The Sun.
London, England, 1838-03-26 00:00:00

HOUSE OF LORDS.-(THIS DAY.)

JUDGMENT—SMALL v. ATTWOOD.
The excitement relative to the fate of this important cause
seems unabated. Long before ten o'clock the avenues to the
gallery and the bar of the House were crowded to excess,
and immediately after prayers both bar and gallery were
crowded to suffocation. Shortly after the admission of
strangers,
Lord BROUGFfAM approached the table, and proceeded to
address their Lordships. He said that he approached the
consideration of the present case with great anxiety, from the
peculiar circumstances under which it came before their Lord-
ships for judgment. The case itself was without any example,
not only in his own experience, but in that of the oldest man
living in the profession, in point of length and complexity of
detail ; and it hardly exceeded any case he had recollection of in
point of importance. The case had lasted about four score
days in the Court below, and in that House. The printed
papers in it approached to nearly 3,000 pages, and the notes
of the arguments alone in that House occupied me less than
about 10,000 pages. It was to have been expected, that as
the parties proceeded onwards, and as the mist that surrounded
all legal cases was cleared away, that the prolixity of the car
would become less, and the difficulties that surrounded 11
could have vanished. Such, however, was net the case.
Every successive step in the present cause produced
greater labyrinth, the arguments were increased, the Mass
of materials was augmented, and amid those materials
the ideas of any human being • were almost exhausted
and confounded. Such being the case, if the matter Ilea
gone to a fourth stage, it would have been impossible
for imagination to conceive the difficulties with which it was
surrounded. Ile (Lord B.) thought it not improper to ea-
prT his opinion upon this point, rather in the way of cern'
plaint than commendation ; for no person who had carefully'
looked at the present case could doubt that there was a great
deal of materials brought into it that were totally unnecessary,
He felt the great weight that was placed upon his shoulders,
and the anxiety of the parties as to the course it was his in-
tention to pursue. He had attended for seventeen days to
the hearing of the case, and it was only on account of ill
health that he had not attended to it to its conclusion. He
had attended last Thursday and heard the able arguments of
his two Noble Friends who were adverse to the opinion of the
Court below. He had also heard the arguments of his Noble
and Learned Friend,—the most powerful that he had ever
heard in his life,—who had pronounced the decision now ap-
pealed from. He had never heard anything more able or
forcible, or more calculated to shake any previously formed opi-
nion. Knowing the great weight that would be attached
to his opinion he had gone through the whole of
the case—he had read again and again his own notes—he
had carefully read the whole of the printed papers—he had
read with the greatest attention the short- hand writer's not"
of the arguments which he had not heard, and upon those he
felt no doubt whatever as to the correctness of the judgment
to which he had arrived. He could not but confess that at
first he felt the greatest anxiety, but ultimately knowing that
he had taken a proper view of the case, the judgment that
he had come to was perfectly satisfactory to his own minds
end it was only upon one point, which he should advert te,
hereafter, that he felt any doubt or difficulty. If he bao
felt any doubt upon the other parts of the case he should
have felt it his duty, upon the ground that he had not heard
the whole of the arguments, to have abstained from inter-
fering altogether. Upon the question whether or no`
an issue 'should be directed, he entertained not the,.
slightest doubt, and he should feel the greatest regre.,'"
if this almost interminable litigation was not to en
'
here. He considered that an issue was wholly out of the cities"
tion ; and he would be the last person in the world who would
advise their Lordships to adopt such a course. The question
of an issue was never broached in the Court below.. His ai
ble Friend who had decided the case in the Court of Eache;
quer, never doubted that an issue was out of the question, an
from all that had taken place at the Bar, it was clear that the
parties hitherto had not desired it. But if they should 111
alter their course, and say, we will have an issue, he anise
be the last person in the world who would think
their Lordships to grant it, because he did not thin
that the nature of the case was well adapted to sit
trial by jury. No man in existence felt greater reePFe
than he did for that great blessing in the Constitution
of England—the trial by jury. But in the present case, fee
greatest risks would attend the adoption of such a course,•`ei;
cause on the one hand great preparations might be made wit
cr
respect to the evidence to be produced, which on the lae
would have to be met at perhaps a moment's notice. the
principal reason why he thought it was not proper to try t
case before a jury was the vast number of facts that wol.,
have to be brought before their attention, and the great dui._
culty there would be in twinging the result of those facts t 0..:
satisfactory termination. He therefore dismissed from
~hlO
mind the proposition of a trial before a jury altogether. .",e
then came to another part of the case, which was the princiP' _
of law which it involved—upon that, he believed, little here
controversy existed on either side. Generally speaking weeta_
a contract had been entered into upon fraudulent rePrr there
tams, an action would lie at law for damages' an
odium
would also be an escape from that contract through the mfirst
of a Court of Equity. To get rid of that contract to it mue
st
knees
ar!"
be made out that the representation was contrary th
secondly—that the party making that representation
!that it was contrary to the fact ; and thirdly—that those false
representations gave rise to the contract between the Or'
Nes. The cases which had been referred to upon that
subject he would now call to the attention of their Lordshipa-
Mr. Justice Boyes went a little further, and observed, if it was
a thing that might have come to the knowledge of the pur-
chaser, and did note—if it was not in the exclusive knowledge
of the party making the representation, but of the other
party to whom it was made, it would still embrace the poll:
ciple of not giving the relief prayed for. There was anothefi
case of Dovel and Stevens, which was heard before Lor_!
