1906. O'Connor to proceed in formâ pauperis, and the security was H. C. or A. reduced to £1. The proper method, if the appellant has property and should pay the costs, is to apply to have him dispaupered; BROWN but we will not grant leave to apply to dispauper, as we think this litigation has gone on long enough. paid into Court. You will get the £1 V. BROWN. Griffith C.J. Practice-New trial-Trial with jury-Misdirection-Fraud-Amendment of H. C. OF A. pleadings before High Court. In an action tried with a jury, the plaintiff sought to have a certain contract set aside on the ground of a conspiracy to defraud him. The case was left to the jury generally, and they found for the defendants. No objection was taken at the time to the Judge not having put specific questions to the jury. Held, that the plaintiff was not entitled to a new trial on the ground of misdirection. Quare, whether, under the circumstances, the plaintiff was, on the hearing of the appeal before the High Court, entitled to amend his pleadings in order to raise a new case suggested to be disclosed by the evidence, and to have a new trial. By consent, and subject to terms, order of the Supreme Court of Western Australia varied. 1906. PERTH, Oct. 29, 30, 31. Griffith C.J., H. C. OF A. 1906. RICH 2'. STRELITZ BROS. AND The plaintiff, a dealer in bark, being in difficulties with his bark-stripping contractors and with the firm that was financing him, went to the defendants, Strelitz Bros., for assistance, and was by them referred to the defendant Moss, who helped him out of his difficulties. Moss, who in reality was the agent of Strelitz Bros. in the whole transaction, except for about £500 of his own, exacted from plaintiff very stringent terms in a mortgage and contemporaneous agreement, controlling the disposal of all bark coming through the plaintiff's hands, and the distribution of the proceeds to be derived from selling the bark and from a right of action which the plaintiff had against his former financial backers for not accepting delivery of the bark, which they were under contract to buy from him at a fixed price. After the defendant Moss had advanced about £26,000 in relieving plaintiff, and in obtaining and marketing the bark, tenders were on Moss's advice called for the purchase of the whole quantity in one lot, and the tender of the defendants Strelitz Bros. was accepted for about £17,000, thus leaving the plaintiff heavily indebted under the mortgage and agreement. Plaintiff, having made a claim against his former backers, and compromised it for £3,000, brought the present action against Strelitz Bros. and Moss as joint defendants in which, after setting out in detail the facts on which he relied, he claimed to have the agreement cancelled and the sale of the bark to Strelitz Bros. set aside, and for an account of their profits from the re-sale of the bark. At the trial the case was treated as a charge of a conspiracy by the defendants to defraud the plaintiff, and the jury were, in effect, asked whether they believed the plaintiff's version of the facts or the defendants'. They found for the defendants, and judgment was entered for them. The plaintiff moved for a new trial on the grounds that the jury were misdirected, and that the Judge should have asked them certain questions (which are set out in the judgment of Griffith C.J.) This was refused by the Supreme Court, and the plaintiff appealed to the High Court. Haynes K.C. and Robinson, for the appellant. This action is brought by a mortgagor to set aside a sale made to mortgagees, because effected under pressure and by the advice of the mort 1906. gagee's solicitor. The mortgagor had no independent advice, and H. C. OF A. the sale was at an undervalue. The plaintiff is entitled to the profits made on the resale of the bark. RICH STRELITZ Moss. [GRIFFITH C.J.--You suggest that the question is whether the sale to the mortgagees was effected with the full knowledge and BROS. AND consent of the mortgagor, or under concealment and oppression.] That question was never put to the jury; there has been a complete mistrial; it was wrong of the Judge to put it to the jury that the plaintiff must prove fraud throughout. [GRIFFITH C.J.-That is the case you made at the trial. How can you raise a different case now ?] It was always before the jury upon the pleadings, and the case made by the plaintiff that the sale by the plaintiff to the mortgagees was not free, fair, or voluntary; but the question was not properly submitted to them. The proper questions raised by the statement of claim were never submitted to the jury, namely, that the plaintiff had no independent advice at the time of the sale, but was under the dominion of the defendant Moss, who advised and induced him to sell to the mortgagees at an undervalue. These allegations in the statement of claim were borne out by the evidence, and afford ample ground for relief. The onus was upon the defendants to prove that the transaction was not unfair : Gibson v. Jeyes (1); Macleod v. Jones (2). [HIGGINS J. referred to Prees v. Coke (3); Reeve v. Lisle (4); Kevan v. Joyce (5).] Pilkington K.C. (with him Northmore), for the