v. WOODS. 1885 evidence to warrant the jury in coming to the conclusion that such CHRISTIAN representation was made, and that it was untrue to the defendant's knowledge. The jury found for the plaintiff, with 535l. damages, being the whole amount which the plaintiff had paid for the shares in the company. We are now asked to make absolute a Rule nisi to enter a verdict for the defendant (leave having been reserved by consent of parties to do so), on the ground that the representations ought to have been in writing in order to entitle the plaintiff to succeed in this action. We are referred to sec. 6 of Lord Tenterden's Act. [His Honour read the section (17).] A number of cases have been cited during the argument, but no case has been brought to our notice in which it has been held that the section of the Act which I have referred to relates to anything but a representation as to the ability of the person from whom it is sought to procure from a third party any money or goods. In Roscoe's Nisi Prius will be found an enumeration of different kinds of fraudulent misrepresentations or deceits, and a number of instances of actions of that kind are contained under that heading. The first heading is "Misrepresentation of Solvency," and it is under that heading that Lord Tenterden's Act is cited, and then there follow other misrepresentations to which it is said that the Act does not apply. But so far as an action for misrepresentation of solvency is concerned, the section does apply, and was intended to apply. Those are cases where a person represents to another that a third party is solvent and able to pay for the goods, or to repay the money for which credit is to be given, and it turns out afterwards, on the money being lent or credit given or goods delivered, that the representation was unfounded. This statute was passed in order to prevent the person so deceived from recovering unless the representation was made in writing. The case of Lyde v. Barnard (18) was a case of that sort. In that case the plaintiff was induced to advance to Lord Edward Thynne a sum of 999l., for the purchase of an annuity secured on a certain interest in trust funds of which defendant was trustee, on the representation that the funds were charged only with three annuities, whereas the defendant knew that the funds were (18) 1 M. & W. 101. (17) See note (1) on page 25. 1885 v. also charged with a mortgage for a large amount. The plaintiff was non-suited, on the ground that the representation was within CHRISTIAN sec. 6 of Lord Tenterden's Act. On the case coming before the Woods. Court of Exchequer on a motion for a new trial, the Court differed in opinion as to whether-inasmuch as the inquiry was as to the state of the property, and as the answers to these questions were false the representation was as to the ability of the person seeking to borrow the money. As to the Act applying in a case of that sort, there was no difference of opinion. On the point which we now have to determine, there was no difference of opinion among the judges who decided Lyde v. Barnard (19), although between that decision and the date of the passing of Lord Tenterden's Act there must have been hundreds of cases tried in the British Empire in which that point arose. I never heard of any case, and certainly none has been referred to, in which it was held that representations like the one in this action must be in writing. We must regard this application as an experiment. So far as regards a misrepresentation of solvency, the Act applies, but as to the state of any person's property it does not apply. We need not, however, trouble ourselves with the cases, but we may look at the words of the Act itself. We do not require authorities in order to enable us to determine questions of this kind. Where cases in point have been decided, we ought to follow them, especially if the decision is by a Court of Appeal. But where no authorities in point have been cited, it is idle to take up our time by referring us to a number of inconclusive cases, from which it is sought to draw a particular conclusion by means of false analogies. The words of this section are plain. What the Legislature intended to prohibit was the making of a false representation as to the credit or ability of a person, which means nothing more than the ability of a person to pay money. FAUCETT J. I confess I have had some difficulty in coming to Faucett J. a determination on this question. It is a matter of considerable importance. But when we consider the object of this Act, we may be able to see with tolerable clearness what was the intention of the Legislature in passing sec. 6 (20). It was intended to (20) See note (1) on page 25. (19) 1 M. & W. 101. 1885 v. supplement the 4th sec. of the Statute of Frauds, which preCHRISTIAN Vented an action being maintainable on a promise to be responsible for the debt of another, unless such promise was made in writing. It was considered that the intention of that Statute was evaded by bringing the action in a particular form, that is to say, by framing it in deceit and not in contract. WOODS. A number of cases have been cited before us. It has been held that an agent, making a contract with his principal, may be treated as a person distinct from his principal; that a partner may be treated as a different person from the other members of the firm; it is considered that he is one person, and the firm of which he is a member is another. I confess that these cases struck me as going very near this case; because the defendant here is an agent who makes a contract for a company of which he is a shareholder, and these cases decide that the company is in the position of a third person in respect to him. Moreover, he received a commission from the company employing him. I now