four dollars; one day he saw L'Hommedieu at the store, who offered fifty cents on the dollar lor the claim ; witness told him he would take it; he then said he had not the money by him, but would pay in a short time; witness never made a transfer of the claim to L’Hommedieuj he thinks he has heard it talked of among the small creditors of the company, that they were afraid of losing their claims entirely, by reason of the’ manv larger claims, which, he understood, many of them, were liens by mortgages, and therefore they were anxious to- have the property purchased in, for the common benefit of all; his understanding was, that the smaller creditors were fearful of losing their claims, if a sale of the property was made without some such arrangement.
    Joseph Sharp, for the complainants.
    — Was at Hamburgh at the time there was a meeting of the creditors of the Hamburgh company, when the property was under advertisement for sale, and was also present when some part of it was sold; David Ryerson was there the first day, but not the second, as witness recollects; witness had a mortgage at that time on a part of the property; there was a good deal of talk among the creditors at the time; witness went into the room, and Ryerson, Edsall, L'Hornmedieu and Pratt were all in there together; a little while after Pratt came out, and there was a general talk out in the other room amongst the creditors, and, as witness was concerned, he was talking with them ; and it was talked of making an arrangement with Ryerson for a loan, as he understood, of about $30,000; $4000 of the sum was to go to Pratt to carry on the business j and the same time, as he understood it, the money was to go to pay off the general creditors ; it appears there was an adjournment, and something was to be done at Newton at the day to which the adjournment was made ; at the time of the sale witness attended again j whilst the sale was going on, he was told by the creditors that it was agreed that L’Hornmedieu should bay the property for the benefit of the creditors and the company; he was to buy the property, as witness understood, as trustee ; witness had an intention to buy the lot that was subject to his mortgage; he did not buy, because he understood it was to be bought in for the benefit of Pratt and the rest of the creditors, and because Pratt was to have §4000, as witness understood, to go on with, and he was willing he should have it; his chief conversation with the creditors was with Robert Lewis, Joseph M. Brown and William Edsall, on the subject.
    Cross-examined.- — Question—Did you ever hear Pratt say, shortly after the sale of the property, that he had obtained a lease, or contract for a re-sale of the property, from Dr. L’Hornmedieu, after he had purchased it ? Answer — Yes, I did hear him say that he had such an article, and that Mr. Thompson had written it; I understood it was from Dr. L’Hornmedieu.
    He understood that the money that was to be raised by the loan, was to go to pay the creditors who were willing to come in and sign a certain article amongst them, to contribute their share of the sum that was to be advanced, to enable the works to go on; this he understood from Joseph E. Edsall; the claims of all the creditors generally, were to be bought up as cheap as they could be; L’Hornmedieu and Edsall, he understood, were to buy them up ; he does not know whose funds were to be used for the purpose of buying up these claims; he understood that the benefit the company was to derive from the sale of the property to L’Hommedieu, was the buying up of the outstanding debts at a discount; he did not understand that L’Hommedieu and Edsall were to drive on the property ; understood that Pratt was to do it; the reason why witness intended to buy the wood lot that was subject to his mortgage, was, that he thought if he could get it for a trifle, it would save him the necessity and expense of foreclosing his mortgage; L’Hommedieu and Edsall have trespassed upon witness, and he has prosecuted them; but that would have no effect upon the evidence he gives on this occasion.
    John H. Simpson, for the complainants.
    — Was present when the sale was adjourned, at Hamburgh ; was then a creditor of the company; they owed him three hundred and sixteen dollars for work and labor for ¡he company; was present at two or three meetings of the creditors of the Hamburgh company, in reference to the settlement of the debts, and the sale of the property of the company 5 L’Hommedieu and Edsall were both present at some of these meetings, and sometimes one of them, consulting j witness heard Edsall say he was a creditor to a large amount, but does not recollect of hearing L’Hommedieu say he was; has heard both of them say that L’Hommedieu had bought the property as a.trustee for the company, and the creditors and concern, so as to make title; L’Hommedieu was á general agent for the company and creditors, as witness considered ; he understood from them that Pratt was to have a redemption in some way, in case he should fulfill certain contracts; these contracts were to raise some certain payments for certain persons, preferred creditors 5 heard a general talk at a meeting of the general creditors, at which L’Hommedieu and Edsall were present, about their making a loan of David Ryerson, of $30,000.
