The British Press; or, Morning Literary Advertiser.
London, England, 1826-01-27 00:00:00

PHILLIPS V. ABBOTT.

This was an action to recover back from the defendant, SO
auctioneer, the mint of 2251. paid him by the plaintiff as a denotsit
on the purchase of an estate, the contract for which the plaintiff had
rescinded on the ground of there being a misdeseription of the pro-
perty in the particulars of sale published by the defendant. The
cause was tried before the Lord Chief Justice at the last siuings
foe aliddlevex, when the Jury found a verdict for the defendant.
The Co atMON SERGEANT now moved for a role to show cause
why the verdict should not be set aside and a new trial had. The
plaintiff was a gentleman residing at Vauxhall, and being di-sirens
of investing his money in a purchase of an estate, was induced, hi
the representation made by the defendant in his bill of particulars
of the property in question, to attend the sale of it by auction,
where, without having previously viewed it, but entirely relying
• upon the description given of it by the defendant, he became the
purchaser of the estate, at the price of 1,100/., and immediately
paid 2'251. as a dep alt. The bill of particulars gave a general de-
.cription of the pr iperty on the first page. in the following words—
" iialitrible freeba!el estates and oremises, consisting of rich arable
meadow and hop ground. in the highest state of cultivation." On
the other side of the bill there were .he particulars of two lots, the
firm consisting of an estate described as containing one him-
dred and fifty acres of excellent land, and the second lot,
which was the one in question. was described as an estate called
Starve Crow Farm, and comprising 54 acres of land. The first tat
wan bought in at the sum of 10,4561. whiih operated as a further
inducement to the plaintiff to believe that the second estate was in
every respect such as It was described to be: but on his tuba'.
quently surveying the land, it was found to be of the worst quality,
and in the most wretched state of cultivation. At the trial it was
proved on the part of the plaintiff, by several land-surveyors, that
the estate comprised in the first lot was fully valued at 30001.; it
was therefore contended that its being bought in at so high a vim
as 10.4301. was intended merely as a decoy. It was true the defen-
dant called a witness, who stated that he had attended the sale on
behalf of a Mr. Brown. an ironmonger in Haborn, and that he had
bid as high as 90001. for the first lot, which he was then ready to
give for it; bat inquiry had siree been made by the plaintiff among
several persons of that name and trade, all of whom disclaimed au y
knowledge of the witness, or of the existence of the property. In
addition to this it was to be observed that the witness was the bro.
ther of the defendant's clerk. This therefore was a very strong
ground in favour of a new trial. The land surveyors also estimated
Starve Crow Farm to be worth about 7 nr HOW.; and the tenant who
had lately occupied it. declared that the land was to poor that it
would only keep one sheep per acre; that he had held it eight years
and had only hail four crops from such parts of it as were amble
during that period; that the rent was first 261. a. year. but had for
the lost hew years been reduced to 201.. anti that in fact it was an
estate which no person would occupy by itself, he being a tenant of
' other property belonging to the same landlord. The Learned
Counsel submitted that the only fair construction to he put upon
the bill of particulars was that the words, "rich amble and other
land, in the highest state of cultivation," applied to both lots, and
as the estate proved to be quite the reverse, the misrepresentation
was calculated to mislead the plaintrff, as no man would have
given almost fifty years' purchase tbr an estate cinder any other im-
pression but that it was a highly-cultivated and valuable one. rpon
these grounds be hyped the Court would grant a rule for a new
trial.
The LORD CHIEF JCATICE observed that the statement of the
plaintiff's Counsel at the trial, that the first estate was put up as a
decoy, wan disproved by the defendant. The question upon
which the case was left ts the Jury was merely whether this bill of
particulars, looking at the whole of it, was such as to mislead the
purchaser. and to give him a right to expect that he was buying
Starve ('row Farm. under the terms set forth in the first page of
Ills Lordship observed to the .lury, that he very much disapproved
of the too common practice of auctioneers and agents who had to
dispose of property of this kind, to paint and describe it in colours
which when it came to lie examined it would not hear. Any man
who went to an auction must enter the room with the knowledge
that every thing would be described at least as highly as it would
hear; but on looking at the handbill containing the description of
this property, it would be seen that although the words mentiomd
by the Learned Cowinl were used in the general title of the bill,
yet when each estate came to be particularly described, the only
epithet used as to the quality of it was the word " excellent," and
that applied only to the first lot; for as to the second lot there was
not a single epithet of quality in the description. The Jury, upon
these facts before them, hail found a verdict for the defendant, and
although, if the verdict had been for the plaintiff, his Lordship
should not have found any fault with it, yet he was of opinion
that the verdict as it steal ought sot to be disturbed.
Justice BAYLEY observed that this watt not a question of
construction fiir the Court, but one entirely within the province or
the jury to decide. In an old case in Lord Raymond's reports, a
distinction was taken between a misrepresentation of a fact which
was within the knowledge only of the party making it, and of a
thing of which both parties were equally capable of seeing and
judging for themselves. If, for instance, the amount of rent of an
estate was misrepresented, and a person was induced, without in.
quiry, to purchase it, there, as it was not within the power of the
purchaser to ascertain the truth or falsehood of the representation,
because he could not compel the tenant to inform him what was the
real amount of the rent, the seller would be guilty of fraud ; but
the case stood extremely different indeed, where, if by only using
his own eyes, he had the opportunity of seeing whether the thing
was described improperly or not, as in the case of the quality of
an estate. If a person made n foolish bargain, by neglecting to as.
certain whether the description was true or false, he could not after-
wards rescind the contract upon the allegation that he had been
'Mated. For then reasons Its Lordship was of opinion that the
verdict might to anon,.
Mr. Justice Hotnorn and Mr. Justice LITTLEDALE were of
the same opinion.—Rule refused.
BAXTER AND ANOTHER THE EARL Or PORTSMOUTH.
This was an action by Messrs. Baxter and Co. coactimakers of
Long-acre, to recover the hal ince or an account for the hire and use
of carriages and harness by the Earl of Portsmouth. The cause
was tried at the last sittings for Middlesex, before the lord Chief
Justice. and a verdict was found for the plaintiffs.
Mr. BROUGHAM now moved for a rule to show cause why the
verdict should not be set aside and a nonsuit entered. The de-
fence set tip at the trial was the lunacy of the defendant, and
there was given in evidence the inquisition finding the defendant
of unsound mind, and incapable of managing his own affairs from
a period antecedent to the first item of the account. There was no
stidarca on tba other vile to rebut the erect of this prima tacit

