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DAILY EXAMINER.

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This is true Liberty, when Free Born Men, having to advise the Public, may speak free.”—Evnriripgs.

CHARLO

—

TTET

NS

NESDAY, JULY

15, 1891.

Sine te Copies Two Cents

VOL. 28.—NO. 46

yifereu

in this City

%

*

+

— Pw ae

DOM

\ LN

very Char! June 17,

1891.

ttretown,

Having a Large Stock of Fine-All-wool Light Dress Materials, we will make the fol- lowing Reduction in Price to make a speedy Clearance :— Fine All-wool Dress Goods, = = - = ss ss regular price 24c, now 16¢ Five Ali-woot Press Goods, . . . . : ts Be, “* We viae Allwoo! Dress Goods, . : . : : e 36¢, “« 25¢ rine All-woo! Dress Goods, . . : . ; “ 49c, “ 26¢ “ agl &§ age @'; : . 2 fine All-woe!l Dress Goods, . : ‘ ‘ : ‘6 45e, “ 30¢

f adies should see these Goods. They are decidedly the best Bargains that have been

for some time.

J. B. MACDONALD.

SPLLERS VS. TOOMBS.

An Interesting and Laportant Case.

Judge Alley’s Decision.

In the County Court of Qusens County, Sixth Circuit, 17th June, 1891.

[| CONCLUDED. |

But it is claimed by plaintiti that in this case defendant is clearly rendered liable by his mala fides in falsely representing to plaintiff that Coffin had liver and stomach complaint, The evidence of plaintiff and and defendant varies as to the time when this statement was made. If the plaintiff's statement is correct, no doubt can exist that defendant is liable for false and fraud- ulent representation of the facts, for it is admitted by defendant that at that time he knew that Coflin had typhoid fever. But assuming that defendant’s statement is cor- rect, that the conversation between him aad plaintiff on this subject took place the day after Cuffin’s arrival, still it appears to me that defendant wold be liable. The

London and Northwestern Railway Co., 1 appeal cases, 759: ‘*That though the plain- tiff may have been guilty of negligence— and although the negligence may, in facet, have contributed to the ac- cident—yet, if the defendant could in the result, by the exercise of ordinary care and diligeuice, have avoided the mischief which happened, the plaintiff's negligence will not excuse him,” (See also Addison on Torts, 6th edn , with American noies, pp. 27 and 28, and cases there cited.

~~

a

Now in this case the negligence com- plained of, and the primary cause of the injury to the plaintiff is the failure of de- fendant to communicate to him the true ua'ure of Coffin’s complaint, whereby he was prevented from taking such precautions as he otherwise would have taken to pre- vent the spreading of the disease among the members of his family by their re- moval, or by such other suitable means as he should see fit to exercise for that pur- pose. Defendant attributes the disease to the filthy condition of plaintiffs yard, which, in his opinion as 4 medical man, was likely to produce typhoid fever. With a knowledge of this fact and its dangerous consequences, it appears to me that the obligation upon him was enhanced to com- municate the information to plaintiff, for neglecting which he is now charged in this action, and under the principles above enunciated the plaintiff's negligence, though it may have remotely or indirectly contri- buted in some degree tothe injury, will not relieve the defendant from liability for his neglect.

If the defendant has, by his own act,

rule of law on this subject is thus stated in

thrown the plaintiff off his guard, and has

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Leake on Contracts, p. 374, edn 1878 ‘' given him good reason to believe that vigi- Ifa person make a representation to) Jance was not needed, the lack of such vigi- another witha reasonable belief in its trn:h, | Jance on the part of the plaintiff is no bar but afterwards discover it to be false, and | to his claim, especially if the defendant has afterdiscovering his error, suffsr the other done so by positive misrepresentations party to continue in error and to act upon (Hutchison vs. Guion, 5 C. B. N.S. 149, the faith of the representation, this from See Shearman and Redfield, p. 35.) the time of the discovery of the truth be- The case has been very ably argued, and comes a fraudulent representation, a!- I have endeavored to give to the arguments though it was not so originally. Reynell j of counsel on both sides and to the authori- vs Sprye, 1 De Gex MacNaghten and Gordon ties they quoted my best consideration. 1

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>> ce, er to increacc,)

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Note Circulation Notice.

le aceerdance with the provisions of Sec the Bank Act, JULY proximo, this Bank ha { men’s whereby notes of t Bank will be RE DEEMED) AT PAR byt any of their Branches

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Bank of Montreal,

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Refreshing and Healthy Summer Drink just received in Bottles and on Draught.

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Condy’s Fluid, Chloride of Lime, Insect Pow- Sticky Fly Paper, etc., etc., at

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Qe rere erenecses

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4 Doubt

me : sts the average man as r7,HERE IS NOTHING that interests ' er much as the price he pays for his Clothing —unless 1¢ 1s

: 9; i ‘the price he pays for his Wife’s Clothing. We don a ae ‘the latter. In the former we have an assortment tha a ‘General Excellence and Low Prices has absolutaly a AE lin the citv. We do not claim to be the Cheapest Ulothier,

‘but we claim to give the Best Value.

