Routledge V Mckay [1954] 1 W.l.r. 615 6137i

[1954] 1 W.L.E.

615 1954

a n y p a r t of t h e d e b t r e m a i n s d u e . A c o m m i t t a l o r d e r m a d e i n this division u n d e r t h e n e w rules continues in operation until t h e d e b t i n r e s p e c t of w h i c h i t w a s m a d e h a s b e e n fully p a i d . I n t h o s e c i r c u m s t a n c e s , i t is n o l o n g e r n e c e s s a r y , a s i t h a s b e e n i n t h e p a s t , t o m a k e a p p l i c a t i o n t o t h i s c o u r t a t t h e e n d of t h e y e a r to r e n e w t h e c o m m i t t a l order. F o r those reasons I hold t h a t Mr. Campbell's application was unnecessary. Solicitor: ment.

A. G. Parry-Jones,

Laiv

Society,

Divorce

SlCHEI, V. SlCHEL. Willmer J.

Depart-

J. B . G.

[COURT OF APPEAL.]

*BOUTLEDGE NUGENT ASHGEOVE MAWSON

v. M c K A Y .

(THIRD

(FOURTH (FIFTH

C. A.

PARTY).

1954 Mar. 9, 10.

PARTY).

PARTY).

Evershed M.R., Denning and Romer L.JJ.

[ P l a i n t N o . H . 1607.] Sale

of Goods—Warranty—Collateral warranty—Sale of second-hand motor-bicycle — False statement in registration book as to year bicycle put on market—String contracts—No fraudulent misrepresentation by seller in question—Whether any warranty given. lievenue—Stamp duty—Unstamped document itted in evidence in court below—Duty of Court of Appeal—Stamp Act, 1891 (54 & 55 Vict. c. 39), s. 14. Court of Appeal. Fraud—Who may sue—Sale of goods—Motor-vehicle—False statement in, registration "book—String contracts. The owner of a 1930 Douglas motor-bicycle reconditioned i t a n d thereafter i t was sold with a registration book showing t h a t t h e motor-bicycle was a late 1941 or 1942 model. The motor-bicycle was sold to t h e fifth p a r t y who sold i t to the fourth p a r t y . On this sale the of t h e agreement for sale were set o u t in a memorandum in writing. T h e memorandum contained no mention of t h e date of m a n u f a c t u r e of t h e motor-bicycle. I t was subsequently sold by t h e fourth p a r t y to t h e t h i r d p a r t y who sold i t to t h e defendant, who sold i t to t h e plaintiff. The plaintiff having found o u t t h a t t h e motor-bicycle was n o t a 1941 model, b u t a 1930 model, sued t h e defendant who brought in the t h i r d p a r t y , who brought i n the fourth p a r t y , who brought in t h e fifth p a r t y . T h e S t a t u t e of L i m i t a t i o n s prevented t h e fifth p a r t y from bringing i n as sixth p a r t y t h e person who sold t h e motor-bicycle to h i m . F r a u d u l e n t misrepresentation was n o t alleged. A t t h e h e a r i n g i t appeared to have been assumed as between t h e plaintiff a n d t h e defendant, t h e defendant a n d t h e t h i r d p a r t y a n d t h e t h i r d p a r t y a n d t h e fourth p a r t y t h a t t h e express statement as to t h e age of t h e motor-bicycle constituted a w a r r a n t y . T h e county court judge held t h a t there h a d been a breach of w a r r a n t y a n d gave judgment for t h e fourth p a r t y against t h e fifth p a r t y . The fifth p a r t y appealed. The fifth p a r t y h a d relied on t h e written memorandum of h i s agreement with t h e fourth p a r t y . T h a t memorandum, which was itted in evidence by t h e coiinty court judge, was n o t stamped

