F. C.

LTD., AND OTHERS

v. SHARPE AND OTHERS.

Shand J.

and suggested their withdrawal, and that thereupon the defendant BARNES & Co., Sharpe had said, Sharpe had said, "If it is not the fact, it is very close to it." In cross-examination Clark had gone on to say that the subject matter of this alleged conversation with the defendant Sharpe had been repeated by him to others shortly afterwards; and I understand that Brown was referred to as one of the persons to whom it had been repeated. The defendant Sharpe, however, in his examination-in-chief, had denied this conversation, or that he had any conversation at all with Clark until after the issue of the writ.

Brown was called in rebuttal to say that before the writ was issued, he had a conversation with Clark about the circular, and that the subject matter of this conversation was a previous conversation between Clark and the defendant Sharpe.

It is true that Brown did not say what the conversation between the defendant Sharpe and Clark was stated to have been, but what he did say was obviously intended to suggest that the defendant Sharpe's contradiction of Clark's evidence was untrue, and that in point of fact, the defendant Sharpe, although warned by Clark before the writ was issued, that the circular contained things that were not true, and advised to withdraw them, had been content to let the circular go uncorrected, and had stated that if not in accordance with fact, the circular was close enough to it.

I cannot think that this evidence would have been admissible at any time, and à fortiori, I cannot think that it was admissible in rebuttal.

Mr. Feez pointed out that the importance of the evidence given by Woolsey and Brown was that it tended to establish malice against the defendant Sharpe; and he contended that in consequence of this evidence the jury may not only have been induced to adopt the suggestion of the learned Judge that aggravated damages should be given against the defendantsincluding, it is to be noticed, the defendant Nielsen and the defendant company, against whom no special suggestion of malice was made-but might also have been induced to find that there was an absence of bona fides about the publication of the circular which destroyed the value of the defendants` pleas of lawful excuse.

I am not much impressed by the latter part of this contention. It is true that by pars. 6, 7, and 8 of their defence the defendants. in effect, pleaded that the words complained of, if published at all, were excused by the qualified protection afforded by subsecs. 3, 5, and 8 of s. 377 of The Criminal Code. But the question whether the defendants, even if the absence of good faith was not proved against them, made any case which justified them in claiming the protection of any of these subsections, seems to me to be very doubtful.

I cannot help thinking that the misunderstanding which seems to have arisen between the learned Judge and Mr. Feez with reference to the question of bona fides was largely due to this-That the learned Judge was very strongly of opinion that the publications were not made under circumstances which would afford lawful excuse for them, even if made in good faith, and that consequently, except on the question of damages, the question of good faith or absence of good faith was perfectly immaterial. If that was the view of the learned Judge, I cannot say that I am prepared to differ from it. But it is perhaps advisable to say no more about this matter, because it was hardly touched upon in the argument addressed to us.

I do, however, think that the evidence of Woolsey and Brown may have helped to inflame the damages awarded by the jury, and that, for this reason, its admission cannot be regarded as a matter by which no substantial wrong or miscarriage was occasioned within the meaning of s. 13 of The Supreme Court Act of 1874. Bray v. Ford (1). And I also think-to quote the language of Pollock C.B. in Clark v. Newsam (2). "that it would be very unjust to make the malignant motive of one party "-the defendant Sharpe-" a ground of aggravation against the other party "-the defendant Nielsen-" and that in such cases the plaintiff ought to select the party against whom he means to get aggravated damages." See also Hay v. The Australasian Institute of Marine Engineers (3).

Incidentally I have, I think, dealt with the ground of appeal"That damages were excessive, unreasonable, against the evidence, and contrary to law."

(1) [1896] A.C. 44.

(2) 1847, 1 Ex. 131, at p. 140.

(3) 1906, 3 C.L.R. 1002,

F. C.

BARNES & CO.,

LTD., AND OTHERS v. SHARPE AND OTHERS.

Shand J.

F. C.

BARNES & Co.,

LTD., AND OTHERS v. SHARPE AND OTHERS.

Shand J.

Admitting that when damages are given for injury to reputation, the mere fact that the verdict is for a larger sum than the Court of Appeal would have given, is no sufficient reason for granting a new trial-Praed v. Graham (1)—it appears to that the damages in this case have been assessed upon a wrong principle in several respects.

me

I think the jury may have been misled by the representative form of action adopted by the plaintiffs. I think they may have been misled by the direction that they were at liberty to construe the words complained of as imputing to all the plaintiffs (including the companies and firms as such), criminal offences not imputable to most of the defendants. I think they have been allowed to give damages in a lump sum against three defendants in respect of two separate torts in respect of one of which, at all events, one at least of the defendants could not be made liable; and that they have been invited to give aggravated damages against all three defendants in respect of malicious motives, which, at any rate, were not attributable to one of them, and in proof of which inadmissible evidence has been admitted.

