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United Kingdom House of Lords Decisions
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Cite as: 7 ER 684,  UKHL J60
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(1838) 7 ER 684, HL
Appeal from the COURT OF EXCHEQUER IN EQUITY
B e f o r e :
|Robert SMALL & Others|
A. contracted with S. S. and T. for the sale to them, in their own, names, of freehold and leasehold property, including mines and works for making iron; the purchase being made, in fact, for a numerous company, of which S. S. and T. were managing directors. Some difficulty occurring as to A.'s title, the time for completing the contract elapsed; but upon further treaty, S. S. and T. agreed to complete it, if A. would verify his statements of the capabilities of the property; and on his consenting, they deputed some of their co-directors, together with experienced agents, to ascertain the correctness of his statements. These persons examined the property and works, and the accounts kept by A., receiving from him and his agents all facility and aid for the purpose; and they reported to their constituents that A.'s statements were correct, and P. T., their partner and agent remaining on the property, with particular instructions to make further examination, made a similar report; whereupon a supplemental contract was completed, varied from the first by reducing the purchase money, and releasing S. S. and T. from personal liability for the unpaid instalments. After six months' possession by the agents of S. S. and T., and the company, working the mines, and exercising other acts of ownership in deterioration of the property, all the directors and P. T. filed a bill in the Exchequer, on behalf of themselves and all their partners ([6 Cl. and F.] 571), against A. and his agents, to rescind the contract for fraud. After replication to the answers, the plaintiffs, except T. and P. T., obtained an order of Court, though opposed by A., to amend the bill by striking out the names of T. and P. T. as plaintiffs, and making them defendants, and they amended the bill accordingly, and charged P. T. with collusion in the alleged fraud of A.
Held by the House of Lords (reversing the decree of the Court of Exchequer, except so far as it acquitted P. T. of the charge of collusion, and dismissed the bill as against him), that the contract could not be rescinded; first, because there was no proof of fraud (Lords Lyndhurst and Wynford dissentientibus); and secondly, because the purchasers did not rely on A.'s statements, but tested their accuracy, and after having knowledge, or the means of knowledge, declared that they were satisfied of their correctness..
If on the treaty for the sale of property, the vendor makes representations which he knows to be false, the falsehood of which the purchaser had no means of knowing, but he relies on them, a court of equity will rescind a contract so entered into, although it may not contain the misrepresentations; but it will not rescind without the clearest proof of fraudulent misrepresentations, and that they were made under such circumstances as show that the; contract was based on them (see [6 C1. and F.] pp. 330, 395, 444, 466, 478, 502).
If a purchaser, choosing to judge for himself, does not avail himself of the knowledge or means of knowledge open to him or to his agents, he cannot be heard to say he was deceived by the vendor's representations, the rule being caveat emptor, and the knowledge of his agents being as binding on him as his own knowledge ([6 Cl. and F.] pp. 338, 340, 351, 357).
It was not consistent with the rules or practice of equity to fix A. with the costs of P. T. after the charge of collusion against P. T. failed of proof (ib. 328). The acts and admissions of P. T. after his acquittal of that charge, affected the interests of the company as much as if he had continued a plaintiff (ib. 351, 473, 518; see also pp. 417, 501).
To make A.'s agents defendants, against whom nothing but costs was prayed, was a mere pretence to deprive A. of their evidence. Such a practice, is not to be sanctioned, as it gives an unjust advantage to plaintiffs, and prevents the real facts from coming to the knowledge of the Court; and  if ever allowed, it should be met by directing an issue (ib. 352, 433, 466, and 532).
Circumstances in which it would be proper to, direct issues (ib. 442, 443, 499, et seq., and also 532).
Senbble, a bill to set aside a purchase may be maintained by some partners of a company, including the actual purchasers, without making all the partners parties, against a vendor who is not a partner (ib. 327), et vice versa (ib. 529).
Semble, an order to amend after replication by converting a plaintiff into a defendant, though opposed by the defendant, is consistent with the practice of the Court of Exchequer (ib. 349).
Parol evidence cannot be received of acts or admissions which are not properly put in issue by the pleadings (ib. 350, 488, 516).
No weight is to be given to parol testimony which is contrary to the obvious construction of written documents, confirmed by the acts of the parties and their acquiescence, although hardly any length of time would bar them from redress against fraud, if proved (ib. 361, 393, 399; see also 410, 413).
All objections to the form and competency of an appeal to this House, should be made before the appeal is set down for hearing, so that it may be referred to the Appeal Committee (ib. 280).
Although the time for appealing from an interlocutory order in a cause has expired, still if the final decree is appealed from in time, the right to appeal from the order is saved (ib. 309).
The answer of one defendant cannot be read for a co-defendant, either as evidence, or to show what the issue is between the latter and the plaintiff; except where a defendant has been in partnership with a plaintiff, and in that case his answer may be read for the co-defendant, as an admission or declaration in partnership transactions. But if not tendered in the Court below, it cannot regularly be read on appeal (ib. 282, 304).
This House may, under circumstances, depart from the general rule, and, to satisfy its conscience, look into instruments that were not tendered to the Judge who made the decree appealed against (ib. 301 to 304).
Mr. James Attwood, the father of the Appellant, was seised of the fee simple of the Corngreaves estate, situate partly in Staffordshire and partly in Worcestershire, and consisting of about 250 acres, with a mansion and other houses, gardens, plantations, and certain works for the manufacture of steel and iron; and he was also seised of the mines under about 200 acres of that estate (see a fuller description, p. 241, infra). No, one of the mines was opened during his life. For several years previous to his death, the Corngreaves works were occupied by the Appellant, who there carried on the business of converting pig and refined iron into rod and bar iron, and also the manufacture of steel.
The said James Attwood and his brother, Matthias Attwood, were for many years in the occupation-first under a lease, which expired in 1821, afterwards as tenants, at will-of the Dudley Wood works and mines, the works consisting of four blast furnaces, two refineries, and one blast engine; the mines extending under 234 acres of land belonging to Lord Dudley, situated about a mile and a half from the Corngreaves estate. The principal business of these works, during the life of James Attwood, consisted in the manufacture of pig iron, part of which was sold and the remainder converted into refined iron. The minerals used in the manufacture of pig iron are coals, ironstone and limestone, and the cost of the iron depends on the costs of these materials, and on the charges for manufacturing them. The Dudley Wood works and mines were then worked by means of two sets of contractors, one set contracting to raise coals and ironstone, and the other, called furnace contractors, to convert the necessary materials into pig iron; and books of account were kept, called "yield books," by reference to which the quantities and cost price of the minerals used, and the quantity or "yield" of pig iron produced from given quantities of such minerals by each furnace, were constantly known or easily ascertained.
Upon the death of James Attwood, which happened in April 1821, the Appellant became seised of the fee simple of the Corngreaves estate, and possessed of his father's interest in the Dudley Wood works and mines, and from the 29th of September 1821, he became solely possessed of these works and mines, as tenant at will to Lord Dudley. He then discontinued the employment of furnace contractors, and committed the management of the furnaces to furnace men; he also discontinued, as he alleged in his answer, to keep "yield books;" but that allegation was controverted by the Respondents. He projected, at the same time, divers alterations on the Corngreaves estate, with a view of establishing there an extensive manufactory of pig iron from the minerals under that estate.
In September 1822, the Appellant became possessed, for the remainder of a term of seven years, of other works, since called the Netherton works, consisting of two blast furnaces, one refinery, and one blast engine, and nearly adjoining the Dudley Wood works.
In order to obtain a regular supply of ironstone for these works, the Appellant, in July 1823, procured the then existing lease of part of a colliery and mines; called the Wolverhampton colliery, to be assigned to him; and he soon afterwards agreed with the agent of the Duke of Cleveland to take a further portion of mineral ground adjoining thereto.
In the year 1825, a number of persons (571), by a deed dated the 8th of April in that year, formed a partnership under the style of "The British Iron Company," with a proposed capital of two, millions of money. The management of the partnership was committed to 16 directors, to be chosen and changed as in the deed mentioned; the Respondents R. Small, Shears, J. Taylor, Baily, Bland, Burton, Colby, Donaldson, Herring, Kerr, Logan, Mackillop, Morice, Onley, and J. Small, together with R. Wilson, since deceased, were appointed directors; and upon the death of Wilson, the Respondent, Leathley, was appointed a director in his place; and Phillip Taylor, a member of the company, was appointed general superintendent of the works. By an arrangement between the directors, the Respondents, R. Small, Shears, and J. Taylor, were appointed managing directors, and they and F. Baily, and S. Donaldson, were trustees of the company.
In the beginning of May 1825, the Appellant, being desirous of disposing of the Corngreaves estate, and of all his interest in the said mines, collieries and works, called with that view at the company's office in London, and had a conversation with the Respondents, R. Small and Shears, on the subject, without disclosing the name of the owner of the property which was offered for sale. On the 12th of May, the Respondent James, as the agent of the Appellant, called on the Respondent J. Taylor, and gave him a short and general description of the said estate and works., and stated that the price would be about £600,000, but did not then disclose to whom the same belonged. On the 18th of May, the proposal to sell being entertained, James informed J. Taylor that the property belonged to the Appellant, and thereupon an appointment was made for P. Taylor to meet the Appellant on the following morning. Several meetings between them then took place, James being present, and they entered into much discussion as to the advantages and capabilities of the said estate, mines and works. During the last of these meetings, James proposed that P. Taylor should accompany him to view the property. P. Taylor agreed, and accordingly, on the 31st of May, he and James arrived at Corngreaves, and examined that estate, mines, and works, and the Dudley Wood and Netherton works, and also went over and examined the Wolverhampton colliery. During the time that P. Taylor was at Corngreaves, he made various inquiries of the Appellant, relative to the mines and works, conversed with him on the subject of the alterations and improvements then intended by the Appellant, and expressed his intention, and the intention of those on whose behalf he was acting, to follow up the projected alterations, if they should become the purchasers, and to erect on the Corngreaves estate six blast furnaces for making pig iron, and to extend the mills and forges. P. Taylor made notes of these conversations and of his own observations, but did not communicate them to the Appellant.
In consequence of the report made by P. Taylor to R. Small, Shears, and J. Taylor, they wrote the following letter to the Appellant:
"39 Lothbury, June 6, 1825.
"Sir, We are willing to purchase your property, as offered to. Mr. Philip Taylor, and to sign an agreement to that effect upon the following terms, viz. purchase-money £600,000, to be paid as under: £25,000 upon signing the agreement; £200,000 on taking possession on the 10th October next, or sooner if convenient to, us; £100,000 on the 10th April 1826; £100,000 on the 10th of October; £100,000 on the 10th April 1827; £75,000 on the 10th October 1827; the four last instalments to bear interest after the rate of 5 per cent. per annum, from our taking possession of the property; but we are to have the option of paying said instalments, or any part of them, at an earlier period.
"This proposal is made by us under a complete understanding that you will afford Mr. P. Taylor every facility to ascertain the correctness of the representations that have been made to him respecting this property; at the same time we beg to observe, that although we consider it as a, matter of regularity to make this remark, we entertain no doubt that the facts will, fully confirm all that we have heard: should it prove otherwise in any essential point, this offer not to' be considered as binding on our part. We are, Sir, your very obedient Servants,
"R. SMALL, J. H. SHEARS, and J. TAYLOR."
On the 10th of June 1825, a meeting took place between the said three Respondents, together with their solicitor, and P. Taylor on the one part, and the Appellant with his solicitor, and Henry James, on the other part, when an agreement in writing was drawn up and signed by the Appellant and the Respondents, in substance and effect, as follows:
"Memorandum of Agreement made the 10th day of June, etc. The said J. Attwood agrees to sell to the said J. Taylor, J. H. Shears, and R. Small, and the said Taylor, Shears, and Small agree to purchase of the said Attwood, the freehold and leasehold estates, iron works, collieries, and other property mentioned in the schedule herein underwritten, for the price of £600,000, to be paid as hereinafter mentioned. And it is hereby agreed that the sum of £25,000 in Exchequer bills shall, on the signing of this agreement, be paid by the said J. Taylor, Shears, and Small, into the hands of Messrs. Hoare and Co. bankers, to the joint account of the said Taylor, Shears, Small, and Attwood, by way of deposit; which bills are to be paid over to Attwood, on giving possession as hereinafter mentioned. And J. Taylor, Shears, and Small agree to pay Attwood the further sum of £200,000 on the 1st of October next, and Attwood agrees, on payment thereof, and on the titles being accepted, to give full and complete possession unto J. Taylor, Shears, and Small; and at the same time, if required, to convey, etc. to trustees, to secure the residue of the purchase-money and interest, by the instalments hereinafter mentioned, and subject thereto, in trust for the purchasers, and Attwood agrees on his part within one month to deliver to the said Taylor, Shears, and Small an abstract of title to the property, and to deduce a good title thereto, with such exceptions nevertheless as are stated in the schedule to this agreement, and except that he shall not be required to show the lessors title to the leasehold property or their leasing powers. And Taylor, Shears, and Small agree to pay to Attwood the residue of the purchase-money by the following instalments: viz. £100,000 on the 15th April 1826; £100,000 on the 15th October 1826; £100,000 on the 15th April 1827; and £75,000 on the 15th October 1827; with interest for the same sums, at 5 per cent., to be reckoned from the 1st of October next until the day of payment thereof; such interest to be paid by equal half yearly payments, and to be secured by the joint and several bond of the said Taylor, Shears, and Small; and they agree to purchase and pay for by a bill, at two months' date, the following property at the time of taking possession, viz. materials of a steam-engine, the debts due from the contractors and workmen employed on the property, the stock of pig iron, refined metal, blooms, rods, bars; the stock of steel, ropes, chains, etc.; the canal boats, etc.; the ironstone at Dudley Wood, Netherton, and Wolverhampton, etc."
The schedule to which the agreement referred was to the following effect:
"Corngreaves estate consists of mansion house, gardens, and outbuildings, plantations, etc. in the occupation of J. Attwood and his under tenants, comprising about 250 acres, with the timber growing thereon, in the several parishes of Rowley Regis, Staffordshire; and Dudley, Worcestershire; and the township of Cradley, in the same county, 247 acres of which are freehold, and two acres or thereabouts copyhold. The purchasers will not be entitled to the minerals in 44 acres of the freehold land, such land having been acquired under an Inclosure Act, with a reservation of the minerals, to the lord of the manor. It is, however, understood that the land, under which the purchasers shall be entitled to recover the minerals, shall not be less than 200 acres, including the part already worked. J. Attwood will not undertake to make out a marketable title to pieces of land situate in Rowley Regis, containing about nine acres; nor to one acre three rods in the parish of Dudley, being an allotment under an Inclosure Act; but in case he shall not be able to make out such a title, he will enter into an unqualified covenant to the purchasers for quiet enjoyment, etc.
"Late Banks's Furnaces.This property comprises two, blast furnaces, refinery, engine, and buildings, held under Lord Dudley, on lease or agreement for a lease of which seven years are unexpired, subject to a rent of £350 per annum.
"Dudley Wood or Netherton Iron works. This property consists of 11 acres, on which four blast furnaces, two refineries, steam-engine, and sundry tenements and buildings have been erected; also the coal and ironstone mines, comprising 234 acres, subject to such several surface and other rents and royalties as are now paid by J. Attwood for the same; all which premises are held under Lord Dudley by J. Attwood as tenant at will.
"Wolverhampton colliery. This property consists of 71 acres of coal and ironstone mines, in the township of Wolverhampton, with the buildings thereon, held on a lease for a term, whereof three years are unexpired, with a covenant to renew for a further term of 21 years under Lord Darlington, subject to the rents and royalties thereby reserved; also 16 acres of coal and ironstone mine, of which a lease has been agreed to be granted by Lord Darlington, for a term not less than 14 years, subject to such rent and royalties as are agreed to be paid by J. Attwood; also all his interest in the wharf or basin at Wolverhampton; and the buildings, plant, steam-engines, implements of trade, etc. necessary for carrying on the iron and steel trade, which are upon, or connected with, the foregoing works and collieries, or such of them as belong to J. Attwood, are included in this purchase. "
Signed by John Attwood, John Taylor, James Henry Shears, and Robert Small; and witnessed by Phillip Martineau and Thomas Hewitt."
The Appellant having learnt, prior to the title to the estate being finally approved, that the said three Respondents and the other directors of the partnership were desirous to make a report to the members thereof, which should include the mention of the purchase of this property, wrote to the Respondent Small, objecting thereto, and reminding him of the stipulation of secrecy into which they entered until the title should be accepted. Mr. Small wrote to him in reply, on the 19th of August 1825, undertaking to delay the Report until he might ascertain from his solicitors that the title was approved of; and in four days after, he again wrote to, the Appellant, as follows: " We have this day (August 23d) been informed by our solicitors, that they have gone through the abstracts, and as they find no difficulties, except such as can very easily be removed by you, we do not longer trespass on the patience of our proprietors; and feeling assured of your concurrence, we are now making the necessary arrangements for circulating the report by tomorrow's post."
That Report, entitled "British Iron Company – Report of the Directors," was published on the 24th of August; it began thus: " During the time for negotiating for the various mineral estates which the directors have thought it important to secure for the company, they have been under the painful necessity of remaining silent as to the steps they were taking, at the same time that they were calling upon the proprietors for instalments. The prudential reasons for this course of proceeding being now removed, they take the earliest opportunity of briefly stating the most interesting facts connected with the undertaking in which they are engaged, by presenting to the proprietors the following report." After describing the mineral property and works obtained by the directors for the company at Abersychan and Aberystwith in Monmouthshire, Neale Vale in Glamorganshire, and Ruabon and New Bridge, in North Wales, they speak of Dudley Wood as follows: " An offer having been made to the directors of one of the largest and most celebrated iron and steel works, situated at Dudley Wood in Staffordshire, a treaty was concluded for the same, after the nature and capacity of the works had been fully investigated. At present there are six blast furnaces in full activity, producing 360 tons of pig iron per week; these are supplied with coal and ironstone from leasehold property at a moderate charge; but the proprietor having sunk to a, bed of coal, 30 feet in thickness, extending under 205 acres of his freehold property, with the usual courses of ironstone, lately commenced the erection of two additional furnaces, and proposed ultimately to make the total number 10 furnaces, for the working of which there exists an ample supply of coal and ironstone for a long period of years. Pits are already sunk, and steam-engines erected for raising coal to, any extent that may be required; and a new and excellent line of railroad is laid from the colliery to the works. The under ground workings being totally free from water and fire-damp, this coal is raised at a low price, not exceeding 3s. 8d. per ton for large furnace coal, even at the present rate of wages, although 11s.. 6d. per ton and upwards is paid for the same quantity at many of the surrounding iron works. Upon the freehold property are forges and rolling mills capable of manufacturing 200 tons of bar and rod iron per week, which iron is in the greatest estimation, the greater part of it being consumed by the manufacturers in the immediate vicinity. The steel works are now producing 20 tons of cast and wrought steel per week, which is well known to be of the best quality brought into the market."
On the 28th of August 1825, the Respondent, J. Taylor, accompanied by P. Taylor, went to Corngreaves, and examined the estate, mines and works. On the 26th of September, P. Taylor again went to Corngreaves, in the anticipation of the agreement being carried into effect, and thenceforth to reside there as superintendent of the works, and on the next day he wrote to R. Small a letter, part of which was as follows:-"Mr. Attwood is just about to depart for London, when I hope he will find all nearly prepared for him. I am quite satisfied that we are in safe hands, as to the taking the stock, and that the scale will rather (by his wish) turn in our favour." " There is plenty of money to be made from what we have bought, and a little time will bring the iron trade right again." In another letter, written by P. Taylor, on the 30th of September, to R. Small, Shears, and J. Taylor, he answers an inquiry made by Mr. Malton, one of their solicitors, respecting Mr. Attwood's right to the minerals under certain pieces of land comprised in the agreement. "The Directors," Mr. Malton inquires, "wish to be informed, by return of post, whether you consider the want of those minerals of so much consequence as to give up the contract, or as a matter for pecuniary compensation; and if so, what would be the amount of such compensation. It is not that a compensation is now to be taken, but we wish to know to what extent we ought to have money impounded for ultimate indemnity." Mr. P. Taylor, in his answer, writes, "The affair is an important one, not only as to amount, but as to the mode in which our treaty is concluded with Mr. Attwood, and I should regret that mere technical difficulties disturbed the good feelings of the parties, the maintaining of which is important to our well-doing." He then refers to part of the agreement in which Mr. Attwood stipulated not to be required to make a good title to certain pieces of land, but in case he should not be able to make such title, that he would enter into a covenant for quiet enjoyment (Vide supra, p. 242); and Mr. P. Taylor, after observing that such stipulation anticipated the difficulty stated by Mr. Malton, proceeds thus: "If the only difficulty is that the title is not marketable, but good to hold, I should think Mr. Attwood's covenant for quiet possession good, and if security for the performance is required, I should say the amount ought to be £1500 per acre at least, as we may place plant on the question able property, etc. 'I hope and trust that no difficulties will arise that cannot be, pleasantly got over; but such points ought to have been submitted to me before the 30th of September, the agreement having been made on the 10th of June. We are proceeding with the stock-taking, and I am certain it will be honestly done," etc. "I have gone through the iron and steel ledgers for the last year, and I am much pleased with their appearance. The connexion is a good one; good prices, steady customers, no deductions, allowance, or the like; no bad debts, and short credits. The connexion in the steel trade may be considerably extended by a little exertion. Nothing has been pushed or forced in this concern," etc.
In consequence of some delay and difficulty having occurred in respect of the Appellant's titles, a supplemental agreement was entered into and drawn up in writing on the 1st of October 1825, but was not then signed, on account of the absence of J. Taylor from London. This second agreement, between the same parties, recited the first, and that in pursuance thereof £25,000 in Exchequer Bills were paid in the manner therein mentioned, and several abstracts of titles to the freehold, leasehold, and other estates, proposed by Attwood to be sold, were delivered by his solicitors to the solicitors of R. Small, Shears, and J. Taylor, and were in a course of investigation, and certain objections were taken to them, some of which remained to be explained; and after further reciting that the time had arrived for payment of the sum of £200,000, and for delivery of the said Exchequer Bills to Attwood, and had his titles to the premises been, as had been at first expected, in a state fit for acceptance by the purchasers, the time would also, have arrived for giving them possession of the property, and that, in consequence of the then state of the titles, it had been agreed, that the first agreement should be varied, this agreement witnessed that, upon the delivery of the said Exchequer Bills, and payment of the said sum of ~200,000 to Attwood, in addition to any other payments required to be made by the said recited agreement on delivery of possession, J. Taylor, Shears, and R. Small, should be let into possession, for their own benefit, of so much of the said several estates and property as were then in the actual occupation of Attwood, and into the receipt of the rents and profits of the residue thereof, without such possession nevertheless, when taken, being, or being deemed or considered by Attwood as an acceptance of the titles, or as an abandonment on the part of J. Taylor, Shears, and R. Small, of their right to have all valid objections to the titles removed, and all defective evidence supplied by, or at the expense of, Attwood. And Attwood further agreed, that he, or his heirs, executors, etc., should proceed to remove all valid objections to the titles, etc. And it was further agreed, that instead of the said instalment of £75,000 being paid on the 15th day of October 1827, the same should be left on the security of the estates and property, at interest at four and a half per cent., payable half-yearly, and by way of mortgage, to Attwood, with a covenant to pay the same, as well principal as, interest, and to continue for 14 years from the 15th of October 1837. The agreement then provided for the further withholding the £75,000 after the expiration of 14 years, on the event of any valid object ion still remaining to the titles, and for the indemnification of the purchasers for any loss by reason of any such defect of title; but the other instalments of the purchase-money were to, be paid as provided for by the first agreement, which was to be observed and performed in all respects, save and except so far as it was varied by these presents.
Mr. P. Taylor having been informed by Mr. Attwood, who returned to Corngreaves on the 2d of October, of his reason for not executing this agreement, set off next day for Redruth, in Cornwall, and while at Bristol, on his way, he wrote a letter to R. Small. The following extracts explain the objects of his journey: " Last night, at about nine o'clock, Mr. Attwood returned to Corngreaves, and communicated to me what had taken place in London. I confess that I was very much chagrined by our arrangements at the works being broken in upon. The circulars were ready to go forth this morning, and tomorrow being Quarter-day, when iron-masters meet their customers, it would have been announced that we had taken the works." "Looking back is, however, of no use now, and I will therefore inform you that, at the earnest desire of Mr. Attwood, and prompted by my own anxious wish to do all in my power for the interest of the Company, I determined to set off immediately for Redruth, in order that I might explain circumstances to my brother, and either get him to return to London, or send you a regular authority to) sign the agreement in his behalf." "I will just remark, that I think Mr. Attwood's guarantee quite ample as respects L. Lyttleton's claim to the minerals in Cox's land. It was impossible to judge of the question from Mr. Malton's letter. The manorial rights do not, in this case, include the mineral, but the security is ample." On the 10th of October another meeting took place between the Appellant and R. Small and Shears, when a power of attorney was produced, to enable them to execute the supplemental agreement on behalf of J. Taylor; but the power appearing to have been executed by J. Taylor, as one of the directors of the British Iron Company, the Appellant adhering to his former resolution of not treating with any of them as directors of the said partnership, again refused to, execute the agreement, as appeared from the following extract of a letter written by R. Small to P. Taylor, on the same day: " Here we have been since the morning at 10 o'clock, waiting the lawyers from that time till one o'clock, when they came with Mr. Attwood. We have read over the deeds; had the cash ready to pay over; and when we came to the point, Mr. Attwood declines taking our signature for your brother, under the authority he has given us, as the said authority alludes to the British Iron Company."
On the 12th of October, P. Taylor wrote from Corngreaves to R. Small, Shears, and J. Taylor, a letter in which, after mentioning the arrival of Attwood there on the preceding day, and other matters not material to be stated here, he says, "My hope certainly was, that Mr. Attwood would feel disposed to retrace his steps, and conclude the agreement under the written authority of my brother. Although I believe he might have been urged to do so, still I feel a doubt as to the propriety of my following this course, not knowing how far such a result would meet your wishes, and the plans of your legal advisers." "I confess that when I contrast the evils, risks, and expenses which have been and are going on, owing to the doubts and difficulties brought before you, with the risks, arising from a different course of proceeding, I must deeply regret that an agreement was not closed at the appointed time, under the indemnity proposed. I have no reason whatever for any change of opinion respecting the value and desirableness of this property to the British Iron Company. The facts, which have recently come under my observation, bear out the representations made by Mr. Attwood." "have written to hasten Mr. J. Taylor's return, and I hope you will soon have him with you. Mr. Attwood will be ready to meet him. I will take such steps here as will prevent our sustaining any injury at the works, which are now getting into full activity (make on Monday 35 tons of bars and rods). The price of coals keeps up, and is even advancing."
On the same day, R. Small wrote to P. Taylor as follows: "Mr. Attwood, you say, is with you; and that he and Mr. James, in, your opinion, regret that this new objection was raised; were that really the case, Mr. Attwood ought to have made the due apology for trifling with us in the way he has done, and begged us to' go, on with the completion of our arrangements with him; instead of this, however, he appears to be satisfied to remain in quiet possession, and makes no demonstration of moving forward in the business. I cannot invite him to, town to complete, as I can do no more than I have already done, and all along have shown every readiness to do. However much I may regret the absence of your brother, as one of the managing directors and a party to this contract, at this most important period, when the deeds were ready for execution, I have still no right to' call him to town under all these circumstances. However much fraught with mischief our standing still here for the moment may be, it is the only measure which can be adopted for the present, and neither Mr. Attwood for himself, nor you for us, suggest even a hint at any remedy. I wrote your brother fully yesterday morning, and it remains to be seen what steps he may take or recommend to be taken in this unfortunate business. If any loss or inconvenience should fall on Mr. Attwood, he has himself entirely to blame, and I am quite sure he will unqualifiedly allow this." "You say, both parties are inflicting most serious evils on themselves by these delays; now I have only to say to this, that neither Mr. Shears nor I can by any possibility be considered a party to any delay, as we have all along been quite ready to perform our part of the contract, and the delay is attributable to Mr. Attwood alone, and not to us."
On the 13th of October, Mr. Shears wrote to P. Taylor thus: " Mr. Small and I feel assured that you have remained at Corngreaves with the best intentions, but we should have been glad if you had come up to have been present at the meeting of directors this day." "At the meeting it was determined that the solicitors should immediately give notice to Mr. Attwood to complete his sale on or before the 1st of November, or that we should consider the contract void, and expect the repayment of our deposit, with all expenses. By this course we are advised that we act without prejudice to our right as to any insufficiency of title; and the time between this and the 1st of November will admit of the directors having the advantage of the presence of Mr. J. Taylor and yourself. It would be uncandid and unmanly in one not to state, that not only the world out of doors entertain an idea that we have given, or agreed to give, much too high a price for this property, but that many of our directors appear to entertain the same idea; and that unfortunately for our comfort, Mr. Small and I, in spite of our wish to entertain a contrary opinion, are tainted with the same statement. I trust that we are all possessed of too high a sense of honour to think of cancelling an agreement upon a mere technical difficulty or imperfection, and acting up to that (although we were advised by our solicitors, that no, doubt was entertained by them that we could get out of the contract if we were not disposed to fulfil it), we were, notwithstanding you had stated your opinion that some mischief might have arisen from the delay of the last week, determined to make good the purchase, until after Mr. Attwood's refusal to execute the deed on Monday, and his declaration that he would not do so until Mr. J. Taylor should be again communicated with; but after that, and our subsequently stating formally to him, in the presence of all the solicitors and Mr. James, that if he did not execute the new contract upon the agreed terms of indemnity, we considered that the whole negotiation would fall to the ground, as we should not thereafter consider ourselves bound in honour, and our solicitors advised that we were not bound in law. It would be worse than knight errantry in us not to let the whole affair be subject to revision before the directors. We have therefore particularly to beg that you will not give any direction to, or make any communication to Mr. Attwood or his representatives, in respect of the property, lest it should be capable of being construed into an acceptance of the title. We presume that you will return to London, and expect that Mr. J. Taylor will also very shortly be here, as soon as we ascertain which, we will immediately convene a special meeting of the directors to meet you. I must entreat that you will consider that we are all thoroughly convinced that you have in this, as in all other affairs of the company, done what you consider to be for the best."
On the 20th of October, the Respondents, R. Small, Shears, and J. Taylor, proposed to the, Appellant, by their solicitor, Mr. Stevens, that if the Appellant would waive the point as to their personal responsibility, they would proceed with the contract. The Appellant agreed to, that proposal on the 21st, but afterwards, on the same day, Mr. Stevens, accompanied by Mr. Pontardent, then clerk to, Messrs. Martineau and Malton, waited upon the Appellant, and in the presence of the Respondent James, stated that some of the committee of directors; wished it to be ascertained whether the data given. by the Appellant to P. Taylor were correct, and they proposed that a deputation of directors should go to Corngreaves for the purpose of examining the property and works, and making such inquiries as might be deemed necessary. The Appellant on the next day consented to that proposal also, and accordingly, on the 27th of October, the Respondents, R. Small, William Leathley, and Stuart Donaldson, proceeded to Corngreaves.
The data, above mentioned to have been given to P. Taylor by the Appellant, to ascertain the correctness of which the deputation was sent, were statements written by P. Taylor, or by a clerk of the company, from notes of verbal communications made to him from time to time by Mr. Attwood, and from his own observations on the property and works while he was at Corngreaves in July 1825. These statements were transmitted by P. Taylor to his principals without being submitted to Mr. Attwood. He, however, admitted their general correctness as estimates, but whether they were estimates only, or statements of actual cost of manufacturing iron on the property for a particular period, was one of the main questions in the cause, in which they were referred tot as exhibit P. T. No. 1, being the first of a, series of papers furnished by Mr. Philip Taylor. The deputation, on arriving at Corngreaves, with the assistance of Mr. Harrison, Mr. Morrison, and Mr. Brunton, all scientific men, and of practical experience in mining operations, devoted the greater part of two days on that estate to the examination of the property, and of the books of account kept by the Appellant, and they had produced to them the ledger yield accounts, and furnace stock books of James and Matthias Attwood at the Dudley Wood works for the nine years ending 1821. While they were discussing these accounts in Mr. Attwood's drawing-room, he and Henry James and Richard Edwards, his clerk, from the next room, supplied other statements in writing by way of explanation of the P. T. papers. These explanatory statements, with observations on them by the deputation, were also exhibits in the cause, and they were referred to as the D. papers, meaning the deputation papers, numbered 1 to 12.
The deputation on the evening of the 28th of October left Corngreaves for Birmingham, whence on the 29th they sent the following paper to, P. Taylor, who remained at Corngreaves:
"Qu. 1170 tons of coals used in making 360 tons of pig iron; does this include what is required for the steam-engine, and for calcining the ironstone?
"Eight accounts, marked No. 1 to 8, are left with Mr. Taylor; Mr. Brunton and Mr. Taylor will examine the same.
"Mr. Taylor will send up the account of the recent production of the furnaces, say from 1st October 1824, to 1st October 1825.
"Qu. Mr. Taylor states: a considerable saving in the quantity of coal used in making a ton of pig iron; say between that stated to, be allowed, and the quantity actually used?
"Quantity allowed, 3 tons, 6 cwt. 2 qrs. 18 lbs.
"Quantity actually used only 2 tons, 16 cwt. 2 qrs., making a weekly saving of £37, or £1850 per annum on the six furnaces, and the same on the freehold.
"We find the quantity actually used, from the account taken from the books for a period of 11 years, to be 3 tons, 4 cwt. 2 qrs. 9 lbs.
"Mr. Taylor states the limestone used to be 10 tons, 3 cwt. 8 qrs., whereas we find from the books the quantity used to be 13 cwt. 20 lbs."
In reply to these queries, P. Taylor wrote on the following day to R. Small a letter, from which the following is an extract:-" Since you left me I have been constantly engaged in examining Mr. Attwood's books, and in comparing the statements, which he has exhibited, with them. There are still some points which I have not yet fully gone through, but shall be able to finish all, so as to leave this place tomorrow evening. I may observe generally, that although it would not be safe or prudent to estimate profits upon the close calculations which Mr. Attwood has recently exhibited to confirm the statements, he made at the time of his agreement for the sale of his property, still that these, appear to, me unquestionably to prove, that the data which he gave us at the time of the contract were more favourable to the buyer than the seller."
The deputation, on their return to London, made the following report to the directors, dated the 3rd of November 1825: "Having, in accordance with the resolution of the Board of Directors of the British Iron Company, on Tuesday the 25th ultimo, proceeded to Dudley Wood and Corngreaves, and, assisted by Mr. Brunton and others, having with every diligence and attention of which we are capable examined the books and other documents submitted to us by Mr. Attwood, we have come to the conclusion that, in a comparison with the paper which purports to contain the principles and calculations, on which the negotiation was originally founded, Mr. Attwood has substantially redeemed the pledge he had given, of proving that the information upon which the managing Directors concluded their contract with him is correct and well founded. S. Donaldson, W. Leathley, R. Small, Chair-man."
Some objections were still made by the purchasers to complete the contract, but on the Appellant consenting to a reduction of £50,000 from the price first agreed on, and to release them from personal liability, they entered into, a third agreement with him on the 4th of November, and the same was endorsed on the second agreement before-mentioned, and was as follows: "Whereas, since the within written memorandum of agreement was prepared and perfected ready for execution by the said several parties, but before the execution of the same by them, it hath for divers good causes been agreed to vary and alter the same, and also the therein recited agreement, in manner herein mentioned, but not further or otherwise: now these presents witness, and it is hereby agreed by and between the parties to these presents, and to the within written memorandum of agreement, and the memorandum of agreement thereby referred to, that the said J. Taylor, J. H. Shears, and R. Small, their heirs, executors, and administrators, shall be, and they are hereby exonerated and discharged from all, and all manner of personal liability to the payment of any sum or sums of money whatsoever, by reason or means of their having been parties to and signed the said recited memorandum of agreement, or from any act whatsoever in any wise incidental thereto, or consequent thereon; save and except that they shall be and remain answerable for and liable to, the payment of the interest on the remaining instalments of the said purchase-money, as in the said within recited agreement expressed, so long as they remain in possession of the said hereditaments and premises, or any part thereof, and that the said J. Attwood shall be satisfied, as his only means of enforcing the payment of the subsequent instalments of the purchase-money mentioned in the said recited memorandum of agreement, with the security of the hereditaments specified in the said memorandum of agreement, and which said hereditaments are to be conveyed to trustees in manner in the within written agreement expressed, and with the usual powers or trusts for sale for enabling the trustee or trustees for the time being to sell and dispose of a competent part or parts of the same hereditaments, and thereby raise and pay such of the said instalments as from time to time shall fall due, and from time to time, when and as the same shall fall due, with the respective interest then due in respect of the said purchase-money, or any part thereof, and with all necessary powers and authorities to give discharges for the purchase-monies, and exempting purchasers from looking to the application thereof, etc.; it being, nevertheless, understood and agreed, as between the parties, hereto, that no sale or sales are to be made, or proceedings. taken with a view thereto, until the said J. Attwood shall have given to the said J. Taylor, J. H. Shears, and R. Small, six calendar months' notice previous to each sale, nor until the expiration of the time mentioned in such notice, etc.; and it is hereby agreed, that the sum of £50,000 only is to be paid to the said J. Attwood on the 15th of April next, the further sum of £50,000 by the within recited memorandum of agreement provided to, be paid on that day, having been agreed by and between the parties hereto to be abated from the said purchase-money therein mentioned." Then followed a clause for extending to this agreement a provision for a, reference to arbitration as contained in the agreement of the 1st of October 1825."
Both these agreements were executed on the said 4th of November by the Appellant, and the Respondent, R. Small, on their own behalves respectively, and by Philip Martineau, as the attorney of the Respondents, Shears and J. Taylor; and on the 9th of November possession of all the estate and works was duly delivered to P. Taylor, as the agent, and on the behalf of the said three Respondents.
From that time to the month of May 1826 the prices of pig and rod iron fell to an alarming extent, and there was great commercial distress in consequence of the speculations of 1825, so that the three Respondents apprehended some difficulty to provide for the instalments of the purchase-money, or even for taking up a bill which they had accepted for £36,316 for Mr. Attwood, in payment of the stocks of steel, iron, etc., which they had taken at a valuation. Accordingly, in three letters which they respectively wrote to P. Taylor, on the 29th of November, they communicated to him their apprehensions, and asked him to get indulgence from the Appellant. On the same day, the Respondent, J. Taylor, wrote to the Appellant a letter, from which the following is an extract: " I am not one of those who think that we have any right to claim much indulgence or favour from you, still I feel convinced that if you can render us a service, your wish would be to do it. On my return to London, I find that our account will be rather pressed, and that we might be driven to make an immediate call on our proprietors, which I need not tell you at this moment of alarm in all money matters, would be attended with bad consequences to us, unless we can get a little temporary assistance, and which would allow us to postpone this until the present alarm may have in some degree subsided, or until we may have called our proprietors together, and raised their spirits by a fair view of their prospects. You have a bill due upon us next Saturday for £36,000 and if you would do us the favour to renew it, with interest, for three months, it would put us at ease, and we should, by some of our returns from Corngreaves, etc. be in a condition, at any rate, to pay it without the inconvenience which would now beset us." On the same day Mr. Small wrote to the Appellant to the same effect.
From one of the three letters (that by Mr. Shears) to P. Taylor, it appeared that these Respondents then knew coal cost 10s. 6d. a ton, instead of 9s., as mentioned in the statements of P. Taylor; and that there was not near enough of ironstone raised from the whole property to supply even five of the six furnaces on the leasehold, and that it would be necessary to purchase ironstone largely, as well as coal. The further contents of these letters appear in the following extracts from a letter written in reply to them by P. Taylor, dated Corngreaves, on the 2d of December 1825: " My hasty note of last evening from Birmingham informed you that I have seen Mr. Attwood, and that he assured me he should be with you in time on Saturday to arrange for the extension of time on the bill due that day. I hope and trust you will find him disposed to grant the accommodation you desire." "I may assure you generally that the subjects which excite your uneasiness have had, during the short and broken, time I have had to bestow upon them, my most anxious and laborious attention." "As a proprietor, I am largely interested in the success of the Company. I have neither spared money nor my comfort to carry forward the great work I have undertaken." "I am sorry you should have found anything, during your recent visit to the works, which appeared at variance with my representation, but you must allow me to say that this is not the case in point of fact. What I have always said, and what I now repeat, is, that the Wolverhampton and Dudley Wood mine ground would well supply the,present six furnaces, and six additional ones (to be built at Corngreaves), if the ground was properly opened and effectually worked; but I certainly never stated that the ground was so opened at present as to afford an adequate supply." "I think you have forgotten the accounts exhibited by Mr. Attwood, which show clearly that Lord Dudley was supplying coal at 9s. per ton, when the agreement was made, but that he has advanced it to 10s. 6d. I think I see a remedy for this evil after' a little, time."
On the 24th of December, J. Taylor wrote to, P. Taylor a letter, in which was the following passage: "The point now on which the greatest anxiety prevails, and which is mentioned by some judicious proprietors out of the direction, and on which we ought to, be prepared for an answer, is, what profit does it appear we are making by these great works, as you, have now some practical experience? I confess, at looking at this with Small, I am rather alarmed, and he too; for from what he has stated, we could make out but very little." Here followed calculations, which are more fully stated in the following extracts from a letter written by Small to P. Taylor on the 27th of December:-" As it (the letter) is not intended to' come under other eyes but yours and my own, I shall proceed without reserve, and, in opening my mind to you with the kindest feelings and the best intentions, I make myself sure that all I have got to say will be received in the way it is meant. Now, then, to begin with Corngreaves; you must know that, notwithstanding the large figure of your sales, which I think I understand from you are likely to, be larger this past quarter than ever they have been in Attwood's time, and may amount to, say £35,000, and, at that ratio, £120,000 per annum, I fear much there will not be left any considerable profit.
"Our weekly payments come to £1000, say, per annum £52,000
We pay Lord Dudley, for coal, per quarter, annually 28,000
Interest on purchase-money, at 5 per cent 27,500
Ironstone and limestone, I calculate to cost 20,000
Tear and wear of machinery, and other outgoings, including salaries and other expenses of the works, say 7,500
Will make a total of £135,000
"This is a. very melancholy, and, I sincerely hope, a very erroneous view of the case; but your brother John and I, in a tête-à-tête long conversation, on Thursday last, could not see the matter in a much more advantageous light than as I have now exhibited it to you. We must be wrong in this view of the matter, and I hope you will take an early opportunity to enlighten us. The first thing which occurred to us was this, how could Attwood say or show that he was making a profit of £100,000 per annum, or nearly so, out of sales not exceeding £120,000 per annum, while his weekly pay amounted to £1000, and he was paying £7000 per quarter to Lord Dudley, besides all his other outgoings?"
In reply to the last letter, P. Taylor wrote to Mr. Small a letter, marked " private," and dated from Corngreaves, the 29th of December, from which the following are extracts: "I confess to, you that I am not without my anxious and uneasy feelings respecting Corngreaves; not that I find the property or the trade materially to fall short of the estimate which we had formed of it, but I do find that its powers are not so immediately available as I hoped. One great cause of this is, the season of the year at which I was put into possession, and the very peculiar state in which the works had been placed for two months prior to our entering upon them. The next unfavourable circumstance arises from the mode in which the concern had been conducted prior to our taking it. Mr. Attwood himself looked very little into the practical part of his business: he found that a good profit was coming in, and from love of ease, or from want of power to do otherwise, he suffered his agents to manage and participate in the profits made by the works. In making my calculation, I certainly did not take such a drawback into account, nor must it be suffered. The evil, however, does not stop here; for, added to this, is that which may be expected to attend it, viz. a determined opposition to, any different mode of management or working from the good old one." "A bad system is so rooted in this country, that it must and will require some time to change it; but it may be done, and the way is opening to me. Now as to the profit and loss account which you have submitted to me, and which looks very appalling: Until I can get the quarter's account before me, I will not venture upon a statement, but this is now in hand, and no time shall be lost; I will, however, just remark, that you have charged me one item twice over, viz.:
Lord Dudley's quarterly account, say, £7000 28,000
Ironstone and limestone at 20,000
Now, if you recollect, the account of Lord Dudley was submitted to you by Mr. Attwood, and this account included limestone. It is true, I have thought it prudent to buy ironstone over, because our stock was run down at the furnace at the eve of winter, and the means of getting our own had not been called into, action, and because I deemed it prudent to take stone in, payment for pigs, when gold became scarce." "With respect to the profits made by Mr. Attwood, I must observe, that I have never seen any profit and loss account, but he has (and so has Edwards) told me that the profits were last year about £2000 per week. No doubt this was when iron sold at from £4 to £5 per ton more than when we took the work, and when coal was 2s. per ton less than at present, and limestone in proportion. These differences will, I believe, justify what has been said as to profit. At this moment they are sadly against us; but the price of coal cuts two ways, and, if I mistake not, is more for us than otherwise, looking forward I observe that you put to your profit and loss account £27,500 interest at five per cent. on purchase. Surely this is wrong; for five per cent. interest on that invested is five per cent. to divide, at least; so it is always considered in all similar cases."
A letter from Mr. Small to P. Taylor, dated the 3d of January 1826, contained this passage: "You have set me to rights on some points, particularly in respect to the appalling view which I had taken of Corngreaves. Interest is, of course, the whole dividend, or a very great part of which can possibly be expected even from our best points in their infancy. I ought to, have said, more properly
"Wages, per annum 52,000
Less for dead work, say 12,000
Coal and limestone to Lord Dudley 28,000
Tear and wear of machinery, roads, etc. 7,500
And I might have added, for other contingencies, say 2,500
For royalties on ironstone, and mine purchased 5,000
Now, if we sell, say iron and steel, to the extent of £123,300 per annum, and get it well paid, we shall do amazingly well the first year. It must be borne in mind that the freehold of Corngreaves, which may be valued at £300,000, is not chargeable with interest for the present, and that the produce of our leasehold furnaces, with all our works in operation, at Dudley Wood and Corngreaves, cannot be charged with interest beyond, say £250,000; by this reasoning, we should have a profit of £40,000 on a capital of £250,000, or upwards of £15 per cent.; but if we had even. £25,000 instead of £40,000, I think we ought to be very much satisfied with our 10 per cent. dividend."
On the 10th of February 1826, Mr. Shears wrote a letter to P. Taylor in which this passage occurs: "I know that we all feel alike how desirable it is that we should get the good-humoured consent of Mr. Attwood to an alteration in the periodical instalments to be paid to him. Such appears to be the general wish of the directors. It is, however, right that you should know the extent of your necessities, as well as of our liabilities to Mr. Attwood, as to inconvenience, if he should not voluntarily agree to the required postponement of payment. First, then, such appear to be our financial prospects, that it would be the height of imprudence in us to think, under existing circumstances, of paying the £50,000 on the 15th of April, although, of course, we must then pay up all arrears of interest. Secondly, as to liability to. inconvenience from want of punctuality in paying the instalments: On reference to the existing contract, it appears that Mr. Attwood's remedy to compel payment is, to adopt legal proceedings. against the individuals R. S., J. HI. S., and J. T., to obtain an order for the sale of a sufficient part of the property; but such proceedings: would occupy a considerable time, and by the contract Mr. Attwood cannot commence such proceedings until after having given us six calendar months' notice. Let the worst, therefore, happen, we need not be uneasy, as we shall do, Mr. Attwood no injustice, as we shall pay him interest, and he has good security."
On the 2d of March 1826, the directors of the British Iron Company made a report of all their property and works to their proprietors at an annual general meeting, in which they mentioned their lately acquired property and mines of Corngreaves, Dudley Wood, Netherton, and Wolverhampton, with expectations of great advantages from them. On the 27th of that month the Appellant wrote to the Respondents, R. Small, Shears, and J. Taylor, to pay into his banker's on the 1st of April £8125, the half-year's interest on the outstanding instalments of the purchase-money. They replied that they would pay it on the 15th of April, at the same time reminding the Appellant that the sixth instalment on shares held by him in the partnership would be due on the 20th, amounting to, £1000. The Appellant sent them a cheque for that sum on the 8th, and reminded them that an instalment of £50,000 of the purchasemoney would be due on the 15th. Mr. Small then wrote to, the Appellant, stating that he was taken by surprise, having understood that time would be given for the payment. The result of a meeting between the parties was that the time was extended for the payment of the £50,000 to the 1st of September following, and the half-year's interest was paid to, the Appellant on the 14th of April. About that time another deputation of the directors had gone to Corngreaves for the purpose of investigating the accounts of the business, and on the 20th of April a Mr. Foster was employed to survey the property. Mr. Shears wrote to him thus: " As some of our proprietors express considerable anxiety to hear a further opinion as to. the capacity and value of the Corngreaves property and its dependencies, permit me by this (hasty scrawl to, beg the favour of your forwarding the result of your inspection at your very earliest convenience, as my co-directors, knowing that Mr. Small and I had requested the favour of your personal examination of the minerals, are very solicitous to be favoured with your opinion. You are, I believe, aware that the sum given for the whole of Mr. Attwood's property in connexion with Corngreaves, as well as the estate itself, was £550,000, which certainly seems to be an enormous sum. It would not become me to state my individual opinion of the value of the property thus acquired, nor would my opinion at this time be of any avail, if I were to give one; but should it happen that your opinion should prove a favourable one, the benefits and comforts derivable from its being known would be very great, because you are not in any way employed by the Company; except for the express purpose of giving your, opinion. I should not have made any allusion to the effect of your opinion, if I had entertained the slightest idea that anything which I could say to bias your report (even if I could be so base as to wish to do so,) would at all influence you to depart from that honest course which I know you will pursue; but my motive for' making such allusion is to account for my great anxiety to hear from you on the subject. Not knowing whether or not you may have seen a copy of the British Iron Company's first annual report, I beg to enclose one to you."