THE WEEKLY LAW EEPOETS

616 C. A. 1954 KOUTLEDGE V. MCKAY.

APRIL 9, 1954

and the question was raised on the appeal whether it was the duty of the Court of Appeal to take notice, in accordance with the requirements of section 14 of the Stamp Act, 1891, of the omission to stamp : — Held, (1) that the Court of Appeal could not assume merely because an unstamped document had been itted in evidence below that there had been a decision that it did not require stamping. It was the duty of the Court of Appeal to take notice of the omission to stamp. On the true construction of the document in question, it did not require stamping being exempt under exemption (3) to the heading " agreement " in the First Schedule to the Stamp Act, 1891, as an agreement relating to the sale of goods; (2) that the evidence did not establish the existence of any collateral contract by which a warranty was given by the fifth defendant that the motor-bicycle was a 1941 model and accordingly the appeal would be allowed. The dictum of Lord Moulton in Heilbut, Symons & Co. v. Buckleton [1913] A.C. 30, 47 considered and applied. Per Denning L.J. Where a motor-car or motor-bicycle is sold second hand from one person to another in succession, one seller in the chain may tell a purchaser what year's model it is, basing his information on the statement in the registration book. If that statement is false, because some remote seller has falsified the number, the answer to the question whether each seller is responsible to each buyer in damages must depend upon a proper application of the law as to innocent misrepresentation and warranty. The seller, unless he is the first owner, is not the originator of the statement about the year in the registration book. In the ordinary way the statement is only a representation and not a warranty. If the entry in the registration book should turn out to be false,, the eventual buyer could sue the original wrongdoer in fraud, but he could not sue innocent people in between who merely ed on a statement which was in the registration book. APPEAL from County Court.

Judge

Praser

Harrison sitting at

Liverpool

The plaintiff, Joseph Eoutledge, in these proceedings claimed damages from the defendant Charles McKay in respect of the sale of a Douglas motor-bicycle, which the plaintiff had purchased from the defendant believing it to be a 1941 model, when it was in fact a 1930 model. The defendant brought in as third party D . Nugent, from whom he had bought the motor-bicycle. The third party in his turn brought in the fourth party, Philip Ashgrove, who had sold the motor-bicycle to him. The fourth party brought in the fifth party, J . Mawson, who had sold to the fourth party. The fifth p a r t y ' s claim against his vendor was statute barred. No allegations of any fraudulent misrepresentations were made. The claims were based on allegations t h a t in each case the vendor had warranted the age of the motorbicycle. The sales had been made orally, except that, in the case of the sale by the fifth party to the fourth party, a memorandum of the agreed had been drawn up and signed. The facts and the of the memorandum are sufficiently stated in the judgment of Evershed M . E .

[1954] 1 W . L . E .

The county court judge gave judgment for the fourth party against the fifth party for the sum of £80. The fifth party appealed. In the court below the fifth party relied on the written memorandum of the on which he had sold the bicycle to the fourth party. This memorandum was not stamped but it had been itted in evidence. On the appeal, the court raised the question whether it was bound by section 14 of the Stamp Act, 1891,1 to take the objection that the memorandum was not stamped.

617 C. A. 1954 KODTLEDGB V. MCKAY.

J. S. Watson for the fifth party. F. D. Paterson for the fourth party. The following cases were cited in argument: Warrington v. Furbor2; Heilbut, Symons & Co. v. Buckleton3; Gilchester Properties Ld. v. Gommi; Bishopsgate Motor Finance Corporation v. Transport Brakes Ld.5; Miller v. Cannon Hill Estates Ld.6; Walker Property Investments (Brighton) Ld. v. Walker7; s Webster v. Higgin ; Couchman v. Hill"; Henderson v. Arthur.10 EVERSHED M.E. I think it desirable that I should say that in my judgment it is the duty of the Court of Appeal to pay regard to what Parliament provides in section 14 of the Stamp Act, 1891. The court cannot assume that there has been some decision by the court below merely because in the court below the document has been itted in evidence. On the other hand, on the facts of this case, I think that the exemption— exemption (3), which on the authorities should be, as I understand it, liberally interpreted—does cover this case, and therefore I think that there has been no infringement of section 14 of the Act; and we need say nothing more about it. DENNING

L.J.

HOMER L.J.

I agree. I agree.

The court then heard argument on the question raised by the appeal. 1 Stamp Act, 1891, s. 14: " ( 1 ) Upon the production of an instrument chargeable with any duty as evidence in any court of civil judicature in any part of the United Kingdom . . . notice shall be taken by the judge . . . of any omission or insufficiency of the stamp thereon, . . . (4) Save as aforesaid, an instrument executed in any part of the United Kingdom, or relating, wheresoever executed, to any property situate, or to any matter or thing done or to be done, in any part of the United Kingdom, shall not,

" except in criminal proceedings, be " given in evidence. . . . " 2 (1807) 8 East 242. 3 [1923] A.C. 30. » [1948] W.N. 71; 64 T.L.E. 235; [1948] 1 All B.E. 493. s [1949] 1 K.B. 322; 65 T.L.E. 66; [1949] 1 All E.E. 37. 6 [1931] 2 K.B. 113. 7 [1947] 177 L.T. 204. « [1948] 2 All E.E. 127. 9 [1947] K.B. 554; 63 T.L.E. 81; [1947] 1 All E.E. 103. i» [1907] 1 K.B. 10; 23 T.L.E. 60.

