McCay, Judge.
1. The great issue on trial in this case was whether the defendants had, by unfair practices, so wrought on McLean’s fears as to induce him, under the influence of those fears, to sell his property to them for much less than a fair price. This involves two things: Hid they do the acts alleged ? And if so, did these acts produce an alarm which led McLean to sacrifice his property ? Hid they take an unfair advantage of the surroundings, and of McLean’s state of mind, to get his property from him at much less than its true value ? Any evidence which is material to the illustration of either of these points is admissible. A witness who was present at the time of the transaction, and who testifies to the general statement that McLean was alarmed, did not act of his own free will, and that his legal adviser misrepresented the facts, (the legal adviser being one of the defendants and a partaker of the benefits of the fraud, if there was a fraud,) is, as it seems to us, giving “ competent ” testimony. True, he might, when questioned, go into greater detail, and it is in the power of the other side to push the inquiry into those details. The testimony, we find by this witness, goes into some 'of those details, and the other portions of what- he says are to be considered in determining the weight to be given to the general statements. The witness states that he was present. He states that Clark negotiated the trade; that Clark was McLean’s legal adviser;" that he deceived McLean and put him in fear, so that he had no free will. He states, in other parts of his testimony, the character of the misrepresentations, etc. So far as this is a statement of facts, it is surely competent. That it does not sufficiently go into details; that it is general; that the witness states, as facts, which other parts of the testimony show he *68was mistaken in, or did not know that these or like objections may be charged against it, are objections to its weight and not to its competency. Some of it is matter of opinion; but, so far as the state of McLean’s mind was concerned, whether he was or was not alarmed, and the cause of his alarm, are, necessarily, matters of opinion; and, under the law, Code, section 3811, a witness may, in such matters, give his opinion, if he states the grounds of that opinion. The whole goes to the jury for what it is worth. If the grounds stated show that the circumstances were such as to justify the opinion, or if they show the contrary, the opinion has more or less weight with the jury.
2. It is always difficult to get at the state of the mind of another, and yet, in cases of this kind, this is of the utmost importance. There is hardly any other conceivable mode of getting at this than from the acts and words of the person at the time. Our Code, section 3720, lays down the rule on this subject thus: “ Declarations accompanying an act, or so nearly connected therewith, in time, as to free them from all suspicion of device or after-thought, are admissible in evidence as part of the res gestee.” And, again, section 3718: “When, in a legal investigation, information, conversation, letters, replies, and similar evidence, are facts to explain conduct and ascertain motives, they are admitted as original, and not as hearsay evidence.” We think the saying of McLean to the witness, immediately after the transactions, were, under these rules, admissible. What conceivable motive was there, just at that moment, to tell an untruth as to his motives ? What suspicion of device or afterthought arises ? Can it be supposed that, at that moment, he was looking to the repudiation of. the contract? We think not. We think this statement is evidence, and fair, good evidence, to show the state of McLean’s mind at the time. That, it must be remembered, is a distinct issue. Whether these defendants produced that state of mind, or how it arose, is another question.
As to all this evidence, which is mentioned in our first and second head-notes, whilst we hold it competent, we express no *69opinion upon its weight or credibility. That it was, and is, for the jury to pass upon, and in another trial, if there should be one, the jury have a right, and it is their sworn duty, to give it such weight, and such weight only, as their own good sense and conscience may dictate. The opinion we express of its competency is not to affect them in their judgment of its credibility or. its weight.
3. We think the rule as to privileged communications to attorneys does not extend to a case like this. .The attorney here was, at the time, attorney, not for the party making the communication, but the attorney of another, and by the very terms of the communication, it was to be proposed to the attorney, then to the client. Whilst the first relation existed, it was impossible for the attorney to enter into relations of any kind, inconsistent with his relation as attorney to his client; and if one, knowing this relation, sees fit to make communications to him, based on a future prospective employment, he does so at his peril, because the attorney at the time is the attorney of his then client, and he is bound to be true to him. This was not a privileged communication on principle, and as, by its very terms, it was to be communicated, we think it ought to have gone to the jury.
4. We cannot explain the discrepancy between the bill of exceptions, as signed by the Judge, and the reasons given by the Judge in his refusal to grant a new trial. These reasons are1 not part of the record; they need not to have been given, and they form no necessary part of the judgment. Ordinarily, the record may be used to correct the bill of exceptions: See Code, section 4223. But the reasons given by the Judge in his order overruling the motion for a new trial, can hardly rank with the bill of exceptions, which is a special certificate of the parol facts as they occurred at the trial.
5. When other persons are let into a trade, made, in form, in the name of another, but, in fact, on consultation with them,' and in view of their joint interest, they stand on a different footing from purchasers, from the nominal vendee. This is only common sense. Neither equity nor good morals care *70for the form in which parties see fit to clothe their transactions. If Clark, Harris and Steadman had consulted together and contemplated a joint purchase, and it was understood they should be jointly interested, and - Clark made the purchase, practicing a fraud in so doing, they all take the title tainted with the fraud. The actual purchaser is only the agent of the others. The subsequent arrangement is mergly in pursuance of the first understanding. We do not say there was a fraud, but if there was, it would be a very dangerous doctrine to hold that, because they all did not participate, the sale is good as to those who are not to blame. Clark was, in fact, the agent of all. Under the facts proven, it would have been gross bad faith on the part of Harris and Steadman to have refused to participate in Clark’s purchase, if it was fair. In equity, therefore, he acted for all, for himself and as agent for the others.
