The Cambrian

MORGAN v. ELFOKD. (Before Vice-Chancellor Sir RICHARD MALLINS.) In our last number we gave a brief resume of this important case. As it has created a good deal of local interest, we now, in deference to the wishes of a large number of our readers, insert a verbatim report of his Lordship's summing-up, from which the full facts of the case will be seen. The Vice-chancellor: This case is a suit of a very ex- traordinaryand most unusual character. It has occupied, considering the stake involved and the extent of the evidence, more time than any case wit-iin my experience either at the bar or on the bench. I am bound to say that the great consumption of time has arisen from a want on the part of the parties engaged in these trans- actions of candour and straightforward dealing I mean on the part of the defendants, which candour, if it had been exercised, and straightforward dealing, if it had taken place would have prevented the possibility of the miserable and painful dispute which has arisen. It is also a most painful case for a single Judge without the aid of a jary to decide. I have a most painful conflict of evidence, and am obliged to draw the best conclusion lean; to see onwhich side the truth lie3, the evidence being so positively conflicting that it is impossible in my opinion to reconcile the stitecaents made on the part of the plaintiff and those made on behalf of the defendant, or even those made by the professional men engaged on either side. However it is a hsk which I cannot avoid. I should have been very glad indeed if I could have had the aid of a jury, because then, instead of coming to the conclusion myself, I should have directed their attention to the evidence, and their finding one way or the other would have been conclusive unless it could be made out that they gave a verdict contrary to the weight of evidence or that I had misdirected them. I am at once jury and judge, and to the best of my ability, having no feeling one side or the other, although Mr. Higgings thinks I have made observal ions adverse to his case, still I have also made some adverse to the plaintiff's case, it is my duty to arrive at the best conclusion I can, and I will preceed to do so. Now it is a bill filed by Mr. Charle3 Morgan, who is a gentleman advanred in life, and hat been for many years engaged in collierie", I think he says 40 years. He is the plaintiff, the proprietor, at the time of these transactions of a colliery in Glamorganshire, and an anthracite colliery. The defendant, Thomas Elford, is a merchant and ship- owner, a member of the Town Council of Swansea, and I take it a man eugaged in a considerable way of business. It has been part of hia business, occasionally, not regularly, he is not au estate agent, but he has occasionally, he says, been in the habit of selling collieries and other property. Mr. Elford, as far as we have been able to collect up to these transactions, is a man who has held a position of respect-respectable in his walk in life. The defendant, Thomas Edward Crispe, it appears, up to the time of these transactions in 1873, beginning in the early part of 1873 and ending at the end ofjl873, was studying for the bar, and he was called to the bar by th» Middle Temple in January, 1874. His occupation of life previously, for he is now more than 40 years of age—his occupa- tion up to that time was that of a land surveyor, aUf 1 occasionally, he stated, in answer to a question I think I myself put to him, he was notonlv an estate agent but had al-o acted as an auctioneer. His means seem to have been very small, I take it from his owi. statements, and in this state of things, it being pretty plain that he, in con- nection with a Mr. Noble and other people, had been in the habit of speculating in property which be was not able to pay for. Under the circumstances I have mentioned he became acquainted with the fact that Mr. Morgan's colliery was to be disposed of. Now, I think, upon the whole evidence upon both sides, I must come to the conclu- sion that Mr. Morgan was quite willing to sell his colliery, but was not anxious to do so and I ccme to the conclu- sion that Mr. Elford rather importuned Mr. Morgan to sell his colliery than that Mr. Morgan applied to Mr. Elford to do so and it is perfectly plain that Mr. Elford entered into an arrangement with Mr. Morgan which is of a very unusual character, namely, that if he could sell this colliery for a particular price, all that he could get above that price he might have for himself; and upon that ground it has been argued that Mr. Elford was not the agent of Mr. Morgan. But I take it to be perfectly clear from the beginning to the end of these transactions Elford was an agent of Morgan, and that he owed to Morgan all the duties which the agent owes to his prin- cipal, amongst which duties are these—that he is to be true and faithful to him, that he must do his best for him, and if he is employed to sell the property it is his duty to get the best price for it that he can. Now, there had been negotiations between Mr. Morgan and certain other persons for the sale of this colliery, which termi- nated so early as the month of March, 1873. At that time Mr. Morgan and Mr. Elford, having been in commu- nication from the latter part ef the year 1872 down to March, 1873, upon the subject of the sale of this colliery, it appears that, down to the 20th March, 1873, at all events, Elford had never heard of Crispe, and I believe Crispe bad never heard of Elford; but Mr. Crispe, whose position in life I have stated was a very peculiar one, be- cause it seems that at this very time he was studying for the bar, he held a. situation in an upholsterer's busi- ness, Hif own account of it is that he was intimate with Mr. Don-ill; of the firm of Gillow3 and Company, the celebrated upholsterers in Oxford-street; that being in- timate with Mr. Donaldson, and being also trustee for Mrs. Donaldson, Mr. Donaldson offered that while he was pursuing his studies at the bar, he could have an office at their place of business in Oxford-street, have his law books there, and employ what time he could in surveying for them, for which he received remunerationj; but if he was '.to be found in hours of business, I understand Gillows' was the place of business where he was to be found. Now, I have said that up to the 20th March, 1872, Elford, Crispe, and Morgan were perfect strangers, and then it appears that in the Spring Assizes of 1873, Mr. Crispe went down to Swansea as a witness at a trial, and, through the intervention of Mr. Noble, Crispe was introduced to Mr. Elford, and that was the day upon which their acquaintance commenced—the 21st March, 1873. Upon that day Crisp was also introduced by Elford to the plaintiff, Mr. Morgan, and it was a subject of conversation between the parties that Mr. Morgan's colliery was for sale. Now, I think I did not do any in- justice to Mr. Crispe in saying that I collected from the whole history he has given us that he was in the habit of buying estates on speculation—that is, buying estates in the hope of reselling them at a higher price, and thus gaining money. It seems to have occurred to Mr. Crispe that this colliery might be made the means of gaining money in that way, and therefore, at that time, there having been an arrangement between Mr. Morgan and Mr. Elford that the colliery was to be sold, and that Mr. Elford should have a handsome remuneration for what- ever he did,—on the 22nd March, 1873, Mr. Elford drove Mr. Crispe over to the plaintiff's colliery, about 16 or 17 miles from Swansea. It appears that at that time Mr. Crispe Iwas introduced to Mr. Morgan by Mr. Elford who, as I have said, had only known him about 48 hours at the utmost, as his friend. He went over and saw the colliery, and it does not appear, as far as I can make out, that it was intimated at all to Mr. Morgan at that time that Mr. Crispe was in any way likely to buy the colliery. He was introduced merely by Elford as his friend, and Mr. Morgan says he understood he was a person who would help Mr. Elford to sell the colliery, and, he assumed, would participate in any commission which was paid for its sale. The parties seem to have conducted the business in au amicable manner, as you might well sup- pose; but here was Mr. Elford, who enjoyed the confi- dence of Mr. Morgan, Mr. Crispe was introduced to him as his friend, they had gone together to see the colliery, and Mr. Crispe descended into the colliery for the pur- pose of examining it, which Mr. Elford said he declined to do. They afterwards dined together at a country inn there, and all things seem to have gone off very well. Mr. Crispe returned to Ttondon to his place of business at Gillows', and the negotiations go on between Mr. Elford and Mr. Morgan; and ultimately, on the 3rd May, Mr. Morgan writes to Mr. Elford this letter, which is set out in page 4 of the Bill:—" I am now at liberty"—that means that he had been negotiating with other parties there was some treaty going on with other parties. "I am now at liberty, and disposed to sell to your friend Mr. Palmer,"—Crispe never having been mentioned as likely to purchase—"at JE25,000 cash. You may have a month from this day to negotiate with him. What you get over JE25,000 you may have by way of commission. You will please understand that this offer is confined to Mr. Palmer. In other words, I comld not allow my pro- perty to be 'hawked about.' Of course, I reserve to my. self the right of selling without being liable for any com- mission or expense, provided you do not effect a sale with Mr. Palmer during the month." Now, Mr. Palmer was a. large colliery proprietor in the north of England, and had bought a. colliery in South Wales, in this neighbour- hood, and there was some idea that he was a person who was not unlikely to buy. However, that came to nothing. Then Mr. Elford writes to Mr. Morgan on the 5th May, two days afterwards-" I have your letter of the 3rd inst., and notice you place your colliery under offer to me £25;000 cash, subject to reply in a month but I can- not agree to your stipulations that it must be sold to Mr. Palmerj as the gentlemen whom I drove over to inspect the colliery is in no way connected with Mr. Palmer."