T H E W E E K L Y LAW EEPOETS

618 C. A. 1954 BOUTLEDGE V. MOKAY.

APRIL 9, 1954

EVERSHED M.E. This appeal involves a question which has found many illustrations in the books, namely, whether upon a sale—in this case a sale or exchange of a motor-bicycle with a sidecar combination—there was a warranty as regards the date when the motor-cycle was originally put upon the market. The classic exposition of the law in regard to warranties is to be found in the speech of Lord Moulton in Hoilbut, Symons & Go. v. Bucldoton.1 Although it has been many times cited I may perhaps be forgiven for citing once again some of the language which the noble Lord used. " It is evident," he said,2 " both on ' principle and on authority, that there may be a contract the ' consideration for which is the making of some other contract. ' ' If you will make such and such a contract I will give you one hundred pounds,' is in every sense of the word a complete ' legal contract. It is collateral to the main contract, but each ' has an independent existence, and they do not differ in respect ' of their possessing to the full the character and status of a ' contract. But such collateral contracts must from their very ' nature be rare. . . . Such collateral contracts . . . must be ' proved strictly. Not only the of such contracts but ' the existence of an animus contrahendi on the part of all the ' parties to them must be clearly shown. Any laxity on these ' points would enable parties to escape from the full performance ' of the obligations of contracts unquestionably entered into by ' them and more especially would have the effect of lessening ' the authority of written contracts by making it possible to vary ' them by suggesting the existence of verbal collateral agree' ments relating to the same subject-matter." Then, after dealing with the particular facts in the Heilbut, Symons case and after referring to certain cases on the Chanceryside, Lord Moulton said 3 : " O n the common law side of the ' court the attempts to make a person liable for an innocent ' misrepresentation have usually taken the form of attempts to ' extend the doctrine of warranty beyond its just limits and to ' find that a warranty existed in cases where there was nothing ' more than an innocent misrepresentation. . . . But in respect ' of the question of the existence of a warranty the courts have ' had the advantage of an irable enunciation of the true ' principle of law which was made in very early days by Holt ' C.J. with respect to the contract of sale. He says: ' An ' ' affirmation at the time of the sale is a warranty, provided it ' ' appear on evidence to be so intended.' " Then he says, a little later, " One often sees quoted the dictum of Bayley J. in ' Gave v. Coleman* where, in respect of a representation made ' verbally during the sale of a horse, he says that ' being made ' ' in the course of dealing, and before the bargain was complete, i [1913] A.C. 30. 2 Ibid. 47.

3 4

Ibid. 49. (1828) 3 Man. & Ey. 2.

[1954] 1 W.L.R.

619

" ' it amounted to a warranty ' — a proposition t h a t is far too C. A. " sweeping and cannot be s u p p o r t e d . " 1954 Finally, after reference to and disapproval of the language of this court in De Lassalle v . Guildford,5 Lord Moulton says 6 : ' ' " I t is, my Lords, of the greatest importance, in my opinion, MCKAY. " t h a t this House should maintain in its full integrity the Evershed~M.R. " principle t h a t a person is not liable in damages for an innocent " misrepresentation, no m a t t e r in what way or under what form " the attack is m a d e . " The subject-matter of the sale, with which we are concerned, was a motor-bicycle of somewhat ancient vintage. The appellant here is the fifth party in proceedings which were begun in t h e form of an action by the plaintiff who had bought this motorbicycle from t h e defendant. The defendant himself introduced a third p a r t y ; the third party introduced a fourth p a r t y ; and the fourth a fifth. The m a t t e r stopped there, not because there had not been other previous sales, but, as I understand it, because, upon the footing t h a t a warranty was the question, and the only question, involved, the S t a t u t e of Limitations would have stood in the way of the fifth party bringing in a sixth and so on. For reasons which will later appear, I confess t h a t the result leaves an uneasy feeling in my mind t h a t in the end some injustice may be done. Apparently by the display of a certain amount of mechanical ingenuity an earlier possessor of this machine (which first left t h e works of the makers in the m o n t h of October, 1930) proceeded to recondition it and (in a measure) remake it so that, although substantially it remained the old 1930 model, it had acquired certain characteristics which this ingenious mechanic thought justified him in attributing to it a somewhat later origin. The registration books or log books (which were renewed from time to time) eventually showed on their face t h a t this Douglas motor-cycle combination was what is called " a late " 1941 or 1942 m o d e l . " I n the one before us, and against the item " D a t e of original registration under the Roads Act, 1920 " it has " 9 . 9 . 1 9 4 1 , " and then t h e words " forty -one " written afterwards. I n the court below it seems reasonably clear that, in the case of the final sale and in those which immediately preceded it, the alleged warranty amounted to a s t a t e m e n t to the effect found in the log book. I assume t h a t in each case there was an express affirmation of what there appeared; but it does not seem t h a t there was anything m o r e ; yet (again so far as I can judge from the material before us) the parties or their representatives seem to have been content to let the m a t t e r proceed on t h e footing t h a t such an express statement, without more, did amount to a warranty. When, following the chain down, the m a t t e r came to be determined finally between the fourth and fifth parties, counsel s [1901] 2 K.B. 215, 221.

