1861.

LYALL

v.

EDWARDS.

that such claims would be released. The substance of the
replication is, that at the time the plaintiffs executed the
release they did not know that they had any claim against the
defendants in respect of the dock warrants; but this is not a
mere question between the plaintiffs and defendants, but one
in which third parties are concerned. No doubt, where an
instrument is so general in its terms as to release the rights
of a party to property to which he was wholly ignorant
that he had any title, and which was not within the con-
templation of the bargain at the time it was made, a Court
of equity will restrain the instrument to the purposes of the
bargain, and confine the release to the right intended to be
extinguished: Story on Equity Jurisprudence, Sec. 145,
p. 171.
But the ground of relief is not the mistake or
ignorance of material facts alone; but the unconscientious
advantage taken of the party by the concealment of them.
For if the parties act fairly, and it is not a case where one
is bound to communicate the facts to the other upon the
ground of confidence, or otherwise, there the Court will not
interfere" Sec. 147, p. 173. "And it is essential, in order
to set aside such a transaction, not only that an advantage
should be taken, but it must arise from some obligation in
the party to make the discovery; not from an obligation in
point of morals only, but of legal duty:" Sect. 148, p. 173.
Here there was no duty on the part of the defendant to
communicate to the plaintiff that he had a claim in respect
of these dock warrants.

Secondly, the rejoinder is good. It discloses facts which would disentitle the plaintiffs to relief in a Court of equity. [Martin, B.-The rejoinder alleges that the defendants were authorized to pledge the warrants under a certain state of circumstances, but it does not state that they pledged them under those circumstances; therefore the rejoinder, upon the face of it, shews a conversion.] The rejoinder

states that the defendants were authorized to pledge the warrants to such an amount as the defendants were under liabilities to the plaintiffs, and that the state of accounts was unknown to either party, or that the defendants had exceeded their authority in depositing the warrants.

POLLOCK, C. B.-We are all of opinion that the replication is good and there joinder bad. It is a principle long sanctioned in Courts of equity, that a release cannot apply, or be intended to apply to circumstances of which a party had no knowledge at the time he executed it, and that if it is so general in its terms as to include matters never contemplated, the party will be entitled to relief. Here the replication sets out sufficient to shew that the plaintiffs are not bound by the release quoad the circumstances mentioned; and the defendants fail to establish any answer by the rejoinder. There will therefore be judgment for the plaintiffs.

MARTIN, B.-I am also of opinion that the replication is good and the rejoinder bad. The replication is founded on the equitable doctrine that if a release is given for a particular purpose, and it is understood by the parties that its operation is to be limited to that purpose, but it turns out that the terms of the release are more extensive than was intended, a Court of equity will interfere and confine it to that which was in the contemplation of the parties at the time it was executed. The case of Farewell v. Cocker (a), which has been referred to, is an authority for that position. Here we are required to call in aid the rule in equity. The substance of the replication is, that the act of conversion committed by the defendants was not within the meaning of the release. The replication is framed so as to shew that (a) 2 Meriv. 171.

1861.

LYALL

V.

EDWARIS.

state of things, and it is for the defendants to answer it. Then how do they do that? The rejoinder begins by stating that the plaintiffs employed the defendants to obtain advances for them and that there were matters of account between them, and that the defendants had authority from the plaintiffs to deposit warrants to an amount sufficient to cover the liabilities they were under for the plaintiffs. The rejoinder then states whilst certain warrants were deposited with certain parties the defendants suspended payment, and the parties realized the warrants: but it does not say that the defendants had any right to deposit the warrants. The rejoinder goes on to say that when the release was executed the accounts between the plaintiffs and defendants were unsettled, and it was unknown whether the balance would be on the one side or the other. What answer does that afford to the replication, or what tendency has it to shew that this cause of action is a matter within the release? If this rejoinder is good, it would be a matter for the jury to find whether in point of fact this cause of action was included in the release. It seems to me that the facts stated in the replication shew that the release was only intended to apply to such claims as ordinary debts, and not to a cause of action for a conversion.

WILDE, B.-I am of the same opinion. The doctrine of a Court of equity is, that a release shall not be construed as applying to something of which the party executing it was ignorant, and we have now to act on that doctrine in a Court of law. I think it will be found that a Court of law would correct a mistake of fact; but it is not necessary to decide that point. However that may be, the replication

is good.

With respect to the rejoinder, it is studiously drawn so as to avoid saying that the defendants were authorized to

deposit the warrants. The authority to deposit is set out, and one would expect to find a statement that the warrants were deposited under that authority, but the defendants carefully omit to state anything of the kind. The rejoinder does not answer the allegation in the replication that the plaintiffs were ignorant of the deposit of the warrants. replication shews that the release was given for the purpose of releasing a debt, and that a claim arising out of a wrongful deposit of the warrants is not within it. For these reasons I think the replication is good and the rejoinder bad.

The

Judgment for the plaintiffs.

1861.

LYALL

v.

EDWARDS.

HOLMES v. CLARKE.

Jan. 12.

DECLARATION. That after the passing and coming Where ma

into operation of the act of parliament passed in the year 1844, intituled "An Act to amend the laws relating to labour in factories," and of "The Factory Act, 1856," and before and at the time of the committing of the grievances and the sustaining by the plaintiff of the injury hereinafter mentioned, the defendant was the occupier of a building situate in Great Britain, to wit, in the city of Manchester, wherein the defendant carried on the business of a cottonspinner, and wherein in carrying on, and for the purposes the said business, a steam-engine producing steam-power was used to move and work machinery employed in preparing and manufacturing cotton, and in the process incident to the manufacture of cotton, the said building being factory within the meaning of the said statutes; and in part of the said building a certain mill-gearing, being mill, gearing within the meaning of the said statutes, was before

of

a

chinery is required by fenced, and

statute to be

a servant employment

enters into the

of the owner

whilst it is protected, and continues in

the service

after the protection is removed by decay or otherwise, but comdanger and is plains of the

promised, that the protection shall be restored, the master is liable for injury to the servant arising from the want of

such protection.

1861.

HOLMES

v.

CLARKE.

and at the said time of the said grievances and injury worked and put in motion, and was in motion, by the steamengine and the power thereof for the purpose of the said manufacture and process; the said part of the said building not being a part or place which, by the 73rd section of the first mentioned Act, or otherwise, is declared to be a part of the factory or place to which the enactment of the said 73rd section, or the definition of the word "factory" is not to extend. And before and at the said time the said building, mill-gearing and steam-engine and power were under the care, management and direction of the defendant; and the said mill-gearing was such as ought, according to the said statutes, to be securely fenced at the said time; and the same was mill-gearing with which children and young persons, within the meaning of the said Act, and women, were liable, within the meaning of the said Act, to come in contact. And the plaintiff before and at the said time was lawfully in the said part of the said factory with the consent of the defendant; Yet the defendant, after the 1st day of June, A.D. 1856, and before this suit, disregarded his duty and the said statutes, and did not securely fence the said mill-gearing, nor was the same securely fenced, contrary to the said statutes, whereby, after the said last mentioned day and before this suit, the clothes of the plaintiff were caught by certain parts of the said mill-gearing so in motion for the purpose aforesaid, and the plaintiff was drawn in and to the same and dragged about, and one of his arms was broken and torn off, and he received other great injuries and was put to very great suffering, and sustained great cost in and about getting medical and other attendance and necessaries. Pleas. First: Not guilty.

Secondly that before and at the time of the committing of the alleged grievances and of the sustaining by the plaintiff of the injury in the declaration mentioned, the plaintiff