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1827.

VICE

บ.

ANSON

merchant in Truro, to recover the sum of 3331. 9s., being 521. 6s. 9d., the amount of timber, iron, gunpowder, and other supplies furnished to the mine, Wheal Prudence, between 31st August, 1823, and 7th September, 1824; and a balance of 2811. 2s. 3d., claimed to be due in respect of supplies furnished to the mine, Wheal Concord, between 1st October, 1824, and 9th March, 1825.

At the trial before Lord Tenterden, C. J., at the adjourned sittings at Guildhall, after last Trinity term (a), it appeared that T. J. Alderson (b), describing himself as

(a) Counsel for the plaintiff, Pollock, F., and Chitty. For the defendant, the Attorney General and Brougham.

(b) The witness having been asked by the plaintiff's counsel, what had become of certain letters written to him by the defendant,on the subject of the mines, and having said that at her request he had given them up to her in 1825, it was proved that notice to produce these letters had been served on the defendant's attorney between seven and eight o'clock in the evening of the preceding Saturday. (The trial took place on Wednesday the 17th October). It appeared that the defendant, though she had a town residence, was, at the time of the service of this notice, in Scotland. It was objected by the Attorney General, for the defendant, that this notice was too late. Pollock stated, that he recollected that on a similar objection, with respect to papers in Germany, his lordship had ruled that the attorney should be in possession of all the material papers connected with the cause. That was an action of trover for goods, brought after a long period, the party having remained abroad during the greater

part of the war. The action was brought in 1816 or 1817, and on the question with respect to the notice which in that case had been served on the attorney a week or ten days before the sittings, his lordship ruled that the attorney who represented the foreign party, ought to be in possession of those papers. Here Mr. Leake does produce some of the papers connected with the cause, and he submitted that defendant should have put him in possession of all those papers likely to be called for, and that the correspondence between the defendant and the witness on this business, formed a sort of paper so likely to be called for, that she should have put her attorney in possession of them. "Lord Tenterden, C. J. I have no distinct recollection of that case, but I should decide in the same way now as to all those papers which have a direct bearing on the cause, that all papers relating to the transaction may be reasonably presumed to be put into the hands of the solicitor who is conducting the cause for a person resident abroad. I am not quite sure that rule would hold, or that I should hold it to the

treasurer of the Wheal Concord Mine, had, in 1822 or 1823, received money from the defendant on account of her shares in the Wheal Concord, that he had conversed with her on the subject of her shares, and that from the time she paid her money, she had made inquiries of him respecting the progress of the mine, and had asked how the concern was going on, and what probability there was of profit? No deed and no assignment of the lease of the mine were ever executed, but upon the purchase of the shares, certificates were issued in the following form:-"Wheal Concord Tin and Copper Mine Company, No. 133. These are to certify that the Viscountess Dowager Anson is the proprietor of the share or number 133, being one share of the Wheal Concord Mine, situate in the parish of St. Agnes, in the county of Cornwall, and that her name is duly registered in the Cost Book of the said mine, subject to the rules, regulations, and orders of the said company, and that the said Viscountess Dowager Anson, her executors, administrators, and assigns, are entitled to the profits and advantages of such share. By order of the Directors. As witness my hand, this 14th day of June, in the year of our Lord 1822. Christopher Vaux, Secretary to the said mine." Similar certificates were issued for the shares in Wheal Prudence, dated 27th February, 1823, and signed, " Charles Hutton, Secretary for the mine." Another witness had heard defendant speak of her mine shares. This witness, who was also a shareholder, stated that defendant considered

papers your are asking for, are
letters written by the defendant
and returned to her. I cannot
conceive that it can be reasonably
expected that those papers would
be placed before hand in the
hands of the attorney, and there-
fore I do not think the case is like
that which has been cited." And
see Wood v. Strickland, 2 Mer. 461.

same extent with regard to a solicitor or attorney conducting a cause for a person residing in England; but it appears to me, that it must be confined to such papers as one may naturally suppose would be placed in the hands of the attorney, with a view to the conduct of the action, whether by the plaintiff or the defendant. The

1827.

VICE

บ.

ANSON.

1827.

VICE

บ.

ANSON.

herself to have the same interest as the witness; but neither witness nor defendant had any other document than the certificates above set forth, and stated that she, witness, believed they were all swindled out of their money. Thomas was the lessee of the mine, he came down from London, and set workmen to work on the mine. Thomas ordered the supplies, and the plaintiff furnished them, and took a steam engine which had been in the mine ever since 1821. Upon this evidence the Attorney General urged to the jury, that as the defendant was not shewn to be interested in the mine, their verdict must be for her.

