art of maiming troublesome statutes, soon discovered a way to maim and neutralise this one in a most material part. Instead of founding an action, and shaping the demand, upon a special promise, that is, a guarantee in writing, an action was laid wherein it was averred that by reason of a false and fraudulent representation and assurance respecting the credit or trustworthiness of a third person credit was given on the faith of that representation-see per Baron Parke in Lyde v. Barnard ([1836] 1 M. & W. 101, at p. 114). So that if A. guaranteed to answer for any one in the way expressed in 29 Car. 2. c. 3, s. 4, but, instead of doing it by writing, committed himself orally so that the statute was not satisfied, the expedient of suing A. on a tort or wrong in the shape of a false and fraudulent representation was resorted to, and resorted to successfully. As Baron Alderson has said, "This in fact virtually repealed the Statute of Frauds, by which a guarantee was required to be in writing." The first case responsible for this was Pasley v. Freeman in 1789 (3 T. R. 51). Thereafter, in accord with the judicial prophecy of Grose, J., in that case, came an abundant crop of cases of the same kind. It was the correction of this abuse that actuated Lord Tenterden in introducing his Amendment Act. As Baron Gurney in Lyde v. Barnard (supra) informs us: "It had been the subject of complaint that these cases had trenched upon the security intended to be afforded by the Statute of Frauds, and it was considered by the Legislature that a person so circumstanced was entitled to the same protection as the Statute of Frauds had given to the person whom a plaintiff sought to charge for the debt or miscarriage of another. To afford this protection 9 Geo. 4. c. 14 was passed." And indeed the later carries this protection farther than the earlier Act. Parliament evinces greater jealousy for the security of the person to be charged under that Act because there it restricts the documentary liability to the actual party charged, whereas the former statute included any person, other than the person charged, lawfully authorised thereunto by that person. It will be noticed that in the text of the sixth section set out above a peculiarity in the sentence occurs (remarked by us by the expression ("sic ") in regard to the word 66 66 upon." It is obviously an error. Lord Abinger, C.B., at p. 123, 1 M. & W. 101, thinks it to be superfluous. His brother Gurney, B., decides the word "credit" to have been intended to follow it. With respect, we incline to the Chief Baron's view that by an oversight in revising the text this redundant word was allowed to go to the printers, who, as the Chief Baron tells us, seldom commit an error on the side of omission." "Everything (he adds) which is not beyond doubt erased in MS. is sure to be served up in print, and if it should afterwards escape detection in Committee (which, in a technical and no doubt unopposed Bill such as this, it would) finds its way upon the Rolls of Parliament and into the Statute Book." And so to this day it remains, and whether it be the sanctity of our law or the orthodoxy of our lawyers that keeps it there we will not enquire. This oddity in its language does not, however, affect its object or scope, which is clearly to make a representation or assurance as to a person's credit, solvency, or trustworthiness unactionable, unless committed to writing and signed by the actual person making the representation or the assurance. Lord Tenterden's object was plainly, as the Judges have told us, to place both the subject of guarantee provided for by the Statute of Frauds and an assurance or representation as to solvency or trustworthiness on the same footing and to provide that a written document should be required in both. But the statute applies only to those cases in which a representation is made, relating to the trustworthiness of a third person, with the intent that he may obtain personal credit on the faith of such representation "-per Baron Parke (1 M. & W. 101, at p. 116). Whether it applies to a representation relating to the quality of a thing, or, put in another way, whether a representation as to the sufficiency or ability of property to secure or pay a certain sum of money is equivalent to a representation as to the credit or solvency of the owner of that property, is not absolutely decided. By example, take the facts of Lyde v. Barnard. A., by parol, falsely represents B.'s property to have three charges on it (whereas it has four) whereby C., to his loss, is induced to advance B. money the property. The Court was equally on divided as to whether or not section 6 applied. In a sense, of course, it touches B.'s solvency and trustworthiness, but the factor which seems to place it outside the purview of the section is the fact that this set of circumstances is not that which gave rise to 9 Geo. 4. c. 14, at all. Such a case it is conceived does not march with the