    Thomas D. Edsall, for the defendants.
    — Was a creditor of the company at the time of the sale of the mine property, as one of the firm of Vandegrííf & Edsall; we made an assignment of this claim, and witness has no interest in it now; was at Newton at the time of the sale of the Hamburgh property, and signed the agreement among the creditors at Newton ; had bo knowledge, at the time of the purchase of the property, of any other object or purpose for the purchase, than is mentioned in that agreement ; it was his understanding that the written agreement embraced all the objects and purposes that the creditors had in view at the time; witness was present at several meetings of the creditors after the sale, to consult and determine what disposition to make of the property, as Pratt did not comply with the lease; these meetings were after Pratt had failed to comply with the article and lease given to him by the trustee j Pratt did not do anything abont the premises - towards putting them in operation, after he got the lease; the dam, or a part of it, had, in the meantime, gone away, and the property was unoccupied; it was while the property was in this situation that the creditors had the meetings spoken of; witness heard several of them intimate that they would rather lose their debt than have anything to do with driving the furnace; there was a meeting of the creditors just before L’Hommedieu and Edsall took possession; witness thinks he heard it reported by Mr. Haines, or some one else, at that meeting, that lie had seen Pratt, and that he had given up all hope of doing anything; he understood that Mr. Haines had been requested by the creditors to see Pratt; at the last meeting of the creditors, before JVHommedieu and Edsall took possession of the property, the creditors were desirous that they should do so, and appeared to be very anxious that they should go on; when they commenced to drive tiie works they furnished and provided everything with their own means, and have done so ever since; witness heard Mr. Abram. Walker, who was the agent oí' Pratt, say the day before he left the furnance, and after Pratt had got she lease, and in the month of February or March, that he was going to abandon the concern, as there was not any prospect of Pratt’s doing anything; Walker went from here to .New York; witness thinks lie recollects of Pratt’s representing about the time he got a lease for the property, that he had a man in New York who would buy the property ; the creditors 'were kept in suspense for some time by these representations of Pratt that lie was making efforts to sell the property and raise money ; he’fixed time after time when it would be accomplished, every week or every two weeks, that somebody would be up, according to his talk; witness recollects of L’Hommedieu’s starting to go to New York with Pratt, to see what could be done ; this was after consi lerable delay.
    Robert Lewis, for the defendants.
    — Resided at Hamburgh while the Hamburgh company were carrying on business; was a creditor of the company, as one of the firm of Brown & Lewis; they owed us, at the close of their company’s concerns, between twelve and thirteen hundred dollars; at the time witness made an assignment of his part of the claim to L’Hommedieu, the whole debt was upwards of thirteen hundred dollars ; he recollects a meeting of the creditors in Hamburgh, about the time the mine property was advertised to be sold; the sale of this property was adjourned from time to time; the claims against the company were, witness believes, generally considered very doubtful at that time ; he thinks the debts of the company were estimated at that time to be over $30,000 ; this estimate did not include the city debts, but was made up of the debts in the country ; it was made with the assistance of Pratt, or some of the agents of the company; one of the executions, by virtue of which the mine property was sold, was, witness believes, in favor of Brown and Lewis; the creditors were desirous of purchasing in the mine farm in connection with the furnace, so as to make them more valuable, and secure their debts | for the purpose of buying in that property, L’Hommedieu was appointed the trustee of the creditors, as he understood it ; after the sale of the property, when the lease was about to be made out to Pratt, witness was consulted as one of the creditors about the terms of the lease; there was also a contract of purchase given to Pratt, as he believes; he does not think that Pratt did anything at the furnace