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i li

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3 1924 022 234 93

Principles and Practice

F THE LAW OF

LIBEL AND SLANDER.

THIRD EDITION.
Principles and Practice

OF THE LAW OF

LIBEL AND SLANDER

WITH

SUGGESTIONS ON THE CONDUCT OF A CIVIL ACTION,

FORMS AND PRECEDENTS,

AND ALL STATUTES BEARING ON 1HE SUBJECT.

BY

HUGH FRASER, M.A., LL.D.,

OF THE INNER TEMPLE AND NORTHERN CIRCUIT, BARRISTER-AT-LAW 5

AUTHOR OF ‘‘A COMPENDIUM OF THE LAW OF TORTS.”

THIRD EDITION.

LONDON :

BUTTERWORTH & CO., 12, Bexu Yarp, Tempte Bar, W.C.
Law Publishers.

 

1901.
BRADBURY, AGNEW, & CO. LD., PRINTERS,
LONDON AND TONBRIDGE.
PREFACE TO THE THIRD EDITION.

—_+——_.

IN preparing the present edition for the press,
the book has been thoroughly revised and brought
up to date, and I have endeavoured as far as
possible not to increase the size of the work. I
have made no alteration in the plan or general
arrangement except that the Forms and Precedents
are no longer to be found in Appendix A, “ On the
conduct of a civil action,” but are now collected
separately in Appendix B. In the Table of Cases
prefixed to the work, the references to all the
ordinary contemporaneous reports are given; but,
in order to save space in the body of the work,
one or two of the more important references have,
as arule, only been given, and in the case of modern
authorities the reference to the Law Reports when

it exists.
H. F,

4, Eta Court, Tempte, E.C.,
July 23rd, 1901.
PREFACE TO THE FIRST EDITION.

Tue object of this work is to present to the reader
the Principles and Practice of the Law of Libel
and Slander in a concise form; and, considering
the large and increasing number of actions of this
kind with which the Courts are occupied, it is
hoped that the book may prove useful to the Legal
Profession. The Law is stated in the form of
Propositions, followed by Explanatory Notes, in
the preparation of which the original authorities
have in every case been consulted. Several cases
of importance which have been decided in the
last few years have received special notice.
Appendix A contains some practical suggestions on
the conduct of a Civil Action, together with Forms
and Precedents. In Appendix B will be found all
the Statutes bearing on the Law of Libel and

Slander, with references under each section to

particular pages in the text.
Vill PREFACE TO THE FIRST EDITION.

I wish to express my obligations to my friend
Mr. Buake Onpcers, the author of the well-known
standard work on this subject, for occasional hints
and kindly advice.

I have also to thank my friends Mr. A. CLarKE
Wiuuiams, LL.D., and Mr. A. T. Carrer, D.C.L.,
Barristers-at-Law, for their kindness in revising
the proof-sheets. For the copious Index I am
indebted to my friend Mr. G. H. Taytor-
WHITEHEAD, M.A., Barrister-at-Law.

Hy We,

4, Exam Court, TEMPLE, E.C.,
April 3rd, 1893.
CONTENTS.

=.
PAGE
TABLE OF CAsEs : : oe oe NUT
INDEX TO STATUTES CITED i F 2 xli
List OF ABBREVIATIONS .. £4 ; xliii
Part I.
OF A CIVIL ACTION.

ARTICLE 1. Definition of libel and slander ey eh a 1
2. Construction .. is a i 9
3. No action without publication ‘ns 13

4. Action for libel maintainable without pe oof of
special damage 3 19

5. No action tor slander without proof al special
damage, except in four cases et oc cm | 20
6. Intention immaterial. . ae ee 7 .. 87
7. Slander of title 2 39
8. Slander of goods manufactured or sold by ‘another 44
9. Joinder of plaintitls is a ia i ve “SOT
10. Joinder of defendants iy mi ee .. 654
11. Joinder of causes of action .. sok fe .. 56
12. Security for costs... 58

13. Liability in cases of joint publication ; ; no ) right to
contribution or indemnity from co- defendant .. 59
14. Principal and agent—master and servant .. .. 63
15. Liability for repetition of libel or slander .. .. 67
16. Married woman 2 .. 69
17. Husband’s liability for wife’ 8 libel ¢ or r slander ae rl
18, Aliens—infants—lunatics—bankrupts ... me, OA
19. Corporations and incorporated companies. . we 48
20. Defences to action for libel or slander... .. 81
ARTICLE 21,
22.
23.

24,
25.

26.
27.

28.
29.

30.
31.
32.

34.
35.
36.

37.
38.
39.

40.
41.
42,
43.
44.
45.
46.
47.
48.

49.

50.
dl.

CONTENTS.

Justification .

Distinction between report and eonimient. 5

Fair and bond fide comment on a matter of public
interest

Privilege

Statements made in | Parliament or in the course
of judicial, naval, military, or State proceedings

Reports, &c., published by order of Parliament ..

Reports in a newspaper of proceedings in a Court
of Justice

Other reports of fudicial emeebedinee

Extracts from registers kept pursuant to statute,
and reports of proceedings of quasi-judicial
bodies created by statute. .

Reports of proceedings in Parliament

Reports of proceedings of public meetings

Reports of vestry meetings, &c.

Notices and reports published at request of
Government office or authority . :

Statements made in order to redress public
grievances or punish crime

Statements made in order to protect interest of
writer or speaker ..

Statements made in order to protect a common
interest :

Statements made in discharge of a duty ..

Malice

Defence of apology “under sect. 2 of Lord Camp-
bell’s Act (6 & 7 Vict. c. 96)

Accord and satisfaction

Release

Res judicata .. io

Statute of Limitations

Death of plaintiff or defendant

Evidence in aggravation of damages

Evidence in mitigation of damages

Consolidation of actions ‘5

Assessment of damages in a consolidated action, ;

Injunctions ..

Costs ..

New trial

PAGE
82
87

89
99

103
109

110
115

120
122
123
130

133

134

138
143
152

158
159
159
159
162
163

. 165

169
173
175
176
179
180
ARTICLE 1.

2

a

3.
4

ou

aT

CONTENTS.

Part IT.
OF CRIMINAL PROCEEDINGS.

Libel a crime . a Bs
Blasphemous, paling: and obscene words, Sis

Publication
. No prosecution for newspaper ‘libel except by leave
of judge 25 3 ne bs
. Defences 4 a 202,

. Defence under sect. 6 of Lord Campbell's Act

(6 & 7 Vict. c. 96) ..

. Employer’s criminal liability for libels published

by his servants

. Libel or no libel, a question ‘for the j jury ae

APPENDIX A.
On the conduct of a civil action

APPENDIX B,
Forms and precedents

APPENDIX C,
Statutes

INDEX

Xl

PAGE
185
196
199

20
203

203

281
TABLE OF CASES.

PAGR
Aberdein v. Macleay (1893), 9 Times L. R. 539.. 100, 102, 147
Abrath v. N. E. Ry. Co (1886), 11 App. Cas. 253, 254 ; 55
L. J. Q. B. 466 ; 55 L. T. 63; 50 J. P. 659 (H. L.) .. 78
Adams v. Kelly (1824), Ry. & M. 157 ‘a .. 18, 24, 65
Alexander v. Jenkins (1892), 1 Q. B. 797; 61 ly, J. Q. B. 634 ;
66 L. T. 391; 40 W. R. 546 ; 56 J.P. 452(C.A.) 30,
31, 32, 85
uv. N. E. Ry, Co. (1865), 34 L. J. Q. B. 152; 6B. &S. 240;
11 Jur. (N. 8.) 619; 13 W. R. 651 — oe . 85, 86
Allbutt. General Council of Medical Education and Registration
(1889), 23 Q. B. D. 460 ; 58 L. J. Q. B. 606; 61 L. T.585 ;
54 J.P. 36; 5T. L. R. 651; 37 W. R. 771 (C. A.) va, LOB;
120, 121, 122, 132, 148
Allcock v. Hall (1891),1 Q. B. 444; 60 L. J. . B. 416; 39

 

 

 

W.R. 443; 64 L.T. 309... oe z a .. 184
Allen v. Eaton (1630), 1 Roll. Abr. 54... 5 .. B84
ee Labouchere (1878), 3 Q. B. D. 654; 48 b i Q. B.

; 39 L. T. 207; 42 J.P. 742(C. A) .. 227
Kitineon v. General Council of Medical Education (1892), 8

Times L. R. 784 (C. A.) é 178
Allsop & wife v. Allsop (1860), 5 8 & N. 534 ; ; 29 L. J. Ex.

315 ; 36 L. T. O. 8. 290 sis 22
Amann v. Damm (1860), 8 C. B. N.S. 597 ; ; 8 W. R. 470 ; 29

L. J. C. P. 313.. 3 oo 135, 150
Anderson v, Gorrie (1895), 1 Q. B. 668 ; 7 L. T. 382 (C.A.).. 107

v. Hamilton (1816), 2 B. & B. 156, n. id i .. 215
Andrews v. Chapman (1853), 3 C. & K. 289... .. 88, 117, 119

v. Nott Bower (1895), 1 Q. B. 888; 64 L. J. Q. B. 536 ;

72 L. T. 530; 59 J. P. 420(C. A.) . an 49
Annaly v. Trade Auziliary Co., Ltd. (1890), 26 ie R. Tt. 394... 120
Anon, (1638), Cro. Jac. 516 A .. 84
Apollinaris Co.’s Trade Marks, In re (1891), 1 Ch. 1; 63 L. T.

502; 39 W.R.309(C. A.) .. 59
Armstrong and others v. Armit and others (1886), 2 Times

L. R. 887 A ~ ve 178

Ashley v. Harrison (1793), 1 Esp. 48; Peake, 256 a seo LOT
X1V TABLE OF CASES.

PAGE
Ashmore v. Borthwick (1885), 49 J. P. 792; 2 Times L. R.
113, 209 ne a dLS
Astley (Sir John) v. Younge (1759), 2 Birr, 807 ; ; 21d. en, 536 104
Atherley » Harvey ( (1877), 2Q. B. D. 524; 46 LJ. Q. B. 518 ;

36 L. T. 551; 41 J.P. 661 .. a ay et oe 227
Attorney-General v. Bradbury and Evans (1851), 21 L. J. Ex.
12; 7 Ex.97; 16 Jur. 130 .. ea 112

Austin (Sir J.) wv. Culpepper (1684), 2 Show. 313 ; Slin. 123. 3, 6
Australian Newspaper Co. v, Bennett (1894), App. Cas. 284 ;

 

 

 

63 L. J. P.C. 105; 70 L. T. 597; 585. P.604 —.. 5, 10, 183
Ayre v. Craven (1834), 2 A. & BE. 2; 4 N. & M. 220; 4

L.J.K.B. 35 .. a a i ry ee, Sol
B— Re (1892), 1 Ch. 459; 61 L. J. Ch. 446 ; 40 W. R. 369;

66 L. T. 38 oe a i + i 76
Baal v. Baggerley (1632), Cro, Car. 326 8 .. 26
Bahama Islands, Jn re (1893, App. Cas. 138 ; 62 L.J.P. C. 79 ;

68 L. T. 105; 573. P.277 .. B4 a .. 89
Bainbridge v. Lax and others (1846), 9 Q. B. 819 Lo .. 160
Baker v. Carrick (1894), 1 Q. B. 838; 63 L. J. Q. B. 399;

70 L. T. 366; 58 J. P. 669 (C. AG a fa 4 .. 148

v. Morfue (1668), Sid. 327; 2 Keb. 202 .. Hi .. 384

and others v. Piper (1886), 2 Times L. R. 733 40
Baldwin v. Elphinston (1775), 2 W. Bl. 1037 16
Bankes v. Allen (1616), 1 Roll. Abr. 54 . 35
Banks v. Hollingsworth (1893), 1 Q. B. 442 62 L. J. & B. 239;

68 L. T. 477 ; 41 W. R. 225 ; 57 J. P. 436 (C. A.) 213
Bannister v. Kelly (1895), 59 J. P. 793 .. sg a 147
Barmund’s case (1619), Cro. Jac. 473 . 22
Barnabas v. Traunter (1641), 1 Vin. Abr. 396 92
Barnes v. Bruddel (1669), 1 Vent. 4 22

v. Holloway (1799), 8 T. R. 150 36
Barnett v. Allen (1858), 3 H. & N. 376; 27 it J. Ex, 412;

TF. & F125; 4JurN.S.488 iy .. 11, 20, 27
Barrett v. Long (1851),3 H. L. C. 395 .. ws 26 .. 157
Barrow v. Lewellin (1615), Hob. 62 ds . 13
Bayley v. Edmunds and others (1895), 11 times ih. co 537

(CoA) : .. 179, 188
Beamish v. Day Supply 6, Ltd. (1897), 13 T. L. R. 484

(C. AL) . . . 14, 184
Beamond v. Hastings (1610), Cro. ‘Jae. 240 ae 29
Beatson v. Skene (1860), 29 L. J. Ex. 480; 5 H. & N, 838 ;

2L. T. 378; SW. R544... : 144, 215

Beauchamps (Lord} v. Sir R. Croft (1569), Dyer 285 a. .. 104
TABLE OF CASES. XV

PAGE

Behrens v, Allen (1862), 3 F.& F.135; 8Jur.N.9.118 .. 87
Bellamy v. Burch (1847), 16 M. & M. 590 sas ne val. (32S
Bellerophon, H.M.S. (1874), 44L.J. Ad.5 3 cov BLS

Belt x. Lawes (1882), 51 L. J. Q. B. 359; (1884), 12 Q. B. D.
356 ; 50 L. T. 441; 32 WLR. 607 (C. A)... 46, 184, 214, 221
Bennetts v. Mellwraith & Co. (1896),2Q. B. 464 ; 65 L. J. Q. B.
632575 L. 1148; OW. RIT, TLR AS 8S

 

 

Best v. Osborne & Co. (1896), 12 Times L. R. 419 ; ., 219
Biggs v. G. E. Ry. Co, (186s), 16 W. R. 908; 18 L. T. 482... 85
Bill vy, Neal (1662), 1 Lev.52 .. =... ss—s—=~isiB
Bishop v. Latimer (1861), 4 L. T. 775 he .. 8, 83, 119
Bittridge’s case (1602), + Rep. 19 b se 2g a ag ih
Blackburn v. Blackburn (1827), 4 Bing. 395; 3 C. & P. 146;
1M. & P. 33, 63 #3 : Pe 3d .. 88
Blackham v, Pugh (1846), 2 C. B. 6ll; IL. J.C. P. 290 2. 185
Blagg v. Sturt (1846), 10 Q. B. 899; 16 L. J. Q B. 39
10-due, 1011... a :% - ad 8
Blake v. Pilfold (1832), 1 Moo. & Ral 198 ons os .. 134
v. Stevens and others (1864), 11 L. T. 543 ; 4 FL & F. 232... 8,
38, 64, 84, 165
Blane v. Burrows (1896), 12 T. L. R. 521 ee wa 226
Bliss v. Stafford (1588), Owen, 37 ; Moore, 188; Jenk. 7 . 43
Bloodworth v. Gray (1844), 7 M. & Gr. 334; 8 Scott (N.R.)9 28
Bond v. Douglas (1836), 7 C.& P. 626 .. : 18, 64
Bonnard v. Perryman (1891), 2 Ch. 269; 60 L. J. Ch. 617;
65 L. T. 506; 7 T. L. R. 453 (C. A.) .. 45,176,177, 178
Boosey v. Wood (1865), 34 L. J. Ex. 65; 3 H. & C. 484;
11 L. T. 639... : ee avid .. 160
Booth v. Arnold (1895), 1 i B. ‘S713 “64 L. J. Q. B. 443;
72 L. T. 310; 59 J. P. 215 (C.A.) : .. 32
and another v. Briscoe (1877), 2 Q. B. D. 496 ; 25 W. R.
B38 (C. A) .. 4 53, 81
Borough of Sunderland (1895), 5 oO M. & i. 53. 179, 188, 279
Botterill and another v. Whytehead (1879), 41 L. T. 588 .. 35,

85, 139, 141, 149, 151, 157
“Bourgogne,” La (1899), A. C. 431; 68 L. J. P. 104; 80 L. T.
845; 8 Asp.M.C.550(H.L.) ..  ..  .. .. 2
Bourke v. Warren (1826), 2 C. & P. 307 ..
Bourn’s (Sir John) case, Cro, Eliz, 497 :
Bowen v. Hall and others (1881), 6 (). B. D. 333 ; 501, i Q. B.
305; 440,7.75;455.P.373(.4) .. ..  .. 24
Boxsius v. Goblet Freres (1894), 1 Q. B. 842 (C. A.) .. 14, 102, 148
Boydell v. Jones (1838), 7 Dow]. 210; 1 Horn & H. 408;
4M. & W. 446.. ds ea i oe 7,9, 119

GQ or
XV1 TABLE OF CASES.

PAGE
Bradbury v. Cooper (1883), 12 Q. B. D. 94; 53 L. J. Q. B. 558 ;
32 W.R. 32; 48 J.P.198 .. 217
Bradlaugh & Besant v. The Queen (1878), 3 Q. B. D. 607 ;
48 L.J.M.C.5; 26 W. R. 410; 38 L. T. 118; 14 Cox,

C. C. 68 (C. A.) ; mn .. 276
Bray v. Ford (1896), App Cas, i « 73 L, T. 609 ; 12 T.L. R.

119 (Hi. In). 0. 181, 182
Brenon v. Ridyway (1887), 3 Times L. R. 592 Hes oA .. 94
Brett v. Watson (1872), 20 W. R. 723 .. : .. 157
Brine v. Bazalgette (1849), 18 L. J. Ex. 348; 3 Ex. 692 .. 167
Brinsinead v. Harrison (1872), L. R.7 C. P. BAT ; 41 L.J.C.P.

190; 20 W.R. 784; 27L. 7.99. .. 161

British & Foreign Contract Co. +. Wright (1884), 32 Ww. R. 413 228
Bromage v. Piosen (1825),4 B. & C. 247;6 D. & R. 296;

 

LO. &P, 46,68 <.  s blather 214
Brook v. Raw] (1849), 4 Ex. 521; 19 L. J. Ex. 114 39, 40, 42, 43
Brown v. Croome (1817), 2 Stark. 297; 19 R. R. 727 141, 151

. Smith (1853), 13 C. B. 596; 22 L. J. C. P. 151 ;

LW. R. 288 oe 1 as 21, 36
Browne v. Dunn (1893), 6 R 67 (H. L. = . ef 15, 106
Brunsden v. Humphrey (1884), 14 Q. B. D. iis 53 L. J. Q.B.

476; 51 L. T. 529; 32 W.R.944; 495.P.4(C. A) .. 59
Brunswick (Duke of) v. Harmer (1849), 19 L. J. Q. B. 20;

3C.& k.10; 14 Jur. 110; 14 Q. B. 185 .. : 16, 163
Bryce v. Rusden (1886), 2 Times L. R. 435 8 = .. 94
Bull v. Chapman (1853), 8 Ex 104 or sae GL

Burdett v. Abbot (1811), 5 Dow, H. L. 165 ; 14 East, 1 1, 18, 64
Burnett v. Tak (1882), 45 L. T. 743; W. N. (1882), p. 8 45, 174

Bursill v. Tanner (1884), 13 Q. B. D. 691 ae 70
Burt v. Blackburn (1887), 3 Times L. R. 356 (C. A. ). ee
Button v. Heyward (1722), 8 Mod. 24... Pe ae sw 26
Byrchley’s case (1585), 4 Rep, 16.. a re ue .. 384
‘Cesar v. Curseny (1593), Cro. Eliz. 305 .. a oy 29
‘Calder v. Halket (1839), 3 Moo. P.C.C.28 .. ‘ .. 107
Campbell x. Spottis woode (1863), 3 B. & S. 769 ; 32 Te i Q. B.

185; 8 L. T. 201 ae .6, 67, 90, 98, 94, 98

Capital & Counties Bank v. Henty & Sons (1882), 7 App. Cas,
741;5C.P.D. 514; 52 L. J. Q. B. 232; 47 L. T. 662

31 W. R. 157; 47d. P. 214. 8 ie i 13
Carr v. Duckett (1860), 5 H. & N. 783 ; 29 L. ii Ex. 468 .. 40
— (Sir John) v. Hood (1808), 1 Camp. 355, n.; 10 RR.

OLS ax : : .. 95

Carrol ¢. Bird (1800, 3 Esp. at p. 202 a ded Fe . 145
TABLE OF CASES. xvii

PAGE
Carslake v, Mapledoram (1788), 2 T. R. 473... .. 2
Carter v. Rigby (1896), 2 Q. B. 113; 65 L. J. Q. B. 537 | 74

L. T. 744; 60 J. P. 581; 127. L. R. 447, 471(C. A.) .. 52
Caulfield v. Whitworth (1868), 18 L. T. 527; 16 W. R. 936..83, 157
Chalmers v. Shackell (1834), 6 C. & P. 475 est ‘ .. 83
Chaloner v. Lansdown & Sons (1894), 10 Times L. R 290. 126, 127
Chamberlain v. Boyd (1883), 11 Q. B. D. 407 ; 52 L. 5. Q. B.

277 ; 31 W. R. 572; 48 L. T. 328; 47 J. P, 372... . 22, 43
Champion & Co., Ltd. v. Birmingham Vinegar Brewery Co.,

Ltd. (1893), 10 Times L. R. 164; 38 Sol. J. 142... we | LTS
Chance v. Beveridge & Freeman’s Journal (1895), 11 Times

L. R. 528 ug gh wi aw 212
Charlton v. Watton (1834), 6 C. & P. 385. a 171

Chatterton v. Secretary of State for India in Council (1895), 2
Q. B. 189; 64 L. J. Q. B. 676; 72 L. T. 858; 59 J. P.

 

596 (C. A). ae. aye
Cheese v. Scales (1842), 10 M. & W. 488 ; 12 L. J. Ex. 13; 6

Jur. 958 i 8
Child v. Affleck and wife (1829), 9 B. & C. 403 ; 4M. & R. 338 146
Churchill v. Gedney (1889), 53 J. P. 471 a : se LO

(Lord) v. Hunt (1819), 2 B. & Ald. 685 ; 1 Chit. “480 ; 22

R. R. 807 i 7
Clark v. Freeman (1848), lL Beav. ‘ig; ‘W L. ‘ Ch. 42; 12

Jur. 149 : ain is sae a8 ay a8 8

 

v. Molyneux (1877), 3 Q. B. D. 237; 47 L. J. Q. B. 230 ;

20 W. R. 104; 36 L. T. 466; 37 L. T.694; 41 J. P. 293 ;

42 J. P. 277; 14 Cox,C.C.10(C. A.) .. a .. 100,
140, 147, 152, 153, 158, 182

Clarke v. Taylor (1836), 2 Bing. N. C. 654; 3 Scott, 95; 2

 

Hodges, 65; 5 L. J. C. P. 235 ie 84
Clarkson v. Lawson (1829-30), 6 Bing. 266, 587 ; 3 M. & P.

605; 4M. & P. 356 |. 8, 84
Clay v. Roberts (1863), 9 Jur. N.S. 580 ; rw W. R. 649 ; 8

L. T. 397 : 7,9

v. Yates (1856), 25 i; i Ex, 237 ; a7 L. T. 0. S. 126; ‘1

H.& N.73;4W. R557... 62
Clement v. ae and others (1822), 3 “Be, & Bing. "297 ; 7

Moore, 200; 3 B. & Ald. 702 as .. 8, 83, 119
Coats v. Chadwick (1894), 1 Ch. 347; 63 L. J. Ch. 328 ; 42
_ W.R. 328; 70 L. T. 228; 10 T. L. BR. 226 #4 sx 89
Colburn v. Patmore (1834),1 C. M.& R.73; 4 Tyr. 677 .. 61
Colebrook v. Jones (1752), 1 Dick. 154 .. 8 a .. 58
Collard v. Marshall (1892), 1 Ch. 571; 61 L. J. Ch. 268; 40

W. R. 473; 66 L. T. 248; 8T. L. R. 265... i 177, 178

LS. b
XV1i1 TABLE OF CASES.

 

 

 

 

PAGE
Colledge v. Pike (1886), 56 L. T. 124; 3T. L. R. 126.. 60, 174
Collier (M.D.) v. Simpson (1831), 5 C. & P73. 33
Commissioner for Railways v. Brown (1887), 13 App. Cas. 133 ;

57 L. J. P.C. 72; 57 L. T. 895 ey .. 183
Cook v. Field (1788), 3 Esp. 133 .. .. 85
v. Ward (1830), 6 Bing. 409; 4 M. & P, 99 ; 8 L. J.

(0.8) C. P. 126; 31R. R456. << 7, 3736
Cook v. Whellock (1890), 24 Q. B. D. 658 ; 59 Te. J. Q. B. 329;

38 W. R. 534; 62 L. T. 675 (C. AL)... sa ea ce 98
Cooke v. Hughes (1824), Ry. & M.115 .. ‘ .. 199
— and ane v. Wildes (1855), 5 E. & B. 328 ; 24 L. J.

Q. B. 367; 3C. L. R. 1090 .. = . - .. 138
Cooney v. Edeveain (1897), 14 T. L. R. 34 2g a 2 LOOT
Cooper v. Blackmore and others (1886), 2 Times L. R. 746 .. 229

v. Lawson (1838), 8 A. & E. 746; 2 Jur. 919; 1P.&D.

15; 1 W. W. & H. 601 aa .. 94, 116, 119
Corcoran and wife v. Corcoran (1857), 7 Tr, L. R. (N. 8.) 272.. 21
Coulson, v. Coulson (1887), 3 Times L. R. 846 .. - ihe, MLL
Coward v. Wellington (1836), 7C.& P. 531. .. 21, 136, 137
Cox v. Cooper (1863), 12 W. R. 75; 9 L. T. 329 oe 7 7

v. Feeney (1863), 4 F. & Fr 13 as 97

v. Lee (1869), L. BR. 4 Ex. 284; 38 L. J. Ex. 219; 21

L, T. 178 a 6
Coxhead v. Richards (1846), 2C. B 569 ; cr: i i C. P. 278 | 103,

149, 150
Crawfoot v. Dale (1675), 1 Vent. 263; 3 Salk. 327... .. 85
Creevy v. Carr (1835), 7 C. & P. 64 es ek .. 69, 161, 172
Critchley v. Brown (1886), 2 Times L. R. 238 .. a us 213
Croft v. King (1893), 1 Q. B. 419; 62 L. J. Q. B. 242; 68 L. T.

296; 41 W. R. 394... d 212
Crown Bank, In re, O'Malley, Ine re (1890), 44 Ch. D. 649; 59

L. J. Ch. 767 ; 39 W. R. 45; 63 L. T. 304 at se 89
Cucks v. Starre (1633), Cro. Car. 285... of a4 . 33
Cumming v. Green (1891), 7 Times L. R. 409 .. sa 223
Curry v. Walter (1796), 1 B. & P. 525; 1 Esp. 456; 8 Term

Rep. 298 me ee. gaa Coe ae,

Daines and another v. Hartley (1848), 3 Ex. 200 ;18L.J.Ex.81 11
Dalgleish v. Lowther (1899), 2 Q. B. 590; 81 L. T. 161; 48

W. RB. 37 ee 230
Dalrymple v. Leslie (1881), 8 Q. B. Dz. 5; a Te 7 Q. B. 61 ; 30
W.R.105; 45L.T. 478... . 231

Darby v. Ouseley (1856), 25 L. J. Ex, 207 3 ; 1 ‘iL &N. lias
Jur. N. 8. 497 i é a 23 Gh 170
TABLE OF CASES. XIX

 

PAGE
Dauncey v. Holloway (1901), 110 L. T. Journal 421; 17T. L. R.
493 (C. A)... 34
Davies v. Snead (1870), L. R. 5 Q. B, 611; 39 fy, J.Q. B, 202 ;
23 L.T.126 .. ‘ she 144, 150
and wife v. Solomon (1871), ie R. 7 Q. B. 112 ; 41 L. J.
Q. B. 10; 25 L. T. 799; 36 J. P. 454 GS 21
Davis v. Billing (1891), 8 Times L. R. 58; 36 Sol, J. 59
ay: .. 221

—_ v. Cutbush and others (1859), 1 F. &F. 487... 68, 132, 143, 172
v. Duncan (1874), L. R. 9 C. P. 396; 43 L. J.C. P. 185 ;

 

30 L. T. 464; 38 J.P. 728 .. : =a -- 96
—— v. Gardiner (1593), 4 Rep. 16; 2 Salk. 694 ; 1 Roll. Abr.
38 (Anne Davis’s case) oo 22

— & Sons v. Shepstone (1886), WL “App. "Cas. 187 ; 51
L, J. P.C. 51; 34 W. R. 722; 55 L. T. 1; 50 J. P. 709 ;

 

2T. L. R. 380. x 94
Davidson v. Duncan (1857), 26 L. IL Q. B. 104 ; 28 L. T. O. S.

265; 7E.& B. 229 .. $35 104, 132
Barina x: Paulet (Lord) (1869), ia R.5 Q. B. 94 ; 39 L. J. Q. B.

63; 9B. & 8. 768; 21 L. T. 584; 18 W. R. 336. .. 108

v. Rakely (Lord) (187 5), LR. 7 HLL. 744 345 L.5.Q.B.8;

36 L. T. 196; 23 W. R. 931 ¥ ei .. 108
Dawson v. M‘ Clelland (1899), 2 Ir. R. 486 (C. A) ct vie SOT
Day v. Brean (1837), 2 Moo. & R, 54... ne ne ..17, 67

v. Buller (1770), 3 Wils. 59. Me B4

 

De Bernales v. New York Herald (1893), 2 Q. B. 97, n.; 62
L. J. Q. B. 385; 41 W. R. 481; 68 L. T. 658 ; 9T.L.R.

381(C. A) .. , 212
De Crespigny v. Wellesley (1820), 5 Bing. 392 ; 2 M. & P.

695 oe é .. 66, 85, 165
Defries 7. Davis (1835), 7 C. & P. 112; 3 ‘Dowl. 629 .. we A
Delacroix v. Thevenot (1817), 2 Stark. 63 i 15
D’Hormusjee v. Grey (1882), 10 Q. B. D. 13; 50 im i Q. B.

192 aul ws i .. 59
Desilla v. Schunks & Co. (1880), W. N. 96 ae 55
Devereux v. Clarke (1891), 2 Q. B. 582; 60 L. J. Q. B. 773 ;

TTL R714. bo ‘ .. 223
De Wahl v. Braune (1856), 1H. & N. 178; 25 ia J. Ex. 343.. 75
Dibdin v. Swan & Bostock (1793), 1 Esp. 28; 5R.R. 717... 97
Dickson v. Wilton (The'Earl of) (1859), 1 F. & F. 419. .102, 153, 155
Dixon v. Smith (1860), 29 L. J. Ex. 125; 5H. & N.450  .. 147
Dockrell v. Dougall (1899), 80 L. T. 556 (C. A.) ba . .8, 178
Dodson v. Owen (1885), 2 Times L. R. 111 Ms es . 112
Doe v. Clifford (1847), 2 C. & Kir, 448 .. si a .. 226

52
XX TABLE OF CASES.

PAGE
Doe v. Ross (1840), 7 M. & W. 102 Sis ae .. 226
Donoghue v. Hayes (1831), Hayes, Ir. Ex. Rep. 265 .. .. «88
Doyley v. Roberts (1837), 3 Bing. N. C. 835; 5 Scott, 40; 3
Hodges, 154; 6L.J.C.P.279  .. se 6 . 29, 34
Drake v. Beckham (1849), 2 H. L. C. 579 3 ca AT
Drineqbier v. Wood (1899), 1 Ch. 393 ; 68 L. i. Ch. ‘181; 79
L. T. 548 ; 47 W. R. 252 ; 1s Tt Be 1. abe 53
Du Bost v. Bereatori (1811), 2 ‘Camp, 511 bf 3
Duncombe v. Daniell (1837), 8 C. & P. 222; 2Jur. 32 ; W. Ww.
& H. 101 28 ss 68, 96, 132, 141, 172
Dunn-v. Devon & Exeter Constitutional Newspaper Co., Ltd.
(1894), 10 Times L. R. 335 ; 63 L. J. Q. B. 342 ; 70 ‘ti T.
593 ; 10 R. 167 (1895), 1 Q. B. 211, n. or 219
Dunne v. Anderson (1825), 3 Bing. 88 ; 10 Moore, 407 ; ie &M.
287; 28 R. R591. =e ae .. 95
Duplany v. Davis (1887), 3 Times th 184 ae td .. 98

Eastmead v. Witt (1856), 18 C. B. 544; 25 L. J. C. P. 294;

 

2 Jur. N.S. 1004 23 ay sy .. 136
Eastwood v. Holmes (1858), 1 F. & F. 347 a es .. 5, 98
Eaton v. Johns (1842), 1 Dowl. N. 8. 602 i ad ss 6
Ecklin v. Little (1890), 6 Times L. R. 366 a ds ..24, 25
Eddison v. Dalziel (1893), 9 Times L. R. 334 .. es .. 174
Edsall v. Russell (1843), 12 L. J.C. P.4; 6 Jur. 996 ; 4 Man.

& G. 1090 ; 5 Scott, N.R. 801; 2D. (N.S) 641... —_..33, 87
Edward v. Lowther (1876), 45 L. J. C. P. 417; 34 L. T. 255 ;

24 W.R. 434 .. ee es se va 212

v. Bell and others (1824), 1 Bing. 403 ak ~ «= 87
Elborow 7. Allen (1623), Cro. Jac. 642 .. is .. 48
Ellis v. Duke of Bedford (1899), 1 Ch. 494 ; 68 L. J. Ch. 289 ; 80

L. T. 332 ; 47 W. R. 170, 385 ; 15 T. L. R. 87, 202 es 53

Ellis v. Nations Union of Conservative, &c. Associations and
others (1900), 109 L. T. Journal 493; Times newspaper

for October 3 .. é 179, 188, 279
Ellisen, Lx parte, not reported, approved by Tash, J., in Ras,
v. Carden ( (1879), 5 Q. B. D. 11,13. 192

Emmens v. Pottle & Sons (1885), 16 Q. B. D. 354; 55 L. i
Q. B.51; 34 W. R. 116; 53 L. T. 808 ; 50 J. P. 228; 2

 

GLE USCA)... sx 9]; 16, 17, 18, 66, 67
Evans v. Gwyn (1844), 5 Q. B. 844 as mig BS
v. Harlow (1844), 5 Q. B. 624; 13 L.J.Q. B, 120; -D. & M.

