knowing they were shareholders, must be taken to have waived all objection to them; The Corporation of Sutton Coldfield v. Wilson (i), Scott v. Fenwick (k), Moorhouse v. De Passou (1), Murray v. Shadwell (m), Ellis v. Deane (n). All these cases are consistent on this point, that, at law or in equity, if a party knows that a witness for his adversary is interested in the subject of the suit, and notwithstanding cross-examines him on the merits, he is held to have waived the objection on the ground of interest, and is precluded from objecting to his evidence at the hearing. Besides, it may happen that, though the witnesses were shareholders, they may have sold out, or their interest in the mines is extinguished by the prior incumbrances. There are cases in which this House held the evidence of shareholders to be admissible for their partnership; Syme v. Browne (o). Mr. Pemberton and Mr. Jacob, for the Respondents:-The objection to Foster's evidence, on the ground of interest, was not waived by the cross-examination; Harrison v. Courtaud (p). There must be some mistake in the case of Ellis v. Deane (q); it appears to be reported ex relatione, and there are some doctrines in it which could not have fallen from Sir A. Hart; as the same objection to evidence had been frequently taken before him, and allowed, when he was Vice-Chancellor. In equity, the witness's answers cannot be known to a party before or during cross-examination. The interrogatories must be put; and whether he is interested or not cannot be ascertained until after publication has passed. The first (i) 1 Vern. 254. (k) Gwill. 1250. (2) 19 Ves. 433; Coop. 300. (m) 2 V. & B. 401. (n) 3 Molloy, 48. 1840. VIGERS v. PIKE. 1840. VIGERS v. PIKE. opportunity a party has to object to the depositions of an objectionable witness, is at the hearing; and there Foster's evidence was objected to, and was properly rejected. The main question on the merits in this case is, whether Lord Audley was guilty of fraud in his contract with the West Cork Mining Company. It is imputed to him that he wilfully misrepresented the quantity and quality of the mines, particularly the copper ore, the slates, and manganese. Now could Lord Audley entertain any other opinion of the mines than what he represented? In 1819, soon after succeeding to these estates, he employed Mr. Griffith, an engineer and geologist, of unquestionable reputation and practical knowledge of mines and minerals, to analyse the ores found on the estates, and afterwards to examine the mines generally: that gentleman accordingly analysed, examined, and reported more than once. The reports by him, and by several other scientific and practical persons, upon the nature, extent, and value of these mines, are printed among the large pile of documents laid before the House in this cause; and it was from them Lord Audley had his knowledge and made his representations of the value of his property. Those gentlemen were not all employed by his Lordship, and none had any motive to exaggerate the capability of the mines: some were employed by the Commissioners for Public Works: some by the Irish Mining Company. Whether their reports were true or false, whether the mines were as valuable as the reports represented, is not material ; either way they serve to show what must have been Lord Audley's opinion of the mines; which was at one time so high that he asked 500,000l. of the Irish Mining Company. That company being anxious to have the mines, but at a depreciated value, deputed Mr. Weaver to examine them for that purpose. Upon his report the company agreed to give Lord Audley a clear royalty of one-twelfth of the produce of the working. That the company was well satisfied with the mines is evident from the half-yearly reports made by them from 1824 to 1829. Lord Audley was not so well satisfied with their slow and inefficient mode of working; they did not employ sufficient capital, nor did they open more than one or two mines; but so convinced was his Lordship of their richness, that he offered 40,000l. for a surrender of the company's lease. That negotiation was broken off by the company; and when they afterwards agreed to the surrender, apparently without consideration, they had then taken more than 40,000 l. worth of ore out of the mines. The Appellant, in his cross bill on behalf of the West Cork Mining Company, does not complain that the company was deceived by Lord Audley's representations. The state of the record and the evidence for the company are inconsistent with the relief prayed. Whatever title shareholders in the company may have to relief against the persons who deluded them, the company certainly has no such title on this record. Pike, the plaintiff in the original bill, suing the company as executor of Lord Audley, is a defendant to that bill as a partner in the company, as much as any other member of the company. So again, in the cross bill, Pike as one of the company is plaintiff against himself in his character of executor of Lord Audley. Vigers does not sue by the cross bill as an individual shareholder complaining of being inveigled into the purchase of shares; but he represents the company, every member of which is a co-plaintiff, 1840 VIGERS v. PIKE. 1840. VIGERS V. РІКЕ. even those members who are therein charged to have been concerned with Lord Audley in the alleged frauds on the company. The real defendant to the cross bill is the present Lord Audley, who has taken out probate of his father's will and is his personal representative, and he may now repudiate Pike altogether. But Pike, who was the agent of the company, and who represented the company in the contract with Lord Audley, is now charged by the company's bill with being in collusion with Lord Audley to deceive himself. It is not alleged that Pike was deceived by Lord Audley. All the directors as well as Pike were parties to the alleged fraud: they represented the company; they were themselves the company. The fraud, in this state of the record, was practised by the company itself, if practised at all. Who then can complain of the fraud? Not the company, but the innocent shareholders, who certainly might file a bill against the directors; Hichens v. Congreve (r). All the allegations of fraud in the cross bill are against Pike, the agent of the company; and the more the company blacken Pike, the more they disentitle themselves to relief. But if the frame of the cross bill shall be sustained, what is to be done with the prayer, which was no better understood by the counsel in Ireland than it is here? First, can this House or the Court below reduce the purchase money, so far setting aside the agreement, and yet order the leases to be confirmed, or a new lease to be granted? Can the agreement be maintained in part, and annulled in part? Or can the whole transaction be set aside after the company has, all this time, not only retained possession of the mines, but continued working them to exhaustion? Let it be remembered that the Respondent's suit is not for (r) 4 Russ. 562, specific performance, but for the recovery of the purchase money, upon an agreement executed; and he might have proceeded to recover it by action at law, were it not that accounts are to be taken and a lien enforced for the balance that may be found due; which can be done only in a Court of Equity. The case attempted to be made against Pike is, that he was the agent of Lord Audley at the time of the negotiation for the lease. That case has completely failed: he distinctly denies in his answer that he was such agent, and his denial is borne out by the evidence of Thomas Pike and of Fourdrinier, the secretary of the company. The great object Pike had, and the stimulus to his exertions to form the company, were the large patronage and salary he was securing to himself as managing director of the company. These motives are adequate to explain his whole conduct in these transactions. Why should he agree to give more for the mines than he conceived them to be worth? His opinion of their value, like Lord Audley's, was derived from the reports previously made, which justified every paragraph in the prospectus. The great use and intent of a prospectus is to put persons on inquiry; Scott v. Hanson (s). The gentlemen who made the reports were named in the prospectus; they were not obscure persons, but well known; and the shareholders might have easily applied to them to know whether the statements in the prospectus were true or not. There was one error; namely, that Mr. Griffith made a report in 1826, whereas he made no report since 1821. The question is not whether these statements were true or not, or whether the mines were worth 165,000l. or less; but whether Lord Audley was of opinion that they were worth that sum. (s) 1 Simons, 14. A 1840. VIGERS v. PIKE. |