False Representation-Deceit-Action— Nonsuit.

The defendant caused to be inserted in a public newspaper an advertisement for the letting by tender with immediate possession "all that farm," &c. (describing it). The plaintiff, believing in the bona fides of such advertisement, and desiring to become tenant of a place of the description advertised, was induced to take and did take trouble and incurred expense in going to and inspecting the property, and in the employment of persons to inspect and value it for him, with a view of his becoming tenant thereof. The defendant knew at the time he caused the advertisement to be published that he had not power to let the said farm, and in fact the said farm was not to be let, and the defendant caused the advertisement to be issued to serve some purpose of his own other than that appearing by the advertisement. Upon the above facts, disclosed by the particulars in a plaint in a County Court, the Judge directed a nonsuit, holding that no cause of action was disclosed:-Held, upon appeal, that the Judge was wrong, and that he ought to have heard the evidence.

CASE stated upon appeal from a County Court.

NEW SERIES, 43.-Q.B.

This is an action of tort brought in the County Court of Montgomeryshire.

The particulars of the plaintiff's claim in the said action were and are in the words following (that is to say)

The plaintiff sues the defendant in tort for legal fraud and deceit committed under the following circumstances: For that the defendant in or about March, 1872, caused to be inserted in a public newspaper called the Cambrian News an advertisement for the letting by tender with immediate possession of all that farm, mansion house and mill called Dolangwyn, situate in the parish of Towyn, in the county of Merioneth, containing 400 acres (more or less), together with an extensive sheep-walk or mountain pasture carrying 1,000 sheep. And the plaintiff, believing in the bona fides of such advertisement, and desiring to become tenant of a place of the description advertised, was induced to take and did take considerable trouble and pains, and incurred considerable costs and expenses in going to and inspecting the property, and in the employment of persons to inspect and value it for him, with a view to his becoming tenant thereof; whereas it afterwards appeared that the defendant had no power to let the property as advertised and caused the advertisement to be issued to serve some purpose of his

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own other than that appearing by the advertisement.

The action came on for trial on the 27th day of February, 1873, before me, the Judge of the County Court aforesaid. Neither party demanded a jury.

The plaintiff's advocate applied to have the particulars amended by inserting the words, "The defendant knew at the time he caused such advertisement to be published that he had not power to let the same farm, and the said farm was not to be let."

I was of opinion that the particulars filed did not disclose, and if amended in the manner required by the plaintiff's advocate, would not disclose a good cause of action, and directed that the plaintiff should be nonsuited.

The question for the opinion of the Court of Queen's Bench is, whether the particulars filed disclose, or whether if amended in the manner required by the plaintiff, they would disclose a good cause of action?

Lopes, for the appellant (the plaintiff). -The learned Judge was wrong in declining to hear the case, as the plaintiff might have proved that he had a good cause of action against the defendant. The allegations in the particulars, especially with the proposed amendment, were sufficient to shew that there had been a fraudulent misrepresentation by the defendant. The Judge has precluded the plaintiff from proving his case by evidence.

[QUAIN, J.-It was a question of fact to be tried, whether or not the plaintiff had relied upon the allegations in the advertisement.]

Yes; and it is alleged in the plaint that he did believe in the bona fides of the advertisement. In Gerhard v. Bates (1) Lord Campbell, C.J., in delivering the judgment of the Court, said, "We consider it clear law, that if A fraudulently makes a representation which is false, and which he knows to be false, to B, meaning that B shall act upon it, and B, believing it to be true, does act upon it, and thereby suffers a damage, B may

(1) 2 E. & B. 476; s. c. 22 Law J. Rep. (N.s.) Q.B, 364.

maintain an action upon the case against A for the deceit; there being here the conjunction of wrong and loss entitling the injured and suffering party to a compensation in damages." An advertisement in a public newspaper imports an intention that the public should read it, and in this case that they might go to see the farm. The plaintiff could be called as a witness, and would sustain the allegation that he did rely upon the advertisement. [He also referred to Harris v. Nickerson (2).]

