Nova Ontario. Nova Nova SECRET COMMISSION (a). A secret commission frequently takes the form of an option to sell to the guilty party for a lesser sum and a private agreement to pay over to him the difference between that lesser sum and the greater sum for which he unloads on the real purchaser. Such a transaction is considered less in the sense of an option than an arrangement to enable the go-between to commit a fraud (b). Where the position of the parties cannot be restored, the agreement will not be rescinded in favour of the real purchaser, but the difference pocketed by the go-between will be the measure of damages against the vendor (c). NOT CARING WHETHER IT WAS TRUE OR FALSE (). White v. Sage (e) seems to point to a different result to the English decisions. In this case there was a finding of the jury that the defendant made the representation without knowing whether it was true or false, without a reasonable belief in its truth, and without making proper inquiries. But they also answered in the negative, "Did the defendant falsely, fraudulently, and deceitfully represent the signature to the cheque to be genuine when in truth and in fact it was a forgery?" The action was held not maintainable. The case is perhaps less illustrative of the law of misrepresentation than of the art of eliciting unexpected answers from a jury. UNTRUE EX POST FACTO (ƒ). There is a distinction between a statement becoming untrue ex post facto and being proved untrue by events ex post jacte Thus, where a representation that a mare was in foal was proved by the event to be untrue, the defendant, having knowingly made the misrepresentation, was held liable (g). REPRESENTATION MUST BE INTENDED TO BE Misrepresentations made subsequently to the contract, and having no influence in inducing the making thereof, are not sufficient to set aside the contract (i). REPORTS OF DIRECTORS (a). An action arising out of fraudulent statements in the annual Ontario. reports of a company may lie directly against the company (b), unless the purchaser of its shares bought from a private holder (c). TEST OF INTEREST (d). Where the promoters of a company benefited by the misrepre- Canada. sentation of an agent (as to the number of shares taken up) by receiving the payment of the subscriber, it was held that they were liable to repay the same though they did not authorize, and had no knowledge of, the false representations of their agent (e). It is not necessary to show that the person practising the Ontario. deceit has benefited thereby, provided he made the representation knowing it to be untrue (f), and with the intention of inducing the party to whom it is made to act upon it (g), and the latter does act upon it and sustains damage in consequence (h). PLAINTIFF MUST HAVE BEEN INFLUENCED (¿). Where the bargain has been concluded and no tendency to Nova recede from it has been shown prior to the representations, Scotia. they cannot be taken as having any influence in inducing the contract (k). MISREPRESENTATION AS TO CREDIT OF THIRD PERSON (1). Sect. 6 of 9 Geo. IV. c. 14, has been expressly inserted in the statutes of some of the Provinces, viz. : R. S. O. 1897, c. 146, s. 7 (see also s. 8). R. S. B. C. 1897, c. 85 (Statute of Frauds), s. 12. C. S. N. B. 1903, c. 140 (Statute of Frauds), s. 5. R. S. N. S. 1900, c. 141 (Statute of Frauds), s. 10. (a) P. 541, supra. (b) Moore V. Ontario Investment Assn., 16 O. R. 269. (c) Ibid. (d) P. 544, supra. (e) Milburn v. Wilson (2 O. L. R. 261), 31 S. C. R. 481. Per Strong, C.J., that neither express authority nor subsequent ratification or participation in benefit were recessary to make the promoters liable; the rule of respondeat superior applies as in other cases of agency. (ƒ) French v. Skead, 24 Gr. 179. Ontario. British Columbia. New Brunswick. Nova Right of reputation. Action of defamation. Slander. Libel. Falsehood and malice. THE right of each man, during his lifetime (a), to the unimpaired possession of his reputation and good name is recognised by the law. Reputation depends on opinion, and opinion in the main on the communication of thought and information from one man to another. He therefore who directly communicates to the mind of another matter untrue and likely in the natural course of things substantially to disparage the reputation of a third person is, on the face of it, guilty of a legal wrong, for which the remedy is an action of defamation-a remedy, however, by no means commensurate with the damage that in every case may arise, but limited by many considerations of convenience and public policy. Defamatory matter may have no existence except as it is communicated or published in some fugitive manner. Such defamation is called slander. Or it may be embodied in some permanent form, and in such case, its production will be one thing, its publication another. Defamation of this kind is called libel. Prima facie the publication of defamatory matter is a cause of action. It is true that it is necessary for the plaintiff in his pleading to allege that the imputation published is false, and usual, though not necessary (b), to allege that it is malicious; (a) Action is not maintainable for a slander on a deceased person (Broom