come to the real point which we have to decide: that this case does not come within the Statute at all, and that the Statute merely applies, where a person obtains money or goods on credit, and in no other case, extending the operation of the Statute of Frauds; and that it does not apply to a case like this, or to a purchase of shares. I am inclined to think that the inquiry in this case was not as to the ability of the company to pay a debt. It was not an inquiry as to the ability of the company to repay the purchase-money of the shares, but merely as to the means which the company possessed for the purpose of carrying on its business. The representation, therefore, was not within the Statute. Further, the sale of shares does not appear to be contemplated by, or to be within the words of the enactment, which applied only where goods or money have been obtained. The case of Lyde v. Barnard (21) is a strong case, as showing the opinion of the judges as to what was a representation concerning the ability or credit of a person. I should be inclined to think that an inquiry as to the state of the property owned by a person was an inquiry as to the ability of that person to pay a debt. There is, however, no case in point as to whether the Statute only (21) 1 M. & W. 101. applies where money is obtained or goods are obtained on credit. The case of Richardson v. Dunn (22) has been referred to, and appears to support the view which we take, although the question actually determined by the Court was as to the measure of damages. The question for our determination now was not, however, raised in that case; perhaps because it was not considered worth raising. I have had considerable doubt; but, on the whole, I concur with His Honour the Chief Justice. 1885 CHRISTIAN บ. WOODS. WINDEYER J. I entirely concur with His Honour the Chief Windeyer J. Justice in thinking that the provisions of sec. 6 of Lord Tenterden's Act have no applicability to the circumstances of a case like this. A number of cases have been cited, but it appears to me that the true construction of this Statute is given in the case of Lyde v. Barnard (23). It is no doubt a fact that the four judges who sat in that case were divided in opinion as to whether the particular representation made as to the state of Lord Thynne's property amounted to a representation as to his ability to meet certain engagements. On an examination of the case, however, it appears to me that, although the judges differed in opinion on that point, they really agreed on the principles to be regarded in construing the Statute. Applying these principles to the circumstances of this case, it is clear to my mind that if this case were before the judges who heard Lyde v. Barnard (23) they would be unanimous in deciding that it is not within the Statute. Gurney B. says, page 104:-"It is to be observed that this is not an inquiry into the value of a thing which is to be purchased, but an inquiry into a portion of the ability of a borrower of money, who is to give both his personal security and the pledge of a particular fund. If it concerns or relates to his ability, in any respect whatever, it seems to me to come within the Act." It may be inferred from the words I have read, that in the opinion of Baron Gurney, that if the inquiry was as to the value of a thing to be purchased, it would not be within the Statute. Mr. Baron Alderson says (page 109) in the same case:-"The representation must be 'to the intent that the third person may obtain credit, money, or (23) 1 M. & W. 101. (22) 8 C.B. N.S. 655; 30 L.J. C.P. 44. v. WOODS. 1885 goods upon,' which appears to me to show that the object of the CHRISTIAN Act was confined to cases in which a third person's responsibility is trusted." Mr. Baron Parke says (page 116):-"I do not by any means intend to say that a representation as to the condition or value of a particular part of a man's property may not relate to or concern his 'character, credit, &c.' within the meaning of these words; it would do so where the declared object of the inquirer should be to give credit to a third person upon his personal responsibility, and he is seeking information as to part of the means which constitute its value; but where the representation is made as to the state of part of the property of such person, not as an element of trustworthiness, but with a view that the inquirer should obtain a right to the thing itself, I am of opinion that such a representation in no way relates to or concerns the character, conduct, credit, ability, trade, or dealings of that third person within the meaning of this Act. Lord Abinger says (p. 123):-"It seems to me, therefore, that the true construction of the statute is, that the representation or assurance should concern or relate to the ability of the other person, effectually to perform and satisfy the engagement of a pecuniary nature, into which he has proposed to enter, and upon the faith of which he is to obtain money, credit, or goods." Taking all these passages together, it appears to me impossible to suppose that these judges would have had a moment's doubt in deciding, in a case like the present, as to the inapplicability of the Statute. Take Lord Abinger's construction; the question is whether this was an inquiry relating to the ability of another person. Now in this case the company simply proposed to sell certain shares to the plaintiff, and the inquiry was made, not for the purpose of finding out whether the company were in a position to make over these shares to the purchaser, but simply to find out the value of the property which the plaintiff was going to buy. It is impossible, in my mind, to hold that the Statute applied to a case of this sort. Rule discharged, with costs. Attorneys for plaintiff: Norton & Co. |