— That is Mr. Crispe.—"At the same time, if I fail with him, I may succeed with Palmer; and it can make no difference to you to whom I sell it, so long as you get your money." That is perfectly Cor- rect. I observe you say my commission must be in excess of the JB25,000 named, which I regret, as it may make it dimcolt. if not impossible, to carry the business through. If ypu will say £25,000 I would be willing to make my consideration B3,000, wkich would leave you ££!2,080, net for the colliery. Please say if you agree to this in due course. I am anxious to bring about business, if possible, and am willing to make a considerable modification of my terms to accomplish it." Now, it is very material to consider what next took place. The only authority tha.t I can find that Mr. Elford had at that time in writing was to sell to Palmer for £ 15,000; but npon the 8th of May, which is a very material date—perhaps not quite so much attention has been paid to it as it deserves—on the 8th of May, Mr. Morgan writes to Mr. Elford in this way: "If through you I dispose of these collieries for thirty thousand pounds cash (£30,000) in a month or six weeks from this date, I am willing to allow you JE5,000 from that sum as commission." That is the 8th May. Very curiously, on the 6th—two days before that letter was written—Mr. Elford had committed the fatal step which has given rise to aH this litigation, a step which I am bouad to say, after all that I have heard, whether it was the object he had carry into effect er the manner in which he proceeded to carry it into effect, was as gross am error and miscarriage, on the part of an agent, as I have ever known. Now, he had no positive authority to sell to anybody but Mr. Palmer for .£25,000. His duty, as an Ment taaeM, was to get Mr. Morgan the best price, and above all, he had Seen told that the colliery was not to be hawked about,- to take care that Be had a purchaser who woviMrbe able to pay. What does he do? Now, first, he writes a letteP tothia Mr. Crispe, which is set out in bit own answer; it isiwt in the Bill, but it is set '¡J .1 .(■m ;-v! V's-' o? w-i! ei? ¡ out in his own answer at page 16, and is in these terms [[ am afraid I have made a mistake in the reference; can you tell me which page it is ?] Mr. Higgins: What, the letter of the 3rd May ? Mr. Glasse No, the 6th May. The Vice-chancellor I have got it; it is in the answer at page 48. It is in these terms—now mind, I say it was his duty at this time—first of all he is not armed until two days afterwards with an authority to sell for JE30,000 to anybody. It was his duty to his employer to do the best for him to take care that he sold to a person who would pay, and also to provide for the mode and time of payment. Now, this letter he writes to Mr. Crispe :—" Dear Sir,—As agent to Mr. Charles Morgan, of Llanelly, I hereby place under offer to you the Gwaun Cae Gurwen Colliery, with everything, in, upon, and belonging thereto-t-live and dead stock—for the sum of thirty thousand pounds, which Î3 to include the profit royalty of three pence per ton, or that part of the above property sublet to the Amman Iron Company. This offer is made subject to your reply on or before the 28th inst." No provision when the money is to be paid, how it is to be paid, or any security, or any provision what- ever, for the protection of Mr. Morgan. He gives 23 days to consider. Now, what did he know of the man to whom he made that offer ? I turn to his own state- ment, and I find that he says that he knew nothing of him except that when he drove him over to the colliery on the 22nd March, Mr. Crispe told him that he was studying for the bar. Now, Mr. Elford may not know, and probably does not know, anything about the regula- tions for studying at the bar but possibly be would, as a man of the world, know that it is not usual for a man either 40 or verging upon the age of 40, to be a law student. And when he finds a man at the age of 40 still a law student, I think it is not requiring too much of Mr. Elford to suppose that such a gentleman had some occu- pation in life before, and he would naturally say, Why, you are late going to the bar because I saw Mr. Crispe in the box, and I do not think he looks younger than he is, and I do not think he would appear so to Mr. Elford. But, however, he asked him no questions but I will take his own account of it in his own cross-examination, and I find it thus He says—" The first time he told me he was a law student, and the next time I went to see him." I cannot turn to the passage, but I know it per- fectly well; it is Mr. Elford's statement of his know- ledge of Mr. Crispe. Mr. Glasse I will give it to you. The Vice-chancellor I have got it in my own notes. Mr. Higgins I think it was in answer to a question of your lordship's. The Vice-Chancellor I know 1 have got it here. Mr. Glasse: It begins, "Did you think it your duty to inquire at all about the means of a purchaser ? A. I do not know that it was. Q I only want to know what you think. A. The information I got about Mr. Crispe was satisfactory to me that information was conveyed to we by Mr. Noble, who, I believe had known Mr. Crispe for many years, and if the man could pay me the instalment that is all that I think was required." The Vice-Chancellor: He says this—this is the sub- stance of it:—"I knew nothing of him except that he told me on the 22nd of March that he was studying for tha ba'\ The next time I saw him was at Gillows' place of business, that is the Oxford- street upholsterer's warehouse. I had heard he was a partner in the firm. I did not ask him," and hearing he was a partner at Gillows' was very in- consistent with his being a law student, but I did not ask him, and I had no other knowledge of him whatever; then the next time I saw him was at Gil'ows' Now what can be said of the prudence of an a;ent for the sale of a colliery for JE30,000, who will sell it to a man of whom he knows nothing, make no provision as to the time of payment, but commit his client to this—that if Mr. Crispe can pay, well; but if net, he has tied him up to a contract which Crispe is unable to perform, and thus put his employer in very great difficulty. But, however, the question is, was this done in good faith or was it done upon some plan of arrangement between the parties. Now he gave him until the 28th instant to accept that offer, and on the 29th there is a letter from Crispo, which he relies upon as constituting a contract between them, in these terms:—" London, 29th May, 1873. In answer to your letter of the 6th, in which, as agent of Mr. Charles Morgan, of Llanelly, you offer me the Gwaun- Cae-Gurwen Colliery, with everything in, upon, and be- longing thereto, live and dead stock (together with the profit Royalty of threepence per ton on that part of the property sub-let to the Amman Iron Company, at the sum of £30,000, providing I agree to buy the same 011 or before the 23th instant), and which time, under your letter of May 14th, you extend to the 31st instant, I hereby agree to purchase the said property under the terms of your letter of May 6th inst." Mr. Higgins: I have got the passage now that you wanted in the shorthand writer's notes. The Vice-Chancellor Thank you, I have stated the substance of it I think with perfect accuracy. I have it in my own notes. Now, upon the face of it, therefore, this is the plan relied upon throughout. Here is an ab- solute offer by Mr. Elford, as the agent to Mr. Morgan, on the 6th of May, unconditionally accepted on the 29th May; and it has been urged, and I relieved counsel of any argument on the subject, because I said in the course of the argument, and I repeat now, that if honestly, fairly and properly, Crispe had become the owner of this col- liery by purchase from Mr. Morgan for JE30,000, he was at liberty to re-sell it for any amount whatever that he could get for it. But the question is—was there a con- tract ? and was it a contract entered into under any circumstances by which these parties can get any benefit from it whatever? Now, in order to test this, it is ne. cessary to look at what took place between the 6th of May and the 29th of May during that period there are some remarkable letters which go to any mind to show the utter want ef good faith and impropriety of dealing, both on the part of Mr. Elford and Mr. Crispe. Mr. Crispe, it is plain, was well aware that he was not in a situation t<9 buy this colliery, and I most unhesitatingly come to the conclusion that if Mr. Crispe