vfneit
evidence. The principle upob which It ene said red ton ewi
that a per, in this unfortunate condition timid not avail
of this defence WM,, that a man should let stultify hi 1 i
pleading his own insanity. Upon principli, and indepen gni Illr
authority one should think that in defence cc ally Action itMllit.9l••
tract, either expressed or implicit, the beg piftwod ,10,64,„ W ,_t°
show dint the person *As in such a Situation' V the time wiltl..'t
could not have a contracting mind. No doubt otigigally th• fa
appeared to be seo; and that a person might plead that be wits of
nan-sate mind. 0 ve in evidence meter the general Nana) itibe`
that he was an ideot or won comp): diri&s. But tte dactrtne Quit
a mar. should not stultify hlmseif wets afterwards thenguized. The
authority of FS:sherbert. that a party might plead t tie own iribbilitt
to contract was denied to be law, in the Case at brood and Mat a
shall, Ctok.t, Lilt. 372. In Beverley's can., 4 Coke's ,Repiletas.
126 h. & 127 a. it was recognized that although a party could not
be allowed to disable honselt, yet 'watt* mills might,on tha • oaths;
find the truth of the matter ; and when found, it should have Ma.
Non to avoid all nvesne acts done by an ideot 'ftdm the I: nc of hit
hiril ; and NA Comyn added, as to a lunailbthe finding related
I ba..a to the time when he was found to be a hinztic.

Mr. juslice Bsstry asked whether there were any cae is
which it bad been held that sigh a defence might be set up Is sa
acti•m for neersearies ? _ . .