after he got the lease; the dam went away shortly after; witness recollects of his professing that he was about to raise money on the property, after he got the lease; and understood from him that he had a man in New York from whom he could raise the money; Pratt kept the creditors in suspense during the winter and spring, under the expectation that he would raise money on this property for the creditors; witness recollects of L’Hommedieu starting to go to New York with Pratt to aid him in effecting this arrangement ; on his return, L’Hommedieu reported to the creditors that Pratt was arrested and confined in jail ; the creditors met several times afterwards, to consult what to do with the property ; the majority of them were averse to embarking in the business; witness was strongly opposed to it ; he stated at the time that he should prefer losing his debt rather than for the creditors to embark in the business and spend any more money din the property, and he should be of the same opinion now j there was a proposition made at the time for the creditors to join and carry on the works; witness never heard any objections to any one who pleased taking the works and going on with them; he himself had none; at this time he should not value this property, including the mine occupied by Edsall and X/Hommedieu, at more than §20,000 ; he should think it would not soli for as much as that at this time ; he has never considered this property, since the failure of the company, or at 'the time of the sale, worth §30,000; witness presumes that any understanding which the creditors had made with Pratt was carried out with him in the contract and lease made with him, and that they gave him every indulgence, as long as there was any hope of his doing anything.
    Benjamin Hamilton, for the defendants.
    — -After Pratt got the lease and contract for the premises, witness knows of hie making representations here, from time to time, that he was about making arrangements to raise the whole money, and satisfy all the creditors j after Pratt got the lease, they drew some timber on the ground, witness thinks for the dam, and made some preparations for the dam; he knows of nothing else in particular being done; Abram Walker had ¡he works in charge at that time, as he understood, as agent for Pratt; he knew of Walker abandoning the premises in the spring, and heard him say that Pratt did not furnish moans, that he had disappointed him a number of times, he would give the whole thing up, and L’Hommedieu and Edsall might go on and do what they pleased with it; witness doubts whether this property was, at the time of the sale, or now, good security for §30,000.
    Alpheus R. Turner, for the complainants,
    — Has frequently conversed with Edsall respecting the affairs of the Hamburgh company ; on two or three occasions subsequent to the sale, had conversations with him about the sale of the property of the company, and the conditions of it; from the conversations with Edsall, witness gathered that the sale of the works took place, and L’Hommedieu bought them, for the purpose of perfecting a title, and obtaining a loan on the property ; the loan was to be made, according to Edsall’s statement, for the purpose of paying off certain debts of the company, and the residue was to go to Pratt, to enable him to carry on the business of the company, and Pratt had a time to redeem it in; the property was to go, as witness supposed, to Pratt or the company ; they were to have the reversion after the creditors were paid off; never had any conversation with L’Hommedieu; was present at the time the creditors of the company were assembled, and the sale was going on; heard previous to the sale, and at the time thereof, and it was then stated, that the property was to be sold as before stated, and that David Ryersou would obtain, or endeavor to obtain, a loan of $30,000, and that, in consequence of that arrangement, persons intei’ested in the property consented to the sale; understood there was a mutual arrangement between the parties interested, knows that this arrangement prevented any competition at the sale; saw Pratt there; there was, apparently, a good deal of interest felt in the sale of the property; there were a great many persons there; there was a general understanding at the time of the sale, that there was a negotiation going on between Pratt and the creditors of the company, respecting the sale of the'said property.
    Cross-examined.- — Previous;; and at the sale of the property, it was witness’ impression, and he believes that it was the impression of the creditors generally, and he was a creditor, that the property of the company was not sufficient to pay them; the reason that witness came to that conclusion, was not on account of the intrinsic value of the property, but on account of the bad management of the property, and the want of means properly to carry on the business.