Tenterden, then Chief Justice Abbott, and which related Is:
the purchase of an ale-house, and in that case, notwithstanacet_
in an objection taken by the defendant's Counsel that. theeltecf
tion did not lie, his Lordship observed that the plaintiff
on the fact that the purchase of the house had been Mee if
the faith of the representations of the other party.
instead of saying that he drew so much beer per month,
:eta
other party bad said, " have you any objection to allow Wtect ;
inspect your beer books," and that the vendor bad assca
suppose the party making the purchase bad gone
books,lool-;:
or sent a clerk or agent, and had gone through all the .
and expressed himself satisfied—then if the party had gone owed
self and looked into the beer-books, would he have been all pd
six months afterwards to be off the bargain, and say,
there is a lesser draught of beer than has been represente ce
r
Or, would ho Lave been allowed to come into Chief Jotle.,
Abbott's Court and ask relief ? His Lordship would l'erY
°" Ptivir
perly say, how can I know that the purchase was made of
faith of these representations—it was made on the report
of
the Clerk, and confirmed by yourself ? In another ess„eese
Deakins v. Wisham, which was a purchase for 500 t,
stated that the defendant had made representations to w." 10
in the words of the old statute the plaintiff " adlabens .fide
tt
i'
which strongly impresses the reliance of the other Pai.ngs
dona 5001." Now, the words " adhibens fidem,"
lea
ta-
faith, slimed that the plaintiff had relied upon the represses •
tion of the other party, and, therefore, in that case there wtirda
good ground for coming to the Court for relief. In Ednbe
v. Milace, Lord Eldon said that the falsehood, which -net
other party had no means of knowing, which was cod
common to both parties, to enquire into, formed a disco.
he
ground for dissolving a contract. What inference
(Lord Brougham) draw from these decisions—they- were 1
eisions upon principles of law which should ever be kePt in
view, and to which he should refer as to a meridian line dritecit
through the great mass of facts of the present case, to whitv
he should refer constantly as he went along, with regard 0
their bearings, and he should value, weigh, and regard thee
in their relation to that line. What, then, was the inferela
he drew ? That general fraudulent conduct' 1
- signified nothtor
—that attempts to overreach went for nothing that the e;
tention and design to deceive went for nothing, unless all the)
dishonesty, all that fraud, all that intention and design t°
overreach, and all that dishonesty of purpose, could be ee-e-
-fleeted with the particular transaction, and not only cob;;
nected with the particular transaction, but unless the)
made the very ground on which the transaction took place' sPcs
gave rise to the contract in dispute. If the general inteution f
overreach were sufficient, he hardly knew of any contrAalea
which might not be voided on such grounds. He had hartu;.
ever seen an attempt to get rid of a bargain in a Court of heir
lice in which such an inference might not be drawn. Tad
Lordships Lordships would generally find that in such cases there "ale(
been a fall in the price of the goods between the timelier
making the purchase and coming into Court, or some ~er
circumstance which made it against the interest of the hejito
to perform the contract, but that did not in any case Pet a..
end to the bargain. Their Lordships were aware of the ere
traordinary evidence that was frequently given in whatwelie
i
termed horse cases, or " horse warrantys." In these f try
mere mindedness, or attempt to overreach, was sufficient, cvep;
bargain of such a nature would be put an end to tiallet-
stated these principles, he should now call their Lor:dships
tention to the facts of the case, for which reason he ahttel,
ld
throw out a great deal of what appeared imeletearli-sli
and confine himself entirely to those parts ""er,
were sufficient to decide it. He would observe, bow the
that that would compel him to deal with every one e`
material facts in issue before their Lordships. The first
it was material to consider, was how the bargain and non on
tion arose between the parties—that was to say, the *hrer,
Company on the one hand, and 111 r. Attwood on the e,
He had no doubt that if an agent of the one party, rt.": et
the knowledge of Mr. Attwood, had contracted on lu!a's
with the British Iron Company, and had made false--w".,:ed
false—representations, on which representations they •It-ts e
adhibentis fidem, and had then framed a 'contract, 4
had no hesitation in saying that against that contract a 61,11,0
of Equity would relieve. The agent would not coma' 't "
had
principal to any criminal purpose it he did not know it, or ,
at
not given any authority ; but to the civil fact of stating t, at
the contract was void, he had no doubt whatsoever that Nil'
at
would be given. It was proposed by the Company t-ag
P. Taylor should have every facility for ascertaibaeleo
the correctness of the representations that had olt
made to them respecting the property ; and if the. re in
this inquiry, was not to confirm those representations:r.
every essential particular, the agreement was not to be,ciotehe
dered binding upon them. Now what said Lord fiolt
will go and enquire for himself." What said Lord Chic'
ti' e Tenterden,—" Having been made on the faith of a reylo.,
entation, and on that alone." What saidLordEldon, etan,utho
"
ing a decree of Sir W. Grant—" The falsehood of ahic,rhe
et her party had full means of ascertaining. they
Company took care to make it a condition that .on_
should examine into the truth of the representep rcal
of Attwood themselves. 'Now, this brought him
.„( ess
Brougham) to consider who was Philip Taylor ? First, '1"
I expert mining engineer. Secondly, the projector and fouder

I

I

of the British Iron Company. Thirdly, the holder of 300
Shares in that Company—value 30,0001. probably at prime
cost. Fourthly, the superintending and managing Director.