Mr. Foster made his report, dated the 26th of April 1826, and thereby, amongst other things, stated that as far as his limited observations would allow, he was led to believe there occurred in the Corngreaves coal field a less number of faults or slips than is usually found in the Staffordshire collieries, and that one of those faults, he believed, would be found in the dip of the old pits, and the other between, the old pits and the new colliery. From the facts stated in his report, he concluded: first, that a large quantity of coal and ironstone existed in the Corngreaves estate; secondly, that it might be considered equal in quality to any other coal wrought from the same measures, particularly for the manufacture of iron; and thirdly, that on account of the local advantages of those collieries, all the minerals in them could be brought to the surface at a very cheap, rate.
On the 22d of April, while Mr. Foster was making his survey, a, communication was made by one of the solicitors of the Respondents to the Appellant's solicitors, stating that something of importance was discovered in respect to, the Corngreaves estate, which was then in course of investigation. No further communication was made on the subject until the 12th of May, when the Respondents caused a notice to. be served on the solicitors of the Appellant, stating that wilful misrepresentations had been made by him, to induce the directors to make the said purchase, and the Respondents, R. Small, Shears, and J. Taylor, to enter into the said contracts, and that the directors would resort to all legal remedies, on behalf of the partnership, for redress, in case the Appellant should refuse to rescind the contracts; but if he would agree to rescind them and repay the £225,000, the partnership would give up the property to him, without making any demand for interest on that sum, or for the interest which lad been paid to the Appellant on the purchase-money, or for the monies which had been expended by the partnership in improvements on the property. The Appellant refused to comply with that notice, and insisted on the performance of the contract.
On the 27th of June 1826, all the Respondents, (except James and Edwards), together with P. Taylor, filed their bill in the Court of Exchequer, against the Appellant and James and Edwards, in which they alleged, among other things, that, on an investigation made by the Respondents, R. Small, Hart Logan, and John Morrice, between the 15th and 20th of April, they had discovered that the several statements and accounts which had been made and delivered by the Appellant, and particularly the accounts, numbered D. 1 to D. 12, were false, particularly as regarded the cost of raising ironstone and coal from the said property, and of manufacturing iron at the said works, and that a much greater difference existed between the real costs of such several particulars and the costs thereof as stated by the Appellant, than appeared by the accounts in the bill stated to have been transmitted to the directors by Edwards; and that the accounts made out by him were in many respects erroneous, and were made out so as to make it appear that a much larger profit had been made by the said concern, and thereby to conceal to, some extent from the directors the difference between the real cost of such several matters, and the costs thereof as stated by the Appellant; and in particular that the costs of manufacturing pig iron at the Corngreaves works at the time mentioned in the said accounts, instead of amounting to £4 Os. 3d. per ton as therein mentioned, actually amounted to £5 10s. per ton; and that the costs of getting ironstone from the said Wolverhampton property amounted to 11s. 6d. instead of 9s. 6 1/2d. per ton, as mentioned in the, said accounts (D. 1.); and that the costs of converting forged pig iron into merchant bar iron amounted to £1 12s. 3Jd. instead of £1 4s. 11 1/2 per ton only (D. 7.); and that the cost of making forged pig iron into rod iron amounted to £1 13s. 7d. instead of £1 6s. lid. per ton, as mentioned in the said accounts (D. 8.); and that nearly all the other articles of costs stated in the accounts amounted, at the several times respectively mentioned in them, to much larger sums than stated in them; and also that the quantity of pig iron made at the four furnaces at Dudley Wood, instead of amounting to an average of 60 tons per week at each furnace during the time stated in the said accounts, actually amounted during that time to no more than an average of 38 tons per week; and that the Appellant was aware of the falsehood of his said several statements and accounts, at the time he made out and delivered the same to the Respondents, R. Small, Leathley, and Donaldson.
The bill further alleged that after the 20th of April 1826, the directors had discovered that the Appellant had made various other false and fraudulent statements to them and their agents, respecting the said property, its nature and value, previous to their entering into the contracts, and that he had fraudulently concealed from them many facts and circumstances relating thereto well known to him, which, if they had been known. to the directors, would have prevented them from entering into the contracts, and in particular, that at the time when the Appellant showed the property to P. Taylor in May 1825, he fraudulently concealed from him various " faults" in the coal under the said property, which materially diminished its value, and that he then showed P. Taylor large quantities of ironstone, which he represented as having been gotten from the pits on the property, whereas the same had been purchased by the Appellant from other persons, and that he made other representations respecting the property to P. Taylor, which were entirely false, and were known to be so by the Appellant at the time he made the same; and that he had in the same manner concealed from the said Morrison, Harrison, and Brunton, at the time he showed them the property, various faults and defects therein, and in the coal under the same, of which he was perfectly aware, and made to them various statements, respecting the property, for the purpose of enhancing its value, which were totally false. The bill, after charging collusion between the Appellant and the defendants James and Edwards in misrepresenting the state of the property and works, and in fabricating false accounts, prayed that the said contracts might be declared to have been obtained by fraud, and to be void, and that accounts might be taken of the money paid to the Appellant on account of the purchase-money, and interest thereon, and that he might be ordered to, repay the same, with interest, to the trustees of the partnership; and that an account might be taken of all money expended by the partnership in lasting improvements on the property, and of all costs and charges incurred by the partnership in respect of the contracts, and that the Appellant might pay them what had been so expended, and the amount of such costs and charges, the plaintiffs offering to deliver up possession, etc., and to account for the rents and profits since they had possession; and the bill prayed for an injunction to restrain the Appellant from proceeding at law against the plaintiffs touching the matters therein mentioned.
To the bill were annexed four schedules, the first and second containing respectively the accounts hereinbefore-mentioned as marked P. T. 1, and D. 1 to D. 12; the third contained an account, in the bill stated to, have been rendered by Benjamin Best to the Appellant in September 1825; and the fourth, another account, in the bill stated to be an account of the cost of making bar and rod iron, as, appeared by the account in the third schedule.
The Appellant in May 1827, and the Respondents James and Edwards subsequently in the same year, put in separate answers, wherein they respectively denied the several charges of fraud and collusion contained in the bill. The answers, particularly that of the Appellant, set out, in schedules annexed thereto, various documents and letters, partly hereinbefore stated, showing the acts of P. Taylor, by which the Appellant in his answer insisted that P. Taylor and his co-plaintiffs were bound and precluded from rescinding the contracts on the ground of any conduct of the Appellant.
In July 1827 the Appellant filed a cross-bill against the three first named Respondents for specific performance of the contracts, and for payment of the three instalments of £100,000, purchase-money, then due, and for a receiver. To that bill the defendants put in their answers soon after it was filed. A replication to the answers in the original cause had been filed about the same time.
In February 1828 the Respondents applied to the Court for leave to; withdraw their replication, and to amend their bill (2 You. and J. 512). The application was supported by an affidavit of two of the Respondents, stating that P. Taylor had been employed by the other plaintiffs as the agent of the partnership, in purchasing the property, and that he as such agent had had the superintendence and management of the property and works, from the time possession thereof had been delivered, until the discovery by the company of the frauds practised by the Appellant relative to the sale of the property, and that the Appellant had, by his answer, relied on various acts by P. Taylor as binding the other plaintiffs, and as precluding them from rescinding the contracts, and that since the replication to the answer was filed, the directors of the partnership had discovered various transactions between P. Taylor and the Appellant, which these Respondents believed would show and prove that they were not, and ought not to be bound by the acts and representations of P. Taylor respecting the said property.
That application was opposed on behalf of the Appellant; but the Court made an order thereon, dated 2d May 1828, giving liberty to amend the bill, by striking out the names of J. Taylor and P. Taylor as plaintiffs, and adding them as defendants. The bill was amended accordingly, by making it the bill of the remaining plaintiffs, on behalf of themselves and all other members of the said partnership, excepting J, Taylor and P. Taylor, and by making them defendants, and by charging numerous frauds by, and collusion between, the Appellant and P. Taylor, and praying that he as well as the Appellant, and the Respondents, James and Edwards, might be ordered to pay the costs of the suit. J. Taylor put in a short answer, which was signed by the plaintiff's counsel. P. Taylor answered certain parts of the bill pointed out to him by the plaintiff's solicitors. In February 1829 a motion was made in both causes before Sir W. Alexander, C.B., for an injunction to restrain the Appellant from bringing actions to recover the said instalments, and also for an issue. The Lord Chief Baron refused the issue, but granted the injunction as prayed till the hearing of the causes, the Respondents being ordered in the meantime to pay into Court the interest of the unpaid purchase-money as the same accrued due.
Shortly afterwards the original cause became at issue, and numerous witnesses were examined on the parts of the plaintiffs and of the Appellant. The cause came on to be heard before Lord Lyndhurst, C.B., in November and December 1831, and January and February 1832 (Young, 407). Many of the charges contained in the bill were abandoned at the hearing, and the points really in contest were, first, the alleged fault in the Corngreaves mines; secondly, the statements in the papers P. T. No. 1, and D. 1 to- 12, whether they represented the actual state of the workings of the mines for a certain period, or were only estimates of what the workings would turn out; and thirdly, the production of pig iron by the furnaces at Dudley Wood and Netherton, and the yields and the coals there. The Lord Chief Baron delivered his judgment on the 1st of November 1832 (Id. 445), and his Lordship afterwards drew up the decree, whereby it was declared that the said several contracts were void, as having been obtained by false and fraudulent misrepresentations, and they were decreed to be delivered up to the first named 15 Respondents to be cancelled; and it was referred to the Master to take an account of the several sums paid in respect of the said contracts to the Appellant, and to compute interest on all such sums at 4 per cent., the question of interest upon any other sum or sums on each side being reserved, and to take an account of the net profits of the said works and property, from the 1st of October 1825, and in estimating such profits, the Master was to allow and deduct from the gross produce interest at the rate of 4 per cent. upon the capital employed by the company in working the mines, and on all money properly expended by them in improvements on the said works, mines, and property, begun before the 20th of April 1826, etc. And it was decreed that the bill be dismissed as against P. Taylor with costs, and that the Master should tax the costs of the Respondents and of P. Taylor, and that the costs of the Respondents should be paid by the Appellant, and by the Respondents, James and Edwards; and that the costs of P. Taylor should be paid by the other Respondents, and be repaid to them by the Appellant, and by James and Edwards. Upon the Appellant's application, his cross-bill was dismissed upon payment of costs to the defendants thereto. He, then presented his appeal against the order of the 2d of May 1828, above-stated, and also against the decree, except so much thereof as ordered that the bill should be dismissed as against P. Taylor, and that his costs should be taxed and paid by the Respondents. The petition of appeal having stated that J. Taylor did not appear, personally or by counsel, at the hearing of the cause, and that no affidavit of service of subpoena on him to hear judgment was produced to the Court, and that his answer was not opened to the Court, two orders were made by the Court, on the application of the Respondents, on the 5th of July 1833, for correcting the decree in that respect, with liberty to the Appellant to amend his petition of appeal by mentioning therein these orders, which he accordingly did, and appealed also against these orders.
(1835) Mr. Serjeant Wilde and Mr. Wakefield (Mr. Lovat and Mr. Halcomb with them) argued the case for the Appellant for 14 days, in the session of 1835, before Lord Shaftesbury (who presided as Speaker, the Great Seal being in. commission), Lord Lyndhurst, Lord Brougham, and other Peers.
Mr. Knight and Mr. Wigram (Mr. Sutton Sharpe with them) were, for the Respondents, (except James. and Edwards, who had no counsel,) and Mr. Knight was heard for four days, but he had not completed his argument when that session closed.
(1836) The case was argued fully for 30 days in the session of 1836, before Lord Cottenham (Lord Chancellor), Lord Lyndhurst, Lord Devon, and other Peers, (Lord Brougham was kept away by illness,) by the same counsel on both sides, (those for the Appellant being assisted by Mr. Fry, in place of Mr. Halcomb).
(1835) Before Mr. Serjeant Wilde began, Mr. Knight asked whether the Appellant had served Mr. Phillip Taylor with notice of the appeal?
Mr. Serjeant Wilde: That part of the decree which dismissed the bill against P. Taylor is distinct from the decree as applicable to any other part of the cause. There is no appeal against that part of the decree.
Mr. Knight: I should regret exceedingly if any thing should occur to postpone the hearing of this appeal. It is in the power of the Appellant to prevent delay; for there are certain arguments the waiver of which on his part would render it unnecessary to have P. Taylor here; but there are views of the case which cannot be discussed in his absence, consistently with justice to, the Respondents. If I am secured the same benefit as between them and the Appellant, as if P. Taylor were here, I can have no, objection to the appeal going on without him.
Lord Brougham: No objection to the hearing can be taken at the bar of this House, as in the Court of Chancery on an appeal from an inferior branch of that jurisdiction. The time and place for making an objection, which is a competent objection in its proper season, is before the Appeal Committee. The House sets down, by its order, that on such a day such an appeal shall be heard; and, in so doing, it proceeds upon the report of the Appeal Committee. If, however, a slip has been made by the Committee, or by the, House, it is proper that, if possible, it should be set right.
Mr. Knight: We were not aware of that practice. The only reason I mention the matter now is, that if I had reserved the objection, I might be precluded afterwards from observations which I intend to make. I humbly state that there are views of this case, and points of appeal, which cannot, consistently with justice to the party I represent, be entered into, unless your Lordships have P. Taylor here, my reasons for which I am ready to state, if your Lordships call upon me.
Lord Brougham: To prevent any one being taken by surprise, it may be as well now to ask Mr. Serjeant Wilde whether he takes the course you propose. If he refuses to say one way or another, you are protected by having made the objection.
Mr. Serjeant Wilde: I have no doubt that my learned friend would derive great benefit from the assistance of P. Taylor. I regret that if the proposed service on him would be consistent with justice, my learned friend's clients did not think it expedient to save time, and to advance the justice of the case, in. an earlier stage, instead of keeping this objection back, and now calling upon me, in a suit in which your Lordships will find I have abundant reasons for not giving up any thing I can insist on, and asking me to waive matters connected with P. Taylor.
Mr. Knight: As to keeping back the objection, I hope your Lordships will allow me to, state that it was our opinion, whether right or wrong I will not say, that this was the proper stage for making the objection..
Lord Brougham: You have the benefit of the objection, so far as not to be precluded from the observations you intend to make in your argument. But you are not entitled to have the hearing of the appeal postponed.
Mr. Serjeant Wilde: Passing by for the present that which has been the subject of discussion for the last few minutes, though I may have occasion to refer to, it again, I would state that this appeal has been presented against a decree made by the Lord Chief Baron. (In the course of his statement he was referring to part of P. Taylor's answer.)
Mr. Knight objected: P. Taylor and the Appellant were co-defendants to the Bill. The learned Serjeant cannot read against the Respondents the co-defendant's answer, which was not, and could not be legally read against them in the Court below.
Lord Lyndhurst: I don't understand him to read it as evidence, but to show what is put in issue.
Lord Brougham: It can only be done in the same way it is done in the Court of Chancery, which is, you may read all the pleadings to show the Court what the question in issue is; but you cannot read a title of the answer in evidence, except it has been made evidence as against the party against whom it is proposed to read it.
Mr. Knight: The plaintiff may read all the defendant's answer to show what is put in issue; one defendant may read his own answer to show what he put in issue; but no defendant can, for any purpose, refer to the answer of another defendant.
Lord Brougham: The Appellant and P. Taylor were co-defendants; how does P. Taylor's separate answer tend to show what was the matter in issue between the Appellant and the common plaintiffs?
Mr. Serjeant Wilde: The answer to that question depends on the reason of P. Taylor, a partner of the plaintiffs, being made a defendant to' their and his bill. I do not read P. Taylor's answer for the purpose of proving any facts, but to, show your Lordships what is the state of the record.
Lord Brougham: What have we to do in this appeal of Attwood against Small, and not against P. Taylor, with the state of the record as between Attwood and his co-defendants? Are we not confined to the state of the record between the plaintiffs and Mr. Attwood?
Mr. Serjeant Wilde: I apprehend that I may show what is the case presented by this record, for the judgment of the House, and that I am as much entitled to, show what is put in issue by one defendant as by another. This record is printed by both parties, and if I had opened the appeal formally, I should have stated the pleadings, but for convenience I have not done so, but made my statements. in such order as I thought would make the record more intelligible.
Lord Lyndhurst: That is assuming the point.
Lord Brougham: You are assuming you could read this answer; you can do, in your argument, all that you could do if you had opened the pleadings; you can open the Appellant's answer and the plaintiff's bill, not as evidence of facts, but to show the House what is in issue between the plaintiffs and your client; but how could you read P. Taylor's answer to the same bill, that not showing the issue between your client and the plaintiffs?
Mr. Serjeant Wilde: Many pages of these prints are full of slanders on Mr. Attwood, and they were all read in the Court below; the plaintiffs were enabled to poison the Judge's mind by reading every letter from themselves and their clerks to P. Taylor.
Lord Lyndhurst: Our minds have not been poisoned by them, we have not read them. If they were read in Court, they must have been read by P. Taylor's counsel; for he appeared there by his own counsel; but his counsel is not here. The issues raised in his answer are issues between him and the plaintiffs.
Mr. Serjeant Wilde: Are they not also issues between Attwood and P. Taylor? Supposing P. Taylor had put in issue a letter of the plaintiffs, which would answer their whole case? There is no relief prayed by the bill against P. Taylor, costs only are prayed against him. He is made a party for purposes that I shall have occasion to explain.
Lord Brougham: This question arose here in the case of Rhodes v. De Beauvoir [6 C1. and F. 532], in which an attorney, named Tebbutt, was made a defendant, for costs. We heard the appeal, and the impossibility of reading Tebbutt's answer and taking his evidence was one of the grounds on which we directed an issue, and ordered Tebbutt to be examined on the trial. We all considered the subject very fully. Lord Eldon was present and concurred.
Mr. Serjeant Wilde: The circumstance of the attorney having been made a party puts that case on very different grounds from this, in which the charge is that P. Taylor did not make certain communications to the plaintiffs. Suppose a decree had been made against P. Taylor, that decree would operate against the Appellant. The plaintiffs charged by their amended bill that P. Taylor and Mr. Attwood were in collusion; that Taylor had deluded them for the benefit of Attwood; that Taylor, their partner, colluding with Attwood, though he might have had received certain information from Attwood, did not communicate it to them. The position of P. Taylor on this record, and under the circumstances, entitles us to shew your Lordships what is put in issue by him, because that issue affects the Appellant. The plaintiffs charge four defendants, Attwood, his agent and clerk, and P. Taylor, with collusion; the issue is one entire issue; if Mr. Attwood had colluded with those persons, the effect would follow of rescinding the contract. If P. Taylor, colluding with Attwood, forbore to make communications to the company, Attwood would be affected; whatever therefore P. Taylor puts in issue was put in issue to decide, not any question peculiar to him, but the broad question, whether there had been suppression of certain circumstances by collusion between the Appellant and P. Taylor. Supposing P. Taylor puts in issue that he made every communication to the plaintiffs, and that they had his letters, which shewed that, is not the Appellant interested in that issue? If P. Taylor proved that issue, shall the Appellant not have the benefit of it? If P. Taylor proved that he, by a letter, to which Attwood may not have been a party, communicated every fact, the alleged want of knowing which is the foundation of the plaintiffs' equity, could any Court of Equity decree a contract to be rescinded upon the ground that the plaintiffs were ignorant of certain circumstances, when there is a letter proved in the cause detailing every one of them? Could it be said, "You have not proved that the party knew these facts, therefore we will decree that there has been a fraudulent suppression of them, and the contract shall be rescinded," while another defendant charged with the collusion, who had the means of proof, which we had not, shows that the parties were acquainted with the facts?
Lord Brougham: It happens frequently that a bill is filed against two parties charging confederacy and collusion between them, though one of them may be the agent, servant, or partner of the plaintiffs. In every such case it would follow, if you are well grounded in your argument, that a thing should be capable of being done, which I venture to say the oldest practitioner in the Court of Chancery never saw done, namely, one defendant reading his co-defendant's answer to show the state of the record.
Mr. Serjeant Wilde: I don't profess to deal with the practice, except where it seems to be at variance with the principles of equity. I cannot conceive how a Court of Equity could decree a contract to be rescinded upon the ground of a fraudulent concealment, where several parties are defendants, one of whom has managed the transaction, and he puts in issue certain matters which necessarily go to the benefit of the whole, a release for instance; because one defendant had not a knowledge so as to enable him to, put the same matter practically in issue, if another do it, and the thing is proved in the cause, or if the issue is such that the plaintiff's mode of dealing with it furnishes decisive evidence to the Court that there is no case against the other defendant; will he be dragged into Court with a co-defendant, whose acts shall be evidence to prejudice him, but shall not be evidence to benefit him? When the bill was first filed, P. Taylor was a plaintiff; whatever was put in that bill on behalf of any one of those plaintiffs and partners, ensures to the benefit of the defendant. Whatever P. Taylor says or does is evidence against his partners in respect of partnership transactions. His declaration and acts as stated in the bill are evidence against his partners; whatever is stated in the bill is also evidence against all the plaintiffs, including P. Taylor; it is their admission, it is their case. The plaintiffs obtained an order of Court that they might withdraw their replication and strike out P. Taylor, their partner, as plaintiff, and make him a defendant; he was accordingly made a defendant, charged with having colluded with Attwood. That bill as against P. Taylor was dismissed; the charge of collusion therefore between him and Attwood is at an end, and his statements as a defendant, and partner of the plaintiffs, interrogated by them, are evidence in every Court of Law in which the question could be discussed.
Lord Lyndhurst: The bill was not dismissed against him until the court pronounced its judgment; you are not entitled to have any advantage here, in consequence of that dismissal, that you might not have in the Court below: you do not appeal against that part of the decree. It is contrary to first principles to read the answer of one defendant for or against another defendant as evidence, because there is no opportunity of cross-examination.
Mr. Wakefield: One of the reasons assigned for this appeal was, that "the Court, upon dismissing the bill against P. Taylor, ought to have made some declaration so as to give the Appellant the opportunity, if he should have been so advised, of examining P. Taylor." And another of the reasons complained, that "the Respondents took a, fraudulent advantage of the order of the 2d of May 1828, in pointing out to P. Taylor what part of the bill they wished him to answer, and in causing a mere formal answer, of a few lines, to be put in on the part of the Respondent, J. Taylor, thereby depriving the Appellant of the benefit of having full disclosures from P. and J. Taylor, in, regard to all the facts put in issue by the bill, and to which, in the peculiar circumstances of this case, the Appellant was entitled, either in bar to the relief sought by the bill, or as a ground for the Court directing the necessary issues and inquiries." Part of the grievance, of which Mr. Attwood now complains, is that some things were not done by the Court below in order to give him the benefit which he is endeavouring on this appeal to obtain, but which he cannot obtain without reference to the record. Recourse must be had in many cases to the answer of a co-defendant. It is, for instance, a principle of Courts of Equity, that no decree can be pronounced on the testimony of one witness against a denial in an answer, and if there are four or more answers, all denying what a witness swears, they ought to be all read. According to the forms of decrees in the Court of Chancery, the answers of all the defendants are read at the hearing: "This cause coming on, etc., whereupon and upon debate of the matter, and hearing the will of, etc., and the defendants' answers and the proofs taken in this cause read, etc." (see Form, Seton on Decrees, 5). The answer of a defendant not brought to hearing may be read against another defendant at hearing; Pitt v. Willis (Dickens, 24). Suppose also there are two, defendants, who would naturally join in the same  answer, but one happens to be living in London, and the other in York, and the latter is unable to come to London; according to the forms of the Court they must put in several answers, because the answer of one could not be taken to the other. Does the mere fact of the answer being on different sheets of parchment make it different from what it would have been if both had sworn to one piece of parchment? There is one step more; at the hearing this bill was dismissed against P. Taylor, with costs. Now it is a well-established principle that the answer of a co-defendant can be read on; the question of costs. To what extent the answer of P. Taylor may have influenced the decision of that question is not known to the Appellant; but he knows that he was ordered to' pay those costs over to' the plaintiffs. How then can it be said that he has not a direct interest in all that P. Taylor has put in issue, and in all that he has deposed to on oath in that answer? One part of the appeal is against that direction giving those costs over against Mr. Attwood; it is possible when that branch of the appeal, whether those costs have been given over rightly or not, comes to be discussed, your Lordships cannot be blind to the influence P. Taylor's answer had upon the mind of the judge.
It is to, be borne in mind that this was a charge of collusion against Mr. Attwood and P. Taylor, and that by reason of that collusion a fraud had been practised. In repelling that joint charge, P. Taylor, in his separate answer, put certain facts in issue. The facts put in issue by P. Taylor equally affect Mr. Attwood, for although P. Taylor is removed from this record, the Respondents seek, as appears by what is stated at the close of their case, to have the same benefit against Mr. Attwood, as if the collusion had been established between him and P. Taylor. Mr. Attwood is therefore in every way interested in drawing the attention of the House to the contents of P. Taylor's answer, which was put in by the dictation of the Respondents, in order to see what it is the Respondents rely upon, to' show that Mr. Attwood ought still to be deprived of the benefits of the acts and declarations of P. Taylor, as if he had continued upon this record and had been joined in the decree made against Mr. Attwood. On these grounds; first, because this is a common issue, and not several issues; next, because the Respondents themselves, by their case, seek to retain as against Mr. Attwood, the benefit of their charge against him and P. Taylor; thirdly, because Mr. Attwood is affected on the question of costs, in respect of which costs the answer of P. Taylor is evidence; and also because the very subject of this appeal draws the attention, of the House to the manner in which the answer was put in, it is submitted that the Appellant is entitled to the benefit of that answer.
Mr. Knight (being desired to confine his answer to, the point made as to P. Taylor's costs) said, it was one question whether P. Taylor should have his costs, and another whether Attwood should pay them. P. Taylor's answer would be no evidence on the question whether Attwood ought or ought not to pay those costs; it was a matter of indifference to the plaintiffs, in the view the Court below took of the case, what became of P. Taylor's costs, for they knew that, in any event, they could not be charged with them. The question was whether P. Taylor should pay these costs, not whether the company should pay them; but the Judge below, being of opinion, that P. Taylor should have his costs, could only arrive at that conclusion by making the plaintiffs, in the first instance, pay them, and Mr. Attwood to, pay them over to the plaintiffs.
Mr. Sergeant Wilde and Mr. Wakefield again, in the course of their argument, contended that the Appellant was entitled to read the answer of P. Taylor as a declaration of a partner against other partners in partnership transactions. P. Taylor was and continued to be a partner, as much interested in rescinding the contract as any of the plaintiffs. He was a, co-plaintiff up to November 1828, when he was made a defendant. This bill having been dismissed as to him, he was acquitted of collusion charged against him and Mr. Attwood. The declarations of a partner are at all times, even after a dissolution of the partnership, evidence against his co-partners in partnership concerns, Wood v. Braddick (1 Taunt. 104). This evidence is admissible here under one of the reasons for the appeal, which complains "that evidence was received at the hearing in respect of material facts and declarations not in issue, and other evidence was received which ought to have been rejected, and evidence given on behalf of the Appellant was rejected which ought to have been, received." This is a case of several partners having made their most active partner, who, possessed the most knowledge on the subject of the, suit, a, defendant. What are the rights as between defendants generally? First, one defendant may examine another as a, witness, provided he has no interest in the suit, and consents to be examined; where a defendant has an interest in the suit, neither the plaintiff nor the co-defendant can compel him to give evidence; but then his declarations touching the matter in issue would be evidence. The King v. the Inhabitaats of Woburn (10 East, 395). Worrall v. Jones (5 Moore and Payne, 241; S.C. Bingh, 395). Grant v. Jackson (Peake's N.P. Cases, 203). A party to the record cannot be examined by another party without his consent; with his consent he may be examined, provided he has not an interest consistent with the testimony which he is to give. This bill prays the cancellation of a contract to which, P. Taylor is a party, and prays a, return of £225,000, which has been paid; he has, therefore, an interest in, the suit, and it would have been, impossible for Mr. Attwood, consistently with the principle of the cases, to have examined him as a witness. Supposing Mr. Attwood had filed a cross bill against P, Taylor for a discovery, there is no principle of evidence that could have prevented his answer being read against these plaintiffs, as the admission, of one partner against his co-partners. If P. Taylor could not be examined by Mr. Attwood, as it was in his power to object, on the ground that he was interested in the suit and was a parity to, the record, the occasion for receiving his declaration against his partners occurs now of necessity. Can the plaintiffs shut out all the admissions on their own part, and all the evidence also by choosing to make all who, could be witnesses defendants to the suit, without any ground except to shut out their evidence? Mr. Starkie, in his book upon Evidence, says, (2 Vol. 25, 2d Edit.), "A declaration, by one partner, concerning a, subject of joint interest, is evidence against another, although the former be no party to the suit. Thus in an action against some of the members of a firm, the answer of another person, proved to, be a partner, was admitted in evidence as an admission against all. An admission by one partner, after the dissolution. of the co-partnership, is evidence to charge the other partner;" and he cites, Grant v. Jackson [Peake N.P. 203], and Wood v. Braddick [1 Taun. 104].
This answer was not tendered in the Court below, and if tendered, it could not, be received, because, until the judgment was pronounced, the Appellant could not have known that the bill would be dismissed as against P. Taylor. When the learned Judge acquitted him of the collusion, he should then have looked to, the admissions contained in his answer, which being upon the record, the learned Judge was bound to, take judicial notice of it as in a writ of error. The principles; of equity required that all the parts of the bill that were dismissed against P. Taylor for collusion, should also be dismissed against Mr. Attwood, with, whom he was charged to have colluded. The admissions of P. Taylor, not only as a, partner but as co-plaintiff with the Respondents, ought to ensure to the benefit of Mr. Attwood; but as, for the reasons before mentioned, they could not be tendered in the Court below, they ought to be received here, not only to show the issue between the parties to the appeal, but also as evidence for the Appellant. The moment P. Taylor was acquitted of the collusion, and dismissed from the suit, all possible objection to the admission of his answer in evidence ceased. That answer being on the record, it was not necessary to tender it to. the learned Judge; it ought to have been judicially noticed by him, and although his Lordship did not take any notice of it, this House may supply the omission, and may now look to the answer, and consider its application to the issue between the parties to the appeal. In the case of Rochfort v. Nuygent (5 Bro. P.C. 354), this House allowed to be read on the appeal, a, deed which was not read in the, Court below. And in Noel v. Noel (12 Price, 214, see 291 and 322), this House; went farther, and admitted upon appeal matter which was not before the Court below, nor proved in evidence, nor stated in the pleadings. That was a deed of settlement referred to by a will, and the House held it necessary to, see the settlement to enable them to, determine the question of construction of that will. The same thing was done in the case of MacCabe v. Hussey (2 Dow and Clark, 440). But, independently of these authorities for receiving here matter which was not tendered to the Judge in the Court below, and whether P. Taylor's answer is to, be read as evidence, or as a, declaration and admission of one partner against other partners in partnership transactions, it is submitted that upon the practice implied in the forms, of decrees, of reading all the answers among the proofs, it was not necessary to tender this answer in the Court below, but that Court was bound judicially to notice it, and therefore this House is now bound to, refer to it as evidence, or as an admission, or for the purpose of knowing the issue between the Appellant and the Respondents.
Lord Brougham: My Lords, this question being one of very considerable importance to the practice, not only of this House, but of all the Courts whose practice in the admission or rejection of evidence would be regulated ultimately by your Lordships' decision on this matter, it was deemed right that it should be formally argued, in order that we might hear what could be urged, and might at once decide the question thus incidentally raised by the tender of P. Taylor's answer, without the clumsy expedient of having it taken de bene esse, and afterwards confounding, as it were, in our own minds the question whether it was receivable or not, with the question of the import of it, if received. For that reason the two, learned counsel have been heard to argue for the admission of the answer; and if any doubt had been raised in my mind upon its inadmissibility, I should have recommended to your Lordships also to hear the counsel on the other side. But the learned counsel for the Appellant, though they have argued with great learning, and urged every thing that could be put forward in favour of their contention, have not succeeded in satisfying my mind that this answer ought to be admitted; and, therefore, I think it would be a, waste of time were we to call upon the Respondents' counsel to be heard.
My Lords, this answer is tendered in one or other, or both, of two ways. First, it is said you have a right to read a, defendant's answer, as you have undoubtedly, and it is every day's practice of the courts to hear read the answer, as well as, the bill, for the purpose, not of evidence in the cause, but, of showing the Court what is the issue raised between the parties on the record; and it is said in this cause that the answer of P. Taylor may be read, because it is intimately connected with the issue raised between Small and Attwood-which two parties alone are before us here that the cause between Small and P. Taylor and the issue raised between them by the bill and answer, must be examined in order that we, may fully know what issue is raised by the bill and answer in the cause between Small and Attwood. I clearly think -and I have the authority of the learned Judges, the present heads of the Court of Chancery, whom I have just consulted by writing them a note on this subject- that there is nothing in the circumstance of P. Taylor having first been a co-plaintiff with Small, and being afterwards dropped as plaintiff and made a defendant with Attwood, which entitles the defendant in the suit of Small against Attwood to read the answer of another defendant in the suit of Small against P. Taylor, for the purpose of showing what the issue is in the suit of Small against Attwood. We are to look at the pleadings in the suit of Small and Attwood alone, for the purpose of informing ourselves what is the issue in that suit. But then it is said -and this has been chiefly pressed upon us by Mr. Wakefield- that the forms of the decrees of Courts of Equity, not that it so, appears in the Court of Exchequer, but in the Courts of Chancery, seem to show that the answer may always be read. For it is said the forms of decrees not only set forth that the case was opened and the pleadings read, but that evidence was adduced," and upon considering the proofs adduced, and the answers, and hearing parties by their counsel to debate on the same, the Court or his Lordship doth order," etc. Now this inference, if it proves any thing, would prove too much, because it would prove that in every case -this being the universal form of decree- the answer is proceeded upon as if it were evidence in the cause. Amongst the proofs, I take it to be clear, is to, be comprehended in every such decree that part of the answer which is elected to be read by the plaintiff as part of his case. Suppose the instance to arise of there having been no other proofs, no, depositions on interrogatories, I take it the form of the decree would be the same. If the plaintiffs had merely selected and read certain passages of the defendant's answer as his evidence, the decree would proceed to say, "upon hearing the matter opened upon the proofs and the answer," etc. What is more constantly occurring in the Court of Chancery than for the Court to say, "Have you any evidence?" " No." "Any deposition?" "No." "Then what do you do; do, you read any of the answer?" "Yes." And then, your second counsel, the leading counsel having opened the case, reads the evidence; and in case there be no depositions on interrogatories, he would read passages of the answer, and say, "That is our evidence."
Another ground, on which the admissibility of this answer is urged, is this. It is said that you must have recourse to the answer, and take it into account, because the rule is that, if, for instance, fraud is imputed to the defendant, and he denies it by his answer on oath, then you must have more than one witness, or some circumstances in addition to a witness, in order to rebut that denial. But I take it that the denial is not read as evidence in the cause, and the Court does not use it as evidence; it is rather considered as a general denial in the nature of a plea of not guilty; a sort of general issue which puts the plaintiff to the proof in a particular way, and as it happens to be on oath, the practice is to require that more than one oath should be on the other side. That may be the origin of the words in the decree, "And upon reading the answer;" but whatever may have been the origin of that formal portion of a decree, whether there may have been some practice, now obsolete, of reading the full answer, or it may have been in the way I have suggested, this is certain, that if we were to listen to the argument urged on the part of the Appellant, and decide this matter upon the ground stated by Mr. Wakefield, this case would be cited to your Lordships in every succeeding case, and in all the courts of equity in this country, as a proof that that practice, which has been persisted in time out of mind, was wrong, and that a new and opposite practice must be introduced; a practice which would let in as evidence every tittle of every answer in every case. On these grounds, therefore, I have no doubt whatever that in the first way in which this answer is proposed, it cannot be received, that is, to show us the issue in Small and Attwood.
Then, secondly, is it receivable upon the other ground, on which it is tendered, that is, as evidence in these circumstances? P. Taylor gives certain statements relating to the partnership, in which he and the plaintiffs are members; his declarations therefore, though upon oath, are not the less declarations of a partner, touching partnership business, in a suit in which his co-partners are the parties against whom those declarations are sought to be given in evidence. That I take to be shortly the ground of this argument. I observed the learned Counsel repeatedly, when pressed to call it evidence, rather evaded that call, and endeavoured to shake himself loose from that restriction, and to treat the answer as something that was not evidence; he first could not say in which way he presented it, and seemed to suggest that if it should be received, it should be afterwards considered in what way it was received. But it depends on the way in which it is tendered whether it is receivable or not, and it would be too late for us, if we once admitted it, to throw away our time in considering in which way it was tendered, because if it is received, it is received in every way. My opinion is that, generally speaking, it would be evidence as the declaration and the admission of one partner in a partnership transaction against his co-partners. I have, therefore, no, occasion to go to the case of Worrall v. Jones (5 B. Moore and P. 241, S.C. 7 Bingh. 395), The King v. Woburn (10 East, 395), Wood v. Braddick (1 Taunt. 104), and Grant v. Jackson (Peake's Gas. 203); entirely agreeing with what was said at the Bar, I see no occasion to deal with those cases, because nothing that I am now about to say impugns them.
Was this answer tendered in the Court below? It, is admitted that it was not, and the answer to that question was this-first, the reason why it was, not tendered was said to be because until the judgment was given it was not known that the bill would be dismissed against P. Taylor; secondly, it was said that P. Taylor was inadmissible as a witness, on account of the relation in which he stood to the plaintiffs in the cause; and thirdly, it was said that this House may receive evidence, and look at matters which were not tendered or in the view of the Court below. I will take those three answers in their order.
First, as to its being impossible to tell till the very last sentence, as, it is said, of the judgment, what the learned Judge was going to say respecting the case against P. Taylor, I am not pressed by that view, I confess, considering how the Appellant's advisers proceeded with respect to the other two co-defendants. They, as it were conditionally and provisionally, tender their depositions, which they had a right to do, and which they equally might have done with respect to P. Taylor's answer. Why did they not say, as they did as to James' and Edwards' depositions, "We don't know how your Lordship is to dispose of the bill in Small and Taylor, but we know that Taylor's answer is very material to our case, and we beg leave to tender it to your Lordship provisionally, not to attend to it if you decide one way, but to, attend to it, and to deem it evidence in the cause if you decide another way." I cannot conceive why that could not be done in respect of the one piece of evidence as well as the other.
Secondly, it is said, that the answer of P. Taylor, and his relation to the plaintiffs, prevented Mr. Attwood from examining him as a witness on interrogatories. Be it so: just let us consider whether there is anything peculiar in this case, in the situation in which P. Taylor stands, by having been first a plaintiff, dropped as such, and then made a defendant; and lastly, by the decree, the bill being dismissed against him, whether anything arises from that peculiarity which differs this case from other cases, and gives a title to the Appellant to introduce P. Taylor's evidence in this way and at this stage? I say, no; because either P. Taylor was capable of being examined as a witness on interrogatories or not. If he was capable of being so examined, my objection is allowed; it is, allowed that they might have examined him, and did not examine him. But supposing -which I incline to think is right - that he was not competent to be examined as a witness, that is not owing to his having been made a defendant after being dropped as a plaintiff, but to his being interested, as I understand the case, jointly with the plaintiffs, and that is not a peculiarity in this case, nor any fault of the plaintiffs, nor a ground of complaint competent to a defendant to make against them, from the extraordinary course they are said to have taken of dropping their co-plaintiff and turning him into a defendant.
It has been said, in the third place, that this House may be, induced upon appeal to examine matter, which was not before the Court below, and I agree that the cases, which have been cited, support that doctrine, viz. Rochfort v. Nugent (5 Bro. P. Gas. 351), a case which has been often objected to on another ground, but not on this; Noel v. Noel (12 Price, 214) was a very peculiar case, in which, after being carried through all its stages in the Court of Exchequer, and brought here by appeal, Lord Eldon, with that marvellous sagacity which has been the astonishment of his contemporaries, discovered that a very important matter, a family settlement, had been omitted in the Court below, the production of which altered the, whole case. We had a great deal of consideration on the case of MacCabe v. Hussey (2 Dow and Clark, 440), and it appeared to be a different case in the Court below from what it was in the Appeal here; that it was a totally new case in this Court of Appeal, a most extraordinary course of proceeding, not very much to be favoured, this House sitting as a Court of Appeal, not exercising appellate, but an original jurisdiction. I am not about to dispute the right, but the expediency of exercising it. In Noel v. Noel [12 Price, 214], which is the stronger of the other two cases, a will was the subject of the suit, making an express reference to a settlement. It was very extraordinary, and much to be regretted, says Lord Redesdale -and I agree with him- that the Court below should never have thought of looking at that settlement, although it was imported into the will by words of reference, which made the settlement, as it were, part of the will with reference to the argument arising upon it. In the next place there appears no proof that inspection of that settlement by this House was resisted at the bar; it rather seems to have been consented to, and both parties were placed in a situation more favourable by the inspection, and perhaps they allowed it rather than have the case remitted to the Court below. It was a long expensive family suit, and therefore the parties were very naturally satisfied with having Mr. Sugden and Mr. Shadwell argue it here. Upon the whole, therefore, I think Noel v. Noel, as also the other two cases, show that this Court, being a Court of the last resort, and having the highest judicial powers, has a right, in order to satisfy its own conscience, to look at what was not before the Court below. I am also of opinion that it is a right that ought to be very sparingly exercised. In MacCabe v. Hussey [2 Dow and Cl. 440], for aught I know, it might have been by consent also, for it does not appear by the report to have been discussed. In this case, I admit it may be expedient to resort to this answer, and I think the Appellant will be entitled to complain of the course the proceedings took, and to remind us that we in the last resort are doing irreparable injustice if we keep him out of any thing he has a right to; and we, taking this into our consideration, may, in the course of the cause, and before the end of it, if we think fit to inform our own conscience, have recourse to this answer to satisfy ourselves of the bearing it has upon the case; but in this stage, I am clearly of opinion it is much safer that, for the present, he should be excluded from the benefit of it, and that he has, made no case to entitle him, as of right, to the benefit of it.
Lord Lyndhurst: My Lords, I am entirely of the same opinion, and as my noble and learned friend has entered so fully into the question, it will not be necessary for me to trouble your Lordships with more than a few words. It appears to me, as my noble and learned friend has stated, there are two, points for consideration: first: Is this answer to be read for the purpose of ascertaining what were the facts in issue, as far as P. Taylor was concerned? I am of opinion it cannot be read with that view, in as much as the bill is dismissed against P. Taylor, and he is not before your Lordships' House. The next question is: Can it be read as evidence? I shall not enter into the question as to, whether or not the declarations under these circumstances which one of the parties has exhibited in an answer, are not evidence against his co-partners. It appears to me that that is a question entirely unnecessary to be considered in the view I take of the present question, and in the view, in fact, which has been taken by my noble and learned friend. It was competent to the Appellant's counsel to have offered this evidence in the Court below; they might have offered it provisionally, as the evidence of James and of Edwards was offered; they exercised a discretion -I must presume it was a sound discretion- in not tendering this evidence. Their not having tendered the evidence there, I am of opinion it ought not to be received by the appellate tribunal, and that, if we were to lay down, as a general rule, that evidence not offered before the Court below could be tendered and received before the appellate tribunal, we should be introducing a principle which would be productive of very great mischief in the application of it.
With respect to the cases that have been cited, it does not appear to me that they go far to decide the present question. The case of Noel v. Noel [12 Price, 214] was a mere question of construction of a will; there was no dispute as to the facts; the will having referred to, a settlement, it appeared to the noble Lords, who decided that case, that it was impossible properly to determine the construction of the will, without looking into the settlement. There was no dispute that there was such a settlement, no dispute as to a question of fact; it would have been idle, therefore, to, have sent it back to the Court below to hear further evidence, and to receive the settlement, the Court here called for the settlement. What does Lord Eldon say? "Unfortunately," he says, " it was not brought before the Lord Chief Baron in the Exchequer Chamber upon the argument there, and that being the very instrument on which the whole question seems to me to hinge, and not having been under consideration in the judgment which was given in the case, I must take the liberty of saying, that although the decision of the Lord Chief Baron, who decided it without the other judges, might be very right in the case as it was brought before him, yet your Lordships may not be able to confirm it without having other information before you than that on which it was determined." It is quite obvious therefore it was a mere question as to the construction of the instrument, and it did not turn at all on a disputed fact. With respect to the other case which has been cited from Brown's Parliamentary Cases, the facts are so obscurely stated that it is quite impossible to place any sufficient reliance upon it. I think therefore the general rule ought to prevail in this case, namely, that as this evidence was not tendered in the Court below, it ought not to be offered before the Appellate tribunal.
The following is the substance and effect of the arguments on both sides in 1835 and 1836, on the points comprised in the appeal.
First, as to the order of the 2d of May 1828 (see 2 You. and J. 512). It was argued for the Appellant, that that order was contrary to practice on two grounds: first, in the Court of Exchequer a plaintiff cannot amend his bill after replication, without showing special grounds, that is, by affidavit, swearing that the subject matter of the proposed amendments had been discovered since the replication. Markham v. Smythe (9 Price, 163), Lord Kilcourcy v. Ley (4 Madd. 212). No special grounds were shown in the affidavit filed in support of the application for this order; for the money transactions between P. Taylor and Attwood, alleged in that affidavit to have been discovered since the filing of the replication, were previously known to the plaintiffs. Had there been any foundation for the allegation, the plaintiffs should have filed a supplemental bill; Barfield v. Kelly (4 Russ. 359). The Lord Chief Baron in his judgment, after stating the nature of these transactions, says, "The directors examined into the conduct of P. Taylor with great minuteness, and the result was that they honourably acquitted him (Younge, 495, 6). Secondly, no, court of equity can grant an order to amend, by converting a plaintiff into a defendant, if the application be opposed by a defendant; Motteux v. Mackreth (Dickens, 735; S.C. 1 Ves. jun. 142). His consent must be expressed or implied; Langdale v. Langdale (13 Ves. 167). The case of Aylwni v. Bray, cited on the motion in the Court below as exactly in point with the present, was misstated; for it appeared from the registrar's book, that the application there was not "strongly opposed," as was alleged, nor opposed at all by the defendants (2 Y. and J. 518). This order was obtained for the fraudulent purpose of falsely charging collusion between the Appellant and P. Taylor, and of depriving the Appellant of the benefit to which he was entitled from P. Taylor's acts and declarations, which would have bound his co-plaintiffs; it deprived the Appellant of the security of J. Taylor, who was also converted from a plaintiff into a defendant, and of P. Taylor, for the performance of the offer, made by the bill, to: deliver up possession of the estate and works, and to account for the rents and profits; it permitted so essential an alteration in the parties to the suit as to embarrass the Appellant in his defence, having disclosed his defence in the answer, which he had put in to the original bill, in the confidence that he might rely upon the acts and declarations of P. Taylor. The Respondents also took a fraudulent advantage of the order, in pointing out to P. Taylor what parts of the bill they wished him to answer, and in causing a mere formal answer of a few lines to be put in for J. Taylor, thereby depriving the Appellant of the benefit of having full disclosures from them in regard to all the facts put in issue. By the decree, the Appellant, and James and Edwards, are ordered to re-pay to. the Respondents the costs of P. Taylor. The charge of collusion having been disproved, the whole of the amended bill ought to have been dismissed with costs, against the other defendants as well as P. Taylor.
For the Respondents, it was contended, first, that the appeal against this order was too late, as being barred by the standing orders of the House respecting the time for bringing appeals (Order of March 24 1725 (See the amended orders, infra)); and secondly, that all objection to the order for irregularity was waived by the Appellant's answering the amendments, and by his acceptance of the costs. Tarlton v. Dyer (1 Russ. and M. 1 and 5), Hair v. Woodbridge (1 Russ. and M. 1 and 5).
That order, being made while P. Taylor was a party to, the cause, cannot be altered in his absence. The Appellant advisedly omitted him from the appeal.
The order was made upon affidavit, showing sufficient grounds for the application, and no affidavit being filed by the Appellant showing the contrary, the Court could not refuse the motion. The consent of the defendant was not necessary to the granting of the order. In Aylwin v. Bray (2 Y. and J. 518), the application does not appear to have been opposed, but it appears quite clear that the order was made without consent of the defendants. There was no consent in Motteux v. Mackreth [Dick. 735; 1 Ves. Jun. 142], as appeared by the report in Vesey (1 Ves. jun. 142), nor in Lloyd v. Makeam (6 Ves, 145), nor in Holkirk v. Holkirk (4 Madd. 50). It has been lately the uniform practice for a plaintiff, if he sees fit, to strike out a co-plaintiff, and make him a defendant, only giving the defendant security for costs in place of the security of the plaintiff struck out.