had not found soon a purchaser for this colliery it would have been entirely beyond his power to have found the £30,000, and he was, therefore, I think, recklessly and unfairly specu- lating at the expense of other persons; because I have heard him cross-examined on the subject, and I am sa- tisfied that he had no means whatever of completing this purchase—he therefore endeavoured to tie up Mr. Morgan's colliery on the chance of his finding a sub- purchaser at a larger price. If he did so, well; and if not, then he and Mr. Elford together had so managed that Mr. Morgan was to be put to the inconvenience of having this contract, for the completion of which there was no means of providing for, and thus exposing him to great inconvenience. But now, with regard to the letters which passed in the interval between these gentlemen between the 6th when the offer was made, and the 29th when it was accepted. Now, the first material letter I think is the letter of the 13th of May, which Mr. Crispe writes to Mr. Elford :—" I enclose a copy of a letter to Mr. Morgan, and I will beg you to kindly push the matter on. If you can accompany the engineer-" Then he goes on with a good deal about going down to see the colliery and about the amount of rent." "I saw Mr. Noble's friend at my club"—that is, Mr. Noble was to provide some person to buy this colliery." I saw Mr. Noble's friend at my club, and confess I did not think much of him. Mr. Noble said to me to-day that you would expect a share in the profit." Now here is the purchaser writing to the agent of the vendor—"Mr. Noble said to me to-day that you would expect a share in the profit. I told him he was wrong, as you had in- formed me to the contrary (I need not say how happy I should be to testify my appreciation by an hanormium.) I merely mention this in confidence, as Mr. Noble has a knack of providing for a share out of every one's profit, and might have arranged with you for a share of your commissions from Mr. Morgan. This must not be as Mr. Noble will be sufficiently remunerated by the handsome sum I shall allow him kindly urge Mr. Morgan on and keep me apprised with what transpires." Now here is a purchaser or supposed purchaser writing to the agent offering to bribe him: "I will give you an honorarium I am told you stipulate for a share of the profits, but I know that is not true, because you told me the contrary." Now, what would a man actuated by proper feelings have done upon receiving such a letter ? He cannot be very fastidious, for Mr. Norton wrote him a letter which he thought was not very respectful, and he called it, I think, an insolent letter or something of that kind. If he had a letter from this Mr. Crispe offering an honorarium to betray his duty to his employer, why did he not say, You have insultei me by that letter; I will return it and have nothing more to do with you ?" But how does he treat _it ? He answers it by a letter the next day. At page 50 of this correspondence, he says: I have your letter of yesterday enclosing copy of one you have addressed to Mr. Charles Morgan, whose proper address is Wellfield Place, Llanelly. No doubt he will reply promptly. There is nothing alarming about the dead rent of £1,800 a year on the first 20,000 tons; after that quantity is worked (viz., 400 tons per week, or about 60 tons per day) the royalty is very moderate; see papers left with you. I will agree to extend the time." Now this letter was to ask him to extend the time for a week. I will agree to extend the time to the 31st inst. for your answer,—I cannot go beyond that." Now, if the original offer had been, a proper one to make, there would have been no. objection to his extending the time for a week in the exercise of his descretion if he had been straightforward and honest. I know the property is a. valuable one. I do not make it a sine qUfl, non that you pay me anything in the event of your buying this pro- perty, but shall be quite content to leave the matter in your hands." I do not make it a sine qua non, but I do expect you to pay me." This is the agent of the vendor soliciting and bargaining for a bribe from the purchaser. Is that a thing to be tolerated in any decent society, or which can receive any sanction from this Court ? How- ever, he does not leave it there, he writes again, and I make this observation upon Mr. Elford's correspondence, that from the very first day he undertook this duty, at all events from the very day that he became acquainted with Crispe, I And that he totally overlooked the in- terests pf his employer, and was every day afterwards playing into the hands of Mr. Crispe, the object no doubt being to get his commission of £5,000, and provided he got that commission of je5,000 the interests of Mr. Morgan were utterly disregarded. Now on the 23rd May, bearing in mind that this is a gentleman with whom he is contracting that he ought to know, and I think did knew, was not in a situation to complete the contract; and the only object he had in view was that the property might be re-sold in order that he might keep his Bo.OOO, and also that he might get a handsome remuneration out of the price obtained. Now on the 23rd of May, Mr Crispe writes to Mr. Elford in these terms: I have mis- laid the letter you sent me extending the refusal to May 31st; it is no doubt among my papers, but please repeat your consult in your next letter, and if with it you can give me an additional week"—that would make a fortnight altogether—" you shall be no loser by the concession." Again he receives from Crispe a proposal to betray his employer. "Give me another week? you shall be no loser." That is to say, "1 will remunerate you for it." Then the letters go on. There are letters in which he states the value of the property; and then, on the 29th, he gets the answer which I have just read. That is Mr. Crispe's unconditional acceptance of the offer of the 6th. Now Mr. Glasse has made an observation in his reply this .1 ;r-:>i'lo LsJ.'vi's ..a- • 1 = -•>-> morning upon that circumstance, which I think is very material, and which had not attracted, I confess, my atten- tion, and did not seem to have attracted the attention of the counsel for either of the defendants, and that is that the letter of the 29th accepting the offer was a day too late, according to the letter of the 6th therefore, it could not make a binding contract, because it arose on au offer. On receiving your reply on or before the 28th," it was a day too late, and, therefore, fatal to the validity of the contract. But there was an extension of time for a week; within the week it was accepted. But that extension of time was based in fraud, because it is fraud for the agent of the vendor to receive a bribe from the purchaser; therefore, as the extension of the time was based on a proposal in fraud, it could never have been enforced, and consequently there never was any contract between Mr. Morgan and Mr. Crispe. It is perfectly clear beyond all possibility of doubt, that if the original offer was a good one up to the 28th, except that it was too late and the time was extended through the fraudulent consideration offered by the one and accepted by the other, it was, therefore, utterly void, and a thing under which Mr. Crispe could obtain no rights. But, however, on the 29th, the offer is accepted. It is communicated to Mr. Morgan, who up to that time seems to have taken no legal advice; it is communicated on the 30th of May. Elford writes a letter, set out at page 96 of the cor- respondence, to Mr. Morgan "I have duly received your letter of the 27th, and have now the pleasure of inform- ing you." Certainly, a very satisfactory communication for Mr. Morgan, that he had sold his colliery and bound it up to a man who could not pay for it. I have now the pleasure of informing you that I have a letter to-day from Mr. Crispe, agreeing to purchase the Waun-cae- Gurwen colliery with machinery and plant of every description, including live and dead stock, for the sum of B30,000 and I shall be glad to hear from you per return of post, saying when it will be convenient for you to meet me in London to have an interview with Mr. Crispe with a view to the completion of this purchase please say." Now this is remarkable for a man who is con- tending that his own letter of the 6th and Mr. Crispe's letter of the 29th made a binding contract from which Mr. Morgan could not retreat. He says here the next day Piease say what cash deposit you require and what time you will give for payment of balance, you holding the necessary security. You will not, of course, name to Mr. Crispe or any other person our private arrange- ment to allow me £ 5,000 as commission for finding you a purchaser. I send a press copy of this to you at Llanelly' to be forwarded, and I also enclose a copy of Mr. Crispe's letter." Now Mr. Elford's counsel have occupied many hours before me in arguing that the two letters of the 6th of May and the 29th made a final binding contract. Here is their own client writing on the 30th that which he ought to have embodied in his proposal to Mr. Crispe, but this is based on the stipulation that you will pay the deposit of 10 per cent. or something which will assure me that the contract will be performed, and when he sees it was pending, and knew of its completion, he says What cash deposit will you require." Why did he not ask that