Lord TENTERDEN, C. J., in charging the jury said, This is an action to recover the amount of a bill, for articles furnished by the plaintiff, to be used on certain mines, called the Wheal Concord and Prudence Mines, in Cornwall. It does not appear by the evidence, that at the time when the plaintiff supplied these articles, he had any knowledge, or any reason to suppose that the present defendant had any interest or concern in those mines, and in that respect his case is like one which was tried here a day or two ago, namely, that the plaintiff cannot by possibility have supplied this upon the personal credit of the defendant, knowing of any interest on her part at the time, because there was not actually any known interest. She has not held herself out to him, or to the world, as a proprietor, or a person interested. But if she be really interested in it, she is chargeable for the supply; and that brings the case to the question which the Attorney-General has submitted for your consideration, namely, whether this interest can be understood to have been proved? whether Lady Anson had, at the time of these supplies, any interest in these mines? The supplies are proved to have been made to the mines for the working of them. The partnership, if it was any, is a partnership in that which is of the nature of real property; it is not what may be commonly called a trading partnership. Now, that Lady Anson considered herself to

have an interest in these mines, is a matter that is not dis-
puted; but if she was mistaken in so considering herself,
as that consideration and opinion on her part were never
communicated to the plaintiff, and he has not acted in con-
fidence of such consideration and opinion, the defendant's
mistake ought not to subject her to this action. We are
to look to whether she had an interest, not what she her-
self thought; her own opinion of her interest, if she had
made it known to the plaintiff, and he had acted in con-
fidence of it, would be another thing. We are to look,
interest; if she

therefore, to see whether she had an
had, she is answerable; if she had not, she is not
answerable, The history of the mine is left in consi-
derable obscurity; all that we can collect from it, is
this, that in the year 1822, or perhaps a little earlier,
a person of the name of Thomas made his appearance in
Cornwall, and took upon himself the management of these
two mines, and set persons to work upon them. He is
spoken of by one of the witnesses as having been a lessee
or tenant, therefore, under some superior person who was
the owner of the fee. Whether that was distinctly so or
not, does not appear by the evidence. This we collect.
from the witnesses, that Mr. Thomas is a person appearing
in Cornwall, as the manager of these mines; that is clear.
What interest he may have had in them, is left in doubt;
then assuming that he had an interest, is it shewn that he
has communicated a portion of that interest to Lady Anson?
If it appears that he had an interest, and that he has commu-
nicated a portion of that interest to Lady Anson, she has an
interest, and she is liable. If he had no interest, he could
have communicated none; if he had an interest, and has not
communicated it, still she would have none. Now let us
see what he has done upon the evidence, as far as regards
Lady Anson's acquisition. The name of Thomas no where
appears, nor does that parchment which has been delivered
to her for her money, as giving her an interest in this
concern, bear his name upon it, nor is it in any manner
proved to have been issued by him, or under his authority;

1827.

VICE

v.

ANSON.

1827.

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ANSON.

and if Lady Anson were at this moment to call upon Mr. Thomas to account to her for a portion of the profits of the mines, supposing profits had been made, a great deal more must be shewn than this bit of parchment shews before she could recover. Let us read it. "Wheal Concord Tin and Copper Mine Company, No. 133. These are to certify, that the Viscountess Dowager Anson, is a proprietor in the share, or No. 133, being one share of the Wheal Concord Mine, situate, &c.; that her name is duly registered in the Cost Book of the said mine, subject to the rules, regulations and orders of the said company. And that the said Viscountess Dowager Anson, her executors, administrators, and assigns, are entitled to the profits and advantages of such share." Whether her name was duly registered in the cost book of the mine, does not appear. Then this fact is not proved; if it had been, the registering of the person's name in a book of that kind, will not convey an interest in real property. But by whom is that done" By order of the directors, as witness my hand, Christopher Vaux." Who are the directors? What connexion is there between them and the mines? Who are they? No evidence has been laid before you, as to who these directors are, what right they had to issue this piece of paper, or who Mr. Vaur is. You are to say whether, under these circumstances, it is made out to your satisfaction that Lady Anson had any interest in these mines; I own it appears to me that it is not made out.

Upon hearing this direction, Pollock elected to be nonsuited, and requested the learned judge to give leave to enter a verdict for the plaintiff, if the Court should be of opinion that the defendant, by admitting herself to be a proprietor, had made herself liable. His lordship said, that where a judge entertained no doubt, it was not usual to give such leave.

F. Pollock, now moved to set aside the nonsuit. The only question at the trial was, whether the defendant was interested in the mine: as the goods were not furnished

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