Fifthly, the Agent of the Company, emphatically with regard
to this business, at a salary of 2,0001. a year, with a liberal
allowance of 6001. for expenses. Could any parties then be
More clearly identified then the Company, and Philip Taylor?
It was coneeivrible, indeed, that P. Taylor might have
abandoned the interest in which he bad so deep a stake, and
become connected with the opposite interest. But hitherto
he and the Company had clearly interests in common, and it
was incumbent upon those who wished to sever him
from the Company--who would divide him from the
buyer, and connect him with the seller—to make the proof
of this separation as clear as daylight, otherwise all the pre-
sumptions in the case were distinctly against them. P. Tay-
lor then had several communications with Attwood, the sub-
stance of which was condensed into the P. T. I paper, as it
was called, which lay very near the foundation of the case, and
Which purported to contain an abstract of Attwood's represen-
tations as to the value of this property—of its capacities for
making iron, and the cost of making the iron—so as to enable
the Company to ascertain the money value of the property,
which they were about to purchase an expellee of somewhere
near five hundred thousand pounds. It was to be ob-
served that Attwood at the commencement of these proceedings
expressed his intention to deal only with P. and with J.
Taylor. Now it was evident that Attwood fully acceded to the i
proposal that the Company should have full opportunity for
examining into the truth of the facts stated by him, and that
their inquiries should not be confined merely to those repre-
sentations; but should be'extended to any depth of investiga-
tion they thought proper. And that Attwood faithfully per-
formed this part of his undertaking could admit of no 'doubt.
It was proved that P. Taylor went down, and fully prosecuted
the investigation into all the circumstances connected with the
Property in question.—[One of the Noble Lords present here
observed that Edward's evidence was rejeetedl. It was quite true
that Edward's evidence was left out, but it was received de bene
ease; and was only to be shut out in case he Os proved to be
a co-conspirator. But in fact he (Lord B. ) did not at all
form his judgment on the evidence of Edwards, but it was
Proved from the evidence of the Directors themselves that the
Learned Lord entered at some length into the evidence
this point. Ho proceeded to observe that towards
Meacend of 1824 a gloom began to overspread the Money
ket, and owing to the Bank having contracted its
every species of shares were greatly depreciated.
Their eyes being opened—being more alive to their own affairs
probably because of the state of the commercial world to
which he had before referred—they determine to go down
themselves. Not content with the representations of Mr.
Attwood himself, they determine to send down their own
agents, and accordingly they send down Philip Taylor, Har-
rison, Brunton, and others—but being more awake to the mat-
ter, they determine not to trust to the representations of their
own agents, they send down a deputation of the directors, and
accordingly Small, Donaldson, and others, go down to not
only the house of Mr. Attwood but to his books, to which
they have every facility of access. They appeared satisfied,
and returned home, but probably because of the increased em-
barrassment in commercial affairs, they show that they are still
more alive and awake to the matter by returning to
Phillip Taylor the P. T. Papers, desiring him to
re-examine as to certain matters, and they accom-
panied thew with the D., or deputation papers; they
are no longer satisfied with the P. T. and D. papers ; they
re-committed them, as it were, to Phillip Taylor, and they
sent down also a list of queries as to certain sums and
quantities. That clearly showed they entered upon the en-
quiry in a business-like manner—it showed that they had
studied and compared the statements of Mr. Attwood and
Phillip Taylor—it showed that they considered themselves fast,
and that they had an intention of making themselves loose if
possible. They refused to enter into the contract upon the
simple statement of Mr. Attwood, and send down their depu-
tion ; not satisfied with the representations of their own agents,
not wishing to incur the imputation of being as Mr. Attwood
was represented to be, a simple, easy sort of man, who saw
with the eyes of others, they determined to see with their
own eyes, and that was a very material part of the case.
He did not mean to say that in no case under such
circumstances, no action for damages would lie, or relief in
equity be granted ; but he would say that it was as clear as
possible that the fraud must be proved in the most clear man-
ner. It would require a very strong, in fact a day-light case,
to gibe a claim to an action for damages on a bill of relief in
equity. What, then, was the result of all these inquiries ?
that was a most important question in the case—they must
look at the result of these inquiries in order to see how the
case stood. He would first call their attention to the letter of
Phillip Taylor, of the date of the 12th October, that was,
after he had been down on the property for a fortnight ; he
then said to his principals that he saw no reason for their
being dissatisfied with their bargain ; the facts which had
come to his knowledge proved that the statements made by
Mr. Attwood were correct ; that the sum paid for the
Corngrcaves property was large, but be would have no diffi-
culty in showing that for smaller properties larger sums in
proportion had been paid ; and after having been five weeks
there he further said he had been constantly examining the booki
of Mr. Attwood, and comparing them with the statement, and
he found that the data given by that gentleman was more fa-
vourable to the buyer than the seller—meaning that the state-
ment gave a larger expense for making a ton of pig iron than
the average shown by the books. That did not show any de-
ception or fraud on the part of Mr. Attwood. In the repre-
aentation given in by Mr. Attwood for the 6 years the pro.