507 ; 8 Jur. 571 Ss i a at 9, 36, 49

Eyre v. Garlick (1878), 42 J. P. 68 5 se a oa 3
TABLE OF CASES. XX1

 

PAGE
Fairman v. Ives (1822), 5 B. & Ald. 642; 1D. & R. 252;
24 R. R. 514; 1 Chitty, 85 .. 3 ae ste -. 134
Farrer rv. Lowe & “Co, & oe (1889), 5 Times L. R. 234;
63 J.P.183.. P ass .. 213
Felkin v. Herbert (1863- 4), 33 i a Ch. 294 ; ‘1g W. R. 241 ;
9 L. T. 635; 10 Jur. N.S. 62 ud ar .. 95
Fernandez, Ex parte (1861), 30 L. J. C. P. 321; 9 W. R. 832;
4 L. T. 296, 324 ae 107
Fisher v. Owen. (1878), 8 Ch. D. “645 ; 47 L. J. ‘Ch. 477, 681;
38 L. T. 252,577; 42 J. P. 136 Es 227
Fleming v. Dollar (1889), 23 Q. B. D. 388 ; 58 Ae J. Q. B. 548;
61 L. T. 230; 5 T. L. R. 589 : sk 87, 221
Fleming and others v. Newton (1848), 1 H. L. ©. 343 ; 6 Bell’s
App. 175 ‘ 28 .. 120
Forbes v. King (1833), 1 Dowl. 672; 2. J. Ex. 109 . rs 7
Ford v. Blest (1890), 6 Times L. R, 295. 28 ke .. 215
Forrester v. Tyrrell (1893), 9 Times L. R. 257; 57 J. P. 532
(C. A.) . 4 : ee. AQ
Foster and others v Lawson (1826), 3 Bing. 452 ; “1 Moore, 360 57
Foster v. Perryman (1891), 8 Times L. R. 115 .. RS .. 223
Foulger v. Newcomb (1867), L. R. 2 Ex. 327 ; 36 L, J. Ex. 169 ;
16 L. T. 595; 15 W. R. 1181 i _. 28, 29, 36
Fowler and wile v. Homer (1812), 3 Camp. 294; 13 R. R. 807
135, 147
Francis v. Roose (1838), 3 M. & W. 191; 1H. & H. 36;
7L. J. Ex. 66. es Fe sa 27
Frank v. Mainwaring (1839), 4 Beav. 37. a as) be ..
Fraser v. Berkeley (1836), 70. & P. 621 a a .. 98
Frescoe v. May (1860),2 F.& F123... re 60, 161
ae Kinnersley (1863), 15 CU. B. N.S. 492 ; 33 L. J.C. P.

3 12 W.R.155;9L.T. 415... .. 142, 148, 141, 155
Gallagher v. Murton (1888), 4 Times L. R. 304.. 7 11
Gallwey v. Marshall (1853), 9 Ex. 294; 23 L. J. Ex. 78 ; ‘2

c. L. R. 399; 2 W. R.106 .. : 33
Gardner v. Irvin (1878), 4 Ex. Div. 53; 48 L. J. Ex, 293 ;

40 L. T. 357 ; 27 W. R, 442. : 225

» Slade (1849), 13 Q. B, 798; 18 L. J. Q B. 336; 13

J. P. 490 2 Les 146, 157
Gathercole v. Miall (1846), 15 L. z Ex, ‘179 ; 10 J. P. 582; 10

Jur. 337; 15 M.& W. 319 .. i Ba eG 97, 165
Gelen v. Hall '(1857), 2H.&N. 379... sh 28 .. 107
George v. Goddard (1861), 2 F. & F. 689 oa ‘ .. 140

Gerard (Sir G.) v. Dickenson (1590), 4 Rep. 18 5 Cro. Eliz 197 155
Xx TABLE OF CASES.

PAGE
Gibson v. Evans (1889), 23 Q. B. D. 384; 58 L. J. Q. B. 621 ;

61 L. T. 388; 54 J. P. 104; 5 T. L. RB. 589 ee 228
Gilpin v. Fowler (1854), 9 Ex. 615 ; 23 L. J. Ex, 152; 18 Jur.

293 ue a ue 151, 155
Glossop v. Spindler (1885), 29 Sol. Jour. 556 .. 222.
Goddart v. Haselfoot (1637), 1 Roll. Abr. 54; 1 Vin. Abr. Ss. a. pl. 12 34
Godson v. Home (1819), 1 B. & B. 7; 3 Moore, 223... 8.
Goffin v. Donnelly (1881), 6 Q. B. D. 307 ; 50 L. J. Q. B. 303 ;

44 L. T. 141; 29 W. R. 440; 45 J. P. 439 eH .. 104
Gomersall v. Davies (1898), 14 T. L. R. 430... ae .. 15
Gompas v. White (1890), 54J.P.22  .. .. 104
Goodall v. Little (1850), 1 Sim. N. 8. 155 ; 20 Ta J. Ch. 132 ;

15 Jur. 309. 225:
Gordon v. Street (1899), 69 Th J. Q. B. 45 ; ; (1899), 2 Q. B. 641;

15 T. L. R. 445; 81 L. 1,937; 48 W.R.158(C.A) .. 14,

166, 183
Goslett v. Garment (1897), 13 T. L. R. 391 .. “8 .. 142
Gouraud v. Fitzgerald (1889), 37 W R. 55; 5 T. L. R. 19, 80 ;

33 Sol. J. 54 |. i 217, 218.
Gourley v. Plimsoll (1873), L R. 8 C. P. “362 ; 42 L. J. C. P.

121; 21 W. R. 683; 28 L. T. 598 .. Ee .. 224
Gower v. Couldridge and others (1898), 1 Q. B. 348; 67

L. J. Q. B. 251; 46 W. R. 214; 77 L. T. 707 ied .. 55
Graham, Ex parte, Re Job (1870), 21 L. T. 802 . #4 77
Gray »v. Barticlomen’ (1895), 1 Q. B. 209 ; 64 L. J. Q. B. 125;

43 W. R.177; 71 L. T. 867; 14 RB. 50 (C. A) .. 219, 220
Great Australian, &c. Co. v. Martin (1877), 5 Ch. D. 1; 46

L. J. Ch. 289; 35 L. T. 874; 25 W. R. 246 site awe 72.
Green v. Chapman (1837), 4 Bing. N. C. 92; 5 Scott,340 .. 97
Griffiths v. Lewis (1846), 7 Q. B. 61; 15 L. J. Q. B. 249; 9

Jur. 370 de ae a a Mf 35, 137
Grimwade v. Dicks and others (1886), 2 Times L. R. 627 .. 118
Gutsole v. Mathers (1836), 1 M. & W. 495; 5 Dowl. 69; 2

Gale, 64; 1 Tyr. & Gr. 694 .. ea whe - .. 40
Guy v. Gregory (1840),9 C.& P. 587... a we .. 166
Gwynn v. 8S. E. Ry. Co. (1868), 18 L. T. 738... .. 84, 85, 86
Halley, The (1868), L. R.2 P.C.193 .. 74
Halsey v. Brotherhood (1880-1), 15 Ch. D. 523 ; 19 Ch. D. 386 ;

51 L. J. Ch. 233 ; 45 L. T. 640 oe te .. 40, “44, 47
Hancock v. Case (1862), 2F.&F.711 .. a5 ; .. 138

Hannay and others v. Smurthwaite and others (1894), App. Cas.
494; 63 L. J. Q. B. 737; 71 L. T. 157; 43 W. R. 1183; 7
‘Asp, M. C. 485; 6 R. 299(H.L.) .. 3 me ce OG
TABLE OF CASES. XXIl

PAGE
Harding . Greening (1817), 8 Taunt. 42 ; 1 Moore, 477; 1
Holt, N. P. 531 bs : .. 65
Hargrave v. Le Breton (1769), 4 Bur. 2422 ons 40, 51, 138, 146.
Harle v. Catherall and others (1866), 14 L. T. 80194, 97,171, 210:
Harman v. Delany (1731), 2 Str. 898 ; Barnard. 289 ; Fitz, 121

 

 

 

36, 49

Harper v. Beamond (1605), Cro, Jac. 56. 20 2s .. 380

Harris v. Thompson (1853), 13 C. B. 333° .. 148
v. Warre (1879), 4 C. P. D. 125; 48 L.J.C. P. 310; 27

W. R. 461; 40 L. T. 429 ; 43 J. P. 544, i 214, 216

Harrison v. Bevington (1838),8C.&P. 708 .. : se DY
v. Bush (1855), 5 E. & B. 344; 25 L. J.Q. B. 25; 3W.R.

375 aie ia ate .. 134

— v. Fraser (1881), 29 W. R. 662 33 hg = .. 185

v, Pearce (1858), 32 L. T. 0. S, 298; 1 F. & F. 567 60, 64

Hartley v. Herring (1799), 8 T. R. 130 . 3 me ..21, 33

Haythorn v. Laweon (1827), 3 C. & P. 196 i - 58

Hayward & Co. v. Hayward & Sons (1886), 34 Ch. D. 198 ; 56
— 287; 35 W. R. 392; 56 L. T. 729; 3 T. LR.

 

; 82 L. T. Journal,61_ .. . = 118, 176
eae v. McIlwaine and others (1894), 2 Q B. 54; 63
L. J. Q. B. 587 ; 70 L. T. 826 ; 583. P.620(C.4.) .. 1,2,
18, 101, 135, 138, 142, 150
Hedley v. Barlow (1865), 4 F. & F. 224 . j .. 95
Helmore v. Smith (1886), 35 Ch. D. 449 ; 56 L. di Ch. 145; 56
L. T. 72; 35 W. R. 157 ea 1€5
Helsham v. Blackwood (1851), 20 L. J. C. P, 187 ; 11O.B. 14;
15 Jur. 861. 95
Hennessy v. Wright (1888), 57 ie J. Q. B. 594 ; 24 Q. B. D:
445,n. (C. A.).. as 223, 224, 227, 228, 229, 232
v. Wright (1888), 36 W. R. 880; 59 L. T. 795 ; 4T. LR.
548, 651 j . 236
Henwood ». Harrison (1872), L. R. TC, P. 606 ; “41 ly, J. C.P
206 ; 26 L. T. 938; 20 W. R. 1000. bu: 5 96, 147
Heriot v. Stuart (1796), 1 Esp. 437 das a ai .. 9, 98
Hibbins v. Lee (1864), 11 L. T. 541; 4F.& F. 243. . .95, 96
Hibbs v. Wilkinson (1859), 1 F. & F. 608 my 3 .. «98
Hickinbotham ». Leach (1842), 10 M. & W. 363; 2 Dowl.
N. 8. 270 a .. 233

Hicks’ Case (1618), Hob. 215 ; Poph. 139, cited 6 East, 476 .. 199
Highmore v. Earl and Countess of Harrington ae 3C. B.

N.S. 142 oy) é BB
Hindlip v. Mudford (1890), 6 Times L. R. 367. tin .. 227
Hirst v. Goodwin (1862), 3 F. & F. 257... a is 35, 168
XXIV TABLE OF CASES.

: PAGE
Hoare v. Silverlock (1848), 12 Q. B. 624; 17 L. J. Q. B. 306 ;

12 Jur. 695 3 a ie .. 141
Hodgson v. Scarlett (1818), 1 B. & Ald. 244; 19 R.R. 301... 105
Hotsan v. Pare (1899), 1 Q. B. 455 ; 68 L, J. Q. B. 309 ; 80

L.T.18;47W.R.24(. A) ow. ww «07
Hollis v. Briscow ef ux. (1605), Cro. Jac. 58 .. oe .. 80
Holwood v. Hopkins (1600), Cro, Eliz. 787... Oi es 22

Hooper v. Truscott (1836), 2 Bing. N. C. 457 ; 2 Scott, 672 135, 155
Hope v. Brash (1897), 2, Q. B. 188; 66 L. J. Q. B. 653 ; 76

L. T. 823; 45 W.R. 659 (CA). _. 926, 228
Hopley v. Williams (1889), 6 Times L. R. 3; 53 J.P. 822 .. 175
Hopton v. Licensed Victuallers’ Gazette and others, “ Times”

newspaper for November 1 and 2,1900.. 60
Hopwood v. Thorn (1850), 8 C. B. 293 ; 19 L. J. C. P. 94; 14

Jur. 87 .. re 2s wis ois 20, 33, 137

Houlden v. Smith (1850), 14 Q. B. 841 ; ‘19 L. 2p Q. B.170 .. 107
How v. Prinn (1702), 2 Salk. 694 ; 2 Tord Raym. 812 ; 7 Mod.

113; 1 Bro. P. C.97; Holt, 652... ans au 30, 31
Howard v. Crowther (1841), 8 M. &W.601.. Gs 08
Howe Machine Co., In re me 41 Ch. D. 118; 61 ie T. 170 ;

37 W. R 680 .. : 58

Hubbock & Sons, Ltd. v. Wilkinson. & Heywood ‘(1899),
1Q.B. 86; 68 L. J. Q. B. 34; 79 L. T. 429; 15 T. LR.

 

 

 

 

SCR ek saute ee ie aka chs 49, 50
Hughes rv. Merrett (1886), 17 Q. B.D. 273... ee .. 180
v. Vargus (1893), 9 Times L. R. 551; 9 R. 661; 37 Sol.

J. 615 (C. A.) ' ie gal oe Oe
Hume v. Marshall (1878), 42 J. P. 136; Times, November 26,

sey. 35, 147
Humphreys v. Stanfield (1638), Cro, Car, 469 ; ‘Godb, 451 .. 48

v, Stilwell (1861),2 F.& F.590 .. 140
Humphries & Co. v, The Taylor Ding Co. (888), 3 39 Ch. D.

693; 37 W. RB. 192;59 L. T.177 a2 .. 231
Hunt v. Algar and others (1833), 6 C. & P. 245 tee 173
v. Clarke, Re O'Malley (1889), 58 L. J. Q. B. 490; 61

L. T. 348 ; 37 W. R. 724; 5 T. L. R. 496,650... 89

». G.N, Ry. Co. (1891), 2.Q. B. 189; 60 L. J. Q. B. 498;

55 J. P. 234, 648; 7 T. L. R. 113, 493 (C. Aa) 23 139, 146
Hunter v, Sharpe (1866), 4F.& F. 983; 15 L. T. 421 .. 8,98

Huntley v. Ward (1859), 1 F. & F. 552; 6C. B.N.8. 514. 38, 138

Ingram v. Lawson (1840), 9 C. & P. 333; 6 Bing. N. C. 212 ;
B Scott AT GLIA ie . .. 4. 488170
Ireland v. Champneys (1813), 4 Taunt. 884 is 6 .. 164
TABLE OF CASES. XXV

PAGE

Jackson v. Adams (1835), 2 Bing. N. C. 402; 2 Scott, 599; 5

 

 

 

 

 

 

 

 

 

 

L.J.C.P.79 .. 3 sca .. 80

v. Hopperton (1864), 16 C. B. N.S 829; “12 W. R. 913 ;

10. T. 529... be na .. 155
Jacobs v. Schmaltz (1890), 62 L. T. 121 ; 6 Times L. R. 155 216
James v. Boston (1845),2C.& K.4 a es 134, 147

v. Rutlech (1599), 4 Rep. 17 os a 5c .. 6, 28
Jenkins v. Smith (1621), Cro. Jac. 586... ; (BF
Jenner and another v. A’Beckett (1871), L. R. 7 Q. B. a; 41

L. J. Q. B. 14; 25 L. T, 464 ; 22 W. R. 322 i 98
Jenoure v, Delmege (1891), App. Cas. 73; 60 L. J. P. C. iis

63 L. T. 814; 55 J. P. 500 |. : i 100, 152, 182
Jesson v. Hayes (1636), 1 Roll. Abr. 63 .. - ne iy 4, 35
Johnson v. Evans (1800), 3 Esp. 32; 6 R. R. 809 ce .. 135

ve. Hudson (1836), 7 A. & E. 233,n.;1H.& W.680 .. 64
Jones and another v. Broadhurst (1850), 9 C. B. 173... .. 160
Jones v. Curling and another (1884), 13 Q. B. D. 262 ; 53 L. J.

Q. B. 373; 32 W. R.651;50L. T.349(. A) .. .. 180

v. Herne (1759), 2 Wils. 87. ; 2 ee .. 26

v. Richards (1885), 15 Q. B. Dz 439 ; a T. L. R.660 .. 228

v. Spencer (1897), 77 L. T. 536. i se .. 183

v. Thomas (1885), 34 W. R. 104 ; 53 L. T. 678 ; 2 Times

L. R. 95; 50 J. P. 149 < ot 135

v. Williams (1885), 1 Times L. R. 572 = 16, 135, 138
Kane rv. Mulvany (1866), Ir. R.,2C.L. 402... .. 104
Kelly v. O'Malley and others (1889), 6 Times L. R. 62. .. 125

v. Sherlock (1866), L. R. 1 Q. B. 686 ; 35 L. J. Q. B. 209 ;

29 J. P. 725; 30 J. P. 791, 805 ae 96

v. Tinling (1865) L. R. 1 Q. B. 699 ; 35 io J. Q. B. 231;

12 Jur. N. 8. 940; 13 L. T. 255 ; 14 W. RB. Sl... . 96, 97
Kerr v. Gandy (1886), 3 Times L. R. 75 a : .. 176
Kershaw v. Bailey (1848), 1 Ex. 743 ; 17 L. J. Ex. 129 .. 139
Keyzor and another v. Newcomb (1859), 1F. & F. 559 .. G4

Kimber v. The Press Association (1892), 8 Times L. R. 671 ;
9T. L. R. 6; (1893), 1 Q. B. 65; 62 L. J. Q. B. 152; 41

 

W.R.17; 671. 7.515; 575.P.247(. A) 2... 7
Kine v. Sewell (1838), 3 M. & W. 297 .. eh Pe 135, 137
King v. Lake (1672), 2 Ventr. 28 .. a ae i .. 85

v. Watts (1838),8C.&P.614 ..  .. .. Bd
Kirby v. Simpson (1854), 10 Exch. 35S .. +3 og .. 107
Keenig v. Ritchie (1862), 3F.&F.413...  ..  .. 98, 187

Lake v. King (1680), 1 Saund. 181; 1 Lev. 240; 1 Mod. 58;
Sid. 414 ie ig de as fa 104, 134
XXVI TABLE OF CASES.

PAGE
Lamb’s case (1610), 9 Rep fol. 60 ate id 1, 16, 1%
—— v. Munster (1882),10 Q. B. D. 110; 52 L. a: Q. B. 46 ; 47

L. T. 442; 31 W. R117 : ., 287
Latimer v. Western Morning News Co. (1871), 25 L. T. 44... 78
Laughton v. Bishop of Sodor and Man (1872), L. R. 4 P. C.

495; 42 L. J. P.C. 11; 24 W. R. 204; 28 L. T. 377 ; 37

J.P. 244 si a 137, 140.
Law v. Harwood (1628), Six W. “Fenea, 196; Ce. Car. 140 ;

Palm. 529 we 42.

Lawless v. Anglo- Epyptian ‘Cotton and Oil Co. (1869), L. R. 4
Q. B. 262; 10B. &S8. 226; 38L. J.Q. B. 129; 17 W.R.498 143.

Lawrence v. Newbemy (1891), 64 L. T. 797 ; 39 W. R. 605 .. 5
Lay v. Lawson (1836),4A.& E. 795... .. 151
Le Fanu and another v. Malcolmson (1848), 1 H. L. C. 637 ; 313

L. T.0.8.61; 8Ir.L.R.418 .. ae 6, 12, 58
Lefroy v. Burnside (1879), 4 L. R. Iv. at p. 340 ; 41 L. T. 199;

14 Cox, C. C. 260 i : 94
Lever v. Witty, unreported, tried at the Liverpool Assizes,

July 26,1893 .. a, ie a 6
Levi v. Milne (1827), 4 Bing. 195 ; 12 Moore, 418 i ss 5
Lewis v. Levy (1858), 27 L. J. Q. B. 282; E. B. & E. 537 117, 119

v. Walter (1821),4B.& Ald.605..  .. 86, 118

 

Leyman v. Latimer and others (1877-8), 3 Ex. D. 15, 352 ; 47

L J. Ex. 470; 37 L. T. 819 ; 26 W. R. 305 ; 14 Cox, C.C.

51; 42 J. P. 104 i £3 es wa 84
Lilley v. Roney (1892), 8 Times Li. R. 642; 62 L. J. Q. B. 727 104
Linotype Co., Ltd. v. British Empire Typesetting Machine Co.,

Ltd. (1899), 81 L. T. 333 (H.L) bas hae el
Littleboy v. Wright (1674), 1 Lev. 69 ; 1 Sid. 95 st wiv 162
Littleton, Ex parte (1888), 52 J. P. 264 .. i . 194

Liv erpool Household Stores Association v. Smith (1887), 37 Ch.
D.170; 47 L. J. Ch. 85; 36 W. R. 485 ; 57 L. T. 770; 58

L. T. 204; 47. LB. 28,93(C. A) oe 2h ca ahin
London wv. asteate (1619), 2 Rolle’s Rep. 72... 35
— & Northern Bank, Ltd. v. George Newnes, Ltd. (1899), 16

T. L. R. 76 ne li7
— & Northern Bank, Ltd. v. Genre Newnes, Ltd. (1900), 16

TT. Rs (GA)... B17, 987
Lowden v. Blakey (1889), 23 Q. B. ‘D. 332 ; 58 ie J.Q. B.617 ;

61 L. T. 251; 54 J. P. 54; 5 T. L, RB. 599... 2 226
Lowe v. Fox (1885), 15 Q. B. D. 667 ; 54 L. J. Q. B. 561; 61

L. T. 251; 38 W. R. 64; 54 J. P. 54(C. A.) a 162

Lumby »v. Allday (1831), 1 Cr. & J. 30131 nae 217;9L. J.
(O. 8.) Ex. 62 .. ee cis : ; i ane 2d
TABLE OF CASES. XXVil

PAGE

Lumley v. Gye (1853), 2 E. & B. 216 ; 22 L. J. Q. B. 463; 17

Jur. 827 ai 84 Ss .. 24
Lynam v. Gowing (1880), 6 i R. Tn 259 od i .. 106
Lynch v. Knight : and wife (1861), 9 H. L. C. 577 ; 8 Jur. N. S.

72455 t. T. 291 4 sis 3g i 21, 22, 24, 168:

M‘Corquodale », Bell and another (1876), W. N. 39 ; Bitt. 111;
20 Sol. J. 260 ; 60 L. T. Notes, 232. ae 228
Macdougall »v. Kenielit & Son (1890), L. R. 25 Q. B. D. tthe
(1889), 14 App. Cas. 200 ; 60 L. T. 672; 38 W. R. 44 ; 53

 

J. P. 691; 5'T.L. R. 390 ae = 118, 119
Machado », Fontes (1897), 2 Q. B. 231; 66 i, a Q. B. 542 ;

76 L. T. 588; 45 W. R. 565 ; 13 T. L. R. 407 (C. A) o.. 74
Mackay v. Ford (1860), 5 H.& N, 792; 29 L. J. Ex. 404; 2

L. T. 514; 8 W. R. 586 sige 105.

v. Manchester Press Co. (1889), 6 ‘Times i R. 16 ; ; 54

Js Pi 2D). es 219
Mackenzie ». Steinkopf (1890), 6 Times L. R. Wal; ‘Bd J. P.

327 oe 228
Maclaren & Sons v. Davia and another 1890), ¢ 6 Times L. R.

372 ig : 2 .. 182
Macleod v. Wakley (1828), 3 C. & P. 311 ‘ .. 98
M‘Pherson v. Daniels (1829), 10 B. & C. 263; 5 M. & Rob. 251

67, 68, 83, 85
Malachy v. Soper and another (1836), 3 Bing. N. C. 371; 3

Scott, 723 ; 2 Hodges, 217 .. i ms . 4, 39, 41, 43
Mallon v. W. H. Smith & Son (1893), 9 Ties L. R. 621, 17, 66, 67
Malone v. Fitzgerald (1886), 18 L. R. Ir. 187 .. be .. 231
Maloney v. Bartley (1812), 3 Camp. 210 ap ' .. 66
Manby v. Witt (1856), 18 C. B. 544; 25 L. J.C. P. 294 ; 2 Jur.

N.S. 1004 at sa .. 136
Manning v. Avery (1674), 3 ‘Keb. 153; i Vin, Abr. 553 .. 48
Marksa. The Conservative Newspaper Co., Ltd. ees 3 Times

L, R. 244 ee 160

Marriott v. Chamberlain (1886), 17 Q. B. D. 164; 55 i; 3 Q. B.

448; 34 W.R.783; 54 L. T. 714; 2 T. L. R. 551, 640

(C. A.) . 231
Marshall v. Marshall (1888), 38 Ch. D. 330 ; 59 L. T. 484 (C. A) 212
Marston v. Downes (1834), 1 A. & E. 31; 6C. & P. 381. 215, 226
Martin v. Strong (1836),5 A. & EH. 535; 1 N. & P. 29 ; 2
H. & W. 336... a - 21, 141
et uz, v. Trustees of British Museum & Thompson (1893),
10 Times L. R. 215; (1894), 10 Times L. R. 338. .16, 17, 67, 229

 
XXV11L TABLE OF CASES.

 

PAGE
Martyn v. Burlings (1597), Cro. Eliz. 589 ae nh . 34
Masham v. Bridges (1632), Cro. Car. 223 2g a a)
Masters v. Burgess (1886), 3 Times L, R. 96... i .. 147
Matthew ». Grass (1614), Cro. Jac. 323 .. .. 22
May v. Brown (1824), 3 B. & C.113; 4 D. &R. 670 ; ‘2 L. J.

(O. 8.) K. B. 212 a m3 8, 172
Mayor, &c. of Manchester v. Williams (1891), 1 Q. B. 94 78, 80
Mead v. Daubigny (1792), Peake, 168 .. .. 157

v. Hughes and wife (1891), 7 Times L. R. 291 tied .- 147

Mellin ». White (1895), App. Cas. 154; 64 L. J. Ch. 308; 43

W. R. 353 ; 72 L. T. 334; 59 IP, 596; 11 T. L. R.

236 és : . 44, 47, 49, 177, 178
Merivale and w ile» » ‘Carson (1887), 20 Q. B. D. 275 ; 36 W.

231; 58 L. T. 381; 52 J. P. 261; 3 T. L. R. 431;

TL. B.195 (C. A) : Mis Gs
Merryweather v. Nixan (1799), 8 T. R. “186 ; 2 Sm. L. C. 569

(9th ed.) sr 61
Metropolitan Ry. Co. v. Wright (1886), ll App. Cas, 152 ; 55

L. J. Q. B. 401; 84 W. R. 746; 54 L. 7.658 (EL L.) «183

Metropolitan Gallpon Omnibus Co. v. Hawkins (1859), 4 H. &

N. 87; 28 L. J. Ex. 201; 7 W. R. 265; 32 L. T. 0.8.

281 34 80
Mildmay et ux. v. Standish (1584), 1 Rep. 117 he Cro. ‘Bliz. 34 41
Milissich v. Lloyds (1877), 46 L. J. C. P. 404; 36 L. T. 423 ;

13 Cox, C. C. 575 os : .. 113,116, 117, 118
Miller »v. Davia (1874), L. R. 9 C. PS 18; 43 L. J.C. P. 84;

30 L. T.58; 22 W. BR. 332 |. 29
Millington v. Loring (1880), 6 Q. B. D. 190 ; 50 ty J. Q. 2 214;

29 W. R. 207 ; 43 L. T. 657 ; 45 J. P. 268 (C. A.) s. 216
Mills v, Oddy (1833), 6C.& 2.728. . 215, 226
Milnan v. Pratt (1824), 2B, & C. 486; 3D. & ‘R 728 .. 8
Minet v. Morgan (1878), L. R. 8 Ch. 361; 42 L. J. Ch. 627 ; 21

W. R. 467; 28 L. 1.573. -. 225

Mogul Scamp Co. v. M‘Gregor (1892), App. Cas. OB 61
L. J. Q. B. 295 ; 40 W. R. 337; 66 L. T. 1; 56 J. P. 101
(H.L) . 48
Monson v. Tussle Ltd. (1894), 1 Q. B. 671; 63 th. i Q. B.
454; 70 L. T. 335; 58 J. P. 353, 524; 10 T. L, R. 199,

07 (C. A). io oy we Sees
Moor v. Foster (1606), Cro, Tac, 65 ey ; .. 30
Moore v. Meagher (1807), 1 Taunt. 39 ; 3 Smith, 135 . an be “ZY
—- Rernell and others (1833), 4 B. & Ad. 870; 1 N. & M.

559 iy ae 8 8

Mordaunt v. Mondannt (1870), 39, ij J. P, & M. 59 38 na ae
TABLE OF CASES. XX1X

PAGE

 

Morgan v. Morgan (1865), 11 Jur. N. 8.233; 12L.T.199 .. 75
v. Lingen (1863), 8 L. T. 800 = b os aes 6

Morrison v. Belcher (1863), 3 F. & F. 614 a 7 . =©98

Morrison and another v. Harmer and another (1837), 3 Bing.

N. C. 759 ; 3 Hodges, 108; 4 Scott, 533 .. . .87, 98
Mountney v. Watton (1831), 2 B. & Ad. 673; 9 L. 7 (O. S)

K. B. 298 ee 83
Mulkern v. Ward (1872), a R. 13 Eq. 622 ; 41 G J. Ch. 464 ;

26 L. T. 831_—««. 95
Mulligan v. Cole (1875), Th R. 10 Q. B. 549 ; 4d Th J. Q. B.

153 ; 33 L. T. 12 aig 10
Minster 4, Lamb (1883), 11 Q. B. D. 588 ; 52 i J. Q. B 726 ;

49 L. T. 252; 473. P. 805 (C. A.) . eee HOS
Murdoch v, Funduklian (1885), 2 Times G R. 215, 614.. 145, 158
Murfitt v. Smith (1887), 12 P. D. 116; 56 L. J. P. 87; 35

W. R. 460 ; 57 L. T. 498; 51 J. P. 374 a 28 .. 232
Myers v. Defries, Times, July 23, 1877 .. *, ae .. 116
Nelson x. Staff (1618), Cro. Jac. 422... : : 22, 43

Nevill v. Fine Art and General Jns. Co. (1895), 2Q. B. 156 ;
(1897), App. Cas. 68; 66 L. J. Q. B. 195; 75 L. T. 606 ;

 

 

61 J. P.500 (H. L.) .. : we 10, 81, 91, 142, 156
Newman v. Zachary (1647), Aleyn, Bo ae = , .. 42
Newton v. Chaplin (1850), 10 C. B. 356 Sa a 215, 226
Nutt’s Case (1727), 1 Barnard. K, B. 306 ; Fitz. 47 .. .. 205
Oakey-Hall v. Bryce (1890), 6 Times L. R. 344 (C. A.) .. 922
O’Brien, Ex parte (1883), 12 L. R. Ir. 29; 15 Cox, C. C.

180 ee a oi oe 199, 204

». Bryant (1846), 16 L. J. Ex.77; 16 M. & W. 168; 4

D.& L. 341k. . 8&5

v, Clement (1846), 15 M. & W.435; 15 L. J. Ex. 285; 3

D& L676. 5
O’Connor ». The Star ewapapen Co. (1893), 9 Times L. R.

933: 68 L.T.146(C. 4.) .. 180
Oddy +. Lord George Paulet (1865), 4 EF. & F. 1009 oy .. 156
Odger v. Mortimer “(1873), 98 L. T. 472. ‘ iy . 96, 98
Onslow v. Horne (1771), 8 Wils. 177 ; 2 W. Bl. 750 us .80, 32
Oppenheim & Co. v. Sheffield (1893), 1 Q. B.5; 62 L. J.Q. B,

167; 41 W. RB. 65; 67 L. T. 606(C. A.) . . 227
O’Shea v. Wood (1891), L. R. P. D. 286; 60 Tis J. P. 41; 64

L. T. 233; 7T. L. R. 329... 225

Oxley v. Wilkes (1898), 2 iS B. 56 ; 67 L. 5. Q. B. 678 ; : 78
L. T. 728 a 88 5 . 220
XXX TABLE OF CASES,

 

PAGE
Padmore v. Lawrence (1840), 11 A. & E. 380; 9 L. J. Q. B.

187; 3P.&D.209 .. als .. 135
“Palmer v. Hummerston (1883), 1 Cab. & E. 36. ss .. 137
Pankhurst v. Hamilton (1886), 2 Times L. R. 682 ; (1887), 3

Times L. R. 500 ee : .. 97, 126, 170, 229

v. Sowler (1887), 3 Times th, R. 193 tes ‘i .. 126
Paris v. Levy (1860-1) ; 30 L. J.C. P. 11; 9C. B. N.S. 342;

3 L. T. 324; 9 W. R. 71 34 ec 98, 107
Parkes v. Prescott and another (1869), 1, R. A Ex. 169; 38

L. J. Ex. 105; 17 W. R. 773; 20 L. T. 537 ae 65
Parkins and wife v. Scott a wile (1862), 1 H. & C. 153; 31

L. J. Ex. 331; 6 L. T. 394; 10 W. R. 562; 8 Jur. N.S.

593 sa si 24, 167
Parmiter v. Coupland and ‘another (1840), 9 L. J. Ex. 202 ; 6

M.& W.105; 4Jur. 701 |. 9, 95
Parnell v. Walter (1890), 24 Q. B. D. 441 ; 5 T. i R. 577; 59

L. J. Q. B. 125 i ‘ ste 224, 228, 229
‘Parsons v. Surgey (1864), 4 F. & F. 247° ; 5 .. 141
Pater v. Baker (1847), 3 C. B. 831; 16 L. J.C. P. 124, ..89, 46
Pattison v. Jones (1828), 8B. & C. 586 ; 330. &P. 387; 3 M. &R.