intent of the Act at all, and so it is not controlled by it-see per Baron Parker in Lyde v. Barnard (supra). Innocent Representations are not within the Letter of the Statute. The statute does not apply to an innocent representation. Here the question of the intent and object of the Act has special bearing. We respectfully adopt Lord Atkinson's analysis of the point in Banbury's Case (supra). "The question," he declares, "then is, does this section of Lord Tenterden's Act apply to innocent representations? No doubt the words of the section are general. On its face it applies to every representation, inno cent or fraudulent, but we cannot construe these words, general in character though they be, without having regard to the circumstances in which they were used and to the object which the Legislature had in view in using them." Plowden, in his Commentaries (vol. 1, at p. 204), in reporting the case of Stradling v. Morgan, illuminates this very point with exactitude, and the Law Lord cites the passage in extenso (q.v.). The substance of it is that Judges of the law have always pursued the intent of the makers of statutes, and expounded general Acts as being particular where the intent was particular. Very old statutes, such as de Prerogativa Regis, c. 1 and c. 4., Malbridge's Statute, and others, are exemplified by Plowden, and it is shown that these statutes have been construed quite Contrary to their letter, and in a way founded solely on the intent of the Legislature collected (inter alia) from the cause and necessity of the Act. Now it is quite conclusive as to what the cause and necessity of Lord Tenterden's Act was-the evasion of section 4 of the Statute of Frauds by the decision given in actions for deceit such as is illustrated by Pasley v. Freeman. It is equally conclusive that the defendants in these cases were made liable for fraudulent and false representations made by parol; not for innocent representa All tions at all, since innocent representations The Case of Breach of Duty ex Contractu Section 6, being narrowed down in its operation as described above, has ergo no application to a case where a duty to advise exists ex contractu, expressly or by implication. But there must be a duty on the one side and a right to the benefit of that duty on the other. Duty is a condition of things created by contract either from the special relationship of parties, apart from express contract, or by some compact between parties. It is quite evident that to such a condition of things 9 Geo. 4. c. 14 could not apply. To suggest it did would open the door to the most manifest commercial absurdities and abuses. Positions, in employment, of trust could be safely violated. A merchant" (if it were so) may employ at a salary a traveller to make enquiries about the standing and credit of probable customers, and to report to him thereon. The traveller negligently, without enquiry or enquiry or on insufficient enquiry, reports. orally that a particular person may safely be trusted, and his employer acts upon his information and sustains loss thereby, . . . the employer would have no remedy because the report falls within the terms of section 6 of Lord Tenterden's Act." In these words 66 66 Finlay, L.C., in Banbury's Case (supra), demonstrates a pregnant result of any attempt to bring this case of duty within the statute. And again, to borrow an illustration from the profession: "It is, in the ordinary course of business, constantly part of the duty of a solicitor to examine into and advise upon the pecuniary position of a person with whom his client is about to deal. It would be a serious matter if the solicitor could escape liability for negligence in the performance of this duty by giving his advice orally or under the signature of his managing clerk rather than under his own signature. Indeed, the fact that the writing required by Lord Tenterden's Act cannot be signed by an agent is an additional argument in favour of the narrower interpretation of the words of the section -see per Lord Parker in Banbury's Case (supra). De la Bere v. Pearson ([1908] 1 K. B. 280) is another example. A., in a newspaper, asks readers desiring financial advice to address queries to City editor. B. responds and A. puts C. (a broker) in touch with B. C. being untrustworthy and insolvent, B. sustains loss. A., but for negligence, could have ascertained C.'s insolvency; but there was, of course, no fraud on A.'s part. So that if this were pressed into Lord Tenterden's Act no action against A. would lie, even if there were written evidence such as would satisfy section 6, because no fraud existed, and mere negligence would not ground the action. But this was clearly a case of an implied contract imposing a duty on A. to be careful in advising B.; and it was a part of that duty to vouch C.'s trustworthiness. Hence the negligence of A. was sufficient ex contractu, whereas had it been within the statute no action would have been