before the 6th May ? This is asking it too late, but at all events here is his contention treating the contract as not binding unless the deposit was paid. Then many other letters passed, to which I need not particularly refer, but I will go at once to this letter. It now became apparent both to Mr. Crispe and Mr. Elford that the colliery was worth a good deal more than £30,000. That is placed be- yond all possibility of doubt, I think, by the two or three letters I shall refer to. Mr. Elford knew that he had given Mr. Crispe a remarkably good bargain that he had sold him a colliery for £30,000 which he believed to be worth some j350,000 or £60,000. Under these Clrcumstances. inas- much as Mr. Crispe had not responded to the demand of paying the deposit, what would have been his course ? If he had been a faithful agent he would have settled with his employer and endeavoured to get rid of a purchaser who could not perform the very first thing to be done by a purchaser, namely, pay a deposit or give some security that the purchase shall be completed. This proposal of Mr. Crispe is communicated to his legal advisers. Mr. Morgan then finds it necessary to consult his legal advisers, he accordingly applies to his solicitor, Mr. Norton, practising in the town of Swansea, where, I understand, he bas practised since 1859, and it being communicated to Mr. Norton, Mr. Norton writes a very reasonable letter- as proper a letter as I think I have ever seen written by a professional man—considering what had been communi- cated to him. He was then willing to sell the colliery for £30,000; he made no complaint about the price, but what he was anxious about was that the price should be forthcoming within a reasonable time; he never raised any objection about the price, nor did he raise any ob- jection to the purchaser, or put any obstacle in the way of completion. Mr. Norton, writes to Mr. Elford, Mr. Morgan's agent, in these terms, My client, Mr. Morgan, has sent me your letter to him of the 30th ult. he knows nothing of Mr. Crispe," I think he might have added He knows nothing of Mr. Crispe, and you know nothing of Mr. Crispe." However, he only says He knows nothing of Mr. Crispe, and therefore, before he could think of entering into any contract, he must be satisfied that the purchaser is in a position to carry it out. Does Mr. Crispe desire to buy for himself or for whom, and is he prepared to pay the usual deposit of JB10 per cent., and to complete in a reasonable time, say at Michaelmas next." Now I think it is plain from that letter that if the answer had been Mr. Crispe will pay forthwith £10 per cent. if you will prepare a formal contract, he will pay JBlO per cent. upon its execution." the contract would have been prepared, and there would have been no obstacle to the completion of the purchase. But, however, Mr. Elford writes again. Mr. Elford had written on$he 4th June, at page 108 of the correspondence, to Mr. Crispe I enclose a lettter; I have had an interview with Mr. Norton, who tells me very plainly that the first thing for you to do is to pay a. cash deposit of at least jE3,000, say JK10 per cent. on the purchase money agreed on, and with- out this is done they will not regard your letter as a con- tract." So that here he was treating it not as a bindiug contract unless the deposit was paid. Mr. Norton further says he cannot advise Mr. Morgan to allow you time to hawk the property about in order to sell it at an advanced price." This is a repetition of what he had been told before, that Mr. Morgan would not have the colliery hawked about. He says he must deal with you only; the fact is I think they are very careless about selling. This is what Mr. Elford writes on the 4th of June. Now his counsel have argued that Mr. Morgan was very anxious to sell. I think it is very plain that Mr. Morgan was not very anxious to sell, and so Mr. Elford says here—"The fact is, I think, they are very careless about selling, and unless you promptly comply with their demand, as to the payment of £3,000 as a deposit, I believe the matter will fall through. Waiting your reply." Then he writes again on the 5th of June. I wrote you yesterday, to which I refer, and I now write to say that I find Mr. Morgan's solicitor, Mr. Norton, tried to sell the colliery but failed to do so and I think he is very likely now to place every impediment in the way of Mr. Morgan's carrying out the contract in the hope that he may 0 still find a purchaser for the property and thereby secure for himself a commission." I must say that is a very un- worthy and unwarrantable suggestion of Mr. Elford's. He seems so possessed of the ideas of commission him- self that he seems to have thought that nobody could have thought of anything else. Mr. Norton was Mr. Morgan's solicitor. I see nothing to justify him in supposing that Mr. Norton wanted to get a commission, on the contrary, I find from beginning to end Mr. Norton only urged this—let a deposit be paid or some assurance be given that the purchase money is forth- coming and we are ready to complete. However, this is the view Mr. Elford takes of the matter—"I therefore trust that you will satisfy Mr. Morgan that you mean business." It is said now that he had already bound him to business by a contract "that you mean business by depositing at once 10 per cent of the purchase money, say £3,000, in cash. If you are not disposed to do so please say so at once, as I believe I have a. willing purchaser thereat, and rather than let the property slip through my hands, I should be inclined to take the whole responsibility on my own shoulders, and take my chance of getting up a company to work it, such is my faith in the value of the property." That I clearly treat as an admission on his part that there was no binding contract at that time. Again, on the 11th, he writes- I enclose you copy of a letter received this day from Mr. Morgan's solicitor," that is the letter of the 5th, which I have just read, "and I firmly believe that unless you tender the deposit of £3,000 asked for, they will make it a pretext for bringing the negotiation to an end. I hope you will not fail to attend to this at once. Again, on the 13th page 129, he says—" I have your two letters of yesterday with sundry enclosures. I have also a letter from Mr. Norton with copy of his to you of yesterday, in which he says that unless he hears from you satisfactorily by to- morrow morning, in reply to his letters, he shall consider the negotiation at an end. When Mr. Hollingshead's friend comes here I will drive him to the colliery, when I will ascertain the raisings for March, April, aad May months. I cannot afford the time to go there specially for this information. I much regret that you did not pay the deposit asked, for as I feel Norton will be only too glad of an excuse to break off the negotiation." Then he goes to another point, so that therefore at that time Mr. Morgan was anxious to break off the negotiation because the deposit was not paid. Then Mr. Norton writes to Mr. Crispe on the 26th of June, page 137, "I am in re- ceipt of your letter of the 13th inst., and should have replied to it before, but I have been from home. The question need not resolve itself into one of contract' or no contract' so far as my client is concerned. I may say it is simply a question of ability on your part to pay him £30,000 cash. Are you prepared to do so, and, if so, when ? Your solicitor will tell you that if there is any contract, which I do not admit, you are bound to find the money at once. My client has been informed of the pro- ceedings instituted against you in connection with the sale of Haxel Manor." That is a totally independent matter. Now up to this time Mr. Morgan s solicitor, Mr. Norton, was urging the payment of the deposit. Mr. Elford was doing the same, and Mr. Elford was pressing upon Mr. Crispe that unless he did so there would be no contract. However, it is perfectly plain, not only from the corre- spondence halt from the cross-examination of Mr. Crispe that he was not in a situation to pay the deposit, there was not the least hope of his finding the deposit until he got, as he subsequently did get, sub-purchasers for this property. But I now pass on to the letter of the 21st of July, which will be found at_ page 150 of this correspon- dence, and now bearing in mind what I have stated about the duty of an agent to his principal, that it was his duty to Mr. Morgan to get as much for this colliery as he could, because I cannot accede to the suggestion that when Mr. Morgan said "if you get £ 30,000 you may keep je5,000 for yourself," that if he had received jB50,000 for the colliery he would have been entitled to have reo tained jB25,000 for himself, would have been to the last degree unreasonable and could not have been enforced. It was his duty to get the best price he could beyond the £30,000, and if the purchase money had been £50,000 to rely upon Mr. Morgan's generosity to extend the com- mission if he thought fit, but now, instead of standing by his employer, and doing his duty faithfully as an agent, he sides entirely with Mr. Crispe, and every one of these letters may be styled the playing into the hands of Mr. Crispe against Mr. Morgan. Now here is a letter of the 21st of July. Now bear in mind Mr. Crispe said at this time he had got a contract, and he was so restless about