Perty had been in his possession, the quantity of ore required
fora ton of iron was given at three ton two cwt., while the
hooks showed that in the time of John and Mathias Attwood
the quantity was two tons sixteen hundred—that was upon a
nine years average. There was a misrepresentation upon
the part of Mr. Attwood, but it was a misrepresentation
against himself, and in favour of the buyer. So, again, in the
article of coals there Vas a misrepresentation against himself
of two cwt., and in the lime which was required for the
making a ton of pig iron there was even a much greater mis-
representation, fur Mr. Attwood gave the quantity at
1,8201b5., while the books showed an average of only 1,3001b5.
That was not only Phillip Taylor's report to his employer on
which the plaintiffs were to determine whether they would be
bound by the acquiescence they had given to the contract, but
it was a fact in the cause. Phillip Taylor was not the only
person who made that report, but Phillip Brunton, was also
selected by the Company, and Phillip Brunton stated that he
had no hesitation in giving it as his opinion that with a suffi-
cient capital, vigorously and properly applied, an ample return
for the 550,000/. paid for tho property might be produced, This
Was after the fall in shares, and when he knew his employers
were sifting and scrutinising with eagle-eyes the whole
concern. But the Company did not rest upon the statement
of Brunton. A deputation went and looked into the matter
with their own eyes. They went to Corngreaves and Dudley-
wood,
had access to the mines, books, &c., they had the depu-
tation Papers prepared for them, and they themselves made
their report dated 3d November, 1825. Small, Donaldson,
and Lealey, in accordaneo with the resolutions of the Direc-
tors, proceeded to Corngreaves, with Mr. Brunton and others,
and with every diligence and attention examined the books ;
there were no books held back, and they stated that they
came to the conclusion that after a comparison with the papers,
and the calculations on which the negotiation was originally
founded—that was the P. T. paper—they were of opi-
nion Mr. Attwood had substantially redeemed the pledge
he had given of proving that the information on which the
Directors concluded their contract with him was correct and
well-founded. If it could be shown those accounts were false
accounts, then he admitted away went tho evidence of Mr.
Brunton. But a great deal more of the evidence would also
go away with it. At a meeting, in which Mr. Small was in
the Chair, representing the Company, the Directors agreed
to be bound by the result of the inquiries of the deputation on
the spot. He had hoard of time being the essence of a con-
tract, but he thought in this case time became very much the
essence of an attempt to dissolve the contract. There was no
objection made by Mr. Small to the deputation report—no
melius inquirandem talked of—no dissatisfaction or doubt or
hesitation on the part of any of the Directors, hut. they agreed
to pay the 550,000/. in consequence of being satisfied that the
facts upon inquiry bore out the statement reduced into writing
in the P. T. Paper. They continued satisfied, at all events,
down to January, 1826. Shears, in a letter to Foster, stated
that they bad received a satisfactory report from all their own
people, not only from those on the spot, but from those who
had been sent to Pontypool—that was in January. That sa-
tisfaction continued till April, and yet these gentlemen,
who, when it suited their purpose, endeavoured to pick
boles in the statement of the P. T. papers—who, when it was
for their interest, shook themselves loose of the contract—who,
when they were minded, endeavoured to get rid of the obliga-
tion—were, notwithstanding all the inquiries they had made
themselves and their agents—notwithstanding the expression
of satisfaction at the result—endeavouring to get rid of the
contract by retracing their steps, and saying it was all
wrong—that the whole was a mistake—that the P. T.
Paper was a fabrication—that they were wilfully deceived
by blr. Attwood. Yet, notwithstanding all this, as late as
the 20th of April, within a month of the time when the bill
was on the file, they wrote a letter to Mr. Foster, in which
it was stated, should his opinion be as favourable on the benefit
and comfort derivable from its being known would be very
great, because he was not in any way employed by the
,CO pang, except for the purpose of giving an opinion.
That was as much as to say if his opinion was un-
favourable he might keep it to himself, but if his opi-
nion was favourable it would be a great comfort to have it
known. And yet within four weeks of this extraordinary
transaction a bill was put on the file to set aside the contract,
on the express ground that the whole was a fraud from begin-
ning to end—that Taylor had been deceived when he made
!"e in Small, Healey, and Donaldson, bad been
deceived—that the whole was a fabrication from beginning to
ndl He (Lord B.) did not say it was absolutely impossible
ctich a case could occur, but it was necessary it should be as
clear as noon day in order to enable a party either
from recover damages at law or to obtain relief
4.(1.1 his contract. One mode resorted to fox coming to this
conclusion, was that which would strike at the credit of Philip
Taylor, and to which he came next. It was said there was a
i'er7 suspicious connexion between Philip Taylor and Mr.
Attwood, which not only took away the weight of his testimony
but which took away from him all character and credit, because
it entitled the plaintiff to make him a defendant as a conspira-
tor Kith n
laid Attwood. He perfectly agreed with the doctrine
down by his Noble and Learned Friend on the Woolsack,
4," the remarks he had made respecting the making a party
taha_e,endant for the purpose of depriving the real defendant of
'rst l'
ebenefit of the testimony of that party. Well then, in the
th first i
e, t was said Mr. Attwood gave up the furniture of
cos
ttake h avin been 4,0t0001.,
and that p Taylor was to
r it by a bill at s 0 many months renewable. He

( Lord B.) did not set great store upon that transac-
tion—he was the natural person to take the furniture
Mr. Attwood was going out and Mr. Philip Taylor was com-
ing in, therefore the convenience of Mr. Attwood, as well as
the convenience of Philip Taylor and the Company was that
some such circumstance as that should take place. Then the
next was the loan of 6,000/.