There was no proof that the transactions between Attwood and P. Taylor came to the knowledge of the Respondents until after the replication was put in. In reply for the Appellant. The appeal from the decree being within time, saves the right to appeal from this order (De Burgh v. Clarke, ante, 4 C1. and F. 562). The order in Holkirk v. Holkirk was made by consent of the defendant. In the case of Lloyd v. Makeam, Lord Eldon refused the motion at first, saying, "It must be by positive consent." When the application was made a second time, it was, stated that Lord Thurlow made a like order in Motteux v. Mackreth, without consent, which he before thought to be necessary: his Lordship said, "it seemed to him Lord Thurlow's first thoughts were right;" but upon the authority of that case, and of the practice (as stated to him), his Lordship granted the motion. It was quite clear, upon examining Motteux v. Mackreth, in Dickens' report, that it was misrepresented to Lord Eldon, and the practice also misstated to him. But these cases, and Pullen's case, and Attorney-General v. Haberdashers' Company, (both cited in Lloyd v. Makeam,) whether they were or were not cases of consent to amend after replication, had only for their object to strike certain plaintiffs out, for the purpose of making them witnesses, and they were not authorities for this order; indeed, the Court of Exchequer did not put the matter on authority, but on "expedience and convenience," to save the delay and expense of filing a new bill. The cases of Tarlton v. Dyer [1 Russ. and M. 1, 5], and Hair v. Woodbridge [1 Russ. and M. 1 and 5], were not authority for holding that the acceptance of costs precluded the Appellant from complaining of this order, as in them no opinion was pronounced on the point.
The House held that the standing orders did not preclude the appeal from this order, which was only interlocutory, and when the final decree is appealed against, the previous interlocutory orders follow its fate, and the decree being within time, saves the orders by relation. This objection, if a good objection, ought to have been taken before the Appeal Committee. As to the regularity of the order, no opinion was expressed by their Lordships during the argument.
As to the decree, the arguments for the Appellant were to the following effect (see Younge, 418 to 449): First, as to the frame of the suit: the contracts having been entered into with R. Small, Shears and J. Taylor, as individuals, with an express understanding with them and the other directors of the company that the Appellant was only to, contract with the three purchasers in their individual capacity, it was a breach of faith for all the directors to join in the bill. R. Small, Shears and J. Taylor, ought not to be considered as the agents of the directors, and in law they are not trustees for them. If any such trust was intended, it is not manifested by writing as by law required; there are, therefore, parties, plaintiffs to the bill, who are not entitled to any decree against the Appellant, and who, are improperly joined as co-plaintiffs; Phillips v. Duke of Bucks (1 Vern. 227); Patterson v. Gacndesequi (15 East, 62; see 4 Taunt. 573), Garrett v. Handley (4 B. and C. 664), Thomson v. Davenport (9 B. and C. 78), Dubois v. Ludert (5 Taunt. 609), and Mendizabel v. Machado (1 Sim. 68-78).
But secondly, if any other persons, besides R. Small, Shears, and J. Taylor, are proper parties, plaintiffs in the bill, then there is a defect of parties. All the members of the partnership ought to be made parties, so, that the Court may do ample justice (Mitf. Plead. 163 (4th ed.)). There is no case to be found in which a few only of a company have sued a stranger to the company: all the cases relied on in the Court below were cases in which some members of a company sued the others or some officer of the company, or in which the company were defendants and the plaintiff was relieved from the inconvenience of making all the members parties. Meux v. Maltby (2 Swanst. 277), relied on in the judgment below on this point, was a case of that description. In Weale v. West Middlesex Water Works Company (1 Jac. and W. 369), the rule was stated thus: "it has been long settled that if any person has a common right against a great many of the King's subjects, inasmuch as he cannot contend with all the King's subjects, a Court of Equity will permit him to file a bill against some." If the partners in this company be too numerous to be all brought before the Court, that is an inconvenience they have drawn on themselves; and it is their voluntary union that distinguishes this bill from creditors' bills, from bills by or against several inhabitants of a parish, and suitors to mills, etc., in which, although the parties stand in a common relation, that position is not the result of their voluntary conduct. The inconvenience here is the result of the unwieldy strength of this company. Why are they to have the advantages of that strength, without submitting to its disadvantages? It is very questionable on that ground whether this company is not illegal; Kinder v. Taylor (George on Joint Stock Co. 47); Vansandan v. Moore (1 Russ. 462). Suppose this bill had been filed by collusion between the plaintiffs and Mr. Attwood behind the backs of the other shareholders, or against their desire, would these be bound by the decree in that suit? The result of rescinding this contract would necessarily lead to the dissolution of the company. Can that end be obtained without making all the shareholders parties? After the decree dismissing the bill as against P. Taylor, there is clearly a defect of parties even according to the argument of the Respondents, for he is now no party, even by representation. All the arguments arising from inconvenience and failure of justice are in favour of the Appellant, not only as regards himself, but also as regards the absent partner's of the Respondents. In all the cases relied on in the argument below for the Respondents, Adair v. The New River Company (11 Ves. 429), Cockburn, v. Thompson (16 Ves. 321), Hichens v. Congreve (4 Russ. 562), Bromley v. Smith (1 Sim. 8), Gray v. Chaplin (2 S. and S. 267), there was a common wrong to be redressed, the redressing of which would be to the benefit of all the shareholders, and therefore a few of them were allowed to represent all. And to that effect also are the observations of the Vice-Chancellor in the case of Long v. Younge (2 Sim. 369), a case in its result favouring the Appellant, but it was cited for the Respondents on account of the exceptions stated by the Vice-Chancellor to the general rule. The case relied on in the judgment not cited in the argument, was Meux v. Maltby (2 Swanst. 277), which was a bill for specific performance, and not for rescinding a, contract; and it was filed against the treasurer and directors of a company, the plaintiffs being there, as in the other cases, relieved from bringing all the members before the Court. In Lloyd v. Loaring (6 Ves. 777), which is referred to in Meux v. Maltby, the Lord Chancellor, allowing a demurrer for want of parties, desired it to be distinctly understood that he did not think the Court ought to permit persons, who could only sue as partners, to sue in a corporate character. That was precisely the objection of the Appellant to the frame of this suit; and an objection which was sustained by the cases of Vansandan v. Moore (1 Russ. 441), Blain v. Agar (1 Sim. 37; 2 Sim. 289), and Davis v. Fisk (1 You. 425).
Parol testimony was illegally received in the Court below, to, supply terms and stipulations that were not contained in the written contract (see the argument below on this point, You. 433 to 444, and the judgment 460 to, 463). In this contract, nothing was mentioned with respect to the quality of the minerals under the estates, or the quantity of materials used for the manufacture of iron, or the cost of the manufacture or of the materials. To allow parol evidence to be given of representations in respect of any of these particulars, would render it nearly impracticable to maintain any contract, penned in general terms, after communications between the parties, and would trench, in this case, which was a contract for the sale partly of freehold property, on the wholesome provisions of the Statute of Frauds (29 Ch. 2, c. 3). The rule deduced by the Lord Chief Baron from the cases at law cited below, may be admitted, namely, that a person knowingly making a misrepresentation of material facts which is not within the observation of the opposite party, may be sued in an action for damages for the injury the latter has sustained, although the particulars so misrepresented be no part of the terms of the written contract. But if those particulars be part, though not of the written contract, yet of the contract, and be omitted in the writing, the rule against the admission of parol evidence to supply the terms of a written agreement will apply. Binsted v. Coleman (Bunb. 65), Lord Irnham v. Child (1 Bro. C. C. 92), Haynes v. Hare (1 Hy. Bl. 662 et seq.), Rich v. Jackson (4 Bro. C. C. 513-518, and 6 Ves. 334, note), Omerod v. Hardman, (5 Ves. 730), Woollam v. Hearn (7 Ves. 211-18), Mortlock v. Buller (10 Ves. 308), where the distinction is stated between performing and rescinding contracts -which should not be overlooked in this case- and between the remedies of the parties at law and in equity.
The company might perhaps maintain an action of deceit, if they could prove before a jury the case they alleged by their bill; but if they sued on the contract, treating the alleged misrepresentation as part of it, as they have done in their bill, endeavouring to incorporate into the contract terms and conditions that do not appear in it, they would be nonsuited. Meyer v. Evereth (4 Campb. 22), Gardiner v. Gray (Id. 144), Powell v. Edmunds (12 East, 6), Bradshaw v. Bennett (5 Carr. and P. 48), Pickering v. Dowson (4 Taunt. 779). Had the plaintiffs brought an action for deceit, they should prove both deceit and damage. Comyn's Digest (Tit. Action on the case for deceit, A. 8), Shepp. Abr. (action of the case for deceit), Williams v. Morland, per Littledale, J. (2 B. and C. 916), Baily v. Merrett, per Croke, J. (3 Buls. 95), Pasley v. Freeman, by three Judges (3 T. Rep. 51). Vernon v. Keys, per Lord Ellenborough, C. J. (12 East, 636), and Forster v. Charles, per Tindal, C. J. (7 Bingh. 107). The rule in equity is thus stated in Jeremy's Equity Jurisdiction (p. 387): "Where a party to a transaction is aware of the truth, and is bound in conscience to divulge the same, nevertheless conceals it, his conduct is also considered to be a fraud; he will, if injury ensue therefrom, be responsible for the consequences to the party with whom he is dealing;" and numerous authorities are there cited for the proposition.
Supposing this to be an agreement which could not be enforced in equity, but still that the plaintiffs are entitled to some relief; the House would then consider whether they were to have relief by rescinding the contract, or by compensation. There is no doubt that if all the particulars, alleged by the bill to have been withheld from the Respondents, had been communicated to them, still they would have concluded the purchase, though at a reduced price. Having got, substantially, what they contracted for, compensation for any injury they received by reason of any deficiency in value would meet the justice of the case. Drewe v. Corp (9 Ves. 368), Dyer v. Hargrave (10 Ves. 505), Haisey v Grant (13 Ves. 73), Horniblow v. Shirley (Id. 81), Newham v. May (13 Price, 749, S. C. McClel. 511).
The decree in the present case was made several years after the contract was entered into; a great alteration took place in the interval, in the value of the property, by reason of the repeated falls in the price of iron. It is impossible to restore the parties to their original situation, and therefore to rescind the contract would be doing an enormous injustice to, the Appellant, more especially when it is recollected that, during the same interval, the Respondents have been exhausting the mines and lessening the value of the property by various acts of ownership over it. Lord Tenterden's observations in Street v. Blay (2 Barn. and Adol. 460); Bac. Ab. tit. Assumpsit; Hunt v. Silk (5 East, 449), Beed v. Blandford (2 Y. and J. 278). The alleged deficiency in the value of this property consists of the excess in the cost of raising the materials, which might be easily ascertained by a jury, and a proportionate compensation awarded.
There was no proof that the Appellant fraudulently misrepresented or suppressed any material fact relating to the property; and even if the alleged misrepresentations had been proved, the plaintiffs knew or might have known all that the vendor knew, and they waived all objections for several months after they took possession, and therefore they are now precluded from the relief they ask; Camnbell v. Flemng (1 Adol. and E. 40). P. Taylor, their co-purchaser, co-partner and principal manager, was at Corngreaves, before and after the original contract was entered into. In August, 1825, P. and J. Taylor viewed the property; the directors, in their report of August, 1825, speak of all the particulars of the concern, with a confidence and minuteness which were justified by the knowledge they had thus obtained. In September, 1825, P. Taylor went to the property, and remained there nearly a month: Harrison, an agent of the purchasers, and one of their principal witnesses, was on the property, and remained there the greater part of a month: on the 27th and 28th October, R. Small, Leathley and Donaldson, with P. Taylor and Harrison, J. Morrison, and W. Brunton, agents competent to assist them, were on the property viewing the same, and investigating the accounts: with all these means of knowledge, they reported to the company that the Appellant had substantially established the truth of his original statements. The general rule on this point is, that where a purchaser has information or the means of informing himself of all the facts respecting the property he is purchasing, he shall be deemed cognizant of them. 3 Bac. Ab. tit. Mortg.; Taylor v. Stibbert (2 Ves. jun. 437), Eyre v. Dolphin (2 Ball and B. 301), Powell v. Dillon (Id. 416), Taylor v. Baker (5 Price, 306), Malpas v. Acland (3 Russ. 273). And so, notice of a deed binds a party to, all its contents; Walter.v. Maunde (1 Jac. and W. 181), Hall v. Smith (14 Ves. 426), Prosser v. Watts (6 Madd. 59), Hamilton v. Royse (2 Sch. and Lef. 327), Lysney v. Selby (2 Ld. Raym. 1120).
The Respondents took advantage of the situation in which they had placed the Appellant by making the purchase public, and securing his trade to themselves, to obtain from him a reduction of £50,000 of the purchase money, and a release of their personal responsibility, upon a pretence which they did not venture to put forward in the new agreement, and which was wholly without foundation. The Appellant submitted to this reduction, as, in his view, it put an end to any possibility of further dispute. After this act of confirmation, they paid £225,000 of the purchase-money, and possession of the property and works was given to P. Taylor, and the company's circular letter was distributed, by which they appropriated the trade to themselves. P. Taylor resided on the property, without any complaint made, for nearly six months. In November, 1825, R. Small and Shears were upon the property several days, making inquiries, assisted by J. Harrison. In December, 1825, J. Morrison was again on the property examining the mines, and mapping the underground workings. In February, 1826, F. Foster and the mine agent surveyed the property, and made a highly favourable report of its value. The purchasers had retained all the old agents and workmen, and by carrying on the business, for months, knew or had the means of knowing whether the representations which had been made by the Appellant were true or not. In March, 1826, they made a report to the proprietors, setting forth, in glowing terms, the vast resources of the property and the advantages which the company would derive from it. During the whole of this period, with all these additional means of knowledge, they deliberately treated with the Appellant for indulgence and pecuniary accommodation, upon the assumption of the contracts being binding and conclusive. Having kept possession of the estate, mines and works, and changed the character of the property by cutting down trees and other acts of ownership only consistent with a performance of the contract, the Respondents are not entitled to rescind, but ought, in the circumstances of the case, to be held bound and concluded by the statements contained in the reports of August 1825 and of March 1826, and by the correspondence in evidence, and by the acts and declarations of P. Taylor.
The subject matter of the misrepresentations alleged to' have been made by the Appellant, particularly the statements contained in the P. T. Paper, No. 1, and the D. Papers, No. 1 to No. 12, being matters of account and inquiry, issues might have been directed to ascertain what was the true intent and character of the statements contained in them, and whether they were misrepresentations or not. If matters of fact are controverted, Courts of Equity, aware of the deficiency of trial by written depositions, direct the matter to be tried by a jury (3 Bla. Corn. 452), O'Connor v. Cook (8 Ves. 536), Warden of St. Paul's v. Morris (9 Ves. 168), Hampson v. Hampson (3 V. and B. 42). But in this case the Court below, instead of directing the necessary issues and inquiries, decided in the first instance upon, perhaps, the most voluminous mass of evidence that was ever produced in any cause; embracing extensive matters of accounts; the testimony conflicting; the conclusions drawn by many of the witnesses necessarily hypothetical; and the accounts, or the results of the accounts, tendered on behalf of either party, not anticipated, or met by the other party. The Lord Chief Baron admitted that the evidence was "a maze and a labyrinth " (Younge, 470), yet his Lordship came to' a conclusion on it that the P. T. Paper contained "a misstatement to a, large amount," in respect of the cost of manufacturing pig iron, and his Lordship arrived at that conclusion on the depositions of Wilkinson and Dransfield, two accountants, whose evidence, as speaking of the contents of written accounts, without the account books, should never have been admitted; Roberts v. Doxon (1 Peake's N. P. Cas. 116), Meyer v. Sefton (2 Stark. N. P. Cas. 274).
Other evidence, equally inadmissible, was read at the hearing of the cause, in respect of material facts and declarations that were not put in issue by the pleadings, so that the Appellant had not any notice of them, and therefore was not in a condition to contradict or explain them. All evidence of that nature should have been rejected; Sidney v. Sidney (3 P. Wms. 277), Clarke v. Turton (11 Ves. 240), Smith v. Clarke (12 Ves. 480), Hall v. Maltby (6 Price, 240.259), Blake v. Marnel (2 B. and B. 35-47), Earl v. Picken (1 Russ. and Myl. 547), Williams v. Llewellyn (2 Y. and J. 68), Hunter v. Atkins (3 Myl. and K. 113-156), Fitzgerald v. O'Flaherty (1 Molloy, 350 to 366). All material facts, declarations and admissions, should be put in issue properly and technically, with the name of the witness, the time when, and the place where, such declarations or admissions were made, so that the defendant might be able to deny or explain them.
The answer of a defendant when opposed only by one witness, was sufficient. It was contended in the Court below, on the authority of Walton v. Hobbs (2 Atk. 19), Janson v. Rany (Id. 140), that one witness, aided by circumstances, outweighed the answer; but in Hobbs v. Norton (1 Vern. 137), Allen v. Jordon (Id. 161), Ibbotson v. Rhodes (2 Vern. 544), Only v. Walker (3 Atk. 408), Speed v. Martin (2 Comyn, 587), Mortimer v. Orchard (2 Ves. jun. 243), and Pilling v. Armitage (12 Ves. 78), it was held that no decree can be obtained against a defendant's answer on the proof of one witness. Then a fortiori, if the evidence of the alleged admissions was improperly received, no decree could be made against the Appellant's answer.
It was against justice and equity to make James and Edwards defendants to the suit. No relief was, or could be, prayed against them. To make them defendants for costs was a mere manoeuvre to deprive Mr. Attwood of their evidence, one of them being his agent in the sale of this property, the other his clerk, both well qualified to explain all these transactions. There was no proof of any collusion or conspiracy against them. The bill, therefore, ought to have been dismissed as against them, in which event their depositions might be read for Mr. Attwood. The practice of making witnesses defendants was not sanctioned by courts of equity; Madd. Cha. (Vol. 2, p. 185), Mitf. Pleadings (P. 188, 4th ed.), Hovenden's Supplement to Vesey (P. 127). There are some exceptions to the general rule, as in the cases, of attornies and agents having an interest in, or deriving benefit from, the subject matter; in the cases of individual members or secretaries, of corporations, as having the corporate funds, or to fix them with personal liability; sometimes in the cases of arbitrators, as necessary parties, their names being to the award or instrument to be set aside; and in the cases of auctioneers as holding deposits; Barrett v. Gore (3 Atk. 401), Arnot v. Biscoe (1 Ves. sen. 94), Fenton v. Hughes (7 Ves. 287-9), Fenwick v. Reed (1 Meriv. 114), Dummer v. The Corporation of Chippenham (14 Ves. 245-52), Le Texier v. Margravine of Anspach (5 Ves. 322; 15 Ves. 159), Gibbons v. Waterloo Bridge Company (5 Price, 491), Petch v. Dalton (8 Price, 9), Bowles v. Stewart (1 Sch. and Lef. 209-27), Wych v. Meal (3 P. Wms. 311), Cookson v. Ellison and Neuman v. Godfrey (2 Bro. C.C. 252 and 332), two cases applicable to the present; Plummer v. May (1 Ves. sen. 426), Dixon. v. Parker, and Taylour v. Rochfort (2 Ves. sen. 219 and 281). In all these cases the reasons of the rule, and of the exceptions going rather to prove the rule, are stated. The present case does not fall within any of the exceptions.
The arguments for the Respondents were to the following effect:
As to the objections to the frame of the bill in respect of parties, the Appellant knew at the time of the contract that the purchase was not for the three individuals who contracted with him, but for the whole company, for whom the three directors were agents. There was no pretence therefore for calling this suit a breach of faith, as being instituted by all the directors.
The objection that the parties were too few was equally groundless. It ought to have been raised by demurrer to the bill in the first stage; it is too late to take it at the hearing. All the partners in the company were parties to the suit by representation. All may sue on a contract made by some; Skinner v. Stocks (4 B. and Aid. 437). There were 571 shareholders when the bill was filed; if all were made parties, the cause could never be brought to a hearing. The, main question was, whether the money of the company had been subtracted by fraud. All the parties were in the same interest as to that question. The plaintiffs below were the persons to whom by the deed of partnership the entire management of the affairs of the company was entrusted. They parted with the money of the company; they had a right to get it back, and for that purpose they filed the bill on behalf of themselves and all the other shareholders. This decree binds all the partners, for it binds Small, Shears and Taylor, and without them the other partners could not sue. In addition to the cases mentioned in the argument in the Court below on this point (Younge, 415), Meux v. Maltby (2 Swanst. 277), Weale v. The Middlesex Waterworks Company (1 J. and W. 369), Baldwin v. Lawrence (2 S. and S. 18), and Weld v. Bonham (Id. 91), were now particularly referred to, and it was suggested that the observations made by Lord Eldon in Van Sandau v. Moore [1 Russ. 462] and Davis v. Fisk [1 You. 425] (cited for the Appellant), were no more than dicta, his Lordship's object being to discourage the bubble companies then springing up in great numbers.
As to the other objections on the points of law and of practice and evidence, misrepresentations and concealment being the basis of this contract, parol testimony was admissible to prove the fraudulent misrepresentations. There was now no existing contract in the contemplation of equity, the fraud avoided it, and the party drawn in by the fraud is absolved from the obligation: Ekins v. Tresham (Keb. 510), Lysney v. Selby (Ld. Raym. 1118), Clermont v. Tasburgh (1 J. and W. 114-120), Flight v. Booth (1 Bingh. N. C. 370), Ferguson v. Carrington (9 B. and C. 59), Edwards v. M'Leay (Coop. 308), Grant v. Munt (Id. 173), Dobell v. Stevens (3 B. and C. 623), Maddeford v. Austwick (1 Sim. 89), Harris v. Kemble (1 Sim. 111, and 2 Dow. and Clark, 463), Street v. Blay (2 B. and Adol. 460); and see the arguments below, and the cases there cited (Younge, 416 and 450).
To the objection to the suit and decree on the ground that James and Edwards were mere defendants, and thereby Attwood was deprived of their evidence, the answer was that they had not appealed from the decree, and that Attwood had their depositions read de bene esse, and the Lord Chief Baron took them into his consideration; but as his Lordship held them to be participating in this fraud with Attwood, his Lordship could not give any credit to their evidence. It was most common to make attorneys and other agents defendants to bills for discovery, for costs and for other purposes, even though no relief be prayed against them: King v. Martin (2 Ves. jun. 641), Dummer v. The Corporation of Chippenham (14 Ves. 245), and other cases which have been mentioned in the argument for the Appellant (supra, 320).
To the objection taken for the Appellant on the law and practice applicable to his case, viz. that facts and statements were given in evidence which were not properly put in issue, the answer was, that it is the constant practice in actions at law to give evidence of facts and of admissions, though no notice is given of them by the pleadings, and the courts of law use their discretion whether they would grant a new trial even in cases of surprise. Courts of equity have a discretion also whether they would not put the matter in a train of further inquiry. In neither jurisdiction is the evidence stated in the pleadings. There is an exception to the general rule, when a party has, admitted that he had done an act with a fraudulent intention, which is a conclusion of law; then evidence of that admission cannot be received against him without charging it in the pleadings. But it was never held that one may not give the facts in evidence without charging them, leaving the Court to draw its own conclusion. It was not so held in Hall v. Maltby (6 Price, 240), Gordon v. Gordon (3 Swanst. 472), Wheeler v. Trotter (Id. 174, note), and the five cases before Sir A. Hart in Ireland (1 Molloy, 347 to 366). The Respondents never attempted to prove an admission by Attwood that he committed a fraud. This objection was not taken in the Court below, and ought not to be now listened to. The only point to which this objection applied was the conversation deposed to by Pontardent, in which Attwood, or James in his hearing, said the profit of the business was £90,000 a-year, which was the least material part of this case.
The reduction of the purchase-money, and release of the three Respondents from personal liability to the payment of it, could not be construed into a waiver of the fraud afterwards discovered; they were the inducements to the purchasers to renew the treaty, after the first contract was put an end to by Attwood's delay in showing his title. By reason of that delay, the purchasers were discharged from their liability to perform the first contract. Time was of the essence of that contract, and it could not have been enforced: Cornish v. Rowley (1 Selw. N. P. 175, 5th ed.), Wilde v. Fort (4 Taunt. 334), Maryon v. Carter (4 Carr. and P. 295). These cases showed that time is of the essence of a mercantile contract, and after the time for showing the title elapses, the vendor cannot maintain an action. The same matter that would be a defence to an action would, in a case of this sort, be available in equity against a, bill for specific performance: Wright v. Howard (1 S. and S. 190), Parker v. Frith (Id. 199, note), Coslake v. Till (1 Russ. 376), Doloret v. Rothschild (1 S. and S. 590), Withy v Cottle (1 Turn. and R. 78). Upon the authority of these cases it would be, at least, a doubtful question whether Mr. Attwood could have enforced in equity the performance of the first contract after the time had elapsed. He was therefore glad to compromise the disputable claim by the release of the purchasers from personal liability.
It was not necessary to prove damage sustained, in order to rescind the contract. It was clear from the evidence that the Respondents could sustain an action on the case for the fraud, and would recover a verdict without proving damages. Where there is a breach of duty, damage is not an essential point of proof: Marzetti v. Williams (1 B. and Adol. 415), Blofeld v. Payne (4 B. and Adol. 410). In Vernon v. Keys (12 East, 637), Lord Ellenborough says," A seller is unquestionably liable to, an action of deceit, if he fraudulently misrepresent the quality of the thing sold to be other than it is in some particulars which the buyer has not equal means with himself of knowing; or if he do so in such a manner as to induce the buyer to forbear making inquiries," etc.
This was not such a case as the Court would, instead of rescinding the contract, direct compensation. In cases of fraud, the party imposed upon has the option of having the contract, into which he was drawn by the fraud, rescinded, or of taking compensation if he prefers it: Duke of Norfolk v. Worthy (1 Campb. 337), Stewart v. Alliston (1 Meriv. 26), Flight v. Booth (1 Bingh. N. C. 376). In Dyer v. Hargreave, referred to on behalf of the Appellant, the plaintiff did not insist on avoiding the contract, but the question there was, what amount of compensation he was entitled to.
It would be impossible to try all the complicated facts of this case by any one issue, and the case could not be split into several issues. After the time and expense of the trial of an issue the results must be the same as the Judge in equity came to. The issue in Wright v. Tatham [5 Cl. and F.] took eight days to try. The issue in De Beauvoir v. Rhodes [6 Cl. and F. 532] took seven, and the result was just what the Vice-Chancellor had before pronounced. The fraud in this case was to be gathered from a variety of circumstances fitter for an equity Judge than for a jury to grapple with. Any evidence Attwood could have on the trial of an issue, he might have obtained in the Court of Equity, by a bill of discovery, or by an examination on interrogatories; no suggestion of an issue was ever made by the other side in the Court below. The Respondents asked for an issue in 1829, but the application was opposed by Attwood, and refused by the Court.
[The outline of the arguments on both, sides, on the merits of the case and on the question whether the statements in the P. T. paper were estimates of the capabilities of the mines and works, or statements of what they did actually produce at a fixed time, may be collected from the speeches of the Lords, in stating their opinions. The counsel for the Appellant, although they insisted that the P. T. and D. papers were estimates only, still contended, that taking them to be actual statements of costs and produce, the property was capable, in June 1825, of producing what was so stated, and the Respondents sustained no loss, but that, not being able to pay the purchase money and the price of iron having fallen, they attempted to get rid of the purchase for that reason, and not for any misrepresentation.]
(March 22, 1838.) The Earl of Devon: My Lords, it becomes my duty to call your Lordships' attention to this case, which is of very great importance, whether it be considered in respect of the magnitude of the stake in contest, or the length of time which has been occupied in the discussion and, I may add, in the consideration of the case. The noble Lords, who had attended the discussion, had the advantage of the most able and elaborate arguments at the bar, and they had that great advantage which was to, be derived from having the result of much of that argument put upon paper, having all the evidence in print before them, and having all that assistance which could be afforded to them for their deliberate investigation of the case. Whatever may be the result of this case, all parties must be satisfied that it has had the most ample inquiry and consideration.
My Lords, upon the points of law arising with reference to the frame of the suit, it is not necessary for me in the view which I take of the case to express a decided opinion; it is sufficient to say, that I incline to, concur in the view taken by the noble Chief Baron; I believe that it is not inconsistent with the rules and practice of Courts of Equity to sustain a suit under the circumstances of this case between such parties, plaintiffs and defendants, as appear upon this record. But before coming to the consideration of the merits of the case, it may be well to express my opinion upon a collateral point that occurs upon this decree; I mean the direction that the costs ordered to be paid to Phillip Taylor by the Respondents, shall be paid over to them by Mr. Attwood. Whatever shall be the judgment of the House upon the main point of the decree, I cannot think that this direction ought to stand. It appears to me to be inconsistent with any rules or practice of a Court of Equity, with which I am acquainted, to fix a defendant with costs, not in respect of any charge established against him, but on account of his having been in some way or other mixed up with transactions upon which a charge was founded, which charge has failed, and in respect to which the suit has been dismissed. I am well aware of the awkward consequences which might follow the adoption of this opinion, inasmuch as an alteration of the decree in this respect only would leave the costs to, fall upon the Respondents, upon whom in all probability the Chief Baron would not have imposed them; but I think that this difficulty must not stand in our way if we are of opinion that this direction is informal. Mr. Attwood had a right to complain by his appeal of this as well as of other parts of the decree, and the House must give an opinion upon it one way or the other. This matter, however, turns so much upon the practice of the Court from which I have been for some years removed that I speak upon it with greater diffidence even than I do upon the other part of the case. I am quite sure the House will receive the best advice upon it from my noble and learned friend on the woolsack.
I come now to the main point in the cause: I hope that by such of your Lordships as at all know me, it will readily be believed that I approach it with great anxiety, when I say that I feel compelled, after most mature consideration, to take a view of this important case different from that which was taken in the Court below by the noble and learned Chief Baron. The circumstances of such difference added greatly to the hesitation which I felt in forming my opinion, but having been one of the few Peers who attended closely tot the discussion at the bar, I felt it my bounden duty to consider the whole cause most anxiously and repeatedly with a view to its decision; and I cannot now shrink from offering my opinion, such as it is, to your Lordships; and it is right to say that the very full and laborious arguments which have been, addressed to us from the bar, and the great assistance afforded by the numerous papers, that have for the first time been presented to us have given us an advantage in considering this case which the Lord Chief Baron did not enjoy. In addressing myself then to this appeal with a view to its decision, my first consideration was this, what is the sort of cases in which the powers of a Court of Equity have been interposed to set aside contracts, deliberately entered into by competent parties, on the ground of fraud and misrepresentation? I find the principle of the Court in this respect laid down by two, very eminent Judges, in the case of Edwards v. M'Leay by Sir William Grant, M.R. (Coop. 308), and afterwards on appeal by Lord Eldon, who, in giving his judgment, thus expressed himself (2 Swanst. 289): "The case resolves itself into this question, whether the representation made to the plaintiff was not, in the sense in which we use the term, fraudulent? I am not apprised of any such decision, but I agree with the Master of the Rolls that if one party makes a representation which he knows to be false, but the falsehood of which the other party had no means of knowing, this Court will rescind the contract." The expression of Lord Eldon, that he "was not apprised of any such decision," is not immaterial. I do not refer to it as implying any doubt whatever of the jurisdiction, but when a Judge of Lord Eldon's experience states himself not to be aware of any case in which that jurisdiction had been. practically applied, we may find an additional reason for the principle that nothing but the most clear and decisive proof of fraudulent representations, made under such circumstances as show that the contract was based upon them -such a, case indeed as Lord Eldon in his experience had not known to, occur- will justify the interference of a Court of Equity; and, my Lords, with reference to this general principle, the Lord Chief Baron, in his judgment upon this case, expresses himself very clearly upon the same point. He says (1 Younge, 461), "It appears to me, therefore, that as far as the cases at law go, where a misrepresentation of a material fact, not within the observation of the opposite party, is made, the person making the misrepresentation, knowing at the same time that his statements are untrue, under such circumstances an action may be maintained at law, according to the decisions I have stated, for the purpose of recovering a compensation in damages for the injury the party has sustained, notwithstanding the contract was in writing, and notwithstanding those particulars may be no part of the terms of the written contract.. If that be so, it would follow also, that in a Court of Equity, as it appears to me, a party would be entitled to: come forward for the purpose of obtaining redress, in order to get rid of a contract founded on such fraudulent misrepresentations."
My Lords, I entertain no doubt that the principle which was thus enunciated by these three eminent Judges, is that upon which alone Courts of Equity ought to act, and I think it peculiarly important to, be attended to in the present case. For what is the history of this case? Previous to the month of June 1825, various meetings and discussions had taken place between Mr. Attwood, the proprietor of extensive iron works, and Mr. Phillip Taylor, one of the British Iron, Company, with a view to' the sale by Attwood to that company of those works. It appears that these discussions were carried on verbally, and the result of them was put in writing, not by Attwood, but by P. Taylor, from his recollection of what had passed, in a paper described in the cause as P. T. 1, for the consideration of the company as to the propriety of making the purchase. The first question that occurs upon this paper is, whether it is to be taken as a representation of actual facts, or as a calculation of what might be done under circumstances in which the company might probably possess the property? There is no other evidence of the representations actually made by Attwood, than what is furnished by this paper, -I mean,, in that early part of the transaction; and the evidence by which it is proposed to fix Mr. Attwood by the contents of this document is derived from his answer, and from what passed at a meeting in London, which took place in a subsequent stage of the business. In the view which I take of the whole case, it is not material to state a very decided opinion upon this part of it, but I am disposed to think that, neither from inspection of the paper itself, (entertaining, as I do, a very strong opinion upon the paper and the expressions used in it,) nor in the answer or evidence in the cause, is there proof sufficiently clear and strong to fix Attwood with any definite statement of facts, so as to found thereupon a charge of fraud and misrepresentation.
My Lords, it is not unimportant to observe here in what manner some of the plaintiffs, Respondents here, the members of the company, who, formed the deputation, describe this particular paper in their report. They express themselves thus: "Having in accordance with the resolution of the Board of Directors of the British Iron Company, on, Tuesday the 25th ultimo, proceeded to Dudley Wood and Corngreaves, and, assisted by Mr. Brunton and others, having with every diligence and attention of which we are capable, examined the books and other documents submitted to us by Mr. Attwood, we have come to the conclusion that in a comparison with the paper (P. T. 1) which purports to contain the principles and calculations on which the negotiation was originally founded, Mr. Attwood has substantially redeemed the pledge he had given of proving that the information, upon which the managing directors concluded their contract with him, is correct and well founded." Now, I confess, it strikes me that if they had considered and treated the paper, as it was found necessary for the purpose of the argument to consider and treat it in the course of the discussion here, they would not have described it as they have done. But to my mind all consideration of the P. T. paper becomes comparatively unimportant, when we advert to, the further progress of the transactions between the company and Attwood; for whatever was the real character of that paper, and whatever the correctness or incorrectness of its statements, if the case made by the bill as to the subsequent transactions, particularly those which took place at the meeting at Congreaves with the deputation, was made out in proof, it would be impossible to doubt that there did exist a case of gross and fraudulent misrepresentation. On the 10th of June 1825, the first agreement for purchase is made, founded in great measure (or, as alleged by the Respondents, founded wholly) upon the P. T. paper; the title was to be completed by the 1st of October, and possession to be delivered on that day. The title not being then completed, another agreement is entered into on the 1st of October for an extension of time. On the 10th of October there is a meeting with a, view to, completion, at which a power of attorney from J. Taylor is produced, but Mr. Attwood objecting to the form, of it, the contract is not then signed. On the 14th of October the solicitors of the Respondents write to, say that if the title is not completed by the 1st of November, they, the Respondents, shall apply to rescind the contract, resting themselves wholly on the ground of the delay in fulfilling the contract. On the 20th of October a meeting of the directors took place on the propriety of going on with the purchase; the price was considered at that meeting very large, and, in my view, I think it is important to observe that at that time the attention of the intended purchasers was alive to the question whether they had not been, led by some means or other to offer and to undertake to pay a larger price than they ought to pay. Their attention was quite alive to the question of the value of the property. At that meeting doubts were entertained which led to discussions as to the accuracy of the statements contained in the P. T. paper, and it was suggested then, and after communication with Mr. Attwood it was decided, that a deputation of the directors should go, to Corngreaves in order to satisfy themselves.
My Lords, the proceedings at that time lead my mind to the conclusion that all through this transaction, the parties were not relying upon the statements made to them, but were determined to investigate for themselves, into the accuracy of those representations, upon which the contract, into which they were about to, enter, was based. The view and object with which that deputation was appointed, and went down to Coragreaves, appears sufficiently from the correspondence, and from the resolutions of the directors: they were to judge for themselves upon the spot. If they did not go down for that purpose they went for nothing; their object was to go down to, the spot in; order to get something that they could not get by correspondence.in London,.and they were, from an inspection of the works and the books of the concern, to judge whether the representations made were correct. Three of the directors accordingly went to Corngreaves, and they went not unassisted, but they took with them Mr. Brunton, a, civil engineer of experience, and Mr. P. Taylor, who had been some weeks residing near Congreaves, and who was all this time a member of the company, one of the intended purchasers, and one of the plaintiffs in the first frame of this suit, and who must now be taken to be one of the company, unaffected by anything like fraud on his part, but acting and capable of affecting the interest of the concern in the same way that any other member acting would affect it. Mr. James Morrison, an intelligent agent, selected by the company, was also sent down to examine the works, and he was sent to, examine specifically the mineral field, that is, the extent to which the minerals, which were to form the basis of their operations, went; and Joseph Harrison, another agent of the company, was brought to meet the deputation. How then does the case stand in evidence as to the conduct of this deputation and their assistants, and the result arising from it? And first, with respect to the mineral field, as it is called, upon the state and value of which of course the price to be given must mainly depend: It is stated in the evidence of Morrison that he was, in the month of October 1825, desired by P. Taylor to make a full examination, as to the continuity of the coal; he was directed expressly to examine into one of those points with respect to which, in other parts of the case, it is said that misrepresentation was made, and he stated that " he did go down the coal mine, and from circumstances which he then and there observed, he did believe that there was a fault in that mine." His statement, therefore, tended to raise the doubt and suspicion still further; but what was done? As far as I can make out from the evidence, it does not appear whether any report of Morrison's inspection was, or was not made to the company in London; and perhaps this is not very material; for if a party engaged in negotiating for a purchase of property, and having employed competent agents. to inspect that property, either does not call for or obtain any report from those agents, or having got such report, does not act upon it, I think that he cannot afterwards turn round and say that he has been deceived by placing reliance upon the statements of the vendor, instead of availing himself of the means of information which were open to him. Mr. Brunton went down, also commissioned specially to examine the mineral field, and the report which he makes is very important; he makes a long report to, the directors; he states, " On the 27th and 28th of October I proceeded to examine the various indications of the coal, and in the first place I went to the pit now sinking by Mr. Matthew Attwood, lying to the east side of the Congreaves estate, where they are now going through the regular coal measures or superstrata, affording very satisfactory evidence that the coal will be found at this place, and from hence it is lying in the whole extent to, the pits at Corngreaves, the stratification (where it can be seen) exhibiting regularity." Then he goes on stating reasons which induce him to think very favourably of that pit, and at the end he says, "Upon the whole, it is my opinion that the property is very valuable, and I believe a mineral field of equal extent and advantages is not now to be found in the neighbourhood where it is situated." Then in a postscript, he adds," As neither the question as to the value of the above-mentioned property, nor the sum paid for it, were stated to me, I did not consider it within the range of the object of my mission to offer any opinion on the subject, but the question being now propounded, I have no hesitation in giving it as my opinion that with a sufficient capital vigorously and prudently applied, an ample return for the £550,000 paid for this property may be produced from it."
My Lords, that is the result: I will not trouble your Lordships with reading the whole of the report; he makes a very minute report, from which he draws the result which I have read. His attention was particularly directed to the continuity of the mineral field; that applies to one of the charges made in this case, that there was a fault in the mine, that is a breaking of the continuity, which was concealed, and which ought to have been explained to the company. With respect, therefore, to the alleged fault, I think, first, that no misstatement in fact is sufficiently proved against Mr. Attwood; and secondly, that if the company did rely upon anything said by him upon this point, they are not, under the circumstances of this case, entitled to be released from the consequences of such a reliance.
But the more important point, and that which to my mind creates the great difficulty in this case, still remains to be considered. Does the conduct of Mr. Attwood, or of his agents, in delivering papers and making statements to the deputation at Corngreaves, prove such a case of fraud and misrepresentation as entitles the company to relief? Throughout this case it has appeared to me that the counsel for the Respondents have spent more time and energy than it was prudent to employ, in endeavouring to show generally that Mr. Attwood and his statements were unworthy of credit; almost appearing to lose sight of the true principle upon which alone they could obtain relief, even if they succeeded in establishing that fact, and forgetting that the Respondents must succeed by the strength of their own case, as established in all its branches by evidence applicable to it, and by making out the case charged by the bill. It is true that in a case of this nature a multitude of minute circumstances become material, and must be looked to in order to arrive at a conclusion upon the point in issue; but still all these circumstances must be considered solely as bits and pieces of evidence bearing upon that point, and we must be careful that we do not give too much weight to collateral circumstances of suspicion, however numerous and however calculated to throw discredit upon the person charged, if they do not apply to the particular charge, and bear upon that charge so as to make them pieces of evidence directly bearing upon it. It is not indeed inconsistent with my view of this case, to suppose that Mr. Attwood may have been very anxious that the worst side of the picture should not be turned to the intended purchasers; that he was willing to divert their attention from the proper objects of inquiry, and that he even represented generally his property to be more valuable than it really was. Such cases are of daily occurrence, in which the doctrine of "Caveat Emptor" is to apply, and parties are left to take the consequences of their own want of caution or prudence. A Court of Equity will only interfere with this doctrine of the common law in those cases, in which it is proved that one party has made a representation of a material circumstance which he knows to be false, and the falsehood of which the other party has no means of knowing; and in which it can be further shown that the contract, which it is sought to set aside, was founded upon this misrepresentation so made, and in reliance of the facts so misrepresented.
In this case the purchasers having doubts as to the accuracy of the representations made to them, and prudently resolving to examine for themselves, go to the spot where the works were carried on and where the books were kept. P. Taylor, their partner, one of the parties about to make the purchase, and acting moreover as their agent, was there, and had been in the neighbourhood for some time previous. It does not appear that he was present in the room with the deputation and Attwood's agents, nor does it appear that, when the want of more recent furnace books was observed, any inquiry was made or any question asked of P. Taylor, relative to this point. The members of the deputation being very naturally dissatisfied with seeing only the furnace books of James and Matthias Attwood, are told that no similar books exist of more recent date; but that James and Edwards will produce " calculations " (this word is not immaterial) to show what the present cost of the iron was in the several departments of the works. They went out accordingly for this purpose, and after a certain time returned, and there is no doubt that during that time they were in communication with Attwood, and that what they did was with his cognizance and under his directions; they went out, and after an interval returned with the set of papers called in this cause, "the deputation papers." Now it is obvious that these papers profess to be taken from some books or documents which were within reach, because the parties had gone out for a short interval, made these papers, and came in again. The first obvious point was to see what were the documents from which those were taken. It was obvious that no great length of time would be necessary, with the aid of Attwood's clerks, in order to make this examination. Accordingly it appears that the members of the deputation did occupy several hours in examining and comparing those papers with the books, and did certify such examination by their signatures; if they did not examine them thoroughly, the fault was their own. If, after they were told that no regular furnace books were kept of late years-an important part of the case,-they did not call for and expect such books or accounts as were in fact kept for the carrying on of the business, the fault  was their own; in such case they lost sight altogether of the purpose for which they went down to Corngreaves, for they might have received the deputation papers in London just as well as. in Staffordshire. If on the other hand they did examine and test those accounts by comparison with the documents in existence, but found they did not give a satisfactory or sufficient view of the present state of the works, then the fault was equally their own, in reporting to their constituents that they were satisfied, and in proceeding to complete this purchase upon the ground of such satisfaction. The only answer to, this part of the case appears to' be that James or Edwards (for the evidence is put in that way), the agents of Attwood, made a, statement as to the yields of the then present time, which was false in fact, and misled the deputation. This may be so put, independently of the consideration whether the verbal answer given to a verbal question by an agent of Attwood, not in his presence, is sufficient to fix upon him the charge of fraudulent misrepresentation, supposed to be made by that answer (see the next page, and p. 346).
I still recur to this, that the purchasers had within their call the means of ascertaining the truth or falsehood of such a statement, although not from furnace books regularly kept, and that not having applied themselves with ordinary prudence to do this, they cannot now, especially after such a lapse of time, throw themselves upon a Court of Equity for protection. With reference to, the degree to which Mr. Attwood is to be fixed with what is supposed to be said by one or other of his agents, it is a question how far you can call that proved, which is stated with such uncertainty as that the witness is not able to: fix the individual who made the statement. I beg here not to be misunderstood; I am quite aware that though Attwood did not appear himself,-if he was in the other room, if his agent was going backwards and forwards and communicating with him, and those papers which were brought in, contained misrepresentations in fact, the whole thing must be considered to be concocted between them, and Attwood must be held to be answerable for the misrepresentation contained in those papers; I do not deny that at all. The only doubt which I feel arises out of this, that, in the view which I take of those papers, they do not per se contain any fraudulent misrepresentation. The only thing which would raise the presumption of fraudulent misrepresentation of facts taking place at the meeting at Corngreaves, is what is said by one of those persons in answer to a question put, not in Attwood's presence, not in answer to any question put to Attwood, not, as it appears from any evidence, with his privity or concurrence, but arising at the moment in answer to a question put to this person by one of the deputation. 'I doubt much, assuming as I do in this part of the case that the only charge of misrepresentation here, if made out at all, must be taken to be made out by that answer, and not by the other part of the transaction, to which the evidence refers, namely, the furnishing those papers, I doubt whether one can, with propriety, consider fraud established against an individual in consequence of an answer so given by an agent of his, but the giving of which answer does not appear to have been with the privity of the defendant. (Vide infra, p. 346.)
My Lords, after having spent such time at Corngreaves as they thought proper to do, the deputation on the 28th of October proceed to, Birmingham, on their return to London, and from thence (and this is a very important part of the case in the view which I take of it) they send back to, P. Taylor certain memoranda, the nature and minuteness of which tend further to confirm my opinion that they did resolve to examine for themselves and by their own agents, and did not rely upon the statements of the vendor as the basis of the contract. The queries which they sent back to P. Taylor are extremely minute; they evidently had with them at Birmingham their own notes and memoranda, and with those before them they say, " Here are such and such things we are not satisfied about; we must have further information about them; let us make a reference to P. Taylor to examine them more minutely; " and they do send back by Brunton, whose assistance they had at that time, a paper calling for further information upon very minute particulars (vide sepra, p. 258); and they say at the end, some explanation is required upon these points; having selected the points upon which they desired further information, they state that a meeting will be called for Thursday, or later if Brunton is not prepared; having evidently given Brunton directions to prepare himself for making a report, they state that the meeting in London will take place, when he is prepared to make that report. My Lords, in consequence of that reference, P. Taylor writes this letter, dated 30th of October, two days after the deputation made this reference to him: "Since you left me, I have been constantly engaged in examining Mr. Attwood's books, and comparing the statements which he has exhibited with them" (vide supra, p. 259). That first paragraph is material, with a view to another point. It has been, in some part of this cause, supposed that P. Taylor's attention was so, much occupied with the practical part of the business and carrying that into operation, that he had no time, and in fact did not look into, those books. Now the observation upon that is, that he distinctly states here, -he being (and that must never be forgotten) one of the partners of the company about to make the purchase,- he says distinctly that he has been occupied ever since they made the reference to him " in examining Mr. Attwood's books, and comparing the statements which he has exhibited with them." He-one of the parties who now seek to rescind the contract, having stated himself to have done that-goes on to say, "There are still some points which I have not fully gone through, but shall be able to finish all so as to leave this place tomorrow evening." Then he says, "I may observe generally, that, although it would not be safe or prudent to estimate profits upon the close calculations which Mr. Attwood has recently exhibited " (speaking of what had been done at Corngreaves) " to confirm the statements which he made at the time of his agreement for the sale of his property, still these appear to, me unquestionably to' prove that the data which he gave us at the time of the contract were more favourable to the buyer than the seller."
The deputation then go back to London and make this report to their constituents (vide supra, p. 259 and 260): "Having, etc. proceeded to Dudley Wood and Corngreaves, and, assisted by Mr. Brunton and others, examined the books and other documents submitted to us by Mr. Attwood, we have come to the conclusion that, in comparison with the paper which purports to contain the principles and calculations on which the negotiation was originally founded, Mr. Attwood has substantially redeemed the pledge he has given of proving that the information upon which the managing directors concluded their contract with him is correct and well-founded." After that report the contract was executed.