this contract, thatjit was not three days old before betook i ns • — -— -» counsel's opinion about it, and I am sure no counsel who knew the facts which I know now could have ever advised him that he had acontract bindingupon Mr.Morgan. How- ever, he took counsel's opinion upon his own statement of facts, and he was advised that he had a contract. How- ever, here is a letter from a man, written to the purchaser against the interests of his employer and in favour of the purchaser, whom I can find had no object that he had in favouring, except that it was an improper object of get- ting in addition to jE5,000, a remuneration from Mr. Crispe for what he did for him. Now this controversy about the deposit was still going on, and ha writes on the 31st of July in these terms to Crispe—" My dear sir,— I have your letter of the Hth instant, and am glad to find you feel quite" (I suppose it means easy) "about the profit royalty." He had written a letter about the £1,800 a year, which he thought large. However, Mr. Elford explains to him that it is not large with reference to the nature of the profit. "I heard on Saturday last Mr. Morgan was offering the colliery for.sale a day or two since to another party, but I never see or hear of him now;" when his only object was to get a commission, He thought he had secured a commission, but as to Mr. Morgin's interests they were entirely given the go-by to— I enclose herein copy of his letter authorising me to sell the colliery, and also copy of his letter to me from Nor- wich, acknowledging receipt of my letter informing him of your acceptance of his offer. I have been told upon what I consider to be very authority that the Waun Cae Gerwyn Colliery is cheap at £60,000. I know that an anthracite colliery belonging te D. Lloyd and Sons of less real value has just been sold for £ 80,000." And in a sobsequent letter he writes to tell him that he' thought he might bring out a company and sell the colliery for 8100,000. Now, so matters went on, Mr. Norton on be- half of Mr. Morgan, insisting on a deposit, and insisting that there was no contract for the want of that deposit, and ultimately Mr. Norton writes on the 5th of September to Crispe himself. "I beg to acknowledge the receipt of your letter of yesterday's date. I have no suggestion to make, but can repeat what I have several times said to you, namely, that if you are prepared to pay the £30,000 there need be no question as to whether there is a bind- ing contract or not, hut an abstract of my clients' title can be sent to you and the business completed by the end of this month at the furthest. If you are not prepared to pay the 830,000, further correspondence or any litiga- tion will not benefit you or my client." Now, I say of that letter of the 5Gh of September, as I said of the letter of the 3rd of Juue, it is impossible in my opinion that a more proper letter could have been written on the sub- ject. The meaning of it is plainly this I raise no ques- tion of contract or no contract. I am perfectly willing to perform that which you desire me to do, namely, to con- very the colliery to you if you will pay me the £30,000, and shew me that you are ready to do so." That letter was not answered. Now, what took place next? It turns out in the month of August, towards the end of August I collect, through the intervention of Mr. Noble, who is described by Mr. Crispe as a person who got some- thing out of everybody's bargain, a sub-purchaser had been found, and the thing had turned up in Mr. Crispe's favour; he had found four gentlemen, Mr. Goulton and others, who had agreed to give £40,000 for the colliery. I have already stated that if the thing was fairly done, there was no objection, if he had honestly and fairly bought the colliery for £30,000, he was perfectly at liberty to sell it for 840,000 and put the difference in his pocket, and if he had confidence in his case I say, as I have stated in the course of the argument, if there was nothing to conceal why was there concealment; but I find from beginning to the end of this transaction that there is nothing but concealment from Mr. Morgan and his adviser. He found these purchasers, Mr. Goulton, two gentlemen of the name of Harris, and a gentleman named Cooper, who had agreed to give him £40,000, for this colliery. Now considering that the contract to give 830,000 was on the 29th of May, and that the contract by which he re sold the colliery for 810,000, that is at 810,000 profit, was in August three months afterwards, I think to any right minded agent it would have occurred, "this is ratherOtoo heavy, this is rather a serious thing, I have conlmitted a blunder, what can I say, Isold Mr. Morgan's colliery in May for .830,000, and here are people w no come forward in August and give £40,000. I have been telling the purchaser, Mr. Crispe, every day that he had no con- tract for that is the effect of his letters, every one of those letters which I have read, is telling Mr. Crispe "you have no contract and you will have no contract un- less you pay a deposit." Mr. Elford ought to have said to Mr. Morgan, "lam bound to tell you that in my opinion there is no contract, and here is the colliery being re-sold for 840,000, and I think if you do not have the whole of that 840,000, you certainly ought to have some part of it, and I would have nothing to do with Mr. Crispe unless he made that concession." However, no such course was taken. Now, I say in all matters of- business there should no concealhient if there is nothing to con- ceal. These four gentlemen who go together to Swansea on the 10th of September, 1873, seem to have been very incautious men, who have risen I daresay in life. who are substantial men, and I treat them as very respectable men. They go down to Swansea, they had seen MrJ. Crispe in London, or one of them Mr. Goulton had, and' I think Mr. Cooper had also seen him, but two of them had never seen him in their lives they buy this colliery of Mr. Crispe for 840,000, they find that Mr. Crispe is not the owner of the colliery; they go down to Swansea on the 10th of September, they communicate with Mr. Norton that these gentlemen had bought the colliery and were prepared to contract. Now what ought to have been said upon that occasion? "These gentlemen have bought the colliery for 830,000 and are prepared to contract." Mr. Glasse You Lordship has made a mistake, they never saw Mr. Norton on the 1'0th. The Vice-Chancellor: I did not say the 10th, did I ? Mr. Glasse: You did say so, but you did not mean it. They saw Mr. Donague, they did not see Mr. Norton. The Vice-Chancellor: They go down to Swansea and unknown, and unknowing as I can collect, never having seen any human being who resided there—they had seen Mr. Crispe in London, they had never seen Mr. Norton and they had never seen Mr. Donague. Now how does Mr. Donague come into communication with them ? Mr. Donague was Mr. Elford's solicitor, Mr. Elford says he had employed him in that capacity for about four years. he had also been in partnership with him in a colliery which they had sold some four or five years before. But these four purchasers who go down with £40,000 ready to pay or a considerable part of it had never seen Mr. Donague and had never seen any one of these parties. They see Mr. Elford, and they are willing to employ a local solicitor to carry into effect this local purchase, and Mr. Elford recommends them to his local solicitor, Mr. Donague. Now I am desired to believe and very much pressed to believe that upon the 10th or 11th of September, Mr. Donague did not know the price which these four gentlemen were to give for this colliery, be- cause it appears (and here is the contract) that Mr. Norton was told it was 830,000, and accordingly here is a contract prepared by Mr. Norton, and executed by all the parties, including Mr. Crispe, by which Mr. Morgan is made to sell the colliery to these gentlemen not for 840.000 but for 830,000. Now I say why was jE30,000 put in the contract as the purchase-money ? If there was nothing to conceal I repeat why was there concealment ? Would not open and fair dealing have required that Mr. Donague, if he knew it, should have said to Mr. Norton, I introduce these gentlemen at the request of Mr. Elford they have given £ 40,000 for the colliery, and you are to receive j630,000, because that is the price at which you have sold it to Mr. Crispe." What would have been the reply? Why, obviously if Mr. Norton at that time had been told that these four gentlemen were to pay jE40,000 for the colliery, would he not have Said, "What, my client's colliery sold for 840,000, why is he not to have the j340,000 ? Oh, because you have sold it to Mr. Crispe for 830,000. What would have been the answer? I have not sold it to Mr. Crispe Mr. Crispe knows that. I have denied there is any contract, and Mr. Elford knows that he has denied that there is any contract. I made it a condition that a deposit should be paid. No deposit has been paid there is no contract, and therefore I utterly repudiate the notion that Mr. Morgan is to convey his colliery for £30,000 when £40,000 is to be paid for it. Thai the parties must hive known. Now, did Mr. Donague know that fact or not ? Now, first of all the probabilities of the case, looking at the way in which business is usually conducted, are against it. Here is a solicitor, a middle-aged