6. We see no good objection to this mode of proving the value of the machinery. Certainly, what four or five men were willing to give for it is some evidence of its value. It may not be, and is not, conclusive. But value is always a matter of uncertainty, and an offer made, as the witness says, in good faith, and with intent to buy, is a tolerably safe mode of proving value. True, there might be special reasons why these men were willing to pay extra, but on inquiries as to value, such difficulties attend almost any mode of proof.
•7. We think it was unfair to the plaintiff for the Judge to suggest to the jury, as he did in the charge, that McLean might have been influenced to sell by his knowledge that the factory was liable to be destroyed by the Federal army. There was no evidence that any such motive influenced McLean. So far as we find the facts, as set forth in the record, nothing upon this point appears, except in the charge of the Court. Doubtless the counsel may have pressed such a thought in argument to the jury, but it was not for the Court to press it home by his charge, since there was nothing in the evidence to justify it. The Judge should, on the contrary, if counsel *71did so argue, have warned the jury that they were to determine the case from the evidence.
8. In a bill of this kind, charging fraud and setting forth the details of it, we do not think it fair for the Judge to hold the jury to the specific detail of the facts in the bill to the letter. If any evidence is offered not .coming fairly within the charges, it is the right and duty of the defendant to object; perhaps the complainant may wish to amend his bill, and if objections are made to testimony for want, of proper charges, he will doubtless do so. If the evidence offered be not objected to, for want of proper allegations, and it go to the jury, we do not think the jury are not to consider it, because the particular specifications of the bill do not mention it. If it bears on the main issue, and has gone to the jury without objections, the jury may consider it, though it be not specified in the bill. In this view of the law we think, under the evidence, it was error for the Judge to state, as he did, the plaintiff’s case, as stated in the bill, and then say, if these facts be proven you should find for the plainiiff, if not you should find for the defendant. The real issue was the fraud; the taking advantage of the fears of the complainant, and the agency of the defendants in getting up those fears for improper purposes. Anything which went to eslablish that issue, as claimed by the plaintiff, was, if before the jury as evidence, matter for their consideration, whether it was specifically set forth in the bill as one of the methods of the fraud or not.
9. "We have not much faith in rules for weighing testimony; "Very much of what is put forth as law on this subject, is rather philosophy than law, and Judges, in giving such rules to the jury as law, should be very careful to keep within well settled rules. To justify disbelief in the testimony of a witness, because some portion of what he says is not true, it should always be remembered that the untruthfulness must be of some material matter; there are good reasons for this, in that men are not particular in statements, which are not material, but come in only as- part of the res gestee; they do not *72remember such things accurately, and it seems absurd to charge a witness with wilfully telling falsehoods, immaterial to the issue in hand. We think the Judge ei-red in not qualifying his charge on this subject, so as to conform to the rule as we we have stated it.
10. We think, too, there was error in the charge as to the duty of the jury, when the plaintiff swears one way and the defendant another. In any case, and between any two witnesses, the jury may pass upon the credibility of the witnesses. The manner of the witness, the probability of the witness, his means of knowledge, etc., are all left out by the Judge in this rule. We think, too, the jury are clothed with a special power on this subject, under the Act of 1866, when the witnesses are parties; they may believe one and disbelieve the other; the strength of the interest of the witness becomes an element, and the character of the witness, as read in his face, and evidenced in his mode of swearing, and all the circumstances.
11. As we have said, we have not much faith in strict, unbending rules for weighing testimony. If there are any such rules, and we admit such rules do exist as law, they are only general rules, and are liable to be controlled by the facts and circumstances of each case. They are guides when the mind is otherwise at fault, and juries should not be held to them as rigid, unbending rules.
12. Perhaps the Judge merely made a slip of the tongue in giving, as he did, such undue prominence and weight to the ' oral evidence. It was, however, calculated to mislead the jury, and espécially was it true, in this case, when most of the complainant's testimony was by interrogatories.
13. The very foundation of the complainant's bill is that he was frightened into this sale by his fear of violence from those who were enraged at him for hoisting some other than the Confederate flag. We do not think it fair for him to be charged with acquiesence from mere lapse of time, for failing, as long as he did, again to meet the anger of a community which he thought was so enraged. The events subsequent to *73that time have not been such as to encourage a timid man to/ assert rights based on the charges of this bill. We know, too, that until 1868, our Courts were so situated towards the people and the United States as that men might well hesitate to resort to them. Even the Legislature and this Court have treated the statute of limitations suspended until 1868, and vje think, in analogy to the law, equity would do the same thing.
14. The defense set up of waiver stands, to some extent, on the same principles as we have stated as to acquiescence. But we think it was due the plaintiff in this case that it should plainly appear he intended, by the receipt of this money, to waive his rights, or that he was, in fact, insisting on the contract. The evidence on this subject is not satisfactory. It does not clearly appear that he knew the source of this money. Waiver, in fact, is a matter of proof. Its very basis is intent, and unless the facts show knowledge, and are such as to make the inference of intent natural and free from doubt, the presumption of waiver from an act ought not to arise.
We think there ought to be a new trial. The charge of the Court and his rulings at the trial were such as to prevent a fair consideration of the plaintiff’s case. We should not grant a new trial on the evidence alone; but the excluded evidence and the charge of the Judge may have affected the verdict, and we think a new trial ought to be had.
Judgment reversed.