    Re-examined. — At the time witness expressed his opinion as regards the company not being able to pay their debts, the said ore-beds did not belong to the company ; when witness spoke, on his cross-examination, about the company not being able to pay their debts, he did not mean to include the ore-bed; the ore-bed witness thought, if properly managed, was worth more than the whole of the company property.
    Joseph M. Brown, for the complainants.
    — [Exhibit A F being shown him, he says] — That the said paper, signed Joseph M. Brown, is in his own handwriting.
    Cross-examined. — Not long before the sale he met with the creditors of the company, at Daniel Haines, esquire’s, office, and then, from the best evidence that was adduced, the debts of the company were supposed to amount to between thirty and thirty-three thousand dollars 3 witness thinks it was upwards of thirty-two thousand dollars, according to the claims then presented j this was the sum claimed to bo due to the creditors for whom L’Hommedieu was to purchase 3. some of the claims above referred to were disputed by Pratt, and it was to be left to arbitrators to determine the same.
    Re-examined. — At the request of Mr. Haines, and other of the creditors, at the time the sale was to take place, he went to Pratt, to get him to consent to a sale of the property, without any agreement in writing as regarded the terms 3 witness went accordingly, and Pratt declined doing anything then, as he wished to consult Mr, Thompson before he did anything on the subject, expressing his fears that the creditors of the company might overreach him j the sale of the property of the company was then adjourned, to enable Pratt and the creditors to carry out the arrangement.
    Re-cross-examination. — Witness considered himself in the confidence of Pratt, and of the creditors, at the time of the sale' of the property of the said company 3 witness says that he was acting as the friend of Pratt, and of the creditors of the company, at the time.
    Joseph H. Pettis, for the complainants.
    — Was present at the sale of the mine property, at Newton, which sale of said property was first advertised to take place at Hamburgh, and after-wards adjourned to Newton 3 the reason why the sale of the said property was adjourned from Hamburgh to Newton, was that at Hamburgh, on the day the sale was to take place, the creditors and persons interested in the sale agreed to adjourn it till the next day j there was a good deal of negotiation between the creditors and the company j there was a meeting on that day between the creditors and Pratt, at the tavern in Ham-burgh ; Mr. David Ryerson was there; witness understood from the parties interested, that provided the sale of the said property was adjourned over to take place at Newton, he, Ryerson, thought he should be able to procure a loan of some $30,000, upon certain conditions, which were, that the said money should be paid to the creditors of the company, with the exception of from two to four thousand dollars, which was to be paid to Pratt, for the purpose of enabling him to carry on the works of the said company ; in pursuance of this arrangement the sale was adjourned to Newton, and Mr. Ryerson informed the parties that he could not effect the loan ; and then further negotiations on the subject took place; the sale was adjourned there once or twice; it was his understanding that it was agreed that L’Hommedieu should purchase the property, but in what capacity, whether as trustee or not, he cannot say, only it is his impression that Pratt was to have a lease of the property back , witness was anxious, as one of the parties interested, to have Holcombe’s name inserted in the lease with Pratt’s; at the time the sale was to take place, witness asked L’Hommedien whether the lease was to be made to Holcombe, or to Pratt and Holcombe, and witness being informed that it was to be given to Pratt alone, he informed L’Hommedieu that he should then bid on the property, and witness accordingly made two or three bids on it; he was then taken out by some of the parlies interested, who stated to him that he was injuring himself and his interests, and from their representations he ceased bidding; he cannot recollect who it was that spoke to him ; witness understood that L’Hommedieu was to buy the property, as well for the benefit of the company as for the creditors, and that Pratt was to have a lease of the same; at the time these negotiations were going on, a question arose whether an agreement to execute a lease to any person, before a sale took place, would be valid, and there was some disagreement on the subject; the lease, however, witness thinks, was executed after the sale; it was a part of the arrangement at Hamburgh, that L’Hommedieu should buy the property, in order that Ryerson should obtain a loan on it, as above alluded to; witness’ impression is that, during the negotiations at Hamburgh and
    
