makes an actual entry, the goods must be removed within a reasonable time; if not, they will become his property, and he may recover them if they are afterwards removed (r).

In mining leases, time is usually given for this purpose beyond the term. Other stipulations are also often made with respect to materials and fixtures.

In a case, where the lessor demised land and salt mines, with power to make warehouses and quays, salt pits, and other works, and a certain rent was reserved for every salt pan then or to be erected, and made use of by the lessee, and the lessee covenanted to leave all such buildings, quays, and works in good repair, it was held, that the lessee could not remove salt pans erected by him during the term (s).

(r) Weeton v. Woodcock, 7 M. & W. 14.

(s) Earl of Mansfield v. Black

burne, 3 Scott, N. S., 820; 6 Bing. N. C. 426.

N

CHAPTER VII.

THE SALE OF MINES AND SHARES-SPECIFIC PERFORMANCE.

A PURCHASER of an estate is not bound to acquaint a vendor with any latent advantage in the estate; for a concealment of this kind may amount to moral culpability without becoming a fraud which can be brought within legal cognizance. For a court of law or equity cannot undertake the performance of duties which may imperfectly bind the conscience (I).

If there be no positive obligation to disclosure, arising from the impossibility of otherwise procuring the knowledge of facts, or from some equally stringent cause, a vendor cannot complain, if his own sense and opportunity have failed to perceive advantages which a purchaser has apprehended. Thus, it was held by Lord Thurlow, that if A., knowing there is a mine in the land of B., of which he knows B. to be ignorant, should, concealing the fact, enter into a contract to purchase the land for a price, which the estate would be worth without considering the mine, the contract would be good, because A., as the buyer, is not obliged, from the nature of the contract, to make the discovery. In such cases, the question is not, whether an advantage has been taken, which in point of morals is wrong, or which a man of delicacy would not have entered into. It is essentially necessary, in order to set aside the transaction, not only that a great advantage should be taken, but

(I) A casuist might rely on this scriptural text:-" The kingdom of heaven is like unto treasure hid in a field; the which, when a man hath found, he hideth, and for joy thereof goeth and selleth all that he hath, and buyeth that field." St. Matt. xiii. 44.

it must arise from some obligation to make the discovery. The Court would not correct a contract, merely because a man of nice honour would not have entered into it; it must fall within some definition of fraud; the rule must be drawn so as not to affect the general transactions of mankind (a).

In such cases, therefore, a purchaser may preserve silence, and content himself with simply expressing the truth. Aliud est celare, aliud tacere (b). But it was remarked by Lord Eldon, that very little is sufficient to affect the application of the principle; if a single word is dropped which tends to mislead the vendor, the rule will not be allowed to operate (c).

On the other hand, if a vendor make false representations to a purchaser with respect to the advantages of an investment, it will amount to fraud, and the purchaser may be relieved in equity by a decree for setting aside the contract, or even the conveyance (d).

In the great case of Small v. Attwood (e), the vendor was charged with making or authorizing false statements, upon a treaty for the purchase of extensive iron mines and iron works, with respect to the cost of manufactured pig iron. The contract was silent upon the subject. A difference of 16s. per ton was stated to exist between the explanations of the defendant and the actual cost. This would have produced a difference of 14,000l. a year in the accounts of the concern. Similar misstatements were charged with respect to the conversion of the metal into refined iron, blooms, and rods. Lord Lyndhurst, C. B., decided, that a case of misstatement with the knowledge of the party, in other words, that a case of fraud had been proved against the defendant, and that the contract should be rescinded. But it was ultimately decided in the House of Lords, that such a case was not sufficiently proved.

(a) Fox v. Mackreth, 2 Bro. C. C. 420.

(b) Cicero, De Off., lib. 3, c. 12.
(c) Turner v. Harvey, Jac. 178.

See also Deane v. Rastron, 1 Anst. 64; Brealey v. Collins, You. 317.

(d) Edwards v. M'Leay, Coop. 308. (e) 1 You. 407; 6 Cl. & Fin. 232.

In the above case, there was a disturbance of the stratification in an important part of the coal mines, amounting either to an actual fault, or producing similar consequences. The defect was discovered some months previous to the conclusion of the negotiation. The defendant did not sanction this concealment, but he was aware of the defect, and evaded the questions put with respect to the mine being a perfect mine. But the learned judge held, that the purchasers, in taking possession, must have known immediately the circumstances connected with the fault, and that it was too late, after the expiration of six months, to file a bill for setting aside the contract (f).

In like manner, a purchaser will not generally be relieved, if his inquiries or his conduct have not been prudent or proper.

A bill was filed, in Ireland, to enforce payment of the residue of the purchase-money for a lease of mines to a company, which had been in possession for three years. A cross bill was filed by the company, praying relief from the purchase, on the ground that the lessor and the lessee (who was in effect the company) had joined in fraudulent misrepresentations. Upon an appeal from the decree made in the original bill, which was affirmed, it was held, in the House of Lords, per Lord Cottenham, C., that the alleged ground of fraud could not sustain the cross bill. He referred to the distinction between what was necessary to resist a suit for specific performance of a contract, and a suit to set aside a deed executed and an arrangement completed. It was urged that the lease was not binding on the company, because the terms were not according to the previous written contract. The facts failed, but he would have had to show that the company were not competent to vary the terms, and that the acceptance of the deed, as it stood, and the acting under it in the enjoyment and actual consumption of the property from that time, ought to have no effect in precluding them from their raising such a case for relief. (ƒ) 1 You. 503.

In a case depending on alleged misrepresentations as to the nature and value of the thing purchased, the defendant could not adduce more conclusive evidence, than by showing that the plaintiff was from the beginning cognizant of all the matters complained of, or, after full information, continued to deal with the property, and even to exhaust it in the enjoyment, as by working mines (g).

In an action of assumpsit for purchase-money, which had been paid, it appeared the plaintiff had purchased many shares in a supposed joint-stock mining company, in consequence of newspaper advertisements, and of representations made to him by the agents of the defendants. After the purchase was completed, he discovered these statements and representations to be fraudulent, and the whole scheme a deception. It appeared, however, on the trial, that after these transactions, the plaintiff had formed a new company, by consolidating the shares with other property, and that he had sold shares in this new company, and realized a large sum of money. Further evidence of fraud was proved by the plaintiff at the time of the original purchase with respect to the actual amount of outlay incurred, which he had not discovered till after he had disposed of the shares in the new company. It was held, that the plaintiff, knowing of the fraud, had elected to take the contract, and had lost his right of rescinding it, and that the discovery of the new fraud did not revive the right of repudiation (h).

In another case, it was alleged that several specified untrue representations had been made to the purchaser with respect to the number of working levels, the yield of ore, and the actual state of the mines. The mine was proposed cost-book plan. It was

to be worked in shares on the proved that the plaintiff took an active part in settling the minutes of a meeting and the rules of the company, but that he declined to sign them with the defendants, who were managers, and who had signed. But he took shares,

(g) Vigers v. Pike, 8 Cl. & Fin. 562; 2 Dru. & W. 1.

(h) Campbell v. Fleming, 1 Ad. & E. 40.