Lord WYNFORD-12,0001.
Lord BROUGHAM—No, no. Now you only heard the case
facts of this case. If I know any thing in this world it is the facts
of this case—l heard a great deal of it for 17 days, and I heard
for about five days; and do give me eredit for knowing the
a great deal more than I wish to hear again.—( Laughter.)
My Noble and Learned Friend mentioned 12,0001., but
that was made up of the 4,0001. for the furniture, the
6,0., 00/ the loan, and then there was the 2,0001. He was
required to find the money to meet that call, but he
said that he had it not ; what, then, was the course that he
was bound to adopt ? why he was reduced to the necessity of
trying to sell the shares. Mr. Attwood said, " No, don't do
that, I will send you the money." And why did he do so ?
Why, because he knew that an injury to the Company was an
njury to him, for he had all at stake—no less a sum than
ieeo,ooo/. He knew that such a proceeding as selling the shares
would be fatal to the Company, and it was very natural for Mr.
Attwood to suppose, that if such was the case the Company
might go from their bargain with him. Could there, there-
fore, be any doubt that Mr. Attwood was justified in lending
Taylor the money ? in his (Lord Brougham's) opinion he
would have been very foolish if he had not done so. Look-
ing at all the circumstances of the case, he could not but kelp
thinking that the whole transaction was totally devoid of collusion
or blame on the part of Philip Taylor or Mr. Attwood.
Here the Noble and Learned Lord read several letters that
had passed between the parties, and observed that there could
be no doubt from them that Mr. Attwood was not a man
who was in the habit of granting loans without consideration.
The case put by his Noble and Learned Friend (Lord Lynd-
hurst) was not that Attwood lent Taylor 12,0001., but that he
gave him that sum to induce him to do certain things—to
look with certain eyes—to close them when the lodes were
bad—to open them where the lodes were good—to run over
the books glibly aad unscrutinisingly where they would not
bear examination, and to search them with ostentatious care
where they were correct and bona fide. He ( Lord B.) ventured
to predict that many, who were led away by tke eloquent and
able speech of his Noble and Learned Friend, would suppose
that this money was lent before Taylor made his report of the
12th of October, and his still more ample report of the 30th
of October. He ( Lord Brougham) ventured to predict that
such was the opinion of many, but the fact was quite the re-
verse. Every farthing of the 12,0001. was advanced after all
those reports. After Taylor had gone to Corngreaees ; after
he had inspected the works at Dudley Wood ; after ho had
examined the books; after he had made his report. Now he
(Lord Brougham) thought there was enough to acquit Taylor,
that the reports were made and acted upon in October,
and the money was not lent for months after, namely, in
January and February. He thought that was of itself
sufficient to put Taylor out of the case. The allegation
against the report was, that Taylor was in league with Att-
wood, and that his statement was the statement of Attwood,
teovebetfhaing which wa
false. Now, the
known to
eamended
distinctly Bill
whch tie
pleadedlatt er
knewth
at everything Att-
wood was knowntoPhilTipheTaßylilolr.w a Why,
sdi
un that of
asf
quitted Philip Taylor.
affected him. There could be no objection to that part of the
decree. In point of fact, Taylor was a eo•plaintiff, and his co-
plaintiffs pleaded that Attwood concealed the truth from them,
and upon that statement they applied to be relieved, but they
also pleaded that Taylor, their co-plaintiff, who represented
them, knew every thing that Attwood knew. He (Lord
Brougham) had thought it his duty, in justice to a respectable
man, and in justice to the case, to examine every part of Tay-
lor's conduct, and to see if even after he had received the
accommodation he was influenced by Mr. Attwood's kindness
to become his tool, and to assist him in fraudulent misrepre-
sentation. A man who would be so bribed—who would sell
himself for twelve thousand pounds—would not be de-
serving of much faith for what be had done be-
fore—and, althougsh it would be rather a violent course of
proceeding to establish a kind of backward relation of the loan
with his previous conduct in making his reports, yet he (Lord
B.) could see that such an argument might be used. But he
asked their Lordships to look to Philip Taylor's conduct
afterward. He said of himself afterwards, in a letter upon
the subject of the differences between the Company and the
defendant, " I must do my duty, although 1 should make Mr.