      Newton, it was understood that L’Hommedieu was to buy the property for the benefit of the company and the creditors of the company, and that he was to act in a capacity for the benefit of both; and witness is confirmed in that belief, from the circumstance that, on former occasions, L’Hommedieu had acted in that capacity; witness understood, at the time, that after the debts of the company were paid, the property was to revert to the company; his impression is, that such was the general understanding among all the parties interested, both the creditors and the company; the sale was made, witness thinks, at Newton, in consequence of a similar arrangement to that entered into at Hamburgh; but Ryerson not being able to make the loan, the property was sold, at Newton, to L’Hommedieu, both for the benefit of the creditors and the company; the desire appeared among all, to be, that the creditors should be paid, and that the company should go on.
    
      B. Williamson and H. W. Green, for the complainants.
    They cited Saxton 184; 3 Green 266; 2 Ves. 225; 4 John. Ch. Rep. 167; 4 Kent’s Com. 141-2.
    
      S. G. Potts and P. D. Vroom, for the defendants.
    They cited Saxton 274; 1 John. Ch. Rep. 429; Sugden 204-5.
   The Chancellor.

The answer of Edsall and L’Homme-

dieu admits that they are in possession, and the character of their possession. That Edsall took possession as mortgagee, and that L’Hommedieu, afterwards, as purchaser at the sheriff’s sale, and as trustee for the creditors, took possession of the premises not included in Edsall’s mortgage, and also of the Clinton mine farm, and that they afterwards agreed to unite in putting the property in repair and the furnace in blast, and in carrying on the business. L’Hommedieu admits he bought the Clinton mine farm and the property of the Hamburgh company, at the sheriff’s sale, under the powers and instructions, and for the sole purposes stated in the agreement of December 7th, 1838, and as trustee for the creditors therein named. Edsall, then, is accountable for the rents and profits of what he is in possession of, and, unless something has taken place to divest the right of the Hamburgh company and vest it in another, he is accountable to them. And L’Hommdieu holds subject to account, as trustee, and to be called upon to convey to the beneficial owners.

But these defendants deny that, they, or either of them, are subject to account to the complainants, or either of them, or that the complainants, or either of them, have any right to redeem, and say that the persons entitled to redeem, as against Edsall, and to call L’Hommedieu to account as trustee, are certain creditors of the Hamburgh company, including L’Hommedieu and Edsall, who entered into the agreement of December 7th, 1838, for the purchase of the property by L’Hommedieu, as their trustee, at the sheriff’s sale. This is so, if that sale can be sustained in equity.

On and before December 7th, 1838, the sheriff of Sussex had in his hands against the Clinton Manfacturing Company a fi. fa. issued out of the Common Pleas of Sussex, in favor of Robert Lewis and Joseph M. Brown, for $1008.27, and an execution from chancery, in favor of Nathan Smith, on a decree on a foreclosure bill, dated March 25th, 1836, for the sale of so much of the mortgaged premises as would be sufficient to pay the amount of the decree and costs. Under these two executions, the sheriff had advertised the Clinton mine farm, containing one hundred and nine acres and. fifty-seven hundredths, and the sale stood adjourned to the said 7th of December, 1838. There was due on the two executions, including interest, costs, and sheriff’s fees, but about $3500, and the encumbrance on which the decree in chancery was founded, was the first encumbrance, so that the purchaser at that sale would get a clear title. Both L’Hommedieu and Edsall had valued, this mine farm, about a month before, at $50,000, as appears by certificates under their hands, given in evidence. On this mine farm, Edsall held a subsequent mortgage, dated January 10th, 1838, for $4000. This farm was sold, at said sheriff’s sale, for $4041.