My Lords, in the course of the argument something was said with reference to waiver and acquiescence. These terms do not appear to me to be applicable to such a case as this. The question is not as to waiver or acquiescence in fraud, but whether the parties have used that ordinary degree of vigilance and circumspection in order to protect themselves, which the law has a right to expect from those who apply for its aid. The whole course of the proceeding from its commencement to, its close tends to show that the purchasers did not rely upon any statements made to them, but resolved to examine and judge for themselves. They did take that course, but they pursued it carelessly and imperfectly; I think that I should have come to a conclusion against the claim of the company for relief at whatever time their bill had been filed; but I am certainly fortified in this view of the case by the consideration that the bill was not filed for some months after the company had been in possession, and when the price of iron had fallen so considerably as it had, according to the evidence making a difference in the annual profits, supposing the expenses to remain the same, of between twenty and thirty thousand pounds. Within the first fortnight after the company was in possession, their partner and their agents must have had the means of knowing the accuracy or inaccuracy of most of the charges upon which the calculations previous to the purchase had proceeded; such as wages, charter price, wharfage, etc.; and they must have had the means of knowing whether there did exist materials from which the true state of the yields and of all other material circumstances might be ascertained. With respect to other items, such as general charges, dead work, salaries, etc. all of which were ingredients going to constitute the price at which a ton of iron could be manufactured and sold, -with respect to all that class of charges, it appears to me to be absurd to suppose that any parties proposing to make such a purchase as this were to, rely upon the statements of the vendor with respect to them. The propriety of inserting them or not in any calculation of the cost of manufacturing a particular article is a matter of opinion among tradesmen and men of business; a judgment upon which each man with any knowledge of business, in general, must form for himself.
Upon the whole case, my Lords, without attempting to go more minutely through the particulars, I feel bound to come to the conclusion that the plaintiffs in this suit, are not, upon this bill, entitled to a decree. I am aware that I have omitted noticing many points which deserve consideration, but I have not willingly omitted any point from my own review and examination of the case; any one point relied upon by any of the counsel or raised by the evidence. I have had the advantage of reading the report of the most able and elaborate judgment of the noble and learned Chief Baron. I need hardly say that I have applied myself with all the diligence of which I was capable to the examination of that judgment, and I have adverted to all the points which are there noticed. I should be much ashamed if I had not given to them the utmost weight and consideration, but I am quite sure that on the other hand my noble and learned friend himself would be among the first to condemn me, if after having given that full consideration and its having brought my mind to a different conclusion from that which he had formed, I had refrained from stating it, even from respect to his opinion.
My Lords, the opinion which I now express has at least been deliberately formed. You will have the opportunity of hearing the opinion of others much better entitled to carry weight with you, but I am bound to express my individual opinion, which is that if the judgment of this House shall be in accordance with the views I have ventured to lay before your Lordships, justice will be done to the parties in conformity with the soundest principles of English law, and in reference to the actual state of the pleadings and the evidence with which we have had to, deal. I would therefore most humbly suggest to your Lordships that this decree should be reversed.
Lord Brougham: My Lords, it has been my province to attend a very long, able, and elaborate argument in this case, for sixteen days, in the session of 1835, during which I heard the whole of the case on the part of the Appellant, and the general outline of the case opened by the learned counsel for the Respondents. But having then acceded to the proposition, which was made, that the further hearing of the case should be postponed 'till the then next session, from the consideration of its being impossible for us to, come to a decision in that session, and that therefore it was better we should hear both parties, that is, the residue of the Respondents' case and the reply for the Appellant, at the same time, in order that the arguments on both sides might be more fresh in our recollection when we came to dispose of the case in judgment,-having upon those grounds acceded to the proposition to postpone the case 'till the next session, the consequence was that my indisposition, -which, I do assure your Lordships and the parties, I regretted on no account so much as that it entailed upon your Lordships the necessity of rehearing so large a portion of the case, and upon the parties the necessity of undergoing much expense in addition to what they had already incurred,- the result was that it was heard on the second occasion, not by myself, but by my noble friend who has just spoken, by the noble and learned lord from whose judgment it was appealed, and by my noble and learned friend on the woolsack. The consequence is that I have not heard the whole of the argument for the Respondents, nor the reply for the Appellant, and I therefore must claim the indulgence of your Lordships, if I abstain from giving my opinion in this stage of the discussion, and rather beg my noble and learned friend on the woolsack, who heard the whole of the case, that he will now address your Lordships. It will depend upon how far I shall see my way clear to coincide in opinion with the judgment which your Lordships will be called upon to pronounce, whether I shall address your Lordships at all. It may so happen that I shall feel myself disqualified from taking a part in this discussion; it may also so happen that I shall feel myself sufficiently competent conscientiously to discharge my duty by taking such part; and it may happen, as a middle course between the two, that I may have to protest against one or two principles which have been laid down, in my opinion erroneously. I allude to that which has been stated by my noble and learned friend somewhat incautiously, with respect to agency in making contracts civilly binding.
The Earl of Devon: That I may not be misunderstood in that in which I think my noble and learned friend has rather misunderstood me, I beg to say that I by no means meant to state as a general proposition, that the principal should not be civilly bound by the act of the agent; but I did intimate a doubt whether it was fair, if the whole thing that could be called an act, was a declaration or an answer to a question upon a particular point in the principal's absence, that he was to be bound by that declaration. That was the way in which I meant to put it. (Vid. supra, p. 341.)
The Lord Chancellor: My Lords, I am quite willing to concur in the course of proceeding recommended by my noble and learned friend. I have paid the utmost attention to this very important case, -important in amount of property, important from the great variety of documents which are to be referred to before it is possible to come to any accurate conclusion upon the facts,- I have devoted to it as much time and attention as it appeared to me the case required, to enable me to come to a right conclusion upon the facts.
Before I call your Lordships' attention to those facts, or to the grounds upon which I have come to the conclusion which I am about to state to your Lordships, I beg to call your attention in the first place to the state of the record, because in one particular the record stands in a shape, after the judgment of my noble and learned friend who decided the case below (in part of which judgment I entirely concur), which I never yet remember to have seen in any proceeding in a Court of Equity.
The record is framed, after the amendment, upon the ground that one of the purchasers, P. Taylor, had so lent himself to the unjust purposes of Mr. Attwood, that it was proper for the plaintiffs seeking to be relieved, not merely from the contract, but from the actual sale which had been effected, to make him a defendant upon the record. I enter not at present, nor do I know that it will be necessary for me at all to discuss the propriety of that order, which enabled the plaintiffs to remove P. Taylor from his situation of a co-plaintiff into that of a defendant. I look at the record as it stood after the amendment; I find the plaintiffs asking a Court of Equity to rescind and annul the actual conveyance of an estate, charging P. Taylor, one of themselves, one of the parties to the contract, an active member of the body engaged in this transaction, with having abandoned his duty towards those with whom he was associated, not only as a partner but as an active agent for the company, and alleging against him circumstances, which, if proved, would have amounted to gross fraud. If that case had been made out; if it had appeared in evidence that P. Taylor had abandoned that duty which he owed to those with whom he was associated, and for whom he was acting as agent, and had lent himself to corrupt and unjust purposes of Mr. Attwood, the record would undoubtedly have been most properly framed, and Mr. Attwood would not have been able, and a Court of Equity would not have permitted him, to object to altering the state of the record by making one of the parties with whom he had contracted a co-defendant with him. The allegations against P. Taylor were fully considered by my noble and learned friend, by whom this case was decided below, and in that part of the conclusion, to which he came, I entirely concur, that the case against P. Taylor was not made out, that the allegations of fraud, so far as they appear upon the bill, were negatived; I say, negatived, as to any conclusion to which a Court of Equity could come upon those facts; other facts were attempted to be brought to bear against him, which were not proved, and which in the course of proceeding a Court of Equity ought to throw entirely out of its consideration, inasmuch as neither he nor Mr. Attwood, who was as much interested in that part of the case attempted to be made out against P. Taylor, had any opportunity of meeting allegations, not to be found upon the record and not put in issue in the cause. Looking, therefore, to those allegations against P. Taylor which were upon the record, I have not a moment's hesitation, nor had I, from the commencement of this discussion to the present time, entertained the slightest doubt that the judgment of the Court below upon this point was entirely correct.
My Lords, what is the result of the conclusion to, which the noble and learned Lord who decided the case below came upon that point? It leaves the record with P. Taylor, the active agent and co-partner of those who seek to be relieved from this purchase, not only a defendant; but I shall have presently to call your Lordships' attention to the allegations of the bill, which from beginning to end charge P. Taylor, who is now acquitted of all participation in the alleged frauds of Attwood, that he from the commencement knew the whole transaction, that he did examine the books, that he did know all that Attwood knew, that he was there upon the spot; and without alleging those facts upon the bill, it would be impossible to allege the fraud imputed to him; it was because he was supposed and charged to have known the fraud alleged to be practised by Attwood, that he was made a defendant upon the record; but if those allegations have failed, and if by the judgment of the Court below and the judgment of your Lordships, P. Taylor is properly acquitted of those imputations of fraud, how is it that the acts of P. Taylor, a party to the transaction, one of the parties purchasing, are not to be considered as operating upon the rights as they exist between the company and Mr. Attwood? I cannot but think, that the plaintiffs felt that this would be the necessary result of leaving P. Taylor as a plaintiff upon the record, they knowing what would be proved in respect of him, they knowing that when the evidence came to be sifted, Attwood was in a situation of asking the judgment of the Court upon the facts, as he should be able to prove them, and that this case would appear; that one of the plaintiffs had from the commencement known all the facts from which fraud was to be imputed against Attwood, and that it was therefore found impossible to go on with the cause, P. Taylor remaining a plaintiff. Then can the situation of the plaintiffs be better because they have removed him from the situation of a plaintiff, and placed him by leave of the Court in the situation of a defendant? If he be actually one of the purchasers, if he be an active agent of the company purchasing, if he, their agent and co-partner, has, from the beginning, known the whole which is imputed to Attwood; if he was cognizant of all the facts from which fraud is imputed, your Lordships will find, in one view of the case, it would be impossible that the company should divest itself of the consequences of that knowledge on the part of one of their own body, which is in effect the same as knowledge by themselves. When I come to, call your Lordships' attention to what I consider to be the real question between the parties, the only one on which any great doubt or difficulty arises, and which constitutes in point of fact, both in the argument and in the pleadings the main subject of contest, this knowledge on the behalf of P. Taylor will be found to be of the utmost possible importance; important not merely on the ground of acquiescence, not merely on the ground of the party seeking to rescind a contract, or rather to annul an actual conveyance, upon an allegation of facts which had been known to them for a long time before the date of the contract, but as leading to a safe conclusion as to what was the real understanding of the parties as to the nature of the representations alleged to have been made by Attwood to the company, and as to his and their conduct as to those alleged representations.
My Lords, there is another part of the case, also occurring upon the face of the record, to which I wish to call your Lordships' particular attention, because it not only is of great importance in the present case, but because I consider it to be a point of the highest possible importance in the administration of justice in all Courts of Equity. The plaintiffs (dealing with Mr. Attwood, whether he is to be considered as the vendor of the estate and so entitled to receive the large sum contracted to be paid to him, or whether he is to be considered the owner of this property, which, according to any calculation and to the opinion of any person examined, is of very great value) have thought it right, under, I call it, the pretence of having a remedy for costs against two persons Edwards and James, to make them defendants upon the record, having nothing to pray against them, from which they could possibly derive any benefit by making them defendants, -I mean any legitimate benefit,- except a security for costs, for fear Mr. Attwood, either the owner of £550,000 or of property which had been at one time estimated at that price, might not be able to make good the payment of those costs. My Lords, it is not too much to call that a mere pretence; it could not possibly be the reason why the plaintiffs should make those two gentlemen defendants upon the record; but it so happens that those two persons were the agents of Attwood, that they were persons who intervened between him and the company, and it is upon their alleged representations, upon conduct coming through them and upon what they are supposed to have said, that the allegation of fraud is made in a great measure to depend.
My Lords, it is not necessary that I should now pursue this part of the case: if a proper occasion should occur in this House, I should not shrink from the duty of calling the attention of the House to the question, whether that course of proceeding in Courts of Equity, which has, I know, been recognized by the highest possible authority, is a course of proceeding which ought to be recognized by this House. To me it has always appeared, both when practising at the bar, and since I have sat on the seat of judgment, that it is a practice that ought never to be resorted to, except in some very extreme case where there is really a fear of losing the costs; that, where that is not the case, it cannot be resorted to except for the purposes of injustice. It is borrowing from the criminal law of this country one of its most objectionable practices; parties charged with a conspiracy, we know, are often joined in an indictment in order to prevent the principal defendant from having the benefit of their testimony. Why an objectionable course of proceeding in the criminal law should have been adopted into the administration of justice in the Courts of Equity is a matter, which in due time it will be very proper to consider; but, my Lords, there is no comparison between the evil as applied in Court of Equity and that which is applied in a criminal proceeding, because, although great difficulties occur undoubtedly to the court and the jury in coming to a satisfactory conclusion where a material witness is included in the indictment, yet if the case is not made out against the party so included, he is acquitted and discharged at once, in order that he may give evidence in behalf of those with whom he was so improperly associated in the indictment: so that before the case of the principal party is submitted to the jury, that party has at least the chance of being restored to the situation, from which he ought never to have been removed, of having the persons, who from their knowledge were competent to speak to facts, to speak to them on his behalf. But that cannot be done in depositions taken in a Court of Equity, because, whatever may be the result of the hearing, whatever may be the opinion of the Court before which such a case comes on to be heard, the depositions have been taken with the pressure of the suit against the defendant; and although it has been, usual to take the depositions and to leave the Court to deal with them as it may think proper at the date of the hearing, it has never appeared to me to be at all reconcileable with any principle on which evidence is examined, to take the depositions of a defendant in the suit; pressed with the suit and with the possibility of having costs awarded against him -to take his depositions, affected as they- are by the pressure of circumstances at the time he is examined, and then, because it appears that, there is no case made out against him at the hearing, to read his depositions. It is unjust against the party, against whom the depositions are then read; it is unjust to the defendant to make him a defendant, and it is unjust to the plaintiff to read his depositions after he has been acquitted of the fraud, because he has made his depositions, not for speaking the truth or informing the Court of the real facts of the case, but he has made them under the pressure of a suit existing against him, of the result of which he must be ignorant, and therefore influenced and biassed not to state the truth as it exists, but to make the best case he can for himself. It is objectionable, therefore, in every possible view; it is productive of no good, and I have frequently said since I have had the opportunity of expressing a judicial opinion upon the subject, that I did not think any case would ever be brought before me under such circumstances, that I should think myself safe in proceeding to adjudicate upon the merits, where the plaintiff had deprived me, by such means, of the opportunity of knowing what those, who were most able to speak to the facts on the part of the defendant, could depose to.
My Lords, that circumstance alone would have induced me, before I could assent to the judgment, as it stands, to have thought it absolutely necessary that this matter should be put into some state, in which it might be inquired into with the advantage to the defendant of being able to prove his case, and I could not certainly assent to a judgment against the defendant, who, for anything I know, had not been at liberty to look into the depositions of those two witnesses (Edwards and James) -who, for anything I know, might have been able to explain by the testimony of those, who could speak to the facts, what really did take place, and so to explain circumstances, from which, unexplained, an imputation of fraud arises. Entertaining these feelings, I had the greatest satisfaction in observing the course which this House took in the case of De Beauvoir v. Rhodes (Vide post a note of that case [6 Cl. and F. 532]), where a similar proceeding had been adopted, where persons who were important witnesses for the defendant had been made parties on the record. There was more pretence in that case than in this, undoubtedly. My noble and learned friend, who at that time presided in, this House, can better state, than I can, the ground upon' which that case proceeded. I argued with great earnestness at the bar, and I flattered myself that the House proceeded upon a principle quite consonant with justice, and would not adjudicate upon the rights of the parties without putting the matter in such a state that the defendant might have an opportunity of bringing the facts before a proper tribunal.
[Lord Brougham: Lord Eldon and Lord Plunket entirely agreed in that view. We fully considered and discussed that very point, and as I am reminded, Lord Wynford thought that justice could not be done without it.]
The Lord Chancellor: I am quite sure there is no view of the case more consonant with justice or more important to the administration of equity than the view those noble and learned Lords took of the position of the parties in that cause; and it will be a very great satisfaction, if what has fallen from my noble and learned friend shall have the effect of checking a practice, from which no plaintiff, so long as I have the honour to preside in a Court of Equity, shall be permitted to derive any unjust advantage against a defendant. I cannot myself conceive a case in which I should feel myself at liberty to come to an adjudication where the plaintiff had, under the pretence of having security for costs, deprived the defendant of the means of proving his case.
My Lords, having called your Lordships' attention to what occurs to me, upon the state of the record, I will now state what I consider to be the real matter in issue between the parties; but to avoid the necessity of recurring to it again, I may say now in respect of some of the charges, as the fault in the mine and other matters, which are upon the record and upon which the judgment of my noble and learned friend was exercised, I entirely concur with him in the view he has taken with regard to the fault (Younge, 488 and 503). Whether the fault had been endeavoured to be concealed, whether there had been any such concealment as would vitiate the contract and purchase between the parties, it is not at all necessary at this time to inquire, because the ground on which my noble and learned friend disposed of that part of the case appears to be quite clear, that whatever was known to the parties must have been known to, the purchasers early after their possession, which was in the month of November, and it is quite impossible, with the knowledge of that defect in the month of November, the purchasers going on dealing with the property, not as an ordinary estate, which may be restored at the end of six months in the same state in which it was, but a property of this description, varying every day, that they can set up such an objection at the end of six months, when they must have known the fact from the commencement. There are other charges of minor importance, to which I think it unnecessary to call your Lordships' attention. I will proceed, therefore, to state what I conceive to be the real matter in issue between the parties, and to state to your Lordships that course, which I consider agreeable to justice and most likely to lead to a satisfactory conclusion.
Your Lordships are aware the property in question: consisted of lands and mines, partly leasehold, and partly freehold. The company being desirous of procuring property of that description, a negotiation is entered into between Mr. Attwood or his agent and the company or their agents. The plaintiffs allege, and so far undoubtedly the facts prove that they are correct, that representations were made by Mr. Attwood as to the state of the property, as to the productive power of the property, and certain circumstances material to be considered by those, who were intending to become purchasers of the property. Those representations in the first instance were verbal; they were afterwards reduced into, writing, not by Attwood, but by Mr. P. Taylor, one of the proposed purchasers; and there is evidence that Attwood afterwards saw this paper, the P. T. paper No. 1, which had been the subject of much discussion, and that he sanctioned the representation made upon it, and adopted it as his representation of the facts. The negotiation having gone on for a, considerable time, till the day elapsed (the 1st of October) on which it ought to have been completed, and there being still some question about the title, the bill alleges that the contract was actually at an end. But that does not appear to be the fact. There undoubtedly was a difficulty about going on with the contract, and a doubt whether it should be prosecuted or not, that ended, according to the statement in the bill and according to the evidence, in the company agreeing to go on with it, provided that was done which in point of fact formed a part of the original contract, or rather of the original undertaking, namely, that those representations, whatever they were -I do not at this moment inquire what they were- appearing upon the P. T. paper should not be taken on Attwood's representation, but proved to the satisfaction of the company to be correct by the books and documents in Attwood's possession. Accordingly a deputation was sent down consisting of three members of the company and three professional persons, to assist in the investigation, and the question turns upon the course of dealing and proceeding at the time that deputation went to Corngreaves.
Now, my Lords, it is very important to bear in mind what is alleged and proved to have been the purpose of that deputation, because it is singular enough that upon the face of this record, that does not appear to me to have been very accurately stated. The object of that deputation was not to receive any new representation, except for the purpose of proving the accuracy of the first representation contained in the P. T. paper, and yet the bill exhausts its vigour against the D..papers, which were produced at the time to that deputation, and leaves untouched, except so far as is to be deduced from the circumstances connected with these D. papers, how far the P. T. paper was proved or not; because the object of the deputation being to prove how far the representations made upon the P. T. paper were correct, it may be that inaccuracy crept into the D. papers from the representations then made. But the question is what was the contract between the parties? I apprehend it was to go on with the contract in the terms to which I shall presently refer, if the representations on the P. T. paper were proved. It is very difficult, therefore, to support a case on any inaccuracy or any want of information, or any withholding books or documents from that deputation, unless it could now be made out that the representations made in the P. T. paper were not correct. The parties, however, go down, and there is certain evidence brought before them. What passed at that meeting is one of those matters which by the course the plaintiffs have adopted, remains in great doubt upon the parol testimony, for this reason, that the plaintiffs have incapacitated the only two persons who, being employed by Attwood, can speak with any accuracy as to what actually occurred. Now, my Lords, there is the issue between the parties, the plaintiffs asserting that the P. T. paper and the D. papers, that is, the original representation, and the papers produced for the purpose of proving and authenticating that representation, were representations of what had actually taken place within a certain time. The defendant, on the other hand, says that that was not the object either of the one representation or the other; that the object was to exhibit, not what had taken place within a particular fortnight, but that the object was to show those who, were about to become purchasers what they might fairly calculate upon, as the result of the future working, to be derived from an experience of what had taken place before.
My Lords, the evidence of the representation intended to be made, independent of what appears upon the face of the papers themselves, rests upon some parol testimony given on behalf of the plaintiffs, testimony on which, in the absence of all evidence on the part of the defendant, I should think it extremely dangerous to place any great reliance. The course which has appeared to me to be most secure from any error as to the credit to be given to the testimony, and the most likely to lead to a safe conclusion, is this: In the first place, to try and test the accuracy of the case made on the part of the plaintiffs, and of the defendant, not by reference to what any witness may state as to what he heard pass in conversation with different parties, but to what I find in writing passing between the plaintiffs or their agents and the defendant; or, what is still more important, passing between the different members of that company which the plaintiffs represent. If I find no doubt, if I find no difficulty left upon my mind as to what was the real understanding of the parties, not merely as to the nature of the representations made or intended to be conveyed by these papers, but as to their acting upon that information in the way in which they understood them, I need hardly say that I should not think it safe to give any credit to a witness who, should be called for the purpose of stating something that had passed in -conversation inconsistent with the result of such documents.
If your Lordships will continue to bear in mind what is now the representation on the one side and the other on this important issue, with reference to, what was the representation intended to be made by those two descriptions of papers, your Lordships will, I think, consider this an important consideration; putting yourselves into the situation of the intended purchasers, what is the sort of information which you would naturally wish to obtain? The object of the purchasers must have been to enable them to judge whether they were safe and right in paying so large a sum of money, and in order to come to that conclusion, their object must have been to ascertain, as far as the nature of the case would permit, what were likely to be the fruits of the expenditure of so large a sum, in which they were personally interested, and in which they were trustees for the company at large. Would it have been satisfactory to the purchasers under such circumstances to, have been told what had been the result of a fortnight in any one year? Would that information have enabled them to come to any satisfactory conclusion? Would it have enabled them to form any satisfactory guess as to what was likely to be the result in any future year, under the varying circumstances, and all the changes to which property of that sort is liable? One would suppose that any person desirous of becoming a purchaser would be most anxious to ascertain what had been the average result of former workings, taking one year with another, taking one description of coal with another -for it appears that the produce was affected, not only by the nature of the materials, but by the weather at the time those materials were used- in short, taking all the contingencies attending such a business into consideration, what was likely to be the result of the future workings to be derived from the experience of the past. So far, before we come to any conclusion from the evidence, whether it be documentary or parol, that information would be information which, under those circumstances, the company would naturally have wished to obtain.
My Lords, I wish, before I call your attention to the particular allegations of the bill, to state what I consider to be the points in issue, and more or less affected by the investigation of the written documents, to which I am about to refer. I apprehend there are several points to which the investigation of those documents will be most important: in order to save the necessity of again referring to them under each particular head, I will now put your Lordships in possession of the points upon which it appears to me they afford important evidence. The first is whether the representations were matters of fact, or only speculative calculations of the future; secondly, whether those representations, whatever they were, were acted upon by the company; thirdly, whether they were true or false; and lastly, whether anything has happened to deprive the company of the right of insisting upon inaccuracies in those representations, if inaccuracies in point of fact existed.
Now, my Lords, the allegations in the bill will be found material in considering how far the written documents bear upon any or either of those propositions. The bill alleges that on the 12th, of May, upon opening the negotiations, the company informed the defendant that they should take the opinion of P. Taylor and another engineer, and that they would probably require to see the works; that on the 13th they informed the defendant that they were willing to purchase, provided it could be shown that the property and works were worth the money; that the defendant undertook to show what the works had done and were capable of doing, and the actual cost of material and labour required for manufacturing iron at the works; that on the 25th of May, P. Taylor went down to, Corngreaves, and that the defendant gave him a statement of the quantity of iron-stone and coal raised from the mines, and the cost of manufacturing the same, and the profits made thereof, but would not permit him to inspect the books. – Your Lordships will see when I come to some of the written documents, how far that allegation is true. That on the 6th of June a meeting took place, at which the P. T. paper was produced, and the defendant then acknowledged that those were the representations he had made. Then a, letter of the 6th of June, (vide supra, p. 239) is set out in the bill, in which the company accept the purchase, but on the understanding that Attwood should afford P. Taylor every facility to ascertain the correctness of the representations which had been made to him respecting the property, and should they prove otherwise in any essential point, the offer was to be considered as not binding. Your Lordships will find that P. Taylor was upon the works and remained upon the works for a considerable time in the months of September and October, before the renewed contract, which took place late in the month of October. Then the agreement itself is stated; but it is not material now to detain your Lordships by going over the details, except to show that the money was to be paid by instalments, £100,000 in October 1825, £100,000 in April 1826, and so, on. Then the bill states that the time having elapsed, and there being a doubt whether the contract should go on or not, the 1st of October having come and the title not having been completed, a meeting took place on the 21st. of October, at which it was proposed to the defendant to renew the contract if he would permit a deputation to go down to the works to: ascertain the accuracy of the statements in the P. T. paper. That being assented to by Attwood, three directors, Small, Leathley and Donaldson, and three professional persons, Morrison, Harrison and Brunton, acquainted with mineral property, were to go down to, inspect the mines. Then the bill states that which is matter of parol evidence, and therefore I do, not go over it, what passed at the time the deputation went down. It then states (for the purpose of making out a case against P. Taylor) the letter to which your Lordships' attention, has already been called by my noble and learned friend, the letter to P. Taylor (supra, p. 258); a most important letter, which appears upon the documents, and which cannot be too much pressed upon your Lordships' attention; that whatever passed at the time the deputation was there, that whatever information they had derived, that they were not altogether satisfied with what had then passed is clear, because having left Corngreaves they sent some of the papers back again to P. Taylor, with a direction to him to make certain inquiries; and that document and P. Taylor's answer have always appeared to me to be a part of the case most important, and which, with all the evidence offered on the other side, I have always: considered as very nearly conclusive on some of the most important points' in dispute between the, parties.
My Lords, the bill then goes on to state in various passages, in order to make out a case against P. Taylor, that he was cognizant of the fraud; that he was aware of the misrepresentations at that meeting stated to have been made to the company, and upon that ground it was they asked that he might be made a defendant; and John Taylor, his brother, is alleged to be made a defendant because it was supposed he would not wish to appear in the character of a plaintiff against his brother.
Now there is not, I apprehend much doubt or difficulty as to the matter in issue. There are some facts, about which there is no, dispute; there is no doubt that there were not any furnaces at Corngreaves; it is equally clear that although there were six at Dudley Wood, five only were in action. The representation, or rather what is intended to be conveyed by the P. T. paper, has never been considered as intended to assert anything as to what had occurred at Corngreaives, because it is obvious that there being no furnaces at Corngreaves, that must have been mere speculation. Accordingly, it begins, "Six furnaces to be erected on the freehold (supra, p. 254);" assuming that six furnaces will be erected upon the freehold, it begins with a, statement that "360 tons of pigs will require 1200 tons of coal at 4s., all charges;" and it goes on exhausting the calculation as far as Corngreaves is concerned, upon the assumption that there were to be six furnaces erected there, and that; those six furnaces would, by the application of a certain quantity of material, and a certain quantity of labour, produce certain results. That is not the ground on which it is said that there is any misrepresentation of facts. Then comes this statement: " The above statements have been made out upon data as to the cost of materials and charges, which considerably exceed the actual costs and charges as shown by the books kept at the works. Thus three tons, six cwts., two qrs., eighteen lbs. of coals are allowed to each ton of pig iron, amounting to the weekly sum of £240, but the quantity actually used is two tons, sixteen cwt., two qrs., being a weekly charge of £203 (p. 256)."
Now that, undoubtedly, is a representation of the result of former experience; there is nothing in it to confine it to a particular period; there is nothing to show this is the produce of a particular working at a particular time, namely, the fortnight which preceded the 6th of June, when the contract was made; but it is a representation of what had been found to be the result of former workings and of past experience. Again, it says, "Eighteen cwt. of limestone. are supposed to be required to each ton of pig, whereas the books show the actual consumption, ten cwt., three qrs., eight lbs., making a difference of £47 per week on the cost of that article. "That statement is open to, the same observation. Then comes a statement for the purpose of leading to the conclusion of what past experience will prove. "The charge of labour for making pig iron is stated at 15s., whereas the average charge, according to the books, is 13s. 0 3/4d.;" an expression showing that -which to my mind is the fair inference from the rest- it is not a representation, of what had taken place at any particular period, but that an average of former workings was intended to be, conveyed by this paper. The following is more like an assertion of fact: "There are six furnaces on the leasehold property, making 360 tons pig per week." This was known to all the parties, for they had been over all the, works, at least at that time P. Taylor had been there; whether he had been there or not, it was a matter open to the eyesight, that though there were six furnaces at Dudley Wood, five only had been worked. To suppose that Attwood, referring to the books, not asking the parties to take this on his own statement, but saying the books, will show so and so, intended to represent to those to, whom he was presenting this paper, that there were six furnaces making 360 tons of pig, whereas there were live only at work, and therefore not producing 360 tons of pig, is a supposition which is perfectly incredible. But that there were six furnaces which, according to past experience, were capable, if at work, of producing 360 tons of pig, is perfectly consistent with the fact naturally intended to be represented by the intended vendor to the intended purchasers; and though the language is not framed as it might be to convey that meaning, it is much more consistent with that, which may be supposed to have been the meaning, than with the supposition that Mr. Attwood was asserting as a, fact that six furnaces were at work when there were only five. Throughout the whole of that paper I can find nothing which can be considered as intending to, assert any fact as to, any particular time. It states results, it states calculations, -it states what may be considered as being, in the mind and opinion of the party making that statement, a fair result of former experience, and he refers not to, his own authority, but says the books show such and such to' have, been the result of past experience.
If then, my Lords, there is no erepresentation on the P. T. paper intending to show the fact at a particular time, how is it possible that the D. papers should show that? The object of the D. papers was to verify the P. T. paper, and the P. T. paper did not raise any question as to, a particular time, but was merely intended to 'convey the result of past experience during such periods as the purchasers might think it proper to go back to for the purpose of investigating the accounts in order to come to a safe conclusion as to the future. Is it; consistent with the object the deputation. had in view that they should pursue a, course of inquiry so perfectly foreign to' the object for which they went down, namely, to test the accuracy of the P. T. paper, and to, obtain that information which is the sort of information which they would require for the purpose of coming to a safe conclusion.
The deputation papers (supra, p. 257 and 258) appear to me to prove two things; first, that they were not intended to, refer to, any particular time, but to draw a result from the average experience of the past, and that they were not taken on Mr. Attwood's statement, but from an actual inspection of the books. Except the date of the 6th of June 1825, I find nothing upon the face of these papers to fix them to any particular period, and I apprehend that that date must have found its way there because it was the date of the original contract. I think one of them bears date the 28th day of May. Why the 6th of June appears on one document, and the 28th of May on the other, I do not know; but there is nothing upon the date tending to show that it was the result of any particular period. The paper D. 1 begins, "Cost of making 360 tons of forge pig-iron." Now whether the company had or had not knowledge of the situation and circumstances of the property at the time the P. T. paper was framed, it is quite clear that when the deputation papers were framed, they were then aware that there were not six furnaces at work, but five furnaces only, and yet the statement on the face of the first of these papers is the "Cost of making 360 tons of forged pig-iron at the Dudley Wood and Netherton furnaces," as if six furnaces were at work. Then it goes on, "1170 tons of coal." The P. T. paper had stated 1200 tons of coal as required for that purpose; some subsequent investigation had reduced the statement to 1170, but how is that introduced? "1170 tons of coal, average price at 9s. 5d. a, ton;"that is subdivided in the handwriting of one of the deputation," 9s. payable to Lord Dudley, and 5d. carriage." It is obvious that that is not the average of a fortnight, but that the parties were looking to that which they naturally would be in search of, namely, the calculation of average for the time past. Then comes a note at the bottom of that first paper, which refers to 9s. 8d., Dudley Wood: "This average is only 10s. 11 1/2d." Then there: is this note: "The only additional charge on making pig-iron consists of a machine-man and a clerk, which cannot exceed 2d. per ton;" " Taken from Mr. Attwood's books." That is the statement of Mr. Leathley, one of the deputation, who was sent down for the purpose of testing the accuracy of the P. T. paper by the books; and he states upon this paper that Attwood's books had been inspected, and he puts this note, "Taken from Mr. Attwood's books;" and there are notes written by the same person on several of the other papers, in which a difference appears in the cost, as in the next D. paper, No. 2, " Cost of coal at Corngreaves," and then in No. 3, is this, note, "The above is an estimated cost." "Cost of making 360 tons of forge pig-iron at Corngreaves," necessarily was an estimated cost, because there had been no furnaces at Corngreaves. The note says, "Estimated cost." Considerable argument was raised upon that expression, that it was meant to draw a distinction between estimated cost at Corngreaves, where no furnaces had been erected and actual cost at Dudley Wood, where furnaces had been erected; that the expense might be more or less of carrying on those works at Corngreaves than it was found to be at Dudley Wood and Netherton. It does not necessarily follow that those other costs were not estimates from the past averages. It does not follow (which is the inference attempted to be drawn) that the others were statements of actual expenditure at a given time. It may well be that one was an estimate, because there was nothing on which they could form a conclusion, except what information they might draw from the other workings; and that the others were so far statements of facts as' there was the experience of the past to which they might have recourse for the purpose of calculating the probable result of future working.
The purpose for which I was desirous of calling your Lordships' attention, to, those papers was, that I  saw nothing upon the face of them, nothing but that date, whicft stands at the head of them, by which it, could be supposed they were intended to represent the actual result of any particular period. Another point material to be considered, upon which a great deal of the result of the argument turns, is whether those representations both in. the P. T'. paper and the D. papers were intended to represent the actual expense.of labour employed in producing a particular quantity of iron, or whether they were intended to represent what is called the dead work, in-' eluded in the actual labour producing a particular quantity of material. It is obvious that nothing can be so, vague or present so, much difficulty in coming to anything like an accurate representation, as the mode in which the expense of dead work is to be, divided among the expenses of producing any particular quantity of metal. There may be work going on for a great length of time during which there is nothing produced; great expenditure there must be on the opening of every new mine, as there may be in the working of an old mine, if any accident happens; if the water gets in, labour and expense may possibly be required for the purpose of commencing operations and producing actual ore. Then surely, if you are to calculate what the profits upon property of that description are likely to be, it is very important to calculate and ascertain what is the expense of real labour which does not produce any immediate benefit, though it may lead to ultimate benefit; but to apportion that expense to any particular quantity of produce is next to impossible, prospectively, because, although you know what you have to expend in labour which is not productive of immediate benefit, you do not know amongst what quantity of ore you are to divide that. You may spend a thousand pounds in dead work; you are not to divide that amongst the first thousand tons of stone produced, because that £1000 expended may enable you to produce, without any further material expenditure in dead work, a quantity of stone of which you can form no calculation. It is therefore utterly impossible to come to any safe conclusion by including in the average of the labour expended in producing a particular quantity of metal any such apportionment of the dead work. But on the other hand, the labour of working a particular quantity of material produced is not open to that difficulty, because you take a certain quantity of ore, and a certain quantity of coal, proved by experience to be sufficient for the purpose of converting that ore into, metal in its different stages; and when you have those given quantities and the labour of raising the ore, the mine being in a good state of working, you have then no great difficulty in coming to a conclusion as to the quantity of materials or the quantity of labour required for bringing a certain quantity of ore into a marketable state. My Lords, much depends upon the result of the calculations on both sides as to what was intended to be represented by these papers. It is said that the sum appropriated as the expense of producing a particular quantity of metal is too small. It would be too small undoubtedly, if all the expense of working during that period is to be taken into account, but the question is, did the parties intend it so to be? The parties, though they were not iron-masters, had the advice of professional persons, competent to advise them upon the subject, but it required no knowledge of a particular trade to see the utter impossibility of stating with any accuracy how much of the dead work you are to throw on the produce of a particular quantity of metal. There is on one of these papers of the 28th of May 1825, " For merchant bar iron, No. 7," this note with P. Taylor's initials: " The above charges appear to be correct, but it would be safer to take the calculations originally handed in by Mr. Attwood, as an average to reckon profits upon. "That same opinion is to be found in another document coming from P. Taylor, and therefore it is not unimportant to call your Lordships' particular attention to it.
Now having called your Lordships' attention to what appears to me to be the main question between the parties, as to what they understood these papers really were intended to represent, let us see from the evidence whether they were or not verified or falsified by the subsequent inspection and investigation of the books of Mr. Attwood. I before stated that I considered the documents to which I am about to refer as leading to no very doubtful conclusion upon this point; and having already stated what appears on the face of the papers, I am endeavouring to ascertain, from what the parties themselves said and did, how they understood them. According to the best attention that I have been able to, give to these documents, I draw these conclusions from the inspection of those books; first, that the papers were considered as averages of the past, and were not intended to include dead work; secondly, that the company had full access to the books and admitted the accuracy of the statements, that with all the information they had they not only acted on the contract, but induced the defendant to vary its provisions in their favour and from this I think your Lordships will be of opinion that there is much in the conduct of Mr. Attwood, during these proceedings, which is not likely to have been the conduct of a person who was conscious that he was practising a fraud upon those with whom he was dealing. One fact, which is of an earlier date, and therefore I wish to call your Lordships' attention to it, is this: The great objection that Mr. Attwood made, in the month of October, to carrying on this contract at all was, that he had contracted personally with three persons. He had got the personal liability of the three; the company were willing, notwithstanding the delay which had taken place in completing the title, to renew the negotiation, but he refused to enter into any such contract unless they got John Taylor, one of the directors, who was then in Cornwall, to concur, Wishing to preserve his liability, Attwood refused to have anything more to do with them, unless they got his concurrence; they with great trouble got a power of attorney from J. Taylor. There was some defect in it, and still he refused to have anything to do with them. Now at that time he had got a contract for £600,000, and if he had thought that he had got a highly beneficial contract, and that contract by misrepresentation, it does not appear likely that he would have acted in this manner. It is not like the conduct of a man who was eager to carry on a bargain, of which he was conscious he had improperly got the benefit. There is a subsequent part of Mr. Attwood's conduct which perhaps is open to observation, and certainly it has struck me as a circumstance, above all others, appearing to lead to suspicion that he was conscious that he had at least got an exceedingly good bargain, namely, the facility with which he parted with the sum of £50,000. There does not appear to have been the least pretence for asking to take off that sum. The original contract stated that he held a particular part of the property at will. The deputation went down, and after they returned, they said they found out that he had made a promise to obtain a renewal of it. There is no representation in the contract of a promise to renew it, yet it appears that on the mere asking, he took off £50,000 of the £600,000. One might infer from that fact that he was glad to take £550,000 for that for which he was to have got £600,000. That is the least inference that can be drawn from it. But at the same time we cannot but recollect how much the times had changed from the month of June 1825, when the original contract was made, -that year when property of this description was caught at by speculative companies, willing to give any price for it,- and the period at which he was called upon to throw off that £50,000; and feeling that there was a question, at least, whether he could compel the company (from the nature of the contract, and his not having been able to complete his title within the given period), whether he should be in a situation to compel the company to complete, one may, I think, find some reason for the facility with which he gave up the £50,000, not inconsistent with his feeling perfectly satisfied as to the integrity of the contract for the original sum.
My Lords, it appears that P. Taylor and Harrison were at Corngreaves in October and November 1825, and that they had access to the books. On that subject there is no dispute, that is to say, no balance of testimony. Now this was partly in October and partly in November, while the original contract was pending, before the renewed contract was entered into; and the original contract is stated in the bill, and proved by the letters; and here the evidence is left very short, and it is mere conjecture why they were there, or why it was Mr. Attwood permitted them to have access to his books. The letters, which accompanied the contract, gave a power to the company to take an undertaking from Mr. Attwood that what was stated in the P. T. paper should be subject to proof. Whether they were there for that purpose does not appear. If they were, it was in execution of the undertaking which Attwood had given. If on the other hand they thought proper at that time to trust entirely to the statement of Mr. Attwood in the P. T. paper, then at least it was evidence on the part of Attwood that he was not conscious that anything which his books contained would furnish to those, with whom he was contracting, a ground for retiring from the contract, which he was anxious to, carry into execution. If so, it shows that whether they were there for the purpose of making those inquiries on the part of the company or not, they had an opportunity of doing so, and that the company having done so extraordinary a thing, if they did it, as to have entered into a contract for the purchase of property on the representation of the vendor, without taking any means of satisfying themselves of the accuracy of the representations which he made, it is very extraordinary that a person so active in the management of the affairs of the company as P. Taylor, being there with the assistance of Harrison, should not have taken that opportunity of endeavouring to ascertain from the books, to which he had access, whether those representations were correct or not. The fact, however, is that they were there, and it is proved that they had access to the books, and to some extent (to what extent does not appear) they availed themselves of that opportunity, and did in fact make some investigation.
My Lords, there were also papers produced, which, I think, according to the evidence, stand thus: They are merely calculations, and are marked J. H. 1 and J. H. 2, of October 1825. I think they are in Joseph Harrison's handwriting, and he says he knows no more about them, but that he copied certain papers by P. Taylor's directions. But there is the document in the handwriting of the party; whether the calculations were made by Harrison or P. Taylor, or by whom made, does not appear. I do not think any further inference is to be drawn from those papers, than that they show the fact that they were there, and that they availed themselves of the opportunity of being there to make those inquiries which it was not only extremely natural that they should make, but which it was their bounden duty to make, in order to ascertain how far the company ought to be bound by the agreement which they had entered into. But Harrison does state that in November 1825 he examined the books relative to the wages of the men, to ascertain the cost of the workmanship for the coal and iron-stone for October, and that he communicated the result to P. Taylor. Now that calculation, which is marked J. H. 4, differs from the representation to be collected from the papers; that is to say, it is not consistent with that which ought to have been represented, if the object was to state the expenditure in a particular fortnight. Now, what is to be inferred from that? Why, that so early as that period the parties acting for the company, from their own observation and their own calculations taken from the books, had ascertained that the rate of wages was not consistent with the pay during that exact fortnight to which the plaintiffs allege the information was intended to be applied. Then the question is, did they understand the representation to be confined to that fortnight? For, if they did so understand it, this would at once have shown them that it was an inaccurate representation: on the other hand, if the representation was not intended to be confined to that fortnight, but to be an average running over a long period for the purpose of enabling them to calculate the probable result of the future, then it would give them the means of so far testing the accuracy of the representation, and it would not strike them that any misrepresentation had taken place, inasmuch as there might not be any inconsistency between the result of the calculation as contained in the J. H. 4 paper and the general average, although it was inconsistent with the rate of wages, if taken during the particular fortnight to which the plaintiffs wish to have it confined. He then states that he made up the books for the quarter to October, and delivered them to P. Taylor. That also shows expenses inconsistent with the expenses of the fortnight in question, but whether inconsistent with the general average or not is not material for the present purpose.
Mr. Brunton is examined,-and whatever evidence we get from witnesses examined for the plaintiffs is very valuable, because we cannot suspect any statements made by them to be different from that which really was the case, so far as affected those for whom they were called; and here is undoubtedly the benefit which the defendant derives from having had P. Taylor associated with him as a defendant, and a case attempted to be made against P. Taylor, because not only the allegations in the bill framed against P. Taylor are (if he has been properly acquitted of participation in fraud) favourable statements for Attwood, but the evidence brought in order to affect P. Taylor states many circumstances which are also very favourable for Attwood. For instance, Mr. Brunton says that P. Taylor said that the defendant had thrown open his books and given the utmost satisfactory corroboration of all he had stated before. Here is the agent of one of the parties, acting for one of the company, who states that P. Taylor said so; and although that is no evidence of the fact (for it is merely hearsay of what P. Taylor said), yet if we are to, consider P. Taylor as one of the persons with whom Mr. Attwood is dealing, one of those, to whom he had a right to look for the remainder of his purchase-money, of course whatever P. Taylor said on the subject is important evidence, and important as showing, not only what P. Taylor's opinion was as to Mr. Attwood's conduct, but P. Taylor's construction of the contract itself and of the representation intended to be made in the P. T. paper. That representation would not be correct, as I understand the evidence, if it were confined to the fortnight; it would be correct, at least in Taylor's opinion, if it were not intended to be confined to the fortnight, but intended to be addressed to a general average for the time past.
My Lords, there is a very important document, as coming from P. Taylor, which is G., "Pig iron made at Netherton, two furnaces." It is dated the 31st October 1825. It begins October 1824, and enumerates a variety of quantities of iron, and then there is this note: "During this period the furnaces were checked, being short of supplies." Then it goes on, and then comes this note: "Compared with Mr. Attwood's books.-Joseph Harrison." "Although there has been a considerable stock of ironstone at the Wolverhampton mine work, the furnaces have been kept short of supplies, through the deficiency of water in the Dudley Tunnel, etc. The inconvenience in the Dudley Tunnel will now be remedied by the proprietors having taken measures to give a regular supply of water, and thereby prevent the recurrence of future interruptions. P. Taylor, J. Harrison." Then there is another column, of pig iron made at Dudley Wood furnaces, containing similar quantities carried out, and this note at the bottom: "26 weeks for three furnaces, and 45 tons. a week. During this period the furnaces stood a month for want of materials, therefore 22 weeks for three furnaces would be 53 tons five cwt. each. Besides, the furnaces being so repeatedly stopped and thrown out of order would reduce the make one-fourth, if not a third, of the quantity they would produce by full supplies and regular work. P. Taylor." "Compared with Mr. Attwood's books.-J. Harrison." Now, this is a document brought home to P. Taylor and to Harrison, at least showing that their attention was directed to that investigation; that they had access to the books; that the quantities had been the subject of inquiries, and that they had come to certain conclusions, which they authenticated by their signatures; showing an investigation, and that they had the opportunity and means, by examining the books, of coming to some conclusion as to the quantity of pig iron made at those two places.
Another document, the letter from the deputation to P. Taylor on the 25th of October (supra, pp. 258 and 259), to which your attention has already been drawn by my noble and learned friend, is one which appears to me to be of the highest possible importance.
I purposely pass over for the present what is alleged to, have taken place at the time the deputation went down, because I am trying to test the accuracy of the case on the one side and on the other by that which does not depend on the parol testimony, but that which is to be found on the written documents coming from the parties. The case made by the plaintiffs is that the deputation did that which it is most extraordinary they should have done; having been desired by the company to go down, because they would not trust Attwood's representations in the P. T. paper, they went down to test their accuracy by an inspection of the books; and the case stated and that which the plaintiffs ask your Lordships to believe is, that having gone down for that purpose, they again take his representations, as they had done before in a different shape; that whereas he had made certain representations on the P. T. paper, they went down and did not test the accuracy of those representations, but upon some statement made by Mr. Attwood, or his agents, of there not being books forthcoming, which he had pledged himself to produce, and which he had invited them to examine to test his first representations, they take his representations again as contained in the D. papers, and those representations are false. It would have been most extraordinary conduct on the part of the deputation, if they so acted. They went down because Attwood's statement required to be proved; a very natural caution. Whatever opinion they might have had of Attwood, those who were purchasing for others to any amount, especially to such an amount as this, were bound to use all possible diligence and care in their power to be perfectly safe in the course they were pursuing. It was, therefore, their interest as purchasers; it was their bounden duty as acting for the great body who had deputed them, not to be satisfied unless they found those representations verified, not by anything that Attwood or his agents told them, but by the production of the documents themselves; and it was their bounden duty if they found that Attwood could not, for want of materials, furnish them with that evidence of the accuracy of his former representations, to inform the body, for whom they were acting, of it.
