[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 GoodsWarrantyCollateral
warrantySale
of second-hand
motor-bicycle False statement
in registration
book as to year
bicycle put on marketString
contractsNo
fraudulent
misrepresentation by seller in questionWhether
any warranty
given.
lievenueStamp
dutyUnstamped
document admitted in evidence in
court belowDuty
of Court of AppealStamp
Act, 1891 (54 & 55
Vict. c. 39), s. 14. Court of Appeal.
FraudWho
may sueSale
of goodsMotor-vehicleFalse
statement
in, registration
"bookString
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 terms 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
admitted 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 admitted 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 passed 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 terms had been drawn up and signed. The facts
and the terms 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 terms on which he had
sold the bicycle to the fourth party. This memorandum was
not stamped but it had been admitted 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 admitted 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 interpreteddoes 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
salein this case a sale or exchange of a motor-bicycle with a
sidecar combinationthere 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 terms 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 admirable 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 terms
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
passages 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 passage 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 terms of it necessarily
exclude any w a r r a n t y t h a t is to say, any collateral bargain,
VOL.

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 support 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 supporting 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 support 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 remember 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 terms
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 passed
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

husbandBight of wife to remain enforceable against husband's
successor in title loith noticeBight not lost by incomplete agreement to accept alternative accommodationBight 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.]