The Sun.
London, England, 1838-07-23 00:00:00

CARTER V. GOETZE .----JUDGM ENT.

The bill in this case prayed a declaration that the defendant procured-
the plaintiff to execute certain articks of agreement by misrenresenta-•
tion and fraud ; that such articles were fraudulent, and void as against
the plaintiff; that the same might be ordered to be caneelledeand that
the defendant might be restrained from prosecuting an action he had
commenced for the non.performance cf the azeeeirent. The bill alleged
the defendant reliresented himself to be IIf,E.Q.Z.Sed of a secret mode
of mahing steruyna, and of refining oil in the manufaeture cf
sterbyne; that Le proposed to communicate such secret to the
plaintiff on certain terms, to which the plaintifr agreed; and in
1636, an agreement Was executed between the plaintifi' and defendant,
by which it was agreed that the defendant solicit!, within a fortnight,
coii;•ert, on the prerMses, a ,ulllcierit quantity of atimal and vegrtebie
matter into sturbyne and maned oil, in such a way as to enable the
plaintiff to ascertain the eN;iense thereof, as far as could be without
disclesMg the secret; and if the sterbyne and oil manufactured
should net, the .oprricn of the pLintiff, or the referees to be
appoint,d in case the plaintiff and the defend:re t should differ,
be equal •in quality to a specimen referred to, the plaintiff might
put an end to the agreeinent ; but if no attempt was made to
determine the agreement, the agreement was to continue in force for
seven years, and the defendant was within a fortnight after the Ist of
Febreary, on the decision of the referees, to furnish the Vaintilf with a
written statement of particulars of the secret, and to in,truct the plain.
tifFand his son in the use of the same. The plaintiff was to manufac.

ture a cert in quantity, to keep regular ace,unts, and to make certain
proportionate payments to the defendant, and both parries convenanted
they would not, without the consent cf the other, divulge the secret,
and woul,l crake a careful use of the smie, with a v is pr,vent
closure. The bill then alleged the defendant in pursuance of the
agreement attempted to iranufa?ture sterbyne anti refined oil accord-
ing to his allcgal secret inttlictl, but that the experiment failed,
and that the defendant was not in fact in possession of any secret—that
he was tillable to manufncture steibyne, artificial spermaceti, and re-
fitted oil, and was ignorant of the suede of making the slime. The
fur tlm• alleged tied, relying on the repre,entatis of the de-
fendant, anti bring deceived thereby, he did ru,t put an end to
the agr;:ement, but that tire defendant procured him to execute
the articles of agreement by representing he was possessed of
a secret which in fact he was not, and that no such secret was
ever communicated. On these grounds the plaintiff c!amed to
be relieved from the contract. - To this buil the defendant
put in a demurrer and answer. The demurrer was so much of the bill
as sought a disclosure of the alleged secret, or of anything which might
lead to such disclosure. The answer was to the rest-of the discovery,
and to all the relief sought by the bill. All the alleged fraud was denied
by the answer, and in support of the demurrer it was argued, the plain-
tiff, having covenanted not to divulge the secret, was not entitled to call
fur a disclosure of it to all the world by filing a bill in equity. _

The alas Tan of the ROLLS, in giving judgment, said the plain.
tiff ought to be at liberty to establish the case of fraud if he
could; and if it wore true that the only mode In which
such a fraud could be established was to compare that which
the defendant a:leged to be his secret, with that which was commonly or
previously known to other persons, it would seem a disclosure was nec,es_
sary, even for the trial of the cease. As the defendant had not demurred
to the relief, the plaintiff was at liberty to prove all the facts necessary
for establi,hirg Iris case, that fraudulent representations had beers made.
lie was also at liberty to require the usual discovery, unless the defendant
was entitled to some particular exemie ion ; and it was dilacult to see how
the defendant could rely on the agreement as affordiag him exemption in
a case where the validity of tire agreement was the very question at issue
between the parties. If a men made a va:uable discovery in manufacture
and chose to keep it eezret, he might avail him,elf of that secret in any
lawful way for his owo profit, either by himself or the aid of those in
whom he confided ; or if he chose to disclose tile secret which he pos-
sessed, he might secure to himself the advantage afforded by a patent,
but he could not ptocure another person to enter into an engagement
with him, by alleging he had a secret, without at the same time subject-
ing himself to an enquiry whether there was a secret or not ; and such
an enquiry could not be conducted without leading to a disclosure of the
secret. A man by entering into such a contract, did not mean to deprive
himself or the benefit of the law ; and if the law was appealed to, the Court
could not deal with the parties without instituting an enquiry whether
it was a secret or not. On these grounds it did not appear to his Lord-
ship the defence could be sustained, even if brought forward in a man-
ner free front objection in point of form. If the agreement was valid,
there would, as between these parties, be a secret which ought to be
preserved; but the bill alleged there was no secret, and the defence
that there was a secret was not stated by way of plea, which would jus-
tify a partial demurrer, but by way of answer covered by demurrer;
and it was a demurrer to discovery, without being a demurrer to relief;
a demurrer, as Lord Thurlow had expressed h, " not to the thing re-
quired, but to the means by which the thing was to he obtained." On
the whole his, Lordship was of opinion that the demurrer must be over.
ruled.