The only remaining grounds of appeal taken in the notice of appeal, to which I have not referred specifically, are the somewhat general grounds

"That the judgment was contrary to law;" and

"That the judgment was against the evidence and the

weight of evidence."

But it does not appear to me that these grounds cover any further questions in addition to those with which I have already dealt.

For the reasons which I have endeavoured to give, there is, in my opinion, no verdict here which can stand against the defendants, so as to justify the entry of judgment against them.

I think, therefore, that the verdict and judgment should be set aside. The difficulty is to determine what judgment should be substituted by this Court. Obviously, according to my view of the case, a new trial cannotbe directed between the same parties in respect of the causes of action which were combined in this action. At the same time, although there are, I think, possible causes

(1) 1889, 24 Q.B,D. 53,

F. C. BARNES & Co.,

v. SHARPE AND

OTHERS. Shand J.

of action which remain undisposed of, and in respect of which the plaintiffs should not be precluded from bringing their action in proper form, it is not, I think, convenient or desirable that LTD., AND OTHERS we should attempt to enumerate what these possible causes of action are, with a view to putting the plaintiffs to their election how they will proceed by adapting the present form of action to some other form of action not open to any of the objections which have led to this appeal. For, in my opinion, the plaintiffs are responsible for the miscarriage of the first trial. By adopting a form of action in which different plaintiffs, different defendants, and different causes of action were somewhat recklessly combined with each other, they seem to me to have set out upon a path which was beset with many pitfalls, and they seem to me to have wilfully closed their eyes to all danger signals with which they were confronted in their progress, so that, in my opinion, whatever the result of any other action might be, it would be unfair to saddle the defendants with the costs of this abortive trial.

Under these circumstances, I think the fairest course for us to adopt will be to set aside the verdict and judgment in this action, and to direct a judgment of non-suit to be entered against the plaintiffs.

This will not preclude them from bringing any further action, which they may be advised to bring for the recovery of such several damages (if any) as they respectively may be entitled to recover on their own behalf respectively, in respect of such causes of action as they respectively may have against the defendants, or some or one of the defendants.

I also think that the plaintiffs should pay to the defendants their costs of the action and of this appeal, and that the amount of the damages paid into Court should be paid out to the defendants.

Verdict and judgment entered for the plaintiffs set aside,
and in lieu thereof, judgment of non-suit entered against
the plaintiffs; plaintiffs ordered to pay the defendants
their costs of the action and this appeal. The moneys
paid into Court to be paid out to the solicitors of the
parties who respectively paid them in.

Solicitors for the appellant: Thynne & Macartney.
Solicitors for the respondents: Atthow & McGregor,

19.

Chubb J.

[IN THE FULL COURT.]

COX v. ISLES, LOVE & CO.

Contract Ratification-Right to begin on new trial of issueUse on new trial of evidence taken at former trial—0. XL., 7. 28.

I. purchased a horse for M. He purported to act for C. or the undisclosed principal of C., but he exceeded the authority given to him by C. I. sent the

August 24, 25, 26. horse to C. Subsequently C. discovered that the instructions given to I. had been disregarded. He, however, kept the horse, and leased him to others to train and race. He afterwards brought an action against M. and I., claiming alternative relief against each of them. The Full Court held that he was entitled to recover damages against I., unless he or his undisclosed principal ratified the contract, and directed a new trial on these questions.

Full Court. 1909.

October, 21,22,25.

Real J.
Power J.
Shand J.

Held, that C's actions after he had knowledge of the facts amounted to ratification.

When a new trial of an issue is directed, the party must begin who would be compelled to begin if the matter was an original matter.

On such new trial evidence must be given in the usual way, and the notes of evidence taken at the first trial may not be used as primary evidence.

TRIAL OF ACTION.

This was the new trial of an issue directed by the Full Court in Cox v. Mosman and Isles, Love & Co. (1), upon the questions, Whether or not the plaintiff or his principal, Bell, ratified the contract made between Isles, Love & Co. and Mosman.

Woolcock and Wassell for the plaintiff.

McLeod and A. D. Graham for the defendant.

Woolcock claimed that the defendant should begin, the onus of proving the affirmative of the issue being on him, and referred to Roscoe on Evidence, 18th Ed., p. 284; Halsbury's Laws of England, Vol. I, p. 179.

CHUBB J. directed that the defendant should begin.

Macleod proposed to tender as evidence the Judge's notes of evidence taken at the original trial. O. XL., r. 28; Shedden v. Patrick (2), Daun v. Simmons (3). He asked that the Judge request the Chief Justice to furnish such notes of evidence.