101 of Bs a3 sis ne .. 145
Payne v. Beauwmorris (1669), 1 Lev. 248 i an -. 21
‘Peacock v. Reynal (1612), 2 B. & G. 151; 16 M.& W. 825, n. 155
Peard v. Jones (1635), Cro. Car. 382 bs bis _ 85
Pearson v. Lemaitre (1843),5 M. & Gr. 700 ; 12 a Je Q. B. 253 ;

7 Jur. 748; 6 Scott, N. R. 607; 7 J. P. 336 .. 157, 166, 171
Pedley v. May (1892), 8 Times L. R. 2; 65 L. T. 526; 40

W. R. 42 ae be ec a ws as ex 105
Pemberton v. Colls (1847), 10 Q. B. 461; 16 L. J. Q. B. 403 ;

ll Jur. 1011... 33
Penny v. Stubbs, unreported, tried i in the Q. B. D. , February 19,

1892 ee 170

Pennyman v. Rabanks (1595), Cro. Eliz. 497 : 1 Vin. Abr. 551 41
Penrhyn v. The Licensed Victuallers’ Mirror ve 7 Times

LR1.. 3 : i .. 244
Penruddock 7. Hammond (1847), 1 Beav. 61 .. ot 225
Peters and another v. Edwards and another (1887), 3 Times

L. R. 423 24 159
Pfeiffer v. Midland Railwe a Co. (ase6), ‘18 Q. B D. 243 3 35

W. BR. 335 8 ‘ = ea .. 231
Phillips v. Jansen (1798), 2 Esp. 624 Pie it . 20, 34

v. L. & 8. W. Railway Co. (1879), 5 Q. = D. 78; 49
L. J. Q. B. 883; 28 W.R.10; 41L.T.121(C. A.) 181, 188
Pinero v, Goodlake (1866), 15 L. T. 676.. a3 es «« 118

 
TABLE OF CASES. XXXL

PAGE
Pink v. Federation of Trades and Labour Unions (1892), 67

 

Ty 288° 8T,GR216 WT 64 ek vw A
Pinnock v. Chapman and Hall, Ltd., Times newspaper,

December 9 and 10,1891 : ws 12
Pisani v. Lawson (1839), 6 Bing. N. C. 90 ; 5 Seott, 418 wae
Pitt v. Donovan (1813), 1M. & 8. 639... ; a 40, 41
Pittard v. Oliver (1891), 1 Q. B. 474; 60 L. J. Q B. 219; 64

L. T. 758; 55 J. P. 100 (C. A.) Ly ae 151, 152
Ponsford v, Financial Times, Ltd., and Hart (1900), 16 T. L. R.

248 : 3H 126, 127, 128
Popham »v. Pickburn (1862), 31 i. J. Ex, 133; 5 L. T. 846;

10 W. R. 324; 26 J. P. 646; 7H. & N. 891 ee .. 133
Poplett v. Stockdale (1825), Ry. & M. 337 = .. 61
Postlethwaite v. Rickman (1887), 35 Ch. D. 725; 56 i J. Ch.

1077; 56 L. T. 733; 35 W. R. 563 . ly 226
Praed v. Graham (1889), 24 Q. B. D. 53 ; 59 L. J. Q. B. 230 ;

38 W. R. 103 (C. A) . x .. 166, 183
Proctor v. Smiles (1886), 2 Times L. R. 474; 55 L. J. Q. B.

467 re : 225, 226, 229

v. Webster (1885), 16 Q 2». B. D. 112 ; 55 i J. Q. B. 150;

538 L. T. 765... a 134
Pulbrook, Ez parte (1892), 1 Q. B. 86 ; 61 L. 7 M. C. ‘Ol;

W.R.175; 66 L. T. 159 ; 56 J. P. 293 a ; 201
Pullman v. Hill & Co, (1891), 1 Q. B. 524; 60 L. J. Q. B 299 ;

64 L. T. 691; 7 T. L. R. 173 (C. A.) .. 1,13, 14, 101, 143
Purcell v. Sowler (1877), 2 C. P. D. 218; 46 L. J.C. P. 308 ;

25 W.R. 363; 36 L. T. 416; 41 J. P. 789 (C. A.) .. 97

Quartz Hill Gold Mining Co. v. Beall (1882), 20 Ch. D. 501 ;
51 L, J. Ch. 874; 46 L. T. 746; 30 W. R.583(C. A) .. 140,
176, 178

Rapkins v. Hall and others (1894), 10 Times L. R. 466 (C. A.) 64
Rassam v. Budge (1893), 9 Times L. R. 247; W. N. 52;
1 Q. B. 571; 68 L. T. 717; 62 L. J. Q. B. 312; 57 J.P.

361 ne 222
Ratcliffe v. Evans (1892), 2 Q B. 524; 61 L. i Q B. 535 ; 66

L. T. 794; 40 W. R. 578 ; 56 J. P. 837 (C. AGS se we 195

23, 25, 41, 42, 44, 47, 50

Ravenhill v. Upcott (1869), 33 J. P. 299 Pv st 43, 159

Redford v. Birley and others (1822), 3 Stark. 103 “id a» L127

Reg. v. Adams (1842), Trial of Holyoake, London, 1842 sx 197

v. Allison and others (1888), 59 L. T. 933; 53 J. P. 215 ;
37 W. R. 143; 16 Cox, C.C. 559... 2 oF .. 206

 
XXX TABLE OF CASES.

 

 

 

 

PAGE

Reg. v, Bradlaugh and others (1883), 15 Cox, C. C. 217 206
v. Brooke (1856), 7 Cox, C. C. 251. 199
—— v. Carden (1879), 5 Q. B. D. 1; 49 L. 4, M. C. 1; 41
_ iL. T. 504 ; 28 W. R. 133 ; da J.B, 119; 14 Cox, C. C.
359 .. ia ws a 189, 191
— v. Carlile (1845), 1 Cox, C. a 229 Bb 196
— v. Coghlan (1865), 4 F. & F. 316 ; 7
—— ». Duffy (1870), 9 Ir. L. R. 329; 2 Cox, C. C. 45, 199
—— v. Ensor (1887), 3 Times L. R. 366. 84 183
—— v. Gray (Andrew) (1861), 26 J. P. 663 i 118
», Hicklin (1868), L. R. 3 Q. B. 360; 37 L. J. M.C. 89;
18 L. T. 398 ; 16 W. R. 801; 11 Cox, 19 oe 196, 198
—— v. Holbrook and others (1877), 3 Q. B.D. 60; 37 L. T.
530 ; (1878), 4 Q. B. D. 42; 48 L. J. Q. B. 113; 39
L. T. 536; 41 J. P. 772; 42 J.P. 53; 43 J. P. 38; 13
Cox, C. C. 650 bes es 205, 206
—— v. Labouchere (Lambri’s ease) (1880), 14 Cox, C.C.419.. 86
—— v. Labouchere (Vallombrosa’s case) (1884), 12 Q. B. D. 320 ;
53 L. J. Q. B. 362; 32 W. R. 861; 50 L.T.177; 48
J.P. 165; 15 Cox,C.C. 415... i 185, 194
—— v. Munslow (1895), 1 Q. B. 758; 64 L. i M. C. 138 ; 43
W. R. 495 ; 72 L. T. 301 ; TLR. 213 na 214
—— v. Payne (1896), 1 Q. B. 577 ; 65 L. J. Q. B. 426 ; 74 L. T.
351; 44 W. R. 605 ; 12T.L. R321 or .. 88, 89, 179
—v. ieanee and Foote (1883), 48 L. T. 733; 1C.& E. 146 ;
15 Cox, C. C. 231 .. ; sie 4 197, 206
—— v. Sullivan (1868), 11 Cox, C. C. 52 207
—— v. Veley (1867), 4 F.& F. 1117 134
—— v. Vincent (1838), 9 C. & P. 91, 109 a 127
», Yates (1883), 11 Q. B. D. 750; 59 L. J. Q. B. 778 199
Reginald’s case (1640), Cro. Car. 563... .. 86
Besa Perry (1895), 11 Times L. R. 373; 64 i J. Q. B. 566 ;
43 W. R. 648; 59 J. P. 308; 15 R. 427... 121
Republic of Costa Rica v. Erlanger (1876), 3 Ch. D. 62; 45
L. J. Ch. 743; 35 L. T. 19; 24 W. R. 955 58
Rex v. Abingdon (1794), 1 Esp. 226 be 103
v. Almon (1770), 20 How. St. Tr. 851 5 a 200
—— v. Amphlit (1825),4 B.& C.35; 6D. & R. 125 .. 16
—— v. Birt and others (1834), 5 C. & P. 154 g ge AT
—— v. Burdett (1820), 4 B. & Ald. 126; Oe 4 B. & Ald.
314 .. a , . 15, 197, 200
—— v. Carlile (Mary) (1819), 3 B. & Ald. “167 fe “110, 196, 200
—— v. Clement (1821), 4 B. & Ald. 218 ; 11 Price, 69 110
—— v. Clerk (1728), 1 Barn. 204.. ae . 5, 66
TABLE OF CASES. XXX1ll

 

 

 

 

 

 

 

 

 

PAGE
Rex v. Creevey (1813), 1 M. & 8.273 .. 53 ae .. 108
v. Cuthell (1799), 27 How. St. Tr. 642... sd .. 205
—— ce. Darby (1687), 3 Mod. 139 ; i oy . 185
v, Dodd (1736), 2 Sess. Cas. 33 sg <4 vs 205
—— vt. Fursey (1835), 6 C. & P. 81 u 127
v. Garrett (1618), Hob. 215; Poph. 139 ; cited 6 East, 476 199
cv. Gathercole (1838), 2 Lewin, C. C. 237. ia .. 186
—— vr. Gutch and others (1829), Moo. & Mal. 483... .. 205
-—- v. Hievins (1801), 2 East, 5 .. ‘ iv ‘ 2, 187
—— v. Holt (1792),5 T. R. 444 .. by ae 17, 67
——— v. Hunt and others (1819), 3 B. & Ald. 566 st 127
——~ ve. Knell (1728), 1 Barn. 305 aa .. 68
—— tr. Osborne (1732), W. Kelynge, 230; 2 Barnard, 138, 166.. 186
-—— v. Peltier (1803). 28 Howell’s State Trials, G17. 72
v. Pocock (1741), 2 Strange, 1157. . 2, 187
—— v. Shipley (Dean of St. Asaph) (1784), 4 Dougl. 73; 21
St. Tr. 1043 ; 3 T. R. 428, n. ; .. 207
—— v. Skinner (72h, Lofft, 55... ne 106
v. Topham (1791), 4 T. R. 126 : : is .. 185
v. Walter (1799), 3 Esp, 21 .. m0 205
-—— v. Wegener (1817), 2 Stark, 245 we 2 » 189
--— v. Wilkes (1770), 4 Burr, 2527 ; 2 Wils. 151 eh .. 196
——- 2. Williams (1797), 26 How. St. Tr. 656 ; (1822), 2 B.&
Ald. 595 186, 196
v. Wright (1799), aT. R. 293 ; LR. R. 693 .. 131
Ridgway v. Smith & Son (1890), 6 Times L. R. 275... .. 230
Riding v. Smith (1876), 1 Ex. D. 91; 45 L. J. Ex, 281; 34

L. T. 500; 24 W. R, 487 wi ie dee 2 SUE
Risk Allah Bey +. Whitehurst and others (1868), 18 L.T.N.S

615 ay id .. 165
Ritchie v. Sexton (1891), 64 L. T. 210 ; 5B J. P, 389 .. 10
Roach v. Garvan (1742), 2 Atk. 469; 2 Dick. 794 ba ee 5
Roberts v7. Brown (1834), 10 Bing. 519 ; 6 C. & P. 757 95, 118
—— v. Camden (1807), 9 East, 93 ; 9 R. Abe 513 5 26

and wife +. Roberts (1864), 5 5B. & 8. 384; 33 L. J. Q. B.

249; 10 L. T, 602; 12 W. R. 562 .. Ee 22
Robertson +. M‘Dougall (1828), 4 Binz. 670; 3 C& P, 259 . | 138
Robinson ¢. Jones (1879), 4 L. R. Ir. 391 i4 se al
—- v. Marchant (1845), 7 Q. B. 918; 15 L. J. Q. B. 135 ; 10

Jur. 156. a cy kg . 36, 58
Robinson v. Robinson (1897), 13 T. L. R. ‘064 we fe we LG
Robinson v. Turnbull, per Ridley, J.,in Judge’s Chambers,

February 11,1899... a i fe i .. 216
Robshaw v. Smith (1878), 38 L. T. 423 .. ct ss .. 1d

L.8. C
XXX1V TABLE OF CASES.

 

PAGE

Rogers v. Clifton (1803), 3 B. & P. 587 .. 8 145, 155
Hoselie v. Buchanan (1886), 16 Q. B. D. 656 ; ‘5S L. J. Q. B.

376 ; 34 W. R. 488; 2 T. L. R. 367 ; 217
Royal Aquarium, etc., Society ». Parkinson (1892), 1 Q. B. 431 ;

61 L. J. Q. B. 409; 66 L. T. 513; 56 J. P. 404; 40 W. R.

450(. A.) .. «2... ~—-104, 108, 152, 153, 154
Rumney v. Walter (1891), 65 L. T. 757; 61 L. J. Q. B. 149 ;

(1892), 8 Times L. R. 236; 40W. R174. iw.
Rumsey v. Webb ef wr. (1842), Car. & M. 104; 11 L. J.C. P

129 7 ats : ss 21, 36, 130, 145
Russell v. Jackson (1851), 9 Hare, 392 ; 21 L. J. Ch. 146 ;

Jur.117.. ie . 226

v. Noteutt (1896), 12 Times L. R. 195 (C. A) i 9, 11
-—— and another v. Webster (1874), 23 W. R. 59 ‘ 13
Ryalls v. Leader and others (1865), L. R. 1 Ex. 296; 4H.&C.

555; 14 W. R. 838; 30 J. P. 520; 35 L. J. Ex. 185; 14

L. T. 563 ‘ era ae a e sed 116

Sadgrove ¢. Hole (1901), 2K B.1; 17 T. L. R. 333 (C. A.) 14
Sadler v. G. W. Ry. Co. (1595), 2 Q. B. 693 ; (1896), App. Cas.

450; 44 W. R.50; 73 L. T. 385; 12 T.L. R. 442 (H. L.). .55, 56
Salmon v. Isaac (1869), 20 1. T. 885... . 112
Salomons +, Knight (1891), 2 Ch. 294; 60 L. ‘J. Ch. 743: 39

W. R. 506; 64 L. T. 589(C. A.) .. oy .. .. 176
Sammons +. Bailey (1890), 24 Q. B. D. 727; 59 L. J. Q. B. 342;

38 W. R. 605; 6 T. L. R. 326 4 en 2
Sandes and ie v. Wildsmith and noth (1893), 1 Q. B.

771; 62L. J. 0. B. 404; 69L.T.387 ..  .. — ..58,58
Sands v. Child and others (1693), 3 Lev. 352... . .. 66
Saunders rv. Mills (1829), 6 Bing. 213; 3 M. & P. 520 : 66, 171
Savile v. Jardine (1795), 2 H. BI. 531; 3 R.R.502 .. ig “Dd

Saxby v. Easterbrook (1878), 3 C. P. D. 339; 27 W. R.188 .. 176
Saye & Sele +. Stephens (1628), cited Cro. Car. 535; Litt. 342 162
Scaife + Kemp (1892), 2 Q. B. 319; 61 L. J. Q. B. 515 ; 60

 

L. T. 589 is : 3 fe .. 229
Scarll v. Dixon (1864), 4 F. & Kr. 250 se ao 147, 157
Scott v. Sampson (1882), 8 Q. B. D. 491; 51 i J. Q. B. 380 ;

46 L. T. 412; 30 W. R. 541; 46 J. P. 408 ea 68, 172
Seaman v. Bigg (1638), Cro. Car. 480 sr .. 86
«, Netherclift (1876), 1 C. P. D. 540; 45 LiIGE 798 ;

35 L. T. 784; 25 W. R. 159. 5 .. 106

Searles +. Scarlett (1892), 2 Q. B. 60 ; 61 EL J. ©, B. B73 ; 40
W. R. 696; 66 L. T. 837; 56 i P. 789; 8T. L. R. 562
(CLAS). as S ie x igh ie «. 120
TABLE OF CASES. XXXV

 

 

PAGE
Seroka v, Kattenburg and wife (1886), 17 Q. B. D. 177; 55

L. J. Q. B. 375 ; 34 W. R. 542; 54 L. T. 649 i pat 71
Seymour v, Butterworth (1862), 3 F. & F. 372... a 95, 96
Shackell v. Rosier (1836), 2 Bing. N. C. 684; 3 Scott,59  .. 61
Shepheard v, Whitaker (1875), L. R. 10 C. P. 502; 32 L. T.

402, anid .. 9, 38, G4
Shipley ce. Todhunter (1836), TC& PP. 680, at . 1
Sibthorpe’s ease (1628), W. Totes 366; 1 Roll. Abr. 76 . 33
Simmons vr, Mitchell (1880), L. R. 6 App. Cas. 156; 50

L. J. P.C.11; 43 LT. 710; 29 W. R. 401; 45 J. P.

237 5 eae
Simpson ¢. Robingon (1848), 1 BS 18 L. i Q. B. 73, 165, 221
Sley rv. Tillotson (1898), 14 ce L. R. ; 625. P. 505 a» 220
Smith rv. Harrison (1856), 1 F, & F. iy f a5 : ee LOH

v. Hodgeskins (1633), Cro. Car. 276 : : 135, 155
—— ', Jetfrevs (1846), 15 M. & W. 561; 15 L. i Rep. Ex. 325. 11
—— vr. Mathews (1831). 1 Moo. & Rob, 151 z ‘ fae. BYE
—— ¢. Parker (1844), 14 L. J. Ex. 52; 13 M. & W. ‘459 ;

b. & L. 394 3 ‘ ‘ &5

v. Richardson (1737), Willes, 20 ; Bonk 195 ; Comb, 552 170
—— v. Scott (1847), 2 C. & K. 580 28 ‘ v6 116, 17]
—— r. Spooner (1810), 3 Taunt, 246... i a .. 40

v. Wood (1813), 3 Camp. 323 - ws LBG

 

Smurthwaite and others v. Hannay and others (1893), 2 Q. B.
+12 ; (1894), App. Cas. 494(H. L.); 63 L. J. Q. B. 737;
43 W.R.113 ; 71 L. T. 157; 10 T. L, R. 649. .52, 54, 55, 56,57

Snag v. Gray (1571), 1 Roll. Abr.57 a a .. 35
Soane v. Knight (1827), Moo. & Mal. 74; 31 R. R. 714 .. 98
Société Générale de Paris v. Dreyfus Brothers (1887), 37 Ch. D.

215 ; 57 L. J. Ch. 276; 58 L. T.573; 36 W.R. 609... 75
Solicitor, In re a (1899), 80 L. T. 720 ; 47 W. R. 575 515 T. L.

R314... sid ie a8 34
Solomons and others v. Medex (1816), 1 Stark. 191 te .. 58
Somers rv. House (1694), Holt, 39 ; Skin. 364 .. ae .. 26
Somerville v. Hawkins (1851), 10 C. B. 583; 20 L. J. C. P.

131; 16 L. T. 0.8. 283; 15 Jur.450 =... 135, 136, 146

South Hetton Coal Co., Ltd. v. Proprietors of North Eastern
News Association (1894), 1 Q. B. 133; 63 L. J. Q. B. 293 ;
9 R. 240; 69 L. T. 844; 58 J. P. 190 (C. A) .. 19, 79, 80,

89-92, 98

Southee v. Denny (1848), 1 Ex. 196; 17 L. J. Ex. 151 a 88
Speck v. Phillips (1839), 5 M. & W. 279; 8 L. J. Ex. 277; 7

Dowl. 470 as 8 ie i ie ah .. 170

Speight v. Gosnay (1891), 60 L. J. Q. B. 231 ; 55 J. P. 501. .24, 167
c 2
XXXV1 TABLE OF CASES.

PAGE
Spencer v. Amerton (1835), 1 Moo. & Rob. 470 5 .. 139
Spill v. Maule (1869), L. R. 4 Ex. 232 ; 38 L. J. Ex. 138 ; 17

W.R. 805; 20L.T. 675 .. a 140, 156
Spokes v. Crosveniol & West End Ry. Terminus Hotel Co.

(1897), 2 Q. B. 124; 66 L. J. Q. B.572; 76 L. T. 679;

45 W. R. 546; 13 qT. L. R. 426 ae W's a .. 226
Stace v. Griffith (1869), L. R. 2 P. C. 420; 6 Moore, P. C. C.

N.S.18; 20 L. T. 197 aye aah ane a 147, 215
Stanhope v. Blith (1585), 4 Rep. 15 bes 2s a 20, 21
Stanley v. Boswell (1598), 1 Roll. Abr. 55 a 30
Steele v. Brannan (1872), L. R. 7 C. P. 261; 41 L. J. M. C. 85 ;

26 L. T. 509 ; 20 W. R. 607 . 5 ae his 111, 128
Sterry v. Foreman (1827),2C.& P. 592. sh aay) aE
Stevens v. Sampson (1879), 5. Ex. D. 53 ; “49 L. J. Ex. 120 ; 28

W. R. 87; 41 L. T. 782; 44.J. P. 217 (C. PS are 112
Steward v. Moun (1870), L. R. 5 C. P. 122 ; 39 L. J. C. P. 85 ; ;

18 W. R. 492; 22 L. T. 168.. ee se as 40, 138
Stiles 7. Nokes (1806), 7 East, 493 ae ae 2 LEO
Stockdale v. Hansard (1839), 9 A. & E. 1, 243 ; 7 C} & P. 731;

8 L. J. Q. B. 294 a ee 109, 165
Stone v. Press Association (1897), 66 L. a Q. B. 662 ; (1897), 2

Q. B. 159; 77 L. T. 41; 45 W. R. 641 33 2 .. 74
Storey v. Challands (1837), 8 C. & P. 234 2 2 21, 146
Strauss v. Francis (1886), 15 L. T. 674; 4 F. & F. 939, 1107... = 98
Strode v. Holmes (1651), Styles, 338 ; 1 Roll. Abr. 58 .. 80
Stroud v. Lawson (1898), 2 Q. B. 44; 67 L. J. Q. B. 718; 78

L. T. 729; 46 W. R. 626; 14 T. L. R. 421 (C. A) 52

Stuart v. Bell (1891), 2 Q. B. 341; 60 L. J. Q. B. 577; 39
W.R. 612; 64 L. T. 633; 7'T. L. R. 502 (C. A.) 46, 102, 143,
149, 152, 153

 

 

v. Lovell (1817), 2 Stark. 93; 19 R. BR. 688 = 98, 157
Stubbs v. Marsh (1866), 15 L.T. 312... 9 re 9, 164
Sutton v. Plumridge (1867), 16 L. T. 741 45 me ee
Tabart v. Tipper (1808), 1 Cainp. 350; 10 R. R. 698 .. er 4
Talbutt v. Clark and another (1840), 2 M. & Rob. 312 66, 171
Tangyes v. Inman & Co. (1889), 88 L. T. Jo. 32 as .. 228
Tarpley v. Blabey (1836), 9 Bing. N. C. 437; 7C.& P. 395 3, 18,

65, 172

Tasburgh v. Day (1618), Cro. Jac. 484 a we we. EB,
Taylor v. Hall (1742), 2 Str. 1189 a ih A . 28
Taylor v. How (1601), Cro. Eliz. 861. sss i va 80
- v. Perkins (1607), Cro. Jac. 144; 1 Rolle’s Abr, 44 .. 28

Tempest v. Chambers (1815), 1 Stark. 67 as - oy MOG
TABLE OF CASES. XXXVI

 

 

PAG
Thomas e. Jackson (1825), 3 Bing. 104 ; 10 Moore, 485 ; 3 L. J.

(O. 8.) GC. P. 182; 28R. R605. 35
—— v. Williams (1880), 14 Ch. D. 864 ; 49 L. as Ch. 605 ; 43

L. T. 91; 28 W. R. 988 isd a .. 175
Thompson v. Bernard (1807), 1 Camp. at p- 48. ih ee: | 2h

v. London County Council (1899), 1 Q. B. 840; 68 L. J.

Q. B. 625 ; 47 W. R. 433; 80 L. T. 512 .. ee pe 55

v. Shackell (1828), 1 Moo, & Mal. 187; 31 R.R. 728 .. 98
Thorley v. Lord Kerry pre + Taunt. 355 ; 3 Camp. 214,n.;

13 R. R. 626... 6
Thorley’s Cattle Food Co. v. Blassan (1880), 4 Ch. ‘D. 781 ;

28 W. R. 966; 42 L. 'T. 851 (C. A.) a ea IG
Thurman v. Wild anil another (1840), 11 A. & E. 453. .. 160
Todd v. Hawkins (1837), 8 C. & P. 88; 2 M. & Rob. 20 .. 141
Tomlinson v. Brittlebank (1833), 4 B. & Ad. 630; 1 N. & M.

455; 2 L. J. K. B. 105 s 26
Tompson v. Dashwood (1883), 11 Q. B. D. 43 ; 52 L. ci Q. B.

425; 48 L.T. 943. : ah 18, 157
Toogood v. Spyring (1834), 1 C. M. & R. ‘181 ; 4 Tyr. 582... 141,

151, 152
Tozier v. Hawkins (1885), 15 Q. B. D. 680 ; 55 L. J. Q. B. 152;

BEW.R.223(.A).. 0. 0. kee TD
Trollope v. London Building Trades Federation (1895), 11

Times L. R. 228 ; 72 L. T. 342 og fe ot das NG
Trotman v. Dunn (1815), 4 Camp. 211 .. Pe 35 .. 106
Tucker v. Lawson (1886), 2 Times L. R. 593... .. 60, 171, 174
Turnbull ». Bird (1861),2 F. & F. 508 .. nt 4 are 5
Tuson v. Evans (1840), 12 A. & E. 733; 5J.P.209 .. .. 138
Tutty +. Alewin (1770), 11 Mod, 221... au .. 33
Twycross v. Grant and others (1878), 4C. P. D. 40; 47 L. J.

Q. B. 676; 27 W. R.87; 39 L. 1.618. : .. 164
Underwood v, Parkes (1744), 2 Strange, 1200 .. a 170, 222
Universities of Oxford and Cambridge v. George Gill & Sons

(1899), 1 Ch. 60; 68 L. J. Ch. 34; 79 L. T. 338 ; 47 W. R.

248; 15 T. L. R. 28 .. : aa . 63
Usill v. Hales (1878), 3 C. P. D. 319 ; a L. 2 C. P. 323 ; 38

L. T. 63 ; 41 J. P. 743; 26 W. R. 371 “rie 116, 117
Vaughan v. Ellis (1669), Cro. Jac. 213... es e 42, 43
Villers 7, Monsley (1769), 2 Wils. 403... ; i 6, 20, 28
Vine, Ex parte, In re Wilson (1878), 8 Ch. b, 364; 47 L. J.

Bank. 116 ; 26 W. R. 582; 38 L. T. 327,730 .. 72, 77, 78

Vines v. Serell (1835), 7C.& P. 163 Be a3 a .. 165
XXXVI TABLE OF CASES.
PAGE
Vizetelly v. Mudie’s Select Library, Ltd. (1900), 2 Q. B. 170;
69 L. J. Q. B. 654; 16 T. L. R. 352 (C. A.) ..16, 17, 18, 38, 66

Wakley v. Cooke and Healey (1849), 19 L. J. Ex.91;4Ex.511 84

 

 

- v. Healey (1848-9), 7 C. B. 591; 18 L. J. C. P. 241 8

v. Johnson (1826), Ry. & MI. 422... be ia .. 172
Walker v. Brogden (1865), 19 C. B. N. 8. 65; 13 W. BR. 809;

12 L. T. 495; 11 Jur. N.S. 671... sg vi Me 8

Waller v. Loch (1881), 7 Q. B. D. 621 ; 51 L. J. Q. B. 274; 30
W.R.18; 45 L. T. 242; 46J. P. 484 (C. A.) . 144, 145, 148
Walters v. Green (1899), 68 L. J. Ch. 730 ; (1899), 2 Ch. 696 ;

 

 

86 L. T. 151; 48 W. R. 23; 63 J. P. 742 .. ig a 53
Ward v. Marshall (1887), 3. Dimes L.R. 578. bs 225
v. Smith (1830), + C; . P. 302 ; 6 Biny. 749; 4M. & P. 595 15
v. Weeks (1830), 7 Bing. 211; 4M. & P. 796 .. 21, 24, 25
Warman v. Hine (1837), 1 Jur. 820 ; lJ. P. 346 i .. 8,87

Warren v. Warren (1834), 1 C. M. & R. 250; 4 Tyr.850 .. 15, 143, 151
Wason v. Walter (1868), L. R. 4 Q. B. 73; 38 L. J. Q. B. 34;
8B. &58. 671; 19 L. T. 409; 17 W. R. 169 .. 95, 96, 97,
104, 120, 122
Watkin +. Hall (1868), L. R. 3 Q. B. 396; 37 L. J. Q. B. 125;

9B. & 8. 279; 18 L. T. 561; 16 W. R. 857 . .26, 67 68, 85
Watson v. Reynolds (1826), Meo. & Mal. 1 s3 . 138
Watts v. Fraser and another (1835), 6 L. J. K. B. 226 ; 7

Ad. & E. 223; 7 C.& P. 369; 1 Jur. 671. oe 16, 64, 172
Weatherston v. Pingelelns (1786),1 T. R.110 .. oe ua ABT
Weaver v. Lloyd (1824), 2 B. & C. 678; 1C.& P.295; 4D. &

R. 230... 87
Webb v. Beavan (1883), if Q. B. D. 609 ; ; 52 i J. Q. B. bad 3

49 L. T. 201; 47 J. P. 488 |. if 20, 26, 23, 216
—— v. East (1880), 5 Ex. D. 108 ; 49 L. £ Ex. 250; 41 L. "T.

715; 28 W. R. 336; 44 J. P. 200 |. ‘ 226

Weldon v. De Bathe (1884), 14 Q. B. D. 339 ; 33 W. R. 328 ;

54 L. J. Q. B. 113; 53 L. T. 520 we or ce 22;
Wells v. Webber (1862),2 F.& F.715 |. ae 8
Wenman v. Ash (1853),13 C. B. 836; 22 L. J.C. P. 190; 7

Jur. 579; 1C.L. R. 592, .15, 16
Wennhak v. Maan (1888), L. R. 20 Q. B. rr 635 ; 57 i J. Q. B

241 ; 36 W. R. 697 ; 79 L. T. 28; 52 J. P. 470 aa ik 15

Western Counties Manure Co. ¢. Th ies Chemical Manure
Co. (1874), L. R. 9 Ex. 218, 222; 43 L. J. Ex. 171; 23
W.R. 5. fig 2% 44, 45, 46
White and others o Batey ‘& Co., Ltd. ‘and another (1892), 8
Times L. R. 698 i Se a a ah 140, 148
TABLE OF CASES. NNX1X

PAGE

White v. Mellin (1895), App. Cas. 154; 64 L. J. Ch. 308 ; 43
W. R. 353 ; 72 L. T. 334; 59 J, P. 698 11 T. L. R. 236
a: es re -» ged 2Y, 49, 179, 178
Sa v, Adams (1863), “15 UG B N.S. 392; 33 L. J.C. P.
; 9 LT. 483; 12 W.R. 153 ; .. 102, 137, 140, 147
Whitfield and others v. 8. E. Railway Co. (1858), E. B. & E.
115; 27 L. J.Q. B. 229; 4 Jur. N.S. 688 .. 41,14, 79
Whitney and others v. Moignard (1890), 24 ” bB. D. 630; 59
L.J.Q. B. 324; 6T.L. R274. 166
Whittaker rv. Seichownch Post Newspaper Co. (1896), 2Q. B.
148 ; 65 L. J. Q. B. 364: 74 OL. T. 753; Lt W. R. 657
(C. AD i 5 229
Whittington v. Minds (1825), 5 B, & C 180 ; 3 G: & B 146 36
Wilby v. Elston (1849), 18 L. J. C. P. 320; 1 Str. 471; 1 Vin.

 

 

 

Abr. 396; 8 C. B. 142 3 a sf ca: | Oe
Wild v. Tomielnsen (1826), 5 L. J. K. B. 265 as 4 72
Williams v. Cartwright (1895), 1 Q. B. 142; 64 L. J. Q, B. 92;

43 W. R. 1438 ; 71 LT. 834 (C. A) sos kes gate LD

v. Morris (1894), 10 Times L. R. 603 i 213

v. Quebrada Railway, &e. Co. (1895), 2 Ch. 751; 4 W. R.

76; 73 J. T. 397 ale be : .. 226

rv. Ramsdale (1888), 36 W. R. 195 2g : 218

ee Smith (1888), L. R. 22Q. B. D. 134; 58 L. i Q. B.
37 W. R. oe T. 757; 52J.P.823; 4T. LR.

 

ie 5 T. L. R. 2 2 120
Willamsaa v. Freer eee L. ie: 9C. P. 393 ; iet, if Cc. P.