man, who has been engaged in the law for many years, although he has only practised on his own account some three or four years, thoroughly experienced, and, as far as I can see, thoroughly able—is it according to the experience of any man that a solicitor should be applied to by strangers because he is imme- diately employed by these. four gentlemen? Is it I say in accordance with the practice of any man of experience in the law that a solicitor shall be instructed to carry into effect the purchase of a colliery without being told the price paid for it ? It is impossible, and I cannot believe it. I cannot believe that Mr. Donague was not informed on the 10th or 11th of September what the price was. However, there is his denial, but against that there is his own telegram which is at page 173. Now, one of the most extraordinary features of this case, which abounds in most extraordinary features, is that Mr. Donague imme- diately writes a letter to Mr. Norton that his client, Mr. Crispe will do so and so. It turns out that he had never seen Mr. Crisp in his life; that to the hour of writing the letter he did not know of his existence, and did not know that there was such a man in the world, and yet he writes that his client, Mr. Crispe, will do so and so. Mr. Crispe gets the telegram, which is at page 176. Indeed he gets two or three telegrams from Mr. Donague. He does not know who Mr. Donague is, and I find in writing he calls him Mr. Donahoo. He did not know who he was, and Mr Donague, who I must assume knew that £.40,000 was to be paid for this colliery, and who, I am satisfied upon the evidence, took great pains to conceal that fact from Mr. Morgan and his adviser, has got against his statement that he did not know the price-facts which I think are perfectly conclusive. Now, Mr. Donague says he did not know the price to be given by these sub-purchasers until the 17th of September, when he came to London. On the 13th of September he telegraphs to Cnspe in these terms, Crispe being a perfect stranger to him, and they having never known each otherI u/ to ^don to meet you and your solicitor next Wednesday morning. I am quite aware of your terms with Goulton. Now, is it possible that a gentleman of expenence should telegraph I am quite aware of your terms with Goulton. if first of all he could have been ignorant, and if he was ignorant would he have sent the telegram that he was quite aware of those terms? But that is not all. Mr. Cnspe was very severely cross-examined upon this; he was asked— indeed I think I asked him myself-aboutit. This tele- gram I should say brought Crispe down to Swansea. He did not know who Mr. Donague was he did not know his name. He was astonished at this, and he went down to Swansea to see Mr. Donague, and the result was he arranged with Mr. Donague there on the loth to go and see Mr. Norton, who had gone away from owansea, I suppose, for recreation to Malvern; he was to go and see Mr. Norton at Malvern, and then come to London and see Mr. Crispe. Mr. Donague says he did not know the price until he got to London on the 17th. That is contradicted by this, and it is contradicted by Mr. Crispe himself, who says-and I have my own notes here and also the shorthand writer's notes—that he bas no doubt he told him when he was at Swansea. That is on the 13th or 15th—about that time. But that is not all, because there is the letter of the 16th from Mr. Crispe himself. Mr. Glasse Do you mean Mr. Crispe's letter to Mr. Davis? The Vice-Chancellor: Yes. Mr. Glasse That is at page 182. The Vice-Chancellor It is written on the 16th. Mr. Donague says he did not know until he got to London on the 17th what the price was, and then Crispe writes this letter on page 182 to Messrs. Davis, Mr. Crispe's solicitor." It further appears that cheques for JB3,000 were drawn as to the value of which Mr. Norton satisfied himself by telegraphing to the bankers. Mr. Donague also obtained from Mr. Goulton "—that is not the letter. Mr. Glasse I thought you meant the letter from Mr. Crispe to Messrs. Davies. The Vice-Chancellor That is quite right; it is from Mr. Crispe to Mr. Davies—"It further appears that cheques for £3,000 were drawn, as to the value of which Mr. Norton satisfied himself by telegraphing to the bankers. Mr. Donahue," as he calls himself here, also obtained from Mr. Goulton a letter that I was to be paid JB10,000 additional. All this was done before I ever knew that such a person as Mr. Donahue existed." Therefore here is Mr. Crispe's own statement as to the result of his communication with Mr. Donague, that he got a letter that he was to be paid £10,000, that is the .£30,0.)0 plus the £]0,000 before he ever knew that such a person existed. This, therefore, amounts to demonstration, in my mind at all events, that Mr. Donague did, before the 16th of September, and indeed on the llth, know the price to be paid by these purchasers was j640,000 and not £30,000. Now, Mr. Donague dons not pretend to say that on the 10th and llth of September he told Mr. Norton — Mr. Morgan I do not think he saw,—but if he did that he told either of them that the purchase-money was anything more than £30,000, which was the price mentioned in the contract to which I have just referred. Then the contract having been drawn hy Mr. Norton and approved by Mr. Donague, on behalf of the purchasers, Mr. Morgan was to have executed"it upon that day but it seems before he exe- cuted it he had occasion to leave for Llanelly, and the result was the contract was never signed until the Sth or 9th of October; and both parties agreed that the cause of delay was that Mr. Morgan had some arrangement to make with the Glamorganshire Banking Company at Swansea, who had some claim on the property, and in whose custody the deeds were, so that he would not sign the contract until he had arranged how much he was to pay them. That having been arranged, it was signed by all the parties on the 8th or 9th of October. It had originally been contemplated that the purchase should be completed at the end of the month at which time it was signed, but Mr. Norton at once said, Inasmuch as there has been a delay, and that delay has been caused by my client, Mr. Morgan, we will therefore consider the end of October, instead of September, as the period for completing the purchase." Accordingly, the purchase was to be completed on the 28th of October. It is per- fectly clear that on the llth the parties separated, for these gentlemen went back—some to Rotherham and some to other places—the terms of the contract having been agreed upon but not signed. I do not find between the llth of September, when they separated, and the 9th of October, when the contract was signed, that there was any communication whatever telling Mr. Morgan that more than jE30,000 was to be paid for the colliery nor do I find that upon the occasion of signing the con- tract, or any time between that and 28th of October, when it was carried into effect, there was the slightest intimation to Mr. Morgan or Mr. Norton that the price was more than £30,000. But in the meantime the con- veyance had been prepared. These gentlemen, coming from the north of England—from Yorkshire—had adopted Mr. Donague as their solicitor. He had plenary powers for carrying this contract into effect. Now, whatever Mr. Donague knew in September, it is un- questionable that in October he did know, because his admission is that on the 17th of September he knew that the purchase-money was £40,000. Now, Mr. Donague, somewhere between the 20th and 28th of October, pre- pared the draft conveyance. I see it is approved by Mr. Norton on the 22nd therefore, being approved by Mr. Norton on the 22nd, and also by Mr. Donague, on behalf of his client, the purchasers,—and I say again, if there was nothing to conceal, why any concealment ? That is a question I press upon the parties. Mr. Donague, when he prepared this draft conveyance, per- fectly well knew that his clients, Mr. Goulton and others, were to pay .640,000 for this colliery-that is beyond all question. Now, I want to knew, still adhering to my rule, that if there is nothing to conceal, there ought to be no concealment, and that in all these matters of busi- ness there should.be openness and straightforward deal- ing,—if Mr. Donague knew that B40,000 was the price to be paid for the collLe^y—because Mr. Crispe is now treated as the owner of the colliery—he had acquired'it for £30,000 and sold it for £40,000. I think nobody will question the accuracy of my statement that the proper mode of preparing this conveyance was to state that whereas Mr. Morgan had sold the colliery \n the month of May to Mr. Crispe for jE30,000, and that Mr. Crispe had since resold it to Mr. Goulton and others for £40,000. Then the deed would have run thusNow this in- denture witnesseth that in consideration of JB30,000, paid to Mr. Morgan, in whom the legal estate was, by the direction of Mr. Crispe, and in coasideration of £10,000, paid by these purchasers to Mr. Crispe, Mr. Morgan, by the intervention of Mr. Crispe, 'who had become owner of the estate by a "contract," as they alleged, would con- vey, and Mr. Crispe would ratify and confirm the colliery to these purclasers for £4.0,000. Then this ought to have been stamped properly as a deed executed for the consideration of £40,000. That, however, is not the course adopted; but as the