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apprehended, and that is precisely a right which the Privy Council has declared that colonial Assemblies do not possess. If the plea had alleged that the plaintiff had obstructed the proceedings of the House, and that having for such obstruction been removed he returned to the chamber without the permission of the House during that same sitting, the case would have been different, and the justification would have been complete. But it cannot be held that a member of the Legislative Assembly can be "suspended" at its pleasure for misconduct of any kind. He may be expelled if sufficient grounds exist to warrant the House in taking that extreme course, and of such sufficiency the House itself must of necessity be the sole judge. But in the absence of any resolution formally expelling a member, he cannot be "suspended," although he may be removed to enable the business of any given sitting to go on, and he may for that purpose be kept excluded during that sitting which he has so interrupted and obstructed.

From what we have already said, it will be gathered that in our opinion the Assembly has neither the power to adopt from the Imperial Parliament nor to pass of its own authority any standing order giving itself the power to punish an obstructing member or remove him from the chamber for any period longer than the sitting during which the obstruction occurred. Whether the Assembly ought to possess the powers claimed is a question for the consideration of the Legislature. This Court can only declare the law as it finds it laid down by authority which they must respect. And in obedience to that law we must on these demurrers give judgment for the plaintiff.

Judgment for the plaintiff.

Attorney for the defendant: Williams, Crown Solicitor.

TAYLOR

บ.

BARTON.

1885

Feb. 11.

CHRISTIAN v. WOODS.

False representation - Purchase of shares-Lord Tenterden's Act (9 Geo. IV. c. 14) 8. 6.

Martin C.J., The defendant being instructed by a company to sell on commission certain new Faucett J. shares which the company intended issuing, falsely represented to the plaintiff and that the company was under no liabilities whatever, and that the property of the Windeyer J. company was unencumbered; and by means of such misrepresentation he induced the plaintiff to purchase certain of the said shares.

Held, that such representation was not as to the "character, conduct, credit, ability, trade, or dealings of any other person, to the intent that such other person may obtain credit, money or goods upon" within the meaning of sec. 6 of Lord Tenterden's Act.

FALSE REPRESENTATION.

Declaration: John Bassett Christian sues Thomas Woods for that the defendant, with the intent to induce and procure the plaintiff to subscribe for and take certain new shares of and in a joint-stock company called the Eastern and Australian Fresh Meat Company (Limited) and to pay a large sum in respect thereof, represented to the plaintiff that the said company was issuing the said new shares whereby to raise money for the purpose of carrying on and extending the business of the said company, and that the said company was free from any mortgage or charge, whereas in truth and in fact, as the defendant then well knew, the said company was then indebted to the amount of fifteen thousand pounds, and the said property of the said company was then subject to a mortgage and charge for the payment of the said liability of fifteen thousand pounds. And the plaintiff, believing the said representations to be true, and being induced thereby, did subscribe for and take up a large number of the said shares, and paid the sum of five hundred pounds in respect thereof. Whereby the plaintiff has lost the said sum of five hundred pounds and the use of the same and interest thereon for a long time, and was put to great loss and expense in inquiring into the truth of the said representations and was otherwise greatly injured, and the plaintiff claims 8001.

Plea: Not guilty.

The action was tried on 4th, 5th, 8th and 9th September, 1884, before His Honour Sir G. Innes. The jury returned a verdict for the plaintiff, damages 5351.

On 28th October, a Rule nisi was granted to set aside the verdict and to enter a nonsuit or verdict for the defendant or fora new trial, upon the grounds-1. That His Honour should have nonsuited the plaintiff on it appearing that the alleged false representation was not in writing. 2. That upon the admitted facts of the case, the plaintiff could not recover, the representation relied upon by the plaintiff being one within the meaning of 9 Geo. IV., c. 14, sec. 6 (1) adopted by 4 Will. IV., No. 17.

Pilcher (Field with him) for the defendant, now (11th Feb.) moved to make the Rule absolute-The plaintiff cannot maintain this action unles he proves that the representation was made in writing: Sec. 6 of Lord Tenterden's Act (1). A statement of the law will be found in Addison on Torts (4th Ed.) pp. 838-9. The representation was clearly as to the credit or ability of the company. It is no answer to say that the defendant was a shareholder; it was held in Devaux v. Steinkeller (2), that a representation by a partner as to the credit of the firm is a representation as to "the credit of another person" within the meaning of the Statute. The word "person" also includes a company: Boyd v. Croydon Rail. Coy. (3). If the representation had been made by the defendant in the usual scope of his employment as agent, the company or the directors would be liable: Barwick v. English Joint Stock Bank (4), Wontner v. Shairp (5), Mackay v. Commercial Bank of New Brunswick (6), Gerhard v. Bates (7). In every case reported in the books the representation was in writing.