161; 30 L. T. 332... ; a 14
Willmett v. Harmer and another (1839), ‘8 C. & P. 695. 85, 86
Wilson v. Reed and others (1860), 2 F. & F. 149 = .. 95

v. Rastall (1792), + T. R. 753; 2 R. R. 515 23 .. 225
— v. Thornbury (1874), 17 oe 517; 43 L. J. Ch. 356; 22

W. R. 509 is ue a Pe ay 228
Wilton v. Brignall (1875), W.N 239 ; 1 Charley, 105 ; Bitt.

56; 20 Sol. J. 121; 60 L. T. Notas, 104... ; 228
Wood v. Cox (1888-9), 4 Times L. R. 550; 5 Times L. R. 272

(AJ cc cc ue ses, 8B, 17D 180
—— v. Durham (1888), 21 Q. B. D. 501 ; 57 L. J. Q. B. 547;

57 L. T. 770; 4 Times L. R. 556; 37 W. R. 222... 68, 172, 222
Woodard v. Dowsing (1828),2 M.& Ry. 74... 2s a 8
Woodgate v. Ridout (1865), 4 F. & F. 202 es .. 8, 95,118
Woodward v. Lander (1834), 6 C. & P. 548 a .. 134
Worcester, &c. Banking Co. v. Firbanis, Pauling & Co. (1894),

1Q. B. 784; 63 L. J. Q. B. 642 ; 70 L. T. 102 (C. Aji. 73

Wright v. Moorhouse (1694), Cro. Eliz, B58, és .. 30
xl TABLE OF CASES.

PAGE

Wright v. Woodgate ee 2C.M. & R.573; 1 Tyr. & G. 12;
1 Gale, 329... ‘ rr _ 148, 155
Yarborough vy. Bank of England (1812), 16 East,6 78

Yates v. The Queen (1885), 14 Q. B. D. 648; 54
958+ 52 L. T. 305; 33 W. RB. 452 ; 49 J. 3
Cox, C. C. 686 ; 1T.L. RB. 193 (C. A)... 200
Yorkshire Powient Life Insurance Co. v. Gilbert and Rivtieton
(1895), 2 Q. B. 148; 64 L. J. Q.B.575; 72 L. T. 445

4 Gs JQ,
P.4

H >
ae

(Cay : els .. 224
Young v. Nueree (1862), 3 B& S. 264 ; 32 L J.Q. B. 6; 11

W.R. 63; 9 Jur. N. 8. 539; 7 L. T: + 27.3. P1382... 49
Zierenberg +, Labouchere (1893), 2 Q. B. 183; 63 L. J. Q. B.

89; 41 W. R. 675; 69 L. 7.172; 47 J.P. 711: 4 R.

464; 9T.L. R. 457 .. ee ‘ id 222, 223, 224
INDEX TO STATUTES CITED.

PAGE

1 Elw. 6,¢. 1,8. 1. 196
2 & 3 Edw. 6,¢. 1,93.2,3.. 196
1 Eliz. ¢. 2, ss. 2, 3. 196
13 Eliz, c. 12, s. 2 196
21 Jac. 1,¢. 19,8.7.. 162
13 Car. 2, ¢. 5 128
14 Car. 2,c4,s.1 .. i 196
1 Will. & ML, sess. 2,¢.2 .. 128
4 Will. & Mary, c. 18,5. 1.. 194
9 Will. 3, ¢. 35 ’ 196
4&5 Anne, ce. 3 [al. c. 16}, | s. 19. a 162
32 Geo. 3, c. 60 (Fox’s Act) ws ee a "206, 250, 251
39 Geo. 3, c. 79, s. 28 aes 43 : 251
s. 29 210, 251

53 Geo. 3, c. 160 3 196
57 Geo. 3, c. 19, s. 23 sc a2 re he ‘ 128
60 Geo. 3&1Geo.4,c8.. ..  ..  .. 196, 197, 253, 254
3&4 Will. 4, ¢. 42,8. 7 .. 162
6&7 Will. 4,¢. 76,819 .. fae 254, 255
2&3 Vict. c. 12,88.1,2 .. 5 Si oe 210, 255, 256
ss. 3, 4 iy 255, 256

3.& 4 Vict. ¢. 9 am ue "109, 133, 219, 220, 256-258
6 & 7 Vict. c. 96 (Lord Campbel me Text e Act 258-264
s. 1 ‘ 169, 258

8. 2 159, 258, 259

s. 4 185, 192, 260

s. 5 : 185, 260

8. 6 191, 202, 208, 204, 260, 261

s. 7 201, 2038, 204, 261

s. 8 th Ae as iS a 261

8&9 Vict.c. 75... ae do ae .. 159, 219, 262, 263
9 & 10 Vict. ¢. 33 ca a as o4 252, 268, 264
11 & 12 Vict. ¢. 12, 8. 3 264, 265
c. 42, 8.1 189
xlu INDEX TO STATUTES CITED.

PAGE
GeO Vike ORI 3 me te
s. 12 .. a Ag Se ‘ ae 162
20 & 21 Vict. c. 83... 28 ti bs a3 198, 265-267
22 & 23 Vict. c. 17 .. ni Be a se ta wn, LOS
30 & 31 Vict. c. 35,8.3 .. e% on ee 2 .. 189
32 & 33 Viet. c. 24, Sch. IT. 2 252, 255, 256
42 & 43 Viet. ¢. 59 (Civil Pesce hen Repeal Act, 187 9),
Schedule. Part ii. vs 263
44& 45 Vict. c. 60 (Newspaper Libel and Registration Act,
1881), Text of Act ane oe 266, 273
ai 5 a 28 111, 268, 269
s. 4 190, 269
8. 5 192, 270
8. 6 192, 270
8.8 .. ; 211, 270
BO wt 211, 270, 271
ie i 3s es 2 ag. 2
s 130. : : : 211, 271, 273
s 14... a be — 211, 272
s. 15 : a 211, 272
45 & 46 Vict. ¢. 75 (Married Woman’ 8 Propenty A Act, 1882 *) s. 1,
sub-s.2 .. 69
se ld. ai alg : 71
51 & 52 Vict. c. 41 (Local Government Act, 1888) oy oy 181
c. £3 (County Courts Act, 1888), ss. 56, 64 . 19
s. 66.. .. 59, 78, 213
c. 64 (Law of Tibel Amendment Act, 1888),
Tet of Act ie Se. ee, BERET
Su : om os .. 111, 114, 202, 274
s. 3 110, 113, 274
s. 4 108, 109, 134, 274, 275
a) 54, 173, 175, 275
8. 6 62, 169, 173, 275, 276
s. 8 : . 189, 193, 200, 276
52 & 53 Vict. c. 18 (Indecent Advertisements Act, 1889) 199, 277, 278
53 Vict. c. 5 (Lunacy Act, 1890), s. 108 . : 76
53 & 54 Vict. c A (Suprema Court of Judicature Act, 1890), » 184
54 & 55 Vict. ¢. 51 (Slander of Women Act, 1891 ak 20, in 278
54 & 55 Vict. c. 65 (Lunacy Act, 1891) .. .. 76
58 & 59 Vict. ec. 40 (Corrupt sid Illegal Practices Prevention
Act, 1895). . -. 179, 187, 188, 279, 280

61 & 62 Vict. ¢. 36 (Criminal Evidence Act, 1898) is 276, 279
LIST OF

A&E.

Al. -

‘App. Cas...

(1891) (1892) &e,, ‘App. Cas.

Asp.

Atk. i
Bb, & A. or Barn. & Ald...
B. & Ad. or Barn. & Adel,
Barn.
BEBE es
B&G.
B.&s.
Bitt.

Bl.

Bro. P. C..
Burr.

Cc. A.

GB. ee
CoB. Ni8,
Cc. LR.
Code a;
Car. & MM...
Cc. M. & R.
C. P. oe
Cab. & EI.
Camp. ;
Car. & ie
Car. & PB...
Ch. D

Cox Cr. Ca.
cr. & J.

(1891) (1892) &e., 1, 2, &e., Ch.

ABBREVIATIONS.

Adolphus and Ellis.

Aleyn’s Reports.

Appeal Cases (L. R.).

(1891) (1892) &e, Law Reports,
Appeal Cases.

Aspinall’s Marine Cases.

Atkyns.

Barnewell and Alderson.

Barnewell and Adolphus.

Barnardiston.

Broderip and Bingham.

Brownlow and Goldsborough.

Best and Smith.

Bittleston’s Practice Cases.

Blackstone.

Brown’s Parliamentary Cases.

Burrow.

Court of Appeal.

Common Bench.

Common Bench, New Series.

Common Law Reports.

Crompton and Meeson.

Carrington and Marshman.

Crompton, Meeson and Roscoe.

Common Pleas.

Cababé and Ellis.

Campbell.

Carrington and Kirwan.

Carrington and Payne.

Chancery Division (L. R.)

(1891) (1892) &c., Law Reports,
1, 2, &e., Chancery Division.

Cox’s Criminal Cases.

Crompton and Jervis.
xliv LIST OF ABBREVIATIONS.

Cro. (1. 2, 3)

D. & R.
Dick.
Doug.
Dow, H. L.
Dowl. N. 8.

Dy.

East

El. & Bl...
El. B. & E.
Esp.

Ex. 2
Ex. Div. ..
Fitz.
H&c. ..
H&N. ..
Hy Gh Res
H. Bl. 6h
Harg. St. Tr.
Hawk.

Hayes’ Ir. Ex. Rep.

Hob. = 3
Hods,

Holt 4

Holt N. P.

How.

IC. L. R. ae
Ir. C. Law & Ch...

Tt: Ta Res ss

Jur. N. 8.

Croke’s Reports (temp. Eliz. Jam.
Cha.).

Dowling and Ryland.

Dickens,

Douglas.

Dow’s Reports, House of Lords.

Dowling’s Practice Reports, New
Series.

Dyer.

East.

Ellis and Blackburn.

Ellis, Blackburn and Ellis.

Uspinasse.

Exchequer Reports.

Exchequer Division (L. R.).

Foster and Finlason.

Fitzgibbon.

Hurlstone and Coltman.

Horn and Hurlstone.

Hurlstone and Norman.

Clark’s House of Lords Reports.

Henry Blackstone.

Hargreave’s State Trials.

Hawkins’ Pleas of the Crown.

Hayes’ Irish Exchequer Reports.

Hobart.

Hodges.

Holt’s (Sir John) Reports.

Holt’s Nisi Prius Reports.

Howell’s State Trials.

Irish Common Law Reports.

Irish Common Law and Chancery
Reports.

Irish Law Reports.

Justice of the Peace.

Jones’ (Sir William) Reports.

Jurist.

Jurist, New Series.

Keble’s Reports.

Law Journal.

Law Journal, Bankruptcy.

Law Journal, Chancery.

Law Journal, Common Pleas.

Law Journal, Exchequer.

Law Journal, House of Lords.
LIST OF ABBREVIATIONS. xlv
L. J.T. Law Journal (Ireland).
L. J. M.C. Taw Journal, Mavistrates’ Cases.
L. J. P.& M. Law Journal, Probate and Matri-
monial.
iy. Ba Taig, Law Reports (Ireland).
bot: ne Law Times.
L. T. Jour. Law Times Journal.
LT. (NW. 8.) Law Times (New Series).
L. T. (O. 8.) Law Times (Old Series).
lev, . Levinz.
Lew. Lewis’s Crown Cases.
Lit. Littleton.
Lofft Lofft.
M.& 1. Moore and Payne.
MiP. Ge, Moore’s Privy Council Cases.
Make Sk Maule and Selwyn.
M&W... Meeson and Welsby.

Man. & G.
Man. & lv.
Mod.
Moo. & M.
Moo. & 38.
Nak AL
Nz &P,
Ow.

Pahn.
P.& Dz
Pea.

Poph.

Pr,

4). B.

(). By Ds. os ae sis oe
(1891) (1892) &e., 1, &., Q. B...

Ries:

R. R. 4

Raym. (Ld.).

Rep. 1, 2, &e.

Roll. R. & Roll. Abr.

Ry.&M...
Salk.

Scott
Show.

Manning and Granger.

Manning and Ryland.

Modern Reports.

Moody and Malkin.

Moore and Scott.

Neville and Manning.

Neville and Perry.

Owen.

Palmer’s Reports.

Perry and Davison.

Peake.

Popham.

Price.

Queen’s Bench Reports ; Queen's
Bench (L. R. and L, J.).

Queen’s Bench Division (L. R.).

(1891) (1892) &¢., Law Reports,
1, &c., Queen’s Bench Division.

The Reports

Revised Reports.

Lord Raymond’s Reports.

Coke’s Reports, 1, 2, &c.

Rolle’s Reports and Rolle’s
Abridgment.

Ryan and Moody.

Salkeld.

Scott.

Shower.
xlvi

Sid.

Skinn.  ..
Sm. L. C.
Smith

Sol. J.
Stark.

Stra.

St. Tr.

Sty.

TG. R:
T.R.
Taun.

Tyr. sd
Tyr. & Gr.
Vent.

Vin. Abr...

WN.
W. R.
Willes
Wils.

W. Bi.

W.W.&H.

OF ABBREVIATIONS.

Siderfin.

Skinner.

Smith’s Leading Cases.
Smith.

Solicitors’ Journal.
Starkie.

Strange.

State Trials.

Styles.

Times Law Reports.
Term Reports(Durnford and East).
Taunton.

Tyrwhitt.

Tyrwhitt and Grainger.
Ventris.

Viner’s Abridgment.
Weekly Notes.

Weekly Reporter
Willes’ Reports.
Wilson.

William Blackstone.
Willmore, Wollaston and Hodges.
Principles and Practice

OF THE

LAW OF LIBEL AND SLANDER,

—>—

Part I.—OF A CIVIL ACTION.
», I1—OF CRIMINAL PROCEEDINGS.
Part I—OF A CIVIL ACTION.

 

Arr. 1.—Definition of libel and slander.

A defamatory statement is a statement concerning
any person which exposes him to hatred, ridicule,
or contempt, or which causes him to be shunned, or
avoided, or which has a tendency to injure him in
his office, profession, or trade. Such a statement,
if in writing, printing, or other permanent form, %s
a libel; if in spoken words or significant gestures, a
slander (a).

Note 1.—The distinction between libel and
slander carries with it, as will be hereafter seen,
many important consequences. Thus, libel is both
a civil wrong and a criminal offence: while slander
is a civil wrong only, though the words may happen

(a) Objection may be taken to the above definition, on the
ground that it contains no reference to publication. But
careful consideration has led the author to think that it tends
to accuracy of expression and clearness of thought to omit
all such reference. Moreover, this course is justified by the
language of the judges in the cases touching publication—
eg., per Lord Coke, in John Lamb’s case (1610), 9 Rep.
fol. 60; Lord Erskine, in Burdett v. Abbot (1817), 5 Dow,
H. L. at p. 201; Best, C. J., in De Crespigny v. Wellesley (1829),
5 Bing. at p. 402 ; Lord Campbell, C. J., in Whitfield v. S. £.
Rail. Co. (1858), 27 L. J. Q. B. at p. 231; Lord Esher, M. R.,
in LZmmens v. Pottle (1885), 16 Q. B. D. at p. 357, Pullman v
Hill & Co. (1891), 1 Q. B. at p. 527, Hebditeh v. Mcllwaine

L.s. B
2 THE LAW OF LIBEL AND SLANDER.

to come within the criminal law as being blasphe-
mous, seditious, or obscene (b), or as being a
solicitation to commit a crime(c), or as being a
contempt of court (d). Again, where a defamatory
statement is written or printed, the law assumes
that of necessity the person defamed has suffered
damage, and, in the absence of legal justification
or excuse, the publication of such a statement is
wrongful (e). On the other hand, spoken words
are actionable only when they produce, as a natural
consequence, the loss of some definite temporal
advantage (or, as it is called, special damage), or
when they impute to the defamed person charges
of a certain kind (f).

It is sometimes said that libel can be distin-
guished from slander by the fact that the former is
addressed to the eye, the latter to the ear. This
is no doubt true as a general rule, but there appears
to be at least one exception to it—the case of a de-
famatory statement communicated by significant ges-
tures, e.g., the finger language of the deaf and dumb.
Such a case, so far as can be discovered, has never
arisen, but it is submitted that it would be governed

and others (1894), 2 Q. B. at pp. 58, 59, 61; A. L. Smith, L. J.,
wbid. at pp. 62, 63; Davey, L. J., bcd. at p. 64—where such
phrases as ‘‘ the publication of a libel,” ‘‘ where any one pub-
lishes a libel,” are of constant occurrence, showing clearly
that the term libel is used in accordance with the meaning
ascribed to it in the above definition.

(0) See p. 196, infra.

(c) Rex v. Higgins (1801), 2 East, 5.

(d) Rex v. Pocock (1741), 2 Strange, 1157.

(e) See p. 19, infra.

(f) See p. 20, infra.
LIBEL AND SLANDER EXPLAINED. 3

by the same rules as spoken words, and would,
therefore, come under the description of slander.

It is submitted that the real distinction is this
—that, in the case of libel, the defamatory matter is
in some permanent form ; and usually, though not
necessarily, in writing or printing. For instance,
a statue (g), caricature (h), effigy (7), chalk marks
on a wall (4), “signs or pictures, as by fixing up a
gallows against a man’s door, or by painting him in
a shameful or ignominious manner” (/), may con-
stitute a libel (m). Slander, on the other hand, is
in its nature transient, and is always in the form of
spoken words or significant gestures.

Note 2.—Concerning any person.—In order to
be defamatory the words complained of must
concern the plaintiff himself. They must affect
his character, or touch him in the way of his office,
profession, or trade. If they are directed solely at
the plaintiff’s goods, or his title to property, though
an action may lie therefor, it is not an action of
libel or slander, but “an action on the case for

(g) Hawkins’ Pleas of the Crown, 8th ed. vol. 1, 542.

(h) Austin v. Culpepper (1684), 2 Show. 313; Skin. 123 ;
Du Bost v. Beresford (1811), 2 Camp. 511.

(¢) 5 Rep. 125. See also the judgment of Henn Collins, J.,
in Jonson v. Tussauds Limited (1894), 1 Q. B. at p. 678.

(tk) Tarpley v. Blabey (1836), 7 C. & P. 395.

(2) Eyre v. Garlick (1878), 42 J. P. 68.

(m) Subsequently to the publication of the above passage in
the first edition of this work, the well-known case of Jonson v.
Tussauds Limited (1894), 1 Q. B. 671, was decided by the
Court of Appeal, and the observations made by Lopes, L. J.,
in his judgment in that case at p. 692, show that the above
passage correctly summarizes the law.

B 2
4 THE LAW OF LIBEL AND SLANDER.

special damage sustained by reason of the speaking
or publication ” (7).

In some cases, however, an attack on a man’s
goods or title to property may also injuriously
affect his reputation. “It is quite possible to
make a reflection, which by the mere form ot
expression would seem to be only a criticism of
goods, but nevertheless would involve a reflection
upon the seller or maker. Could it be gravely
argued that to say of a fishmonger that he was in
the habit of selling decomposed fish would not be a
libel upon him in the way of his trade? And, if so,
would it not be a mere juggle with language to
alter the form of that allegation and to say that all
the fish in A.’s shop is decomposed? Or to say
of a baker that such a baker’s bread is always
unwholesome? In each of these cases you could
adopt a form of speech which would seem only to
deal with the article sold or manufactured, but in
each case it would certainly tend to, and probably
succeed in, destroying the trade of the person thus
referred to” (v). Thus it is libellous to write and
publish of a bookseller that he sells immoral
poems (); and to say of a wine merchant that his
wine is poisoned, or of a tea dealer that his tea is
made green by drying it on copper, is a slander upon
him in the way of his trade (q). So, too, “offensive

(n) Per Tindal, C. J., in Malachy v. Soper (1836), 3 Bing.
N. C. at p. 384.

(0) Per Lord Halsbury, L. C., in Linotype Co. Ld. v. British
Empire Typesetting Machine Co. Ld. (1899), 81 L. T. at p. 333.

(p) Tabart v. Pipper (1808), 1 Camp. 350.

(q) Per Coltman, J., in Ingram v. Lawson (1840), 6 Bing.
LIBEL AND SLANDER EXPLAINED. a

language applied to a newspaper may east a re-
flection, and be understood as casting a reflection,
upon persons connected with the newspaper. .
Whether it is an imputation which would attach to
any individual, and, if so, to whom, must depend in
each case upon the language used and upon the
circumstances ” (7).

In order to be defamatory the words must refer
to some particular individual, and the plaintiff
must prove that he is that particular individual.
“Tfa man wrote that all lawyers were thieves, no
particular lawyer could sue him, unless there is
something to point to the particular individual” (s).
And provided that the plaintiff can satisfy the jury
that he was especially referred to, it is sutficient (¢),
whether the words complained of describe him
by his own name, or its initial letter (vz), or by
asterisks (x), or by a fictitious name (y), or by
the name of somebody else (z), or merely refer
to a definite body of persons of which he is a
member, for “if those who look on know well
who is aimed at, the very same injury is inflicted,
the very same thing is in fact done, as would be
N. C. at p. 216. See also Jesson v. Hayes (1636), 1 Roll.
Abr. 63.

(r) Per curiam, in Australian Newspaper Co. v. Bennett
(1894), App. Cas. at p. 288.

(s) Per Willes, J., in Bastwood v. Holmes (1858), 1F. & F. 349.

(t) Lawrence v. Newberry (1891), 64 L. T. 797.

(u) Roach v. Garvan (1742), 2 Atk. 469; 2 Dick. 794;
O’Brien v. Clement (1846), 15 M. & W. 435; 15 L. J. Ex. 285.

(x) Bourke v. Warren (1826), 2 C. & P. 307.

(y) Rea v. Clerk (1728), 1 Barn. 304.
(2) Levt v. Afilne (1827), 4 Bing. 195.
6 THE LAW OF LIBEL AND SLANDER.

done if his name and Christian name were ten times
repeated ” (a).

But where it is uncertain whether the plaintiff
was the particular individual aimed at, no action
lies, «.y., where after the trial of an action at which
there were three witnesses, the defendant said,
“(ne of you three is perjured,” it was held that
no action lay, as there was nothing to show that the
plaintiff was the particular witness referred to (0).

Nore 3.— Which erposes him to hatred, ridicule,
or contempt, or which causes him to be shunned or
avowded.—Thus it has been held libellous (¢) to write
of a man that he is a man of straw (cd), a lhypo-
erite (7), a raseal(/'), a devil of devils (y), an
impostor (/), that he is dishonest (/), ungrateful (7),
impecunious (/:), insane (/), and even, in one case,

(a) Per Lord Campbell, ©. J., in Le Fanw and another v.
Makeolmson (1848), 1 H. L. C. at p. 668.

(4) Str John Bourws case, cited Cro. Eliz. 497. See also
James v. Rutlech (1599), 4 Rep. 17,

(c) For examples of slander under this head, see pp. 20,
26—28, infra, wud uote the rule as to the necessity of proving
special damage in certain cases of slander, Article 5, p. 20, du/re.

(d) Luton vy. Johns (1842), 1 Dowl. N.S. 602.

(e) Thorley v. Lovd Kerry (1812), 4 Taunt. 355; 3 Camp.
214, n.

(f) Villiers vy. Monsley (1769), 2 Wils. 403.

(g) Per Kennedy, J., in Lever v. Witty, unreported, tried at
the Liverpool Assizes, July 26th, 1893.

(h) Campbell v. Spottiswoode (1863), 3 B. & S. 769; 32
L. J. Q. B. 185.

(¢) Austin v. Culpepper (1684), Skin. 123 ; 2 Show. 313.

(j) Cor v. Lee (1869), L. R. 4 Ex. 284; 38 L. J. Ex. 219,

(k) Katou v. Johns (1842), 1 Dowl. N.S. 602,

(1) Morgan v. Lingen (1863), 8 L. T. 800.
LIBEL AND SLANDER EXPLAINED. 7

that his conduct had been unfeeling (m). So, too,
it has been held libellous to publish in a newspaper
a story in which the plaintiff is made to appear
ridiculous, even though he has told it himself in
the first imstance (nv); and ironical praise may
amount to a libel (0).

On the other hand it has been held not libellous
to write of a man that he endeavoured to dis-
courage sedition in Ireland, for this would not
injure him in the opinion of good citizens and
respectable people (p); or that he sued his mother-
in-law in a County Court, for he may have properly
done so (q); or that he owes money, for this does
not imply that he cannot, or will not, pay his
debts (*); or that he is “man Friday ” (s), “ for
the man Friday, as we all know, was a respectable
man, although a black man” (t).

Note 4.—Or ehich has a tendency to injure him
in his office, profession, or trade.—To impute to
any one who holds an office or profession that he
is unfit therefor, or that he has acted improperly
therein, is libellous (w) ; e.g., to write of a guardian

(m) Churchill v. Hunt (1819), 2 B. & Ald. 685; 1 Chit. 480.

(n) Cook v. Ward (1830), 6 Bing. 409; + M. & P. 99.

(0) Boydell v. Jones (1838), 4 M. & W. 446; 7 Dowl. 210.

(p) Clay v. Roberts (1863), 9 Jur. N.S. 580; 11 W. R.
649; 8 L. T. 397.

(q) Cox v. Cooper (1863), 12 W. R. 75; 9 L. T. 329.

(r) Per Bramwell, B., in Reg. v. Coghlan (1865), + F. & F. 316.

(s) Forbes v. King (1833), 1 Dowl. 672; 2 L. J. Ex. 109.

(t) Per Lord Denman, C. J., in Hoare v. Silverlock (1848),
12 Q. B. at p. 626.

(z) For examples of slander, see pp. 28—36.
8 THE LAW OF LIBEL AND SLANDER.

of the poor that he is a defaulter in his accounts (v),
or of a parish overseer that he is dishonest as
such (.), or is oppressive towards the poor (y). So
it is libellous to accuse a magistrate’s clerk of cor-
ruption (z), or a vestry clerk of misapplying the
parish monies(a); to write of a clergyman that
his conduct is enough to make infidels of his
parishioners (b) ; of a solicitor that he has been
guilty of disgraceful (c), shameful (d), unscrupu-
lous (e) or unprofessional (f) conduct; or of a
barrister that he is an impostor and a quack

lawyer (4).
It is libellous to write of a medical man that he is
a quack (i), or that he prepares quack medicines(¢) ;

(v) Warman v. Hine (1837), 1 Jur, 820.

(x) Cheese v. Scales (L842), 10 M. & W. 488.

(y) Woodard v. Dowsing (1828), 2 M. & Ry. 74.

(2) Blagg v. Sturt (1846), 10 Q. B. 899; 16L. J. Q. B. 39.

(a) May v. Brown (1824), 3 B. & C. 113.

(6) Walker v. Brogden (1865), 19 C. BL N.S. 65; 13 W.R,
809; 12 L. T. 495,

(c) Moore v. Terrell and others (1833), 4 B. & Ad. 870.

(d) Clement v. Lewis (1820), 3 B. & B. 297; 3 B. & Ald.
702; 7 Moore, 200.

(e) Godsun v. Llome (1819), 1 B. & B. 7; 3 Moore, 223.

(f) Clarkson v. Lawson (1829), 6 Bing. “266, 587; 3 M.& P.
605; 4M & P. 356; Bishop v. Rasinae (1861), 4 , T. 775;
Blake v. Stevens and others (1864), 4 F.& F. 232; 11 L. T.
543 ; Woodgate v. idout (1865), 4 F. & F. 202.

(g) Wakley v. Healey (1848-49), 7 C. B. 591; 18 L. J.
CG. P. 241.

(h) Welts v. Webber (1862), 2 F. & F. 715 ; Hunter v. Sharpe
(1866), 4 F.& F. 983; 15 L. T. 421.

(t) Clark v. Rien (1848), 11 Beav. 112; 17 L. J. Ch.
142; 12 Jur. 149. It. is not, however, actionable to use the
name of a doctor to puff the sale of a medicine, unless the
CONSTRUCTION. 9

but not that he has met homeopathists in con-
sultation (A:),

Similarly, it is libellous to write of a merchant
or tradesman that he is dishonest or fraudulent in
his business (/), or that he is insolvent (m).

If the action be for libel it is sufficient for the
plaintiff to prove that he has at any téme held such
office or practised such profession or trade; but if
he sue for slander he must prove strictly that ut the
time the words were spoken he held such office or
practised such profession or trade ().

Art. 2.—Construction.

In order to determine whether a statement is
defamatory, it must first be construed in its natural
and ordinary meaning; if not defamatory tn such
meaning, must be construed in the special meaning,
efany, in which it was understood by the persons by
and to whom tt was published (0).

publication is defamatory, or injures him in his property,
business, or profession. Dockrell v. Dougall (1899), 80 L. T.
556 (C. A.).

(k) Clay v. Roberts (1863), 9 Jur. N. S. 580; 11 W. R. 649;
8 L. T. 397.

(1) Heriot v. Stuart (1796), 1 Esp. 437 ; Hvans v. Harlow
(1844), 5 Q. B. 624; 13 L. J. Q. B. 120.

(m) Stubbs v. Marsh (1866), 15 L. T. 312; Shepheard v.
Whitaker (1875), L. R. 10 C. P, 502; 32 L. T. 402.

(n) Boydell v. Jones (1838), 4 M. & W. 446; Parmiter v.
Coupland (1840), 9 L. J. Ex. 202; 6 M. & W. 105,

(0) Capital and Counties Bank v. Henty (1882), 7 App. Cas.
741; 52 L. J.Q. B. 232; 47 L. T. 662; Russell v. Notcutt
(1896), 12 Times L. R. 195.
10 THE LAW OF LIBEL AND SLANDER.

Nots.—It is for the judge to say whether the
words are reasonably capable of a defamatory mean-
ing, but for the jury to say whether, under the circum-
stances of the case, they in fact bear that meaning (7).
In the case of Nell v. Fine Art and General
Insurance Co. (q), in the House of Lords, it was
pointed out by Lord Halsbury, L. C., that in order to
justify the judge in leaving the case to the jury “the
words must be susceptible of a libellous meaning in
this sense, that a reasonable man could construe
them unfavourably in such a sense as to make some
imputation upon the person complaining.” “It
is not enough to saythat by some person or
another the words mzght be understood in a defa-
matory sense” (7). Where wordsi re reasonably
capable of an innocent and a defamatory meaning,
it is a question of fact for the jury in what meaning
they were actually understood (s). And in every
case the burden of proof is on the party who alleges
that the words were understood in a meaning other
than their natural and ordinary meaning. “If the
word is an ordinary English word, then the Court
will construe it in its natural meaning, unless
some other is shown to have been given it.
If the word is a cant expression or a commercial

(p) sbid. See also Mulligan v. Cole (1875), L. R. 10 Q. B.
549; Australian Newspaper Co. v. Bennett (1894), App. Cas.
at p, 287; Nevill v. Fine Art and General Insurance Co. (1897),
App. Cas. 68; Cooney v. Edeveain (1897), 14 Times L. R. 34.

(g) (1897) App. Cas. at pp. 76, 77.

(vr) Lbid. at p. 73.

(s) Churchill v. Gedney (1889), 53 J. P. 471; Ritchie v.
Seaton (1891), 64 L. T. 210; 55 J. P. 389.
CONSTRUCTION. 11

term (¢), then the meaning may depend upon the
circumstances in evidence” (wz). But where the
words complained of are ordinary English and prtmd
facie quite intelligible, witnesses cannot be called to
state what they understood the words to mean unless
it is first shown that the words did not on this
occasion bear their ordinary English meaning (/).

It is important to notice that where the words are
not defamatory in their natural and ordinary sense,
the plaintiff must be prepared to satisfy the jury
that there were facts known both to the person
publishing the defamatory matter, and to the person
to whom it was published, which would naturally
lead the latter to understand the words in a defa-
matory sense (a). As was pointed out by Brett, L. J.,
in the well-known case of Cayztal aul Connties
Bank v. Henty (y), “the first question for the jury
is whether the document would be read in a defa-
matory sense by persons of ordinary reason in the
position of those to whom it is published. If, in
the opinion of the jury, it would not be so read
according to the primd facie meaning of the
language, then there is a further question (if there
is any evidence upon which it can be raised)

(t) Smith v. Jeffreys (1846), 15 M. & W.561; 15 L. J. Ex. 325.

(w) Per Bramwell, B., in Barnett v. Allen (1858), 27 L. J.
Ex. at pp. 414, 415.

(v) Daines v. Hartley (1848), 3 Ex. 200; see also Gallagher
v. Murton (1888), 4 Times L. R. 304.

(x) Capital and Counties Bank v. Henty & Sons (1880), 5
Cc. P. D. 514; (1882), 7 App. Cas. 741; Russell v. Notcutt
(1896), 12 Times L. R. 195.

(vy) (1880), 5 C. P. D. at p. 539.
12 THE LAW OF LIBEL AND SLANDER.

whether there were facts known both to the person
who framed the alleged libel, and to the persons to
whom it was published, which would lead the latter
reasonably to put upon the document the construc-
tion that, having a second defamatory sense, it was
issued ironically or otherwise than in the primary
sense of the language.” In that case Messrs. Heanty,
brewers at Chichester, issued to their tenants a
circular containing the following words :—“ Messrs.
Henty & Sons hereby give notice that they will not
receive in payment any cheques drawn on any of the
branches of the Capital and Counties Bank.” The
issue of this circular caused a run upon the bank,
who thereupon brought an action of libel against
Messrs. Henty. It was, however, held that the
words in their natural and ordinary meaning were
not libellous ; that therefore it was for the plaintiffs
to prove that, by reason of the special circumstances
of the case, they were understood in a special
libellous sense ; and that, in the absence of any such
evidence, there was uo case to go to the jury, and
there must therefore be judgment for the defendants.

So where the plaintiff alleges that he is the
person referred to as the villain in a book or story
which purports to be a work of fiction, it seems that
he must prove (1) that the author meant to refer to
him, and (2) that the work was so written that
those knowing the plaintiff would reasonably infer
that he was intended (yy).

(yy) See the observations of Lord Cottenham in Ze Funuw v.
Afalcolmson (1848), 1 H. L. C. at p. 664, and see also Pinnock v.
Chapman & Hall, Ltd., Times Newspaper, Dec. 9 and 10, 1891.
PUBLICATION. 13

Moreover, where the words are not primd facte
defamatory, and where the plaintiff therefore intends
to maintain that the words were defamatory by
reason of their being understood in a special sense,
he must be careful to insert in his Statement of
Claim an averment specifying the defamatory mean-
ing of the words complained of, and showing how
they come to have that meaning, and how they
relate to the plaintiff (z). Such an averment is
called an innuendo. No innuendo is necessary
where the words complained of are defamatory in
their ordinary meaning (a).

Art. 3.—No action without publication.