Our READY-MADE CLOTHING is

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wn

BRUCE THE CLOTHIER.

| Charlottetown, June 22, 1891—dy & wky

660, 21 L. J.C. 661. And in Pollock on Torts p. 191, referring to this doctrine, the author remarks, ‘*Wedo not know of any authority against this being the true doctiine | ot common law as well as of equity, or as

think it is distinguishable from the cases quoted by Mr. Peters—Perionsky vs. Free-

| man, 4 F and F 597, Davis vs. England, 10

Jurist N. 8., 1036, and Fish vs. Kelly, 17 C. B. N. S., 201—in this respect, that in

‘yg. Great Western Ry, 38 L. J.C.

applicable to an action for deceit as to ee ’ setting aside of a contract or conveyance, | those cases there wasno breach of duty as

Analegy seems in its favor.” So although a. between defendant and plaintiff and no al- representation be trne in fact at the time of legation or proof of false or fraudulent re- making*it, if it afterwards become untrue by | presentation.

a change of circumstances to the knowledge; -The only question which now remains is of the party making it, the continuation of the amount of damages to which plaintiff is such representation may be equivalent toan entitled. In actions of tort the liability of

originally fraudulent _misrepresentaton.|. gefendant for negligence i ; ‘ wih ne ; “ ~, | 8 gligence is broader than Leake, p. 374, British Equitable (Insce Co) in actions of contract. Upon this subject

314. | 4 : In Trail *vs. Baring, 4 De Gex, Jones and the rule to be derived from the American

Smith, 318. 23 L. J. Chancy, 521, Lord C#8@8 is that a person guilty of negligence Justice Turner thus lays down the law: ‘If. Shall be held responsible for all the conse- @ person makes a representation by which quences which a prudent and experienced he induces another to take a particular; Man fully acquainted with all the circum- @ovtse, and the circumstances are afterwards stances which in fact existed, whether they altered to the knowledge of the party making’ could have ascertained by reasonable d:h- the representation but not to the knowledge | gence or not, would have thought at the of the party to whom the representation is’ time of the negligent act reasonably pos-

)}U. C., 179 )

made, it is the imperative duty of the party | who bas made the representation to communi-

eate the alteration of those circumstances, and

the Court will not hold the other party

bound unless such representation has been

made. (See on this subject Pollock on Torts, | 191 Freeman vs. Cooke, 2 Exch. 662, per | Parke B.) Upon this point reference may | be made to Dr. Taylor’s evidence. He says: ‘*If Ll told a man at whose house the patient staid that he had some disease, and I was. afterwards led to conclude he had another | which was cupible of being communicated I would consider it my duty to tell the per son of my change of opinion. If I commenced ' at all, I would certainly rectify my mistake.” ; As akin to this subject, I may also refer

to the following trom American decisions : “Ifa person make a representation of a fact of his own knowledge in relation tu a subject matter suspeeptible of knowledge and such representation is not true; if the party to whom it is made relies and acts upon it as true, and sustains damage by it, it isa fraud and deceit for which the party making it is responsible, Nor is it necessary to prove in such a case that the party making it had any interest of his own to subserve by it, the act is wrong and injurious, and the conclusion of law is that it was done malo animo. (2 Metcalf 374. See also French vs, Skead, 24 Chancy Also if a person states as of his own knowledge materia! facts which are sus- ceptible of knowledge to one who relies and acts upon them as true, it is no defence to an action for deceit if the representations are false that the person making them believed them to be true, although the declaration alleges that the representations were false, and that the defendant made them, knowing that they were false. Litchfield vs. Hutchinson, 117 Mass. 195 (1875 ;) see 126 Mass. 208, 127 Mass. 218.

See also on this subject Levy vs. Langridge 4M. & W. 337, and Lee vs. Jenos, 17 C. B., N.8., 482.

The evidence of several of witnesses goes to show that plaintiff, who was a butcher, kept his yard and premises in Mount Stew- art in a dirty condition, and the testimony of Drs. Taylor and McLeod establishes that filth is good soil for propagating typhoid fever and that a dirty yard where animals are slaughtered would make the germs from which the fever arises more virulent or numerous—would give them more potency. This being the case it is contended by de- fendant that plaintiff was Sguilcy of con- iributory negligence and is disentitled to recover on this ground. Now on this point, the law is well settled that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of injury, if the defendant after _becoming sware of the plaintiff's danger, failed to use ordinary care to avoid injuring him. (See Shearman and Redfield on Negligence, 3rd edn., p. 43). After the plaintiff has shown that the defendant was negligent, then the defendant has to show, first, that the plain- tiff has been negligent in respect to the matter complained of, and might have avoided the consequences of defendant's negligence; and, secondly, that the plain- tiffs negligence has been of such a charac- ter that the defendant could not avoid its effects.— (Smith on Negligence, page 155). The following is the rule laid down on this

‘ 7s

sible to follow if they had been suggested to his mind. (Beaven on Negligence, p. 92 ) Sheraman & Redfield, sec 594. The plaintiff claims for cash paid for wine and brandy for his family, while sick, $7; cash paid Edmund Slacktord for wages as clerk during his wife's sickness, $20; cash paid servants wages, $8; and board of servant while sick, $8. These items which have been proved, I am disposed toallow. He also claims $25 per month for loss of profit in his store from August until December, which loss was sustained, as he claims, by reason of the typhoid fever in his family; also, for the loss of three barrels of beef decayed in the shop owing to his loss of custom. The last item is clearly too remote, and while the plaintiff might under ordinary circumstapces be entitled to some compensation for his loss of time during his family’s sickness, I do not under the special eircumstances of this case feel disposed to allow him any remuneration, either in that way or for loss of protits in his business. The evidence given of the conditiun of plaintiff s premises (though not amounting, in my opinion, to contributory negligence to be an answer to the action) is received by me in mitigation of damages. 1 wiil therefore dis- allow these latter charges and will give judg- ment for the items already stated, amounting in all to $43 with costs to be taxed. + Ore

To Hire,—First class horses and buggies to hire. Enquire at G.G. Jury's Jewelry Store or at his residence, 289 Sydney Street east, fivedoors below Methodist Brick Churck.

July 4, Wed Sat 2 mos.

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