contract of the llth of September had been prepared as a contract for £30,000, so this conveyance is a conveyance for JE30,000 also. Now, after all the elaborate and lengthened arguments, for such they were, and painstaking almost beyond all ex- perience, on the part of the counsel for Mr. Elford and Mr. Crispe, I have utterly failed to discover any honest motive in drawing that deed not in accordance with the real facts, but diametrically opposed to them. I can find no excuse for it whatever, and the only theory I can come to is that it was felt that there was something to conceal, and that would effectually be concealed by pre- senting to Mr. Norton, or to Mr. Morgan, or both, y draft, of which Mr. Norton approved, to sell the colliery for jE30,000, instead of £40,000. Now, what is the re- presentation made ? They say that they made a mistake in drawing this for £30,000, and the deed was conse- quently erroneously stamped, and they were obliged to present a memorial in the following month of December —the 16th of December—to the Stamp Office, to allow this deed to be stamped as a j640,000 purchase, instead of £30,000. Does Mr. Donague desire it to be understood that he is so inexperienced that he did not know how to prepare a conveyance for a purchase of J640,000, that he would represent that as £30,000; and that he could think that a colliery sold for £40,000 would be only obliged to pay an ad valorem duty for B30,000 ? That is one theory. That is ignorance. Now, is there an object the other way? I think there is. To prevent Mr. Norton and Mr. Morgan knowing of the £10,000. It is plain enough. I am sorry I am obliged to come to the conclusion that I think that was the object, and I am sorry, therefore, that it is a conclusion which very seriously, in my opinion, involves the professional charac- ter of Mr. Donague. I am always most anxious— in fact, all Judges are, I hope, and I certainly know that I am—to throw every possible protection round the character of professional men. I am anxious to protect them in every way, but I can find no excuse for this. Either they believed there was a contract or they did not. If they believed that Mr. Crispe had be- come the owner of this property for E30,000, why not have disclosed their view to Mr. Morgan and his adviser, and have told them in writing so that there could have been none of this cross swearing and false swearing ? A line would have been sufficient-" You are to convey to Mr. Crispe for JE30,000, and Mr. Crispe is to have £10,000 more, making the purchase money £ 40,000." Now that draft had been approved of by Mr. Norton, and it was engrossed, the engrossment was ready for execution, and then that which is very unusual in such transactions again takes place. The 28th of October being appointed for the completion of this purchase at twelve o clock on the 27th of October these four purchasers, accompanied by two at least, if not three or four friends, travel all the way from Rotherham, in Yorkshire, to Swansea, to complete this purchase on the following day. They were accompanied at all events by two gentlemen, who have made affidavits and have been cross-examined before me —Mr. Wood and Mr. Habershon. Now again the course of business upon that day was extraordinary, and I am bound to say that I think that Mr. Davies is far from being free from blame for the manner in which it was conducted. You would have expected, there being nothing but honesty, because the representation is, this is all honest, straightforward, and above board, and there is nothing to conceal. What would have been the usual course of business ? These gentlemen had gone down, with two or three friends, in a saloon carriage— and then all these gentlemen have been cross-examined before me, occupying, I think, about a day and a half's time, and none of them can remember anything which took place on their journey, none of them can remember hardly anything which took place at Swansea except one thing, and none of them can remember what had taken place only a year ago. Mr. Crispe and his solicitor, Mr. Ben. Davis, (upon whose conduct in the matter I find no imputation whatever) went down to Swansea also, and were there on the 28th of October. Now what is the usual way of conducting business? There were two parties interested in this colliery, Mr. Morgan, who had sold to Mr. Crispe for E30,000, and Mr. Crispe had reo sold to Mr, Goulton and others for £ 40,000 Mr. Morgan had to receive £ 30,000 in money or money's worth, and Mr. Cnspe had to receive £10,000. If anything but fair. ness was intended, why were not Mr. Crispe and Mr. Davis invited to go to Mr. Norton's office to complete this purchase ? That would have been the usual course of things. Again, I say why conceal anything ? But it is a remarkable thing, and this case abounds in remark- able incidents, that during the whole of that day down • iv\?er ^me Mr. Crispe and Mr. Ben. Davis were play- ing hide and seek, stopping in Mr. Donague's office when they ought to have been in Mr. Norton's office, instead of going up and executing the deed when all the other parties executed it at Mr. Norton's omce there are two Tjsits paid—all these from purchasers going to Mr. Norton s office—in the beginning they go to Mr. Dono- gue's office, Mr. Donogue goes with them, not taking his client Mr. Crispe with them, as you would suppose a man would do, but going first of all to Mr. Norton's office, and then going back with these four gentlemen to his own office, getting the execution by Mr. Crispe, when he might just as well, as far as I can see, and indeed much better, have taken Mr. Crispe up to Mr. Norton's office, and then there would have been a complete disclosure, and there could have been none of this counter meaning a& to who was to have received the purchase money, and all would have been fair and above board, and everybody would have known what he was about. However, the eourse of business was what I have described; they first go to Mr. Norton's office, they ask whether the deed is then ready, they are told yes; it is then it has got to be executed by Mr, Crispe, and M I remarked to Mr. 1 Higgins, whem he was addressing me, supposing they had sent the office boy dewn to Mr. Donogue's office, Mr. Donogue was there, and I should have expected that Mr. Donogue would have asked Mr. Norton to send his ■. amce boy down, and that he would have said—" Go down to my office and ask Mr. Benn Davis and Mr. Crispe to come up here and execute this deed, aad complete the contract." If he had done that it would have come out in a manner beyond aU possibility of doubt that Mr. Crispe was to receive 610,000. But instead of that Mr. Donague takes the deed, goes down to his office, has it executed by Mr. Crispe then and there in bis office, then these gentlemen— misled, I am bound to say, in the mode of conducting business by Mr. Donague, incautiously putting their confidence in a man of whose existence they had only known for a short time—allowed themselves most in- cautiously to depart from the usual mode of conducting business they go and actually pay £10,000 by a cheque to Mr. Crispe, and that fact, as far as I can see, was certainly up to a certain period of the day beyond all possibility of a doubt concealed from Mr. Morgan and Mr. Norton. However, they came back with the deed on the 28th of October then Mr. Crispe executes it and all the necessary parties execute it and the thing is complete. 1 Mr. Norton seems to a very considerable degree dis- satisfied he had become dissatisfied with reference to their conduct, and I do not wonder at it—he was dis- satisfied about Mr. Crispe, and evidently was dis- satisfied with the nature of the transaction. Now I am bound to say that the only thing that I see in favour of the defendant is the want of caution on the part of Mr. Norton. It does appear to me extraordinary, considering the correspondence which Mr. Norton carried on with Mr. Crispe. I think he might well have supposed that Mr. Crispe was to get something by this purchase, and why it was that Mr. Norton did not put the question— "What is Mr. Crispe's position—what is he going to have ?" I do not know. If he had put that question to the purchasers, I see no reason to doubt that they would ha.ve answered him honestly—" We are going so pay Mr. Crispe £10,000." I do not think if he had put the question to Mr. Donague, if Mr. Donague had been inclined to conceal the fact that he could have done so then. If Mr. Norton had said to Mr. Donague, What is Mr. Crispe going to have—what is the meaning of all this ?" I think Mr. Donague would have said—" Oh he is going to have £ 10,000—he has sold the colliery for £40,000; he is going to pay you £30,000, and he is going to put £10,000 into his own pocket." However, that was not done. Perhaps it may be met by the observation that one man is entitled to believe another in any transaction he enters into upon the representations made to him, and to act upon the truth of the representations, and that the effect of it was that the conduct of Mr. Donague and all these parties amounted to a representation that £30,000 only was to be paid for the colliery. At all events it is to be said upon their behalf that they did think that Mr. Crispe was going to get something by it, but then Mr. Morgan says that he was under the impression that Mr. Crispe was to go snacks" with