No action can be maintained for libel or slander
unless there be publication, i.e., a communication by
the defendant of the words complained of to some
person other than the plaintiff.

Nore.—A communication to some person other
than the plaintiff: —Thus there is no publication, and
therefore no action will lie, if the defamatory matter
be communicated. only to the plaintiff himself. This
was expressly decided in Barrow v. Lewellin (b),
where the defendant despatched a sealed letter
through the post to the plaintiff. As the late
Lord Esher, M.R., said, in the case of Pullman

(z) Per Lord Selborne, in Capital and Counties Bank v.
Henty (1882), 7 App. Cas. at p. 748.

(a) Russell and another v. Webster (1874), 23 W. R. 59.

(b) (1615), Hob. 62.
14 THE LAW OF LIBEL AND SLANDER.

v. Mill & Co.(c), “if the statement is sent
straight to the person of whom it is written,
there is no publication of it, for you cannot
publish a libel of a man to himself. If a letter
is not communicated to any one but the person
to whom it is written, there is no publication
of it.”

On the other hand, “if the writer of a letter
shows it to any person other than the person
to whom it is written, he publishes it” (d) ; for
example, if he shows it to his clerk, or places it
in the hands of a type-writer in order that such
clerk or type-writer may copy it for him, there is
a publication of the letter (e). Similarly it has been
held that there is a publication if the libel be on
a postcard (f), or contained in a telegram (g), for
in each case “it is necessarily communicated to all
the clerks through whose hands it passes” (%). And
there is evidence of publication if it can be proved
that the defendant knew, when he posted the letter
containing the libel, that it would probably be

(c) (1891), 1 Q. B. at p. 527.

(d) (1891), 1 Q. B. at p. 527,

(e) Pullman v. Hill & Co., supra. See also Bousius v. Goblet
Freres (1894), 1 Q. B. 842; Gordon v. Street (1899), 69 L. J.
Q. B. 45; 81 L. T. 237; 48 W. R. 158; reported on another
point in L. R. (1899) 2 Q. B. 641.

(f) Robinson v. Jones (1879), 4 L, R. Ir. 391; Beamish v.
Dairy Supply Co., Lid. (1897), 13 Times L. R. 484 (C. AL);
Sadyrove v. Hole (1901), 2K. B.1; 17 Times L. R. 333 (C. A.).

(9) Whitfield v. S. E. Rail, Co. (1858), E. B. & E. 115;
Welliamson v. Freer (1874), L. R. 9 C. P. 393.

() Per Brett, J., in Welliamson v. Freer (1874), L. RB. 9
CP. at p. 395.
PUBLICATION. 15

opened by some person other than the plaintiff, for
example, his clerk (7).

So, too, “if a letter is sent by the post, it is
prima facie proof, until the contrary is proved,
that the party to whom it is addressed received it
in due course” (7). “The moment a man delivers
a libel from his hands, his control over it is gone ;
he has shot his arrow, and it does not depend upon
him whether it hits the mark or not” (/). There
is, however, no publication if the person into whose
hands the libellous communication has come has
never read it (2).

In accordance with the common law principle
that husband and wife are one person, “ the uttering
of a libel by a husband to his wife is no publica-
tion” (m). ‘* For many purposes they are,” however,
“essentially distinct and different persons, and,
amongst others, for the purpose of having the
honour and feelings of the husband assailed and
injured by acts or communications made to the
wife” (x). Thus it has been held that sending a

(i) Delacroix v. Thevenot (1817), 2 Stark. 63; Gomersall v.
Davies (1898), 14 Times L. R. 430.

(j) Per Parke, B., in Warren v. Warren (1834),1C.M. & R.
at p. 252. See also Ward v. Snwth (1830), 4 C. & P. 302;
Shipley v. Todhunter (1836), 7 C. & P. 630.

(k) Per Best, J.,in Rea v. Burdett (1820), 4 B. & Ald. at

. 126.
(2) Per Lord Herschell, L. C., in Browne v. Dunn (1893),
6 BR. at p. 74.

(m) Per Huddleston, B., in Wennhak v. JMorgan (1888),
L. R. 20 Q. B. D. at p. 637,

(n) Per Maule, J., in Wenman v. Ash (1853), 13 C. B. at
pp. 844, 845.
16 THE LAW OF LIBEL AND SLANDER.

defamatory letter to a wife about her husband is
sufficient publication (0).

Where a wife is living apart from her husband
under a separation order obtained by virtue of
the Summary Jurisdiction (Married Women) Act,
1895, the old doctrine of the common Jaw that
husband and wife are in law one person is uo longer
applicable, and therefore if under such circumstances
the husband sends to a third person a letter contain-
ing serious charges against his wife, the wife can
maintain an action against her husband for libel (/).

Where the libel is contained in a newspaper, the
sale of each copy of the newspaper containing the
libel is primd facte a publication thereof (q), render-
ing the distributor as well as his principal responsible
for the libel. So, too, is the delivery of a libellous
manuscript to the printer (7), and it would seem
even the delivery of the newspaper to a government
official as required by law (s). But in all these
cases it is open to the defendant, as was decided by
the Court of Appeal in Emmens v. Pottle (t), to

(0) Wenman v. Ash (1853), 13 C. B. 836; 22 L. J. C.P.
190; Jones v. Walliams (1885), 1 Times L. R. 572.

(p) Robinson v. Robinson (1897), 13 Times L. R. 564.

(y) Duke of Brunswick v. Harmer (1849), 19 L. J. Q. B20;
14 Q. B. 185.

(vr) Baldwin v. Elphinston (1775), 2 W. BL 1037; Watts v.
Fraser and another (1835), 6 L. J. K. B. 226; 7 Ad. & FE. 223;
* OC. & B. 389; 1 Jur, 671,

(s) Rea v. Amphltt (1825), 4B. & C. 35; 6D. & R. 125.

(t) (1885), 16 Q. B. D. 354. See also John Lamb’s case (1610),
9 Rep. fol. 60; Martin et ur. v. The Trustees of the British
Museum and Thompson (1894), 10 Times L. R. 338; Wizetelly
v. Mudie’s Select Library, Ltd. (1900), 2 Q. B. 170 (C. A.)
PUBLICATION. 17

show that he did not in fact publish the libel, which
he can do by proving that he did not know that the
paper contained or was likely to contain a libel,
and that he ought not to have known it, having
used reasonable care. ‘Thus he is not hable where
he has carried the libel in a newspaper (7) or
pamphlet (7) or parcel (w) which he does not know
contains libellous matter, and which he had no reason
to suppose was likely to contain such matter. “ A
newspaper is not like a fire; a man may carry it
about without being bound to suppose that it is
likely to do an injury. It seems to me that the
defendants are no more liable than any other
innocent carrier of an article which he has no reason
to suppose likely to be dangerous ” (a).

In the recent case of I Vzetelly v. J/udie’s Select
Library, Ltd. (y), the proprietors of a circulating
library circulated copies of a book which, unknown
to them, contained a libel on the plaintiff. In
an action for libel brought against them by
the plaintiff they failed to prove that it was not
through negligence on their part that they did not
know that the book contained the libel when they

(u) Emmens v. Pottle (1885), 16 Q. B. D. 354; Mallon v.
W. H. Smith & Son (1893), 9 Times L. R. 621. See also the
observations of Lord Kenyon, C. J., in Rex v. Holt (1793), 5
T. R. at p. 444.

(v) Martin et ux. v. The Trustees of the British Museum
and Thompson (1894), 10 Times L. R. 338.

(w) Day v. Bream (1837), 2 Moo. & R. 54,

(x) Per Bowen, L. J., in Lmmens v. Pottle (1885), 16 Q. B. D.
at p. 358.

(y) (1900), 2 Q. B. 170 (C. A.).

L.S. Cc
18 THE LAW OF LIBEL AND SLANDER.

circulated it, and it was held by the Court of Appeal
that they were liable as publishers of the libel. The
doctrine of Emmens v. Pottle (supra) was discussed,
but A. L. Smith, L. J., expressly refrained from
laying down any general rule of law applicable to
all circulating libraries (z). It would, however,
seem that the doctrine of Emmens v. Pottle is only
applicable where the defendant is a person who is
not the printer or the first or main publisher of a
work which contains a libel, but has only taken a
subordinate part in disseminating it (a).

There is also a promd facie case of publication
against the defendant where the manuscript from
which the libel was printed is shown to be in his
handwriting, there being no necessity to prove that
he expressly ordered or authorized the printing (4).

It was formerly held that if A., intending to send
a letter to B., which if so sent would be privileged,
by mistake sends it to C., A. is not liable (c).
It has, however, been decided by the Court of Appeal
that this is incorrect in principle, and that A. is
liable as having published the matter to C., in
respect of whom there is no privilege (d).

(z) (1900), 2 Q. B. at 175.

(a) See the observations of Romer, L. J. (1900), 2 Q. B. at
p. 180.

(2) Per Lord Erskine in Burdett v. Abbot (1811), 5 Dow,
H. L. at p. 201; Adams v. Kelly (1824), Ry. & M. 157;
Tarpley v. Blabey (1836), 2 Bing. N. C. 487; 7 C. & P. 395;
Bond v. Douglas (1836), 7 C. & P. 626.

(c) Tompson v. Dashwood (1883), 11 Q. B. D. 43.

(d) Hebditch v. McIlwaine and others (1894), 2 Q. B. 54,
overruling Tompson v. Dashwood, supra.
SPECIAL DAMAGE WHEN NECESSARY. 19

The same act may amount to a publication both
of libel and slander, e.., if any one knowing that a
document contains a libel upon another reads it to
a third person, he publishes a libel and also a slander
to such third person (e).

It is for the jury to find whether the facts on
which it is endeavoured to prove publication are
true, but for the judge to decide whether the facts
as proved constitute a publication.

Art. £—Action for libel maintainable without
proof of special damage.

For every libel an action for damages will lie
even, though no special damage can be proved ( f).

Norr.—In this respect there is a remarkable
difference between libel and slander. In the case of
libel, @.e., where the defamatory statement is in
writing, printing, or other permanent form, the law
assumes that of necessity the person defamed has
suffered damage, and therefore he is entitled to main-
tain an action, even though he does not and cannot
prove that he has suffered any definite temporal loss,
or, as it is technically called, special damage (g).

(e) John Lamb's case (1610), 9 Rep. fol. 60; Forrester v.
Tyrrell (1893), 9 Times L. R. 257 (C. A.).

(f) No action for libel can be brought in the County Court,
except by consent (51 & 52 Vict. c. 43, ss. 56, 64), although
such an action begun in the High Court may, under certain
circumstances (as to which see pp. 59, 213, znfra) be remitted
to the County Court.

(g) Per cur. in Ratcliffe v. Evans (1892), 2 Q. B. at p. 529,
and per Kay, L. J., in South Hetton Coal Co. v. N. £. News
Association (1894), 1 Q. B. at p. 144. ‘

Cc
20 THE LAW OF LIBEL AND SLANDER.

On the other hand, in the case of slander, ze.,
where the defamatory statement is merely spoken,
or made by gesture, the plaintiff cannot succeed
without proof of special damage, except in the four
cases which are dealt with in the next Article.

Arr. 5.—No action for slander without proof of
special damage, except in four cases.

No action for slander will lie without proof of
special damage, except (1) where the words charge
the plaintiff with having commutted a criminal
offence (h); or (2) where they impute that he has a
contagious disease of a particular kind (2); or (3)
where they wre spoken of him in relation to his office,
profession, or trade(j); or (4) where they vmpute
unchastity or adultery to any woman or girl (k).

Nore 1.—Except in the four cases mentioned
above (in which the words are said to be actionable
per se), no action for slander will le, unless the
plaintiff can prove that in consequence of the words
complained of he has suffered some special damage.
Thus, in the absence of such proof, it is not action-
able to call anyone a cheat (/), a rogue (m), a

(h) Webb v. Beavan (1883), 11 Q. B. D. 609; 52 L. J. Q. B.
D445 49 L. T. 201; 47 J. P. 488.

(¢) Villers v. Monsley (1769), 2 Wils. 403 ; and see pp. 27—28,
enfra.

(j) Phillips v. Jansen (1798), 2 Esp. 624.

(&) Slander of Women Act, 1891 (54 & 55 Vict. ¢. 51), s. 1.

(1) Per Pollock, C. B., in Barnett v. Allen (1858), 27 L. J.
Ex. at p. £14.

(m) Stanhope v. Blith (1585), 4 Rep. 15; Hopwood v. Thorn
(1850), 8 C. B. 293; 19 L. J. O. P. 94; 14 Jur. 87.
SPECIAL DAMAGE. 21

swindler (1), or a villain (0), nor, unless it touches
him in his office, profession, or trade (p), is it
actionable to verbally accuse a man of immoral or
profligate conduct (q).

In order to maintain an action of slander where
the words are not actionable per se, the plaintiff
must therefore prove some definite temporal loss ;
vg., the loss of a client (7) or customer (s), or the
loss (¢) or refusal (7) of some appointment or
employment (.), or, unless indeed it be merely a
device to maintain the action (y), the loss of a
eift whether pecuniary (z) or otherwise (a), or of
gratuitous hospitality (0), for a dinner at a friend’s
expense is a thing of some temporal value (c). So

(n) Savile v. Jardine (1795), 2 H. BL 531; Ward v. Weeks
(1830), 7 Bing. 211; 4M. & P. 796.

(0) Stanhope v. Blith, supra.

(p) See Note 4, p. 28, infra.

(q) Lumby v. Aliday (1831), 1 Cr. & J. 301; Ayre v. Craven
(1834), 2 A. & E. 2.

(r) King v. Watts (1838), 8 C. & P. 614; Brown v. Smith
(1853), 22 L. J.C. P. 151.

(s) Storey v. Challands (1837), 8 C. & P. 234.

(t) Payne v. Beuwmorris (1669), 1 Lev. 248.

(u) Sterry v. Foreman (1827), 2 C. & P. 592.

(a) Martin v. Strong (1836), 5 A. & E. 535; Rumsey v.
Webb et ux. (1842), 11 L. J.C. P. 129.

(y) Coward v. Wellington (1836), 7 C. & P. 531.

(2) Corcoran v. Corcoran (1857), 7 Ir. L. R. N. 8. 272.

(a) Hartley v. Herring (1799), 8 T. BR. 130.

(b) Moore v. Meagher (1807), 1 Taunt. 39; 3 Smith, 135 ;
Lynch v. Knight (1861), 9 H. L. C. 577; 8 Jur. N.S. 7245 5
L. T. 291.

(c) Davies and Wife v. Solomon (1871), L. R. 7 Q. B. 112;
41 L. J. Q. B. 10.
22 THE LAW OF LIBEL AND SLANDER.

too the loss of a marriage (d) or of the consortium
of one’s husband is enough (e); but not strained
relations and the probability of a divorce (/), nor
the loss of friends (g), nor mental pain or distress
or bodily illness (), for “bodily pain or suffering
cannot be said to be the natural result in all
persons” (7), nor even expulsion from a religious
society (k). “The risk of temporal loss is not the
same as temporal loss” (/), and therefore no action
will lie for speaking disparaging words of a candi-
date of a club, in consequence of which the majority
of the club refuse to change the rules in such a way
as to improve the chances of his election (m).

It used to be thought that the loss of general
business, as distinct from the loss of specific custom,
was not admissible in evidence as special damage to

(d) Davis v. Gardiner (1593), 4 Rep. 16; 2 Salk. 694;
Holwood v. Hopkins (1600), Cro. Eliz. 787 ; Matthew v. Crass
(1614), Cro. Jac. 323 ; Melson v. Staff (1618), Cro. Jac. 422.

(e) Per Lord Campbell in Lynch v. Anight and Wife (1861),
9H. L. C. at p. 589.

(f) Barmund’s case (1619), Cro. Jac. 473.

(g) Barnes v. Bruddel (1669), 1 Vent. 4; Weldon v. De Bathe
(1884), 33 W. R. 328; 54 L. J. Q. B. 113; 53 L. T. 520.

(h) Allsop and Wife v. Allsop (1860), 5 H. & N. 534; 29
L. J. Ex. 315.

(¢) Per Pollock, C. B., in Allsop and Wife v. Allsop (1860),
29 L. J. Ex. at p. 317.

(k) Roberts v. Roberts (1864), 5B. & S. 384; 33 L. J. Q. B.
249 ; but see Barnabas v. Traunter (1641), 1 Vin. Abr. 396.

(1) Per Bowen, L. J., in Chamberlain v. Boyd (1883), 11
Q. B. D. at p. 416.

(m) Chamberlaiu v. Boyd (1883), 11 Q. B. D. 407; 52 L. J.
Q. B. 277. It was also held in this case that the damage was
too remote.
SPECIAL DAMAGE. 23

support an action for words not actionable per se.
Having regard, however, to the decision of the
Court of Appeal in Ratcliffe v. Hvans (n), it would
now appear to be the law that where the statement
complained of “in its very nature is intended, or
reasonably likely to produce, and in the ordinary
course of things does produce, a general loss of
business, as distinct from the loss of this or that
known customer, evidence of such general decline
of business is admissible” (0), and is sufficient to
support an action for slander.

In the same case (p) the Court laid down the
following general rules as to special damage :—
‘The necessity of alleging and proving actual
temporal loss with certainty and precision in all
cases of the sort has been insisted upon for centuries.
In all actions accordingly on the case, where the
damage actually done is the gist of the action, the
character of the acts themselves which produce
the damage, and the circumstances under which the
acts are done, must regulate the degree of certainty
and particularity with which the damage done
ought to be stated and proved. As much certainty
and particularity must be insisted on, both in plead-
ing and proof of damage, as is reasonable, having
regard to the circumstances and to the nature of the
acts themselves by which the damage is done. To
insist upon less would be to relax old and intelli-
gible principles ; to insist upon more would be the

(n) (1892), 2 Q. B. 524,

(0) (1892), 2 Q. B. at p. 533.
(p) Ibid. at pp. 532, 533.
D4 THE LAW OF LIBEL AND SLANDER.

vainest pedantry. ... The nature and circumstances
of the publication of the falsehood may accordingly
require the admission of evidence of general loss of
business as the natural and direct result produced,
and perhaps intended to be produced.”

Moreover, the special damage must be the natural
and probable result of the words complained of (q) ;
and therefore a person is not liable for damage
caused by the repetition of slanders of which he
himself was the originator, unless such repetition
was the natural and probable result of such original
publication, or was expressly or impliedly authorized
by him (7).

Thus, if A. utters a slander affecting B. to C.,
and C. repeats it to D., who repeats it to E., then,
subject to the two exceptions just mentioned, A. is
not liable for damage caused by the repetition of
the slander by C. to D., or by D. to E.

In Speight v. Gosnay (s), the defendant uttered
a slander consisting of a false imputation upon the
chastity of the plaintiff, an unmarried woman (ft), in

(y) Lumley v. Gye (1853),2 E. & B. 216; 22 L. J. Q. B.
463 ; per Lord Wensleydale, in Lynch v. Knight and Wife
(1861), 9 H. L. C. at p. 600; Bowen v. Hall (1881), 6 Q. B.D.
333.

(7) .ldams v. Kelly (1824), Ry. & Moo. 157; Ward v. Weeks
(1830), 7 Bing. 211; 4 M. & P. 796; Parkins et wr. v. Scott
et ur, (1862), 1 H. & C. 153; 31 L. J. Ex. 331; Riding v.
Smith (1876), 1 Ex. D. 91; 45 L. J. Ex. 281; Zeklin v. Little
(1890), 6 Times L. R. 366; Speight v. Gosnay (1891), 60 L. J.
Q. B. 231; 55 J. P. 501.

(s) (1891), 60 L. J. Q. B. 231; 55 J. P. 501.

(t) Such an imputation would now be actionable without
proof of special damage. See p. 37, ¢nfra.
SPECIAL DAMAGE. 25

the presence of the plaintiff's mother. The mother
repeated it to the plaintiff, who repeated it to the
man to whom she was engaged to be married, and
he broke off the engagement. There being no
evidence that the defendant authorized or intended
the repetition of the slander, or that he knew of the
plaintiff’s engagement, it was held by the Court of
Appeal that an action of slander could not be
maintained against the defendant.

“Verbal defamatory statements may, indeed, be
intended to be repeated, or may be uttered under
such circumstances that their repetition follows in
the ordinary course of things from their original
utterance. Except in such cases, the law does not
allow the plaintiff to recover damages which flow
not from the original slander, but from its un-
authorized repetition ” (7). In Ward v. Weeks (a),
Tindal, C. J., thus explained the reason for this rule:
“Every man must be taken to be answerable for
the necessary consequences of his own wrongful
acts, but such a spontaneous and unauthorized com-
munication cannot be considered as the necessary
consequence of the original uttering of the words.”
The result of this is, that where the words are not
actionable per se, the originator of the slander
frequently escapes all liability.

It is no excuse, though it may be evidence in
mitigation of damages (y), that the person repeating

(w) Per cur. in Ratcliffe v. Evans (1892), 2 Q. B. at p. 530.
See also Ecklin v. Little (1890), 6 Times L. R. 366.

(a) (1830), 7 Bing. at p. 215.

(y) See pp. 171—172, infra.
26 THE LAW OF LIBEL AND SLANDER.

a slander mentions that he has heard it from A. B.,
naming his informant, or adds that he does not, of
course, believe it (2).

Nore 2.—IVhere the words charge the plaintiff
with having committed a criminal offence.—“ The
distinction seems a natural one, that words imputing
that the plaintiff has rendered himself liable to the
mere infliction of a fine are uot slanderous, but that
it is slanderous to say that he has done something
for which he has been made to suffer corporally ” (a).
Prior to Webb v. Beavan(b), it used to be thought
that the offence charged must be not merely criminal,
but also indictable. It was, however, expressly laid
down in that case that it is sufficient to charge the
plaintiff with having committed a criminal offence ; for
many offences which were formerly indictable are not
so now, but merely punishable on summary conviction.

It is, of course, actionable, without proof of special
damage, to charge the plaintiff with the commission
of any definite criminal offence, e.g., burglary (c),

forgery (d), larceny (ce), murder (f), perjury (g).

It is uot, however, necessary that any specific

(2) Watkin v. Hall (1868), L. R. 3 Q. B. 396; 37 L. J.
Q. B. 125.

(a) Per Pollock, B., in Webb v. Beavan (1883), 11 Q. B. D.
at p. 610.

(2) (1889), 11 Q. B. D. 609; 52 L. J. Q. B. 544.

(c) Somers v. House (1694), Holt, 39; Skin. 364.

(@) Baal v. Baggerley (1632), Cro. Car. 326 ; Jones v. Herne
(1759), 2 Wils. 87.

(e) Tomlinson v. Brittlebank (1833), 4 B. & Ad. 630.

(7) Button v. Heyward (1722), 8 Mod. 24.

(g) Roberts v. Camden (1807), 9 East, 93.
SLANDER IMPUTING CRIME. 27

crime be charged ; it is enough if there be a general
accusation of crime. Thus, where the words com-
plained of were, “I will lock you up in Gloucester
gaol next week ; I know enough to put you there,”
and the innuendo was, “ meaning thereby that the
plaintiff had been and was guilty of having com-
mitted some criminal offence or offences,” it was
held that this disclosed a cause of action (/).

On the other hand, without proof of special
damage, words which “ convey in their natural and
ordinary sense suspicion, and suspicion only, .. .
would not support an action for slander” (¢). And
if the defendant can satisfy the jury that the words
complained of were merely understood as words of
heat and vulgar abuse, and not as imputing a
criminal offence, the plaintiff will fail unless he can
prove special damage (i); thus, to calla man a thief
is not actionable where that expression is accom-
panied with other words which clearly denote that
the speaker did not intend to impute felony to the
party charged (/).

Nore 3.—Where the words impute that the

plaintiff has a contagious disease of a particular
kind.—To come within the rule, the disease must

(h) Webb v. Beavan, supra; see also Tempest v. Chambers
(1815), 1 Stark. 67; Francis v. Roose (1838), 3 M. & W. 191;
1H. & H. 36.

(i) Per cur. in Simmons v. Mitchell (1880), L. R. 6 App.

Cas. at p. 162.
(k) Barnett v. Allen (1858), 3 H.& N. 376; 27 L. J. Ex. 412.

(2) See the observations of Lord Elenborough in Thompson
v. Bernard (1807), 1 Camp. at p. 48; see also Buttridge’s case
(1602), 4 Rep. 19 b.
28 THE LAW OF LIBEL AND SLANDER.

be either leprosy (m), the plague (mz), or venereal
disease (0). To say of anyone that he has small-pox
is, it would seem, not actionable (/).

Moreover, the imputation must be that the plain-
tiff was suffering from the disease at the time the
words were spoken. ‘‘Charging another with having
had a contagious disorder is not actionable, for unless
the words spoken impute a continuance of the dis-
order at the time of speaking them, the gist of the
action fails; for such a charge cannot produce the
effect which makes it the subject of an action,
namely, his being avoided by society” (q).

Nore 4.— Where the words are spoken of the
plaintiff in relation to his office, profession, or trade.
—In order to succeed without proof of special
damage, the plaintiff must prove (1) that at the
time the words were spoken he held such oftice or
carried on such profession or trade(7); and (2) that
the words tend to prejudice him in such office,
profession, or trade (s). An action will not therefore
he for every saying of a depreciatory or contemptuous
nature concerning the holder of an office, a pro-
fessional man, or a trader. The words complained
of must touch or affect him in such office, profession,

(m) Taylor v. Perkins (1607), Cro. Jac. 144; 1 Rolle’s Abr. 44.

(n) Villers v. Monsley (1769), 2 Wils. 403.

(0) Bloodworth v. Gray (1844), 7 M. & Gr. 334,

(p) James v. Rutlech (1599), 4 Rep. 17 b; Villers v. Monsley
(1769), 2 Wils. 403.

(7) Per Ashurst, J., in Carslake v. Mapledoram (1788), 2 T. R.
at p. 475; see also Taylor v. Hall (1742), 2 Str. 1189.

(vr) Bellamy v. Burch (1847), 16 M. & W. 590.

(s) Per cur.in Foulger v. Newcomb (1867), L. R. 2 Ex. at p. 330.
SLANDER IN RELATION TO OFFICE. 29

or trade (¢). Thus, it is not actionable to call a
stonemason a ringleader of the nine hours’ system,
since this is not an imputation which relates to his
capacity or conduct as a stonemason (7).

It is immaterial what is the nature of the plain-
tiffs calling, provided that it is lawful. As was
laid down by the Court in Poulger v. Newcomb (.°),
“the rule as to words spoken of a man in his
office or trade is not necessarily confined to offices
and trades, of the nature and duties of which the
Court can take judicial notice. The only limita-
tion . . . 1s that it does not apply to illegal callings.”

Further, it is obvious that words which would be
injurious to a man in one kind of office, profession,
or trade would not necessarily be so in another.
Thus, merely to impute want of ability to a justice
of the peace is not actionable without proof of
special damage, for ability is not an essential for
that office; but to accuse a barrister or doctor of
incapacity in the discharge of his professional duties
is actionable without proof of special damage.

Further illustration is afforded by the following
cases :—

PERSONS HOLDING AN OFFICE.

T’o accuse a justice of the peace of corruption (y),
or of disgraceful or dishonourable conduct, or

(t) Com. Dig. Action for Defamation, D. 27; per Tindal,

C. J., in Doyley v. Roberts (1837), 3 Bing. N.C. at p. 840.
(uw) Miller v. David (1874), L. R. 9C, P. 118; 43 L. J.C. P. 84.

(x) (1867), L. R. 2 Ex. at p. 330.

(y) Cesar v. Curseny (1593), Cro. Eliz. 305; Beamond v.
Hastings (1610), Cro. Jac. 240; Masham v. Bridyes (1632),
Cro. Car. 223.
30 THE LAW OF LIBEL AND SLANDER.

anything which, if true, would be good ground for
removal from office (z), is actionable without proof
of special damage. Similarly, to say of a clerk to
a city company (a), churchwarden (0), officer of a
court of justice(c), or constable (d), that he is
unworthy of or has cheated in his office, is actionable
without proof of special damage.

On the other hand, it is not actionable without
proof of special damage to say of a justice of the
peace that he is stupid(e), or of a member of
Parliament that he is insincere (/).

It should be noticed that ‘‘ there is a distinction
between that which is actionable in the case of
offices of honour or credit as compared with the case
of an office of profit” (g). “In offices of profit,
words that impute either defect of understanding, of
ability, or integrity, are actionable ; but in those of
credit, words that impute want only of ability are
not actionable, as of a justice of the peace: ‘ He is
a justice of the peace! He is an ass, and a beetle-
headed justice. Jtatio est, because a man cannot

(2) Harper vy. Beamond (1605), Cro. Jac. 56; How v. Prinn
(1702), 2 Salk, 694; 2 Lord Raym. 812.

(a) Wright v. Moorhouse (1694), Cro. Eliz. 358.

(2) Strode v. Holmes (1651), Styles, 338; 1 Roll. Abr. 58 ;
Jackson v. Adams (1835), 2 Bing. N. C. 402.

(c) Stanley v. Boswell (1598), 1 Roll. Abr. 55; oor v.
Foster (1606), Cro. Jac. 65.

(d) Laylor v. How (1601), Cro. Eliz. 861.

(e) Ball v. Neal (1662), 1 Lev. 52; Hollts v. Briscow et ux.
(1605), Cro. Jac. 58,

(f) Onslow vy. Horn (1771), 3 Wils. 177; 2 W. BL. 750.

(9) Per Lord Herschell, in Alexander v. Jenkins (1892), 1
Q. B. at pp. 801, 802.
SLANDER IN RELATION TO OFFICE. 31

help his want of ability, as he may his want of
honesty ; otherwise where words impute dishonesty
or corruption, as in this case, where the office is an
office of credit, and the party charged with inclina-
tions and principles which show him unfit, and that
he ought to be removed, which is a disgrace ” (h),

In the case of Alexander v. Jenkins (7), in the
Court of Appeal, Lord Herschell pointed out that
“the ground upon which the action has been said
to be maintainable” in the case of offices of
honour or credit “‘ would seem to be this, that the
language used has been such as, if true, would show
that the man ought to be deprived of his office, and
therefore involves a risk of exclusion from that
office” (k). In the course of his judgment (7) Lord
Herschell laid down the rule “that where the
imputation is an imputation not of misconduct in an
office, but of unfitness for an office, and the office
for which the person is said to be unfit is not an
office of profit, but one merely of what has been
called honour or credit, the action will not lie, unless
the conduct charged be such as would enable him to
be removed or deprived of that office.” It was
accordingly held that, without proof of special
damage, no action lay where the plaintiff had been
elected to the office of town councillor for a borough,
and the words complained of were: ‘He is never

(h) Per cur. in How v. Prinn (1702), 2 Salk. at p. 694.
Judgment for the plaintiff affirmed in the House of Lords,
7 Mod. 113; 1 Bro. P. C. 97.

(7) (1892), 1 Q. B. 797.

(k) (1892), 1 Q. B. at p. 802.
(1) Ibid.
382 THE LAW OF LIBEL AND SLANDER.

sober, and is not a fit man for the council. On
the night of the election he was so drunk that he had
to be carried home”; for the office of town coun-
cillor was not one of profit, and the charges if true
afforded no ground for dismissing the plaintiff from
his office (m).

In the case of Alerander v. Jenkins cited above,
the words complained of did not impute misconduct
in, but only unfitness for, office; and the question
whether words imputing misconduct in office would
be actionable without proof of special damage was
expressly reserved by the Court of Appeal in giving
judgment. This question has, however, been since
decided in the case of Booth v. Arnold (n), where it
was held by the Court of Appeal that an action
of slander will lhe without proof of special damage
for words imputing misconduct in an office, although
the office is not one of profit, and whether there is a
power of removal from the office for such misconduct
or not.

THe LEARNED PROFESSIONS.
THE CHURCH.

It is actionable without proof of special damage
to say anything defamatory of a clereyman who
‘“‘was beneficed or was in the actual receipt of pro-
fessional temporal emolument as a preacher, lecturer,
or the like at the time of the speaking of the words

(provided that) the charge, if true, would

(m) Alexander v. Jenkins, supra; see also Onslow v. Horne

(1771), 2 W. BI. 750.
(n) (1895), 1 Q. B. 571.
THE LEARNED PROFESSIONS. 33

have been a cause of deprivation of the benefice in
the first case, and also of degradation from orders,
and consequently of the loss of the emoluments, in
the other cases” (0). Thus it is actionable without
proof of special damage to accuse a beneficed clergy-
man of preaching false doctrine (yp), or to impute to
him immorality (q), or misappropriation of the sacra-
ment money (7); but to charge him with fraud (s),
or intemperance (tf), 1s not actionable without proof
of special damage, unless such charge affects him in
his professional character.

On the other hand, where the plaintiff does not
hold a benefice or office from which he might be
removed, an action will not lie without proof of
special damage (w).

MEDICINE.

To impute to any medical man that he is pro-
fessionally ignorant (a), unskilful (y), or negligent (2)

(0) Per Pollock, C. B., in Gallwey vy. Marshall (1853), 9 Ex.
at p. 299.

(p) Dr. Sibthorpe’s case (1628), W. Jones, 366; 1 Roll.
Abr. 76.

(q) Evans v. Gwyn (1844), 5 Q. B. 844; Gallwey v. Mar-
shall (1854), 9 Ex. 294; 23 L. J. Ex. 78; Highmore v.
Countess of Harrington (1857), 3 C. B. N.S. 142.

(r) Highmore v. Countess of Harrington, supra.

(s) Pemberton v. Colls (1847), 10 Q. B. 461; 16L.J. Q. B. 403.

(t) Cucks v. Starre (1633), Cro. Car. 285.

(u) Hartley v. Herring (1799), 8 T. R. 130; Hopwood v.
Thorn (1850), 8 C. B. 293; 19 L. J. C. P. 94.

(x) Tutty v. Alewin (1770), 11 Mod. 221 ; Collier v. Simpson
(1831), 5 C. & P. 73.

(y) Southee v. Denny (1848), 1 Ex. 196; 17 L. J. Ex. 151.

(2) Edsall v. Russell (1843), 12 L. J.C. P. 4.