maintainable. Banbury's Case discloses a novelty in an attempt therein to apply section 6 to cases of negligence. Lord Esher, M.R., in Le Lievre's Case (supra), observes: "There may, perhaps, have been gross negligence on his (the defendant's) part; but the question is, can the plaintiffs rely on mere negligence of the defendant without fraud, as giving a cause of action? Now, the question of negligence cannot arise at all between two persons until there has been established a duty on the part of the alleged negligent person of not being negligent. What duty is there between two people that one should not be negligent towards the other, when there is no contract between them? Now, as has been observed, the element of negligence is by itself not actionable at all. Contract, express or implied, must carry it to ground an action. Where there is fraud, then it may arise ex contractu, tortiously or under a statute such as 9 Geo. 4. c. 14, and negligence is immaterial, and in fact incongruous, since the nature of fraud is calculating. But, if it is sought to sue one under the latter statute, fraud will not admit the action without the writing required by it, simply because without writing the requisite evidence to proving the fraud would be unavailable and wanting. Negligence, be it of the greatest, is not fraud -Derry v. Peek (supra). Hence the element of negligence is entirely foreign to the nature and scope of Lord Tenterden's Statute. The limits of the Act are therefore confined, and these confines are now marked with judicial lines, which are made clear by an examination into the cause and necessity, as the old book says, of the Act. Beyond that, the intent of the statute does not go; and this is the test which must be applied to every set of facts which might appear to come within its letter -in this way its application or non-application may be readily and accurately ascertained. An undated Bill of Complaint in Chancery (period 1558-1579) filed by Guido Roydon, of New Inn, gent., against John Thomas, of the Middle Temple, gent., stating that the plaintiff had possessed a gold ring of the value of 40s., which he gave to the defendant "on 20th February last" in exchange for the defendant's promise to pay 15s. when requested and to read to the plaintiff "Littleton's Tenures" so that before Easter next following he might have good intelligence and understanding of them by conferring therein with the said John Thomas. The promise not having been fulfilled, plaintiff wants his ring back. Yours faithfully, BERNAU & BERNAU (Genealogists and Record-Searchers). THE CONVEYANCER is published monthly. Notice of non-receipt of any number must be given to the Publishers not later than the end of the month of issue. After the end of that month the Publishers accept no liability for non-delivery. COMMUNICATIONS respecting matters of an Editorial nature should be addressed to The Editor of the Conveyancer," at 3, Chancery Lane, London, IV.C.2. CONTRIBUTIONS or manuscript forwarded with a view to insertion in the publication must be sent at the risk of the sender, although every effort will be made to return drafts or unsuitable copy. SUBSCRIPTION RATES :-Annual Subscription (payable in advance), 1 10s., inclusive of Postage; Single Copies, 2s. 9d. (postage, 2d. extra). ÉDITORIAL AND PUBLISHING OFFICES 3, Chancery Lane, London, W.C.2. : Notes of Recent Cases. The rule in Andrews v. Partington, [1791] 3 Bro. C. C. 401, that where there is a bequest to a class the members of which would be entitled to payment on attaining twenty-one the class is to be ascertained on the first member attaining twenty-one, was discussed and followed by the COURT OF APPEAL in Deloitte, In re, [1919] 1 Ch. 209; 88 L. J. Ch. 112, in which case Iredell v. Iredell, 25 Beav. 485, was distinguished, and Bateman v. Gray, L.R. 6 Eq. 215; 37 L. J. Ch. 592, was doubted and not followed. of section 22 of the S. L. A., 1882, is limited by section 53 of the same Act. Gladwin's Trust, In re, [1919] 1 Ch. 232 (applying Hunt's S. E., In re, [1905] 2 Ch. 418; [1906] 2 Ch. 11). Section 33 of the Bankruptcy Act, 1914, provides (sub-s. 1) that in the distribution of the property of a bankrupt (extended by subsection 5 to the case of a deceased person who dies insolvent) certain rates and Crown debts shall have priority, and that subject thereto all debts shall be paid pari passu. It was held in Laycock, In re, [1919] i Ch. 241; 88 L. J. Ch. 128 (applying Haywood, In re, [1897] 2 Ch. 593; 67 L. J. Ch. 25), that this section only applies, in the case of a deceased insolvent, to the administration of his estate by the Court, and not to a private administration out of Court. A testator gave his residuary estate upon trust for his son and five daughters equally and settled the daughters' shares, but imposed a condition on the bequest to each of the daughters that she should, within three months after his death, settle her interest under her mother's marriage settlement