a [1913] A . C . 30, 51; 17 T.L.E. 384.

T H E W E E K L Y LAW EEPOETS

620 C. A. 1954 RotJTLEDGE V. MCKAY.

Everslied M.R.

APRIL 9, 1954

for the latter for the first time raised the question in clear whether, as between him and the fourth party, there ever was a warranty at all; and he particularly relied upon the circumstance that in the sale (or exchange; for it was substantially an exchange) which took place between the fourth and fifth parties a written memorandum of agreement was entered into at the time when the transaction took effect. I shall have to refer presently in a little more detail to the evidence and to that agreement; but, bearing in mind the ages which I have read from Lord Moulton's speech, in approaching this matter it is important to observe that, if there was a warranty, then there was a contract between the two parties to the effect that the seller, for good consideration, undertook to indemnify the buyer against any loss the buyer might suffer, if, in truth, the origin of this motor-cycle was not 1941 or 1942 but some much earlier date. Such a contractual obligation could be part of the contract of sale itself or it might be collateral to it. In the present case, if there was a warranty, it must have been collateral to the actual contract of sale or exchange, though I do not think that that matter is necessarily conclusive of the question before us. I have mentioned these anterior questions partly because of the feeling of regret which I have about this case and which I have already mentioned, but also because (in fairness to the judge) it seems clear to me that his attention was not directed, at any rate during the earlier stages, to the essential requirements of a warranty; and particularly he did not have the advantage of refreshing his memory by looking again at Lord Moulton's speech: so that when the matter came to be determined as between the fourth and fifth parties the reference to what was stated in the log book had come to be treated (as far as I can see) as prima facie constituting a warranty; with the result that the judge's judgment was confined, in effect, to this: was that prima facie effect of the reference displaced by the written contract? I found that conclusion on this age from the notes of the judgment: " I then dealt in some detail with ' the transaction between the fourth party and the fifth party. ' I accepted the evidence of Mr. Philip Ashgrove, the fourth ' party, and I rejected any evidence given by Mr. John Mawson, ' the fifth party, which conflicted with that given by Mr. Ash' grove. I found as a fact that before the purchase in question ' in October, 1949, the fifth party gave a warranty to the fourth ' party that the Douglas motor-cycle combination was a 1942 ' model. There was no dispute that this "—videlicet, that it was a 1942 model—" was incorrect. That, in so far as it is a question of fact, I found and in so far as it is a question of construction I held, that the written agreement signed on October 30, 1949, by the fourth party and the fifth party and having therein the words ' That when the £30 is paid over

[1954] 1 W.L.K.