L.S. D
34 THE LAW OF LIBEL AND SLANDER.

in the discharge of his professional duties, or to say
that he is a quack (a), is actionable per se.

THE LAW.

It is actionable, without proof of special damage,
to accuse a solicitor of cheating in his profession (0),
or of being grossly ignorant of law (ce), or of betraying
his client’s secrets (d¢), or of acting unprofessiov-
ally (e); but not of insolvency (f) or of cheating
persons who are not his clients on occasions in no
way connected with his business (q).

So to say of a barrister that he knows no

(a) Allen v. Eaton (1630), 1 Roll. Abr. 54; Goddart v.
Haselfoot (1637), 1 Roll. Abr. 54.

(b) Jenkins v. Smith (1621), Cro. Jac. 586; Anon. (1638),
Cro. Jac. 516.

(c) Baker v. Morfue (1668), Sid. 327; 2 Keb. 202; Day v.
Buller (1770), 3 Wils. 59.

(d) Martyn v. Burlings (1597), Cro. Eliz. 589.

(e) Byrchley’s case (1585), 4 Rep. 16; Phillips v. Jansen
(1798), 2 Esp. 624.

(f) Per Wright, J., in Dauncey v. Holloway, tried at the
Gloucester Spring Assizes, 1901, reported in Law Times
Journal, March 9, 1901, vol. cx. p. 421; affirmed 17 Times
L. R. 793 (C. A.). The ground of the decision apparently was
that, having regard to the case of Re a Soltcitor (1899), 80 L. T.
720, insolvency would not of itself justify the refusal by the
Incorporated Law Society of a solicitor’s certificate, though it
might justify an inquiry into the solicitor’s affairs and conduct,
and upon the result of that inquiry the Incorporated Law
Society might act.

(g) Doyley v. Roberts (1837), 3 Bing. N.C. 835. It must
of course be remembered that if the words complained of
amount to an accusation of a criminal offence they will be
actionable per se apart altogether from the question whether
or not they were spoken of the plaintiff in the way of his
profession. See p. 26, supra.
OTHER PROFESSIONS. 35

law (4), or is not fit to be a lawyer (2), or gives bad
advice (j), or has deceived his client and revealed
the secrets of his cause (/), is actionable per se Cis

OTHER PROFESSIONS.
Sunilarly, to impute incapacity to an architect (/),
a land agent or surveyor (m), journalist, school-
master (7), or veterinary surgeon (0), is actionable
per se.

MERCHANTS AND T'RADESMEN.

To accuse a merchant or tradesman of fraud or
dishonesty in the way of his business ()»)—e.g. to
say that he adulterates his goods (7), or uses false
weights or measures (7)—is actionable without
proof of special damage. “Such would be the
case with any words which imputed to a man
fraudulent conduct in the business whereby he
gained his bread’ (s).

(h) Bankes v. Allen (1616), 1 Roll. Abr. 54.

(t) Peard v. Jones (1635), Cro. Car. 382.

(j) King v. Lake (1672), 2 Ventr. 28.

(k) Snag v. Gray (1571), 1 Roll. Abr. 57.

(1) Bottertll and another v. Whytehead (1879), 41 L. T. 588.

(m) London v. Eastgate (1619), 2 Rolle’s Rep. 72.

(n) Hume v. Marshall (1878), 42 J. P. 136.

(0) Hirst v. Goodwin (1862), 3 F. & F. 257.

(p) Crawfoot v. Dale (1675), 1 Vent. 263; 3 Salk. 327;
Thomas v. Jackson (1825), 3 Bing. 104.

(q) Jesson v. Hayes (1636), 1 Roll. Abr. 63; per Coltman, J.,
in Ingram v. Lawson (1840), 6 Bing. N. C. at p. 216.

(r) Griffiths v. Lewis (1846), 7 Q. B. 61; 15 L. J. Q. B. 249.

(s) Per Best, C. J., in Thomas v. Jackson (1825), 3 Bing. at
p. 105.

D 2
36 THE LAW OF LIBEL AND SLANDER.

Also “words imputing insolvency to a person
in the way of his trade are actionable, without
proof of special damage” (t). So, too, are words
which impute that a merchant or tradesman is in
financial difficulty (7). In short, ‘““whatever hurts a
man in his business is actionable” (x).

Where, however, the words complained of do not
amount to a charge against the plaintiff personally,
but are merely an attack on the goods he sells, no
action will lie without proof of special damage (y).

CLERKS, SERVANTS, ETC.

It is actionable, without proof of special damage,
to impute to a clerk or servant that he cheats or
swindles his employers (z), or that he is unfit for
lus place (a), or to accuse him of conduct which is
inconsistent with a proper discharge of his duties ;
eg., to say, of a gamekeeper, that he trapped
foxes (0).

(t) Per Lord Denman, C. J., in Robinson v. Marchant (1845),
15 L. J. Q. B. at p. 136.

(u) Barnes v. Holloway (1799), 8 T. R. 150; Whettington v.
Gladwin (1825), 5 B. & C. 180; 2 C. & P. 146; Brown v.
Smuth (1853), 13 C. B. 596; 22 L. J. C. P. 151.

(x) Per Bayley, J., in Whittington v. Gladwin (1825), 2
C. & P. at p. 148.

(y) Harman vy. Delany (1731), 2 Str. 898; Fitz. 121; and
see Article 8, p. 44, infra; Evans v. Harlow (1844), 5 Q. B.
624; 13 L. J. Q. B. 120.

(z) Seaman v. Bigg (1638), Cro. Car. 480; Reignald’s case
(1640), Cro. Car. 563.

(a) Rumsey v. Webb (1842), 11 L. J.C P. 129.

(6) Foulger v. Newcomb (1867), L. R. 2 Ex. 327; 36 L. J.
Ex. 169.
INTENTION IMMATERIAL, 37

Nore 5.—IVhere the words impute unchastity or
adultery to any woman or girl.

Prior to the passing of the Slander of Women
Act, 1891 (54 & 55 Vict. c. 51) (¢), no action lay,
without proof of special damage, for words im-
puting unchastity or adultery to a woman (d).

This Act, however, introduced the much-needed
reform, and enabled a woman or girl to maintain
such an action without proof of special damage.
It should be noticed that the Act specially pro-
vides that ‘the plaintiff shall not recover more
costs than damages, unless the judge shall certify
that there was reasonable ground for bringing the
action” (¢),

Art. 6.—Intention immaterial.

Except in cases of qualified privilege (f), the
intention with which the words complained of were
published ts immaterial (g), and the defendant will
not be excused on the ground that he published them

(c) Set out on p. 278, infra.

(d) Wilby v. Elston (1849), 18 L. J. C. P. 320. Theoretically,
there was one exception to this, where the action was brought
for words spoken in the City of London or Bristol, or the
borough of Southwark, but there is no report of any such action
within the last hundred years, and the custom upon the exist-
ence and proof of which such action depended has long been
obsolete, see 1 Str. 471, 555; 1 Vin. Abr. 396.

(e) Slander of Women Act, 1891 (54 & 55 Vict. c. 51), 8. 1.

(f) See pp. 99—100, infra.

(9) Cook v. Ward (1830), 6 Bing. 409; 4 M. & P. 99.
38 THE LAW OF LIBEL AND SLANDER.

without negligence (h), or by accident or mistake (7),
or tn jest (7), or with an honest belief in their

truth (k).

Notre.—Thus the defendant was held lable in
Cook v. Ward (2), where the plaintiff told some
friends an absurd story about himself, and the
defendant published it in his newspaper, simply
for the purpose of amusing his readers, and be-
hieving that the plaintiff would not object. And
in Blake v. Stevens and others (m), the plaintiff
obtained 100/. damages against the defendants for
the publication of a libellous statement, which had
been inserted by mistake in a law book of which
they were the publishers.

Similarly it is no defence that the defendant
uttered the words complained of in jest (2), “for
jests of this kind are not to be endured, and the
injury to the reputation of the party grieved is no
way lessened by the merriment of him who makes
so light of it” (0).

(hk) Per Romer, L. J., in Vezetelly v. Mudie’s Select Library,
Ld. (1900), 2 Q. B. at 179.

() Blake v. Stevens and others (1864), 1] L. T. 543; 4 F.

& F. 232; Shepheard v. Whitaker (1875), L. R. 10 C. P. 502 ;
32 L. T. 402.

(j) 9 Rep. 59; and Donoghue v. Hayes (1831), Hayes, Iv.
Ex. Rep. 265.

(k) Blackburn v. Blackburn (1827), 4 Bing. 395; 3 C. & P.
146; 1M. & P. 33, 63; Huntley v. Ward (1859), 6 C. B.N.S.
514; 1 F. & F, 552.

(7) (1830), 6 Bing. 409; 4M. & P. 99.

(m) (1864), 11 L. T. 543; 4F. & F. 239,

(n) 9 Rep. 59; and Donoghue v. Hayes, supra.

(0) Hawkins, Pleas of the Crown, 8th ed. Vol. I. 546.
SLANDER OF TITLE. 39

Art. 7.—Slander of title.

Slander of title is a false malicious statement in
writing, printing, or by word of mouth injurious to
any person’s title to property and causing special
damage to such person. For the publication of such
statement an action will Le (:).

Nott 1.—Strictly speaking, the subject-matter
of this and the succeeding Article has no place in
a work on libel and slander. There is no wrong
to the reputation—no defamation—and the action
is not for libel or slander, but “an action on the
case for special damage sustained by reason of the
speaking or publication of the slander of the
plaintiff’s title” (q). Moreover, the rules of law
which govern this so-called ‘slander of title” are
wholly different to those relating to libel and
slander. Nevertheless, for the sake of convenience,
it seems desirable to deal shortly with the subject.

In order to succeed in an action of this kind, the
plaintiff must prove three things :—

(1) That the statement is false.

(2) That it is malicious.

(3) That it has caused him special damage.

“Unless he shows falsehood and malice and an
injury to himself, the plaintiff shows no case to
go to the jury” (7). ‘In order to maintain an
action of this kind, there must be malice and

(p) As to what amounts to publication, see Article 3, p. 13,
supra.

(q) Per Tindal, C. J., in Malachy v. Soper (1836), 3 Bing.
N.C. at p. 384.
(r) Per Maule, J., in Pater v. Baker (1847), 3 C. B. at p. 831.
40 THE LAW OF LIBEL AND SLANDER.

falsehood, aud special damage must ensue there-
from ” (s).

Nore 2.—J/alicious. The malice here spoken’
of is want of good faith, or any corrupt or wrong
motive (¢). ‘Acting maliciously means acting
from a bad motive” (w). Thus no action lies if
the defendant made the representation bond fide
for the purpose of protecting the actual or
imaginary rights of himself (x), or his connections
or relatives (y); similarly where the defendant has
bond fide made the representation in his capacity of
agent or solicitor for the purpose of protecting the
rights of his principal or client (z).

Even though there was apparently no reason-
able and probable cause for the statement com-
plained of, it does not always follow that the
defendant was acting in bad faith (a). “The
question here is not what judgment a sensible
and reasonable man would have formed, but

(s) Per Parke, B., in Brook v. Rawl (1849), 19 L. J. Ex. at
. 11d.
(t) See Article 38, p. 152, cnfra, and Halsey v. Brotherhood
(1881), 19 Ch. D. 386; 51 L. J. Ch. 233.

(wu) Per Parke, B., in Brook v. Rawl (1849), 19 L. J. Ex. at
p. 115.

(2) Smith v. Spooner (1810), 3 Taunt. 246 ; Carr v. Duckett
(1860), 5 H. & N. 783; 29 L. J. Ex. 468.

(y) Patt v. Donovan (1813), 1 M. &S. 639 ; Gutsole v. Mathers
(1836), 1 M. & W. 495; 5 Dowl. 69.

(z) Hargrave v. Le Breton (1769), 4 Burr. 2422; Steward v.
Young (1870), L. R. 5 C. P. 122; 39 L. J. C. P. 85 ; Baker and
others v. Piper (1886), 2 Times L. R. 733.

(a) Pitt v. Donovan and Steward v. Young, supra.
SLANDER OF TITLE. 41

whether the defendant did or did not entertain
the opinion he communicated” (0). “The dona
fides of the communication, and not whether a
man of rational understanding would have done
so and so, is the question to be canvassed. A
man of intemperate passions, or of weak under-
standing, or a man acting under an erroneous
impression, may be carried further than a man of
more mature judgment; but still he would not be
liable to an action of slander of this sort” (c).

The law will, however, presume malice where
the defendant is himself in no way concerned or
interested in the property (d).

Note 3.—In writing, printing, or by word of
mouth. “It makes no difference whether the
falsehood is oral or in writing” (e). “The cir-
cumstance of the slander of title being conveyed
in a letter or other publication appears to us to
make no other difference than that it is more widely
and permanently disseminated, and the damages
in consequence more likely to be serious, than
where the slander of title is by words only; but
that it makes no difference whatever in the legal
ground of action ” (/).

(2) Per Bailey, J., in Pitt v. Donovan (1813), 1 M.&S. at p. 649.

(c) Per Lord Ellenborough in Pitt v. Donovan (1813), 1
M. & 8. at p. 648.

(d) Mildmay et ux. v. Standish (1584), 1 Rep. 177 b; Cro.
Eliz. 34; Pennyman v. Rabanks (1595), Cro. Eliz. 427; 1 Vin.
Abr. 551.

(e) Per cur. in Ratcliffe v. Evans (1892), 2 Q. B. at p. 532.

(f) Per Tindal, C. J., in Malachy v. Soper (1836), 3 Bing.

N. C. at p. 386.
42 THE LAW OF LIBEL AND SLANDER.

Note 4.—Injurious to any person's title to pro-
perty. It is immaterial what is the nature of the
property in question, or what is the estate or
interest which is attacked. The property may
be real or personal. The estate or interest therein
may be vested or contingent, in possession or
remainder (g).

Note 5.—-And causing special damage to such.
person—v.e., actual temporal loss. “ The necessity
of alleging and proving actual temporal loss with
certainty and precision in all cases of this sort has
been insisted on for centuries” (/).

Such special damage is usually proved by show-
ing that in consequence of the words complained
of the plaintiff had been unable to sell (2) or let
the property in question.

As the Court observed in Law v. Harwood (k),
“the action is not maintainable without showing
special prejudice... . Slandering of one’s title
does not import in itself loss, without showing
particularly the cause of loss by reason of the
speaking the words, as that he could not sell or
let the said lands.”

It has been held enough to prove that in con-
sequence of the words complained of the property
was wrongfully seized by a third party (), or that

 

(g) Vaughan v. Ellis (1609), Cro. Jac. 213.

(A) Per cur. in Ratcliffe v. Zvans (1892), 2 Q. B. at p. 532.

(¢) Tasburgh v. Day (1618), Cro. Jac. 484 ; Law v. Harwood
(1628), Sir W. Jones, 196; Cro. Car. 140.

(k) (1628), Cro. Car. at p. 141.

(1) Newman v. Zachury (1647), Aleyn, 3.
SLANDER OF TITLE. 43

it had depreciated in value (m), or been rendered
unsaleable (x), or that an intending purchaser
refused to sign (0) or complete (p) a contract
for the purchase of it, or that the plaintiff was
compelled to incur costs in defending his title (q).

There is, however, no special damage where
there is only a probability that intending pur-
chasers will be deterred from buying (r), or the
plaintiff has no estate or interest in the property,
but only an expectancy (s), for “the risk of
temporal loss is not the same as temporal loss ” (t).

And the plaintiff must prove that the special
damage is caused by the words complained of.
Thus, “if a person makes a statement which is
partly bond fide and partly mala fide, and it
occasions injury to another, that other is not
entitled to recover damages unless he can trace
the injury to that part of the statement which is
made mald fide” (u).

(m) Milman v. Pratt (1824), 2 B. & C. 486; Brook v. Rawl
(1849), 4 Ex. 521; 19 L. J. Ex. 114.

(n) Malachy v. Soper and another (1836), 3 Bing. N. C. 371;
Ravenhill v. Upcott (1869), 33 J. P. 299.

(0) Bliss v. Stafford (1588), Owen, 37.

(p) Vaughan v. Ellis (1609), Cro. Jac. 213.

(q) Elborow v. Allen (1623), Cro. Jac. 642.

(r) Manning v. Avery (1674), 3 Keb. 153; 1 Vin. Abr.
553.

(s) Welson v. Staff (1618), Cro. Jac. 422; Humphreys v.
Stanfield (1638), Cro. Car. 469.

(t) Per Bowen, J., in Chamberlain v. Boyd (1883), 11
Q. B. D. at p. 416.

(w) Per Parke, B., in Brook v. Rawl (1849), 19 L. J. Ex. at

p- 115.
44 THE LAW OF LIBEL AND SLANDER.

Arr. 8.—Slander of goods manufactured or sold
by another.

Slander of goods ts a false statement tn writing,
printing, or by word of mouth, made maliciously, or
without lawful occasion, disparaging the goods of
any person, and causing such person special
damage (x). For the publication of such statement
an action will le (y).

Note 1.—As already pointed out, the subject
matter of this and the preceding Article ought not
properly to be dealt with in a work on libel and
slander. It is not part of the law of defamation,
and is governed by wholly different rules. Never-
theless, convenience appears to demand some notice
of the subject. “ Such an action is not one of libel
or of slander, but an action on the case for damage
wilfully and intentionally done without just occasion
or excuse, analogous to an action for slander of title.
To support it, actual damage must be shown, for it
is an action which only lies in respect of such
damage as has actually occurred ” (z).

To constitute this wrong it is not necessary
that the matter complained of should be injurious
to the plaintiff’s reputation, nor that the defendant

(z) Per Bramwell, B., in Western Counties Manure Co. v.
Lawes Chemical Manure Co. (1874), L. R. 9 Ex. 218, 222;
43 L. J. Ex. 171; see also Halsey v. Brotherhood (1881), 19
Ch. D. 386; 51 L. J. Ch. 233; Ratcliffe v. Evans (1892), 2
Q. B. at p. 524; White v. Mellin (1895), App. Cas. 154.

(y) As to what constitutes publication, see Art. 3, pp. 13—19,
supra.

(2) Per cur. in Ratcliffe v. Evans (1892), 2 Q. B. at p. 527.
SLANDER OF GOODS. 45

should know at the time he made the statement
that it was false (cr).

In order to succeed, the plaintiff must prove
(1) that the statement is false; (2) that it was
made maliciously or without lawful occasion; and
(3) that it has caused him special damage.

Note 2.—A false statement. It is by no means
clear that the onus of proving that the words are
false lies upon the plaintiff. The case usually
cited in support of this proposition is Burnett v.
Tak (b), where it was held that in order to obtain
an interim injunction to restrain the publication
of statements disparaging the plaintifi’s goods,
the plaintiff must prove that the words are false.
This decision is, however, not conclusive. For a
motion for an interim injunction is a very special
and technical application (c), and it by no means
follows that because the plaintiff on such an appli-
cation is required to prove that the words are
false, he would therefore be required to do so at
the trial of an action for publishing disparaging
statements of this kind.

In the few reported cases on this branch of the
law, it appears to have been proved by the
plaintiff, or admitted by the defendant, that
the words complained of were false. But there
is no decision either way.

In an ordinary action for libel the falsity of the

(a) Western Counties Manure Co. v. Lawes Chemical Manure

Co., supra.
(b) (1882), 45 L. T. 743.
(c) See Bonnard v. Perryman (1891), 2 Ch. 269 (C. A.).
46 THE LAW OF LIBEL AND SLANDER.

charge is presumed in the plaintiff's favour (d),
and there seems to be no satisfactory reason why
it should not also be presumed in actions of this
kind,

Nots 3.—Made maliciously or without lawful
occasion. It is not altogether clear what degree
of malice a plaintiff is expected to prove in such
an action as this. The old cases were precise
that “malice in fact” must be proved. Thus,
Wilde, C. J., said in Pater v. Baker (e), “It seems
to have been admitted, and indeed it could not.
well have been denied, that proof of actual malice
was requisite to sustain the action.” Even if this
were the law now, still it must be remembered
that “malice in fact is not confined to personal
spite and ill-will, but includes every unjustifiable
intention to inflict injury on the person defamed,
or in the words of Brett, L. J., every wrong feeling
in a man’s mind” (f).

But in later cases it has been laid down that it
is not necessary for the plaintiff in an action of
this kind to prove actual malice; it is sufficient if the
statement be made “without lawful occasion” (g).

(d) See the observations of Field, J., and Huddleston, B., in
Belt v. Lawes (1882), 51 L. J. Q. B. at p. 361.

(e) (1847), 3 C. B. at p. 831.

(f) Per Lindley, L. J., in Stuart v. Bell (1891), 2 Q. B. at
p. 351, quoting with approval the definition of malice given
by Brett, L. J., in Clark v. Molyneux (1877), 3 Q. B. D. at
p. 247.

(g) Per Lord Bramwell, in Western Counties Manure Co. vy.
Lawes Chemical Manure Co. (1874), L. R. 9 Ex. at p. 222.
SLANDER OF GOODS. 47

In Halsey v. Brotherhood (h), Jessel, M. R., in
the Court of first instance, said, “The plaintiff
must make out, if he wants to maintain an action
for damages, that the defendant has not been
acting bond fide.” On the case coming before the
Court of Appeal (7), Lord Coleridge held that
“there must be also the element of mala fides and
a distinct intention to injure the plaintiff, apart
from the honest defence of the defendant’s own
property.” But Baggallay, L. J., in the same
case () appears to regard it as sufficient if the
statements “were made without what is ordinarily
expressed as reasonable and probable cause ;”
whilst Lindley, L. J. (/), again, required that the
statements should be made “ dishonestly.”

In Leatcliffe v. Evans (m), the Court of Appeal,
consisting of Lord Esher, M. R., and Bowen and
Fry, L. JJ., in a considered judgment, describe
such an action as “an action on the case for
damage wilfully and intentionally done without
Just occasion or excuse, analogous to an action for
slander of title,” and the most recent case, JI"hite v.
Mellin (n), does not alter the law on the subject.

It is noticeable, however, that in delivering
judgment in the House of Lords in the last-
mentioned case, Lord Herschell, L. C., said (0),

(4) (1880), 15 Ch. D. at p. 523,
(¢) (1881), 19 Ch. D. at p. 389.
() Ibid. at pp. 389, 390.

(1) Ibid. at p. 392.

(m) (1892), 2 Q. B. at p. 527,

(n) (1895), App. Cas. 154.
(0) Ibid. at pp. 158, 160.
48 THE LAW OF LIBEL AND SLANDER.

“an the view of Lindley, L. J. (in the Court of
Appeal), it was necessary, in order to the main-
tenance of the action, that three things should
be proved: that the defendant had disparaged
the plaintiffs goods; that such disparagement
was false; and that damage had resulted or was
likely to result. . . . Lopes, L. J., adds the
word maliciously, that ‘it is actionable to publish
maliciously without lawful occasion a false state-
ment disparaging the goods of another person.’
By that it may be intended to indicate that
the object of the publication must be to injure
another person, and that the advertisement is
not published bond jide merely to sell the adver-
tiser’s own goods, or, at all events, that he
published it with a knowledge of its falsity.
One or other of those elements, it seems to me,
must be intended by the addition of the word
maliciously.”

It was not necessary for the decision of the case
for the Court to decide which of these views was
correct. Lord Herschell, L. C., and Lords Mac-
naghten and Morris, did not discuss the question.
Lords Watson and Shand, however, both adopted
the view of the law taken by Lindley, L. J., in the
Court of Appeal.

In determining whether a statement is made
without lawful occasion, it must be remembered
that trade competition is in itself no eround of
action, no matter what damage it causes (p). A

(p) Mogul Steamship Co. v. McGregor (1892), App. Cas.
25; 61 L. J. Q. B. 295.
SLANDER OF GOODS. 49

trader may, if he likes, puff his own goods, and
advertise that they are as good or better than
any others in the trade; and if he does so no
action will he against him (g). Otherwise, as
Lord Herschell, L. C., pointed out in White v.
Jfelin (rv), “the Courts would always be occupied
in trying the merits of rival productions, and be
turned into a machinery for advertising rival pro-
ductions by pronouncing judicial decisions on their
merits.” In that case (s) the defendant sold the
plaintiff's “ Infants’ Food,” affixing to the plaintiff's
wrappers a label containing the following words:
“The public are recommended to try Dr. Vance’s
prepared food for infants and invalids, it being
far more nutritious and healthful than any other
preparation yet offered.” At the trial of the
action, Romer, J., held that the label was merely
the puff of a rival trader, and dismissed the action
with costs, and his decision was subsequently
upheld by the House of Lords.

A further illustration of the same principle is
afforded by the case of Hubbock d: Sons, Ltd. v.
Wilkinson, Heywood &: Clark, Ltd. (t), where it
was held by the Court of Appeal that a statement
by a trader that his own goods are superior to
those of another trader, even if untrue and the

(q) Harman v. Delany (1731), 2 Str. 898; 1 Barnard. 289 ;

Fitz. 121; Hvans v. Harlow (1844), 5 Q. B. 624; Young v.
Macrae (1862), 3 B. & 8S. 264; Hubbock v. Welkinson, de.,
Ltd. (1899), 1 Q. B. 86 (C. A.).

(r) (1895), App. Cas. at p. 165.

(s) Lbid. p. 154.

(t) (1899), 1 Q. B. 86.

L.S. E
50 THE LAW OF LIBEL AND SLANDER.

cause of loss to the other trader, gives no cause of
action.

If, however, there is any imputation of fraud or
dishonesty in the plaintiff’s conduct of his trade
or business, then an ordinary action for defama-
tion will lie. For such an imputation is not a
mere statement disparaging the plaintiff's goods ;
it is an attack upon the plaintiff’s character. And
it would amount to a libel upon the plaintiff if
in writing, and to a slander upon him in the
way of his trade or business if spoken, so that in
either case it would be actionable without proof of
special damage (w).

Nore 4.-—And causing such person special
damage. As to what constitutes “ special damage,”
see pp. 20—25, supra; and note that under
certain circumstances a general loss of business, as
distinct from loss of specific customers, is admis-
sible in evidence, and is sufficient special damage
to maintain an action of this kind.

What those circumstances are has been explained
by the Court of Appeal (x), as follows —“In an
action for falsehood producing damage to a man’s
trade, which im its very nature is intended or
reasonably likely to produce, and which in
the ordinary course of things does produce, a
general loss of business, as distinct from the
loss of this or that kuown customer, evidence of
such general decline of business is admissible.

(u) See pp. 7, 8, 35, supra.
(x) In Rateliffe v. Bvans (1892), 2 Q. B. at pp. 533, 534.
JOINDER OF PLAINTIFFS. dl

In Hargrave v. Le Breton (y), it was a falsehood
openly promulgated at an auction. In the case
hefore us to-day, it is a falsehood openly dissemi-
nated through the press, probably read and pos-
sibly acted on by persons of whom the plaintiff
never heard. To refuse, with reference to such a
subject-matter, to admit such general evidence,
would be to misunderstand and warp the meaning
of old expressions; to depart from, and not to
follow, old rules; and, in addition to all this,
would involve an absolute denial of justice and of
redress for the very mischief which was intended
to be committed.”

Art. 9.—Joinder of plaintiffs.

All persons may be joined in one action as plain-
tiffs, in whom any right to relief in respect of or
arising out of the same transaction or serves of trans-
actions ts alleged to exist, whether jointly, severally,
or in the alternative, where if such persons brought
separate actions any common questions of law or fact
would arise; provided that, if upon the application
of any defendant it shall appear that such joinder
may embarrass or delay the trial of the action, the
Court or a judge may order separate trials, or make
such other order as may be expedient (2).

Novr.—The above Article follows verbatim the
words of the first paragraph of Ord. XVI., Rule 1,
(y) (1769), 4 Burr, 2422.

(z) Rules of the Supreme Court, Ord. XVI, rv. 1.
E 2
52 THE LAW OF LIBEL AND SLANDER,

which came into operation on Oclober 26, 1896,
and which adopts the principle sugeested by Lord
fisher, M.R. in Saaerthiraite vy. Hannay (a), and
the suegestion of Lord) Russell, C. J., in Carter
v. Righy (by; “and judement may be given for such
ene or more of the plaints as may be found to
be entitled to relief, for sueh relief as he or they
may be entitled to, without any amendment. But
the defendant, though unsuecessful, shall be en-
titled to his costs occasioned by so joining any
person Who shall not be found entitled to rele
unless the Court or a judge in disposing of the
costs shall otherwise direct.” (e),

Htiomust be borne in mind that Ord. XVE, Rule,
from which the above Article is taken, deals
merely with the joinder of partes to an action,
and has no reference to the joinder of causes of
action (dd), This rule has been commented upon
and explamed by the Court of Appeal tn Stroud v.

“

Laeson (ec), and “according to the interpretation
> Pat

put upon the rule by the Court of Appeal, and
indeed it secs plain upon the face of the rule itself,
thereare two conditions to be sabtistied: first, that
the night to relich alleged to exist in each plaintiff

should be in respect of or arise out of the same

(4) 1893), 2. Bat pp. 442, 424,

(4) (1896), 2.Q. Be at p. PTR,

(¢) Rules of the Supreme Court, Ord. XVI, re 1.

(dl) Smurthwarte y. Hannay ARIA), App. Cas, 494. See also
Bennetts v Mefliyarth ds Co, (V896), 2 QQ. B. 464 (CL AL),
The jJoinder of causes of action is dealt with by Ord. XVITL,
wud forms the subject. of Article 11, ¢afra, p. 56,

(vr) (TROK), 2. BB. 44, 51,
JOINDER OF PLAINTIFFS. 53

transaction ; and secondly, that there should be a
common question of fact or law” (f).

In Booth v. Briscoe (g), decided under the old
rule, which has been replaced by the rule cited in
the above Article, eight persons who were trustees
of certain charitics brought an action for a libel
commenting on the management of the charities
by “the trustees,” and it was held that the persons
in question were rightly joined as plaintiffs. This
case, 1t is submitted, would be followed at the
present day.

Where, however, two or more persons have
separate and distinct causes of action against
another person, they cannot join as co-plaintiffs,
and this would appear to be so even though the
causes of action could be conveniently tried
together. Thus, in Sandes v. Wildsmith (h),
where a writ was issued by two persons claiming
damages for slander, and the Statement of Claim
alleged separate and distinct slanders, some of
which were alleged to have been speken of one
plaintiff only, and some of the other plaintiff only,
it was held that such persons could not be properly
joined as plaintiffs.

(f) Per Stirling, J., in Universities of Oxford and Cambridge
v. George Gill & Sons (1899), 1 Ch. at p. 60; see also Drineghier
vy. Wood (1899), 1 Ch. 393; Ellis v. Duke of Bedjord (1899),
1 Ch. 494 (C. A.); Walters v. Green (1899), 2 Ch. 696.

(y) (1877), 2 Q. B. D. 496.
(h) (1893), 1 Q. B. 771.
54 THE LAW OF LIBEL AND SLANDER.

Arr. 10.—Joinder of defendants.

All persons may be joined as defendants against
whom the right to any relief 7s alleged to exist, whether
jointly, severally, or in the alternative. And
Judgment may be given against such one or more
of the defendants as may be found to be lable
according to their respective liabilities without any
amendment (7).

Nove.—tThe plaintiff is not, however, compelled
to join as defendants in the same action every
person who is concerned in, and liable for, the
publication complained of. But if he brings
separate actions against such persons, two or more
of them may apply to have the actions consolidated,
and at the trial of such consolidated action the
damages and costs shall be separately apportioned
as against the different defendants (i).

The above Article follows verbatim the words
of Ord. XVI., Rule 4. This order, as has been
already pointed out (/), deals merely with the
joinder of partzes to an action, and has no reference
to the joinder of causes of action (m). The joinder
of causes of action is dealt with by Ord. XVIIL.,
and forms the subject of Art. 11, znfra, p. 56.

The meaning of Ord. XVI, Rule 4, was much
<cuscussed in the House of Lords in Smurthwazte

(z) Rules of the Supreme Court, 1883, Ord. XVI, rv. 4.

(4) Sect. 5 of the Law of Libel Amendment Act, 1888 3 and
see Article 47, p. 173, infra.

(/) See p. 52, supra.

(m) Smurthwaite v. Hannay (1894), App. Cas. 494.
JOINDER OF DEFENDANTS. 55

v. Hannay (n), and it may now be taken as settled
that the rule does not mean that any number of
persons charged on distinct grounds of liability can
be joined as defendants in the same action. What
it means is that only those persons can be joined as
defendants in one action who are persons against
whom not any right to relief, but the right to any
relief, is alleged to exist (0).

Thus, where two firms connected in business write
to each other letters containing libels of the same
class concerning the plaintiff, and each firm circu-
lates the letter of the other, they may be joined as
defendants in one action (p). On the other hand,
where two persons independently publish separate
libels on the plaintiff, such persons cannot be
joined as defendants in an action for damages for
libel (g), for “you cannot bring plaintiffs—and by
parity of reasoning you cannot bring defendants
—before the Court, where the causes of action
vested in the different plaintitfis or the causes of

(n) (1894), App. Cas. 494.

(0) See particularly the judgments of Bowen, L. J., in
Hannay v. Smurthwaite (1893), 2 Q. B. at pp. 424, 425; and
of Lord Russell in Smurthwaite v. Hannay (1894), App. Cas.
at pp. 504, 505. Note also that in the subsequent case of
Sadler v. G. W. R. Co. (1895), 2 Q. B. at p. 693, A. L. Smith,
L. J., said, * As I read Smurthwaite v. Hannay, the question of
the joinder of two plaintiffs applies equally to joinder of two
defendants.”

(p) Desilla v. Schunks & Co. (1880), W. N. 96.

(q) Sadler v. G. W. R. Co. (1896), App. Cas. 450;
Gower v. Couldridge and others (1898), 1 Q. B. 348;
Thompson and another v. London County Council (1899),

1 Q. B. 840.
56 THE LAW OF LIBEL AND SLANDER.

action that exist against the different defendants are
separate ” (7).