Mr. Elford—that was his own expression in cross-examination that is to say, he was to share the £5,000 with Mr. Elford. Con- sidering the very handsome remuneration for selling the colliery,—for as far as I can see the whole labour, as far as I made it out from the evidence, and the whole con- sumption of time by Mr. Elford in this transaction, might very well have been compressed into one week,—all that he did, in my opinion, did not amount to a week's labour, and if a man is so fortunate as to obtain £5,000 for a week's labour, although extending over three or four months, I should think he might consider himself sum. cient!? fortunate to be enabled to pay something to the- man who had been the means of his gaining the money, and that it is stated on the part of Mr. Morgan was the impression that he was under—that Mr. Crispe was to go "snacks," which means that he was to have the com- mission with Mr. Elford. However, the transaction was completed—the 610,000 was paid to Mr. Crispe, and with the 610,000 cheque in his possession (which is much more probable he sent it to his bankers), it would be sure to be a crossed cheque, and no doubt by the same night's post he sent it to his bankers in London. Then comes the letter from Mr. Eiford, of the 30th of October, two days after the contract was completed, and that letter is, I think, at page 235. Now this letter goes to satisfy me and to corroborate, or rather to bear out finally, that from be. ginning to end Mr. Elford entirely overlooked the in. terests of his employer and was playing into the hands of Mr. Crispe. It is the letter written by Mr. Elford to Mr. Crispe on the 30th of October, 1873, which is within 48 hours after the completion of the purchase :—" Thomas E. Crispe, 24, Gloucester Place, Hyde Park. Dear Sir," I have pointed out the manner in which Mr. Crispe had got the cheque for 610,000, a good cheque duly honoured on the 28th, and if Mr. Elford was fortunate in getting £5,OOOfor what I may call a week's labour, how much more fortunate was Mr. Crispe to get £10,000 for perhaps about the same amount of exertion, and therefore Mr. Elford says —" You have no doubt ere this heard that your nice little- cheque for 610,000 has been duly paid, and I shall now be glad if you will kindly make me a remittance of your pro- mised handsome douceur." Here, again, is the agent of the vendor bargaining with the purchaser for the handsome douceur, because when he says your promised hand- some douceur" one must have offered it, and the other accepted it. I shall now be glad if you will kindly make me a remittance of your promised handsome dou- ceur, and at the same time I hope you will not object to inform me, in confidence." Now, he is not satisfied with the douceur, but Mr. Noble, who is represented by Mr. Crispe as having the knack of getting something out of everybody's bargain, was to have some of this 610,000 and not only was Mr. Noble to get something, but Mr. Noble's getting it was to be the means of Mr. Elford getting something also, because he now says "make me a remittance of your promised handsome douceur, and at the same time I hope you will not object to inform me, in confidence, the exact sum you have to allow Mr. Noble, as I have some matters to arrange with him in re- gard to the sale of this colliery. You will remember my asking you this question when you were here a few weeks since, and you then said you could not name the exact sum, but that it could not be less than £ 1,000." That is to say, therefore, Now, as I have played into the hands of you and Mr. Noble, I have played into your hands further, and enabled you to get £10,000. You told me you should not give anything less than .61,000. I have a claim against Mr. Noble therefore I shall be able to get something from Mr. Noble, which probably I should not otherwise get." Thus there were two profits to be made. Then he adds this—" Hoping to hear from you per return of post, as I have to meet and arrange this with Noble in a day or two, and congratulating you on the termination and, to you, splendid result of this colliery transaction, I remain, &c." I think he might well have congratulated him, considering the manner in which he had got the £10,000. It is now to my mind pretty plain, subject to what I have to say upon the conflicting evidence, that they thought they had succeeded well. Mr. Elford had managed that it should not be communicated. He had, in fact, received in money or money's worth his .65,000 remuneration, partly by cheques and partly in bills. He had got his jE5,000 Mr. Crispe had got his 610,000 Mr. Donaghue had received from the purchasers a bill of costs of £460, which I say nothing about, but it seems to me very large. However, if the purchasers are satisfied to pay it I can raise no objection. But a very, very extra- ordinary part of the case is this, that not only was he paid by the purchasers £460, but he was paid £150 by Mr. Crispe. Now, as he had not been Mr. Crispe's solicitor for more than two or three days, and that without an authority, the only excuse I think there is to be offered for the £150 paid by Mr. Crispe is that he had gone to Rotherham for him. Well, but a solicitor does not get £150 even for going from Swansea to Rotheram, and I am rather of opinion, upon the evidence that I must consider, that he went to Rotherham to see his own clients the purchasers, and not for Mr. Crispe, because all the time Mr. Crispe was represented by Mr. Davis, of Cork-street, in London. However, he got .£150. If this was an ordinary business transaction, how am I to understand that ? But this is not the most extraordinary part of it, because it came out in cross-examination that he also got £200 from Mr. Elford. Now this £200 paid to him by Mr. Elford is so extraordinary that thinking it over after the examination of the last two or three days, it occurred to me so extra- ordinary that I thought I should like to have an explana- tion from Mr. Donague what the j6200 was paid for. Now look at the evidence. The four purchasers, as I have said, go down to Swansea on the 10th of September; they want a solicitor, Mr. Elford introduces them to Mr. Donague. A solicitor of position, of course, never condescends to pay parties for an introduction, and what had Mr. Donague done for Mr. Elford ? Mr. Elford had done something for him by introducing these valuable clients from whom he had a bill of costs of JE460 as I understand, exclusive of the stamp duty, which was paid by the purchasers themselves. Therefore Mr. Elford had done something for Mr. Donague, but I cannot understand what Mr. Donague had done for Mr. Elford. Mr. Elford was very anxious about his commission. Why did Mr. Elford give Mr. Donague £200? This pressed so much upon my mind that I had Mr. Donague put into the box again, two or three days after his examination had taken place, I think on Monday morning, and I asked him to explain why it was that he received 6200 from Mr. Elford, which, I said, appeared te me to be beyond all usage and con- trary to all experience, that a man engaged in a transac- tion of this kind, procuring the sale of a colliery from one man to another, Mr. Elford not having been in any way employed by him or he by Mr. Elford, why it was that £200 was given. Mr. Donaghue could give no explanation whatever. I asked if it was voluntary, and he said it was voluntary. Now the theory submitted on the part of the plaintiff on the subject is very plain, and it is this—they had been very successful, they had succeeded in drawing the contract for J630,000, and got the conveyance through as a conveyance for £ 30,000; not a scrap of writing had been under the eyes of Mr. Morgan or Mr. Norton to show that the real price paid was £40,000, so the B150 paid to Mr. Donague by Mr. Crispe, and the j6200 paid by Mr. Elford was as a mark of their appreciation of his skill in getting this thing through without discovery, or was it an ordinary remuneration for his professional ser- vices. It is out of all experience. What then was it given for ? I confess I can find no rational theory that gives any satisfaction te my mind except that it was a reward for successfully concealing the transaction, and enabling Mr. Crispe to get possession of the £10,000. I hope I may be wrong in this, but it is the only conclusion I can come to. For Mr. Donoghue's sake I hope I am wrong, but as I feel I am right, lean only act on the supposition that I am so. These are extraordinary coincidences, but now, in order to prove that Mr. Norton and his elients knew that £ 40,000 was paid for this colliery, there is a bit of evi- dence brought forward which I confess it is exceedingly difficult to deal with. The four purchasers and two friends who accompanied them have made an affidaYit-I mean Mr. Goulton, Mr. Cooper, Mr. Jarvis Harris, Mr. Arthur George Harris (who are the four sub-purchasers), Mr. John Habershon, a gentleman of great respectability, and Mr. George Wood, who accompanied them, who are not purchasers, but who coiivemplated joining in this colliery, and have since joined it. These six gentlemen all swear to this—"On the 28th day of October, 1873, the day on which it was arranged that the purchase should be com- pleted, we, the deponents, paid or secured to the de- fendant, Thomas Edward Crispe, the sum of 610,000, agreed upoa m the wmlderatfoo for the purchase iron