T. S. Pritchard, for the respondent.The case must be treated as upon a demurrer to the particulars as amended. The form of this advertisement is so general and vague that it shews the defendant did not mean that it should be acted upon. No time is fixed within which the sale is to take place. No address is given with respect to any application for a view or for particulars. It is only in the nature of a preliminary advertisement. It was not a natural consequence that a person should employ surveyors to inspect and view and take journeys without communicating with the defendant. If the defendant is to be held liable it would be depriving him of the liberty of withdrawing from the sale except upon payment of all the expenses incurred, it may be, by a large number of persons. In Harris v. Nickerson (2) it was held that there was no implied contract on the part of the vendor to indemnify a person who attended a sale, which had been advertised, to buy certain articles inserted in the catalogues of sale, but which articles were withdrawn from the sale, against the expense and inconvenience which he had incurred, and Quain, J., in delivering his judgment says, "To uphold the decision of the Judge in the Court below, it would be necessary to go to this extent, that whenever a person advertises goods for sale, he must be held to be not at liberty to withdraw them from the sale or be liable to an action, even though the person bringing it may have gone generally to the sale, and bought other goods there. I think to introduce such a principle without strong authority would be very mischievous."

(2) 42 Law J. Rep. (N.S.) Q.B. 171; s. c. Law Rep. 8 Q.B. 286.

And Archibald, J., says, "I can quite understand that if a false and fraudulent representation were to be made that a sale had been fixed for a certain day, and persons thereby induced to go to the place appointed, so as to lose their time, that they might be entitled to bring an action against the person making the representation." But here there was no such definite invitation to view and employ others to view. In Gerhard v. Bates (1) there was an express allegation in the second count that the defendant intended to induce the public to become purchasers, and their becoming so was the direct and natural consequence of the false prospectus issued by him.

Lopes was not called on to reply.

BLACKBURN, J.-I think that the Judge was wrong in directing a nonsuit. The question is not whether or not the plaintiff has a cause of action against the defendant, but whether, upon the opening statement of the case, the allegations on behalf of the plaintiff, and the particulars of claim, there appeared to be a cause of action, taking the allegations to be true-whether upon the allegations of the plaintiff there was a cause of action which he sought to prove. I do not say that if it is clear upon the opening statement and the particulars that there cannot be a cause of action, the Judge is not entitled to direct a nonsuit, but in a case where a cause of action may be shewn, the Judge should hear the case before he directs a nonsuit. In the case before us it would seem, taking the particulars to have been amended as proposed, that it is alleged on behalf of the plaintiff that the defendant had inserted the advertisement in a public newspaper, and, as the plaintiff alleges, from some indirect motive, there being no farm which could be let as advertised. If that was done for the purpose of the advertisement being read by persons who might be looking out for a farm, and might enquire about it, and come to look at the farm so advertised we must take it that there was a representation which may be treated as having been made to the plaintiff. The rule is laid down in Swift v. Winterbotham (3), where it is said, "It is now well

(3) 42 Law J. Rep. (N.s.) Q.B. 111.

established that in order to enable a person injured by a false representation to sue for damages, it is not necessary that the representation should be made to the plaintiff directly; it is sufficient if the representation is made to a third person to be communicated to a class of persons of whom the plaintiff is one, or even if it is made to the public generally, with a view to its being acted on, and the plaintiff, as one of the public, acts on it and suffers damage thereby." We think that the law on this subject is correctly stated by Pollock, C.B., in Bedford v. Bagshawe (4): "Generally a false and fraudulent statement must be made with a view to deceive the party who makes the complaint, or, at all events, to deceive the class to whom he may be supposed to belong, although he may not be individually and particularly intended. There must always be evidence that the person charged with the false statement and the fraudulent conduct, had in his contemplation the individual making the complaint, or, at all events, that the individual making the complaint must have been one of those whom he ought to have been aware he was injuring or might injure by what he was doing."