Attwood my enemy." Now he (Lord B.) found that the
man did do his duty, and that the 12,0001. never did make
him swerve from being the creature .of the Company, even
though he did make Mr. Attwood his enemy. On the 16th
of February he wrote to the Directors, saying, " We shall have
large claims on Attwood for repairs," and afterwards when
the Company were in great embarrassments for money, owing
to the difficulties of the times, and their having several other
establishments on their hands at Pontypool and other places,
they were most anxious that Taylor should gain time from
Attwood. In reply to their letter, Taylor said, " I have little
doubt I will carry the point with Attwood." Now that letter
was written with great anxiety from hour to hour whilst he
was waiting for Attwood, and he (Taylor) had concluded
with a postscript, that " Mr. Attwood had come in,
and that he would succeed with bim." Again in a
letter of the 23d of February, Taylor said, " I have
talked long and seriously to Mr. Attwood on the subject
of time, and I believe he will concede pleasantly." The Di-
reefers then wrote to him, that they were well satisfied with
what he had done. But in April they were in another posi-
tion. They could not get the time from Attwood, and they
sought, therefore, to get rid of the whole contract. And with
which of the two parties did Taylor take part ? Was it with
the party which gave him accommodation ? No, with his co-
plaintiffs—and he made Mr. Attwood his enemy. When
it was alleged that there had been misrepresentation on
the part of Attwood, Taylor wrote to the Directors
not to allow Edwards, who was the creature of Att-
wood, to remain at the works, and at the same time he
asked the Directors in what way they wished bins to regu-
late his personal conduct towards Attwood. But he still
expressed a wish that they might not come to extremities—
that is, to a bill in Equity. But when they came to that ex-
tremity, Taylor said, " I have been hunting up evidence for
you, and I find that Attwood has as much reason to fear Ed-
wards as any man has to fear the Devil ; but although you
dismissed him from this place, it is politic to employ him else-
where, as he may be of use to you for your bill." Thus it
was clear, that neither in making his reports before he received
the loan, nor in his subsequent conduct,hadTa3lor been influenced
by the loan to sacrifice his duty to the Company for Attwood's in-
terest. But was that all ? The bill had been dismissed agansf Tay-
lor, which could not have been the case if he was a conspirator;
but, moreover, the Directors passed a resolution honourably
acquitting him of all the charges against him, and that bears
date on the very eve of the commencement of the Exchequer
suit. The result of his full examination of all the evidence
rslative to Philip Taylor led him to believe that the charges
were all false—that the Directors were justified in the vote
they had come to honourably acquitting him—that the Court
was justified in dismissing the Bill, and that nothing aimed at
him save some such matters as the testimony of the witness
Best, to which, as he was the principal evidence of what
Passed at Corngreaves, he (Lord Brougham) thought
it right to say something. Best, it appeared, swore that when
they went down again in spring (they having been there pre-
viously in October), evidently for the purpose of hunting up
evidence to get rid of the contract—at that time, according to
the swearing of Best, in answer to this question, " What will
you do with them when they come ?" replied, " Oh, never
fear what I will do—l will bow them out of the room, and
send them away as wise as they came." He found that his
Noble and Learned Friend who gave judgment below gave
no credit to that part of the testimony of Best, and he ( Lord
Brougham) was surprised that he had given credit to any part
of it. It was impossible such testimony could have been
given by a witness of truth—the answer was quite irreconcila-
ble with the circumstances of the case, the nature of things,
and the state of the Company. He thus found Philip Taylor
relieved under the five heads he had already mentioned—lode,
furniture, advance to pay shares, date, which was the most ma-
terial of all, and lastly, his conduct after the advance of money
he stood acquitted. He then stood acquitted by the dismissal
of the Bill, and last of all, by the resolution of the Directors,
honourably acquitting him. How then did the whole case
stand with reference to the meridian line in principle, which he
had stated, was the reference to all facts. The parties had
agreed to purchase, on the representatian of the seller, as
to the value of the property—that the agreement was not to
be binding unless upon one condition, that they should have full
access to the works and the books to verify his statements.
That access was granted—they sent their agent down, and
Philip Taylor, who had been so clearly acquitted of every
charge, was there for eight weeks, and reported over and over
again to the Directors in favour of the correctness of the ori-
ginal estimate. Not satisfied with that, they sent down Mr.
Brunton, Mr. Foster, and then a deputation, by whom -paper
after paper had been prepared for their examination,
and on the 3d of November they wrote that remarkable
resolution to the Directors that the statements of Mr.
Attwood had been fully borne out by the examination.
Whereupon after striking off 50,0001. of the sum of 600,0001.