621

" ' t h a t this transaction is closed ' was not intended to exclude " any w a r r a n t y . " Now Mr. Paterson has very properly pressed upon us t h a t , in so far as t h a t is a m a t t e r of fact, then a finding by the county court judge, who heard the witnesses, would be conclusive in this court; provided t h a t there was some evidence upon which it could be founded. B u t I think (and I m u s t state this at t h e beginning of my observations) t h a t the judge did not really direct his mind to the question whether there was, in the reference to the date of origin as it emerged from the evidence, a real intention to contract, in the sense I have already described and in the sense which must be found to be present if what otherwise would be a misrepresentation is to be translated into a warranty. I think t h a t he did not apply his mind to t h a t , because the parties had not really during the earlier stages of the battle raised the m a t t e r and were content to assume t h a t such a statement did constitute a warranty. I therefore do not feel t h a t Mr. Paterson's submission can be (in this case) an answer to the fifth p a r t y ' s appeal. [His Lordship considered the evidence and continued: ] On the oral evidence, all there is and all the judge found, or I think intended to find, was t h a t on the first meeting of the fourth and fifth parties (and before, be it noted, the bargain was eventually made), and in answer to a question, the fifth party specifically stated t h a t it was a 1942 model, and pointed to the corroboration of t h a t s t a t e m e n t found in the book. I now t u r n to the written memorandum or contract which the fourth party had caused to be prepared and which was signed by the two contracting parties on the second or later occasion. " I t is agreed between the parties Mr. Ashgrove . . . and Mr. " Mawson . . . t h a t a 250 c.c. B . S . A . solo motor-cycle N o . " so and so " n o w b y " — " o w n e d b y , " I suppose t h a t m e a n s — " Mr. Ashgrove to be exchanged for a Douglas flat twin 600 c.c. " combination . . . owned by Mr. Mawson and further Mr. Ash" grove will pay the sum of £30 to complete the transaction. I t " is understood t h a t when the £30 is paid over t h a t this " transaction is closed." Now the point is made (and it is a significant one) t h a t the Douglas motor-cycle is expressly referred to as being of the capacity of 600 cubic centimetres, when on this registration book it is stated as having only 500 cubic centimetres capacity. The true cubic capacity according to the fifth party was 600; t h a t fact was deliberately and carefully pointed out by the fifth party, who showed the discrepancy in t h a t respect in t h e registration book, and the agreement (and this is significant) expressly refers to t h a t matter. This document represents prima facie the record of what the parties intended to agree when the actual transaction took place. Mr. Watson has contended t h a t the of it necessarily exclude any w a r r a n t y — t h a t is to say, any collateral bargain, VOL.

1

42

C. A. 1Q54 0VT

^ MCKAY. Ever8hed M R

'

622 C. A. 1954

THE WEEKLY LAW EEPOETS

APRIL 9, 1954

either contemporary or earlier in date. I am not sure that I would go as far with Mr. Watson in that respect. But I think that, as a matter of construction, it would be extremely difficult to say that such an agreement was consistent with a warranty v MCKAY. being given at the same time and so as to be intended to form Everahed M.R. a part of the bargain then made. I think, with Mr. Watson, that the last words " It is understood that when the £30 is paid " . . . this transaction is closed " would make such a contention exceedingly difficult. But I will assume that the warranty here was not a warranty given when this bargain was struck, but was a warranty which had been given on the earlier date, on which date alone, according to the evidence, any representation about the date of the Douglas was made at all. Now if the earlier representation is to be a warranty, then it has got to be contractual in form. In other words, so far as I can see, once the existence of a warranty as part of the actual bargain is excluded, it must be a separate contract; and the difficulty, and I think the overwhelming difficulty, which faces the fourth party here is that when the representation was made there was then no bargain, and it is therefore, in my view, impossible to say that it could have been collateral to some other contract. But even apart from that, it seems to me that, on the evidence, there is nothing to the conclusion, as a matter of law and bearing in mind Lord Moulton's observations, that in answering the question posed about the date of this Douglas there was anything more intended than a mere representation. If that is the right analysis, then the problem which the judge below felt he had to consider really never arose, because it was not a question whether on its construction this agreement negatived or excluded the possibility of an earlier warranty. On the view I take there really was no evidence before the judge capable of ing the existence of any earlier warranty at all, and I prefer to base my conclusion on that ground than upon the view that the agreement, according to its language, necessarily excluded a warranty. I have felt compelled to the conclusion that the judge here had not before him any evidence which entitled him to conclude that there was given, and intended to be given, a warranty (in the proper sense of that word) when the reference to the date of origin of the motor-cycle was made by Mr. Mawson; and I only add that the written agreement tends to that view rather than to controvert it. I conclude (as I began) by a reference to my anxiety in the case, because I am bound to say that I feel grave doubt whether on this evidence there ever was a warranty given by anybody to anybody else among those who were parties to these proceedings. Whether any earlier owner or fifth party or anyone else might have been held liable upon a fraudulent misrepresentation does not now arise; but my sympathies certainly are with all these parties who were all undoubtedly misled by the circumstances

[1954] 1 W.L.E.