I was not a party to the decision of that case, but I agree with the law as so laid down in the considered judgment of the Court. Even if I did not, of course I should be bound by it. We must, therefore, take the statement in these particulars to have been made by the defendant to the plaintiff. Barley v. Walford (5), while it recognises the doctrine laid down in Collins v. Evans (6), reversing the judgment of this Court, pointedly saves the case of a falsehood uttered by a person with a view to his own lucre. I think that the Judge was premature in directing a nonsuit.

QUAIN, J.-I am of the same opinion. I think that the case must go back in order that it may be heard upon the merits. I do not say that a Judge may not direct

(4) 4 Hurl. & N. 533; s. c. 29 Law J. Rep. (N.S.) Exch. 65.

(5) 9 Q.B. Rep. 197; s. c. 15 Law J. Rep. (N.S.) Q.B. 369.

(6) 5 Q.B. Rep. 820 ; s. c. 13 Law J. Rep. (x.s ) Q.B. 180.

a nonsuit upon the opening of the case, but where, as in the County Courts, there are no written pleadings, such a course should not be adopted, unless it appears in the plainest way that there is not any cause of action. Prima facie, these particulars with the proposed amendment do, I think, disclose a cause of action. The plaintiff, knowing that he had no power to let the farm, falsely represented that he could let it with immediate possession. He publishes to the world that all persons who were interested in the matter, or who might wish to take the farm, might go and look at it. The plaintiff acts upon the representation and has sustained loss thereby. Taking the facts as originally stated in the particulars, together with the amendment, it cannot be said that there could not be proof of a good cause of action.

ARCHIBALD, J.-I am of the same opinion.

Judgment for the appellant.

Estoppel-Will by Tenant by the Curtesy -Tenant for Life-Remainderman-Heirat-Law barred by Statute of Limitations.

R. A., tenant by the curtesy of an estate of freehold of inheritance, died in 1820, after making a will by which he devised the freehold to trustees in trust for his daughter Rebecca, for life, and after her decease to his grandson, W. B. Certain annuities were payable under the will, and were paid by Rebecca. The testator died in the year 1855, and at and after his death Rebecca remained in possession. In 1849 the plaintiff bought of W. B., the remainderman, all his interest in the freehold. In 1863 Rebecca sold the freehold to the defendant, and in 1872 she died, whereupon the plaintiff demanded possession and brought an action of ejectment against the defendant to recover

possession:-Held, that Rebecca having taken under the will, and having acted under it, would have been estopped from asserting that it was invalid and that by reason of her possession for twenty years she was entitled to the fee; that the defendant, who claimed through her, was estopped in like manner, and that consequently the plaintiff who had purchased from W. B., the remaiderman, was entitled to recover from the defendant.

This was an action of ejectment, brought to recover possession of a certain dwelling-house and premises, situate in the parish of Burham, in the county of Somerset, more particularly described in the writ.

The case came on to be tried before Grove, J., at the Spring Assizes, 1873, held at Taunton, when a verdict was found by consent for the plaintiff, subject to the opinion of the Court of Queen's Bench upon the following case, the Court to be at liberty to draw from the facts stated therein all the inferences which a jury might have drawn.

CASE.

1. In the year 1820, one Robert Amesbury was seised and possessed as tenant by the curtesy of England of (inter alia) the premises mentioned in the writ of ejectment hereinafter called the "disputed premises."

2. Robert Amesbury was twice married. By his first wife, Hannah, who died intestate about the year 1812, and who was seised and possessed of an estate of freehold of inheritance in the disputed premises, he had issue four daughters, first, Rebecca; second, Fanny; third, Lydia; and fourth, Maria; and one son, Joseph. His second wife, Mary Locke, was a sister of his first wife.

3. On the 15th of April, 1800, the said Fanny Amesbury married one William Board, and by him had issue three sons, first, William; second, Robert (the plaintiff); and third, Joseph. The said Fanny Amesbury, afterwards Fanny Board, died a few years afterwards; and William Board, about the year 1818, married her sister, the said Rebecca. The defendant, Thomas Board, is the son of William Board and the said Rebecca.