It is not necessary that every defendant shall be
interested as to all the relief prayed for, or as to
every cause of action included in any proceeding
against him; but the Court or a judge may make
such order as may appear just to prevent any
defendant from being embarrassed or put te expense,
by being required to attend any proceedings in
which he may have no interest (s).

Arr. 11.—Joinder of causes of action.

The plaintiff may unite tn the same action for libel
or slander several causes of action; but if it appear to
the Court or a judge that any such causes of action
cannot be conveniently tried or disposed of together,
the Cowt or Judge may order separate trials of any
of such causes of action to be had, or may make such
other order as may be necessary or expedient for the
separate disposal thereof (t).

Claims by plaintifis jointly may be joined awith
clarins by them or any of them separately agatnst the
same defendant (2).

Nore.—tThis Article is taken from Ord. XVIIL.,
Rules 1 and 6. It has been decided by the House

(r) Per Rigby, L. J., in Sadler v. G. W. R. Co. (1895),
2 Q. B. at p. 696. See also the observations of Lord Davey
in the same case in the House of Lords (Law Reports (1896),
App. Cas. at p. 456).

(s) Rules of the Supreme Court, 1883, Ord. XVI, r. 5.

(¢) Rules of the Supreme Court, 1883, Ord. XVIIL, r. 1.
(u) Lbid., v. 6.
JOINDER OF CAUSES OF ACTION. o7

of Lords in Smurthwaite v. Hannay (x), that this
order relates only to joinder of causes of wetion.
The order assumes that the action has been rightly
constituted under Ord. XVI., Rule 1; it only
provides, where parties have been rightly joined
under that rule, what may be done by them as to
joining separate causes of action.

The rules of practice on this subject are somewhat
obscure ; but it is submitted that, subject to the
power of the Court to intervene when considerations
of convenience justify it, the following rules as to
jomder of causes of action apply :—

(1) Where there is identity of parties, any
number of causes of action may be joined ;

(2) Where there is identity of the subject-matter,
ic., Where every cause of action included in the
action arises out of the same set of facts, any
number of causes of action may be joined, even
though there be not identity of parties (y).

For instance, a statement may be a libel both on
a firm and on an individual partner of a firm, as,
e.g., Where it is alleged that oue of the partners in
the firm is insolvent. In such a case the partner
and the firm have separate causes of action (z) which
may be properly joined. And, generally speaking,
it is wise, in an action by a firm for libel or slander,
for both the firm and the individual partners to sue

(a) (1894), App. Cas. 494.

(y) Smurthwaite v. Hannay (1894), App. Cas. 4945; and see
Art. 9, supra, p. 51.

(2) Foster and others v. Lawson (1826), 3 Bing. 452;
Harrison v. Bevington (1838), 8 C. & P. 708.
om THE LAW OF LIBEL AND SLANDER.

where possi le: for, if the firma alone sues, it cannot
Tecover aby special dircag: sustained by one of the

bettnert In worsen tence of the bel (ay; mor, if ome
o- the tarmers sae alone, can be In such an action
Teeover alv stevia damage sustained by the firm in

ar: net identical, ei that they are substan-
ee the same. a firm, and on: or more of the
ot, Way 206 im the same- action for
hel or a In such ercumstance: any
ge sastainel by one of the plaints
wil be separately assessed and recovereL

Bat weer taere are separate claims ov -litferent
plaincits in respeet of diferent libels or slanders,

2 Galins cannot be joinel im one aetion 14).

se Ce Bre dares:

  

Azt. 12—Security for costs.

A plaistiz ordinarily resident ont of the jurtsdic-
fon may 64 ordered to aire seeurtty for eosts 4).
unless he vsiles in Scotland sr Ireland ey, or is
abroad tn an Tria! capacity on the publie serviced 7.

"has property within the jurisdiction which would

(a) Hrgthore av.i amcther v. Lresom 1227). 3C & P- ioe; Tez
Pim 7. Malslmaoe (1344). 1 HL 637-133 TOS 61

(Ay Solomons awd ctiee vo Moder (1416), 1 Stark 191:
Ehime 0. Maria (2s451, as Bis; 15 LJ. Q B. 135.

tip Samed: ve Wildemith | 133 - LQ B. Wk

(Dy) Beoattis af Casta Rien wv. Erlanger 1355), 3 Ca D562

(2. Be Howe Machine Co. (1889), 41 Ch D. 11S

(FP) lsrsiroce v. Somes (1752, 1 Dick 154

 
JOINT PUBLICATION. 39

be available for costs(g), or unless there is a co-
plaintif? resident in England (h). Further, if a
Plainti# has no visible means of paying the defen-
dant's costs, an order will be made remitting the action
to the County Court, unless the plaintiff gives security
for costs or satisfies the Court that he has a cause of
action more jit to be prosecuted in the High Court
than in the County Court (0).

Note.—The fact that the plaintiff, though
ordinarily resident abroad, is temporarily resident
within the jurisdiction, will not of itself prevent an
order for security for costs being made (fh).

Art. 13.—Liability in cases of joint publication ;
no right to contribution or indemnity from
co-defendant.

Where there has been a joint publication of the
libel by teco or more persons each of them is lable
Jor all the ensuing damage, and has no claim to con-
tribution or indemnity against the other or others,
even though before publication there has been an
express promise to that effect; but judgment in an
action against one of such persons is a bar to an
action against the other or others (1).

On the other hand, where the same libel has been pub-
lished by different persons upon different occasions,

(q) Re Apollinaris Co.’s Trade Marks (1891), 1 Ch. 1.

(h) LD? Hormusjee v. Grey (1882), 10 Q. B. D. 13.

(¢) County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 66;
and see p. 213, infra, and the cases there cited.

(k) Rules of the Supreme Court, 1883, Ord. LXV,, r. 6 a.

(1) Brunsden v. Humphrey (1884), 14 Q. B.D. 141.
60 THE LAW OF LIBEL AND SLANDER.

a dvfendant who was responsible for the first pub-
Leation, but in no way concerned with the second,
would not be lable for any damage which he could
prove was solely caused by the second publication, and
tn no way the result of the first; but the fact that
one of such persons has been sued, and damages
recovered against him, vs no defence (m) to an action
brought against any of the others in respect of the
same libel (n).

Nore 1.—Jornt publication. Where a joint wrong
is committed, all who join in it must be equally
liable for the full amount of damages arising from
it; and if an action is brought against the joint
wrongdoers for damages for the joint wrong, there
can only be one verdict aud one judgment against
all the defendants. Thus, where the proprietor and
editor of a newspaper are sued for a libel which has
been published in the paper and the editor persists
in a plea of justification which he cannot prove,
whilst the proprietor apologizes and pays money
into Court, the judge will direct the jury to tind
one verdict against both defendants, and there will
be one judgment entered against them both (0).

(m) See, however, Arts. 46, 47, pp. 169, 173, infra, as to
evidence in mitigation of damages and consolidation of actions
under the Law of Libel Amendment Act, 1888.

(nx) Harrison v. Pearce (1858), 32 L. T. O. 8. 298; 1 F.
& F. 567; Frescoe v. May (1860), 2 F. & F. 123; Colledge v.
Pike (1886), 56 L. T. 124; Zucker v. Lawson (1886), 2 Times
L. R. 593.

(0) Hopton v. Licensed Victuallers’ Gazette and others, Times
Newspaper for Nov. lst and 2nd, 1900.
NO CLAIM TO CONTRIBUTION, 61

Where the libel is a joint one and the defendants
are sued jointly, the jury has no power to sever the
damages, and if it does so and returns separate
verdicts against the different defendants the judg-
ments entered in accordance with such verdicts
would be set aside and a new trial ordered (p).

Note 2.—.No cla’m to contribution. This is
merely a particular application of the well-known
rule that there is no contribution between tort-
feasors(q). The effect of it is, that the proprietor
of a newspaper sued jointly with his negligent
editor and the author of the libel cannot obtain
compensation from either of them in respect of
the damages which he has been obliged to pay to
the plaintiff (7); mor will the fact, that there has
been an express promise to indemnify him if he
will publish the libel, in any way improve his
position, for such a promise is void, the considera-
tion for it being illegal (s). A printer cannot
maintain an action for his charges for printing a
libel (4); and if he agrees to print a book for a
certain price, and finds in the course of his work
that the book contains libellous matter, he may
refuse to proceed, and can sue for that part of the
work which is not libellous in an action for work

(p) Dawson v. M‘Clelland (1899), 2 Ir. R. 486 (C. A.).

(q) Merryweather v. Nivan (1799), 8 T. R. 186. See Article
+8, p. 175, infra.

(r) Colburn v. Patmore (1834), 1 C. M. & R. 73.

(s) Shackell v. Rosier (1836), 2 Bing. N. C. 654,

(t) Poplett v. Stockdale (1825), Ry. & M. 3387; Bull v.
Chapman (1853), 8 Ex. 104.
62 THE LAW OF LIBEL AND SLANDER.

and labour performed, and materials provided, or,
as it is called, on a quantum meruit (u).

Nore 3.—Judgment in an action against one of
such persons ts a bar to an action against the other
or others. Thus, where a libel appears in a
newspaper, and judgment is recovered against
the proprietor who turns out to be insolvent, the
plaintiff cannot maintain an action against the
publishers or the editor of the paper. Neither,
on the same principle, can he in such a case sue
the author for the publication in the newspaper,
for this is the same cause of action; but he can, if
he likes, sue the author for the publication of the.
libel to the editor, for this is a different publication
and a separate cause of action.

Nore 4.— Where the same libel has been published
on different occasions. ‘The most common example
of this kind which is met with in practice is the
case of a bel which has been published in the
first stance by one newspaper, and which has
been subsequently copiel by other newspapers.
Under such circumstances, the fact that one of
such newspapers has been sued and damages re-
covered against it is no defence, though admissible
in mitigation of damages (x).

Where a libel has been published in a news-
paper, the proprietor, publisher, editor, printer,

(u) Clay v. Yates (1856), 25 L. J. Ex. 237; 27 L. fT. 0. 8.
196; 1 H.&N. 73.

(z) Law of Libel Amendment Act, 1888 (51 & 52 Vict.,
c. 64), s. 6; and see Arts. 46, 47, pp. 169, 173, infra.
LIABILITY OF PRINCIPAL OR MASTER. 63

author, and any one who utters, gives, sells, or
lends a copy of the newspaper containing the libel
may he proceeded against (xx). But it must be
remembered, as has been pointed out (y), that
where there has been a joint publication by two
or more of such persons, judgment in an action
against one of them is a bar to an action in respect
of the same publication against the other or others.

Ant. 14.—Principal and agent—master and

servant.

A principal or master is liable for any slaider or
libel published with his authority or consent by his
agent or servant. The agent or servant ts liable for
publishing the slander; he is also liable for publishing
the libel unless he can prove that he did not know, and
ought not to have known, that he was publishing a libel.

Note 1.—Liability of principal or master. The
principal or master is liable, where the words
complained of are published with his authority
or consent. Such authority or consent may be
express or implied. It will be implied in the
case of a libel, where such libel has been pub-
lished in pursuance of the general orders of the
principal or master. So far as liability to an
action is concerned, the position of the defendant
is in no way altered by the fact that the publica-
tion was without his knowledge or in his absence.

(wx) For a defence available in special circumstances, see

pp. 16—18, supra.
(y) Note 3, p. 62, supra.
64 THE LAW OF LIBEL AND SLANDER.

That is no answer to a czvtl action, though, as will
be seen, it affords a defence to erimenal proceed-
ings (z). Thus the proprietor (a), publisher (0),
editor (c), and printer (d) of a newspaper are civilly
liable for an accidental slip caused by the printer’s
man in setting up the type, and for a libellous
advertisement inserted without their knowledge.

In Watts v. Fraser and Moyes (e), both editor
and printer were held hable for a libellous illus-
tration, although they had never seen it, on the
ground that the illustration was referred to in the
accompanying letter-press, which had been printed
by their servants.

The author or actual composer of any libel
which is published in a newspaper is lable for
the damage caused by such publication, if it can
be proved that he requested, procured, or autho-
rized the same(/f). But it is not necessary that
there should be an express request to publish ;
it is sufhcient to prove that defendant sent his
manuscript to the editor (g), or spoke the words

(z) See p. 204, infra.

(a) Shepheard v. Whitaker (1875), L. R. 10 C. P. 502;
Harrison v. Pearce (1858), 32 L. T. 0.8. 298; 1 F. & F. 567;
Rapkins v. Hall and others (1894), 10 Times L. R. 466 (C. A.).

(2) Blake v. Stevens and others (1864), 11 L. 7.543; 4 FL&
F, 232,

(c) Per Pollock, C. B., in Keyzor and another v. Veweomb
(1859), 1 F. & F. at p. 562.

(d) Johnson v. Hudson (1836), 7 A. & E. 233 n.

(c) (1835), 6 L. J. K.B. 226; 7 Ad. & E223 57 C. & P.369,

(f) Per Lord Erskine in Burdett v. Abbott (1811), 5 Dow,
H. L. at p. 201.

(g) Bond v. Douglas (1836), 7 C. & P. 626.
LIABILITY OF AGENT OR SERVANT. 65

complained of under such circumstances that he
must have intended them to be published (h).
He will be equally liable even though the editor
has cut up his manuseript and merely published
part of it(¢), or has not inserted the exact words
made use of by the defendant, provided that the
sense and substance are the same (f’).

In Harding v. Greening (), the defendant, a
tradesman, was in the habit of employing his
daughter to draw out his bills and write his letters
of business. A customer, to whom a bill written
by the daughter had been sent by the daughter,
being advised by the plaintiff that the charge
was too high, sent it back. Thereupon the bill
was returned to the customer, enclosed in a letter
also written by the defendant’s daughter, which
contained a libel upon the plaintiff. Upon proof
of these facts, Gibbs, C. J., held that there was
no evidence to go to the jury, and non-suited the
plaintiff; and his decision was upheld by the
Court of Common Pleas. It is respectfully sub-
mitted that this decision would not, however, be
upheld at the present day.

Nore 2.—Liability of agent or servant. It is no
defence that in publishing the words complained
of the defendant was merely acting as the agent
or servant of another, ‘‘ for the warrant of no

(h) Adams v. Kelly (1824), Ry. & Moo. 157.

(‘) Tarpley v. Blabey (1836), 2 Bing. N. C. 437; 7C. & P. 395.

(&) Per Montague Smith, J., in Parkes y. Prescott (1869),
L. R. 4 Ex. at p. 179.

(2) (1817), 8 Taunt. 42; 1 Moore, 477; 1 Holt, N. P. 531.

L.S. r
66 THE LAW OF LIBEL AND SLANDER.

man, not even of the king himself, can excuse
the doing of an illegal act” (m). Thus a printer’s
man whose sole duty it was to clap down the
press has been held liable (nx); so too has a
compositor for setting up the type of a libel (0).

In accordance with the above principles, “if a
man receives a letter with authority from the
author to publish it, the person receiving it will
not be justified, if it contains libellous matter, in
inserting it in the newspapers. No authority from
a third person will defend a man against an action
brought by a person who has suffered from an
unlawful act” (p). Neither is it any defence that
the libel was copied from another newspaper, and
was stated to be so (9).

But in the case of libel it will be a good defence
for the defendant to prove that he has only taken a
subordinate part in disseminating the libel and that
he did not know that the paper contained or was
likely to contain a libel, and that he ought not to
have known it, having used reasonable care (7).

(m) Per cur. in Sands v. Child and others (1693), 3 Lev.
352; Maloney v. Bartley (1812), 3 Camp. 210.

(n) Rew v. Clerk (1728), 1 Barn. 304.

(0) Rea v. Knell (1728), 1 Barn. 305.

(p) Per Best, C.J., in De Crespigny v. Wellesley (1829), 5
Bing. at pp. 404, 405.

(¢) Saunders v. Mills (1829), 6 Bing. 213; 3 M. & P. 520;
Talbutt v. Clark (1840), 2 M. & Rob. 312.

(r) Per Lord Esher, M. R., in Emmens v. Pottle and Son
(1885), 16 Q. B. D. at p. 357 ; and per Bowen, L. J., ibid. at
p- 358. See also Mallon v. W. H. Smith and Son (1893), 9
Times L. R. 521; Vizetelly v. Mudie’s Select Library, Ld.
(1900), 2 Q. B. 170 (C. A.) ; and pp. 17, 18, supra.
REPETITION. 67

Thus, he is not liable if he prove that he carried the
libel in a parcel (s), or newspaper (¢), or pamphlet (),
which he did not know contained libellous matter,
and which he had no reason to suppose was likely
to contain such matter.

Art. 15.—Liability for repetition of libel or
slander.

Lt is no defence to an action for libel or slander
that the defendant published wt by way of repetition
or hearsay (x); or that he stated his authority for
the words complained of (y); or, except when the
occasion 1s privileged (z), that he belveved the words
to be true (a).

Nore 1.—That some other person has previously
published the same charges against the plaintiff,
and that the defendant is therefore merely repeat-
ing what has already been stated by someone
else, is no defence, nor is it generally admissible

(s) Day v. Bream (1837), 2 M. & Rob. 54.

(t) Emmens v. Pottle (1885), 16 Q. B. D. 354; Mallon v.
W. H. Smith and Son (1893), 9 Times L. R. 621. See also the
observations of Lord Kenyon, C.J., in Rex v. Holt (1793),
5 T. R. at p. 144.

(w) Martin et ux v. The Trustees of the British Museum and
Thompson (1894), 10 Times L. R. 338.

(x) Watkin v. Hall (1868), L. R. 3 Q. B. 396; 387 L. J.
Q. B. 125.

(y) M‘Pherson v. Daniels (1829), 10 B. & C. 263.

(z) See pp. 99—100, infra.

(a) Per Blackburn, J., in Campbell v. Spottiswoode (1863),
32 L. J. Q. B. at p. 202.

F 2
68 THE LAW OF LIBEL AND SLANDER.

as evidence in mitigation of damages. “ As great
an injury may accrue from the wrongful repetition
as from the first publication of slander; the first
utterer may have been a person insane, or of bad
character. The person who repeats it gives greater
weight to the slander” (2). If however, the
defamatory statement appears on the face of it to
be copied from a certain newspaper, or communi-
cated by a particular person, the defendant may
prove in mitigation of damages that a paragraph
to the same effect did appear in that newspaper,
or that the statement complained of was in fact
communicated to him by such person (c). And
it would seem that general evidence of bad reputa-
tion is admissible in mitigation of damages (d),
although evidence of rumours to the same effect
as the words complained of is inadmissible (e),
If, however, defendant can prove that in copying
the libel, or (semble) in repeating the slander, he
omitted certain parts which referred in very
adverse terms to the plaintiff, the fact that he did
so is admissible as evidence to prove absence of
malice, and this allows the admission in evidence

(6) Per Littledale, J., in I‘Pherson v. Daniels (1829), 10
B. & C. at p. 272, cited with approval by Blackburn, J., in
Watkin v. Hall (1868), L. R. 3 Q. B. at p. 401.

(ce) Duncombe v. Daniell (1837), 8 C. & P. 222; per Wight-
man, J., in Davis v. Cutbush (1859), 1 F. & F. 487.

(d@) Scott v. Sampson (1882), 8 Q. B.D. 491; 51 L. J. Q. B.
380; 46 L. T. 412; Wood v. Durham (1888), 21 Q. B. D. 501;
57 L. J. Q. B. 547; 57 L. T. 770. See also Wood v. Cor
(1888), + Times L. R. 550.

(e) Scott v. Sampson, supra.
MARRIED WOMAN. 69

of the original libel or slander (/'). It not unfre-
quently happens in cases of slander when the
words are not actionable per sc, that the person
repeating the slander is in a worse position than
the person from whom he heard it; for in such a
case, if the special damage necessary to support
the action flows from the repetition and not from
the original publication of the words, as a general
rule the person repeating is alone liable (9).

Similarly, the fact that the defendant at the time
he made the statement bona fide believed it to be
true, will not, except in cases dealt with under
the head of qualified privilege (2), afford him any
defence, though it may be given in evidence in
mitigation of damages (2).

Art. 16.—Married woman.

A married woman can sue or be sued for libel
or slander in all respects as ¢f she were a feme sole.
Damages or costs, if recovered by her in such action,
are her separate property ; aul if recovered agarnst
her, are payable out of her separate property (h).

Nore.—This is the effect of sect. 1, sub-sect. 2,
of the Married Women’s Property Act, 1882; by

(f) Creevey v. Carr (1835), 7 C. & P. 64.

(g) See pp. 167—168, enfra.

(h) p. 100, enfra.

(z) See p. 171, enfra.

(%) Married Women’s Property Act, 1882 (45 & 46 Vict.
c. 75), s. 1, sub-s. 2.
70 THE LAW OF LIBEL AND SLANDER.

which it is also expressly provided that the husband
need not be joined with his wife as plaintiff or
defendant, or be made a party to any action or
other legal proceeding brought by or taken against
her. Generally speaking, it is, however, still
desirable to join the husband as co-plaintiff in any
action brought by his wife, for by that means
whatever damages either may have suffered will
be recovered in one action.

So, too, it is usually prudent to join the husband
as a co-defendant with his wife, for if the wife be
sued alone, in the first place a judgment against
her will free the husband from any further lability ;
and, secondly, in such circumstances, execution
can only be put in against such separate property
of the wife as she is not restrained from antici-
pating (7). Where, however, it has been ascertained
that the wife has separate property which she is
not restrained from anticipating, and which will be
sufficient to cover any damages which the plaintiff
may recover together with the costs of the action,
it 1s unsafe to join the husband as a defendant, for
under such circumstances the plaintiff, even if he
succeeds in the action, may be ordered to pay the
costs of so joining him.

As to when a married woman can sue her husband
for libel or slander, see p. 16, supra.

(1) Bursill v. Tanner (1884), 13 Q. B. D. 691.
HUSBAND'S LIABILITY. 71

Arr. 17.—Husband’s liability for wife’s libel or
slander.

A husband is liable for the publication of libel or
slander by his wife (1) during coverture(m); and
(2) before coverture, to the extent of all property be-
longing to her which he shall have acquired or become
entitled to from or through his wife, after deducting
therefrom any payments made by him, and any sums
for which judgment may have been bond fide recovered
against him in any proceeding at law tn respect of
any debts, contracts, or wrongs, for or an respect of
which his wife was liable before her marriage (n).

Nore.—At common law a husband was lable
for every tort committed by his wife either before
or during coverture; but this liability was re-
stricted as to torts committed before coverture by
sect. 14 of the Married Women’s Property Act,
1882, the material part of which is set out in the
second of the above provisions. As to a wife’s
torts committed during coverture, it was decided
in Seroka v. Kattenburg (0) that the husband’s old
common law liability is in no way altered by the
Act, so that he may or may not be joined as a
co-defendant with her. For the reasons given in
the note to the preceding Article it is usually wise
to join him.

(m) Seroka v. Kattenburg and wife (1886), 17 Q. B. D. 177 ;
55 L. J. Q. B. 375.

(x) Married Women’s Property Act, 1882 (45 & 46 Vict.
c. 75), s. 14.

(o) (1886), 17 Q. B. D. 177.
72 THE LAW OF LIBEL AND SLANDER.

Anr. 18.—Aliens—infants—lunatics—bankrupts.

An alien friend (p), infant (q), lunatic (r), or
bankrupt (s), can sue or be sued for libel or slander.

Note 1.-—An alien friend.—An alien friend can
sue (¢) or be sued (7) for libel or slander where
the words complained of have been published in
this country. If the plaintiff is not ordinarily
resident here he can generally be compelled to give
security for costs (wx).

Where it is intended to serve the writ out of
the jurisdiction, it cannot be issued without the
leave of a judge(y). The application for such
leave is made by summons in chambers under
Ord. II., Rule 4. Leave to serve a writ out of the
jurisdiction can be obtained in any of the cases
specified in Ord. XL, Rule 1 (z). If the defendant
is a British subject residing abroad the writ itself
may be served upon him (a), but if neither a
British subject nor in British dominions, notice

(p) Rex v. Jean Peltier (1803), 23 Howell’s State Trials,
617; Pesani v. Lawson (1839), 6 Bing. N. C. 90.

(q) Defries v. Davis (1835), 7 C. & P. 112; 3 Dowl. 629;
Wid v. Tomkinson (1826), 5 L. J. K. B. 265.

(v7) Mordaunt v. Mordaunt (1870), 39 L. J. P. & M. 59.

(s) La parte Vine, In re Wilson (1878), 8 Ch. D. 364.

(t) Pisani v. Lawson (1839), 6 Bing. N. C. 90.

(w) Rex v. Jean Peltier (1803), 28 Howell's State Trials, 617.

(x) See Article 12, p. 58, supra.

(y) Ord. IL, xr. 4.

(z) See p. 212, 7xfra, and the cases there cited.

(a) Great Australian, &e., Co. v. Martin (1877), 5 Ch. D. 1.
ALIEN FRIEND. 73

of the writ and not the writ itself must be served
upon him (0).

Formerly a writ could not be issued without
leave against a foreign firm, the members or some
of the members of which were resident abroad.
This state of the law was altered by Ord. XLVIIL.
A, which came into operation on July 1, 1891.
By Rule 1 of that order, provided that a firm
carries on business within the jurisdiction, it may
be sued in the firm’s name without leave although
it be a foreign or colonial firm, the members of
which are resident out of the jurisdiction. Under
Rule 3 the writ can then be served on any one or
more of the partners within the jurisdiction or at
the principal place of business of the firm within
the jurisdiction upon the manager of such business
there (c). “But when such a writ has been issued,
and has been served in one of the modes pointed
out by Rule 3, except as against the property of
the partnership as mentioned in Rule 8, the judg-
ment will not affect any partner who was out of the
jurisdiction when the writ was issued, and who has not
appeared, unless he has been made a party under
Ord. XL, or has been served within the jurisdiction
after the writ in the action was issued ” (d).

As to suing a foreign principal for a libel pub-
lished by an agent in this country, see p. 212, ¢afra,

Where the words have been published outside

(6) Ord. XI, r. 6.

(c) Worcester, &e. Banking Uo. v. Firbank Pauling & Co.
(1894), 1 Q. B. p. 784.

(d) Ibid., per Lopes, L. J., at p. 789.
74 THE LAW OF LIBEL AND SLANDER.

the jurisdiction, the general principle is applicable
that in order to maintain an action here in respect of
a tort committed outside the jurisdiction, the injury
complained of must be wrongful both by the law
of England and also by the law of the country
where it was committed (e). And this principle
apples without regard to the nationality of the
parties, for “the right of all persons, whether
British subjects or aliens, to sue in the English
Courts for damages in respect of torts committed
in foreign countries has long since been estab-
lished; and . . . there seems to be no reason why
aliens should not sue in England for personal
injuries done to them by other aliens abroad, when
such injuries are actionable both by the law of
England and also by that of the country where
they are committed ; and the impression which
had prevailed to the contrary seems to be
erroneous” (f). It is, however, not necessary
that the act complained of should be the sub-
ject of civil proceedings in the foreign country ;
it is sufficient if the act is not justifiable where
committed (4).

It would thus appear that where a libel, or a slander
actionable per se, is published outside the jurisdiction,
and the publication of such libel or slander is action-
able or not justifiable by the law of the country
where it is published, an action will le in this
country, provided that if the defendant is out of

(e) Per cur. in The Halley (1868), L. R. 2 P. C. at p. 203.
(f) Lid. at pp. 202, 203.
(g) Machado vy. Fontes (1897), 2 Q. B. 231 (C. A.).
INFANT. 75

the jurisdiction the case is either (1) within sub-
section (c), (f), or (g) of Order XI., Rule 1, so that
the plaintiff can obtain the leave of the Court as
mentioned on p. 72, supra, or (2) within Order
ALVIII. A, as to which see p. 73, supra. In
applying for the leave of the Court under Order XL,
Rule 1, the plaintiff must prove that he has a
probable cause of action, and the Court in exercising
its discretion will consider the facts of the case
appearing on the affidavits, so far as may be necessary
for that purpose (A).

An alien enemy of course cannot sue here, nor
is the operation of the Statute of Limitations
suspended by the personal disability (7).

Nore 2.—ZJnfant.—An infant sues by his next
friend (/:), and defends by a guardian ad Litem (/).
The next friend is personally liable for costs (m),
the guardian ad litem only in cases of gross mis-
conduct (7).

Note 3.—Lunatic.—By the Lunacy Act, 1890
(53 Vict. c. 5), which came into operation on May
Ist, 1890, the Acts relating to lunatics have been
consolidated. Under the Act the jurisdiction of
the judge in lunacy is exercised by the Lord
Chancellor entrusted by the sign manual with the

(h) Société Générale de Paris v. Dreyfus Brothers (1887),
37 Ch. D. 215. For precedent of affidavit see p. 234, infra.

(i) De Wahl v. Braune (1856), 1 H. & N. 178; 25 L. J.
Ex. 343.

(&) Rules of the Supreme Court, 1883, Ord. XVI, r. 16.

(2) Tbed.

(m) Frank v. Mainwaring (1839), 4 Beav. 37.

(n) Morgan v. Morgan (1865), 11 Jur. N. 8. 233.
76 THE LAW OF LIBEL AND SLANDER.

care and commitment of the custody of the persons
and estates of lunatics, acting either alone, or
jointly with any one or more of such judges of
the Supreme Court as may for the time being be
entrusted as aforesaid (s. 108). This Act is amended
by the Lunacy Act, 1891.

No other judge of the Supreme Court can exercise
the special jurisdiction in Lunacy, and when in the
Act the term Lord Chancellor merely is used no
other person has jurisdiction to act (0).

A lunatic, so found, must sue by his committee
as co-plaintiff with him; if not so found, or if he
has not a committee, or if the committee has some
interest adverse to the lunatic, then by his next
friend(p). The committee must obtain the sanction
of the Court of Lunacy before suing. ‘This is done
by summons before the master in lunacy, supported
by an affidavit showing that the proceedings are
necessary. The master will then grant a certificate
of approval which must be subsequently approved
by the judge (q).

A lunatic defends in the same way by his com-
mittee, if he has one, who must obtain the above
sanction. If he has no committee, or the interest
of the committee is adverse, an appearance should
be entered for him, and then an application made

(0) Pope on Lunacy, 2nd ed. p. 30. See Re B—— (1892),
1 Ch. p. £62.

(p) Rules of the Supreme Court, 1883, Ord. XVI, rv. 17;
and see the notes thereto in the Annual Practice for 1901,
pp. 177, 178.

(q) Tbid.
BANKRUPT. 77

by motion or by petition of course for the appoint-
ment of a ouardian ad litem (7).

Note 4.—Bankrupt.—The right of action in
respect of a libel or slander upon a person who is
subsequently adjudicated bankrupt does not pass
to the trustee for his creditors, “although the injury
occasioned thereby may have been the sole cause of
his bankruptcy ’”’(s), and any damages which he may
recover do not pass to his trustee under sect. 44 of
the Bankruptey Act, 1882 (¢). “Assignees of a
bankrupt are not to make a profit of a man’s
wounded feelines ; causes of action, therefore, which
are, as in this case, purely personal, do not pass to
the assignees, but the right to sue remains with the
bankrupt ” (2).

Further, the bankrupt may sue for a libel or
slander upon him published during his bankruptcy,
and his trustee cannot intercept any damages which
he may recover in such an action, or prevent the
bankrupt from expending them in the maintenance
af himself and his family (w). But “if the bankrupt
had accumulated the money, and had invested it in

(r) Ibid. See also Burt v. Blackburn (1887), 3 Times
L. R. 356.

(s) Per Alderson, B., in Howard v. Crowther (1841), 8
M. & W. at p. 604.

(t) Drake v. Beckham (1849), 2 H. L. C. 579.

(x) Per Lord Abinger, in Howard v. Crowther (1841), 8
M. & W. at p. 604.

(x) Ex parte Graham, Re Job (1870), 21 L. T. 802; Bex
parte Vine, Re Wilson (1878), L. R. & Ch. D. 364; 47 L. J.
Bank. 116; 38 L. 'T. 327, 730.
78 THE LAW OF LIBEL AND SLANDER.

some property, that property might be reached by
the trustee” (7).

The defendant cannot obtain an order for security
for costs merely because the plaintiff is bankrupt (z) ;
but the defendant can, upon satisfying the Court
that the plaintiff has no visible means of paying the
defendant's costs, obtain an order remitting the
action to the County Court, unless the plaintiff give
security for costs, or satisfy the Court that he has
a cause of action more fit to be prosecuted in the
High Court than in the County Court (a).

Art. 19.—Corporations and incorporated
companies.

A corporation or incorporated company can sue for
a libel affecting its property (b) ; a can also sue for
slander im relation to its trade or business. It is liable
for libel or slander published by tts servants or agents,
where such publication has been expressly autho-
rized (c), or tn the case of libel where such publication

(y) Per James, L. J., in Ex parte Vine, Re Wilson (1878),
8 Ch. D, at p. 366.

(z) Cook v. Whellock (1896), 24 Q. B. D. 658.

(a) County Courts Act, 1888 (51 & 52 Vict. c. 43), 8. 66 ;
and see p. 213, znfra, and the cases there cited.

(6) Mayor, ke. of Manchester v. Williams (1891), 1 Q. B. 94.

(c) Yarborough v. Bank of England (1812), 16 East, 6 ;
Latimer v. Western Morning News (1871), 25 L. T. 44; Abrath
v. North Eastern Rail. Co. (1886), 11 App. Cas. 2538, 254;
55 L. J. Q. B. 466.
CORPORATIONS AND COMPANIES, 79

@s tm pursuance of the general orders given to such
servants or agents (d).

Nore 1.—‘ The law of libel is one and the same
as to all plaintiffs; .. . in every action of libel,
whether the statement is, or is not, a libel, depends
on the same question, viz., whether the jury are of
opinion that what has been published with regard
to the plaintiff would tend, in the minds of people
of ordinary sense, to bring the plaintiff into con-
tempt, hatred, or ridicule, or to injure his character.
The question is really the same by whomsoever
the action is brought, whether by a person, a
firm, or a company. There are statements which,
with regard to some plaintiffs, would undoubtedly
constitute a libel, but which, if published of
another kind of plaintiffs, would not have the same
effect” (e).