(1) 9 Geo. IV., c. 14, sec. 6, enacts:"That no action shall be brought, whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon, unless

such representation be made in writing,
signed by the party to be charged there-
with."-2 Chitty's Statutes, 177.
(2) 6 Bing. N.C. 84.

(3) 4 Bing. N.C. 669.

(4) L.R. 2 Ex. 259; 36 L.J. Ex. 147.
(5) 4 C.B. 404.

(6) L.R. 5 P.C. 394; 43 L.J. P.C. 34.
(7) 2 E. & Bl. 476; 22 L.J. Q.B. 364.

1885

CHRISTIAN

V.

WOODS.

1885

[SIR J. MARTIN C.J. In Lyde v. Barnard (8) the judges seem CHRISTIAN to think that the section only applies where money or goods have been obtained on credit.]

v.

WOODS.

The Statute would clearly apply to the case where a person gets money on a representation as to the solvency of another person. What difference in principle is there where the representation is made as to the solvency of a company, who are alleged to be issuing new shares in order to increase their capital? The representation is as to the credit of another person. The defendant stated that the money was required, not to pay off an existing liability, but to extend the operations of the company that was a representation as to the credit of the company. It is immaterial whether the defendant obtained a loan from the plaintiff on behalf of the company, or whether he sold shares for the purpose of raising money to pay off its liability. The principle is the same, the effect being that the defendant obtained the plaintiff's money. The words used in the Statute are "obtain credit money or goods," and they include any case where money has been obtained by means of a representation as to the credit or ability of a third person. The word "upon" is surplusage.

Salomons, Q.C. (C. B. Stephen with him) showed causeLord Tenterden's Act was passed in order to prevent evasion of the provisions of the Statute of Frauds, by which a guarantee must be in writing: it does not apply to the case where the contract of sale was made with the defendant, but it applies only where the representation sued on was made by a stranger to the contract. If the contention on behalf of the defendant is right, then the company might be made liable, although the plaintiff could not recover against the present defendant. The section applies only to cases where money or goods have been obtained on credit: Addison on Torts, p. 838; Barwick v. English Joint Stock Bank (9); Wontner v. Shairp (10); Gerhard v. Bates (11). In Mackay v. Commercial Bank of New Bruns

(8) 1 M. & W. 101.

(9) L.R. 2 Ex. 259; 36 L.J. Ex. 147.

(10) 4 C. B. 404.

(11) 2 E. & Bl. 476; 22 L.J. Q.B. 364.

wick (12), and Lyde v. Barnard (13), the representations were by parol only. If the defendant's contention is correct, then the argument in Watson v. Earl of Charlemont (14) was unnecessary. The defendant, being the agent of the company, receiving a consideration for the work which he was doing, was, in the transaction between him and the plaintiff, in the position of a principal. The Statute, therefore, does not apply, as the contract for the sale of the shares was made between the plaintiff and the defendant.

Pilcher in reply-The question in Lyde v. Barnard (13) was whether a representation as to value, and not of the personal ability of any person to pay, was within the Statute. Lord Abinger says that the value of the property of which a man may be possessed, and his personal ability to pay his liabilities, are inseparable. The defendant was not a principal; if the plaintiff had refused to fulfil his contract, the company alone could have sued him. The mere fact that a person gets a commission for raising a loan would not prevent the operation of the Statute. In Watson v. Earl of Charlemont (14) there was no evidence of fraud. As to the argument that the representation must be by a third party, the case of Devaux v. Steinkeller (15) is decisive, and that case has not yet been answered.

[SIR J. MARTIN C.J. In Richardson v. Dunn (16) the representation was by parol.]

In that case the point was not taken.

1885

CHRISTIAN

บ.

WOODS.

SIR J. MARTIN C.J. This is an action of deceit, brought by the Martin C.J. plaintiff to recover damages for his having been induced by the defendant to buy some shares in a joint-stock company, on the representation that this company was under no liability, and that its property was free from any mortgage; whereas, in point of fact, the company owed 15,000l. and had mortgaged its property to secure that sum. There was a conflict of evidence in this case as to the making of this representation, but there was ample (12) L.R. 2 P.C. 394; 43 L.J. P.C. 34. (14) 12 Q.B. 856; 18 L.J. Q. B. 65. (14) 1 M. & W. 101. (15) 6 Bing. N.C. 84. (16) 8 C.B. N.S. 655; 30 L.J. C.P. 44.

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