Fraud, mistake, surprise, misrepresentation, or concealment.

(p) Saxon v. Blake, (1861) 29 Beav. 438.

(q) Hay ward v. Cope, (1858) 25 Beav. 140 ; 27 L. J. Ch. 468.

(r) Per Lord Cottenham in Edwards v. Grand Junction R. Co., (1836) 1 M. & C. 650, 674 ; 6 L. J. N. S. Ch. 47.

(s) Webb v. Direct London and Portsmouth R. Co., (1851) 9 Ha. 129 ; 21 L. J. Ch. 337.

(t) Fry, 4th ed. 306 et seq. As to evidence of fraud, see Griggs v. Staplee, (1848) 2 De G. & S. 572.

(u) Calverley v. Williams, (1790) 1 Ves. 211; Stapylton v. Scott, (1807) 13 Ves. 425, 427 ; Clowes v. Biggin-son, (1813) 1 Ves. & B. 524 ; Lord Gordon v. Lord Hertford, (1817) 2 Mad. 106; Colyer v. Clay, (1843) 7 Beav. 188 ; Monro v. Taylor, (1848) 8 Ha. at p. 56; 21 L. J. Ch. 525; Biggins v. Samels, (1862) 2 J. & H. 460 ; Cochrane v. Willis, (1865) 1 Ch.

68 ; 35 L. J. Ch. 36. See generally on the subject, Fry, 4th ed. 341 et seq.

(x) See Tamplin v. James, (1880) 15 Ch. D. 215; Harnett v. Yielding, (1805) 2 Sch. & L. 549, 554; Howell v. George, (1815) 1 Mad. 1, 11 ; Baxendale v. Seale, (1854) 19 Beav. 601 ; 24 L. J. Ch. 385 ; Attenborough v. Edwards, (1854) 3 Eq. R. 124 ; Swaisland v. Dearsley, (1861) 29 Beav. 430; 30 L. J. Ch. 652; Hood v. Oglander, (1865) 34 Beav. 513. But see Van Praagh v. Everidge, 1902, 2 Ch. 266 ; 71 L. J. Ch. 598, where the mistake was solely due to defendant's carelessness.

(y) See Evans v. Llewellyn, (1787) 2 Br. C. C. 150 ; Twining v. Morrice, (1788) ib. 326; Lord Townshend v. Stangroom, (1801) 6 Ves. 328, 338 ; Mortlock v. Bnller, (1804) 10 Ves. at p. 305 ; Willan v. W., (1809) 16 Ves. 72.

Founded on a fraudulent or material misrepresentation or concealment (z) of facts "by the plaintiff (a).

Thus, where a vendor made a bona fide mistake as to the authority which he had given to the auctioneer, and the property was knocked down at a less sum than he had intended to accept, specific performance was refused (b); but a mere inadvertent omission to insert an intended term in the contract (c), or a mistake as to the legal consequences of an act (d), or as to the legal effect of the agreement (e), or as to the purposes for which the property may be used (f),is an insufficient ground of defence.

Mistake.

Where a mortgage was intended, but an absolute conveyance was in fact taken, the setting up of the latter by the mortgagee was held to be a fraud, and parol evidence was admitted to prove the terms of the contract (g) ; and where a contract for the purchase of a partial interest in an estate has been procured by fraud, a subsequent contract for the purchase of the residue, if fairly referable to the prior contract, will share its fate (h).

Fraud.

(s) As to what is, see Reynell v. Sprye, (1852) 1 D. M. & G. 660; 21 L. J. Ch. 633 ; Blake v. Mowatt, (1856) 21 Beav. 603 ; Mullens v. Miller, (1882) 22 Ch. D. 194; 52 L. J. Ch. 380 ; but see Hayward v. Cope, (1858) 25 Beav. 110; 27 L. J. Ch. 468 ; concealment by vendor of a mine: Archer v. Stone, (1898) 78 L. T. 34.

(a) Sec the subject discussed sup. Ch. III. and Ch. IV. p. 149 et seq.; and Lord Clermont v. Tasburgh, (1819)

1 J. & W. 112; Cadman v. Sorner, (1810) 18 Ves. 10; Lovell v. Sicks, (1836) 2 Y. & C. 46; 5 L. J. N. S. Ex.Eq. 101 ; Cos v. Middleton,(1854)

2 Dr. 208 ; 23 L. J. Ch. 618 ; Barker v. Harrison, (1846) 2 Coll. 546; Harris v. Kcmblc, (1831) 5 Bli. N. S. 730 : and Denny v. Hancock, (1870)

6 Ch. 1 ; and Brewer v. Brown, (1884) 28 Ch. D. 309 ; 54 L. J. Ch. 605 ; cases of a misleading sale plan: Sug. 14th ed. 211.

{b) Day v. Wells, (1SG1) 30 Beav. 220.

(c) Parker v. Taswell, (1858) 2 D. & J. 559 ; 27 L. J. Ch. 812 ; but see Broughton v. Hutt, (1858) 3 D. & J. 501 ; 28 L. J. Ch. 167.

(d) G. W. R. Co. v. Oripps, (1845) 5 Ha. 91.

(e) Powell v. Smith, (1872) 14 Eq. 85; 41 L. J. Ch. 734.

(f) Mildmay v. Hungerford, (1691) 2 Vera. 243.

(ej) Lincoln v. Wright, (1859) 4 D. & J. 16.

(h) Reynell v. Sprye, (1852) 1 D. M. & G. 660; 21 L. J. Ch. 633; Tonge v. Reynell, (1852) 9 Ha, 809.

In one case, a security obtained from a father for his son's debt, under a tacit or implied threat that the son would be prosecuted for felony unless matters were satisfactorily arranged, was held to be invalid; not merely as being a misprision of felony, but also on the ground that the father was so circunistanced as not to be a free and voluntary agent (i); but the mere fact of the defendant being in prison at the time of signing the contract, is not of itself a sufficient defence (j).

Duress.

And where one party induces the other to contract on the faith of material representations made to him, any one of which has been untrue, the whole contract may be set aside; for none can say that the untrue statement may not have been precisely that which turned the scale in the mind of the party to whom it was addressed. The subject of misrepresentation has been so fully dealt with in earlier parts of this work, in its relation both to executory (/r), and to executed (7) contracts, that it is unnecessary to enter further into it in this place, except to add that mere silence as regards a material fact, which the one party is not bound to disclose to the other, does not furnish ground for a defence to specific performance (m).

Misrepresentation.

An agreement, fair as between the parties, is not invalid merely because it may have been concocted and brought about by a third person with a fraudulent intention of benefiting himself (n). The question what degree of fraud, in the act of a mere stranger, to which the plaintiff was neither party nor privy, the Court will consider sufficient to deprive the plaintiff of a decree for specific performance, has been judicially discussed in the case below (o).

Agreement fair, as between parties, not avoided by fraud of third person.

(i) Williams v. Bayley, (1866) L. R. 1 H. L. 200 ; and see pp. 1014, 1054.