originally demanded, the contract was executed. That being
the state of the case, was there ever known an instance in
which under such circumstances the contract had been set
aside under the pretence that it had been originally made
upon false representations ? Still he would not say that even
in such
twhoevyehy froman cniages
ne
optraharent
yree,o
amonfidgmh
sti
pnnri
neoagt
dbe such a web of falsehood
concernsarouud (tNhier.oAthtetrtn,
o ad
sb
et nagt
an iron master, and they not) or from his greater cunning, or from
having a greater number of agents, or his having the books in
his possession, some of which he might select, and others keep
back, or from his mixing up estimates and statements—from all
these things together, he would not take upon himself to say
that in some conceivable though difficult and rare, and hardly
possible circumstances, such a case might not occur as would
induce that Court to interfere. But he must say, as he had
stated at the outset, that he had never heard of such a case—
that if it did occur, it must be perfectly clear, and with-
out the shadow of a doubt ; as for instance, when books
had been proved to have been kept back—when fabri-
cated accounts had been brought forward to give the
affair a false colouring ; as, for instance, when falsehoods had
been told, and had been proved to be false, and false to the
knowledge of the person making them, for that also was ma-
terial. The contract was not the result of any statement made
by Mr. Attwood, but the result of several conversations, none
of which had been reduced to writing at the time. Another
point which, in his mind, was very material, although it had
not been sufficiently dwelt upon, was the conduct of Mr. Att-
wood with respect to that paper. That was the composition
of Philip Taylor, and there was not a tittle of evi-
dence to show that it had been shown to Mr. Attwood at the
time it was written. They should have shown it to him and
. asked him was that a correct statement of the concern? Sup-

pose Mr. Attwood had been disposed to act dishonestly, he
must have known that he had told a falsehood to Philip Taylor,
which had been reduced to writing, and which•was the ground-
work of the contract, and that he would be afterwards reproached
vita it. Mr. Attwood might, if he intended to act falsely, have
easily said "the P. T. papers are not correct, I am not bound by
them." There was one material point, for instance, in these
papers, stating the price of iron-stone, particularly Wolver-
hampton iron-stone, at I Is. 4d., that included what was called
the "dead work :" how easy was it for Mr. Attwood to have
said that in this calculation the dead work was or was not in-
cluded, just as suited his purpose. No such thing. He at
once adopted the paper, he offers to throw open his hooks,
and does throw open his books, for the purpose of verifying
the statements that paper contained. He (Lord Brougham)
must say this looked very much like the proceeding of an ho-
nest man. A question arose as to whether the calculations
the paper contained were estimates, or statements, of ex-
penses. He ( Lord B.) thought they could not be considered
as statements of the actual expenses—(the furnaces, for in-
stance, of which they spoke, were not then in existence)
—but as estimates of what would be the probable ex-
penses of the iron works, &c. With respect to the D.
papers, Harrison's evidence went distinctly to prove that
they were to be taken as estimates, not statements.
But then it was said, and justly, that if the data on which all
these calculations were founded were false—and if Mr. Att-
wood knew them to be false—he might be charged with de-
ception. And it was contended that this was in fact the case.
The most important allegation on this point was, that Mr.
Attwood bad suppressed certain of the books. It was con-
tended that this was proved from the fact that in some of the
papers books were referred to—and that the books to which
these references were made, were witheld. Now it was
necessary to enter into this point ; though he (Lord B.) had
alreadyldetained their Lordships and the parties too long__
necessarily, however, from the nature of the case. The first
complaint was the suppression of the iron ledger, and it con-
tained the names of Palmer, Corrie, and others. When the
book was looked at, they turned out to be perfectly imma-
terial to the cause—as much so, as if it was a song-book.
Philip Taylor had access to all the books, and he said
that the books only shewed the customers of the Company, and
told that such a one had bought so much iron—certainly such
a book was of no importance to the cause. The third sort of
books which were said to be suppressed were the bankers'
books ; the production of these books would not tend to throw
one single ray of light upon the dark points of the case. The
manner in which it was sworn that books concerning the bu-
siness and concerns of Mr. Attwood had been suppressed, was
very loose. Wilkinson and Dangerfield both swore that
certain books and papers were in existence, but they care-
fully abtained from saying that they were at all necessary
for the elucidation of the case. The next papers charged
with being suppressed were the stock papers ; but there was
no evidence to show that Mr. Attwood knew anything of
them. It was said that there were stock papers in existence
and that they were kept back. That was a direct charge of
fraud—a charge of keeping back books which would prove
the untruth of Mr. Attwood. These charges were general,
and were put in by rote in every Bill in Equity. There was,
however, much to complain of—in the Bill there was
not a word charged with respect to the suppres-
sion of the stock papers. The defendant's attention
ought to have been called to that fact. After the bill had
been filed, the solicitor to the Company, writing to Mr. Att-
wood or his solicitor, distinctly stated that stock papers had
been in existence—that showed that their attention had been
called to the matter, yet in the amended bill there was not ono
word said respecting the Stock Papers. The defendant ha i
a right to complain of this ; he was thereby refused the oppor-
tunity of explaining the matter or of defending himself. There
was a charge of general fraud against Mr. Attwood while the
deputation was down—Edwards was charged with having
come out and said, " I have passed through my ordeal, it will
be your's next." Again, on corning out, he was charged with
saying, " The d—d old fools," &c. Mr. Attwood was
charged, and it would be material if proved, with ordering him
to go in and say, if they did not complete the contract he had
some one else who would pay down the money. None of
these charges appeared in the Bill, and therefore Mr.
Attwood was prevented from doing, as probably he
could do, give an innocent meaning to the expressions.
What had been said on this subject, by Judges in Courts of
Equity? In a case in 6 Vesey, 374, Lord Eldon said the Bill
ought, with a reasonable certainty, to put in issue the
allegation of fraud or misconduct, on which it was in-
tended by the party to rely. Chief Baron Alexander, in
Hall and Maltby, 6 Price, said it was too much for a
defendant to be overpowered by evi lence of which he had
no idea from the statements in the Bill, would be brought
forward at the hearing, and which, if he had been aware
of he might be able to explain. Those cases strictly applied
to the present. The facts were carefully excluded from the
bill in this case. This lead him to notice what had been
stated by his Noble and Learned Friend that Mr. Attwood
did not exhibit interrogatories on the points to sows) persons,
particularly Best, James, and Edwards.
Lord Lymnnußsr—Not Best.