My Lords, this letter from the deputation to P. Taylor, states that 1200 tons of coal were in the P. T. paper stated to be necessary to make 360 tons of pig iron, but that to the deputation it was stated that 1170 tons was all that was required for that purpose. The first question is, "1170 tons of coals used," etc. Now, my Lords, it does appear to me after these documents, one coming from the deputation, the other from P. Taylor to the deputation, that it is impossible to maintain the proposition on which the plaintiffs' case is rested, namely, that the inquiry was for a particular fortnight, and that the deputation trusted to Attwood's representations, and did not test the accuracy of the P. T. papers by an accurate investigation of the books. They state themselves that they had, to a certain degree, made inquiries while they were there; and P. Taylor, acting for them, states that he had carried out the inquiry by an accurate examination of the books. Now if the fortnight in question had been the subject matter of the representation made by Attwood to the company, the investigation of the books would have disproved the accuracy of it; but if it was, as the defendant alleges, not a representation of the result of a particular period, but the general result of past experience, carried, as the deputation themselves say, in one instance to a period of 11 years, then according to the evidence as produced on the part of the defendant from those who have examined the books, it would be an accurate representation. It is, therefore, quite inconsistent with that which the parties themselves say, to suppose that the fortnight was the subject matter of the investigation, and it is quite inconsistent with that which they state, namely, of their having trusted to the representations of Attwood, and not having gone through the process by themselves or their agents of examining the books, if you believe the authenticity of these documents, about which there is no possibility of question. But, my Lords, there is another letter of the 2d of November, from P. Taylor to Mr. Malton, in which he says, "the deputation have examined Mr. Attwood's statement, and have had ample proof of its truth." Now these observations would of course go for nothing, if the plaintiffs made out a case of P. Taylor conspiring with Attwood; but if P. Taylor did not conspire with Attwood -and he must either be convicted of conspiring with him, and so be properly placed in the character of a defendant, in which case Attwood could derive no benefit from anything that P. Taylor has said or done,- or, if he be not so convicted, then he must for all purposes be considered as one of the purchasers, and as an active agent of the purchasers. It is certainly to be observed that those acts, which are imputed to P. Taylor, as having thrown him into the interest of Attwood, and so to have deprived him of the fair exercise of his judgment and his agency on behalf of the company, had not taken place at this time. On the next day after that last letter, on the 3d of November, we have the report of Brunton, who, says, "An experiment of making pig iron with the Corngreaves coal was made at the Netherton furnaces." So that this shows, not only that they were examining the books, but that they were actually permitted to, make experiments. He then says that he had not been informed what the sum was which the company had agreed to pay, but that he thought it would make an ample return for £550,000. Then comes a very important document of the same date -a report of the deputation themselves (Report of 3d Nov. 1825, supra, p. 259).
Now your Lordships, if the plaintiffs' proposition is correct, are to suppose that these gentlemen, so deputed to investigate, took the representations of Attwood, and did not perform their duty of testing their accuracy by reference to the books, for which purpose they had been sent down by the company. What do they say themselves? "Having, etc. examined the books and other documents submitted to us by Mr. Attwood, we have come to the conclusion that, in a comparison with the paper which purports to contain the principles and calculations on which the negotiation was originally founded, Mr. Attwood has substantially redeemed the pledge he had given of proving that the information upon which the managing directors concluded their contract with him, is correct and well founded" (p. 260). The same observation applies to this as to the former documents, that that statement is correct as to the result, if the average of former years was the subject of inquiry. It is incorrect, if the particular fortnight in question, as the evidence of the plaintiffs goes to represent, was the subject of inquiry. It shows, therefore, that no parties, either vendor or purchasers, considered that that particular period was the matter of inquiry; but on the contrary, that that which naturally would have been the subject of investigation, namely, the average of former times, was that to which their attention was directed, and that to which the representations of Mr. Attwood must be supposed to have had reference.
On the 29th of November 1825, there is a letter from Shears to P. Taylor, in which he states that he and R. Small had been to Corngreaves, and expresses great disappointment at what they there saw as to the state of the works. He states that five furnaces only were at work, and that the cost of coals per ton was 10s. 6d. instead of 9s., " as calculated in all your statements." Then so early as the 29th of November, these two gentlemen, Shears and Small, upon a visit to the works, had ascertained that the cost of coal instead of being 9s. was 10s. 6d. per ton. They knew then that there was an excess in the price of coal per ton of the difference between 9s. and 10s. 6d. An observation that arises upon this, is, that the fact came to their knowledge without any complaint made of misrepresentation on the part of Attwood. They went on for months after that time. If they were aware by the result of experience of there being a larger sum required for producing a particular portion of iron than had been represented to them, one would suppose that the knowledge of that fact would immediately have led to some suspicion of the accuracy of the other representations on which they purchased. But we have a letter showing the knowledge of the fact, but not leading to any such conclusion as naturally, one would have inferred, would have arisen from that knowledge, if they had supposed that what they had received from Mr. Attwood was a representation of the sum at which a particular ton of coal might be produced. On the same day (29th November), not only is no suspicion expressed as to the accuracy of Mr. Attwood's conduct but they apply to him to renew a bill of theirs for £36,000, part of the purchase-money, and he agreed to, let the £36,000 stand over for a time. The commercial difficulty and distress having commenced at that time, went on, as we all know, most rapidly; and on the 4th of December 1825, there is a letter from Small to, P. Taylor, which speaks of the depression in the money market, and says, "Money is now worth 40 per cent." There is another letter on the 27th of December, also stating the gloomy prospect of the works, owing to the state of the money market, but still no complaint made of any misrepresentation on the part of Attwood. On the 29th of December, P. Taylor writes an answer to that letter, and his, account of the difficulty and distress, in which they were involved, is very material to be attended to. He says the property and trade do not materially fall short of the estimate made of it, but he accounts for the difficulties, in which they were, from the difference in the price of iron from £4 and £5 per ton, less than when the contract was made, and coal being then 2s. per ton less, though he says, "As to the price of coal we get some advantage, because we can work at a less price." My Lords, these letters I consider as very important, not only as showing that these difficulties and distresses pressed upon the parties and that certain facts came to their knowledge long before they complain of having been imposed upon by Attwood, and in that view the letter of the 10th of February 1826 appears to me to be of considerable importance. It is from Shears to P. Taylor. He calls his attention to the fact of Attwood being entitled to receive £50,000 in April, that is the £100,000 originally contracted to be paid in April, less the £50,000 which he had agreed to relinquish. He says it would be very imprudent for them to pay Mr. Attwood, on account of the great demand for money under which they then laboured, and then he points out the situation in which Mr. Attwood stood from the altered nature: of the contract, which then existed, namely, that instead of having the personal liability of the three parties contracting, he had agreed to take security upon the property. He says, "It would be very imprudent for us to pay him; his remedy is only against the property, and it must take time before he would be able to enforce it." But still no complaint is made, nor suggestion of any misrepresentation on the part of Mr. Attwood as affecting the contract. On the same day, P. Taylor writes to Mr. Martineau, "I am much vexed at the state of our finances. I have used every exertion to do what, could be done, and I feel it hard that you have not been, enabled by your friends to do your part. Mr. Attwood is expected here tomorrow, and I will obtain help from him if it is to be done." On the 16th of February, Small writes to P. Taylor, and directs him to apply to Attwood to get time for the payment of the £50,000. On the 23d, he again writes to, him, trying to get Attwood to purchase 500 shares, " But," he says, "we must not press him to do too, much for us." Then on the 2d of March, there is a report to the company calculating the profits at £30,000 a year. And on the 5th of April Small writes to P. Taylor thus: "The accounts show the cost of making bars and rods at £4 instead of £2 5s." That was a most important fact, highly injurious undoubtedly to the future prospects of the company, leading them, if they thought there was any case for it, to direct an investigation how it happened that they were paying £4 for making bars and rods, when they had expected, and, according to the plaintiffs' case, had had it represented to them that they should only have to pay £2 5s. Still there was no complaint of misrepresentation on the part of Attwood. That letter of the 5th April I certainly think of material importance, because it falls in precisely with the same observations which I addressed to your Lordships before, when I drew your attention to the knowledge which the parties had obtained of the additional expense which they were incurring in carrying on their works.
On the 28th April 1826, in a letter from P. Taylor to the directors, is the first intimation of any intention on the part of the directors to declare war with Mr. Attwood. I believe the actual notice was on the 12th May, but the 28th of April is the date of the first letter I can find, in which, as between themselves, there was any resolution taken of disputing the validity of the purchase. On the 4th May, P. Taylor writes to Mr. Small, and I think what he states there-assuming always that he is to be considered as one of the purchasers, and not as a party conspiring with the vendor -is of very great importance, inasmuch as it shows what, as between themselves, even at that period, was considered as the reason of their resisting the future performance of that contract. He says there, "I think Edwards sees a storm coming, and I believe he expects that Mr. Attwood will have the works again from our not being able to pay for them. By the bye, you had better not speak of our poverty in letters to either Best, or any other person likely to leave such a letter on a counting house desk. I am sure you will excuse this hint. You will give me the earliest notice of the shot being fired at Mr. Attwood.". My Lords, there the correspondence so far as it appears to me to be necessary to draw your Lordships' attention to it, concludes; but some of the facts which are, not in dispute also bear upon the same propositions to which I have called your attention in these letters. The contract was originally to be performed and possession given on the 1st October 1825. Possession was not actually given till the 9th of November, but from the 1st of October the interest of the company commenced. Until the company were actually in possession the works were carried on by Mr. Attwood, or under his directions. The accounts therefore of that period throughout the month of October till the 9th of November were under his direction and were kept for the company, and were delivered over to, them when they took possession on the 9th of November. Still it was part of the contract that they should take to, the accounts existing between the proprietor and the workmen. When they saw these books', they saw of course at what rate they were paying for labour; they saw the dealings with the workmen; they knew what the contract with them wags, and as that did, in. fact; differ from the period to which the plaintiffs would wish to confine the question, namely, the particular fortnight, they would at once have said, " Why, we were led to suppose that the price of that fortnight was the price at which we were hereafter to pay, but we find a considerable departure from it, if we are to look at that fortnight. If, on the other hand, we are not to look at that fortnight, but the average of the time past, why then the same observation will not apply."
Now, my Lords, do these documents to, which I have called your attention, do they or do they not establish those propositions: first, that the plaintiffs considered the P. T. and the D. papers as calculations founded on averages, for the time past, of the cost of the particular process referred to and not of the actual expense of a particular period of the general work, that is, including the dead work; secondly, that the plaintiffs did not rely on any representation of Mr. Attwood, but had free access to all the books they required, and satisfied themselves of the accuracy of his representations; and thirdly, that with full knowledge of all the facts now complained of, they for many months acted on the contract, and induced the defendant to give them time for payment? If these are correct inferences (and that is what I apprehend your Lordships have to consider), if you are satisfied that these are correct inferences from these documents, then, the result is obvious. In the first place your Lordships will not feel inclined to place any reliance upon parol testimony inconsistent with what appears to be the result of those documents; and if that parol testimony does not shake the result to be deduced from these documents, and if these propositions are established by the documentary evidence, then it is quite clear that the plaintiffs are not entitled to the relief which they seek by this suit.
Now, my Lords, as to the parol testimony, part of it is charged in the bill, some part of it is not. And although I do not say, provided there be sufficient allegations in the bill to put the matter in issue that you are to reject parol testimony, because the particular fact is not charged, yet it obviously very much diminishes the credit which you will give to any such statements, inasmuch as the witness may say just what he chooses, and the opposite party, not knowing what he is called upon to say until he sees his deposition, has no possible means of calling any witness to contradict him. The material part of the parol testimony is, in the first place, as to what was meant by the P. T. papers. If by those papers, upon the face of them, if by the dealing of the parties with them, if by their correspondence and the reports, it is clear what the construction was, which ought to be put upon those papers, and which the parties actually did put upon them, surely your Lordships cannot think that any weight ought to be given to any witness who states that which is contrary to an inference so drawn.
The next subject to which the parol testimony is applied is, what passed at the time of the deputation, your Lordships always bearing in mind that what then passed, as far as parol testimony is concerned, you are forced to take from the witnesses of the plaintiffs, they having deprived the defendant of the means of examining his witnesses. If what is by them stated is inconsistent with what you find recorded in writing by these parties, if it is inconsistent with that which the deputation themselves state in their report, if it is inconsistent with what P. Taylor states to his employers in his letters and in his reports, it is obvious that your Lordships cannot come to any safe conclusion upon any testimony given by the plaintiffs' witnesses in the absence of the defendant's witnesses, contradicted as it is by the written documents to which I have; referred.
My Lords, there may be more or less of truth in some of the statements to what degree they are true it is impossible to ascertain. The expression alleged, by one of the plaintiffs' witnesses to have been used by one of the defendant's agents on coming out of the room where the deputation was saying, "a damned old fool," or some such expression, may very likely have been used, but it is impossible to rely on such an expression as that, without knowing a great deal more of what was said, or to what it was intended to be applied. Again, with respect to what is stated to have passed after dinner, the same observation will apply, if your Lordships are satisfied from the result of the documentary evidence, what, was the real intention of the parties, and what was the real understanding of what they were, to do, and their representation of what they actually did. After dinner some one of the deputation (and this is supposed to have taken place after they had gone down for the express purpose of examining the books, not relying on Attwood's representation to satisfy themselves from documents which he was to produce, that what he represented was correct,) said, " We are not iron-masters; do these accounts contain all the charges?" To which Attwood says, " They do, with the exception of an engineman," or something of that kind. Of three persons examined as to that conversation, two do not materially differ, and the other does not recollect anything about it; but I take it for granted some such conversation did take place. I do not know that there is, any discrepancy in it, because, as I understand the question, it was whether there were any charges not specified; it was not the amount of the charge. The answer shows that that was the way in which Attwood understood it, because he says, "No, except an engine-man, and some other additional item of charge not specified." And your Lordships find, in Mr. Leathley's notes to the D. papers, that the calculation was correct, "except an engine man and a clerk, which could not exceed 2d. per ton." Then if that conversation is correctly represented, I do not apprehend it would at all assist the case on the part of the plaintiffs, because it is not addressed to that particular point, which was made the subject of grievance, and which was not the omission of any items of charge, but a mis-statement in the amount of the charge as to the particulars, of which particulars there was no dispute.
My Lords, I have before observed upon the situation of Edwards and James, and stated that if I had found the case on the part of the plaintiffs made out by the evidence as it stands, I should have thought, undoubtedly, there was sufficient to have made it proper for the due attainment of the ends of justice to put this matter in a course of further inquiry, so as to have given to the defendant the opportunity of bringing his case before a proper tribunal, with the examination of those witnesses of whose testimony he has been deprived by the course which has been adopted by the plaintiffs. But having satisfied myself, not from the parol testimony, -as to which great doubt and difficulty arise as to the credit to be given to it in the present state of the cause, in the absence of those two, witnesses,- but from the documentary evidence, to which I have called your Lordships' attention, I feel myself bound to say that I do not think the plaintiffs have made out such a case as entitles them to have undone the transaction to which they have been parties, and under which they have so long acted.
My Lords, if fraud had been made out, and the circumstances constituting that fraud had been concealed from the parties, against whom it was put into operation, no time scarcely would have been so long as to bar the plaintiffs of the right of redress: but we are now trying two- propositions by this evidence, first, whether fraud was practised; and secondly, whether that which is alleged, as fraud, or rather the facts from which fraud is inferred, were not known to the plaintiffs, or to those by whose conduct and by whose knowledge they must be affected from the very commencement of this transaction. I have satisfied myself that both these propositions are in favour of the defendant. I do not find the fact of fraud made out, although undoubtedly it may be supposed that the bargain was a very good one for Mr. Attwood. That is not the matter in question, but that the fraud alleged, which alone can be resorted to for the purpose of supporting the plaintiff's case, is not made out in fact, and that the circumstances from which that fraud is endeavoured to be inferred by the plaintiffs are, in my opinion, proved to have been known to them from the beginning -from which I infer that the imputation of fraud, from those circumstances, is not properly deduced; that. they were satisfied themselves that no fraud had been practised, because with their knowledge of the facts, if they had considered that fraud had taken place, they undoubtedly would have interfered sooner, and were bound to interfere sooner.
My Lords, taking this view of the case, I feel myself bound to submit to your Lordships that the result of this investigation, long and arduous as it has been, ought to lead to a reversal of the decree, and to a dismissal of the bill with costs. It is unnecessary for me, therefore, to say anything as to the frame of the record, or as to the alleged want of parties (see note at the end of this case [6 C1. and F. 523]).
Lord Lyndhurst: My Lords, I have listened with great attention and respect to the arguments that my two noble and learned friends have addressed to your Lordships upon the present occasion, and also to the opinion which they expressed upon a former day, when I met them in private upon the subject of this cause. I regret to say, however, that the conclusion that I have come to differs from that which has been stated by them. I do not mean to set, my opinion and judgment in competition with theirs, particularly in the review of a decree which was pronounced by myself; but I think when I hesitate to adopt their opinion, I owe it to myself, and I owe it also to your Lordships, to state distinctly the grounds upon which that hesitation is founded.
My Lords, I do not understand that there is any difference between us with respect to the law upon this case. Much upon that point was urged at the bar, but I take the law to be clearly settled, and I venture to state it to be this -because I feel in that I am confirmed by the opinion of my two noble and learned friends- that where representations are made with respect to the nature and character of the property which is to become the subject of purchase, affecting the value of that property, and those representations afterwards turn out to be incorrect and false to the knowledge of the party making them, a foundation is laid for maintaining an action in a court of common law to recover damages for the deceit so practised, and in a court of equity a foundation is laid for setting aside the contract, which was founded upon a fraudulent basis. I do not understand that that proposition is disputed by either of my noble and learned friends; it was distinctly laid down and decided in the case referred to in the judgment below, and which has been referred to at your Lordships' bar, I mean Dobell v. Stevens (3 Barn. and C. 623). That was one of those ordinary cases which frequently come before the courts of common law. It was a case of the purchase of a public-house; a false representation -false to the knowledge of the party making it- was made by the vendor with respect to the extent of the custom, with respect to the quantity of beer that was drawn during a certain period. The books were in the house; it was part of the case that the purchaser might have had access to them if he thought proper; but notwithstanding that circumstance, it being proved that the representation was false, the Court of King's Bench were of opinion that an action for damages might, under such circumstances, be sustained. The same principle was acted upon, even after the conveyance was executed, in the case which was referred to by my noble and learned friend, I mean Edwards v. M'Leay (Coop. 308; 2 Swanst. 287), where there was a false representation, within the knowledge of the party, made as to a part of the property that was purchased by the plaintiff. The Master of the Rolls (Sir W. Grant) was of opinion, that that was a ground upon which a court of equity might proceed and ought to proceed, for the purpose of vacating the contract, which was founded upon that basis. This, then, being the admitted law upon the subject, the sole question for consideration in this case is a mere question of fact, the question being whether or not any false representation with respect to the productive power and nature of this property was made by Mr. Attwood, or by his agents by his authority and acting for him, he or they knowing at the time that that representation was made that the representation was false. My Lords, that is the charge that is made, and if it shall turn out that that charge is proved, that it is established in point of fact, the next question for consideration will be this, whether anything has occurred since the period of the contract to deprive the parties of a right of resorting to a court of equity for the purpose, of obtaining redress for the injury which they have so sustained.
Now, my Lords, this being a question of fact, and there being an allegation of fraud, it certainly did occur to me in the progress of this cause that it might be right to direct an issue, for the purpose of ascertaining the fact. But it was stated, that at the time when this question was before the Lord Chief Baron Alexander, a proposal had been made on the part of the British Iron Company that an issue should be directed, and that the verdict of a jury should be obtained with respect to the merits of the case. The cause was not at that time in such a state that the Chief Baron had authority to direct an issue without consent, and that consent was withheld on the part of Mr. Attwood. During the whole course of the argument before me, there never was a suggestion made by the counsel on either side that they were desirous that an issue should be directed. On the contrary, the cause was conducted by them throughout in such a way, entering into such details, that I took it for granted that it was their wish that the Court should decide it without the intervention of a jury; and I thought that that wish was founded upon this consideration, that the cause was of so complicated a nature, involving such a variety of facts and questions so minute in themselves, and the discussion of which would occupy such a length of time, that it was not a case which could properly be submitted to the consideration of a jury; that it would be mere matter of chance how the question would be decided; that it might, and probably would, depend upon the reply; and that the case was so circumstanced that it might depend upon the accidental demeanor of a particular witness. I considered, therefore, that a consideration of these circumstances led the counsel to pursue the course which they did pursue, of pressing it upon me, as I considered they were pressing it upon me, for decision, and that there was no wish whatever that an issue should be directed. I have stated thus much, my Lords, because it was thrown out in the discussion at the bar that this was a case in which an issue ought to have been directed. Had that issue been directed, then I should have pursued the course which has been pointed out by my noble and learned friend on the woolsack, the course which was adopted in the case of De Beauvoir v. Rhodes (vide post a note of that case [6 C1. and F. 532]). I should have done that -which, there being no issue directed, I thought I had no power to do- I should have directed that upon the trial of that issue, Edwards and James, who were parties to this record, should be examined as witnesses, if Mr. Attwood thought proper to call them, upon the part of the defendant.
My Lords, before I enter more particularly into the points of the case, let me, merely for the purpose of preparing the way for the observations which I intend to make upon these points, just state the circumstances of the case: A proposal was made on the part of Mr. Attwood, by Mr. James, to the British Iron Company, for the purchase of the property. Attwood did not in the first instance appear in the transaction, but in a very short time he appeared for the purpose of conducting the treaty. It was one of the stipulations that everything should be kept secret. I do not object to that, I think it was very natural; it would have had an injurious tendency upon Mr. Attwood's interest, if the treaty for this property had been carried on to a certain point, and afterwards broken off, and those circumstances had been known to his customers. But I make the observation for this purpose, that as the British Iron Company, during that period, were by the injunction of secrecy restrained from making many inquiries, which they otherwise would have had the power and the opportunity of making, it rendered good faith and correct dealing more incumbent upon Mr. Attwood in every part of this transaction. My Lords, in the conduct and course of this treaty, certain facts were stated by Mr. Attwood the negotiation was carried on between him and James on the one side, and the British Iron Company through Mr. Philip Taylor on the other. Certain representations were made: they were made by word of mouth, and they were reduced into writing by Mr. P. Taylor, into the form of that paper called the P. T. paper. The representations contained in that paper were the basis of the first agreement: it was upon the faith of them that agreement was entered into. By that first agreement, the title was to have been completed on the 1st of October. Circumstances occurred to prevent the execution of that intention. A supplementary agreement was entered into; that agreement was to have been signed on the 1st of October. The parties attended for that purpose, but John Taylor was absent; he was a necessary party, and Attwood would not sign the agreement, unless it was also signed by him. The matter was postponed. On the 10th October they met again for the purpose of signing the agreement: P. Taylor was there with a power from J. Taylor. The form of that power was not agreeable to Mr. Attwood. He objected to sign the agreement, so the meeting broke up. In consequence of this delay, and some inquiries, I suppose, that had taken place, a difference of opinion existed among the directors. Some of them were of opinion, and were desirous of acting upon that opinion, that they had the power of putting an end to the agreement. They took legal advice upon that point, and they were informed that, from the nature of the agreement, as the title had not been made out on the 1st of October agreeably to the stipulation, they had a right to abandon that agreement if they thought proper. Others, however, were desirous that the agreement should go on. Doubts were suggested as to the correctness of the statements contained in the P. T. paper, and at last they came to the determination, which has been alluded to by my noble and learned friends, that an application should be made to Mr. Attwood for permission to send down a deputation to verify the statements contained in the P. T. paper. That application was made to Mr. Attwood in the presence of James, and Mr. Attwood consented.
Then that brings us to the consideration of what was the interpretation of the P. T. paper, what is stated in the answer, and what is in the issue. On the part of the plaintiffs it was said, this is a representation, as to part of it, of the actual cost of making pig iron at the time when that representation was made, of the actual state of the works, and their productive power. What is said on the other side? That this is a hypothetical statement, embracing a great variety of considerations; it supposes the iron-stone taken from the Wolverhampton mines to be taken from the quick and unbroken mines; it supposes the iron-stone to be calcined upon the spot; it supposes a variety of other circumstances and considerations: it is a mere hypothetical statement comprehending those points, to which I have referred. What is the point in difference, therefore, between the parties? Whether it was a hypothetical statement, for that is the issue taken in the answer of Mr. Attwood, or a statement of actual facts as they existed. It is not a question as to whether or not it was a representation of what took place on the 6th of June, or upon the average of a year or six months. But the question is, whether it was a representation of the actual working of the mines at the time, or a representation of what at a future period would be the expense of working the mines upon the stipulations and conditions to which I have referred. That does not appear in one single place only in the answer, but it is the whole issue; below it was the entire issue; the whole argument turned upon it, whether it was a hypothetical statement or a representation of actual facts as to what was the working of the mines. That was the question put before Chief Baron Alexander. The proposition put before him on the one side was that it was a hypothetical statement; on the other side it was said that it was a statement of actual facts. What was the opinion of Chief Baron Alexander, expressed distinctly? That it was a representation of actual facts -a statement of the productive powers of the mines at the time when the representation was made. Let us inquire into this and see how the evidence bears upon it.
The communication that was made to Mr. Attwood was made by a person of the name of Pontardent, accompanied by Mr. Stevens. The effect of Pontardent's evidence was felt at the bar, because observations disparaging him were made upon what foundation? Was there any evidence to support them? He was not then in the employment of Mr. Martineau (one of the solicitors for the plaintiffs), but the managing clerk of a most respectable house in the City. Another observation made was that the plaintiffs did not examine Mr. Stevens. Mr. Stevens was a member of a most respectable house in the City, and why was not he examined? Because he was virtually a party to the suit, being a shareholder; and could not be examined. But the presence of such a person as Mr. Stevens on the occasion spoken of by Pontardent was a guarantee for the statement made by him as to what passed at that time. Now, what was the representation? It was that Mr. James said, in the presence of Mr. Attwood, "What are the statements which you wish to be verified?" The answer was, "Why, the statements that were made by you at the time the contract was entered into." James said, "I should like to see those statements." An adjournment took place for that purpose. A second meeting was held, and then James, in the presence of Mr. Attwood, said, "If you mean the statements of your actual profits, they are perfectly correct, and you may go down." The paper was produced, he looked at the paper: "That is the statement; the deputation may go down." A few words more passed, and Mr. Attwood assented; he was present during the whole of the conversation. What then is the P. T. paper? A representation of the hypothetical statements of contingencies that might arise at some future period, of the ironstone to be gotten in a particular way, when the mines shall be in a particular situation, to be calcined upon the spot? No such thing; it is a representation of the actual profits. That was the statement made by James in the presence of Mr. Attwood. Is not that then a confirmation of what I shall presently contend appears upon the face of the document itself, so far as relates to that which is the material part of the inquiry, -that that document was a statement of the actual condition of the mine, and what the mine was capable of effecting?
My noble and learned friend on the woolsack has spoken of the probability of the case. 'Why, my Lords, I should put the issue on the probability of the case. Here is a company formed of a great number of shareholders bound to pay up their instalments within a given time. How necessary was it, therefore, to have, at no distant period, a good profit upon the working of the mines? The material point to ascertain was what were the mines likely to produce immediately from the period when they were put into action, when the company had taken possession? All the probability is one way; it is in favour of the representation that this was a statement of the actual condition of the mine as to its working. The other parts of the paper, I admit, contain speculations as to the future, because they applied to parts of the property that were not at that time in a condition to be worked. But, my Lords, might there not have been evidence? Might there not have been some question put to, Mr. James for the purpose of ascertaining whether this was a representation of actual facts, or the hypothetical statement which Mr. Attwood, in his answer, states it to have been? James was examined on interrogatories. Was any interrogatory put to him whether, in preparing that paper, it was a statement of the actual condition of the mine, or whether it was founded upon that hypothetical statement which Mr. Attwood alleges? No such question was put. James was one of the parties in the transaction; he must have known what was the intention of the paper; he was the party who communicated, in conjunction with Mr. Attwood, with P. Taylor, and yet, though he is over and over again questioned as to a great variety of circumstances, no interrogatory is put to him with respect to that most material and important fact. How does it lie, then, in the mouth of Mr. Attwood, to say that this was not intended to represent the actual state of the mine, and what was done at that time, but that it was founded upon the hypothetical considerations, which are stated by him in his answer?
Now, my Lords, let us look at the paper itself. I apprehend, as far as relates to that part of it to which I am adverting, namely, that part of the property which was then in work, the Dudley Wood and Netherton mines, that it is a distinct statement of their actual condition at the time. What does it say? It says "there are six furnaces on the leasehold property, making 360 tons of pig iron per week. The six furnaces require, to make 360 tons a week," so many tons of coals, at 9s. 4d., so much ironstone at such a price, so much limestone at so much, general charges so much. To make that quantity of pig iron " the six furnaces require:" When do they "require?" Now, at the moment I am -making this statement. Is it not quite clear that that is the natural interpretation of that part of the paper? And what is the result? It was of the utmost importance to know what was the cost of making a ton of iron, and £4 8s. per ton is found to be the price. What is the result of this statement? It requires those materials, at those prices, to make so many tons of iron in a week, and the result will be that you may make iron at the price of £4 8s. per ton. My Lords, I concur entirely in the opinion expressed by the late Lord Chief Baron that this is a representation of actual facts. But another part of this paper says thus: "3 tons, 6 cwt. 2 qrs. 18 lbs. of coals are allowed to each ton of pig iron, which, on this calculation, amounts to the weekly sum of £240, but the quantity actually used," -used when? used at this time. I do not mean to say used this precise week, or this precise hour, but substantially used at this time.
My noble and learned friend talked of an average of 11 years; when did that average terminate? If it had been an average down to the present time there might have been something in that argument, but if it terminated in 1821, it was no average from which the actual state of the mines could be deduced. Then the statement in this paper goes on again: "18 cwt. of limestone are supposed to be required to each ton of pig; whereas the books show the actual consumption of 10 cwt. 3 qrs. 8 lbs." What books? The expression must mean the books of the present time, not the books in the time of James and Matthias Attwood, many years before; that would be an obvious absurdity. Then what is the inference I draw? I say that the statement in the answer, which is the issue that we are to try, of the hypothetical interpretation of this instrument, is not established by any evidence or any attempt at any evidence; that the question might have been asked of James, and it has not been asked; that Pontardent's evidence is distinct to show that this was meant to be a representation of what was actually going on at the time, and the probabilities are all in favour of it; and lastly, that upon the very face of the document itself, it appears to me clearly to show, when we are looking at this part of the paper which is the only material part of it, that it was meant to represent what was actually going on at the time, inasmuch as it was necessary that the directors should know what the mines were capable of effecting at the time, in order that when they came to the works they might be in a condition to satisfy those persons whose affairs they were conducting, and be enabled to declare the dividends and to keep up the price of shares in the market.
My Lords, the deputation went down for the purpose of verifying these statements. A number of papers were produced which are known by the name of the D. papers. I shall direct your Lordships' attention mainly to one of them, because it is that upon which almost the whole question turns. It is of no use to endeavour to fortify this case by minutiae. The paper D. No. 1, upon which, I repeat, the whole question turns, was brought into the room and submitted to the deputation, who examined it. Now, what does D. No. 1 mean to represent? Mr. Attwood takes precisely the same issue upon D. 1 that he does upon P. T. He says it was a hypothetical statement. That is the issue: He says, this is correct, provided certain circumstances take place; and it was so represented. Now look at the paper first of all; and let me make this observation, arising out of an observation made by my noble and learned friend on the woolsack: if this paper was intended to verify the P. T. paper, and the P. T. paper was a representation of actual facts, and not a hypothesis, it follows that the D. 1 paper must also be a representation of actual facts, or else it is no verification whatever. What does the D. 1 paper state? Look at the face of it. My noble and learned friend has referred to the date; is not that a material fact? These papers were not drawn up upon the 6th of June, the date of D. 1; they were drawn up on the 28th of October. Now, if they were not meant to be a representation of actual facts, the date would naturally have been the date of the 28th October, when they were drawn up, but the date was the 6th of June, referring to the time when the T. P. paper was prepared. What does it mean to represent then? Why, the price of making pig iron at the time of the date, the 6th of June 1825. Is not that the obvious inference? I do not mean to say that it is conclusive. Again, with reference to another observation, when you come to D. 3, what does Mr. Leathley say? He says, "the above is an estimated cost," because it related to the forge iron at Corngreaves. But is he not then evidently drawing a distinction between that document and the other, by saying, "this is an estimated cost." What is the inference? That the other is the actual cost and not the estimated cost. Here again, my Lords, I come to the argument of probability, and I beg leave to urge that strongly upon your Lordships' attention. It was most material to know what the actual state of the mines was; what they were capable of producing; what they were then doing; and how Mr. Attwood was then making iron. Those were to be the foundation of the agreement, in order that the parties might know what would be the result of their operations when they took possession of the mines. All this argument is consistent; the whole argument arising out of the P. T. paper is supported by the argument arising out of the D. papers, and the argument arising out of the D. papers is supported by the argument arising out of the P. T. paper.
All that I have hitherto said is inference, except that which arises from the inspection: but your Lordships have positive evidence, the distinct positive oath of Mr. Harrison upon the subject. Some observations were made at the bar to the disparagement of Mr. Harrison. No such observations were made in the court below. On the contrary, to the best of my recollection, he was there described as a most honourable and respectable man. But was there any evidence to support the altered tone respecting him? None whatever: Mr. Harrison stands unimpeached. What does he say upon the subject? He says that these papers, when they were brought in, were represented as actual statements of what was doing at the works, at the day they bore date. His evidence is that James and Edwards "stated and represented to the complainants Robert Small, Leathley and Donaldson, that the same was the actual cost of making 360 tons of forge pig iron at the Dudley Wood and Netherton furnaces mentioned in the said paper, on the 6th of June 1825, being the day mentioned in the said paper, under the circumstances stated in the said paper." The circumstances stated in the said paper are very obviously these: half the ironstone coming from Dudley Wood and half from Wolverhampton. "And that the said Henry James and Richard Edwards at the said meeting stated and represented that the sum of £4 Os. 3d. mentioned in the said paper was the cost per ton of making forge pig iron at the said Dudley Wood and Netherton furnaces at the time and under the circumstances last above mentioned, and that the only additional charge would be for a machine-man and a clerk, which could not exceed 2d. a ton."My Lords, the whole course of the argument at the bar, and the course of the argument in your Lordships' House, show the importance of this question, -What did these papers intend to represent? My noble and learned friends say they were not intended to represent the actual cost of making iron at that time. I have endeavoured to satisfy you that they were so intended, from the inspection of the documents themselves, from the evidence of the witnesses, from the probability of the case and from other circumstances; and that there was no attempt whatever made to prove by any interrogatory being put to James, that the construction put upon those documents and the statements made by Mr. Attwood in his answer (which was the issue to try) were founded in fact. I think, my Lords, then, I am justified in coming to the conclusion, to which I came in the court below, that these were meant to be representations of the actual state of the mines at the time when these, representations were made.
Now, my Lords, let us examine farther as to what took place with the deputation. The books were produced: the parties were assembled in the drawing room of Mr. Attwood's house. In the back room were James and Edwards and Best, and Mr. Attwood; and in an adjoining room, Walker, a copying clerk. These papers were prepared in that back room, and they were brought in to the deputation, and Mr. Attwood's books were produced. There is no dispute with respect to part of the case. The price of coal was 9s. a ton. There could be no controversy about that fact. It was a contract with Lord Dudley, and the price was fixed for a quarter at 9s. per ton; so that there could be no deception, and that price appeared in the books. When therefore it is said that at a future period it was 10s. 6d. a ton, and that the deputation knew that, why was that? Because the quarter was worn out, and a new contract entered into. The price of limestone also was under a contract with Lord Dudley. Those minute charges that were entered on the papers were all verified by the books. But the question at issue does not arise upon them. The main point for consideration was this: What quantity of materials will produce a ton of iron? Was any book produced for that purpose? No. Why not? Because it was said there were no books, no accounts had been kept. The deputation went down to examine the books. All the books that were there and applicable to the subject were produced, and they did examine them. But when the books of the time of James and Matthias Attwood were produced, Harrison said very naturally, "These books only come down to 1821. These will not give us the information we want." What is the answer? "We have no other books. We have no subsequent books, which can give you any further information." What were they to do? All the books which Mr. Attwood had, or which he stated he had, they had made use -of for the purpose of verifying the documents. He said, as to this, the most important part of the case, upon which the whole question turned, "We have no yield books subsequent to James Attwood's time (1821). But we will make you out calculations:" and then they retire for the purpose of making out calculations. And what are the calculations they make?
Now, is not parol evidence to be made use of for the purpose of proving fraudulent representations? And if the representations to which I am now referring were false and fraudulent, and were false and fraudulent within the knowledge of the party, I wish to know whether that is not sufficient ground to vacate a contract built upon that basis? What is the representation made? They produce calculations forming an average of eleven years, not eleven years coming down to the time when they were produced, but the last eleven years of the time of James and Matthias Attwood. The deputation ask, "You have no other accounts but these?" "None whatever." "Well, will you undertake to say that the works are now the same that they were at the time of James and Matthias Attwood " "Yes; they are precisely the same." "Then upon that undertaking, upon that engagement, upon that promise, we will take the books." Mr. Harrison says upon that subject, "One of the complainants, etc. (Donaldson) asked whether there was any further quantity of materials used, or any additional charge then than there was in James Attwood's time, or was set forth in the statement to which the said H. James or R. Edwards, the said R. Edwards this deponent believes, said, 'There certainly was not, excepting for a machine-man and a clerk, which could not exceed 2d. per ton.' "Is not that a distinct and clear representation made to the person who swears to it in giving his evidence?
But, my Lords, this is not all of the case. It was stated that there had been no regular yield books kept since the time of James and Matthias Attwood. Is that so? That is sworn correctly perhaps to the letter. There were no regular yield books kept. But what was kept? Documents from which the yield might by a very easy computation be produced. It is sworn to by seven witnesses, that there were stock papers kept regularly every fortnight, and made up every quarter. What do those stock papers represent? The quantity of material unconsumed at the time they were taken, and the quantity of iron remaining on the premises. There were the machine-books, which proved the quantity brought upon the premises and the quantity of iron manufactured. From those documents any person could make up the yield, and one of the witnesses states that they actually have made up the yields, and frequently,  from these documents, and it is quite obvious that that was the case. Seven witnesses swear positively to the fact. They state that they were employed to take those accounts, that those accounts were taken every fortnight, were made up every quarter, and at the end of the quarter transmitted to Corngreaves and deposited there; and that that was done by the direction of Edwards, who was the chief managing clerk at Corngreaves.
My Lords, Mr. Attwood does not say he was taken by surprise with respect to these stock papers. They were made for the purpose of contradicting that, which he states in his answer, and which is stated also by witnesses; namely, that there were no yield books. Literally, there were no, yield books. But that Mr. Attwood might not have to complain of being taken by surprise, a formal notice was given to him before interrogatories were filed; before his second answer was put in, that these stock papers would be called for. What was it his duty to do under such circumstances? To put an interrogatory to Edwards, who was examined, and to ask him whether there were or not such stock papers? Has any such interrogatory been put? None whatever. Has any witness been called for the purpose of contradicting the statement? None whatever. The existence of the stock papers is sworn to by seven witnesses. No witness is called to contradict it, and no question is put to the individual who, above all others, was capable of contradicting it, if it was untrue. Now what does the law say? If a man withholds documents which are material to be produced upon an investigation, everything will be presumed against him. If Mr. Attwood ever had those documents, how could it be said, except he was swearing by the card, that there was no regular yield account kept since the time of James and Matthias Attwood? But it is said that you cannot safely rely on parol evidence. My Lords, the lives and liberties of men are taken away on parol evidence, and on the evidence of witnesses far less numerous and important than those to whom I am, now referring. But this evidence might have been met if untrue. When the party has an opportunity of meeting the evidence, and has notice beforehand of what that evidence will be, and does not meet it, are you not to place reliance upon it, when he does not even put a question upon the subject to the person who is best informed on it, and who could contradict the evidence if untrue, and will you not infer that those witnesses are entitled to credit?
But my noble and learned friend says that, with respect to that representation made by James, "that the yields were the same as in the time of James and Matthias Attwood," it does not appear that in making that representation he acted by the authority of Mr. Attwood. In the first place, let it be remembered that he was constantly going backwards and forwards into the room, and I will show that he did act in point of fact by authority of Mr. Attwood. But if he was made use of as an agent of Mr. Attwood, and made a representation which he must have known to have been false, and the parties were deceived by it, what is the inference to be drawn? That the contract is founded upon a fraud, based in fraud, and cannot stand. Whether the representation is made by the principal, or by the agent whom he employs for the purpose of the contract, is wholly immaterial. If the agent acts fraudulently, even without the knowledge of the principal, what is that to the party contracting? The contract is vitiated. I do not mean for a moment to say that Mr. Attwood could have been proceeded against criminally, but civilly lie is bound by the false representation made by his agent.
Again, did Mr. Attwood know himself that the works were not in the same state, in which they were in the time of James and Matthias Attwood? It is proved by several witnesses that he was continually complaining: "I must stop the works, the yields are so bad; I shall be ruined, I cannot go on." That is proved by Talbot, Best, and by other witnesses; and, my Lords, is it possible that he should not have known the fact, because it is demonstrated and proved beyond all doubt. It is said that he was a careless man, and not a man of business. Why, Mr. Attwood had been the manager for James and Matthias Attwood for several years, and he afterwards succeeded to the property, and managed it for himself. Is it possible that under such circumstances he should not be so much a man of business as, to be able to know what was the produce of his own works? It is impossible to come to such a conclusion. Mr. Attwood states, in his answer, that he did not examine the D. papers; that they were prepared by James and Edwards, without his intervention; that he saw one or two of them cursorily before they were handed in to the deputation; but he would lead you to infer from his answer that he took no particular notice of them. Is it possible that can be so? Mr. Attwood was in the room with James and Edwards for six hours while those papers were preparing. For what purpose was he there? Why should he have remained a prisoner in the room during the whole of that time, unless he took a part in that transaction? This was a subject of deep interest to him. He had so far entangled himself in this transaction, that it would have been exceedingly inconvenient that this contract should have been broken off; he must have had a strong interest in getting it finished. Would he not then have taken care to examine and to see what papers were produced for the purpose of verifying those statements? Was not his interest such as to lead him to take an active part in those proceedings. But it does not rest even here. It was suggested that he had made a false representation-his honour was affected. Would he not therefore have been stimulated to inquire and to examine for the purpose of making out these representations to be correct? Is it possible that he could have remained under such circumstances for six hours together, taking no part in the preparing of those documents which were necessary for the purpose of verifying the statement? But, my Lords, Best was in the room, and gives an account of what passed there; he was at that time in the employment of Mr. Attwood. Best, contradicting what he swears to in his answer, says, that after the arrival of the deputation at Corngreaves on the 28th of October 1825, and while the deputation were in the dining-room, the defendants James and Edwards sat down to a table in the back room, and there prepared several papers, and this deponent particularly recollects the papers showing the costs of making pig iron at Dudley Wood and Netherton furnaces, and at the intended furnaces at Corngreaves; he particularly recollects this from the impression made on his mind by the extraordinary low prices at which these costs were put down: that these papers were made out some time after the arrival of the deputation at Corngreaves, and that the defendant John Attwood was present the whole time these papers were being made out; that Edwards had before him several books, papers and memoranda, and that James copied from Edwards' dictation several memoranda and data, and formed from these the rough drafts of certain statements; and that during the time the papers were being made out, the defendant Attwood looked over them, and made occasional remarks. Then he states a discussion of considerable length as to certain of the statements contained in these papers; and then he says "that several other papers were copied by Edwards when the defendant Attwood was present; that during the time Edward B. Walker was copying the said papers in an office belonging to the house, the defendant Attwood went out in great apparent anxiety to hasten him; that several papers were then taken in by James to the deputation, after which the defendant Edwards was called into the room before the deputation, to bring the books to show that they accorded with the statements; that Edwards accordingly went in with the books and papers; and deponent further says that during the absence of James and Edwards, which lasted a considerable time, Attwood expressed himself most anxiously about the statements, and said, 'What the devil can they be after, keeping one so long?' That Attwood walked up and down and out of the room, and seemed in great anxiety and fidget; that Edwards came out from the deputation and said to Attwood, 'They want to see some more recent accounts than these; what are we to do?' That Attwood said, 'It won't do to take in our last accounts,' and turning round to this deponent, said, 'You know how we have been going on.' That soon after the defendant James came out from the deputation and said, 'They insist on seeing more recent accounts.' That Attwood said to James, 'I tell you how you can manage; you can say I have a man ready to take the works according to the statements which you have given in.' That with this suggestion James went back into the room, and he soon after came out again rubbing his hands, and said, 'The damned old fools.' That Attwood asked James what Harrison was doing, and James answered, 'Oh, he is quiet enough, he is reading the newspaper.' That during the conversations lastly described, James frequently called Attwood out of the room into the passage or hall, and they conversed together in a whisper or tone of voice too low for deponent to hear; and that at near six o'clock, and after the servant had several times announced dinner, Edwards came out from the deputation, and this deponent said to him, 'Have you got through this drilling?' and Edwards answered, 'I have got through the pigs, and now comes your turn; you will have a pretty drilling.' That Attwood was at this moment out of the room, but he soon afterwards came in with James, and said, 'They are satisfied; they are going to break up, and we must have dinner.' That as he said this he appeared evidently to be much relieved and in great spirits at the result of the investigation; and that during the whole of what took place as before detailed, this deponent took little or no part, being unacquainted with most of the matters which were discussed in his presence, and also from their not being in his department." That is the evidence of Best. But it is said this is not stated in the bill. It is, not all stated in the bill; but enough is there stated to have rendered it incumbent on Mr. Attwood to have put questions to James and Edwards, for the purpose of contradicting that which is stated in the bill, and of explaining everything that took place during that time. He cannot say, "I knew James and Edwards would not be admitted as witnesses," because he has examined them; but he has put no question to them as to what passed in that room. Yet there is so, much of stigma cast on his, conduct in the bill with reference to what took place there, that it was absolutely incumbent on him to attempt to give it an answer. How can it be said that you can place no reliance on this, because it is not all set out in the bill?
My Lords, I have proceeded thus far to show what took place at the deputation, to show that the very essence of the question turned upon the yields, that the books were produced for everything but the yields, because everything was immaterial except yields; but that as to the yield books they were not produced, but other books were substituted. There were stock papers in the possession of Mr. Attwood, or that had been in his possession, which were not produced. That is proved by the witnesses to whose evidence I have referred, and Mr. Attwood had the opportunity of putting interrogatories for the purpose of contradicting these statements, and he has not done so. What is the inference that I draw? Why, that those statements are correct, and that they are well founded. Could I reasonably come to any other conclusion? The only doubt and hesitation in my mind is this, that my noble and learned friends have not come to the same conclusion -that they differ from me. They have passed over the whole of this part of the case, or nearly so, and have made little or no observation upon it. But I confess those facts and those circumstances, this direct evidence on the one side and the absence of any attempt to produce evidence to meet it on the other, weigh strongly with me, and did weigh strongly with me on the first hearing of this cause.
Then, my Lords, to show that, as to this part of the case relating to the yields, the deputation acted upon the faith of representations that had been made to show that what took place at the dinner is confirmatory of it, let us see what is the statement of what took place after dinner. Those documents were in the hands of Mr. Leathley. He says to Mr. Attwood, "Now, Mr. Attwood, you know we are not iron-masters; we must, to a certain degree, take what you have stated upon faith, we have in fact taken what you have stated upon faith with respect to the yields; will you tell us whether there is any other expense or cost now than what is contained in those papers" Those are the words, sworn to by Harrison, who gives them as the expressions used by Leathley. Is it not quite obvious that they were alluding to this very question of the yields, of which they had no account except from the books of James and Matthias Attwood; that they wished to know whether the state of things now was what it was then? The question put by Leathley is, "Is there any other expense or cost now than what there was in the time of James and Matthias Attwood?" "None whatever, upon my honour, except a machine man and a clerk," which had been before stated. I have now gone through this part of the case; I don't set my judgment against that of my two noble and learned friends.; I may be biassed by former impressions; I know how difficult it is to get rid of first impressions, and I state with hesitation, perhaps not hesitation of manner, certainly with true hesitation of spirit, these arguments and these inferences drawn from the evidence. Upon these representations the deputation are satisfied; they had examined all the books, but there is this defect which was supplied by parol statements, and they return and report that Mr. Attwood had made good in substance his representations in the P. T. paper, and the contract was signed on the 9th of November.