upon similar trusts. Three of the daughters had before the date of the will married with the testator's consent, and each of them, upon such marriage, had settled her interest under her mother's settlement upon trusts under which she took a life interest restrained from anticipation. P. O. Lawrence, J., held that this condition was a condition subsequent and did not bind the daughters, they having, with the testator's concurrence, settled their interests under their mother's settlement on their marriage in the testator's lifetime. But to enable the daughters, if so advised, to assign to trustees any interest they had at the testator's death under their mother's settlement, the Court removed the restraint in anticipation imposed by their marriage settlements. Grove, In re, [1919] 1 Ch. 249. A mortgagee, without applying for leave of the Court under the Courts (Emergency The Court will restrain a tenant for life from insisting on an improper investment being Powers) Act, 1914, put up his security for sale made of capital money, as it would restrain trustees from making such an investment. The tenant for life's power under sub-section 2 VOL. 4. by auction, and it was sold. When the mortgagor called his attention to the omission of the application for leave to sell, the mortgagee M purported to annul the sale, and no application was made. The County Court awarded the purchaser damages beyond return of the deposit. It was held by the Divisional Court that the vendor mortgagee, not having made the application, was in default, and that the County Court Judge was right in awarding damages. Braybrook v. Whaley, [1919] Ĭ K. B. 435. Manure manufacturers had on their premises a heap of bones which caused a large number of rats to assemble on their premises, from whence they strayed on to a neighbouring farm and ate the corn, causing substantial loss. There being no evidence that the bones were excessive or unusual in quantity, it was held that the farmer had no cause of action against the manufacturers. Stearn V. Prentice Brothers, Lim., [1919] 1 K. B. 399. Where in a special Inclosure Act there were no words sufficient, in the opinion of the Court, to cut down the meaning of the word "soil " in the allotments to the several allottees, it was held that the right to the minerals passed to them as part of the soil. And further, that where the lords of the manor were entitled to the minerals under the lands allotted to them, they were not entitled to let down the surface of those lands for the purpose of working the minerals. Thomson v. St. Catharine's College, Cambridge, [1919] A. C. 468. It was decided by the COURT OF APPEAL in X.'s Petition of Right, In re, [1915] 3 K. B. 649, that the Crown had power in time of war to requisition lands and buildings which are necessary for the defence of the realm without making compensation therefor, both under the King's Prerogative and also under the Defence of the Realm (Consolidation) Act, 1914, and the Regulations made thereunder. There the property taken possession of was an aerodrome near Brighton, which was actually required for the conduct of hostilities in the air. It has now been held by the same Court (by a majority, Duke, L.J., dissenting) that that case does not apply where the land and buildings are taken for administrative purposes. The Master of the Rolls, in his judgment, stated that the result of searches made among the State papers in the Record Office was that it did not appear that the Crown had ever taken the subject's land without paying for it, and even in Stuart times no claim by the Crown to such a prerogative could be traced. Judgment was accordingly given for the suppliant, reversing the decision of Peterson, J., who considered that the case was governed by X.'s Petition of Right, In re (supra). De Keyser's Royal Hotel, Lim. v. The King, The Times, April 10. Where a testator directs his trustees to stand possessed of his residuary estate and the income thereof during the life of his wife, and "to pay thereout to her the sum of £50 in each and every calendar month from the date of his decease," such payments are in substance in the nature of an annuity"; but, if they are not actually within the word " annuity," they are in the nature of "annual payments within the meaning of section 40 of the Income Tax Act, 1853. Income tax should, therefore, be deducted before making the monthly payments to the wife. Cooper, In re, 88 L. J. Ch. 105. Capital Issues Licence. The following is the new Defence of the Realm Regulation 30 F, issued last month in substitution for the previous regulation which was withdrawn by the Treasury (see pages 65 and 77 Mag.): 1. It shall not be lawful, except under and in pursuance of a licence granted by the Treasury (a) To issue capital in the United Kingdom where the proceeds of the issue or any part thereof are to be applied for capital purposes outside the United Kingdom, or to replace money which has been so applied; or |