The same sheriff had in his hands, at the same time, five executions, or judgments at law, against the property of the Hamburgh company, on which he had also advertised their property for sale, viz.:

J. E. Ed sail’s execution, tested Nov. 29, 1837, for $1,934 85
John Gri vans’ execution, tested Dec. 1, 1837, for.... 131 15
Wm. Jackson’s execution, tested 3d Tuesday in
August, 1838, lor........................................... 816 48
Stephen Wray’s execution, tested 1st Tuesday in
September, 1838, for....................................... 1,071 75
Davenport’s execution, tested the same day for..... 2,861 55
Amounting, in all, to.............................$6,815 78

The answer of Edsall and L’Hommedieu says that these defendants, L’Hommedieu and Edsall, and other creditors of the Hamburgh company, deeming it important to the security of their claims against the Hamburgh company that the Clinton mine, from which the Hamburgh company got their ore, should be bought for the benefit of the Hamburgh furnace; and despairing of Pratt’s being able to pay or secure their debtsj met, several weeks before the day appointed for the sale of the Clinton mine farm, to consult as to the best means of securing their debts; and that it was then agreed among said creditors of the Hamburgh company, that if the Clinton mine tract and the Hamburgh property should be sold on executions, they would appoint one of their number to buy the same, for the benefit of-such of the creditors as should become parties to the agreement, in case no one should, at the sale, offer enough to pay the encumbrances and secure the said creditors; and that,at that meeting, the said creditors settled on most of the principle's of the articles of agreement afterwards executed on the 7th of December, 1838.

The arrangement of these certain Hamburgh creditors, then, was this: that, lest the Hamburgh property should not bring enough to pay their debts, they would appoint one of their number to buy the Clinton mine and the Hamburgh property. But how would the purchase of the Clinton company’s mine help pay the debts of the Hamburgh creditors, if it was bought at its fair value ?

This part of the answer further says that the debts and encumbrances against the Hamburgh property, to the best of the knowledge and belief, &o., exceeded $30,000, and that the debts of the Clinton company existing as liens on .the Clinton mine tract, exceeded $10,000. What had the liens on the Clinton mine tract to do with the Hamburgh creditors? And how is the amount of liens on the Clinton mine tract to account for the bid at which it was struck off, it being sold on a decree on tlie first encumbrance ?

Again, as to the Hamburgh lands, the answer says the debts and encumbrances against the Hamburgh company exceeded $30,000. What were the encumbrances to which they “would be subject in the hands of the purchaser at the sheriff’s sale ? The answer does not tell us.

The plain meaning of the arrangement made by those of the Hamburgh creditors who entered into the agreement of December 7th, 1838, was, that the Clinton mine farm was to be bought as a means of securing their debts against the Hamburgh company, which necessarily carries the idea that it was to be bought for less than it was worth, and prepares us against surprise from the testimony showing the means taken to prevent competition at the sale.

The agreement of December 7th, 1838, is signed by L’Hommedieu for himself and as trustee, and by Edsall for himself and William Riggs, and by eighteen other creditors of the Hamburgh company, by themselves, their attorneys or assignees. Edsall held, at the time, a subsequent mortgage on the Clinton mine farm, which would be cut off by the sale. Would he have suffered this mine farm, of the value of which his own estimate was $50,000, to be struck off to another, or to a trustee for these Hamburgh creditors, for $4041, without some arrangement by which his subsequent mortgage was to be provided for? Certainly not. And accordingly, the agreement itself authorizes the trustee, who was to buy at the sheriff’s sale free from this mortgage, to purchase and procure it from Edsall; and authorizes the trustee to raise, by bond and mortgage on the properties to be purchased, after they should be purchased by him for the said creditors, sufficient moneys to pay the purchase money thereof, and also sufficient to purchase and pay for the two Winslow mortgages and the Sharp mortgage on the Ham-burgh property. And it appears, by an endorsement on the back of the Edsall mortgage, dated December 10th, 1838, two or three days after the sale of the Clinton property to L’Hommedieu, the said trustee, that Edsall assigned his said mortgage, and the bond it was given to secure, to I/Hommedieu, for $4220, acknowledged to have been received by him from LMIommedieu. By this arrangement Edsall was silenced as a bidder, and it carries on its face an admission of these agreeing creditors, that they could pay at least $8200 for the Clinton mine tract, and that its value, beyond that, would be a means of securing their debts against the Hamburgh company. But what is the effect, beyond this, of this transaction, on the Clinton company and its creditors ? It is this: the Clinton company and its creditors have had their property, valued by two of the very purchasers at $50,000, taken from them, by this arrangement, for $4041, and this bond to Edsall still remains a debt against them.

But this was not all that was done to prevent competition at these sales. What had been done with and for Edsall could not be relied on as sufficient to secure to these agreeing Hamburgh creditors the purchase of the properties of the two companies at prices suited to their purposes. Something was necessary to be done to induce Pratt to use means to prevent competition; and the evidence showing what was done for this purpose is so consistent with the occasion and the purposes of these creditors, that there can be no good reason for doubting it. {The evidence on this part of the case is here examined.)

It is certain that, after the sale, a lease was made to Pratt for three years, and a contract entered into by LMIommedieu with Pratt, to convey to him the whole Hamburgh property and the Clinton mine tract, for $30,000, by deed of release, with the usual covenants against his own acts. The mortgages which then existed on parts of the Hamburgh property, amounting to $7701.75, were to be considered as part of the said $30,000. And this contract was made by LMIommedieu, who was trustee of all the said property for the Hamburgh creditors who entered into the agreement of December 7th, 1838. This is, of itself, evidence that the lease to and contract with Pratt were made in conformity with an understanding had and made before the sales. But the evidence is clear that there was such an understanding. True, the agreement of December 7th, 1838, did not state in terms that the lease and contract to convey should be made to Pratt. It authorizes and directs the trustee to lease all the Hamburgh property and the Clinton mine “ to some suitable competent person.” The reason why Pratt’s name was not inserted is obvious, and is shown by the testimony. The legal adviser saw that it would be putting on the face of the agreement evidence of the arrangement with Pratt, to enable these agreeing Hamburgh creditors to succeed in adding the Clinton mine farm to the Hamburgh property, at their own price. It is evident, from what passed before the sale, that Pratt relied on getting this lease and contract; and he did get them. And it cannot be disguised, under the circumstances and testimony in the cause, that he got them in pursuance of an understanding between him and the agreeing Hamburgh creditors had before the sale. The result, the fact that the Clinton mine farm was struck off to L’Hommedieu for $4041, free from all encumbrances, and all the Hamburgh property for $285, subject only to the mortgages, shows it. But there is an amount of evidence on this point that cannot be resisted.

The agreement among the creditors themselves is one thing; the agreement or understanding had before the sale, between those creditors and Pratt, is another. The lease and the privilege of purchasing were to go together; this is shown by the agreement itself, in which the Hamburgh creditors who signed it, united. And that Pratt was to be the lessee, and have the said privilege, and that it was so understood and agreed before the sale, there can be no doubt. (The testimony on this point is here examined.)

The answer of Mr. Haines shows very plainly, I think, the same thing.

The testimony shows that it was known among the agreeing Hamburgh creditors, when the agreement among themselves was drawn, that Pratt’s name could not be safely put in that writing, and that it was considered that it would vitiate the sale.

There was good reason for the caution used in not putting Pratt’s name in the writing, as lessee, with the privilege of purchasing. But he was to be the man, and he and the agreeing creditors so understood it. And the lease with the said privilege was, accordingly, afterwards executed to him.

There was, then, an understanding before the sale, which prevented a fair competition at the sale, and resulted in the sacrifice of the property. It is not necessary to advert particularly to what was said before the sale commenced, and while it was going on, to persons attending the sale, to prevent their bidding. Enough was done and said to effect the object of these agreeing creditors; and it was effected.