But, my Lords, were those representations true? Could iron be made for £4 0s. 3d. a ton? My noble and learned friends have not gone into that part of the case. It was never argued in the Court below that iron could be made for £4 0s. 3d. a ton. The statement appears to me to be completely disproved by the evidence. Here, for the first time, it was argued, and with great industry, and reference was made to a great variety of documents and calculations for the purpose of showing that those representations were true. I never shall lose sight of that which took place at an early stage of the case before Chief Baron Alexander, when the question was whether this was the actual cost of producing iron, or whether it was mere hypothetical speculation, such as is stated in Mr. Attwood's answer; and his learned counsel, speaking from his own observation, and speaking no doubt from his instructions, stated distinctly that if they were taken to be representations of actual cost, there was at once an end of the case. If this statement of £4 0s. 3d. a ton, or £4 8s. a ton, was correct, where was the necessity of resorting to this hypothetical statement? Why did not Mr. Attwood meet it at once and say, "This is a correct statement of the actual working of the mines. Iron may be made at the Dudley Wood and Netherton furnaces at the rate of £4 0s. 3d. or £4 8s. a ton." My Lords, I feel some difficulty as to the part of the case to which I am now about to refer, not difficulty as to the conclusion, but as to the course I ought to take. I have looked at the statements and the evidence with great attention, at different times, and I am satisfied that the representations made in the evidence of Dransfield and Wilkinson are substantially true. What do they state? That taking half the ironstone from Dudley Wood, and half from Wolverhampton, it costs £5 4s. to make a ton of pig iron. They state again, that if you take the actual working of the last year, as the year was worked with a certain quantity of ironstone from Dudley Wood, a certain quantity of ironstone from Wolverhampton, and a certain quantity that was purchased (the company was never led to suppose it was necessary to purchase any), the price of making iron was £5 6s. a ton. It is impossible to go through the details of that evidence. I could not have made it intelligible. Observations have been made in writing on the testimony of Wilkinson and Dransfield, by the counsel for Mr. Attwood -very acute observations. I have gone through them, and through the reply to them, and the result is that, with the exception of a deduction in respect of dead work, and one or two trifling items which would not reduce the sum below £5, the evidence of Wilkinson and Dransfield stands unimpeached. That is my conclusion. But I admit that, if the question turned upon this, it ought to be investigated by those who are to decide the cause, that is, my noble and learned friends, and any other noble Lord who takes a part in it, should go through that detail item, by item, and as the questions successively arose, they should be successively decided. At present, I only state the result of my opinion. Other noble Lords have not stated their opinions on that part of the case. I am satisfied that the actual price of making iron was upwards of £5 a ton, making a difference in the actual receipt for the six furnaces, of £18,000 a year, representing a capital of upwards of £300,000; that is the extent of the misrepresentations that have been made. Again, as to this part of the case, Gritton, the accountant for Mr. Attwood, was examined; he stated what was the price of making iron at the Dudley Wood and Netherton furnaces, and he made it about £5 11s. 11d., and £5 6s. 9d.; and in the course of my judgment in the Court below, where I had not the opportunity of investigating these transactions with the minuteness with which I have examined them since, because the papers were not printed, and there were not the arguments on the one side, and on the other so distinctly put to, me, I stated that Gritton confirmed the evidence of Wilkinson and Dransfield. I still entertain the same opinion. Observations have been made by Mr. Attwood's counsel on Gritton's evidence, and many proper deductions have been made from it; but the counsel on the other side have made their observations, and shown distinctly that there are many omissions in Gritton's evidence, and the result of the whole is, according to the best opinion I have formed, that Gritton confirms the evidence of Wilkinson and Dransfield, and that according to his evidence iron could not be made under £5 a ton. Now, my Lords, I have gone through this part of the case. It appears to me from what I have stated, and the view that I have taken of it, (I do not like to use harsh terms,) that false representations, to the knowledge of the parties, were made in this transaction particularly with respect to the yields or the quantity of materials necessary at the time of the contract to make a certain quantity of iron. It is said that Mr. Attwood produced his books; that they were opened for inspection, and the parties went down to, examine the books, and that Mr. Attwood is not responsible if they made any mistake; that they had all the evidence before them. I admit that they had; but then there was that blot to which I have referred, that blot on which the whole question turns. There were no yield books, except those of James and Matthias Attwood, ever produced for the purpose of establishing the yields. Then, also, it was represented that although those are not the yields of the present time, the yields of the present time are the same as the yields of the time of James and Matthias Attwood. That was the representation. Mr. Attwood says, in his answers, there were no yield books. There were not strictly and technically, yield books, but there were those stock papers which served the purpose of yield books, and it would be impossible that a work of this kind could be carried on without documents of that nature. Were they produced among the documents which were brought into court? They were not produced; they were discovered by accident. Seven witnesses speak to the existence of them; no question is put on the other side to, Edwards on the subject, and I must take it therefore that the existence of those stock papers is distinctly proved. Did Mr. Attwood know that the books of James and Matthias Attwood did not represent the yield of the present time? It is proved he must have known that they did not. It is stated by the witnesses that he, over and over again, complained of the present yields; and Best says that he said, "You know how we have been going on lately; it will not do to produce recent books." This is the case, which led me to the conclusion to which I before came, as to the fraudulent representations that were the basis of this contract of the 4th of November, because it was on the confidence of these representations that that contract was entered into.
But, my Lords, this is only a part of the case; I must request your indulgence while I refer to the part of the case which was principally dwelt on by my noble and learned friend on the woolsack. Has there been any acquiescence or anything done by the company or their agents to deprive them of their right to come into a court of justice to complain of this imposition? As far as it relates to the directors themselves, absolutely nothing; they were in entire ignorance. On the 9th of November they were put into possession; in a very short time they found that the profits were not such as they expected, but it is quite clear from the correspondence that they did not know the cause. They complained; Mr. Small wrote a letter to P. Taylor on the 27th of December, in which he points out his disappointment and asks for explanation. The statement that he makes with respect to figures is corrected in some particulars by P. Taylor, who also states his dissatisfaction, but no intimation whatever that he had discovered that any fraud had been practised; in fact, he had made no such discovery. He ascribed the falling off to a variety of causes, but he concludes by saying, "We are now near the end of the year; in a very short time the quarterly accounts will be made out of the profits of the quarter, and then we shall be able to investigate the matter more minutely." He saw that things were not going on right, though he could not ascertain the cause; but it is said that, though the directors did not know this, P. Taylor must have known it, because he was on the spot. I must be allowed to make an observation on the situation in which P. Taylor was placed by Mr. Attwood, as I think that has an important bearing on this question. Mr. Attwood knew nothing of him before these transactions; he knew nothing of his solvency or circumstances, and yet we find Mr. Attwood, knowing that P. Taylor was to be the agent on the premises, by whom everything was to be conducted, with whom every communication was to be made, we find Mr. Attwood in a very short time advancing to P. Taylor, without any security, sums to the amount of £12,000. Every one knows what must be the effect and operation of an advance of that kind to a person in the situation of P. Taylor; it would not dispose him to look unfavourably towards Mr. Attwood; if he suspected nothing, it would render him probably less astute in making inquiry. He would never turn (to use an expression of Mr. Attwood's) the worst side of Mr Attwood's proceedings towards him. It is unnecessary to point out the natural tendency and effect of placing Mr. P. Taylor under such heavy pecuniary obligations to Mr. Attwood, during this very important period of his agency. Part of the money was advanced, or agreed to be advanced, just before the time the second contract was to be entered into, about which Mr. Attwood was so anxious; part was advanced at another period, when the report was about to be made with respect to the state of the works. My Lords, I should not press this matter except on the assumption, on which this part of the argument turned; and the whole of this falls to the ground, provided you are not satisfied that the original representations were untrue. In that case, it is quite unnecessary to discuss the subsequent conduct and knowledge of the parties, it only becomes material if you are satisfied that the original representations were untrue. Now, if the original representations were untrue, is there anything unreasonable in supposing that the party making them meant that the natural consequence of such advance of money should take place, and that Mr. Taylor should, to a certain degree, be paralysed and unnerved in his exertions and inquiry? Can Mr. Attwood, under such circumstances, be entitled to turn round and say, "Oh, you, Mr. Taylor, were in a situation to have known everything and you ought not to have shut your eyes to the state of the proceedings, but you ought to have made communications on the subject to the directors." I wish to treat this part of the subject as tenderly as possible and I shall say nothing more on it, except to point out under what circumstances this money was advanced. The furniture at the house at Corngreaves was handed over to Mr. Taylor, with other things, for the sum of about £4000. He was to pay for it by a note of hand at 12 months, with an agreement to renew at the end for another 12 months: no security even taken upon the property itself. That was the first obligation. Afterwards £6000 was advanced upon the security of Mr. Taylor's bond, Mr. Attwood knowing nothing of his solvency. A representation was made that Mr. Taylor said he could not keep his shares. It was considered a pity that he should part with his shares; it would damage the concern if the agent should sell his shares, and Mr. Attwood offers to advance money if the contract is completed, for the purpose of enabling him to keep his shares. He takes no security upon the shares, but pays him down £6000 without any security except the bond of Mr. Taylor himself. Again, a conversation takes place between Mr. Attwood and Mr. Taylor, and Mr. Attwood asks him, " Do your firm, Messrs. Martineau and Taylor, manufacture your own boilers? It is a pity you do not." "No, we do not, because we have not capital enough." "Oh I will furnish you with capital; how much do you want?" After some time, £2000 is stated to be the sum; £2000 is immediately advanced on the security, not of P. Taylor alone, but of the two members of the firm, and a further sum of £2000 is advanced on the additional security of a third person. Now all these sums of money are advanced in the manner I have stated to a person with whom Mr. Attwood was totally unacquainted previously to these transactions. Was it right and fair for Mr. Attwood so to deal with the agent of the company? Was it just to the company? Was it reasonable that he should entangle the agent on whom the company relied, by pecuniary obligations of this kind? All this was kept a profound secret. It did not come out until it was necessary that it should come out, and then it came out drop by drop, not all at once, not a full and fair exposure of the whole transaction, but as much as it was necessary to tell was successively told, and at last the £2000 transactions came out in consequence of the insolvency of Martineau and Taylor. It was natural that these money advances should have been entered in the cash book of Mr. Attwood. The cash book has been produced; there is no trace of these transactions. All these things tend to excite strong suspicion, and justify strong observations. I dismiss them.
Again, my Lords, as to Edwards: he was a man long in the employ of Mr.Attwood; Mr. Attwood expressed himself dissatisfied with him; he said he was a man on whose integrity he could not rely; he made use of this expression to one of the witnesses, "He has an unfortunate propensity to lying." Yet Mr. Attwood recommended this Edwards as account-keeper to the concern, and on his representations Edwards was installed into that important situation, when the concern first, began its operations.
Now as to Philip Taylor, and as to his knowledge: He went down to see the works before the first contract. It is not pretended that he then saw the books. He went down afterwards on the 25th of September, and remained on the works up to the time when the deputation came, and he stayed two or three days afterwards. What evidence is there that he inspected the books during that time? He denies it positively in his own answer. He inspected them once, and for what purpose? For that purpose that was so, natural, he inspected, with Edwards, the ledger, for the purpose of knowing the connexion of the concern, the customers, who they were, and the extent of the trade that was carried on; and he says that was the only time he ever did inspect them. And where is the evidence to show there was any other inspection by him at that time? And what is the probability of the case? He had every confidence in Mr. Attwood; he had no doubt whatever at that time of the representations being correct; it was not till a late period that some doubts were thrown out by some of the parties who were disputing in town, as to the course that should be pursued. You have it in evidence by Harrison, that he desired Harrison not to examine the books; that whatever representations were made by Mr. Attwood, Mr. Attwood himself was to verify. But then reliance was placed in the course of the argument on some estimates that were made, to which Harrison and P. Taylor were supposed to be parties. That is stated in Mr. Attwood's answer, but it is positively negatived by Harrison; it is positively negatived by the witness Talbot, that either the one or the other ever in fact did make any estimate. What takes place afterwards? On the 4th of November the contract is executed. Then P. Taylor takes possession: he then has an opportunity of investigating and examining the accounts; so it is supposed. Had he? The moment he took possession, or just before it, Mr. Attwood went to the premises and removed every fragment of accounts connected with the works, connected with that period to, which his estimates apply. So strict was he in that respect, that having heard that a man of the name of Evans had some memorandum, Mr. Attwood sent for him, and told him he must give it up, and he afterwards gave it up. He afterwards met Evans, and said, "Have you no other notes or memoranda of anything connected with the works?" "Yes, I have some notes and loose papers." "Give them to me," said Mr. Attwood. From that moment, all opportunity of referring to the past state of the works was taken away from P. Taylor, and from the company. But previously to this, on the 29th and 30th of October, those papers, or some of them, that had been examined by the deputation, were sent to P. Taylor, in order that he might verify them; and great stress has been laid on that circumstance. He examined them during parts of the two, days. To what did that examination lead? What materials had he that the deputation had not on the 21st, when they were there? He could do nothing more than to look over precisely the same documents and books that were produced to the deputation. Had he any means of ascertaining what were the yields, except by looking at the books of the time of James and Matthias Attwood? Any examination, therefore, at that time must have been altogether nugatory. The examination could not have been carried further, or rendered more complete than it had already been made by the deputation. It might be confirmed, it might be checked in some minor particulars, it might be extended; but as to that which was the essence of the inquiry, namely, the yields, it was altogether nugatory. But let us suppose, that in part of that interval, from the 25th of September to the 25th of October, during which P. Taylor was at Corngreaves, he examined the books, unless you can satisfy me that the stock papers were there at that time (and nobody pretends that they were), to what would that examination have led? How would he have ascertained what the yields were How would he possibly have ascertained that on which the question, I contend, from the beginning to the end, depends? Then after he began to superintend the works, what was his situation? My noble and learned friend has read a great deal of the correspondence. The effect of it is this that Edwards was the person who superintended the accounts and the details, that P. Taylor was engaged in all the active occupations of the concern, planning new works, superintending the execution, reducing disobedient workmen to, order, seeing the customers personally, carrying on an extensive correspondence, superintending not only these works, but also works in Wales; and he tells you that he was so sunk under this accumulated employment, that he had no time for any details. Then he being so, occupied, you assume that he must have known exactly what the state of the works was. When that letter from Mr. Small came to him, what was his observation? It was this: "Wait till the quarterly accounts are in, and then we shall see what state and position we are in." He disputed the accuracy of some of those items that had been stated in the letter by Mr. Small. The account was to be made out either by Harrison or by Edwards, and not by himself. The account did come in; it represented the profits of the quarter as being between £7000 and £8000; it passed through the hands of P. Taylor. Did it pass through his hands in order that he might investigate its accuracy? No, but that he might authenticate and identify it. It was sent up to the directors, and they, acting on the faith of the accuracy of that account, drew up the report which represented an annual profit of £30,000. They thought that was not so bad; they were satisfied; but that account was put into the hands of the accountant, Mr. Smith, and he soon detected its inaccuracy. I stated in the judgment below, that on that investigation the accountant reduced the £7000 to £1800 (Younge, 505). In that respect, I was inaccurate; he reduced it to £2500. As soon as the directors discovered this, a second deputation was sent down for the purpose of examination and inquiry. It is impossible to look through the correspondence and the papers, and not observe that though the directors found that the profits were not such as they expected, they did not know to what cause their disappointment was to be ascribed. But when they found this account so inaccurately stated, Morris, Logan, and Robert Small went down, for the purpose of a thorough investigation. What was the result of that investigation? That they and P. Taylor found, as appears in one of those letters, part of which was read by my noble and learned friend, that they had been grossly imposed on by Mr. Attwood; and then it was that this proceeding was instituted.
Now, my Lords, is there here anything amounting to a waiver, or to an adoption? If you once establish a case of fraud, in order to get rid of the case of fraud by anything like adoption, that adoption must be with an entire and full knowledge of all the facts. Is it pretended that was the case here? With respect to the yields, it took the accountants two, months to come to a conclusion from the books. Could the directors on bare suspicion, on failure of one, two, three, or four items, venture to institute proceedings against Mr. Attwood. Nothing but full possession of all the facts of the case could have enabled them to do it. Therefore I do not see how it can be shown, that, after obtaining a full knowledge of the facts, there was any adoption of this transaction, either by the directors themselves, or by the, directors through the medium of P. Taylor.
But then it is said that the record remains in a singular form. I do not understand why that is said. The charge is made by the directors against Mr. Attwood, P. Taylor, James, and Edwards. The allegations and the proofs as against P. Taylor have entirely failed. My noble and learned friend on the woolsack says that the judgment in that respect is correct. My Lords, the judgment in that respect would not be correct, if P. Taylor had been apprised of the frauds which were committed, and had not communicated them to his principals. Therefore the moment you say the judgment as to P. Taylor is correct, it amounts to this, that P. Taylor was not cognizant of the fraud. If he was not cognizant of the fraud, he is entitled to have the bill dismissed as against him. Then it is said, the moment the bill is dismissed as against P. Taylor, he must be considered precisely in the situation as if he was a plaintiff. Granted. But suppose he had been a plaintiff, and it had been proved that he knew of the fraud, would that have been any objection to the decree? None whatever. It does not appear to me, therefore, that there is anything in the shape of the record that is at all intricate or entangled.
But another objection is made, namely, that James and Edwards are made co defendants. I am not responsible for that. I found them on the record; it was my duty to deal with the record as I found it. I could not allow their evidence to, be read, if I was of opinion that a case was made against them. In making them parties to the record, former precedents were adopted. I do not mean to say they were good precedents. I mean to say distinctly that if an issue had been directed and the parties had been desirous of an issue, I should have directed those defendants to be examined; but I was not so situated, as that was not the course taken, and nobody wished for an issue. I had no course to take but that which I did pursue, which was to consider them as parties, to the cause, to inquire whether a case was made out against them, and being satisfied a case was made out against them, to exclude their evidence. I had no alternative. My Lords, it is said that this practice is copied from the proceedings of our criminal Courts. Unfortunately it does happen in our criminal Courts, that two or more persons are indicted for a conspiracy, and if there is evidence against them all, no one of them can be a witness for the others; whereas if they were indicted separately, on different indictments he might; and yet the criminal court tolerates those joint indictments, which are attended with this effect. A bill in equity in this respect is the same as an indictment for conspiracy. It charges conspiracy, and the same consequences follow, so that it has been the practice both of Courts of Law and of Equity. I disapprove of it in both. I have known instances of gross injustice in Courts of Law committed by means of it; but what opportunity had I of excluding the practice in this case, unless the parties desired an issue, and no person suggested that they did; on the contrary, the whole scope of the proceedings show that they did not. Why should they entangle me in an inquiry day after day (the argument continued for 21 days), if the parties had desired an issue? In one day enough might have been made out for an. issue, but they go on day after day into most minute details, request me to draw a conclusion, and then they turn round and say there ought to have been an issue, and these defendants ought to have been examined. But mark how extraordinary is the argument that they ought to have been examined. Why they were, in point of fact, examined; interrogatories were administered to them with respect to almost all the material parts of the case, and not one interrogatory is put upon that particular subject. Then it is said they ought to, have been examined. Suppose they had, would those questions have been put? Why were they not put in the actual state of the cause?
My Lords, something has been said by my noble and learned friend on the woolsack with respect to the conduct of the directors of the British Iron Company. I frankly say I do not approve of all their conduct; I think in many respects they acted with indelicacy; I think in one of those letters to which my noble and learned friend has referred, they state that they shall avail themselves of all the power that the law gives them, in order to postpone the payment of a large sum of money, not with reference to these frauds, but merely because it is inconvenient. I think the indictment for perjury and other parts of the conduct of the directors are open to censure; but, giving the utmost latitude of observation to every part of the case in this respect, I ask does it amount to a bar against relief if a fraud had been committed extending to so many thousand pounds? Does that indelicacy of conduct on the part of the directors entitle us to say that they shall not come into a Court of Justice for the purpose of setting aside a contract founded on such fraud? I am always assuming that the evidence proves that fraud has been committed. Then I say there is nothing in the conduct of the directors to preclude them from coming into a Court of Justice for the purpose of demanding redress for themselves and those whom they represent.
Now, my Lords, I have gone through this case, as I said in the outset., for the purpose of justifying myself to your Lordships, and vindicating myself in my own opinion, for entertaining hesitation and doubt as to the opinions that have been formed by my noble and learned friends. Perhaps I have expressed myself with rather too much anxiety; but I state sincerely, that what I have submitted, I submit with the utmost deference and respect to your Lordships, and my noble and learned friends. I do not wish that, my opinion should weigh against theirs; I defer to the opinion they have formed on this subject. They have considered and investigated the case with great acuteness, great industry, and great earnestness; and as it was my lot to pronounce the judgment in this case, against which the appeal has proceeded, I confess this circumstance increases my doubt and my hesitation. What I have said I have said in discharge of my duty. Your Lordships will dispose of the case as you think fit; you have heard it very much in detail, and I am sure, whatever the decision is, the parties on the one side and the other, considering the manner in which it has been investigated, and the time that has been bestowed on it, both here and elsewhere, must be satisfied that, as far as our efforts and exertions could extend, we have endeavoured to do justice between them.
Lord Brougham: My Lords, I am sure that whatever difference there may be among your Lordships, and with whatever doubt and hesitation you may come to the ultimate decision of this important case, there can be but one opinion respecting the able and luminous judgment which has just been pronounced by my noble and learned friend. My Lords, considering that two of your Lordships have pronounced your opinions against the judgment in the Court below, -that judgment come to after a year's deliberation, after a hearing of 21 days,- that, judgment now, after a second hearing in this House, first of 16 days, and afterwards of 30 days, adhered to by my noble and learned friend, whose former opinion does not appear to me to have been shaken, either by the subsequent arguments or by the subsequent consideration which he has been able to give the whole ease, -it would very ill become me, considering these circumstances, to say that I approach without great distrust of myself, and very great diffidence indeed, to the consideration of this question. The hour of the day also, at which we have now arrived, interposes an insuperable obstacle in the way of my discharging what I now deem to be my duty, of delivering my opinion upon, this question at some length. I therefore suggest to your Lordships to adjourn, as some of us are summoned to the Judicial Committee of the Privy Council, on a case of very great importance, now waiting for us. I really do feel also, in. consequence of the very powerful statement of my noble and learned friend, who has just sat down, -which I will not say has shaken my opinion, but has certainly somewhat unsettled my opinion on this subject,- I should wish to have a little more time for considering it; and should therefore, with your Lordships' permission, move now that the further consideration of this ease be postponed till Monday; for postponing it till tomorrow would not have the effect which I wish, of enabling me to look more at large into the case. I have requested the learned counsel to furnish me with, the short-hand writer's notes of Mr. Serjeant Wilde's reply, and of the arguments made last year by Mr. Knight Bruce (Mr. Knight had taken the addition of Bruce to his name since that time) and Mr. Wigram on the other side. I have a full note of Mr. Knight Bruce's able argument the first year; but in the second year he may have altered the shape in which he presented the case to your Lordships in the first.
The further consideration of the case was adjourned to Monday.
Lord Brougham (March 26): My Lords, I approach the consideration of this case with very great anxiety, from the peculiar circumstances in which it comes for judgment before your Lordships. It is without any example, within the experience of the oldest man in the profession, in point of length, and I should say, of complexity of detail of the mass of matter with which it stands encumbered; and it is hardly exceeded by any cause of which there is any report in respect of the importance of the stake at issue. But it is the length of the case, and the mass of matter in which it is involved, that principally give rise to the anxiety which I feel. It has lasted now for about seventy days in hearing in the Court below and in this House, forty-six of which have been at your Lordships' bar. The printed papers exceed 2600 folio pages. The notes of the arguments in this House alone, with which I have been furnished, occupy about 10,000 brief pages; and instead of diminishing in prolixity, and lightening in, weight of materials as the cause proceeded through its successive stages, -when it might have been, expected that, as matters came to be better apprehended on the one side and the other- as parties came nearer to an understanding of what the real matters in issue were- as the mists, which always exist at the outset of a case, were by mutual communication and further discussion cleared away-as points that were immaterial, though at first supposed to be otherwise, came to be dropped out of the cause, and as thus the points really in dispute between the parties came to, be diminished and the ground of real conflict to be narrowed,-it might have been, expected that in each successive stage, for these reasons, the prolixity should have been less, and the mass of matter that encumbered the questions in issue become lighter; 'on the contrary, at each successive step, greater elaborateness has been shown, the zeal of parties on either side contending has augmented; the prolixity of statement and of argument has been. enlarged, and the mass of materials under which we may be said almost to, be exhausted, if not confounded, has been augmented, so that had the cause gone off by any great misfortune from the absence of those who heard it last session to another and a fourth stage, it is difficult even for the imagination to scan the bounds which would have been the limits of this extraordinary cause. I think, my Lords, it is not improper for me to express my opinion upon this subject, rather by way of complaint than, of commendation, for undoubtedly the consequence of this has been that we are overloaded with matter that is not material in the cause, I will not say that it has taken the place of anything material, for I do not think the wit of man can fancy anything to have been excluded, whether it bore upon the cause, or was anything that could be said even apparently to have that view; but, at all events, we have to wade through, and we are encumbered with, and pressed down by, a load of matter, which makes it exceedingly difficult to be always certain that we are not making, for a moment, some slip upon some of these details.
My Lords, if these matters respecting the cause itself are calculated to oppress me with anxiety, there is another accidental circumstance personal to myself which increases that weight very materially. I had the advantage of attending the arguments here for sixteen days in the session of 1835. I was prevented by ill health from attending during the session of 1836. I attended last Thursday when the case stood for judgment, and I heard the argument of my noble and learned friends, who had the benefit, both of them, of hearing the arguments in one of the sessions, and one of them (Lord Devon) of hearing it in both sessions. I then heard the most able argument that I almost ever heard of my noble and learned friend who decided the cause in the Court below, who also had the benefit of attending the arguments here both in 1835 and in 1836, and, as I stated to your Lordships when the impression of that able argument was fresh in my mind, I never heard anything more able or more calculated, if one had formed an opinion before adverse to that judgment, to obstruct and to embarrass one in announcing it to your Lordships.
However, my Lords, if I feel difficulties and embarrassments from these causes, there are one or two circumstances of an opposite nature which comfort and bear me up under that pressure. In the first place I have gone through the whole of the case, both the note which assists my recollection of what I heard of the argument, and the printed papers as far as I have been able -I believe there is no part of them of the least importance that I have not read. I have also had the written notes of the arguments laid before me, which I have carefully read; and though I felt some anxiety at first, yet ultimately throwing aside what appears to me to be the crust and shell merely, I do think I have succeeded in coming to a real view of the merits of the case, perfectly satisfactory to my own mind, and so clear upon every part of the case (with one exception, to which I shall afterwards advert), that I feel no doubt or difficulty. And this relieves me from that load of anxiety which the case is so well calculated to, place me under; because if the result of my examination had been not to bring me to so satisfactory a conclusion, but to leave me in any considerable doubt about it, I should at once, upon the ground of not having heard the whole of the argument, have withdrawn from the position in which I now present myself.
The next circumstance from which I derive comfort is, that there is at all events one matter upon which, -whether we look to the course that has been taken at the bar on both sides, or to the course that has been pursued in this House, as well as in the Court below, or to the frame of the judgment as it has been stated in argument, and defended by my noble and learned friend, or to the merits and to' the course of the whole litigation,- I entertain no doubt whatever, nor do I think that any reasonable doubt can be entertained; and that is upon the question whether or not any issue should be directed, and thereby any renewal should take place of this all but interminable litigation. I should have felt the greatest anxiety and pain if I had thought that a litigation, now protracted to the length to which I have already adverted, and having at last reached its present stage, was not now to be terminated, but was to go into another course, by sending an inquiry into matter of fact before a jury; I consider that to be wholly out of the question, and I will never be one to advise your Lordships so to deal with it, as at this stage to shift it into the trial of an issue.
In the first place, an issue was never suggested by either side in the Court below, as I understand. In the next place, my noble friend, who paid so much attention to it below, had no doubt whatever then, any more than he has now, that an issue was out of the question. In the third place, from all that has taken place at the bar here, I am equally clear that an issue is not what either of the parties have pressed for; and if either of the parties, finding which way the decision is likely to go, here, should alter the course hitherto taken by both, and should, as I have not seldom seen in similar circumstances, say, "Oh, yes, we will have an issue," that would not alter my opinion, because that would be in the very last stage, and in the agony of the parties, having recourse to, some straw to, catch at, which they never thought of when they considered that they were in more favourable circumstances. But lastly, and chiefly, I do not think the case, from the nature of the question, is well adapted to a trial by jury, and I will mention two circumstances which appear to me to render it ill adapted for that mode of litigation.
First of all, though no person has more respect than I have for the institution, of trial by jury, and no person is better aware than I am, from long experience, how well adapted that mode of investigation is in certain cases, -such as where there are damages to be assessed, or conflicting testimonies to be sifted, and where it is very material to see the witnesses and to mark their demeanour under examination, and where various minds brought together to discuss the weight of the same testimony, are pretty sure to arrive at an accurate conclusion, either as to the value of the testimony, or as to the amount to be awarded upon that testimony- yet it is not to be denied that there is a great risk attending such trials, more especially when a very great litigation having taken place beforehand, the weak points are well known to each party, both of his own case and of his, adversary's, and great scope and facility is afforded for preparing the testimony which is to be presented to the jury. The party preparing the testimony comes before the jury with great advantage in such cases; he may have been weeks or months in making his preparations, and his adversary who has to meet him may be taken by surprise, without one moment's preparation to meet that prepared testimony. But also, it is to be observed, that a single expression, a showy case made out upon a single loose phrase, such as "Go into the room and tell them that I have got a man here to bid," it being untrue that he has any man -to bid- I am giving this as a specimen -or such a phrase as "a set of old fools in the next room," used by one party to the other,- a thing of that sort, as we all know, coming before a jury, has always much greater force than its real value entitles it to, in finally disposing of the whole matter. It is a fault incident to the nature of the investigation, in a limited time, under the heat and pressure of the moment, upon the evidence of the witnesses and the counsel's comments, -it is a defect to which the trial by jury is inevitably subject.
But, my Lords, the principal reason why I think an issue to be entirely out of the question here is, the vast variety of issues of fact that you would have to present before the jury, -as we all thought in 1835, when this suggestion was thrown out, and we had so far a temptation to listen to it, as it would have been relieving us from a great load of matter at the outset of a very long inquiry- nevertheless we rejected it, upon the supposition that no patience of a jury or of a Court could have availed to conduct such an investigation, and that there would hardly be a possibility of framing issues so as to have all those facts which were deemed by both sides to be material, put into that shape to be disposed of by a jury, -I therefore dismiss from my mind altogether that first proposition, whether or not this case should go to a further investigation by a trial by jury.
My Lords, I now come to another, and the last of those favourable circumstances to which I adverted as affording me great satisfaction. I come now to advert to the principles of law which are involved in the case, and upon which the decision must proceed; and it is very satisfactory to think that upon those there is no controversy on either side. I shall state them in the manner in which they strike me. If two parties enter into a contract, and if one of them, for the purpose of inducing the other to, contract with him, shall state that which is not true in point of fact, which he knew at the time that he stated it not to be true, and if upon that statement of what is not true, and what is known by the party making it to be false, the contract is entered into by the other party, then generally speaking, and unless there is more than that in the case, there will be at law an action open to the party entering into such contracts, an action of damages grounded upon the deceit, and there will be a relief in equity to the same party to escape from the contract which he has so been inveigled into making by the false representation of the other contracting party. In one case it is not necessary that all those three circumstances should concur in order to ground an action for damages at law, or a claim for relief in a Court of Equity; I mean in the case of warranty given, in which the party undertakes that it shall in point of fact be so, and in which case, therefore, no question can be raised upon the scienter, upon the fraud or wilful misrepresentation. In this case that is clearly out of the question, therefore all those three circumstances must combine: first, that the representation was contrary to' the fact; secondly, that the party making it knew it to be contrary to the fact; and thirdly, and chiefly, in my view of the case, that it should be this false representation which gave rise to, the contracting of the other party. "Dolus dans locum contractui" is the language of the civil law, not dolus malus generally; not the mere fraudulent conduct of the party trying to overreach his adversary; not mere misconduct and falsehood throughout, unless dedit locum cnotractui; because then comes in the equitable principle of the civil law, which forms a part of all other systems of jurisprudence, whether founded upon it or not, being grounded on the highest consideration of natural equity, ex dolo non oritur contractus.
My Lords, the cases which have been referred to, and which are perfectly clear upon this point, may be shortly recalled to, the recollection of your Lordships, for the purpose of clearly showing that the materiality as well as the falsehood of the statement, and the knowledge of the party making it that it was untrue, must concur in order to give relief in equity, and to give an action for damages at law, the two remedies being co-extensive and acting in exactly the same circumstances. The first case that is mentioned in suits of this sort, is that of Lysney v. Selby (Ld. Raym. 1118), a case for affirming the rent of houses sold by defendant to plaintiff, to, be more than it was, in which Lord Chief Justice Holt held that if one buys upon a representation of so much rent, and relies upon it, and will inquire no farther, if the representation be false, an action will lie; but, if the vendor will inquire further, that is, if not relying upon the representation of rent made, he says, "I do not rely upon the representation, but I will satisfy myself by my own inquiry," then Lord Holt seems to have been of opinion that the action would not lie. Then there is the case of Dobell v. Stevens (3 Barn. and C. 623), before Lord Tenterden. It was a question on the purchase of an alehouse, arising out of a misrepresentation of the receipts of the house, -a very common case,- and Lord Tenterden, in directing the jury, said that he relied on the purchase of the alehouse having been made on the faith of the representation. Now suppose, instead of its having been made on the faith of the representation, the party had said, "I draw so much beer in a month." "But," says the other, "I will not be satisfied with your telling me that you will have no objection to verify and corroborate your statement of the draught, by giving me access to your beer books, or to your brewer's account." "Oh, with all the pleasure in the world," says the vendor of the beerhouse;" come, or send any person you choose." And suppose the person had either gone and satisfied himself or sent his clerk, which clerk had made a report to him and said, I have looked through the books, and I am perfectly satisfied; or if the party, not satisfied with the clerk's report, had gone himself and looked at the beer books, and said, "I see it is all right; " would he then be allowed six months after that to come and say, " I will be off the bargain, because I find there is a less draught of beer than I expected? " Or could he have come with any success into Lord Chief Justice Tenterden's Court, and asked for damages on the ground of misrepresentation, because instead of three butts, there were only two butts of beer drawn? "No," my Lord Chief Justice would have said; "how can I say that the purchase was made upon the faith of that representation, when I know that the purchase was made upon your own examination of the books, and your clerk's report, which report of your clerk was confirmed by your own ocular inspection." If your Lordships look at the case of Ekins v. Tresham (1 Lev. 102; S. C. Sid. 146, nom. Leakins v. Clissel), your Lordships will find the pleadings there set out, and that the defendant made such a representation, to which representation the plaintiff " adhibens fidem, donne a lui £500;" so that "adhibens fidem" appears to have been an old rule -a peculiar expression, to which representation the party in question lending faith, did, as Lord Tenterden says in Dobell v. Stevens [3 B. and C. 623], upon the faith of that representation, pay this £500. In Edwards v. M'Leary (2 Swanst. 287), a case in equity, those cases which I have mentioned being at law, Lord Eldon holds that the false representation must be a, falsehood, which the other party had no, means of knowing. It must be a, falsehood which is not common to both parties to inquire into and ascertain, a falsehood which is not open to the eyes of either the one or the other party, but which is within the knowledge of one party, not within the knowledge of the other, and consequently to, one party telling the other, who has no other means of satisfying himself excepting listening to, what is told him by the party alone knowing it, he adhibens fidemn entered upon the contract, in which case equity will relieve him against it, because he had no other means of knowing, and he trusted to that representation alone, not to his own inquiry, and consequently it must be that which dedit locum contractui.
Now, my Lords, what inference do, I draw from these cases? It is this, that general fraudulent conduct signifies nothing; that general dishonesty of purpose signifies nothing; that attempts to overreach go for nothing; that an intention and design to deceive may go for nothing, unless all this dishonesty of purpose, all this fraud, all this intention and design, can be connected with the particular transaction, and not only connected with the particular transaction, but must be made to be the very ground upon which this transaction took place, and must have given- rise to this contract. If a mere general intention to overreach were enough, I hardly know a contract, even between persons of very strict morality, that could stand; we generally find the case to be that there has been an attempt of the one party to overreach the other, and of the other to overreach the first; but that does not make void the contract. It must be shown that the attempt was made, and made with success, cum fructu. The party must not only have been minded to overreach, but he must actually have overreached. He must not only have given instructions to the agent to deceive, but the agent must, in fulfilment of his directions, have made a representation; and moreover, the representation so made must have had the effect of deceiving the purchaser; and moreover, the purchaser must have trusted to that representation, and not to his own acumen, not to his own perspicacity, not to inquiries of his own. I will not say that the two might not be mixed up together, the false representation of the seller and the inquiries of the buyer, in such a way as even then to give a right to relief. I do not find that there is anything in this cause that makes it necessary to deal with that argument.
My Lords, having stated these principles, I now come to call your Lordships' attention to the facts of the case in their application to these principles. But before I come to that, there is one thing I wish to observe, in case of any misunderstanding of an observation of my noble and learned friend, with respect to what I considered to be a misstatement of the principle respecting agency between the parties (vide ante, pp. 341, 347 and 348). I have no doubt that if an agent of a party, say of Mr. Attwood in this case, without his knowledge, made a wilfully false representation to the British Iron Company, upon which representation they acted, "adhibentes fidem," and on that confidence had formed a contract. I have no hesitation whatever in saying that against that contract Equity would relieve just as much as if there was the scierter of the principal proved; because it is not a question of criminal responsibility which is here raised by the facts. The agent could not commit the principal to any criminal purpose, if the principal did not know it, and had not either given him an authority or adopted his act when he did know it. But as to the civil effect of vitiating the contract made upon that false representation, I have no doubt whatever that it would vacate it just as much with the ignorance of the principal, as if he were charged with knowing it, and as if the agent had been an agent for this purpose.
My Lords, the British Iron Company, then represented by three of the directors, on the 6th of June 1825 made an offer, or an acceptance of an offer, the property having been tendered to them for £600,000; they made their acceptance of that offer, and after stating the dates of the payment of the different instalments, they made this most material proposal, moving as your Lordships see, from them, not from Mr. Attwood: " This proposal is made by us under a complete understanding that you will afford Mr. P. Taylor every facility to ascertain the correctness of the representations that have been made to him respecting this property," etc. (vide supra, p. 239). Now what says Lord Holt? In effect, "If he will go to inquire for himself" (Ld. Raym. 1120). What says Mr. Justice Powys? "If it was a thing of which he might have satisfied himself" (Ld. Raym. 1121). What says Lord Tenterden.? "Having been made on the faith of the representation and of that alone" (3 B. and C. 625). What says Lord Eldon, in Edwards v. M'Leay, affirming Sir William Grant's judgment? "It must be a falsehood of which the other party had no means of knowing" (2 Swanst. 289). And so the British Iron Company said to Mr. Attwood, "You have made us a proposal; you have given a statement; we entertain the fullest confidence that that statement will be borne out by the inquiry; we accept the offer you make, and we bind ourselves to the bargain as purchasers, on the condition that you will enable us ourselves to ascertain the truth of the statement you have already made to us."
My Lords, this introduces a very material part of the case to our immediate consideration. Who is P. Taylor? First, an expert mine agent, well known in dealings in mines; secondly, the founder of the British Iron Company; thirdly, one who did not rest contented with having originated the company, but continued to take an active interest in it, having shares to the number of 300, his own property, worth £30,000 at prime cost; fourthly, the superintending manager of the company's concerns generally; but, fifthly and lastly, and most materially, their agent in respect of the Corngreaves, Dudley Wood and Netherton concerns, because he had been appointed their agent, at a salary of £2000 a year, with an allowance of £600 a year for his expenses. Anybody more mixed up with the company, more identified with it, having more interest in its welfare, who ought to be more anxious for all that concerned it; anybody more one and the same with the party than P.Taylor was with the British Iron Company, in the circumstances I have just mentioned I cannot conceive. It is possible that he may have altered his relative position; it is possible to conceive that P. Taylor, having been originally the company, became afterwards John Attwood. He may have deserted that which was his own foundation, may have abandoned that in which he had so large a stake; may have preferred other connections new to him, and other interests to the interests of the company. That is all very possible, but hitherto he is the company, and it rests upon those, who would sever him from the company and connect him with the opposite party, to make out that proof as clear as daylight, otherwise all the presumptions arising from all the circumstances are distinctly against them: but in the present state I say he is one with the British Iron Company.
My Lords, P. Taylor had repaired to Mr. Attwood's previous to the 6th of June, when the letter I have just read was written, and had had several conversations with him; the result and the substance of which were reduced to writing by P. Taylor, and form what is called the P. T. No. 1 Paper; that famous paper of which we have heard so much in this cause, but of which it is sufficient for me now to say that it contained, on purported to contain, the substance of Attwood's representations of the state of the property, its capacity of making iron, and the costs, in different particulars, at which iron could be made, so as to enable the directors to ascertain the money value of that which they were about to purchase. It is not immaterial to mention, I think it appears, somewhere, that Mr. Attwood throughout the beginning of these proceedings always expressed his intention to deal only with the three persons, R. Small, J. Taylor, and W. H. Shears. Now Mr. Attwood having received this offer, though his answer to it is not in the cause, nor does it appear that he made any answer, it is quite certain that at a meeting that was held with the parties afterwards, he at once acceded to it, that nothing could be more complete and ample than the manner in which he fell in with that last and material part of the condition, which they imposed, of the fullest access being given to enable them to make all inquiries, with a view of satisfying themselves whether or not he had represented the facts to them as they really stood. The question then was, whether he represented those facts accurately; and for the purpose of verifying his statements, the fullest access was to be allowed by him to them, or to their agents, whom they might think fit to send for the purpose of aiding them in this inquiry; and it was not confined to the verifying of the statements, but they were to have full access, and to make any investigation that they thought fit.
My Lords, that Mr. Attwood performed this part of his undertaking most amply, I think there can be no doubt. Without going into the particulars by reading the evidence, but by general reference, I will remind your Lordships as to how this was acted upon by the company, and we shall then, see how far, trusting to his representations, adhribentes fidem to his representations in the P. T. paper, upon which they agreed to contract, how far they acted, or how far they took the inquiry into their own hands, he giving them access and affording them all facilities. In the first place, P. Taylor goes down and remains on the property from the 27th of September to the 9th of November, with the exception of a few days, during which he was absent; and you will presently see how that time was by him spent. But, first, we may take the general result of that from what Mr. Brunton says, an engineer employed by the company, and wholly unconnected with Mr. Attwood. In answer to the 187th interrogatory, he says that when some talk was made after the dinner at Corngreaves, of some other investigation, "P. Taylor said that he considered Mr. Attwood was treated unhandsomely, as he had thrown open his books, and from them given the most satisfactory corroboration to all he had stated before, and he ought not to be called on to answer other questions which were not included in those previously agreed to as the basis of the contract." But we are not left to guess, from these general assertions, at the result, that this was the case, because the evidence is most ample of the fullest investigation having been permitted by Mr. Attwood, and of the company having, by their agents, in point of fact, carried on an investigation, because you have the evidence of R. Edwards, in answer to the 93d, 94th, 96th, 97th, and 110th interrogatories, of the access having been free, and of their having entered the door thus thrown wide open to them by Mr. Attwood, and availed themselves of those facilities: he says that P. Taylor had access to all the books in the counting-house at Corngreaves, at Dudley Wood, and at Netherton; that he was there each day, and that he was sometimes there for hours; that he went through the whole iron and steel ledger, that he went through the reckoning-book. It was read de bene esse, only to be ultimately shut out, if the Court should be of opinion that he was a conspirator. Then he says, that no book was kept back; he identifies fourteen of the books, and describes what each is; he shows eighty-five accounts numbered, he describes them, he says they were all open to P. Taylor; and then he states a number of particulars with respect to P. Taylor, as well as to Mr. Harrison, who also examined the books. A question was raised whether the ironstone had been purchased, and it was then shown that it was, and they saw the ironstone come in boats and carts, and P. Taylor had a conversation with the people about the quality, which clearly shows that he knew it was purchased, for he wondered Mr. Attwood should purchase ironstone of such a quality; clearly showing that he knew that it was bought. But my opinion does-not rest at all upon the evidence of Edwards; 'I care not if his evidence were struck out of the cause, for I am going to show your Lordships, by the evidence of Brunton, of P. Taylor, of Foster, and by the acts of the directors themselves, that they did make the inquiries, that there was no complaint of any obstruction thrown in their way, that no obstacle whatever was interposed to those inquiries being made as fully, as siftingly, and as stringently as it was possible for men to conduct inquiries.
It has been observed that Mr. Attwood desired the negotiation between him and the company, for the purchase, to be kept secret. It was a very natural wish on his part, and gives rise to no suspicion whatever of itself respecting his conduct or his motives, because, when a great concern of that sort is about to be sold, it is not a pleasant thing for the person who has it to sell to have it known that he is hawking it about, as it were, to see whether he can get a purchaser, and that one person, having been in treaty with him, that negotiation for any reason not explained had gone off, and if he was minded to sell it, that would injure its value in the market. Accordingly, my noble and learned friend (Lord Lyndhurst) did not impute any blame to Mr. Attwood, nor did he, upon that ground, rest any part of his suspicion of Mr. Attwood's motives or proceedings. But he said, inasmuch as it was to be kept secret, while the secrecy lasted it threw the company more into his hands than, they otherwise might have been, by making it impossible for them to carry on inquiries independently of him; it made them rely therefore the more upon his representation; and, to a certain degree, I admit the force of this observation, but it is limited of course to the time during which the injunction of secrecy lasted. But it appears that the secrecy was at an end in August. There is a letter among the papers, in which it is said, "The secret is out; the Iron Company have bought Attwood's mines." That being in August, there is no longer any secrecy; but in September and October, all inference to be drawn from the secrecy bearing upon any part of the cause is necessarily at an end, because whatever difficulties might have been thrown in the way by any injunction and promise of secrecy, must needs have been at an end when the inquiries, in point of fact, were taking place. All the importance of secrecy is the effect it might have in tending to prevent the company from making inquiry, which by the supposition they were no longer prevented from doing.
My Lords, P. Taylor goes down and makes those inquiries, and remains there till the latter end of October. If previous to this period there had been no circumstances to excite the attention of the company, nothing to awaken their minds to any suspicious circumstances that might surround the case, at all events, towards the latter end of October such circumstances existed. In July, when the bargain was made, all matters were prosperous: shares were no sooner declared to be purchaseable than they bore a premium, without any very strict regard to their value, without any very accurate ascertainment of whether there was a substance or a shadow to which the shares related. That was the state of things in July, and it was continued in August, and in the beginning of September. But about that time, the Bank of England thought fit to contract its issues. All property was depreciated by the contraction of the currency. Towards the middle of October the difficulties were increased; shares were at a discount, that had before borne a premium; hundreds and thousands of persons who had been shareholders at first, were no longer to be found anywhere, or holding anything, or having any existence, any more than the company of which they professed to be shareholders. Nobody would pay any instalments. Down came the shares; everything looked gloomy, and the gloom had very much increased by the 25th of October, the next date to which it is material to call your Lordships' attention.
My Lords, something that appeared afterwards in February, March, April, and above all in May, 1826, makes me suspect that as early as October 1825, persons connected with the British Iron Company began to think that they had not got so good a bargain as they had hoped, and feeling that difficulties were coming upon them in common with all other commercial men, particularly with all speculative companies, especially with all share traders, but emphatically with all holders of mining shares, the most gambling of all shareholders, it is no want of charity, but a regard to facts and a recollection of the facts of the case, which leads me to conclude that these gentlemen as early as the end of October must have had a misgiving, and been in the frame of mind to say, "It would be as well if we were out of the concern of Corngreaves." Well, now their attention is awake: now at least the P. T. 1 paper is likely to undergo a rigorous scrutiny. Accordingly, a resolution is passed by the directors that a deputation shall go down in aid of P. Taylor's examination, and shall sift the concern on the spot by their own exertions, and with the help of Harrison and Brunton, as well as P. Taylor. Accordingly thither they go, and there they remain, and on the spot they carry on their investigations, and in the house not only with Mr. Attwood, but with his books, the books in one room and the deputies in the other; Mr. Attwood offering them access to the books, and they looking at them if they pleased. Not content with their own examination of the books, Messrs. Small, Donaldson, and Leathley, the three that went down, send back P. Taylor's report, and desire that he should re-examine certain matters (vide supra, p. 258). Their attention being so much more alive now than formerly, they are no longer quite satisfied with the P. T. paper, or with the D. papers, but they recommit the matter, as it were, to P. Taylor; they send back these papers, and desire that they may be re-examined, and they accompany them with a set of minute queries as to sums and quantities. Now those queries and the recommitment to P. Taylor, clearly show that they had gone into the inquiry in a business-like way; that they had brought out the result of their inquiry after making it, and that they themselves had compared the P. T. statement with the D. papers, that their attention therefore was all alive to the subject; I will not say, with the desire of shaking themselves, out of the bargain, but at all events in order to make it quite clear, that they were bound fast, and with the intention of being loose if they found they were not fast. There can be no doubt about that.