Lord BROCGITAM—WeII, James and Edwards. But there
had been no matter put in issue which enabled
Mr. Attwood to exhibit those interrogatories. Ile
( Lord Brougham) had now gone through the alleged
suppression of books and stock papers, and he had shown there
was not a tittle of evidence bringing home to Mr. Attwood
the knowledge of any one book or stock paper having been
suppressed. Ho would now go to all that remained, whether
there was a positive misstatement, and upon that he had now
to remind their Lordships, in the first place, of the fair con-
duct which he had shown was pursued by Mr. Attwood in re-
spect to the P. T. papers. The average of nine years was not
3 tons and 18cwt., but 2 tons ani 1 6cwt. Their Lordships would
also bear in mind the observation he made on a former part of
the case, of Mr. Attwood's being accustomed to look very
little into the exact amount of profits, not even to look sharply
to see whether he was imposed on. But their Lordships
would also find that after having been in possession so long,
the Company themselves could nit produce their yields—after
all their better means of knowledge when they had their atten-
tion called to it—in the end it was all as much a matter of
calculation and supposition as any of the P. T. papers
All this was very much in favour of the accuracy of Mr. Att-
wood, but repelled the accusation of any fraudulent design.
Then there was a good deal said about the experiments,
and here he could not avoid mentioning what he had
abstained from doing before, thinking it might be invi-
dious to notice it on another part of the case. That was
made a subject matter of indictment. While the bill in
equity was filed and going on it was deemed more expe-
dient for the plaintiffs in equity to become prosecutors at law,
and accordingly they framed an indictment for perjury in
the answer—on the ground that there was a fault
in the mine concealed from the purchaser and, second-
ly, that there were experiments alleged to have been
made which were not made. After a trial of
two days, in which he (Lord Brougham) was counsel, in the
King's Bench, Mr. Attwood was acquitted of all those
charges. After that much could not be said on the
faults of the mines, or of the experiments. Then he
came, last of all, to that on which he had
already commented, whether or not that representation re-
specting the Wolverhampton iron was a wilful misrepresen-
tation, inasmuch as they had given evidence that it was
151, instead of 114 and 114. He had examined this with
great care, and had come to the same conclusion which
his Noble and Learned Friend on the Woolsack had come.
The ground upon which he came to that conclusion was, that
Mr. Attwood, instead of denying, adopted the T. P. paper.
The next was, that the pay-books were open to Philip Tay-
lor, to John Harrison, and the three Directors who went
down to Corngreas es, the inspection of which would have
detected any misrepresentation. The third and last
ground was, that it did not appear probable to him
that the dead weight had bet n included. He had now
gone through the various points which were involved in
the case, and it only remained for him, before he concluded,
to advert to one or two particulars, not distinctly bearing upon
the case, but as they tended to bear on the judgment
they might be adverted to. First, with respect to
the fault in the mine—there could be no doubt if the
parties had done their duty that might have been disco-
vered long ago. Then with respect to the experiments—
if they had been properly made, any fault that might have
existed would have been detected. Then as to the
loans—they were made long after the evidence of Philip Tay-
lor had been given. He had now gone through the whole
facts of this long and very laborious case ; he had done so
because he stood in the peculiar situation of not having heard
the whole of the case—but having read the whole of the evi-
dence, and all the arguments, he had come to the
opinion he had done without the least doubt. He felt
that his opinion was attended with more weight than it
deserved, but standing in the situation he did, ho felt bound
to employ his time, hour after hour, arid night after night, in
order to see on which side the justice of the case was. After
having done so, stripping the question of all declamatory
matter
of all surmise and suspicion, endeavouring to press through
the vagueness that surrounded the case, and endeavouring to
get at the principles of the case, ho had come to the conclu-
sion, that the course adopted by Mr. Attwood was withou
complaint, and could not be quarrelled with, looking at the dif-
ferent circumstances that had taken place. The parties were
not satisfied with the course pursued by the deputation.
They even instituted a fresh inquiry, and sent down another
agent, Mr. Foster, who reported in favour of Mr. Attwood's
representations. Such being the facts, -(said the Noble and
Learned Lord) even though no observation arose as to the
delay in filing this Bill, I ask myself this question—which it,
the cardinal point on which my judgment must hinge—ha',
this party a right to be freed from the contract by the interfe
rence of a Court of Equity ? lam bound to say No ; and I
am bound, therefore, to give my opinion to your Lordships that
the case of the plaintiff has failed, and I am of opinion that
the judgment of the Court below ought to be reversed.
Lord WYNFORD had heard an illustrious Counsel four days,
in support of the appeal, and when that Counsel failed to
shake the perspicuous judgment of his Noble and Learned
Friend (Lord Lyndhurst), he was of opinion that that judg-
ment never could be shaken. He did not think that the House
could decide without further assistance, and although he shouhl
move that an issue be directed, yet, if he was to decide
upon the case as it then stood, he should vote in favour
of the judgment of his Noble and Learned Friend behind him.
In his opinion, fraud could not be more distinctly imputed to
Mr. Attwood than it was in the charging part of the Bill. II
parties were induced to enter into a contract by false and
fraudulent representation, that appeared to him to be a suffi-
cient ground for a Court of Equity setting the contract aside.
If the party purchasing was not satisfied with the representa-
tions of the vendor, but investigated the matter himself, and
if he had been prevented from making that full inquiry which
was necessary to establish the truth of the representations
made—in such case their Lordships could have no doubt
of the power of a Court of Equity to interfere, and
set that contract aside. No one could doubt that