And it is clear that not every charge which
would be defamatory if made against a private
individual, is necessarily so if made against a
corporation or company.

“The words complained of in order to entitle a
corporation or company to sue for libel or slander,
must injuriously affect the corporation or company
as distinct from the individuals who compose it.
A corporation or company could not sue in respect
of a charge of murder or incest or adultery, because

(d) Whitfield v. S. B. BR. Co. (1858), E. B.& E. 115; 27
L. J. Q. B. 229.

(e) Per Lord Esher, M.R., in South Hetton Coal Co. v.
North-Eastern News Association (1894), 1 Q. B. at p. 138.
80 THE LAW OF LIBEL AND SLANDER.

it could not commit these crimes. Nor could it sue
in respect of a charge of corruption or of an assault,
because a corporation cannot be guilty of corruption
or of an assault, although the individuals composing
it may be. The words complained of must attack
the corporation or company in the method of
conducting its affairs, must accuse it of fraud or
mismanagement, or must attack its financial posi-
tion” (f). “The limits of a corporation’s right of
action for libel are those suggested by Pollock, C. B.,
in Metropolitan Saloon Omnibus Co. v. Hawkuis (g).
A corporation may sue for a libel affecting property,
not for one merely affecting personal reputation” (A) ;
and therefore, in Mayor, dc. of Manchester v.
Walliams (1), where the Statement of Claim in an
action for libel brought by a corporation alleged
that the defendant had charged the plaintiffs with
corrupt practices, but contained no allegation of
special damage, it was held that inasmuch as a
corporation as distinguished from the individuals
composing it cannot be guilty of corrupt practices,
the Statement of Claim disclosed no cause of
action.

Where, however, a libel on a corporation is in
effect a libel on its members, then, provided they
can prove that the defamatory statement apples

(f) Per Lopes, L. J., in (1894) 1 Q. B. at p. 141.

(g) (1859), 4 H. & N. at p. 90.

(h) Per Day, J., in Mayor, dc. of Manchester v. Williams
(1891), 1 Q. B. at p. 96; cited with approval by Lopes, L. J.,
in South Hetton Coal Co. v. North-Eastern News Association
(1894), 1 Q. B. at p. 142.

(i) (1891), 1. B. 94.
DEFENCES TO ACTION. 81

to them, they are entitled to maintain an action
in their own names as private individuals (/').

Norte 2.—There is as yet no decision on the dithi-
cult question whether a corporation or company
ean be made responsible for a libel where the
occasion is privileged, and actual malice must
be proved. The question was argued but not
decided in Nevill v. Fine Arts, ke. Co. (2). It is
submitted, however, that proof of the malice of
the agent or servant who published the libel
would, under such circumstances, rebut the
privilege (7m).

Arr. 20.—Defences to action for libel or slander.

The defences to an action for libel are :—
(1) Justification (1) ;
(2) Fatr comment (0);
(3) Privilege (p); which may be either—
(a) absolute (q); or
(b) qualified (7) ;

(k) See Booth v. Briscoe and others (1877), 2 Q. B. D. 496
(C. A.), and pp. 6, 7, 57—58, supra.

(2) (1895), 2 Q. B. 156; (1897), App. Cas. 68.

(m) See particularly the observations of Lopes, L. J., as
reported in L. R. (1895), 2 Q. B. at p. 172.

(n) Art. 21, p. 82, enfra.

(0) Art. 23, p. 89, infra.

(p) Art. 24, p. 99, wnfra.

(q) Arts, 25, 26, and 27, pp. 103, 109, 110, znfra.

(r) Arts. 28—37, pp. 115—152, rnfra.

TBs G
82 THE LAW OF LIBEL AND SLANDER.

(4) Apology. This defence is, however, only
available when the libel is “contained in a publie
newspaper or other periodical publication ” (s) ;

(5) Accord and satisfaction (t) ;

(6) L?elease (2) ;

(7) Les judicata (x) ;

(8) Statute of Limitations (y) ;

(9) Death of plaintiff or defendant before verdict
or finding of issues of fact (2) ;

Similar defences, with the exception of (4), are open
to the defendant in an action for slander.

Nore.—It may be said that it is also a defence
that the words complained of are not defamatory,
or do not relate to the plaintiff (a), or that there
has been no publication (/); but in all these cases
the onus of proving the contrary is on the plain-
tiff, and, if he does not do so, he fails to make out
even a prima fucic case. If, however, the defen-
dant intends to rely upon any of these points at
the trial, he should raise them in his Defence.

Arr. 21.—Justification.

It is a good defence to an action of libel or slander
that the words complained of are true in substance
and tn fact.

Note 1.—The reason for this rule is that “the
law will not permit a man to recover damages in

(s) Art. 39, p. 158, infra. (y) Art. 43, p. 162, enfra.
(¢) Art. 40, p. 160, infra. (z) Art. 44, p. 163, enfra.
(uw) Art. 41, p. 160, infra. (a) pp. 1—6, supra.

(a) Art. 42, p. 160, infra. (6) p. 13, supra.
JUSTIFICATION. 83

respect of an injury to a character which he either
does not or ought not to possess” (r). The plea of
justification is, however, as has been well said, a
dangerous plea to put upon the record, for if the
defendant cannot prove it, or withdraws it at the
trial, it may, and most probably will, aggravate
the damages (/). Moreover, in order to succeed,
the defendant will have to prove that the whole of
the defamatory matter is swbstantelly true. Thus,
where the libel complained of is an article or
paragraph preceded by a title, it is not sufficient
to prove the truth of the facts stated in the article
or paragraph: the title itself must be justified, or
the plaintiff will succeed. So that in Bishop v.
Latimer (e), where a newspaper published a para-
graph, preceded by the title “How Lawyer B.
treats his Clients,” which contained a report of
a case in which one client of Lawyer B. had
been badly treated, it was held, although the
case itself was accurately reported, that the
title was not justified by the facts, and that
the plaintiff was entitled to damages. And
in another case, Clement v. Lew?s (f), where
a newspaper bad published a correct report
of certain proceedings in the Insolvent Debtors’

(c) Per Littledale, J., in Mf‘Pherson v. Daniels (1829), 10
B. & C. at p. 272.

(d) Caulfield v. Whitworth (1868), 18 L. T. 527; 16 W. R.
936.

(e) (1861), 4 L. T. 775.

(f) (1822), 3 Br. & Bing. 297; 7 Moore, 200. See also
Mountney v. Watton (1831), 2 B. & Ad. 673; Chalmers v.
Shackell (1834), 6 C. & P. 475.

G 2
84 THE LAW OF LIBEL AND SLANDER.

Court preceded by the title ‘‘Shameful Con-
duct of an Attorney,” the report was held
privileged, but damages were recovered for the
title.

If there is gross exaggeration, the plea of
justification will fail. Thus, in Clarkson v. Law-
son (g), where the libel stated that the plaintiff, a
proctor, had been three times suspended for extor-
tion, it was held to be no justification to prove that
he had been once so suspended. So where the
defendant had stated that the plaintiff was a
“libellous journalist,” it was held that a plea of
justification was not supported by proof that the
plaintiff had libelled one person, who had ob-
tained judgment against him for 100/. (2). And
to call the editor of a newspaper “a felon editor,”
is not justified by proof that the person libelled
had been convicted of felony, and condemned
to a year’s imprisonment ; imasmuch as a person
who has been convicted and suffered his term of
imprisonment does not, in law, continue to be
a felon (7). On the other hand, no action will
lie against a railway company for the publica-
tion of a notice stating that a passenger has
been convicted and fined for a breach of its

(7) (1829-80), 6 Bing. 266, 587; 4 M. & P. 356. See also
Clarke v. Taylor (1836), 2 Bing. N. C. 654; Blake v. Stevens
(1864), 11 L. T. 543; 46. & F. 232.

(h) Wakley v. Cooke and Healey (1849), 19 L. J. Ex. 91; 4
Ex. 511.

(t) Leyman v. Latimer (1877-8), 3 Ex. D. 15, 352; 47 L. J.
Ex. 470.
JUSTIFICATION. 85

bye-laws, provided that the facts are stated
accurately (/).

Where the libel imputes a crime to the plaintiff,
and the defendant pleads justification, there must.
be “the same strictness of proof as on a trial”
for such crime (4). “Where a defendant justifies
words which amount to a charge of felony, and
proves his justification, the plaintiff may be put
upon his trial by that verdict, without the inter-
vention of a grand jury” (/). And if the words
complained of be that A. B. said that plaintiff
did a disgraceful act, proof that A. B. did in fact
say so is no defence: the whole of the defamatory
words must be justified, and it must be proved
that plaintiff did in fact do the act alleged (m).

So if an account of a trial be published setting
out counsel’s speech, and stating that the facts
opened were proved, when actually the evidence
only bore out part of the facts so stated, it is no
defence to plead that the facts were so stated by

(j) Alerander v. N. EB. Rail. Co. (1865), 34 L. J. Q. B. 152;
Guynn v. S. B. Rail. Co. (1868), 18 L. T. 738; Biggs v.
G. FE. Rail. Co. (1868), 16 W. R. 908; 18 L. T. 482.

(k) Per Lord Denman, C. J., in Willmett v. Harmer (1839),
8 U.& P. at p. 697. See also Smith v. Parker (1844), 14
L. J. Ex. 52; 13 M. & W. 459; OBrien v. Bryant (1846),
16 L. J. Ex. 77; 16 M. & W. 168; Botterild and another v.
Whytehead (1879), 41 L. T. 588.

(1) Per Lord Kenyon, C. J., in Cook vy. Lield (1788), 3 Esp.
at p. 133.

(m) De Crespigny v. Wellesley (1829), 5 Bing. 392; 2 M.
& P. 695; M'Pherson vy. Daniels (1829), 10 B. & C. 263;
5M. & Rob. 251; Watkin v. Hall (1868), L. R. 3 Q. B. 396 ;

aT Tn Iv ©, B. 195.
86 THE LAW OF LIBEL AND SLANDER.

counsel; the facts so stated must be proved true,
or the defendant will fail (7).

Note 2.—But, on the other hand, it is not
necessary to justify every detail of the charge
or general terms of abuse, provided that the gist
of the libel or slander is proved to be in substance
correct, and that the details, &e., which are not
justified, produce no different effect on the mind
of the reader than the actual truth would do (0).
Thus, where the libel complained of was that
“L., B., and G. are a gang who live by card-
sharping,” it was held to be sufficient justification
to prove that upon two distinct occasions L., B.,
and G. had cheated at cards (7). So, where the
plaintiffs were accused of being “impudent and
ignorant scamps who had the audacity to pretend
to cure all kinds of diseases with one kind of pill,”
and their business was referred to as “ homicidal
tricks,” and ‘wholesale poisoning,” and it was
stated that several of them “‘had been convicted
of manslaughter, and fined and imprisoned for
killing people with enormous doses of their
universal vegetable boluses,” it was held that
the libel was in substance correct upon proof
“that the plaintiffs’ pills when taken in large

(x) Lewis v. Walter (1821), 4 B. & Ald. 605. And see also
cases cited on pp. 94, 95, infra.

(0) Willmett v. Harmer and another (1839), 8 C. & P. 695;
Alexander v. N. B. Rail, Co. (1865), 34 L. J. Q. B. 152.) But
cf. Gwynn v. S. EB. Rail. Co. (1868), 18 L. T. 738.

(p) Reg. v. Labouchere (Lambri’s case) (1880), 14 Cox, C. C.
419.
REPORT AND COMMENT. 87

doses as recommended by the plaintiffs were
highly dangerous, deadly, and poisonous,” and
“that two persons had died in consequence of
taking large quantities of them, and that the
people who had administered these piils were tried,
convicted, and imprisoned for the manslaughter
of these two persons;” and that it was not neces-
sary to further justify the epithets “scamps,”
“rotgut rascals,” “ wholesale poisoning ” (¢).

Where the libel is divisible, the defendant may
justify one part and admit liability as to the rest ;
but the Court will not tolerate a plea leaving in
doubt what the defendant justifies and what he
does not. He must distinctly sever that which
he justifies from that which he does not (/).

 

Arr. 22.—Distinction between report
and comment.

A report ts an account, abbreviated or otherivise,
of proceedings which have actually taken place. Com-
ment, on the other hand, ts the judgment or opinion
of the writer on those proceedings.

Notr.—The distinction between report and
comment cannot be too strongly emphasized, and

(q) Morrison v. Harmer (1837), 3 Bing. N. C. 759; 3 Hodges,
108 ; 4 Scott, 538. See also Weaver v. Lloyd (1824), 2 B. &
C. 678; 1C. & P. 295; Edwards v. Bell (1824), 1 Bing. 403 ;
Warman v. Hine (1837), 1 Jur. 820; Hdsall v. Russell (1842),
12L. J.C. P. 4; 6 Jur. 996; Behrens v. Allen (1862), 3 F.&
F, 135; 8 Jur. N. 8. 118.

(r) Fleming v. Dollar (1889), 23 Q. B. D. 388 ; 58 L. J. Q. B.
548; 61 L. T. 230. See also p. 221, infra.
88 NILE LAW OF LIBEL AND SLANDER.

the necessity for keeping that distinction clearly
in mind cannot be too strongly impressed upon.
all journalists and writers for the Press.“ If
any comments are made, they should not be made
as part of the report. The report should be
confined to what takes place in Court, and the
two things, report and comment, should be kept
separate” (s). And this is equally true, not only
of a report of what takes place in Court, but algo
of all other proceedings, reports of which are prima
Jucie privileged, A report may be absolutely
privileged (4), in which case no action will Tie
however untrue and malicious the statements
which it contains; or it may come under the head
of qualified privilege (w), when it will be protected
unless the plaintiff can prove affirmatively that
the defendant has been actuated by malice (7).
Comment, on the other hand, if fair and howd fide
on a matter of public interest, 1s no libel (y).

It should be noticed that although as stated
above a report of judicial proceedings is privi-
leged, no comment which is likely to prejudice
the case is allowed whilst the proceedings are
pending (2). Kven temperate and judicious com-
ment, which would be perfectly proper after the

(s) Per Lord Campbell, C. J.,in Andrews v. Chapman (1853),
30. & K. at p. 288,

(t) See Articles 25, 26, 27, pp. 103, 109, 110, tufra,

(u) Seve Articles 28—387, pp. JIS 159, infra,

(*) As to what constitutes malice, see Article 3%, pp. 152—
158, wufra.

(y) Article 23, p. 89, dnfra,

(2) Ley. v. Payne (1896), 1 QQ. 2B. 577,
FAIR COMMENT, 89

case is concluded, may be a contempt of Court
if published before the end of the case (a).
“Every libel on a person about to be tried is
not necessarily a contempt of Court; but the ap-
plicant must show that something has been pub-
lished, which either is clearly intended, or at
least is calculated, to prejudice a trial which is
pending” (0).

Arr. 23.—Fair and bona fide comment on a
matter of public interest.

No action lies of the defendant can prove that
the words complained of are a fair and bond fide
comment on a matter of public interest.

The Court decides whether the matter commented
on is one of public interest ; the jury, if the Court
as of opinion that there is some evidence that the
comment is unfair, finds whether it is so in fact (ec).

(a) Hunt v. Clarke, Re O’ Malley (1889), 58 L. J. Q. B. 490;
61 L. T. 343; Ln re Crown Bank, In ve O'Malley (1890), 44
Ch. D, 649 ; 59 L. J. Ch. 767 ; Coats v. Chadwick (1894), 1
Ch. 347 ; Rey. v. Payne (1896), 1 Q. B. 577.

(6) Per Lord Russell, C. J., in Reg. v. Payne (1896), 1 Q. B.
at p. 580. In the case of Jn ve Bahama Islands (1893),
App. Cas. 138, it was held by the Judicial Committee of the
Privy Council that a stutement, though it might have been
made the subject of procecdings for libel, was not in the
circumstances calculated to obstruct or interfere with the
course of justice or the due administration of the law, and
therefore did not constitute a contempt of court.

(c) Subsequently to the publication of the first edition of this
work, in which the above Article appeared, the law was laid down
in similar language by Lopes, L. J., in South Hetton Coal Co.
v. V. #. News Association (1894), 1 Q. B. at p. 141,
90 THE LAW OF LIBEL AND SLANDER.

Nore 1.—‘‘It is incorrect to say, as some
writers do, that ond fide comments on matters
of public interest come under qualified privi-
lege” (¢). The defence in such a case really is,
that the words are not defamatory—that fair and
proper comment is no libel (e). “It is only when
the writer goes beyond the limits of fair criticism
that his criticism passes into the region of libel
at all” (f). If such comments were privileged,
in order to succeed plaintiff would have to prove
malice, however false and injurious the words
complained of may have been, while defendant
would only have to prove that at the time he
made the charges he believed that they were true ;
and this is certainly not the law (g); for, though
“honest belief may frequently be an element
which the jury may take into consideration in
considering whether or not an alleged libel was
in excess of a fair comment, it cannot in itself
prevent the matter being libellous” (A). It is
therefore submitted that where in an action of libel

(d) Per Blackburn, J., in Campbell v. Spottiswoode (1863),
3 B. &S. 769. And see the observations of Lord Esher,
M. R., and Bowen, L. J., in Merivale v. Carson (1887), 20
Q. B. D. 275.

(e) Per Blackburn, J., 32 L. J. Q. B. at p. 202; and per
Lopes, L. J., in South Hetton Coal Co.v. N. B. News Association
(1894), 1 Q. B. at p. 143.

(f) Per Bowen, L. J., in Merivale v. Carson (1887), 20
Q. B. D. at p. 283.

(g) See “A Digest of the Law of Libel and Slander,” by
W. B. Odgers, 2nd ed. p. 33.

(h) Per Blackburn, J., in Campbell v. Spottiswoode (1863),
32 L. J. Q. B. p. 202.
FAIR COMMENT. 91

the defence is that the words complained of are
a fur and bond fide comment on a matter of public
interest, and in the opinion of the judge the words
complained of are not reasonably capable of being
construed as a libel, it would be his duty to with-
draw the case from the jury (7).

Nore 2.—Fatr and boui fide comment. The
limits of fair comment on matters of public
interest are very wide. “Every latitude must be
given to opinion and to prejudice, and then an
ordinary set of men with ordinary judgment must
say Whether any fair man would have made such
a comment. Mere exaggeration, or even gross
exaggeration, would not make the comment un-
fair. However wrong the opinion expressed may
be in point of truth, or however prejudiced the
writer, it may still be within the prescribed limit.
The question which the jury must consider is
this :—would any fair mau, however prejudiced
he may be, however cxaggerated or obstinate
his views, have said that which this criticism has
said ?” (/:).

“Tt is only, as was said by Bowen, L. J., in
Merirale vy. Carson (0), when the writer goes beyond

(t) The point does not appear to have been expressly
decided, but inasmuch as fair comment is no libel, the rule
laid down in Nevill v. Line Arts, &e. Assn., cited p, 10, supra,
would scem to be applicable. See the observations of Collins,
L. J., in Cooney v. E:leveain (1897), 14 Times L. R. at p. 34,
where the point was discussed but expressly reserved.

(k) Per Lord Esher, M. R., in Mertvale vy. Carson (1887), 20
Q. B. D. at pp. 280, 281.

(2) (1887), 20 Q. B. D. at p. 283.
92 THE LAW OF LIBEL AND SLANDER.

the limits of fair criticism, that his criticism passes
into the region of libel at all. It is for the jury
to consider what impression would be produced in
the mind of an unprejudiced reader who reads the
(article complained of) straight through, knowing
nothing about the case beforehand. They must
not dwell too much on isolated passages, they
must consider the (article) as a whole. If there
are such deviations from absolute accuracy as to
make the comment unfair, they must find for the
plaintiff; but, if there are no such deviations, or
the deviation is minute and within the latitude of
fair discussion, and within the region of that
diversity of opinion which may be fairly and
reasonably entertained by different persons upon
the same subject-matter, they should find for the
defendant “(m). “It must be assumed that a
man is entitled to entertain any opinion he pleases,
however wrong, exaggerated, or violent it may be ;
and it must be left to the jury to say whether
the mode of expression exceeds the reasonable
limits of fair criticism ” (7).

And the question whether the words complained
of are or are not fair comment is essentially for
the jury. ‘Nothing is more important than
that fa and full latitude of discussion should
be allowed to writers upon any public matter,
whether it be the conduct of public men or the

(m) Per Lopes, L. J., in South Hetton Coal Co. v. N. E. News
Association (1894), 1 Q. B. at pp. 1483—144.

(x) Per Bowen, L. J., in Merivale v. Carson (1887), 20
Q. B. D. at pp. 283—284,
FAIR COMMENT. 93

proceedings in courts of justice or in Parliament,
or the publication of a scheme or a literary work.
But it is always left to a jury to say whether the
publication has gone beyond the limits of a fair
comment on the subject-matter discussed. A writer
is not allowed to overstep these limits” (0).

All comments must be don? fide. Criticism must
not be made a cloak for malice. There should be
no insinuation of improper and dishonourable
conduct, unless the critic can prove that such
conduct did in fact exist. And in commenting
upon conduct which did in fact exist, there must
be no imputations of wicked or corrupt motives,
unless the critic can prove that such imputations
“fairly and properly and legitimately arise out of
the conduct itself, and a jury shall be of opinion,
not only that the criticism was honest, but also
well founded” (p).

If it can be shown that the defendant was not
really criticizing the work, but was writing with
an indirect and dishonest intention to injure the
plaintiff, it is submitted that even though in some
other case the alleged libel would not be beyond
the limits of fair criticism, yet the dishonest motive
of the defendant would prevent the defence of
fair and bon’ fide comment from being applicable.
For in such a case, as was pointed out by Lord

Esher, M. R., in MMertvale v. Carson (q), ‘the

(0) Per Crompton, J., in Campbell v. Spottiswoode (1863), 3
B. & S. at p. 778.

(p) Per Cockburn, C. J., wid. 32 L. J. Q. B. at p. 200.

(q) (1887), 20 Q. B. D. at pp. 281, 282.
94 THE LAW OF LIBEL AND SLANDER.

comment would not then really he a criticism of
the work. The mind of the writer would not be
that of a critic, but he would be actuated by an
intention to injure the author.”

The mere fact that the defendant honestly believed
the charges to be true is in itself no defence (7).
“Tf he... imputes to the person whom he is
criticizing base and sordid motives, which are not
warranted by facts, I cannot think for a moment that
because he Lona fide believes that he is publishing
what is true, that is any defence in point of law ”(s).

The matter commented on must be actual fact.
“The very statement” indeed of the rule set out
in the above Article, “assumes the matters of fact
commented upon to be somehow or other ascer-
tained. It does not mean that a man may invent
facts, and comment on the facts so invented in
what would be a fair and bond fide manner on
the supposition that the facts were true. . . . If the
facts as a comment upon which the publication is
sought to be excused do not exist, the foundation
of the plea fails” (¢). A newspaper may not set
out evidence which might have been, but was not

(r) Cooper v. Lawson (1838), 8 A. & E. 746; Campbell v.
Spottiswoode (1863), 32 L. J. Q. B. 185; 8 L. T.201; Harle
v. Catherall and others (1866), 14 L. T. 801; Bryce v. Rusden
(1886), 2 Times L. R. 435; Brenon v. Ridgway (1887), 3
Times L. R. 592.

(s) Per Cockburn, C. J., in Campbell v. Spottiswoode (1863),
32 L. J. Q. B. at p. 200.

(t) Per cur. in Lefroy v. Burnside (1879), 4 L. R. Ir. at
p. 340. See also the judgment of the Court in Davis and Sons
v. Shepstone (1886), 11 App. Cas. at p. 190.
MATTER OF PUBLIC INTEREST. 995

in fact given, and suggest as an inference there-
from that the prisoner though acquitted was really
guilty (7). It may comment on evidence actually
given (vx), but may not charge a witness with
having committed perjury (vy). The defendant will
not, however, be liable for trivial mistakes made
accidentally, for “it is not to be expected that a
public journalist will always be infallible” (z).

Nore 3.—Watter of public tnterest. Under this
description come :—

(1) WZ state matters ; everything which concerns
government, either House of Parliament, or any com-
mittee thereof: Evidence given before a parlia-
mentary committee (a), or a royal commission (0) ;
the prevalence of corrupt practices at a par-
liamentary election (c); government appoint-
ments (d); a petition to parliament (¢), and a

(w) Helsham v. Blackwood and another (1851), 20 L. J.
Cc. PL 187; 11 C. B. 111; 15 Jur. 861; Wibbins v. Lee (1864),
1LL. T. 541; 4F. & F. 243.

(x) Hedley v. Barlow (1865), 4 F. & F, 224.

(y) Roberts v. Brown (1834), 10 Bing. 519; 6 C. & P. 757 ;
Felkin v. Herbert (1863-4), 33 L. J. Ch. 294. See also cases
on pp. 85—86, supra.

(:) Per Cockburn, C. J., in Woodgate v. Ridout (1865), 4
F. & F. 217.

(a) Hedley v. Barlow, supra.

(b) Mulkern v. Ward (1872), L. R. 13 Eg. 622; 41 LJ.
Ch. 464.

(c) Walson v. Reed and others (1860), 2 F. & F. 149.

(d) Turnbull v. Bird (1861),2 F. & F. 508; Seymour v.
Butterworth (1862), 3 F. & F. 372.

(e) Dunne y. Anderson (1825), 3 Bing. 88; 10 Moore, 407 ;
R. & M. 287; Wason v. Walter (1868), L. R. 4 Q. B. 73; 38
L. J. Q. B. 34.
96 THE LAW OF LIBEL AND SLANDER.

debate in the House thereon (f); a report by the
Board of Admiralty (@).

(2) The public conduct of everyone who takes part
a public affairs (h). As Cockburn, C. J., said, in
Seymour v. Butterworth (7), “it was not disputed
that the public conduct of a public man might
be discussed with the fullest freedom, it might
be made the subject of hostile criticism and of
hostile animadversions, provided the language
of the writer was kept within the limits of an
honest intention to discharge a public duty, and
was not made a means of promulgating slanderous
and malicious observations.”

Under this head comes the public conduct of
statesmen and politicians (/), public agitators (/),
clergymen (m), judges and magistrates (7), bar-
risters (0), candidates for parliament (p) and
their supporters in public (q), vestrymen and

(f) Wason v. Walter, supra.

(g) Henwood v. Harrison (1872), L. R. 7 C. P. 606 ; 41 L. J.
C. P. 206; 26 L. T. 938; 20 W.R. 1000. See the obser-
vations of Bowen, L. J., on this case in 20 Q. B. D. 282, 283.

(h) See the observations of Bramwell, B., in Helly v. Sherlock
(1866), L. R. 1 Q. B. at p. 689; 35 L. J. Q. B. 209.

(¢) (1862), 3 F. & F, at p. 376.

(k) Parmiter vy. Coupland and another (1840), 9 L. J. Ex.
202; 6 M. & W. 105.

(1) Odger v. Mortimer (1873), 28 L. T. 472.

(m) Kelly v. Tinling (1865), L. R. 1 Q. B. 699; 35 L. J.
Q. B. 231.

(n) Hibbins v. Lee (1864), 11 L. T. 541; 4 F. & F. 243,

(0) Seymour v. Butterworth (1862), 3 F. & F. 372.

(q) Davis v. Duncan (1874), L. BR. 9 C. P. 396; 43 L. J.
C. P. 185; 30 L. T. 464.
MATTER OF PUBLIC INTEREST. 97

waywardens (7), petitioners to parliament (s); but
not the private conduct of such persons save in so
far as it affects their public relations (¢).

(3) Legal (wu) and ecclesiastical (x) matters. The
mode of conducting church services (vy); but not
the affairs of a private society established by the
incumbent (2).

(4) The administration of public cnstitutions and
local affazrs. Anything done in office by a
member of a highways board(a); “the manage-
ment of the poor and the administration of the
poor law” (b); the report of an inspector of
charities under the Charitable Trusts Acts (c).

(5) Places of public amusement or entertainment.
A flower show (d@), and a public concert or music
hall (e).

(6) Literature. The contents of any news-

(r) Harle v. Catherall and others (1866), 14 L. T. 801.

(s) Wason v. Walter, supra.

(t) Pankhurst v. Hamilton (1887), 3 Times L. R. 500.

(uw) Per Cockburn, C. J., in Cox v. Feeney (1863), 4
F. & F.13; and in Purcell v. Sowler (1877), 2 C. P. D. 218
(C. A.).

(x) Kelly v. Tinling (1865), L. R.1Q. B. 699; 35 L. J.
Q. B. 231.

(y) Kelly v. Tinling, supra.

(z) Gathercole v. Miall (1846), 15 L. J. Ex. 179; 10 J. P.
582; 10 Jur. 337; 15 M. & W. 319.

(a) Harle v. Catherall and others (1866), 14 L. T. 801.

(6) Per Cockburn, C. J., in Purcell v. Sowler (1877), 2C. P. D.
at p. 218.

(c) Cox v. Feeney (1863), 4 F. & F. 13.

(d) Green v. Chapman (1837) 4 Bing. N. C. 92; 5 Scott,
340.

(e) Dibdin v. Swan and Bostock (1793), 1 Esp. 28.

L.S. H
98 THE LAW OF LIBEL AND SLANDER.

paper (f) or book (gq), or its author as such (A) ;
but not the private character of an author (2), or
journalist (/:).

(7) Art. Painting (/), and architecture (m).

(8) Anything which invites public attention or
criticism (nv). A stage-play (0), the contents of a
pamphlet (7), advertisement (q), or handbill issued
to the public (7). It has also been held that the
sanitary condition of a large number of cottages
let by the proprietors of a colliery to their work-
men isa matter of public interest (s).

(f) Hertot v. Stuart (1796), 1 Esp. 437; Stuart v. Lovell
(1817), 2 Stark. 93; Campbell v. Spottiswoode, supra.

(9) Macleod v. Wakley (1828), 3 C. P. 311; Strauss v.
Francis (1866), 15 L. T. 674; 4 FL & F. 939, 1107.

(A) Carr v. Hood (1808), 1 Camp. 355, n.

(t) Fraser v. Berkeley (1836), 7 C. & P. 621.

(k) Russell and another v. Webster (1874), 23 W.R.59. See
also Strauss v. Francis, Heriot v. Stuart, Stuart v. Lovell,
Campbell v. Spottiswoode, supra.

(2) Thompson v. Shackell (1828), 1 Moo. & Mal. 187.

(m) Soane v. Knight (1827), Moo, & Mal. 74.

(n) Morrison v. Belcher (1863), 3 F. & F. 614; Duplany v.
Davis (1887), 3 Times L. R. 184.

(0) Merivale v. Carson (1887), 20 Q. B. D. 275 (C. A.)

(p) Hibbs v. Wilkinson (1859), 1 F. & F. 608; Koenig v.
Ritchie (1862), 3 F. & F. 413; Odger v. Mortimer (1873), 28
L. T. 472.

(q) Morrison and another v. Harmer and another (1837), 3
Bing. N. C. 759; Hunter v. Sharpe (1866), 15 L. T. 421; 4
F, & F. 983.

(r) Eastwood v. Holmes (1858), 1 F. & F. 347; Paris v.
Levy (1860), 30 L. J. C. P. 11; 3 L. T. 324; Jenner and
another v. A’ Beckett (1871), L. R. 7 Q.B. 11; 41 L. J. Q. B.
14; 25 L. T. 464,

(s) South Hetton Coal Co. v. N. E. News Association (1894),
1 Q. B. 133 (C. A.)
PRIVILEGE. 99

Art. 24.—Privilege.

In certain cases, even though the matter com-
plained of is defamatory, in the interests of public
policy no liability attaches to the publication thereof
—in other words, the occasion ts privileged.

Privileged occasions are of two kinds :—I. Occa-
sions of absolute privilege, where no action lies,
however untrue or malicious the statements may
have been (t). This exists in the following
cases :—

(1.) Statements made in parliament or in the

course of judicial, naval, military, or
state proceedings (1).

(2.) Reports, &e., published by order of parlia-
ment (v).

(3.) Reports in a newspaper (x) of proceedings
ma court of justice, if published con-
temporaneously with such proceedings (y).

IT. Occasions of qualified privilege. Upon occa-
sions of this kind, no action les where the statement
ts made bond fide, and in a manner not exceeding
what is reasonably necessary for the occasion.
Proof of actual malice will rebut the prima facie
protection afforded by such an occasion, and it is
Sor the plaintiff to prove that the defendant acted

(t) The terms “malicious” and “maliciously” are here
and throughout used in the ordinary sense of any corrupt or
wrong motive, or as it is technically called “ malice in fact,”
as to which, see Art. 38, p. 152, infra.

(u) Art. 25, p. 103, infra.

(v) Art. 26, p. 109, infra.

(x) As to the meaning of “newspaper” see p. 111, infra.

(y) Art. 27, p. 110, enfra.

H 2
100 THE LAW OF LIBEL AND SLANDER.

in bad faith, not for the defendant to prove that
he acted in good faith (z).

Qualified privilege exists in the following cases :—

(1.) Reports other than those in a newspaper (a)
of judicial proceedings ; and reports m
a newspaper of such proceedings, if not
published contemporaneously with such
proceedings (b).

(2.) Extracts from registers kept pursuant to
statute, and reports of proceedings of
quasi-judicial bodies created by statute (c).

(3.) Reports of proceedings in parliament (d).

(4.) Reports of proceedings of public meetings(e).

(5.) Reports of vestry meetings, ke. (f).

(6.) Notices and reports published at request
of government office or authority (g).

(7.) Statements made to «a public servant or
other person in authority with the object
of preventing or punishing crime, or
redressing a public grievance (h).

(8.) Statements made with the object of protecting
some interest of the writer or speaker, and
reasonably necessary for such purpose (2).

(2) Clark v. Molyneux (1877), 3 Q. B.D. 237; 47 L. J. Q. B.

230 ; Jenoure v. Delmege (1891), App. Cas. 73; 60 L. J. P. C.
11; Aberdein v. Macleay (1893), 9 Times L. R. 539.

(a) As to the meaning of “newspaper,” see p. 111, znfra.

(0) Art. 28, p. 115, énfra.

(c) Art. 29, p. 120, enfra.

(d) