John Attwood, - Appellant; Robert Small, James Henry Shears, Francis Baily, Michael Bland, James Burton, Thomas Frederick Colby, Stuart Donaldson, Charles Herring, Charles Kerr, Hart Logan, James Mackillop, John Morice, Charles Saville Onley, John Small, William Leathley, John Taylor, Henry James, and Richard Edwards, - Respondents

[232] APPEAL from the court of exchequer in equity. JOHN ATTWOOD,-Appellant; ROBERT SMALL, JAMES HENRY SHEARS, FRANCIS BAILT, MICHAEL BLAND, JAMES BURTON, THOMAS FREDERICK COLBY, STUART DONALDSON, CHARLES HERRING, CHARLES KERR, HART LOGAN, JAMES MACKILLOP, JOHN MORICE, CHARLES SAVILLE ONLEY, JOHN SMALL, WILLIAM LEATHLEY, JOHN TAYLOR, HENRY JAMES, and RICHARD EDWARDS,-Respondents [June and July, 1835; May, June, July, and August, 1836; March 22, 26, 1838]. [Mews' Dig. i. 338, 348, 358 ; iii. 861; iv. 789 ; vi. 719, 802 ; vii. 171, 387; xi. 45, 102, 684 ATT WOOD V. SMALL [1835-40] VI CLARK & FINNELLY. 1114 ;xiv. 1241, 1246, 1314; S.C. 2 Jur. 200, 226, 246; 8 L. J. Ch. 145; and, in Court below, Younge, 407. Considered, on question as to misrepresentation, in Central By. Co. of Venezuela v. Kisch, 1867, L.R. 2 H.L. 121; Redgrave v. Hurd, 1881, 20 Ch. D. 2; Boots v. Snelling, 1883, 48 L.T. 218 ; see also Other v. Smurth-wmte, 1868, L.R. 5 Eq. 442.] 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 [233] 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, de* clared 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 o f 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 Cl. 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 envptor, 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, afiected 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 [234] if ever allowed, it should be met by directing an issue (ib. 352, 433, 466, and 532). 685 VI CLARK & FINNELLY. ATTWOOD V. SMALL [1835-40] Circumstances in which it would be proper to direct issues (ib. 442, 443, 499, et seq., and also 532). Semble, 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 a,n 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 nob 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 [235] 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 At1 wood, 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," [236] 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...