Page:The English Reports v1 1900.pdf/605

out wilful default, from the time he entered into the lands to the time of the surrender; and that an account should be taken of what had been paid on account of rent; and it was referred to the Chief Remembrancer, or his Deputy, to state the account accordingly.

From this decree the appellant appealed, insisting (D. Ryder, W. Murray), that in making the agreement there was not the least surprise, fraud, misrepresentation, or concealment of any facts which the respondent required to be informed of; and that the number of acres was not inserted in the lease as matter of substance, it not being then in the appellant's power to ascertain the same, for want of his survey. But the number of acres was apprehended to be altogether immaterial, because the appellant refused to ascertain the rent by that mode; but proceeded upon his own knowledge of the nature and quality of the land, and fixed the rent upon the gross value only; and the respondent was so far from desiring any further time for his information, that he was very pressing for the immediate execution of a lease, and which was unwillingly yielded to, merely to gratify him. That before the commencement of the term, the respondent surveyed the lands, and was thereby well apprised of the nature thereof, and of the number of acres; and after such survey he entered into possession, and enjoyed the same for ten months before he filed his bill. That the Court ought not to have decreed upon any collateral evidence, contrary to the article in writing; the number of acres mentioned therein, being only by way of description of the land, and not as a measure for the rent. And that if the respondent was entitled to any decree at all, the most he could expect was to have had the lease rectified by an abatement of the rent, in proportion to the deficiency of the number of acres, and not to set the lease entirely aside. It was therefore hoped, that the decree would be reversed, the lease or agreement established, and the respondent's bill dismissed with costs.

On behalf of the respondent it was argued (J. Browne, T. Clarke), that in treaties for an agreement, a wilful and industrious concealment of the truth, in a material point, by one party, in order to keep the other in ignorance, and to profit by that ignorance, was a gross fraud, and ought in equity to set aside the contract, especially where, as in the present case, such concealment is accompanied with misrepresentation, and a premeditated intention to deceive. That the agents of the appellant represented the quantity of land proposed to be demised, to be 100 acres more than it now appeared to be; and this representation being made in his presence, he, by not contradicting them, in effect confirmed the truth of what they said. That this was done before the execution of the agreement, and at a time when the appellant had caused a survey to be taken, which ascertained the exact limits and measure of the premises; and yet he did not think proper to undeceive the respondent, but purposely concealed the true measure and quantity from him, and for this remarkable reason, as stated in his answer, because he did not think it prudent to disclose it, which afforded a more convincing proof of a premeditated intention to deceive the respondent, than the testi-[313]-mony of many witnesses. That the garden and meadow-part of the premises which the appellant demised as his own property, were, when so demised, claimed and enjoyed by one Mr. Fowkes and his tenants; and the large tract of bog (a very material part of the premises, as it furnishes fuel to burn lime for manuring the land), had since been evicted and was enjoyed by Lord Doneraile and his tenants, and a right of common on other part of the premises: that a privilege of grazing and cutting turf on part of the bog, and also a right of way or passage over part of the lands demised, were claimed and enjoyed by Mr. Fowkes and his tenants; and yet all these facts were industriously concealed from the respondent, who never discovered the same till after he took possession of the premises. Upon the whole, as the quantity of land comprised in the articles was not only less than it was represented to be, but even diminished by a subsequent eviction; as the possession and enjoyment of the residue was prejudiced by several rights, which were never discovered to the respondent till his taking possession; and as the tenants must be perpetually exposed to disputes and controversies in maintaining the possession; the respondent could not be said to have the thing he agreed for, but something so different both in quantity and value, as if represented in its true light, and with all its circumstances, would have prevented the respondent from being ensnared into the articles by the concealment and misrepresentation of the