My Lords, I come then to these conclusions: first, that they, having refused to make the contract upon the statement of Mr. Attwood and the P. T. paper embodying that statement, required by their letter of the 6th of June 1825, as a condition precedent to their entering into the contract, that full opportunity should be given to them and their agents to verify that statement; secondly, that those agents did go down for the purpose of verifying that statement, and were there for weeks examining the books and making extracts therefrom; the fact of their being there, if they were the agents of the company (throwing Edwards's evidence out of the case entirely), would clearly show that they had access to make inquiry; if they did not inquire, their laches must bind those who sent them, and estop them from saying they had not made that inquiry; and, thirdly, that not satisfied with sending and having their agents on the spot for so long a time, they themselves go down to see with their own eyes. Though they had as sharp eyes as could be in the head of man in P. Taylor and Brunton, and Harrison, and afterwards Foster, they still think that the eye of the master is better than the eye of the man, and they go to satisfy themselves, and remain there two or three days. My Lords, in addition to these three conclusions of fact, every one of which bears most materially upon the principle as I have deduced it from the cases, upon which this cause turns, I have to add a fourth, which is perhaps the most material of all: what was the result of all these inquiries? Now we come to the result of the inquiry. P. Taylor says, in his letter of the 12th of October, after he had been there from the 27th of September, "I have no reason whatever for any change of opinion respecting the value and desirableness of this property to the British Iron Company. The facts which have recently come under my observation bear out the representations made by Mr. Attwood," etc. (vide supra, p. 250). "The sum to be paid for the Corngreaves property is a large one, but I believe I should have no difficulty in showing you, that a higher rate of price has been and is now paying for smaller works having the command of minerals." "For the ultimate interests of our company I am inclined to say nothing better could be desired by us. The present is the minimum price at which the great bulk of works can go on here. Many furnaces are already out of blast, and many more must follow, and it is your fault if ever they again make a pig." That is to say, he expects an entire monopoly of pig-iron, and to keep out of blast those who would not be able to compete with them. This is not the last letter of P. Taylor. He had then been there a fortnight. How is it after he had been there five weeks, when he knows still more thoroughly all that is going on? He then says, "Since you left me I have been constantly engaged in examining Mr. Attwood's books and comparing the statements, which he has exhibited, with them" (vide supra, E.L. vii. p. 259). He does not say that he had the least difficulty in seeing the books, and it is not pretended that he had. Then he says, "I may observe generally, that although it would not be safe or prudent to estimate profits upon the close calculations which Mr. Attwood has recently exhibited to confirm the statements which he made at the time of his agreement for the sale of his property, still that these appear to, me unquestionably to prove that the data which he gave us at the time of the contract were more favourable to the buyer than the seller. It appears to me that he overstated at the time of the contract the cost of coal and ironstone, and the quantity of coal, ironstone and limestone required at his works to make a ton of iron."
Now, my Lords, let us just observe; the company sent down Mr. Taylor to verify the statement of Mr. Attwood: I will suppose that Mr. Attwood had written the P. T. paper with his, own hand, which he did not. He remains there five weeks, and then he sends to the persons, who sent him, his report of the result, and what is that result? That the statement of Mr. Attwood is not borne out by the books? No such thing, but that it is more than borne out, for Mr. Attwood had stated certain quantities as being required to make a ton of pig-iron, more than what was proved by the books to suffice; this is most material, it shows bona fides, not catching or deception. The P. T. paper, or Mr. Attwood's statement, said that to make a ton of pig iron, required 3 tons 2 cwt. 2 qrs. of ironstone; 3 tons 6 cwt. 2 qrs. 18 lbs. of coals, and 18 cwt. of limestone. The books show nine years of James and Matthias Attwood, and six years and three quarters in another account of Mr. Attwood's own experience, namely, two years and a quarter at one amount, and four years and a half at another amount, the two years and a quarter being 3 tons 12 cwt.; and the four years and a half being 3 tons 18 cwt. The average of the whole of those six years and three quarters of Mr. Attwood's time is precisely 3 tons 13 cwt. That is the quantity of ironstone: I am not furnished with the particulars of the coal or the lime required during Mr. Attwood's own six years and three quarters, but I have got the ironstone, and that is the material part, for the question is as to the value, and that value depends upon the excellence of the thing which Mr. Attwood is selling at the time. If a man is selling a commodity to another, and makes a representation of the value of that commodity, it is one thing if he overstates it. But if he is selling a commodity, and also telling the purchaser, "You will find it worth so much, not because it is of so good a yield, not because the commodity being an ore is rich, full of metal in proportion to the dross, but also because the costs of manufacturing it into something else than the ore are so and so, and no more; " that is a very different representation, and it is to, be dealt with, in my apprehension, by very different canons from the representation which he makes of the simple value of the thing itself. The one is a value known chiefly to the seller, unless in so far as he opens the sources of his information to the buyer. But I am now putting that out of view. The other is not value, but expense and cost. If I represent the horse which I am selling to be an extraordinary sure-footed animal, with easy paces and swift, that is the value of the animal respecting which I am making the representation. But if instead of that, I say he is an excellent horse, and you find that he will not cost you above so much, because hay costs so much, oats so much, and straw so much, that is quite a different representation, because that is a matter of expenditure, which is as much patent to the purchaser of the horse as to the seller of the horse. So the representation made in the P.T. paper is of two descriptions: First, it is a representation of the value of the ore, the measure of which is how much is required to make a certain quantity of pig-iron. The less that is required, the more valuable the ore is. But the part which relates to the coal and ironstone is a different thing, because upon the coal the expenses of the manufacture very much depend; it is like the expense of the hay and corn for the horse. The price of coal is as much known to the purchaser as to the seller. But though I have not the information from details in the papers of the amount of coal, and the amount of limestone for six years and three quarters, I have, what is much more material, the representation of the value of the ironstone. The amount during those six years and three quarters of Mr. Attwood's own incumbency, so to speak, was upon the average 3 tons 13 cwt. During James and Matthias Attwood's time, that amount was 2 tons 16 cwt. only. What is the representation of Mr. Attwood; does he say, as he had a right to do, 2 tons 16 cwt. is the amount of ironstone required to make one ton of pig iron? No; but he says, 3 tons 2 owt. 2 qrs.
Here then is a representation different from the fact, against Mr. Attwood's own interest, and in favour of the buyers; therefore P. Taylor might well say, as he does in his letter of the 30th of October, that "Mr. Attwood appeared to have overstated at the time of the contract, the cost of coal and ironstone, and the quantity of coal, ironstone and limestone required at his works to make a ton of iron." That, my Lords, is not only P. Taylor's report to his employers, but it has been shown to your Lordships that it is the fact; and it is therefore a fact in the cause, that whereas Mr. Attwood would have been entitled to represent the mine as more valuable than it was, and the quantity of coal and limestone required as less than he represented it, whereas he would have been entitled by the books of the firm, as afterwards stated by P. Taylor, to have made a. representation less favourable to the buyer, and more advantageous to the seller, he chose to give the less favourable and the less advantageous of the two representations.
My Lords, P. Taylor is not the only person who makes these inquiries. Mr. Brunton, an engineer, who has never been mixed up in this cause in any other way than as a witness and a professional man, was selected by the company, and sent down to verify the statements and to make those inquiries. He makes his report the 3d of November 1825; and after giving an answer to all that he has been asked about, he says in a postscript, "As neither the question as to the value of the abovementioned property, nor the sum paid for it, were stated to me, I did not consider it within the range of the object of my mission to offer my opinion on the subject; but the question being now propounded to me, I have no hesitation in giving it as my opinion, that with a sufficient capital, vigorously and prudently applied, an ample return for the £550,000 paid for the property may be produced;" now this was after the fall in the shares. It is possible it may be so; the deputation did not rely upon P. Taylor, nor upon Mr. Brunton; the deputation went down and looked into the matter with their own eyes; they had access to the men and to the books; they had the D. papers prepared for them, and they themselves make this report, dated 3d of November 1825: "Having in accordance with the resolution of the Board of Directors, etc. (vide supra, p. 259), we have come to the conclusion, etc. that Mr. Attwood has substantially redeemed the pledge he had given of proving the information upon which the managing directors concluded their contract with him is correct and well founded." On the same day, at a special meeting of the directors, Mr. Small in the chair, the present party in the cause representing the company, the directors agreed to be bound by the result of the deputation's investigations upon the spot, and all that they desired to be attempted with Mr. Attwood was, that £50,000 should be struck off the original cost of £600,000 in respect of the lease of the Dudley Wood not being obtained, which was agreed to, and the price ultimately stood at £550,000. No objection was made by Mr. Small or the directors to the deputation's report; no melius inquirendum was talked of; no dissatisfaction was expressed with P. Taylor's or Mr. Brunton's reports; no dissatisfaction or doubt or hesitation was expressed on the part of any of those directors, and therefore as they had not been able to get rid of the contract, as Mr. Attwood had complied with the conditions they imposed upon him, and the result of the inquiry by their agents and by themselves was perfectly satisfactory, they get him to strike off £50,000. They continue satisfied down to January 1826. I have now before me a letter of Mr. Shears to Mr. Foster, dated the 25th of January 1826, in which this remarkable expression occurs: "We have had very satisfactory accounts of the value of this property, compared with the sum for which it was purchased; we have had very satisfactory accounts of it from all our own people. By "all our own people," he means all that had been employed, Harrison, Morrison, Brunton, P. Taylor;-" not only those on the spot, but some who have been sent from Pontypool also; and we have had also a satisfactory report from a gentleman unconnected with the company, who was sent to the spot to examine the property before the purchase was completed."
Now, my Lords, I still must say that, even after all this -the purchase being agreed to only upon condition that the representation is found to be correct, that representation not being trusted of itself, but the purchaser distinctly telling the seller, "I will be satisfied only if you let my agents, examine thoroughly;" the agents going down, and for six weeks examining thoroughly; the agents making their reports, and those reports being every one more favourable than the preceding; and P. Taylor, the best qualified to judge, making the most favourable report of all; then the parties, not satisfied with that, going down and satisfying themselves with their own eyes, and having 12 papers of accounts made out while they were making every inquiry (if they did not, it would be their own fault); finding no obstruction thrown in their way; then making their report that they were perfectly satisfied; that all the accounts of Mr. Attwood were well founded, and that it was a good purchase; advising their principals to complete the purchase; continuing for months afterwards satisfied, though every day and every hour increased the interest which they had to get rid of the bargain by picking holes in the statements and setting aside the contract; and then going down to the 20th of April 1826; and yet within four weeks of this last date putting a bill upon the file to set aside the contract upon the ground that the whole was a fraud from beginning to end; that Taylor had been deceived when he had made the P. T. paper, and when he made the subsequent inquiries; that Small, Leathley and Donaldson had been deceived when they went down; that Brunton had been deceived; that all their agents had been deceived; that the whole was a fabrication from beginning to end- I still add that I do not think fraud absolutely impossible, but still it will require that it should be as clear as noonday in its circumstances to enable the party either to recover damages at law in such a case for the deceit, or to obtain relief from this contract so made, in equity.
It is said that there was a very suspicious connexion between P. Taylor and Mr. Attwood, which takes away not only the weight of his testimony in the cause (I mean those letters and reports the result of his inquiries), but all character and credit, and entitled the Respondents to remove him from his position of co-plaintiff with them, and to make him a defendant, as a conspirator with Mr. Attwood in fabricating those statements for the purpose of deceiving the company. I must first testify my entire agreement with the doctrine laid down by my noble and learned friend on the woolsack respecting the mode of proceeding in equity, of making the individuals who have taken the greatest share in the transactions parties in the suit, which has the same effect in equity as an indictment for conspiracy at common law, where the party is deprived of the evidence of those whose testimony may be the most important for him, upon which ground I have seen many a jury let off a man who, probably would, in any other circumstances, have been convicted, in consequence of making him a party who ought to be a witness, and thereby depriving the principal party of the benefit of his testimony. I fully concur in all that my noble and learned friend has said upon that, which makes it the less necessary I should go into it, because he cited the authority for it, which, under my advice, your Lordships adopted in the case of De Beauvoir v. Rhodes (vide post, a note of that case [6 Cl. and F. 532]). It cannot be denied that Mr. Attwood labours under a hardship in not having the benefit of P. Taylor as a witness, but still more of not having the benefit of him as a party plaintiff; because if he had been a plaintiff, everything he said would have been evidence against him, and against all the plaintiffs; he would have been a witness against himself, and so against his co-plaintiffs; he would have been of the greatest value, he having been the principal person engaged in the business, principal from his large share in the stake, principal from his great knowledge of the subject, principal from his being the superintendent of the company, of which he had also been the original projector, and principal from having throughout the whole of these transactions borne the principal share in the investigations; containing in himself, therefore, the character most important for the defendant to have, that of a plaintiff being a witness against himself. We are now to take him in another capacity, as a co-defendant, although the bill, as against him, has been dismissed. Now, it is said, in the first place, that Mr. Attwood gave up the furniture in the house at Corngreaves to P. Taylor, at a valuation of £4000, which was to be paid for by a bill. I really, in the circumstances, do not set great store by this transaction. He was the natural person to take the furniture. Mr. Attwood was going out, and P. Taylor was coming in. Here was a great concern which Mr. Attwood was going to quit, to sell the concern, and to leave the residence. It was a convenience to him, as well as to P. Taylor and the company, that some such arrangement as this should take place. The utmost that can be said is, that he just smooths an obstacle and a very little difficulty in the way of the final arrangement of this matter; I therefore set very little value upon that; but then the next is the loan of £6000. My Lord Lyndhurst the other day said £12,000, but that is made up of all these sums together; the £4000 for the furniture, £6000 loan, and £2000 loan to Taylor and Martineau. Now under what circumstances was that? There was a call upon the shareholders. P. Taylor, as I have frequently mentioned, was the owner of 300 shares, consequently the call would come upon him. He said, I have not sufficient money to meet it; for he was engaged in the house of Taylor and Martineau. Being so engaged, he had other calls upon him as well as these. What is he reduced to the necessity of doing? Selling his shares, or at least bringing a portion of them into the market. Mr. Attwood says, "No, do not do that; I will lend you the money rather than you should." But observe in what position Mr. Attwood was at this time; he was a person who was interested to the amount of £550,000, and any great injury to the company would be a detriment to him. A call upon shares generally produces a fall in the price of shares, because it necessarily brings shares into the market. To add an additional number of shares in the market coming from P. Taylor, the founder of the company, the principal manager, the person who of all others was the most interested in the company's prosperity, and in the raising and keeping up the company's shares; such a proceeding as that naturally struck Mr. Attwood as all but fatal to the prosperity of the company. He was so far interested as this, that he had very good cause of suspicion at this time; for there had been doubts and hesitations and inquiries, and attempts to get rid of contracts, and he had a moral certainty that if any great mishap happened to the company -if, by bringing in 200 out of 300 of P. Taylor's shares into the market, shares were to tumble down to a great discount, and the company were to be in a bad plight, he had good reason to suspect that the strongest attempts possible would be made to get rid of this purchase altogether. It was therefore a perfectly justifiable thing for Mr. Attwood to say, "Anything rather than that, gentlemen; anything rather than your being insolvent, and not being able to pay me; anything rather than your even remaining solvent, but not being willing to pay me;"- for the next worst thing to having an insolvent purchaser is the having an unwilling or litigious, an equitably litigious purchaser; a purchaser who, instead of coming to his banker's, and drawing a check for payment, goes into Chancery and draws a bill. Nothing could be more likely, therefore, than this conduct on the part of Mr. Attwood. It was a much better thing to lend P. Taylor, whose solvency he had not the slightest reason to, suspect, the £6000, than either to make the company unable to pay him or unwilling to pay him; in one of which cases he would have a bankrupt purchaser, and in the other a bill in equity; and therefore I think that nothing could be more easily accounted for than that £6000 being lent to Mr. Taylor, under these circumstances.
 My Lords, we are yet to consider the £2000 loan, making up the whole of the alleged accommodation, with the furniture, to £12,000. Now that is material to attend to, and I must say that I have scanned it very minutely, because I attended to the very powerful statement of my noble and learned friend the other day with great care; and I cannot rise from this inquiry without feeling that the transaction stands quite clear of all collusion and all impropriety on the part of P. Taylor, or on the part of Mr. Attwood. But we are now speaking as to its bearing upon the character of P. Taylor. He says, in a letter of the 12th of February, to Mr. Martineau, his partner, who had been writing to him about money, " Mr. Attwood is expected here from Cheltenham this afternoon; I shall be on the watch for him, and do all I can, but I own applying to him is not quite what I approve of; I fear all will not go well with him and the British Iron Company." This was in February 1826, when he had very good ground to suspect that all would not go well. Then he says, "I must do my duty, and perhaps make him my enemy." Then comes the letter of the 13th, the day after: "Mr. Attwood came here for a few minutes last night, on his way to Birmingham, where he expects to wind up all his family disputes to-day. His mind was so intent upon this business, that it was not easy to get him to listen to any other affair." I read this for the purpose of showing that it is anything rather than indicative of a disposition on the part of Mr. Attwood to press loans upon P. Taylor, to overwhelm him with civility and accommodation, to bribe and buy him, as it were, over from the company to himself. This letter is anything rather than an indication of that. "But," continues the letter, "I pushed him very hard, and spoke as plainly and forcibly to him as I could. He is quite aware of the difficulties of the present times, and is disposed to help us, but he evidently sees fear; and what can we say as to security "This is not the conduct of a man that overreaches another with loans volunteering his assistance." "He will stay with us some days, and if possible, you had better come and meet him, to help me to persuade him; and we must try and get something beyond what is immediately required. You must, however, try and get some of your friends to help you; surely they can do it if you can prove to them all is right." This is the picture of a man's mind who does not feel that he has Mr. Attwood to draw upon, taking advantage of the situation in which he is with respect to him and the company. It is the letter of a man in great difficulty and anxiety, who hopes that it may turn out well, who will not say that he expects it, and who is not at all sanguine in his hope, and who says, "Pray come down and help me, and see what we can make of this business."
Now, my Lords, comes the fourth of those circumstances to which I am to call your attention as bearing upon P. Taylor, the materiality and importance of which I do not deny at all. Suppose I had not explained away the furniture, or the £6000 loan arising from the common interest of Mr. Attwood -suppose there was nothing to explain the £2000 loan- I ask when all these transactions, amounting to £12,000, arose? Observe, the case is not that Mr. Attwood lends P. Taylor £12,000, but the case is that to induce P. Taylor to do certain things, to open his eyes to a rich part of the ore, to close them to a bad part, not to see faults where they are, to run over glibly the parts of the books that will not bear examination: in order to induce him to do that, Mr. Attwood lends him £12,000. Now I venture to predict, that some persons, led away by my noble and learned friend's most ingenious and powerful statement, among others my noble and learned friend near me, (Lord Wynford) who was not present at the hearing of the cause at all, has been led away by it; I venture to predict that they believed that the £12,000 was lent to P. Taylor before the period when he examined Corngreaves, Dudley Wood, and Netherton, when he was there six weeks to look at the books, when he made his report of the 12th of October, and his still ampler report of the 30th of October, that everything was confirmed in Mr. Attwood's favour. It is absolutely the reverse. Every one farthing of the money was advanced long after the whole period in question, long after he had made his report of the 30th October, upon which report the directors had finally acted; it is in January and February 1826. My Lords, I think that is sufficient of itself to put an end to any argument drawn from these loans to P. Taylor. But, in justice to his credit, let us look at the value of his report, and whether there is anything to detract from the weight of that report and that kind of testimony which he bears against himself, as well as against his co-partners. The charge is that he was in league with Mr. Attwood, that consequently he was not an indifferent witness, but that he was Mr. Attwood, and that this is only Mr. Attwood's statement which he made, and which he knew to be false. The bill so treats it; that is a very material circumstance; the amended bill most distinctly pleads that everything that was known to Mr. Attwood was known to P. Taylor. That of itself gives rise to this observation; P. Taylor is no longer a co-defendant; the bill is dismissed as against him; he is acquitted; therefore P. Taylor is the company, and not Mr. Attwood; the bill is dismissed as against him. There is no objection to that part of the decree; there is no cross appeal seeking to set it aside, and to have a decree against P. Taylor; he therefore is dismissed as a defendant, and they plead that he knew everything that Mr. Attwood knew; that is the substance of it; they allege in their bill, as a ground for being relieved from the contract with Mr. Attwood, that Mr. Attwood fraudulently concealed things from them, fraudulently misrepresented things to them; and in, proof of that, they plead that P. Taylor, one of themselves, and their own agent, knew everything Mr. Attwood knew, which Mr. Attwood concealed from them.
My Lords, I have thought it my duty, both in justice to the man and in justice to the case, to go through every part of P. Taylor's conduct, more especially after the month of February, when he received the £2000, the last of the £12,000 accommodation, to see whether he was then influenced in his conduct by that kindness of Mr. Attwood to him. The result of that examination has been to convince me that P. Taylor did not speak too favourably of himself, when he said in his letter of the 12th of February, "I must do my duty, and perhaps make Mr. Attwood my enemy." I am prepared to say that my opinion is that he did do his duty, that he adhered to his employers; that he continued to be with them, and not with Mr. Attwood; and that in point of fact, all the effect of the £12,000 accommodation, after it took place, never made him swerve by one hair's-breadth from being the creature, I will call him, of the company, and I dare say he made Mr. Attwood his enemy.
Now, in proof of this, I shall refer your Lordships to but one or two instances. On the 16th February, which is immediately after the last of the accommodations, P. Taylor writes to the directors, "We shall have a large claim against Mr. Attwood for repairs." On the 22d, he says, "I feel little doubt of carrying my point with Mr. Attwood." That is about the question of time for the payments; very great difficulties had arisen in going on with the concern. The purchase-money was not all that they had to pay, for they had to carry on the concern; they had a floating capital to provide for it, as well as to pay for the dead stock of the mines; they had also to furnish the Ruabon, Pontypool, Cornwall, and South Wales mines; they were in great embarrassment for money, and a delay of a few weeks was found to be very material to them, and they wrote most anxiously to P. Taylor to endeavour to make him persuade Mr. Attwood to give them time, and to depart from the strictness of the bargain, and those are the kind of letters that P. Taylor wrote, clearly showing he continued with the directors and not with Mr. Attwood.. On the 22d of February 1826, he says, "I feel but little doubt of carrying the point." Then he says, "Mr. Attwood is just come in." This letter is written in great anxiety; it is a letter written from hour to hour, while the facts are taking place. "Mr. Attwood is out; I expect him in; I feel anxiety about him; he is not come in." Then he says, "Mr. Attwood has just come in." He had not come in when he began to write. Then he adds a postscript; he had not then talked to him, but when he added the postscript, he had: "I have no doubt of success with Mr. Attwood." The directors then thought it right to say how much they were comforted. On the 23d they write an answer to his communication of the 22d, saying how much pleased they were with what he had done. Then on the 28th of April, P. Taylor writes again. They are now getting into difficulties, fighting with Mr. Attwood; they could not get an extension of the time; they were to be held to their contract; they wanted to be off, because they could not get the time extended; they wanted to pick a hole in the contract. With which of the two hostile parties does P. Taylor take part? He takes part, not with the person who gave him the £12,000 accommodation, but, as he promised in his letter to his partner Martineau, he does his duty and makes Mr. Attwood his enemy. He says, "I have seen Best; he had said there is misrepresentation; Mr. Attwood is informed of all that passed; I tell you this for your own guidance and government; take care not to let Edwards remain here." This is the tool, the bought, bribed, purchased creature, of Mr. Attwood. "Do not let Mr. Edwards remain here:" Giving the other party intimation that, if you do not take care, Edwards will play you a trick. "Direct me how to behave as to my general conduct towards Mr. Attwood;" meaning, I will behave, not as I should wish, or as I feel I ought to do from his kindness towards me, and the obligations under which I lie to him, but I will do as you desire me.
Then on the 11th of May, this tool and creature, purchased and bribed by Mr. Attwood, says, "I have not been idle; I have been hunting up evidence for your bill." "You have discharged that man Smith from your works, but he should be taken care of, he knows things that may be of use to you in your cause." Against whom? Against Mr. Attwood." "Although you have discharged him, he may help your bill; therefore I think it would be politic, though you discharge him here, where he may help Mr. Attwood, to employ him at Ruabon." Therefore I take it to be clear that this £12,000 accommodation was given long after P. Taylor had done everything that he could in favour of the directors; and that after he got that £12,000 he never swerved from his duty towards them, and continued as hostile to Mr. Attwood, and as devoted to them, as if he had never received a penny. But, moreover, the directors themselves pass a resolution, honourably acquitting P. Taylor of all those charges now ventilated against him, and that resolution bears date on the very eve of the commencement of the suit. Therefore I do conceive I am not stating the case too strongly when I observe that the result of my most full examination of all the case as against P. Taylor, leaves me in the entire persuasion that as against him it fails entirely; that the directors were justified in their vote, honourably acquitting him from those charges; that the Court below was justified in dismissing the bill as against him, and that nothing remains against him save some matters appearing upon the testimony of the witness Best. When the directors went down in the spring of 1826 for the purpose of hunting up evidence in order to get rid of the contract, Best swears he said to P. Taylor, "What will you do with the directors when they come?" This is meant to charge Taylor with conspiracy with Attwood. "Oh, never fear what I will do with them; I will bow them out of the room, and send them away as wise as they came." I find my noble and learned friend in the Court below gave no credit to this part of the testimony of Best; and I really am surprised that as he gave no credit to this part, he gave so much credit to the rest of his testimony; because I have come to this conclusion, that Best could not have said this from a misapprehension, that he could not have been the witness of truth, when he swore to that very remarkable statement, "Oh, if they come I shall bow them out of the room, and send them away as wise as they came." And my Lord Chief Baron, after running over the circumstances, says, "It is quite impossible, under such circumstances, that Mr. Taylor could suppose he could prevent that investigation going on, or that he could dismiss them with a bow." And his Lordship says (and this is the point upon which I differ from him), that this was a misapprehension or misrecollection of Best's. Then, my Lords, wee have P. Taylor relieved by a consideration of his conduct under the five separate heads I have, mentioned; in the loan, in the furniture, in the advance to pay the calls on his shares, in the date, the most material of all,-for this, to have, deserved the name of a fact in the cause, should have been before he made his report, and not months afterwards; and lastly, by his conduct after the advance of the money, he stands acquitted by the dismissal of the bill unappealed from; and then, last of all, he stands acquitted by the directors themselves passing their resolution honourably acquitting him,
Then how does the whole case now stand with reference to the principle which should be the meridian line to which all the facts should be referred? It is that parties have agreed to purchase upon the representation of the seller touching the value of the property; that they have said the agreement should not be binding, unless upon condition that they should have full access to the works and the books, for the purpose of verifying that statement; that that access was granted them in the fullest manner; that they send their agents one after another down, and that above all P. Taylor was sent down, and was there six weeks, made a full examination, reported over and over again, fully and amply, in corroboration of the original statement; that next, not satisfied with his representation, and Brunton's and Foster's, and others whom they sent down, a deputation go down, and have paper after paper prepared for their information, which they carry back with them to town, and having the result of their own examination, which they were deputed to make, and did make on the 3d of November, they write that remarkable resolution which they reported to the directors, that they found Mr. Attwood's statements fully borne out and corroborated in all particulars; whereupon, after striking off £50,000 from the original £600,000, they executed the contract. Such being the result of the examination, and the contract being executed upon that result, the question is, was there ever yet known an instance in which, in such circumstances, a contract was set aside on the pretence that it was originally made on a false representation? But still, my Lords, I do not say, that even in this case there may not be found to be such a web of falsehood, wove by one party and spread around the other, as that they, either from ignorance of mining concerns, Mr. Attwood being an iron-master and they not, or from great cunning upon his part, or from his making accounts in which he should mix up estimate with statement, and pretending a thing to be estimate one day and statement another, all these things together, I will not take upon myself to say, might not in some conceivable combination of rare and hardly possible circumstances produce a case in which a Court of Equity would give relief. But I say again, as I said in the outset, that first, I never heard of such a case, either at law for damages, or in equity for relief against a contract; and that, secondly, it must at all events be perfectly clear; there must be no doubt whatever; it must not be on a nice calculation, nor on a balance of evidence, it must not be on such calculations as might have deceived the party himself, so that he might have been mistaken. It must be clear incontestible proof; as, for instance, books proved to, be kept back, which would have altered the case; as fabricated accounts brought forward, which gave it a false colour; as falsehoods told, and shown to be untrue in point of fact, and untrue to the knowledge of the person making them.
Now, my Lords, let us proceed to examine, first, the P. T. paper, which is the foundation of the whole, and as connected with it, the D. papers. The first observation that arises on the P. T. paper, is, that it is not written by Mr. Attwood, but by the other party (I now call P. Taylor the other party, because I have demonstrated that he is the other party to all intents and purposes). It is written by the other party, who is no conspirator, for he has been acquitted not only by the sentence of the Court, but also by the directors themselves, and acquitted by the facts of the case, even if there had been no dismissal of the bill, and no acquittal by the directors. Well then he, that is, the directors, writes this paper, and not Mr. Attwood. Secondly, it is not the result of one statement made by Mr. Attwood, with his papers by him, and reading off the, statement while P. Taylor made a note of it for himself and his co-purchasers, but it is the result of several conversations, none of which were reduced into writing at the time, but were all reduced into writing afterwards; that is the second observation. A third observation, and the most material one, is as to the conduct of Mr. Attwood with respect to that paper. There is not a title of evidence that I can find in the cause-, of that paper having been shown to Mr. Attwood at the time it was written; which really it ought regularly to have been; P. Taylor ought to have shown it to him, and asked him, "Is that your account of your property?" On the contrary, I believe that paper was not shown to Mr. Attwood until October. Suppose Mr. Attwood had been disposed to behave fraudulently? He must have known that he had told P. Taylor a falsehood, and that P. Taylor had reduced that falsehood into writing; he must next have known that that falsehood had been the ground of the contract; he must have known that, in proportion as it was false, his detection approached. What would a fraudulent man have done in that case? It was the easiest thing in the world: " I have committed a fraud: I have deceived P. Taylor; I have got him to write a false account; I know it is all false; I will take care to give such a colour to, the P. T. paper as shall save me from detection, and shall bind the contractors." That he had the power of doing; he had only to say, "This P. T. paper is not a correct account of what I told you; you are not my agent; you are the other contracting party. I gave you the representation; you took it down. Upon that representation the contract has, been executed. You have a wrong representation; I never told you what is there written down." What had Mr. Attwood to do but to disavow the paper, which he had the greatest facility for doing, because they could not check it by any writing in his own hand, and P. Taylor could not say he had shown it to him, or taken it down in shorthand, or even in extended writing at the moment. What could have been so easy as to have said, "You have taken your note very incorrectly?" No such thing; he at once, adopts the paper, he admits it; he says, "That is what I told you; by that I abide"
My Lords, I cannot but say that this looks like a very honest proceeding, when a man has such means of helping himself to escape, and does not avail himself of it, but manfully says, " This is the paper as I have told it you, and I am ready to prove it; look at my accounts -look at my books." Keeping that in view, let us consider this P. T. paper. The first question which arises is whether the nature and constitution of it is that of an estimate or statement. Properly speaking, I hold it to be mixed of both, but whether that part which is material is estimate or statement that is the main question. "Six furnaces to be erected on the freehold, each capable of making 50 to 60 tons of pig iron per week, say from 300 to 360." Now no man can read that, without seeing that it must be estimate; "six furnaces to be erected." There was not one furnace there. Then it goes on, 360 tons pigs will require 1200 tons coals, etc. If P. Taylor had foreseen that one day a question would arise whether the P. T, paper was estimate or statement, he would have said, " I am prepared to show you which is estimate and which is statement; when I talk of estimate, I talk of 1200 tons, in round numbers; but when I speak of statement, I give it in pounds, shillings and pence, in money; and in tons, cwts. qrs. and lbs., as to weight; and I state the very sums and weight, and I tell you they are taken from the books, that there may be no doubt." As to the D. papers, my noble and learned friend was inclined to think the other day, that these were all actual statements, on account of the note that is to be found in the third of them, signed by Leathley and Donaldson, which says, " the above is an estimated cost." My noble and learned friend argued that this note, being appended to this paper and not to the others, shows that all the others are statements and not estimates, upon the principle inclusio unius est exclusio alterius. Now I read it thus: "Cost of making 360 tons of forge pig iron at Corngreaves Iron Works," etc. Why there were no iron works at Corngreaves, consequently they were obliged to state, "the above is an estimated cost." When you come to look at the first and second of these papers, the substance of them shows that they must be estimates also, though it is not necessary, from the peculiar structure of those papers, that the note which is appended to the third should be appended to them. My Lords, we are not left in doubt. There is a passage in the cause which puts an end to the controversy as to, whether the D. papers are estimates or statements. Harrison, a most steady witness of the company's, gives a full account of these D. papers in a way that leaves no, doubt whatever about the matter. They were all there; he says, he observed, "This is not the book of the present time. It does not show the present state of the works." One of them, but who he does not recollect, then asked where the present books were. In answer, Edwards or James said no regular furnace account had been kept since Jones left the works, but that they could produce " calculations to show what the present cost of the iron was in the different departments of their works." He says, "that one of the complainants then observed he supposed they must look them over. That no other later furnace books were produced at such meeting, but that Edwards and James, or one of them, stated such reason for the non-production of these books as hereinbefore stated; that after the conversation above, described, Edwards and James went out of the room, and deponent thinks they must have been absent full half an hour; that James first returned, according to the best of this deponent's recollection, and made some sort of excuse or apology for keeping the gentlemen waiting so long, observing that Edwards would be in presently, with the statements or accounts. That Edwards soon afterwards. came in and brought with him several papers or accounts, containing a calculation." And then he says, "they were numbered from D. 1 to D. 12 respectively." There is the account which Harrison, their own witness, gives, who says they purported to be calculation papers, that they were given as calculation papers, and that the reason why they were calculation papers and not statements from books was, that they had not got the books from which to take them. Then assuming these to be calculations rather than statements, still if it can be shown that false papers were laid before the parties, either by Mr. Attwood or by his agents, and that he wilfully and knowingly made those calculations falsely, I do not say that the same kind of argument may not arise for relief, subject to all the remarks I have already made as to the peculiar circumstances of this case, and the strength and the clearness of the evidence which would be required to overset a contract so made.
My Lords, we are first of all met by a material allegation, if it is found to be borne out in fact, the suppression of books by Mr. Attwood. There is a suppression of books, as it is said, indicated by the inspection of one and a suppression of stock papers indicated by other papers. It is said the suppression of books is proved thus; that upon inspecting a book actually produced, there is found in such a page a reference made to page 44 of another book, that other book withheld and the book containing the reference produced. That in another page, it is said, "continued from another book," and so forth. Therefore it was said that books of three different kinds have been suppressed. Now the first kind of those books alleged to have been withheld, is the book which contains reference to Hodgkins and Company, of Birmingham; a book containing a reference to William Palmer is another, and a third book containing a reference to William Cory, When you look at what these books are, and what the transactions contained in them are, they turn out to be as perfectly immaterial to the present question as if they were song books; they are stone-getters' books. The next class of books which they say are kept back is the iron ledger. Well, upon looking into that, what could be found? P. Taylor had seen the whole. What does it turn out to be? "Such a one in Birmingham bought so many bars; such a one, so, much pig iron," so that all that could be drawn from that would be to tell who the customers of the company were, and how much money they were debited with. P. Taylor saw them, went over them, and expressed himself in the report to the directors quite satisfied with their being good customers, but he says, in the sanguine state of mind in which he then was, he did not much mind whether they continued customers or not, for the company would have no. want of a market. Now, what is the third class of books which are said to be suppressed? Mr. Attwood's second pass-book, with his bankers. That is nothing, it is his cash account; the producing those books would let in not one speck of light into the dark parts of this cause. Wilkinson and Dransfield, accountants, employed by the British Iron, Company, and sent down by them to examine the books, swear that there were other books (from seeing a reference made in the books to other books), that there were other books. But how do they swear it, for that is very material? " Other books relating to the business and concerns of Mr. Attwood." To be sure, because the customers' books, the Birmingham purchasers of iron, the stone-getters' books, the iron-ledger, and the bankers' books, all related to the concerns of Mr. Attwood, and therefore they could safely swear that they related to Mr. Attwood's business and concerns; but they do not take upon themselves to swear that they relate to the business and concerns of the Corngreaves works, and the mode of conducting them, and the matter in issue in this cause.
I therefore dismiss this, the first of the heads of the alleged suppression of books; and now we come to the alleged suppression of the stock papers. Now of these we really have no distinct account from the witnesses. It is one of the least distinct of all the portions of the evidence. However, they are, stated to have existed by one or two of the witnesses who, speak respecting them; though they give a very indistinct account as to how they were made, how they were kept, or as to anything of their being destroyed; they cannot say a word about it, and there is not a title of evidence that I can find. I cannot find that Mr. Attwood ever had any in his possession, or that the knowledge of the existence of any was at all brought home to him. But it does so happen that, even if he had those stock papers, they would not have given a different account of the concern from that which he gave in the P. T. paper, and that he could not have framed that paper in any other way than it has been framed. I need only ask what have the British Iron Company done since? The evidence is this, (and it is the only part which is at all distinct about the stock papers,) that in whatever mode they were kept before, that is the mode in which they have been kept since the accession of the company to the possession of the property; that they have kept them in the same way in which they were alleged to have been kept before. But after means of access, after their possession of the stock papers at a time when they were most interested in obtaining results from them leading to unfavourable conclusions against Mr. Attwood, on comparing the P. T. paper with the stock papers in making a yield account, do they speed very much their way and ours by their access, for months, with all their greater machinery, with all their numerous staff of agents, superintendents and men of all kinds, both in the counting-house and the mine? Do they speed very much in bringing in a statement from the yield accounts instead of calculations upon estimates? It is quite the reverse, and you will find a letter in December 1825 or 1826, in which P. Taylor says, "The account of bar and rods can only be got at by supposition." This is after they had been in possession so many months, and they had kept stock papers as accurately as Attwood did, and what do they say? "Really," says P. Taylor, "until a change of men and measures take place, it is utterly impossible to make any return of the operations correctly." Then what would have been the use of the stock papers? Then he says on the 10th of December 1825, "Mr. Attwood's system is that of seeing with the eyes of other men." P. Taylor says to R. Small on the 29th of December 1825, "Mr Attwood himself looked very little into the practical part of his business; he found that a good profit was coming in, and from love of ease or from want of power to do otherwise, he suffered his agents to manage and participate in the profits made by the works." It is said that stock papers were in existence and kept back. Now it is a distinct charge, a distinct statement of fraud, to say that Attwood was in possession of stock papers, which would have falsified the story he told to you, the company, and upon which story you were contracting with him, but that he wilfully and in order to prevent his story from being falsified and his falsehood from being discovered, kept back those papers and gave you other papers to look at, selecting those to be kept back which would have detected his untruth; selecting those to be put forward which would support his own untruth. That is as distinct a statement of fraud as I conceive could be made by any party in a Court of Equity against any other. But has ever any man seen any bill in equity, which, instead of giving any one indication in that statement, which charged general fraud upon that point, not even in the charging part of the bill put in the performance of its proper office to set forth what those papers were, which the charge was that the defendant was keeping back, shrouded itself, instead of coming to the particulars, in this vague general statement, " and then the complainants further charge that the said defendant had in his possession," not stock papers made to show a yield account, and which would have called the defendant's attention to it, but "various papers, books, documents, etc." Nothing of stock papers mentioned from the beginning to the end. Accordingly as is the bill, so is the answer a general denial of course, with an offer to produce all he has. But that is not all. In the spring after the bill was filed, a letter is written by the solicitor of the company to Mr. Attwood, or his solicitor, distinctly stating that the stock papers had been in existence. That shows that their attention was called to the stock papers, and that they were preparing a case upon them. The bill is amended, but the amended bill is in this part of it precisely the same as the original bill; it is just as vague and general; "All books, books of accounts, copies of letters, extracts from letters, receipts, memoranda, papers and writings; " not one word about stock papers. The defendant has a right to know what is the charge of fraud that is made against him, and which he has to meet. He is charged with keeping stock papers, from which a yield account might be made, and with wilfully suppressing them when he brings forward another paper. He has a right, therefore, to have his attention specifically directed to that charge, that he may know how to meet it, that he may know what to produce, and above all things that he may in his answer give a full explanation, if he can. No such notice is given, no such opportunity for explanation is afforded to him, no such specification of particulars, as to let him know what it is that they would have him account for, explain and answer.
My Lords, this is not the only part of the case which is deficient in specification. There was general fraudulent conduct imputed to Mr. Attwood when the deputation was down; for instance, that Edwards said, "I have had my drilling before these gentlemen to-day, it is your turn next." By "drilling" was meant, not drilling of Mr. Attwood to prepare them to be examined, because that does not apply; he meant, I have been sifted, I have gone through the ordeal of these gentlemen, it is your turn next. Another fact stated was, that James or Edwards came into the room and said, "A set of d-d old fools," meaning the deputies. A third was, and the most material of the whole, that Mr. Attwood said, "Go out to them and say, if they don't complete the contract I have got somebody who is ready to, do it and pay for it," which would have been a very serious thing, only that it is totally beside the question, unless it is shown that, Attwood having said this to the man, the man went and told the deputation, which is not pretended. All this is general charge of fraudulent conduct more or less connected with the transaction. But I cannot find from the beginning to the end of this bill one single charge upon that subject. That is not the way to put a party upon his defence on a charge of fraud; you must charge it in particular, specifically, and in detail; you must give him the opportunity of knowing what charge he has to meet. You must give him the opportunity of explanation, because the words imputed might not have been used at all, or he might have satisfactorily explained them in a way which would give them an innocent aspect. The rules of pleading and proceeding in Courts of Equity require such specification as shall enable a party so charged to meet the charge by denial or by admission, or by explanation, or by confessing and avoiding, or by giving the residue of the conversation, a parcel of which only you think fit to put upon your bill. But this is not the course pursued by these Respondents.
Let us see what has been said upon this subject by judges in Courts of Equity. In the case of Evans v. Bicknell (6 Ves. 174), Lord Eldon said, "As far as the allegations in the bill give an opportunity of answering, he would decree, but no further;" and again his Lordship said, "that the bill ought with reasonable certainty to put in issue, the allegations of fraud or misconduct upon which it was the intention of the party to rely against the defendant." Chief Baron Richards made similar observations in the case of Hall v. Maltby (6 Price, 240); Those observations, and what I have already said on the vagueness and generality of this case of fraud, apply also to the comments of my noble and learned friend on the occasion of interrogatories being put on certain points, but not on this, to James and Edwards. My Lords, that could not have been done if there had been no matter put in issue which enabled Mr. Attwood to exhibit those interrogatories. This matter had not been put in issue, and therefore it is the fault of the plaintiffs if they have omitted to put it in issue.
Now, my Lords, I have gone through the matter of the suppression of the books and of the stock papers, and I have shown on various grounds, and particularly the defect of the record in these particulars, that they are wholly beside the question, reminding your Lordships that there is not a tittle of evidence bringing home to Mr. Attwood the knowledge of any one book material to the question, Dransfield and Wilkinson not swearing them to be material to the question, and it not being proved that any one stock paper from which a yield account could be made out in writing had been in the knowledge of Mr. Attwood from the beginning of his tenancy; reminding you of that, I go to the question that remains, namely, whether there was a positive misstatement, and upon that I have now to remind your Lordships, in the first place of the fair conduct which I have shown was pursued by Mr. Attwood in admitting the P. T. paper. He has a full right to the benefit of that admission, which if he had not made, would have made a very short end of this matter. Well then, when you compare the accounts in Mr. Attwood's own time, the 2 1/2 years, during which 3 tons and 18 cwt. of ironstone were required, and the 4 1/2 years, during which there were 3 tons and 12 cwt., making the average of ironstone supposed to be required to make a ton of pig iron in the six years and three quarters of his incumbency no more than 3 tons 13 cwt., whereas he gives it in the P. T. paper 3 tons 2 cwt., which is a most material alteration, for that is in his own time, but I am talking not of his own time, but of the time of James and Matthias Attwood, in whose time, I think the average is not 3 tons 18 cwt. as he states it, but 2 tons 16 cwt., for nine years, making a difference of no less than 6 cwt. which he stated against himself unfavourably to his own purpose.
Then your Lordships will also bear in mind an observation which I have made in a former part of the case, of Mr. Attwood having, according to their own statement, been accustomed to see with other men's eyes, to look very little into the exact amount of profits, but satisfied if the times were good and profits were coming in, and not in the habit even of looking sharply whether he was imposed upon by his men, and profits divided among others, who had no right to divide them; and when you find that after being so long in possession the company themselves cannot produce a yield, after all their better means of knowledge, when their attention was called to the want of yield books, that the difficulty of making them somehow or other was such that in the end it is all calculation," supposition," says one of P. Taylor's letters in June; " no correctness is attainable," he says in another letter of December: that being so, is it not a very hard measure of justice to complain of him, who had not the same facility, whose attention was not called to the materiality of it, that he, ante litem motam, should not have been able to give a more correct account of what they post litem motam have never been able to, do up to the time this case was launched? That is very much in favour of the general accuracy or fairness of Mr. Attwood's statement, but at all events it repels the presumption of a fraudulent design to deceive, and of all this being an actual statement and intended as an actual statement, and of its being of necessity an actual statement of yield books and stock papers made by him, when even they cannot do it themselves, when they have had all their attention for months called to it with the facilities their large establishment gave them.
My Lords, there was a good deal said about an experiment, that an actual experiment had been alleged to have been made, and that no experiment ever was made. There is conflicting evidence on that point. One or two witnesses say that instructions were given to the men to make experiments with a certain view, others say that no experiments were made. We find it very difficult to say, even now after we have looked into the whole matter, whether there really was an experiment or not. We found great reason to think that Mr. Attwood had given some orders, which led him to believe some experiments had been tried, and I cannot here avoid mentioning what I have not done throughout the whole case. I abstained from doing it before because it is not a matter in issue here, and it might have looked like throwing out an invidious remark against a person. I do it now as bearing upon the point of the experiment. That was made the subject matter of indictment. Your Lordships are aware that while the suit in equity was going on, it was deemed expedient to the plaintiffs in equity to become prosecutors at law, and accordingly they framed their indictment for perjury, assigning perjury in Mr. Attwood's answer upon two points, first that there was a fault in the mine concealed from the purchasers, and secondly, that there were experiments alleged by him in his answer to have been made in consequence of orders given by him, whereas in fact, that was not the case. After a trial of two days in the Court of King's Bench, he was acquitted on all those charges. My Lords, after that, we cannot say much either upon the fault, or the experiment. Then, my Lords, we come last of all to that question upon which some have thought the whole case hinged; and it is not perhaps very inaccurate to say, that the whole case does mainly turn upon the question, when sifted from all the rest, whether or not that representation, especially as to Wolverhampton ironstone, of 11s. 6d. or 11s. 4d. a ton, which Mr. Attwood made in the P. T. paper, was not a wilful misrepresentation, inasmuch as they have given evidence that it is 15s. 2d. instead of 11s. 4d. or 11s. 6d. That question depends entirely upon this, whether or not the dead work was intended to be included in the 11s. 4d. or 11s. 6d. I have examined this point with very great care, and I have come to the same conclusion to which my noble and learned friend on the woolsack came, that the dead work was not and could not have been included in that price. And the grounds of my belief on this subject are three: first, the observation that I have already made, and to which I again recur only to remind your Lordships of it, and with a view to bring it to bear on this part of the case: Mr. Attwood, who must have known all this to have been a fraud, if it were so, and must have been aware of the speedy detection that awaited him, if he had committed a fraud, at once, and with a perfect means of escape open to him, instead of availing himself of that, and flying off by denying the, accuracy of the P. T. paper, at once adopted it, although it was made by his adversaries, and was only intended to be a summary and abstract, and an abstract not of one conversation, but of several conversations, and no note whatever being taken at the time of the conversation. My next ground of such belief is, that the pay books were open to, P. Taylor, to, Harrison, to the three directors who went down as a deputation, and remained some days at Corngreaves; that therefore those pay books must at once have detected the misrepresentation, if it was a misrepresentation. But, my Lords, in the third and last place, and what at once overrides the other topics in point of importance, and overpowers the conclusion attempted to be drawn against Mr. Attwood upon this part of the case, from the nature of the thing it does not appear to me possible that the dead work could be included, and I will state the reason. If I have one year or two years, or any given period of time during which there is to be an estimate of expense of getting iron ore, then I can very easily distribute the cost of the dead work over that time, and tell you whether it is 11s. 6d. or 11s. 4d. or 15s. 2d. cost per ton, and then, no doubt, my estimate, if it were given drily and nakedly, applying to two years or twenty years, must of necessity be taken, unless, I tell you the contrary, to include that cost; because it is a. very material part of the whole cost to include the dead work. The dead work, your Lordships know, is simply the work which is required to be undergone until you get down to the mine, and it is so many days labour thrown away; it only enables you to get the ore, after you have got down through the surface; but how is it possible in a paper like the P. T. paper, to distribute the dead work, because you do not know the number of years; you have no divisor to your sum; you have the dividend; you can tell how much the dead work costs, it may cost £500, but whether it is to be divided by one, two, three, twenty or thirty years, you are wholly unable to tell; therefore it is utterly impossible that you should distribute the dead work over the price, when you state what the price is, and until you have got the number of years you cannot include the dead work in your estimate of the costs.
My Lords, I think it is unnecessary for me to argue this point further. I entirely agree with the view taken of it by my noble and learned friend on the woolsack, and I think it clearly shows that the P. T. paper is borne out in this, as it is in other respects, as being an estimate of the cost after they got to the ore and had commenced working, and had no longer dead work cost to undergo.