Under such an arrangement, and in view of the effect produced by the arrangement, the sale of the Clinton farm was unlawful as against the Clinton company and its creditors ; and the sale of the Hamburgh property unlawful as against the Ham-burgh company and its creditors. It would not only be disastrous in its consequences, but it would be a reproach upon the courts, to allow property to be sacrificed at sales on executions, by means of such arrangements to prevent fair competition.

It is unnecessary to consider that part of the argument for the defendants based on the idea of Pratt’s abandonment. The sale was unlawful from what passed before the sale.

The Hamburgh property, as before stated, was to be sold on five executions at law, of which Edsall’s was the oldest. The purchaser at the sheriff’s sale would get the property free from the liens of these executions, and subject only to the mortgages. Under the arrangement made between the agreeing Hamburgh creditors, among themselves, and between them as a body and Pratt, the furnace lot of fifty acres was struck off at $26; the lot of woodland in Vernon and Hardiston, of seventy acres, at one dollar; another wood lot in Vernon, of one hundred and seventy-five acres, at one dollar ; another wood lot in Vernon, of fifty-five acres, at fifty-five cents; another wood lot in Vernon, of one hundred and seven acres, at eleven dollars; another wood lot in Vernon, of forty-five acres, at sixty-five dollars; another wood lot in Vernon, of nine hundred acres, at sixty-eight cents; and a lot in Hardiston, of one and a half acres, on which was a storehouse and other improvements, at $180 ; so that the sale of all these eight tracts brought but $285 for the judgment creditors, neither of whom was a party to the arrangement, nor present at the sale, except Edsall; and his debt was, by the terms of the arrangement, to be paid.

Joseph Shai-p attended the sale, for the purpose, as he says, of buying the lot on which he had a mortgage, with the view of saving the expense of a foreclo-ure. He says he did not bid because he was told at the sale, by the creditors, that it was agreed that L’Hommedieu should buy the property for the benefit of the creditors and the company; in another part of his testimony he says for the benefit of the creditors and Pratt. He says his chief conversation on the subject was with Robert Lewis, Joseph M. Brown, and William Edsall, all creditors who had signed the agreement, and none of them having judgments against the Hamburgh company. Edsall, too, had mortgages on different parts of the Hamburgh property, and had the same inducement to bid, had it not been for the arrangement.

The effect of the arrangement and the sale under it, on the Hamburgh judgment creditors, was to displace their liens, and substitute for the liens of their judgments, a lieu for the book accounts of the agreeing Hamburgh creditors, in the shape of a title in their trustee, L’Hommedieu.

Again, Edsall had the first judgment lien. Would he have allowed all these Hamburgh lands to be struck off to L’Hommedieu at such bids, but for the arrangement that was made ? By that arrangement he was to get the amount of hisjudgment. By the agreement, the debts of the agreeing creditors, of which he was one, were to be paid out of the lands, including the Clinton mine farm, or out of the money which was to be raised by mortgage on the Hamburgh property and the Clinton farm.

The case appears to me to be very clear against the defendants. They cannot hold these properties against these companies and their respective creditors. Nothing can be done by the court in this suit, and with the parties we have before us in it, in reference to the Clinton mine farm. It cannot go to Pratt. It would be as unavailable to the Clinton creditors in his hands as where it now is. Nor can it go to Pratt’s assignees under the insolvent act, to pay his individual debts. And the receivers of the Clinton company are not before us in this suit. As to the property of the Hamburgh company, it will be declared that L’Hommedieu holds it in trust for the creditors and the company ; and it will be referred to a master to take an account of the issues and profits of the property, and of the debts; and all further directions will be reserved until the coming in of the master’s report.

Reversed to part, 1 Hal. Ch. 658; Same case, 3 Hal. Ch. 298

Cited in'1 Beas. 406.  