v. Ritchie, (1904) 6 F. 842, Ct. of Sess.). (b) Per Cur., Bromage v. Prosser, (1825) 4 B. & C. p. 255. And see Reg. v. Munslow, (1895) 1 Q. B. 758. must be wilful. but the burden of proof of neither of these allegations lies upon him. It is not to be assumed that any one is of bad character, and therefore defamation of an individual may be taken to be false until it is proved to be true. As for the word malicious its meaning simply is that the publication was intentional and without just cause or excuse (a). Defamation must be wilful in the Defamation same way as all torts of commission must be. The existence of just cause or excuse is for the defendant to establish either out of the mouth of the adverse witnesses or by independent proof. What constitutes such just cause or excuse remains to be considered later on. At present it is necessary to consider more fully what libel is, what slander is, and what amounts to a publication. The term libel of course properly indicates something printed What is a or written, but it includes also any scandalous painting, effigy, or emblem. A gallows at the doorway of some obnoxious person may be a libel a libel upon him (b). libel. the intention. If a A man may be libelled in respect either of his personal character, or of his office or vocation. In the former case the libel must consist of matter calculated to hold him up to "hatred, contempt, or ridicule" (c). Whether it does so or not depends, Does not not upon the intention of the offending party, but upon depend on probabilities of the case, upon the natural tendency of the publication, having regard to surrounding circumstances (d). defendant has published "what he knew, or ought to have known, was calculated to injure the plaintiff, he must . . . be responsible for the consequences though his object might have been to injure another person than the plaintiff, or though he may have written in levity only. . . . No one can cast about firebrands and death and then escape from being responsible by saying that he was in sport " (e). On the other hand, the mere Language (a) Per Cur., Bromage v. Prosser, (1825) 4 B. & C. p. 255. (b) 5 Rep. 126; Carr v. Hood, (1808) 1 Camp. 355, n. See Eyre v. Garlick, (1878) 42 J. P. 68. In Jefferies v. Duncombe, (1809) 11 East, 227, the plaintiff recovered damages against the defendant for keeping in front of the plaintiff's house a lamp burning during the daytime, "thereby intending to mark out the dwelling-house of the plaintiff as a bawdy house." The (c) Per Parke, B., Parmiter v. Coup- (e) Per Lord Blackburn, Capital & not in itself defamatory. intention to vex and annoy will not make language defamatory which is not so in its own nature (a). An imputation of conduct not in itself really censurable, however distasteful or objectionable the conduct may be according to the notions of certain people, is not a legal injury. "Would it be libellous," it has been asked, "to write of a lady of fashion, that she had been seen on the top of an omnibus, or of a nobleman that he was in the habit of burning tallow candles?" (b). "There is a distinction between imputing what is merely a breach of professional etiquette and what is illegal, mischievous, or sinful; between, in fact, matters of taste and matters of crime" (c). Thus it has been decided that in humble life the mere imputation of "want of womanly delicacy" is not actionable per se (d). Nor is it a libel to write of a medical man that he met homoeopathists in consultation. A homœopathist may be a perfectly competent and qualified practitioner, and the imputation therefore was not of professional misconduct but simply of a breach of an arbitrary rule. In Mawe v. Pigott (e), the plaintiff had been attacked in the defendant's newspaper for certain denunciations of the Fenian conspirators which he was said to have made, and it was argued that he was exposed to hatred and contempt in the opinion of many people, by being represented as an informer or prosecutor or otherwise aiding in the detection of crime. "That is quite true," says the judgment, "but we cannot be called upon to adopt that standard. The very circumstance which will make a person be regarded with disfavour by the criminal classes will raise his character in the estimation of right-thinking men. We can only regard the estimation in which a man is held by society generally" (f). To seriously depart from the accepted rules of right-feeling, good conduct, and prudence is either hateful or Counties Bank v. Henty, (1880-2) 7 App. Cas. p. 772. In a case of criminal libel it is advisable, though not apparently essential, to insert an averment in the indictment that the publication was "to the manifest corruption of the morals of his Majesty's subjects," Rex v. Barraclough, (1905) 22 T. L. R. 41, C. C. R. (a) The case of Nerill v. Fine Arts, &c., Insurance Co., (1895) Q. B. 156, as to which see below, p. 565, is perhaps difficult to reconcile with the earlier authorities. (b) Per Pollock, C.B., Clay v. Roberts, (1863) 8 L. T. N. S. p. 398. (c) Per Pollock, C.B., ibid. (d) A. B. v. Blackwood, (1902) 5 F. 25, Ct. of Sess. (e) (1869) Ir. Rep. 4 C. L. 54. (f) Ibid. p. 62. See too Miller v. David, (1874) L. R. 9 C. P. 118. |