Lord Atkin Page 6

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defendant by falsely and fraudulently warranting a gun to have been made by Nock and to be a good, safe and secure gun, sold the gun to the plaintiff's father for the use of himself and his son, and that one of his sons confiding in the warranty used the gun, which burst and injured him. Plea not guilty and no warranty as alleged. The report is not very satisfactory. No evidence is reported of any warranty or statement except that the gun was an elegant twist gun by Nock. The judge left to the jury whether the defendant had warranted the gun to be by Nock and to be safe: whether it was in fact unsafe: and whether the defendant warranted it to be safe knowing that it was not so. The jury returned a general verdict for the plaintiff. It appears to have been argued that the plaintiff could recover wherever there is a breach of duty imposed on the defendant by contract or otherwise, and the plaintiff is injured by reason of its breach: by this is meant apparently that the duty need not be owed to the plaintiff but that he can take advantage of the breach of a duty owed to a third party. This contention was negatived by the Court, who held, however, that the plaintiff could recover if a representation known to be false was made to a third person with the intention that a chattel should be used by the plaintiff, even though it does not appear that the defendant intended the false representation to be communicated to him. See per Parke B. 2 M. & W. at p 531. The same view was adopted by the Exchequer Chamber, the user by the plaintiff being treated by the Court as one of the acts contemplated by the fraudulent defendant. It is unnecessary to consider whether the proposition can be supported in its widest form. It is sufficient to say that the case was based as I think in the pleading and certainly in the judgment on the ground of fraud, and it appears to add nothing of value positively or negatively to the present discussion. Winterbottom v. Wright 1842 10 M. & W. 109 was a case decided on a demurrer. The plaintiff had demurred to two of the pleas as to which there was no decision by the Court, but on the hearing of the plaintiff's demurrer the Court in accordance with the practice of the day* were entitled to consider the whole record including the declaration, and coming to the conclusion that the declaration disclosed no cause of action, gave judgment for the defendant. The advantage of the procedure is that we are in a position to know the precise issue at law which arose for determination. The declaration was in case and alleged that the defendant had contracted with the Postmaster-General to provide the mail coach to convey mails from Hartford to Holyhead and to keep the mails in safe condition, that Atkinson and others with notice of the said contract had contracted with the Postmaster-General to convey the road mailcoach from Hartford to Holyhead: and that the plaintiff relying on the said first contract hired himself to Atkinson to drive the mailcoach, but that the defendant so negligently conducted himself and so utterly disregarded his aforesaid contract that the defendant having the means of knowing and well knowing all the aforesaid premises, the mailcoach being in a dangerous condition owing to certain latent defects and to no other cause gave way, whereby the plaintiff was thrown from his seat and injured. It is to be observed that no negligence apart from breach of contract was alleged, in other words no duty was alleged other than the duty arising out of the contract: it is not stated that the defendant knew or ought to have known of the latent defect. The argument of the defendant was that on the face of the declaration the wrong arose merely out of the breach of a contract, and that only a party to the contract could sue. The Court of Exchequer adopted that view, as clearly appears from the judgments of Alderson and Rolfe B.B. There are dicta by Lord Abinger which are too wide as to an action of negligence being confined to cases of breach of a public duty. The actual decision appears to have been manifestly

* See Sutton “Personal Actions at Common Law” page 113.