My Lords, having gone through these various points of the cause, it only remains for me, before I conclude this very long statement of the grounds of the opinion which I have given, to advert to one or two particulars not distinctly bearing upon the case, but which, as they have tended to, prejudice the judgment, I cannot pass over. First, as to the "fault," there is a very specific charge upon it; it is stated with just as great specification of particulars, as the other charges in the case are vague and general. The bill charges, that the defendant, well knowing that there was a fault in the mine, concealed it from the parties; that he desired the people who were to go down, to take care to turn the good side of the bargain towards the agent of the purchasers, P. Taylor; that he, in order to, conceal the fault, carted rubbish in great quantities to the place, which prevented any one going down from seeing that there was a fault; all that is stated with great particularity; but what does the fact turn out to be? Charles Small, the man who, was directed to turn the good side of the bargain towards P. Taylor, did not go down with him at all: Suppose it were true that Mr. Attwood had desired Small to deceive Taylor; as Small did not go down into the mine, and did not deceive Taylor, that was entirely beside the question. It would have been necessary to show that the fault had been concealed from the parties, and that the person so instructed had, in execution of the fraudulent purpose which his master had set him upon performing, gone down the mine and had deceived P. Taylor. Now, it is not pretended that he did go down, P. Taylor went without him. In like manner, with respect to the carting of the rubbish, the date puts that out of the question; for this was in March 1824, before the company came into existence, to deceive whom it was said the rubbish was -carted to cover over the fault. This was one of the points, the main point upon which the Court of King's Bench and the jury who tried the indictment refused to convict. I have stated already what has occurred to me with respect to the expressions said to be used at Corngreaves, that they have no bearing on the case; for what signifies Mr. Attwood's telling a man to go and say, "There was somebody ready to buy, if they would not;" if the man did not go and tell them that? If he had gone and told them that, which it is not pretended he did, that might have had some effect. Whether Mr. Attwood said so or not, I remain in doubt; it is by no means satisfactorily proved; for it is the evidence of Best, who has been discredited upon other points by his own employers, and also by the judgment of the Court below.
My Lords, I have now gone through the whole of the facts of this case, and I have done so on this ground, that, standing in the peculiar situation of having heard the cause, except that I heard only for three days the arguments for the Respondents, I have since examined my own notes, and the notes of the whole of the arguments of the learned counsel for the Respondents, in 1836, which I had not the advantage of hearing, and considering the difference of opinion which prevails still among your Lordships, which has thrown upon me the task of stating an opinion which is likely to prove of more influence in disposing of the cause than its own merits entitle it to; I have felt it for these reasons, my bounden duty, having, after a, most diligent examination of all parts of the case, come to a clear opinion upon it, not to withhold any material observation which has occurred to me.
My Lords, when we apply to this case the principles which I stated at the outset, we find the facts are wanting; we find there is no misrepresentation, which gave rise to the contract; we find that the purchasers did not rely upon the representation, but said, we will inquire ourselves; that they began this treaty by saying, we will inquire; and from the 6th of June 1825 downwards., they constantly proceeded upon the plan of satisfying themselves, first by sending their agents, then by going down themselves, then by inquiring themselves, then even afterwards by sending other agents to inquire, and those agents reporting that the representation was true, and that those parties finding by their own inquiries that the agents had reported accurately, and that the representation was corroborated by the result of the inquiry, and that even when their own interest, when everything in the commercial world was down, when shares were falling, when money was not to be had, when they were asking time for a prolongation of the term of payment to Mr. Attwood, and when it was their interest to discover a flaw in the contract, they then inquire again and send a new agent to inquire, Mr. Foster, an engineer, and they state to him their own opinion to be in favour of Mr. Attwood's representations; and Mr. Foster, in answer as late as the 26th of April, less than a month before the bill was put upon the file, reports in favour of Mr. Attwood's representations. Such being the facts, even if no observation arose as to the delay, as to the adoption and affirmance of the contract, purging it of all objections which might be made, and supposing that they had come in time, instead of delaying so many months; then I ask myself this question, In these circumstances have these parties a right to be released from their contract, by the interposition of a Court of Equity, according to those principles which I have stated? When I ask myself that question, upon which alone my judgment must turn, I am bound to say, no; and I am bound therefore to give my opinion to your Lordships, that the case of the plaintiffs has failed and that I am of opinion that the judgment of the Court below ought to be reversed.
Lord Wynford: My Lords, if I felt that it was necessary for me to go so minutely into this case as my noble and learned friend has done, I should decline taking the task on me: I feel that I have not physical strength equal to it. I think, however, this case may be reduced to one or two points. Upon these points I think I am in a condition at least to make that proposition to your Lordships, with which it is my intention to terminate the observations which I feel it my duty to, make.
My Lords, I listened for four days (the four first days of Mr. Serjeant Wilde's argument in 1835) to the speech of one counsel against the judgment under appeal; I made notes, and looked attentively into all the papers to which that industrious counsel thought proper to advert; and I confess, after having done that, I retired from this House, feeling that I had neither health nor patience to bear it any longer, and perfectly satisfied that what the learned counsel could not do in four days, could never be accomplished. I was, therefore, perfectly satisfied in my mind, that the judgment given by my noble and learned friend could not be shaken. I did not, my Lords, hear the counsel for the Respondents; but I have since heard three noble and learned Lords address your Lordships against that judgment. My mind continues still unchanged.
I shall take a course which I think I may properly take, because, notwithstanding all the time, all the labour, and all the talent that has been occupied in the discussion of this cause, I think your Lordships have not yet the assistance, which you ought to, have, before you can pronounce an opinion which would be satisfactory to your Lordships or to the public. This being a most important cause, not merely from the largeness of the sum, but the number of persons who, whichever way it may be decided, must, perhaps, be brought to ruin or very near it, no time that is necessarily spent, can be too long to get at all the facts and conclusions, which can be properly got at before you decide it. I certainly shall think it my duty to, propose that your Lordships should not now pronounce a judgment in this cause, although, if I am driven to pronounce an opinion upon it as it now stands, I shall say that I san not content to set aside this judgment. I am exceedingly sorry that an issue was not directed in an earlier stage of the cause, but an issue appears to me to be so absolutely necessary to get at the justice of the case, that, late as the period is at which it is for the first time proposed that there should be an issue, I shall think it my duty to move that an issue or issues be now directed.
My noble and learned friend, who last addressed your Lordships, has stated that this is not a case in which an issue should be directed (vide supra, pp. 442 and 443). It appears to me that the reasons, which my noble and learned friend has given why an issue should not be directed in this cause, go the length of showing that an issue should not be directed in any case. He enumerated the various circumstances under which issues are directed, and none of them appear to me to furnish any sufficient ground for not directing an issue in this cause. I will take one of the grounds which he has put as a reason why an issue should not be directed, and I think upon that ground your Lordships ought to grant an issue in this cause. He said that wherever there was conflicting evidence, an issue might be proper. There is conflicting evidence in this cause. He said that if, besides there being conflicting evidence, it was desirable that some of the parties, who had not been examined, and who yet may be examined, should be examined in the only mode in which the truth can be got at, a trial by an issue is that mode. My Lords, is it possible that any one could have listened to the discussion that was going on in this House without seeing how desirable it is, when fraud is charged against Mr. Attwood and his agents, that your Lordships should have an opportunity of having Mr. Attwood and his agents examined?
My Lords, it seems that there has been already an indictment for perjury. I highly disapprove of that: it was extremely improper to indict a party for perjury while the cause was pending: in the next place, it was extremely impolitic in those who thought proper to institute that proceeding; a, moment's reflection might have satisfied them that a jury would, in a criminal case, incline more against the party who brings forward the charge than against the party accused.
My Lords, a great deal has been said by my noble and learned friend on the woolsack, to the effect that the facts, upon which I desire that an issue may be directed to a jury, are not sufficiently charged. I cannot possibly dispute with him as to whether the charges are stated sufficiently full; but as to, the manner in which charges ought to be stated by a plaintiff, it appears to me that the charges in this cause are sufficiently clear: according to the principles of pleading at common law, they would be considered to be stated sufficiently to apprise the defendant of what case is meant to be made against him. They are stated with sufficient clearness to enable the Court to pronounce a judgment upon them; and that, generally, is the principle which guides Judges in the determination of the question with what degree of precision it is necessary that charges, should be made in common-law proceedings; and I should hope that there is not more strictness or technicality in that more liberal mode of proceeding which we have understood to be adopted in Courts of Equity, than there is in Courts of Law.
The general scope of the charge against Mr. Attwood is that he has been guilty of fraudulent misrepresentation with respect to the property which he was about to sell. That charge appears to me to be stated in the bill with sufficient clearness.
My Lords, on the law upon-this subject, it appears to me that there is little or no difference of opinion (vide supra, pp. 329, 395, 444, et seq.). I do not quite agree with my noble and learned friend who last addressed you, that, in order to set the contract aside, the parties must appear to have been induced entirely to enter into it by false representations; I say, if the parties are induced fraudulently in any way, although they may have other reasons for entering into the contract, if the strong grounds which prevailed on them to enter into the contract were fraudulent representations, that will give an action in a Court of Law for deceit, and that I should, hope would be considered as a sufficient ground in a Court of Equity to set aside such contract. The representations, of course, must be material, and the party making must know at the time that he was making representations which were false. I am aware that if a party chooses to trust to the representations, and does not make any inquiry, that reliance will be sufficient to make out a charge of false representations so as to set aside the contract. If the party thinks proper to inquire, and to use his own eyes, and does not depend upon the representations, if the representations be of that nature, that by a view of the thing he can detect their falsehood, undoubtedly the party making the representations will not be answerable for that falsehood but the other party must consider it as attributable to his own negligence if he thought proper to give weight to any such representations. But if a party who thinks proper not to trust entirely to the representations is prevented from making such full inquiry, as he otherwise would have made, by any artifice on the part of the person making these representations, in that case the contract ought to be set aside.
My Lords, I think I shall have no difficulty in showing, that some of those representations which were made were false, to the knowledge of Mr. Attwood, and that the parties trusted very much to Mr. Attwood, and did not make such an inquiry as they would have made if they had not been deluded by false representations; and I shall also, I think, make out to your Lordships' satisfaction, that they were prevented from making that full inquiry which they otherwise could have made. If I establish these propositions, I am quite sure I shall have shown your Lordships that this is a case in which the matter ought to be submitted to a jury, and ought not to be decided in its present stage. What question can be so proper for the consideration of a jury as this? A jury of Staffordshire gentlemen, would be much better acquainted with subjects of this sort than any of your Lordships can be; they would know the materiality or immateriality of facts much better than any of us. It has been the whole business of the lives of many of them to attend to subjects of this sort; therefore they could form a conclusion as to whether representations are true or false with much greater readiness than it is possible your Lordships can, whose minds have been occupied by very different pursuits. Will any man doubt that this is a, proper case to be submitted to a jury, who can best judge of the credit that is due to witnesses, when your Lordships have such contradictory evidence in the cause, and when many facts are stated of which further explanation can be given than, it is possible to get from the written examinations? Courts of Equity, frequently, upon the consideration of a cause where it is material to get at the character of the witnesses who, depose to different facts, feel that it is impossible for them to do justice without sending the case to an issue; as in the case of De Beauvoir v. Rhodes (vide post, a note of that case [6 C1. and F. 532]), in this House. I venture to say, if that cause had been decided without having been sent to an issue, a very different decision would have been pronounced from that which was ultimately pronounced. Now that case, and many others that could be referred to, show how important it is that this case should be sent to be tried by a jury.
My Lords, an objection has been made by my noble and learned friend who last addressed you, of the great length of time, that this cause would take if sent to an issue, and that it would be impossible for any jury to come to a decision upon it. If the case is to be conducted in the Court of Nisi Prius at the length to which it has been carried out here, it would be perfectly impossible. I have had a little more experience of the time that it is necessary to occupy in disposing of a Nisi Prius cause than of a cause in this House, or in a Court of Equity, and I venture to undertake that in two days, at farthest, a jury would come to a most satisfactory conclusion, and give a verdict that would afford the best possible assistance to your Lordships in pronouncing your judgment. My noble and learned friend also said, that there must be an infinite number of issues. I can undertake to say that two issues, namely, the quantity of iron, and the price of making that iron, would be all that would be necessary to submit to a jury; and that upon the verdict found upon those two questions, a satisfactory judgment upon the whole cause might be given by your Lordships. If, as has been charged on one side, it should be found that Mr. Attwood's representations were wrong on these points, they must have been wrong with the knowledge of Mr. Attwood, unless he wilfully shut his eyes, and would not inform himself of that which for many years it was his duty to inform himself of.
My Lords, I forgot to mention, that there may also be another question which it may be material to raise, and that is whether the parties made their objection to this contract sufficiently early; because unquestionably if a party thinks proper to sleep over his interest and does not make his objection within a reasonable time, he cannot entitle himself to relief. But what is a reasonable time for the party to make his objection, is particularly a question of fact to be judged of properly by a jury on a due consideration of all the circumstances of the case, of the importance of the subject, the difficulties that a prudent man would find himself encumbered with when attempting to make up his mind whether it formed an objection to the contract or not. I think it would be proper to submit that to the jury, although I for one should have no great doubt upon it. The parties, it appears, were put in possession in the month of November 1825. In February following, one of them began to suspect they had not been fairly dealt with; he stated that suspicion to P. Taylor, who answered to this effect: "We had better wait till the quarterly accounts come in, we shall then see whether we have been fairly dealt with or not, and then it will be time enough for us to take steps in a Court of Equity to relieve ourselves from this contract." That was very reasonable and proper advice: until the quarterly accounts came in they could not possibly form a judgment whether it was fit for them to take steps to get relieved from the contract. The quarterly accounts came in, and instead of showing a profit of £90,000, which Mr. Attwood stated, some little time before the contract was made, had been the produce of these mines in one year, it was somewhere about £8000. One is surprised that a gentleman in possession of mines, producing £90,000 a year, should be desirous of giving them up. These are general observations, and do not bear particularly upon the points to which I am about to call your Lordships' attention.
My Lords, in the first place I will inquire, was there any material misrepresentation? Mr. Attwood's representations were taken down on the paper called P. T. 1, in the handwriting of P. Taylor; its accuracy was distinctly admitted by Mr. Attwood; so that it may be treated as a paper in the handwriting of Mr. Attwood. It represents, that at the Dudley Wood furnaces the cost of making pig iron was only £4 8s. per ton. When Wilkinson and Dransfield went down and had a fuller opportunity of examining the books than any party had before, they found that the expense amounted to £5 4s. per ton, being 16s. per ton higher than the represented expense, and making a difference of £18,000 a year upon the whole concern. I think I need not trouble your Lordships with -a single observation to show that this was a very material misrepresentation.
The next question is, did Mr. Attwood know at the time the misrepresentation was made, that he was giving an account of the expense of making this iron, which would make a difference to the purchasers of £18,000 a year? It is very seldom that a man in his senses, after having made a false representation, directly admits the falsehood of it. We must judge from the conduct of the man; and the Court to which I am anxious to, send this case, can determine better than any other what has been the conduct of Mr. Attwood, and from thence infer whether he knew that the statement which he made was true oar false.
Your Lordships will recollect that the first contract went off in consequence of the serious mistakes that were committed by Mr. Attwood, he having sold some of the property as held under a lease, but of which in fact there, was no lease. There was then a discussion with respect to the renewal of the; contract. The company would not renew their' contract unless the accuracy of the P. T. paper was tested.- Mr. Attwood agreed, and three, of the directors went down. They were assembled in the drawing-room of Mr. Attwood; himself with his agents being in another room; the directors desired some papers in verification of the statements in the P. papers. Now if the P. T. paper was a mere estimate, would they desire papers in verification of an estimate? That desire gives the paper the character, not of an estimate, but a professed statement of facts. They desired to have a statement verifying the accuracy of the P. T. paper; in consequence of which, two agents, Edwards and James, were immediately ordered by Mr. Attwood to make out papers to prove the accuracy of that paper. They made out a. series of papers beginning with D. 1, and terminating with D. 12. It turns out that one was inaccurate, and the inaccuracy of the one was to be got rid of by the inaccuracy of the others. The parties in the drawing-room looked at those papers; they were not satisfied with them. They said, "We want such a book," and one of the agents went out and told Mr. Attwood. He was very much discomposed, and said, "They must by no means have that book." Having professed to produce all books, what objection could he have had if he was acting fairly and honestly to produce this book? He said, "No, go in and tell them there is a man that will give the whole sum." Whether the person, who, went in, told them that, most likely he did, whether he did or did not, there is no direct proof, but of that a jury would require evidence, and would not be satisfied without it. I cannot compliment the company with having appointed parties well qualified to conduct such a negotiation as this with so skilful a person as Mr. Attwood; they were immediately satisfied;' out came this man and said, " Harrison is reading the newspaper, and they are quite satisfied;" upon, which one of the agents, in the presence of Mr. Attwood, -and I mean to say this is as strong evidence against him as anything that could come out of his own mouth,- said, "The old fools " "What construction can be put upon that? " Oh, those stupid fellows, who have been sent down from London, are so unequal to the task they have undertaken, that they are put off by such an assertion as this, that there is a person who, will give £550,000 for the property!" My Lords, would any jury in the world hesitate in saying, that Mr. Attwood is to be answerable for that expression? If he had met the deputation fairly, why did he not express  his displeasure at such conduct? Why did he not say, " Go in and tell them there are such and such' papers." It appears he had stock papers, from which, with very little trouble, the expense of manufacturing iron might have been made out to the satisfaction of the deputation. Now they were distinctly told there were no such papers, and that the only papers they could get at, were, the papers during the timeof James and Matthias Attwood. Was this true? Certainly not; and if it was not true, must not Mr. Attwood have known it was not true? Certainly, there cannot be a doubt about it; and he must have known that he was imposing upon those men, who were not sufficiently acquainted with matters of this sort. They were imposed upon, and they inquired no farther. This, I say, brings the case within one of the principles of law which I have stated. These persons relied on the veracity of Mr. Attwood and of his agents; they were prevented from making further inquiry by relying on their statements; then according to all the cases that were ever decided on the subject, according to the principles of natural justice, to which my noble and learned friend has alluded, recognised in the clearest way by the civil law as well as by the law of this country, this contract unquestionably was fraudulent. If this deputation had not been interrupted in pursuing their inquiries by the assertions of Mr. Attwood, they would have discovered this enormous difference in the value of the property, amounting to £18,000 a year in the manner I have stated.
My Lords, we come to another circumstance; the fault in the mine. I agree with all that has been said, that the evidence is too indistinct to bring any charge on this head against Mr. Attwood, but one cannot help suspecting something from this rubbish being put in the situation in which the parties were prevented from making full inquiry: one of the witnesses said, "Why is this rubbish here? I should like to see what is beyond it." The answer was, "Oh, we are not working there at present, it is not necessary, we find so much coal in another direction." When Mr. Attwood's attention was called to this, he said, "If there is a fault, it is very lucky it is so near the boundary." After that, one cannot but have suspicion that he knew there was a fault in the mine, and that this might have been an artifice for the purpose of preventing full inquiry into, its existence.
My Lords, we now come to another part of the case; the quantity of iron made. I have already stated that there were stock papers. One need not want much evidence upon that subject; it is impossible that a concern of this nature could have been carried on without having accounts of the cost of making pig iron, which must vary with the times and the price of the articles. It is in evidence by several witnesses that there were such stock papers, and those papers were never produced. I say, therefore, that is a sufficient concealment to show the fraudulent design with which the false representation was made. Then as to, the quantity of iron made. The P. T. paper stated, that at the six furnaces which were on part of the property, 360 tons of iron were made weekly, and that there were in another part six furnaces, where there were none. The latter statement has been properly described as a. mere estimate, not an actual statement. But with respect to the other part of the paper, seven witnesses swear it was intended as an absolute positive statement of the quantity of iron that was then made from the six furnaces; and though there were only five at work, the persons who looked at them could not possibly know how long the one furnace had not been at work; they might imagine that it only stopped for a short time; they might rely therefore under those circumstances on the account which was produced, stating that there were six furnaces actually working, and that those six produced this quantity of 360 tons. If the gentlemen who went down were content with the hypothetical statement, when they could have had a positive statement, I should say, my Lords, they were almost entitled to be relieved on, the ground of their imbecility. I venture to say there is no man, possessing sufficient sense to conduct his affairs in the world, who would be content with a statement that such and such a quantity of iron might be made, when he was talking with a man who had been in possession of those mines for years, and who had been employed under his uncles before he himself was in possession, and who therefore could state the actual quantity made. Who would have been content, under those circumstances, with a hypothetical statement of what it was possible that the mine could be made to produce? It has been admitted that Mr. Attwood said this paper was perfectly correct. What is the language? "There are six furnaces," though only five were then at work; "they are making." Can that form of language be taken as expressive of a hope that at some future time such quantity would be made? No, the words are these: "they are making." It is therefore as plain, as words can represent it, that the furnaces were at that very instant making the quantity of 360 tons. Here is a gross misrepresentation, -a misrepresentation, the falsehood of which it is impossible that Mr. Attwood, who had attended to, the management of such a concern, must not have known.
 My Lords, there are many circumstances in this case, which, in my opinion, require to be examined into; your Lordships know perfectly well that it is not an uncommon thing in a Court of Equity to direct that the plaintiff and defendant shall be examined. It often happens, particularly in a case of fraud, that by the examination of the plaintiff and defendant fraud can alone be detected. I should be desirous that Mr. Attwood should be put to the bar, not as a witness to be examined in chief, but as an adverse witness to be cross-examined, and also, if it was thought proper, to be contradicted. By that process only could your Lordships ever extract an accurate account of this case, and without that accurate account your Lordships cannot possibly know what judgment ought to be given. I should like to hear how Mr. Attwood would explain those facts. The loss, of which the purchasers complain, is not attributable to the fall in the price of iron, but to the property being represented as being in a state in which, in point of fact, it never was. I should like to know what Mr. Attwood gave for this property which he sells at £550,000? I think that would be a most material ingredient in guiding your Lordships' judgment. I should like to know how Mr. Attwood would account for the extraordinary circumstance, that the property which, according to his representation, produced £90,000 a year, can now only produce £6000 or £8000? That would be a most important inquiry.
My Lords, there are other persons who have been made defendants, improperly perhaps, James and Edwards. It would be very desirable that they and P. Taylor should be examined. They can throw much more light on this subject than has yet been thrown upon it. Two of my noble and learned friends seem to think that the parol evidence was not at all material. I think the case has not been half tried, until the parol evidence has been fully and fairly sifted and examined in the only way in which it can be sifted and examined, with a view to get at the truth, namely, in a court where the witnesses are examined and cross-examined viva voce. If truth is to be got at, that is the first step to be taken before any just decision can be given. A just decision cannot be given until the whole facts are before the House; and they cannot be got at by a paper examination. There has been already, in my opinion, a great deal of time misspent. Instead of the time, which has been, occupied, at all tending to produce a clear view of this case, it has tended to perplex the Judge to whom it was, submitted, if anything could perplex and puzzle a Judge of so luminous and distinct a mind as my noble and learned friend. It had a tendency to darken rather than to enlighten the case.
My Lords, I am quite sure that by a short examination into' the points I have submitted to your Lordships, light more clear than has yet been produced may be ob, tained, upon which a just judgment may be given, and therefore, without going at greater length into the case, I shall move that judgment be postponed, until issues be directed to be tried by a special jury of Staffordshire, to inquire whether the contract was not obtained by fraudulent representation.
The Lord Chancellor: My Lords, I apprehend that the form in which my noble and learned friend should bring that matter under consideration should be, if your Lordships should agree to it, after the judgment has been reversed. Then I should move your Lordships to dismiss the bill, with costs. In lieu of that, and as an amendment upon that motion, my noble and learned friend would substitute what he proposes.
Lord Brougham: You must first get rid of the judgment, in order to grant an issue.
The Earl of Devon: I moved that the decree appealed from be reversed; that is the question now before the House.
The Lord Chancellor then put that question, which was agreed to.
His Lordship next put the question, that the bill be' dismissed, with costs.
Lord Wynford moved his amendment, adding that they must settle the issues afterwards.
Lord Brougham: I can assure you, from a knowledge of the merits of the case, that those issues, whichever way they may be decided, will leave the question just as it now stands.
Lord Wynford: We can discuss that when we draw the issues.
The Lord Chancellor: My noble and learned friend has not stated in what shape he proposes to submit this question to the jury upon issues. Of course it is material to consider whether it is possible to frame issues upon which a jury could come to a conclusion, which would enable the House ultimately to dispose of the cause. To say that there ought to be issues, without considering what issues they are to be, seems to me to be leaving the House in the dark. I apprehend that this is not a case in which any issue ought to be directed. It is not a matter of course that a Court of Equity directs an issue. A Court of Equity directs an issue only where it is found that it has not materials before it to come to a satisfactory conclusion upon some point which is not capable of being satisfactorily tried in that court. It is an objection to an issue if the Court has before it all that is material to decide upon the matter; and it is also an insuperable objection to an issue, if the matter be such that it is not capable of being brought to a satisfactory conclusion before a jury. In my opinion the present case is open to both these objections. We have before us, in my opinion, sufficient to dispose of the case, and the case is one which is not capable of being satisfactorily tried by the issues which have been suggested. It is very true, as I have stated before, that I should have felt an insuperable difficulty in, deciding the cause in the first instance for the plaintiffs, without an issue, because they had prevented their opponents from bringing before the Court the evidence in defence of that case which was attempted to be made against him. But the converse of that proposition by no means follows, when, after having had the advantage of depriving their opponent of the two, material witnesses, who alone could speak to the material parts of his case, they have not made out the case against their opponent. Entertaining these views and feelings; satisfied upon the record as it stands, that the plaintiffs cannot succeed, I do not think this is a case in which your Lordships would think that an issue ought to be directed.
My noble and learned friend, in commenting upon the evidence, has again referred to a part of the case which my noble and learned friend who decided the cause in the Court below also referred to, and I am desirous of saying a word, not for the purpose of going over the evidence, but of explanation as to some of the observations of my noble and learned friend who decided the cause below, with regard to a part of the address which I made to your Lordships on Thursday. My noble and learned friend, after observing on the question of yields and stock papers, said that, although he considered that a material part of the case, I had not adverted to it, or but very slightly touched upon it. It is perfectly true I did not; I am only anxious to state the reason why I did not. The propositions arising from these facts are these: an imputation of fraud is made against Mr. Attwood, because when the deputation went down he produced books of the year 1818. Other more recent information was called for, and he is represented to, have said that there were no yield books subsequent to 1818. Then the allegation is, that although that was true, yet he had in his possession certain stock papers which, although they would not of themselves show the yield, would have been an item in the calculation in order to ascertain them; that he knew those yield papers would show a yield different and less favourable than what it was in 1818, and that knowing that he purposely and fraudulently suppressed that information. When the cause was argued at your Lordships' bar, it was observed by the counsel for the Appellant that there was no such case upon the record. I very carefully looked at it at the time; I have very carefully looked at it since; and I find that observation is perfectly well founded, that the bill does not state any such case. If the bill states no such case, particularly where the attempt is to fix fraud, according to the rules of a Court of Equity, you cannot permit the party to go into evidence for the purpose of proving it, and you cannot infer anything from the circumstance of the defendant in such a bill not having produced evidence to repel such an imputation, no such imputation being made upon the bill. That is the reason why I threw it out of the case;  I considered that in so doing I was acting upon the perfectly well ascertained rules of a Court of Equity. My noble and learned friend (Lord Wynford) has again adverted to that as what he considered part of the question to be tried by a jury.
My Lords, feeling that the plaintiffs have had every possible advantage in bringing their case before your Lordships, and that they have failed in making out their case, though they had the advantage of having their witnesses stating the case, without permitting the defendant to examine his witnesses to the facts; and feeling that it is a question which by no possibility could be reduced into that shape so, as to be tried satisfactorily by a jury, I feel confident that your Lordships will not be of opinion that this is a case which ought now to be further delayed by being sent to be tried by a jury.
Lord Wynford: I think that no case of this sort ought to be disposed of upon technical grounds. I have stated that in my opinion the charges are sufficiently set forth on the face of the bill. I do not mean to say that every word of the evidence of the witnesses is stated in the bill; but the manner in which this fraud was practised is sufficiently stated, that is, that the appellant made representations, and that he knew those representations were false. The Courts of Common Law, with which I am more familiar than with Courts of Equity, are, I find, more liberal upon this subject.
Lord Lyndhurst: My Lords, I do not rise for the purpose of prolonging this discussion; but I find upon the face of the bill it is charged against Mr. Attwood, that he stated that he had not kept any yield account, and had no materials from which a yield account could be ascertained; and when he answers in the very terms of the bill that he had not kept a yield account, and had no means by which he could ascertain what the yields were, surely from that mode of answering we may legitimately infer that there were accounts, which he had not produced, which would have enabled him, with the accounts that were produced, to make out a yield account, contrary to the statement contained in the answer, and in affirmation of the statement contained in the bill? But in order that the defendant might not be taken by surprise, what was the course that was pursued? Before his answer was put into the amended bill, notice was given to him that this defect would be insisted upon; particular papers were pointed out, the names of the witnesses by whom they would be proved were pointed out, so that Mr. Attwood had ample opportunity of examining the witnesses, whose names were mentioned, and who were examined in chief; he might have cross-examined them to the facts.
My noble and learned friend (Lord Brougham), who discussed this question so ably and eloquently in the course of this day, stated that the existence of those papers was proved by only two or three witnesses; they are proved by seven or eight witnesses, all of whom were concerned in making out those statements, and all prove distinctly the object for which they were made out; and connecting those books with the other books of the concern, in a very short period -I think one of them stated that in two or three hours- he could have made out a yield account respecting the produce of the works at some particular period.
The Lord Chancellor: That took place before the bill was amended, and if the plaintiffs were advised that they could make out a case arising from those stock papers, according to the regular proceeding, they ought to have amended their bill, and put that case upon the record. The defendant has no occasion to take notice of anything that is not on the record.
Lord Lyndhurst: I do not consider it at all out of the record. If it is charged distinctly that he has the means of making out a yield account; how is it out of the record, because you do not set out the particular evidence on which you are to support the issue?
The Earl of Devon:--I apprehend that the only question which we have now to consider is, whether we shall or shall not, having removed out of the way the decree which has been made, send down the matter to be tried by a jury. I confess I cannot quite understand the doctrine of my noble and learned friend that we are to consider what those issues are to be at some future day. It appears to me to be absolutely essential, in order to form a judgment with any degree of accuracy, whether we shall or shall not forward the ends of justice by issues, that we should have in our minds some idea of what the substance of those issues, is to be (the exact form in which they should be drawn up is another thing); but we ought to know, before we come to any conclusion, what are the issues upon which we are to take the opinion of a jury. My noble and learned friend felt that, and he threw out two points upon which he said the verdict of a jury would enable the House to come to a more satisfactory conclusion. I can only say that if those points were found, as my noble and learned friend expects they would be found, they would not, in the view which my noble and learned friend on the woolsack, and my noble and learned friend who has spoken to-day have formed, and which I myself have formed, make the slightest alteration in our opinion. There are at least a dozen other points, upon which, if it was necessary to take the opinion of a jury at all, it must also be taken before any further materials could be got at for forming our decision, which after all, be it recollected, must be a decision founded on the principles of a Court of Equity; and the case must be decided according to the rules of pleading and usage of a Court of Equity. And oh those rules of pleading and with reference to the circumstances, which as a Court of Equity we have, arising out of the conduct of the parties, as shown by their letters, by their proceedings, and in various ways; with reference to all these circumstances taken together, and not only to the two isolated points to which my noble and learned friend has referred, ought the judgment in this case to be given. That judgment has now been given according to the best lights which those who have delivered it have been able to throw upon the case. And I confess it does appear to me that instead of tending to elucidate the matter or arrive one step nearer to a just conclusion by sending down this matter to be tried by a jury, we should be adding labour and sorrow to both parties, and not in the least advance your Lordships in getting at the justice of the case.
Lord Wynford suggested the form of issues which he proposed.
Lord Brougham: My Lords, it is unnecessary that I should say more than that I entirely concur with my noble and learned friends who think that there ought not to be any issue, and that there are materials enough in this cause to enable us to, come to a conclusion; regard always being had to this, that a party is not to come into a Court of Equity, and, upon the ground of fraud, seek to, be relieved from his contract, and having failed upon the ground, on which he put his case, to support the allegations of that case; while the other party has relieved himself from those allegations on the evidence whereby alone the complainant sought to establish them. I will not aid in allowing that party, as it were, to mend his hand, by sending an issue to be tried at law. It is his business to make such a case as to show the Court before whom he comes, that there are grounds for relief. The very general issues which are proposed by my noble and learned friend would be sending the whole case of equity and law to a jury, for they raise the question, is there any such fraud as gave rise to the contract which ought to entitle the, party to have that contract rescinded? Then would arise the question of legal and equitable fraud. It is sending an equitable question to be tried by a jury. It is hardly possible to say that the sending of the case to a jury could give us any light.
The Lord Chancellor:-The original motion is, "That this bill be dismissed with costs," since which it has been moved, as an amendment, to leave out the words after "that, for the purpose of inserting "issues be sent down." The question is, whether the words proposed to be left out stand part of the question.
The amendment was negatived; after which the Lord Chancellor put the original question, "that the bill be dismissed, with costs," which was carried (Lord Lyndhurst and Lord Wynford dissentientibus).
Mr. Serjeant Wilde: Your Lordships are aware, from the printed papers, that several orders have been made in the course of this cause, under which money has passed from the one party to the other, and I apprehend it will be, necessary that your Lordships should accompany the order of the House by some directions in that respect, or by a general direction that the cause be remitted to the Court below to give such directions as the justice of the case may require. Sums of money have been paid into court, which, since the decree, have been paid out to the Respondents by the order of the Court of Exchequer; and there are certain other matters which we pray of your Lordships may be comprised in directions to be appended to the order of your Lordships.
The Lord Chancellor:-There is another order in this cause, which is the subject of another appeal (1 Younge, 507).
Mr. Serjeant Wilde:-My Lords, I allude to money which has been paid out to the plaintiffs consequently to the decree. There was an injunction to stay an action for interest, which your Lordships may recollect was reserved by the contract to be paid half-yearly. That interest was paid into court under the order which granted this injunction. Since the decree the Respondents applied to the Court below to have that money paid out to them. Now that the bill is dismissed, that sum belongs to the Appellant. I apprehend, therefore, that the Appellant is entitled to have that sum, which consisted of 49,000 consols, and a sum of £1500 in money, re-transferred to him. Under the decree also, the sum of £10,000 has been paid for costs. The Appellant has lost the use of that sum of money for the period of four years; those costs will, I apprehend, be necessarily paid back to him.
The Lord Chancellor: My Lords, it is of course necessary that whatever has been done under this decree should be set right, but the facts are not before us, and I apprehend that the proper mode of effecting that object is to give directions to the Court below to do what may be necessary to be done.
Mr. Wakefield: The words which we propose are these: "And the Court below to give all such consequential directions as the justice of the case may require."
Lord Lyndhurst: Would not the Court do that without any direction?
Mr. Wakefield: No, my Lord.
Earl of Devon: We must take care to give some general directions.
Lord Lyndhurst: There was another appeal.
Mr. Wakefield: Your Lordships will never be troubled with the other appeal. By the Order of the House then made, after stating the days of hearing in 1835 and 1836 (being 46 days in all), and the amendments made in the decree after the petition of appeal was presented, etc., it was "ordered and adjudged that the said decree, as far as therein complained of, be, and the same is hereby reversed, and that the bill be dismissed with costs. And it is further ordered, that the cause be remitted back to the said Court of Exchequer, to do therein as shall be just and consistent with this judgment."
ATTWOOD v SMALL AND OTHERS, (IN CHANCERY.) [1839-1840.]
Mr. Attwood, not being able to obtain all the relief that he asked in the Court of Exchequer, filed his bill in Chancery in 1838 against all the survivors of the plaintiffs in the suit against him in the Exchequer, and the personal representatives of James Barton, William Leathley and Hart Logan, deceased, alleging that there was no personal representative of John Morrice, also deceased. That bill stated, among other things, the formation of the British Iron Company, the contracts by the three managing directors with Mr. Attwood for the purchase of his property, the institution of the said suit by all the directors to set aside the contracts; and that they, during the progress of that suit, ceased to be directors, and were succeeded by others, but still allowed the suit to be carried on in their names under a stipulation for indemnity. The bill then stated the various proceedings in that suit and in the appeal; and that, in the meantime and since, the company and their agents had dug and carried away from the estate very great quantities of coal and ironstone, and out down timber, altering the surface and exhausting the mines, and thereby greatly lessening the value of the estate as a security for the unpaid instalments of the purchase-money.
The bill further stated and charged that the company, having so worked out and deteriorated the property, were liable to the plaintiff for the sum, to which the property by such means became an inadequate security; that the plaintiffs in the Exchequer suit, having obstructed and delayed this plaintiff in making his said security available, had become personally liable to make, good to him the said instalments and interest; that R. Small, Shears and J. Taylor, having jointly with the other plaintiffs so obstructed and delayed him in violation of the faith on which he agreed to exonerate them from personal liability, were not entitled to insist upon such exoneration, and had rendered themselves personally liable to him as if the agreement to exonerate them had not been made; that it was the intention of the defendants not to pay the plaintiff the sum of £325,000, the amount of the unpaid instalments, but wholly to defraud him of the same; that the true intent of the parties to the contracts and of the sixteen directors, when the same were entered into, was, that the plaintiff should absolutely sell, and the company, through the medium of R. Small, Shears and J. Taylor, should purchase and pay for the property; and that R. Small, Shears and J. Taylor were the agents of the company, and their names only were mentioned in the contracts to give effect to the plaintiff's right to enforce performance thereof, and not to withdraw the company or their property, or the members thereof, from the obligation or liability to pay the purchase-money, and that it was impossible to make all the members of the said company parties to this bill.
The bill prayed for such declarations by the Court as the rights of the plaintiff required, and particularly in regard to, the personal liability of R. Small, Shears and J. Taylor, and as to the personal liability of them and the other, trustees and directors of the said company, and the respective and several members thereof; and as to the liability of the freehold, copyhold, and leasehold estates and other properties of the said company, and as to the personal liability of the plaintiffs in the Exchequer suit, in respect of the said matters; and that the defendants, R. Small, Shears, J. Taylor, Bailey, Bland, Colby, Donaldson, Herring, Kerr, Mackillop, Onley, and J. Small (the survivors of the said plaintiffs), might be decreed personally, and the other defendants out of the respective estates of their respective testators or intestates, to pay the plaintiff the sum of £250,000 then due to him in respect of Interest, costs, etc., together with so much interest on the said sum of £325,000, at £5 per cent., as should remain due and unpaid after payment of the £250,000, or to pay to the plaintiff the value of the coal and ironstone and other minerals raised or gotten out of the estates and mines, or so much thereof as should amount to the said sum and interest; and in such latter case, that all necessary accounts might be taken, etc. And the bill prayed for an injunction and receiver.
To this bill three demurrers were put in, by different sets of defendants, for want of equity and for want of parties. The Vice-Chancellor, before whom the demurrers came to be argued, was of opinion that the plaintiff was only entitled to relief in the nature of specific performance of the contracts, and to that relief only against R. Small, Shears and J. Taylor, the purchasers. His Honor being of opinion that under the contracts and in the circumstances that took place, the plaintiff was not entitled to any relief against any of the defendants or the company on the ground of conduct, allowed the demurrers of all the defendants, except the said three, whose demurrer, for want of equity, his Honor overruled, without costs; allowing their demurrer for want of parties, in respect that there was no personal representative of J. Morrice before the Court (8 Law Journal, 195; 18 Legal Observer, 8; and 3 Jurist, 336).
Mr. Attwood appealed from his Honor's orders to the Lord Chancellor, who, after taking time for consideration, delivered the following judgment the 1st of February 1840.
The Lord Chancellor: This was an appeal from orders of the Vice-Chancellor upon demurrers, the demurrers being for want of equity and for want of parties. The Vice-Chancellor was of opinion that as to certain parties who were defendants to the bill, their demurrer was good for want of equity; he was of opinion that the former directors of the company, who were the plaintiffs in the suit against Mr. Attwood, were not proper parties, and it follows as a matter of course, being of that opinion, that the representatives of some of those parties are also improperly brought before the Court. That being the Vice-Chancellor's opinion, it was not at all necessary for him to consider whether other persons ought to have been parties, which could only arise in the event of his thinking that those persons who were the subject of the general demurrer were proper parties. He was of opinion that the bill was good, but good only as an ordinary bill for specific performance, and therefore to be enforced only against those persons who were parties to the contract, Small, Shears and Taylor.
Now looking very carefully through the bill -of course I must take the case as it is stated upon the bill- the result of that decision appears to me to be, that the plaintiff would have no remedy at all, because it is part of the arrangement which the Vice-Chancellor observed, upon part of the contract, that those persons shall not be personally liable. In the way in which the Vice-Chancellor has left the record there are no persons before the Court but those three persons, and they are there only as being parties to the contract; but if the contract is to be performed in the way in which it was arranged between the parties, and if no equity has arisen from the subsequent transactions to give a better remedy to the plaintiff, why then he is -he being the owner of the estate, and the estate being in the possession of the purchasers, and they not having paid the purchase-money, the Vice Chancellor's judgment appears to me to have left the plaintiff in this situation, -that he is only to prosecute his suit for the purchase-money against the three persons who are not personally liable for it. It is obvious, in that view of the case, the plaintiff would have no remedy at all, provided the contract is to be performed on the terms, in which it appears on the face of the bill to be stated, and that nothing has happened since to give the plaintiff any new equity. The Vice-Chancellor is of opinion that nothing has arisen since to give the plaintiff a new equity, and therefore his only remedy is upon the written contract.
Now when one looks at the case as stated upon the bill, that the plaintiff was owner of property of very great magnitude, consisting principally of mines; that he entered into a contract with certain persons on behalf of the company, the contract being in their own names; that the effect of that contract was to give those parties, namely, those defendants in the suit, the property of which the plaintiff was so possessed; that he was to be paid by certain instalments, for which the purchasers were not to be personally liable; that the instalments were to be paid at certain stipulated periods, and the plaintiff was to look to the security of the estate as a means of obtaining payment; that as the bill then states, in fraud of this contract, and for the purpose of defeating the plaintiff's right and of appropriating the property to themselves without paying the consideration money, they instituted a suit containing a variety of false charges, which at one time were supposed to be well founded, but which, by the decision of the House of Lords, have been declared to be ill founded, and that by those means, and by proceedings in the cause, when it was pending in the Exchequer, they have protracted the day of payment -I think the last payment was to be in 1827- and that the result has been that, during the whole of this period while they were preventing the plaintiff from receiving that which was his due, namely, the consideration for the property of which the defendants were in possession, they were continuing to work the mines and to exhaust the property, to which the plaintiff, according to his statement, was to look for the purpose of working out his security, and that the result of that has been, that £325,000 remains due, the property itself, according to the statement in the bill, having by the working of the company in, the meantime, become an inadequate security for that sum; (that is the statement in the bill.) Now for this Court to say upon such facts, that there is no remedy for the plaintiff, that he cannot go against the property, because he is only to sue upon the contract, and there being, according to the Vice-Chancellor's decision, only three persons representing the contract, and who are here only as being parties to the contract, would be a state of things very much to be lamented if it were so; but my opinion is certainly that, upon this statement in the bill, there is a remedy for the plaintiff; whether the facts are made out or not, of course is not now to be considered; but if he makes out his case as stated in his bill, this Court will find the means, so far at least as the circumstances enable the Court to do so, to restore the plaintiff to the situation in which he ought to have stood, looking at the contract, now established between the parties as a valid contract, as that which is to regulate the rights of the parties. In the first place, I take it to be quite clear, that according to the contract itself, he has a right to work out his remedy against the property as it remains. With regard to those persons who were directors at the time the contract was entered into, and who filed the bill against this plaintiff, and who therefore have been the actors in these transactions, which, according to the statement in the bill, originated for the purpose of depriving the plaintiff of his remedy for the payment of the consideration money; if the case be as is stated, there is abundance of authority to show, that persons who have interposed between the party and his rights shall in some way or other (to what extent it is not necessary for me to consider) be liable to make compensation for the injury of which they have been the authors. I think there is quite enough stated in the bill, to show that those who took upon themselves in the other suit to interfere with the plaintiff's rights under his contract cannot be permitted now to state, that though they were parties to the transactions, they ought not now to be made parties to a bill in which the plaintiff asks compensation for the unquestionable injury which he has sustained. Being of that opinion, of course it follows that the demurrer for want of equity cannot be maintained; and that applies as well to those who were directors and plaintiffs in the original suit as to those who are now demurring parties, being representatives of persons who, were in that situation, but who, are now dead. It therefore becomes necessary that I should consider how far the objections are good respecting the want of parties.
Now it is said that, assuming the suit to be properly constituted in other respects, there are three descriptions of persons who ought to be, but who are not, brought before the Court. One set are all the shareholders of the company, the second are those who were directors of the company at the time the bill was filed, and thirdly, it is stated that one of the old directors, Mr. Morrice, being dead, his representatives are not brought before the Court, and there is not sufficient stated upon the bill to explain the reason why they are not. Now, with regard to the first, looking at what is stated in the bill and at the authorities upon this question, there is no ground upon which that objection can be maintained. The bill alleges, that there are 571 shareholders, and that they are constantly varying, the shares being transferable; it states a case, therefore, that makes it utterly impossible that the plaintiff can pursue his remedy, if he can pursue it only by bringing before the Court and keeping before the Court all persons who are shareholders. The cases of Adair v. The New River Company (11 Ves. 429) and Meuw and Maltby (2 Swanst. 277), in which that question was considered, have saved me the necessity of doing that, which I certainly should have done, if I had not found authorities already standing in the books, namely, adopting the rule which it was necessary to adopt in order to prevent the grossest injustice being practised by companies of this description. To say that they are to be permitted to sue on behalf of themselves and others, because they are so numerous that they cannot be brought before the Court, and then to say that persons by whom they are sued are not to be at liberty to bring those who are the plaintiffs against them before the Court without bringing all the shareholders, would enable them to commit any injustice which they pleased without the possibility of their being made responsible for it. The authorities to which I have referred, and several others (vide the cases supra, 310 and 321), are quite sufficient to show that this Court has adopted a course which prevents that injustice from taking place. Upon the authority, therefore, of those cases, I am of opinion that it is not necessary to bring the shareholders before the Court as such.
But then there is another part of the case, on which I cannot see how this record is to proceed, in the absence of certain persons, looking at the relief which the plaintiff asks. The plaintiff asks relief against the company and against that which is the property of the company. The plaintiff now avers that the contracts being contracts to be carried into execution, he wants that remedy which the contracts, and the subsequent transactions which have taken place, give him in order to obtain the consideration money. The obvious mode of doing that, independent of the personal liability which the parties, may have incurred by the course they have pursued, is against the property itself, and also against what may have been received during that interval, when the rights of the present plaintiff were suspended by the proceedings in the Exchequer. Now, if the Court should be of opinion that that right exists, then the question is, in what way is it to be enforced, and what is the remedy to be given to a plaintiff entitled to such right? It must be against the company and those who properly represent the company. But I have nobody here representing the company; I have only those who may be said to have represented the company at a period long past, namely, when the original bill was filed in the Exchequer, but who upon the face of this bill, are stated to have ceased to hold that situation, and to have handed over the possession of the property, which, as directors, they then held, to other persons, who have subsequently become directors of the company. The partnership deed, as stated in the bill, puts the directors in the place of the company, and makes them, for the purpose of any litigation between themselves and others, in my opinion, proprietors of the company. I have impliedly said that, when I said all the shareholders are not necessary parties to the suit; but if they are not necessary parties to the suit as shareholders, there must be some persons whom those in contest with the company are at liberty to sue. The only other persons held out by the deed, as owners of the property of the company, and competent to deal with individuals who may have transactions with them, are the directors. Now, if the directors, who held the property at the time this litigation commenced, were to be made parties, to the suit, they must be considered, for the purpose of the contest with any other individuals, as the owners of the property, and the persons with whom this contract was made; but they are not made parties to the suit, and then no persons are made parties to the suit who can be considered in any sense as representing the company except the trustees; indeed they are here, but then there are no cestuis que trust here, except so far as they are trustees for themselves. I do not find, therefore, on this record any persons defendants who represent the interests of the company, or as against whom any remedy the plaintiff may have against the company can be enforced. My opinion is, therefore, that the suit cannot proceed upon this bill, and the plaintiff cannot get what he represents himself to be entitled to, and which, according to the case he states, no doubt he is entitled to (if he makes out the case), a remedy -for the consideration money unpaid, against so much of the property as remains now available for that purpose. I find no person representing that interest, and no person against whom such a right can be enforced. I think, therefore, that the actual directors, of the company are necessary parties to the suit, and that of course makes it unnecessary, as there must be an amendment, to consider whether there may not be more allegations introduced, as regards Mr. Morrice, than appear upon the bill at present. The result is that I overrule the demurrer for want of equity, and allow the demurrer for want of parties, with leave to amend. (And so, far only was the form of the order of the Vice-Chancellor varied. His Honor's order as to costs to remain. No, costs of the appeal.)
Note 1 Note 2 Note 3 The Appellant's counsel gave in statements in writing, containing various calculations and the result of them, and copies; of these papers were given! to' the Respondents' counsel. [Back] Note 4 For the proceedings that were had on the remit, in the Court of Exchequer, see 3 You. and Coll. 105 and 501. [Back]
Note 3 The Appellant's counsel gave in statements in writing, containing various calculations and the result of them, and copies; of these papers were given! to' the Respondents' counsel. [Back]
Note 4 For the proceedings that were had on the remit, in the Court of Exchequer, see 3 You. and Coll. 105 and 501. [Back]