that there appeared in a registration book a false date as a result of what I have called (and I am using the phrase so as to avoid any opprobrious significance) the mechanical ingenuity of an earlier proprietor. In my judgment, this appeal must be allowed and, taking that view, I do not say anything more upon Mr. Watson's second point, that in any case the sum of damages awarded, £80, ought not to stand. Upon that matter it is sufficient to say that, if that question had to be determined, as at present advised I am not satisfied that there is any ground upon which this court could interfere with the award; but I need not express any concluded view upon it. DENNING L.J. When a motor-car or a motor-cycle is sold second hand from one person to another in succession down a line of persons, it often happens that each seller in the chain tells each buyer what year it is, basing his information on the statement in the registration book. Suppose that, unknown to either party, the statement in the registration book is false, because some remote seller falsified either the number plate or the book; what is the legal position ? Has each seller in the chain warranted the correctness of the entry in the registration book so that each seller is responsible to his buyer in damages; or has he merely made an innocent representation for which he is not liable in damages at all? The answer must depend, of course, upon a proper application of the law about innocent misrepresentation and warranty as laid down by the House of Lords in Heilbut, Symons & Co. v. Buchleton.7 But in considering this question it is important to that the seller, unless he is the first owner, is not the originator of the statement about the year. He does not know for himself, of his own knowledge, what year the car or cycle is. He has to accept it from the book, and he cannot be expected to warrant its accuracy, unless he in express makes himself responsible for it. In the ordinary way, therefore, the statement is only a representation and not a warranty. If the entry in the registration book should turn out to be false, the eventual buyer can sue the original wrongdoer in fraud without any trouble incidentally about the Statute of Limitations; but he cannot sue the innocent people in between who merely ed on a statement which was in the registration book. Then I ask myself: is there anything to take this case out of the ordinary? I t seems to me that as between the fourth and fifth parties,, for the reasons which my Lord has given, this was only a representation and not a collateral contract at all. Mr. Paterson relied on the fact that the seller did correct one statement in the registration book in that he corrected 500 c.c. to 600 c.c. No doubt any seller ought to correct any statement in the book which he knows or has reason to suppose is inaccurate; 7

[1913] A.C. 30.

624

THE WEEKLY LAW EEPOETS

APRIL 9, 1954

but t h a t does not turn t h e representation about t h e year into a warranty. I cannot see t h a t there was any evidence in this case 1954 (any more than in Heilbut, Symons & Co. v. Buckleton 7) on BOUTLEDGB which a warranty could be found. I t is unfortunate t h a t none V. of t h e counsel in t h e case (and there were five of them) referred MCKAY. the judge to Heilbut, Symons & Co. v. Buckleton7; because it Denning L.J. means t h a t Mr. Ashgrove, an entirely innocent party, is left to bear the whole burden when he ought not to have been. I agree with my Lord t h a t t h e appeal should be allowed. C. A.

EOMER L . J . I also agree. Having regard to t h e law as laid down in Heilbut, Symons & Go. v. Buckleton,7 and especially in the speech of Lord Moulton, it seems to m e impossible to arrive at t h e view t h a t t h e s t a t e m e n t which t h e fifth party made to the fourth party amounted to a warranty. I confess t h a t I have come to this conclusion with some reluctance, because not only did the fifth party think proper to give evidence before t h e judge t h a t was untrue, b u t it is plain t h a t he knew perfectly well himself t h a t when he told t h e fourth party (as he did tell him) t h a t this motor-cycle was a 1941 model, he had already been informed by t h e makers t h a t it was earlier t h a n t h a t by some years. Indeed, apparently as a result of what he was told by t h e manufacturers, he seems to have pondered for a time as to whether he would not sue t h e m a n who had sold it t o him, but eventually he decided not to do so. Therefore, as I say, it is with some regret t h a t I have come to t h e conclusion t h a t t h e fourth party (who was perfectly innocent in the matter) should lose this appeal; but, having regard to t h e law, t h a t is t h e result at which one must arrive, for no charge of fraudulent misrepresentation was made against t h e fifth party. Appeal

allowed.

Solicitors: Ranger, Burton & Frost for G. F. Lees & Son, Birkenhead; Kinch & Richardson for Percy Hughes & Roberts, Birkenhead. B . A. B . ' [1913] A.C. 30.

[WINCHESTER ASSIZES.]

*STBEET Lyaskey J.

v. D E N H A M .

Husband and Wife — Property — Matrimonial home — Desertion by husband—Bight of wife to remain enforceable against husband's successor in title loith notice—Bight not lost by incomplete agreement to accept alternative accommodation—Bight not superseded. by express licence. A deserted wife has an irrevocable licence to remain in occupation of the matrimonial home, which is enforceable not only against [Reported by NITTL HOGG, Esq., Barrister-at-Law.]