respondents. This was a transaction practically of partnership between joint adventurers. A co-adventurer may take a mortgage over or purchase his partner's share. The only case set up by the pleadings or put to the jury by the plaintiff was one of plain fraud, which failed for want of proof. The respondents should not be called on now to meet a new case altogether: Kerr on Fraud, 3rd ed., pp. 394, 414-5; Wilde v. Gibson (6). No case for relief is made out by the pleadings and evidence. Although independent advice may not have been obtained, the plaintiff must show, in (1) 6 Ves., 266, at p. 271. (2) 24 Ch. D., 289. (3) L. R. 6 Ch., 645. (4) (1902) A.C., 461. (5) (1896) 1 I.R., 442, at p. 468. H. C. OF A. the absence of proof of a fiduciary relation, that he was actively prevented from getting the advice: Harrison v. Guest (1). 1906. RICH C. STRELITZ [BARTON J.-Where on the face of the bill there has been disclosed enough to set up an equity to relief, besides several charges BROS. AND of personal fraud which failed, the Court has dismissed with costs so much of the bill as was founded on the charges of personal fraud, and has granted the relief otherwise appearing to be claimable: Thomson v. Eastwood (2).] Moss. A mortgage bargain for collateral advantage is only void if it is unconscionable or infringes the rule against a clog. The relation between a mortgagor and a mortgagee purchaser is governed by the same rules as between an ordinary vendor and purchaser : Ashburner on Mortgages, p. 511; Melbourne Banking Corporation v. Brougham (3); the party impeaching the sale must prove the existence of oppression or undue influence: Salt v. Marquis of Northampton (4). The plaintiff, by his own conduct in destroying the right of action against Wills & Co., has made it impossible to restore the parties in integrum, and is therefore limited to an action for deceit, unless the defendants consent to redemption and an account upon plaintiff bringing the proceeds of the compromise into Court. Even if the questions suggested by the plaintiff's counsel, but not pressed upon the Judge, were all answered in his favour, they would not have entitled him to judgment. There was never any demand that the question whether plaintiff had acted freely and voluntarily in the sale should be put to the jury. A new case cannot be picked out from the pleadings and set up on appeal : Wilde v. Gibson (5); Archbold v. Commissioners of Charitable Bequests for Ireland (6); Glasscott v. Lang (7); Hickson v. Lombard (8). [BARTON J. referred to Parr v. Jewell (9).] If no proper direction was asked from the Judge, plaintiff cannot now complain: Graham & Sons v. Mayor of Huddersfield (10); Nevill v. Fine Art and General Insurance Co. (11). (1) 6 DeG. M. & G., 482. 424; 8 H.L.C., (2) 2 App. Cas., 215, at p. 243. (3) 7 App. Cas, 307. (4) (1892) A.C., 1, at p. 18. (5) 1 H.L.C., 605. (6) 2 H.L.C., 440. (8) L. R. 1 H.L., 324. 1906. RICH Robinson in reply. The defendants themselves raised the issue H. C. OF A. that the sale was free, fair and voluntary, and this was in issue throughout the case. The plaintiff is entitled to amend, as the abortive trial was due to the action of the Judge in not leaving to the jury the questions of fact properly raised by the pleadings which claimed relief otherwise than upon fraud. Cur. adv. vult. v. STRELITZ BROS. AND Moss. GRIFFITH C.J. This is an action brought by the appellant 5th November. against the respondents claiming relief in respect of a deed dated 4th November 1904, and also in respect of a sale of a large quantity of bark mortgaged by the plaintiff to one of the defendants by mortgage of the same date. It is necessary to refer somewhat in detail to the pleadings, because it is not quite clear what is the nature of the relief which the plaintiff really claimed. The plaintiff was a dealer in mallet bark, the defendant Moss was a solicitor at Fremantle, and the other defendants, Strelitz Brothers, were merchants carrying on business in Perth and Fremantle. Before November 1904, the plaintiff had given a mortgage by way of bill of sale to one Rischbeith, trading as Henry Wills and Co., over all the bark that he might have or might acquire in the course of his business, and there was a separate agreement by which that firm was to buy from him all the bark at a fixed price. The plaintiff desired to pay them off, and applied to the defendants Strelitz Brothers for assistance. They referred him to Moss, and the result was that on 4th November a bill of sale was executed by which the plaintiff assigned all the mallet bark to Moss by way of mortgage on terms which it is not necessary to mention. He also executed a contemporaneous deed by which provision was made for the division of any profits which might accrue to the plaintiff from his speculation in the mallet bark over which he was giving security. Amongst other stipulations in that agreement was one to the effect that the defendant Moss, the mortgagee, should have the benefit of the plaintiff's contract with Henry Wills and Co. for the purchase of the bark at a fixed price. The benefit of this agreement was therefore part of the security which Moss obtained |