Mr. [input-titan said he had no such case, and no tlacht great
inconvenience would sometimes result from the principle for which
he was contending, as Ualisablediy that principle maid 'make nb
difference between actions for necessaries or otherwise. The cases
which he had quoted went to show that this defend' could not be
set up by a party himself. But very recently a contrary opinion
'teemed to prevail. In fates v. Bowen, '7;e7inge's Rep. 1104, the
lunacy of the defendant was offered in evidence. The Lord Chief
Justice Who tried the fame at first thought it rught not. to be
adniitted, upon the rule in Beverley's ease, that no man could
stultify himself ; but upon the authority of tt..e case of 6m dr v.
Carr, and other authorities in Ventria r Rep. be received di
dente, and the plaintiff was nonsuited. This doc rine had been
subsequently acted upon in other CUM. moth Wetly 2 Aviimeil
Key. 412, and Fall anti Sind, 3 Cimphell, 126.
Mr Justice K --Suppose, Wr. Brougham, a mattoeliten
into a Contract when he is drurk, can he give evidence of musk.
eminence upon an action being brought against him ?
Ila ova HAN said it had been held that he might.
The Lout) Cuter JUST:CE—If yen shoe butt halm bait
imposed union.
Mr. BootinSisut observed that there existed a great ilirerenfil
between such a case, where ietapacity was the ounsequence of el
voltintary act of the party, and the Case b winch it was occasioned
by the act of nod. Undoubtedly, generally 'raking. a mina
could not give eliderce that he was drunk at the lime of making
this contract. It being, however, clear that evide.;c+of lunacy
might be given, that necessarily !et in the doctrine in Reveals
cute. in which it was said that the finding of the inquisitleit tea
ferred back to the time when the lutimy war first proved to ails%
Perhaps he ought to state to their lenotiips that this ease was one
of very considerable importunce, because an order had been n tide
by the Lord Chancellor that the Master should take en account of
all debts owing by the Noble defendant, both before aryl since tt
Inquisition ; a great deal haw already been done under ties orday,
and arrangements had been made for disrhargine the cairns ; and
it was of very great importance that the ',fairs of the Noble toed
should continue to be regulated by the Master, instead of partite,
without regarding that order, being left at hinny to bring theft
actions.

Mr. Jostle. BATLtY—What etas the language of the ill.
gulsltion
Mr. bnotonalt—lt was is the usual words—t• That the Earl
of Parsnusuili was of unsound mind, so that he was not angrier'
to govern himself or manage his 'suite did affairs, and that he had
been so from MOP."

31r. SCARLETT said that at the trial he admitted the intt'-
sition, but at the same time with this qualification, that lie should
be while to prove that Lord Portsmouth had, subsequent to 1809,
performed all the various duties of his station, and had on several
occasions voted In the Houte of Lords.

The Loan CatErlct observed that the plaintiff't
own witness showed that, for the eel( proved that Lord Ports.
mouth was constantly ridi-.g about in the landau and phaeton, and
giving order; in every respect like any other person.
Their Lordships having consulted together,
The Loon CHIEF JUSTICE said that he Outright the defense
in this ease was not such as to deprive the plaintiff.' of their right
to recover, considering that this was an action brou4lit for tk
which were perfectly ruitoti to the station and degree of 16&d
Portsmouth, and which had been actually enjoyed and used by
him. At the trial he took care to eistingoish this case from • OM-
tract unexecuted, and made under such Circumstances as to leave
no doubt that the parry at the time he made it way of unsound
mini,. Where such cases occurred, he particularly desired that his
opinion given on this trial might by no means be understood to
retold th say that the party could not plead his lunacy.; though
lie at the same time did not intend to give a positive opinion that
such s p'ea might he made. In this case he ti out the verdict was
comet, and ought not to be distarbe I.
Mr. Justice BaYtstv was of the same opinion. Imposition was
a general gr ,und to- annulling all cataracts. But where there was
no iinpositioo, and the things supplied appeared to be suitable to
the condition and tepee of the patty, his Lordship thought the
fac f the p rty having been found a lunatic, dirt not take away
tram an hoer st creditor his rirlit of action. It should beconsi-
tiered how d fEcult it was in many oases to know whether a person
was or not of unsound mind. There were many individuals who
cipable of speaking most rationally on all accessions. except
upon a pure cal+, subject. Stith persons might make applicatipne
ro r d amen for go ids, who could not, pet Imps, by any possibiliti,
k tow that the, were of unsound mind in any respect: and were
they to be deptived of the right to recover the value of the things
obtained such circumstances, when perhaps the things suppled
were of the moat suitable and proper description ? Whenever the
friends of a party thus afflicted were satisfied that he was inc gable
of mans ing his affair', it was incumbent on them to place him in
such a s.tuation as to prevent him from committing imposition, foe
impaithn wou•d re practised on tradesmen, if the law were to say
that the party .as not to be sued for necessaries actually supplied
under such mei ma-ances.
Mr. Justice b OLROYD and Mr. Justice LIFTLIDALE COL'
curred.—Rule Iglu tit.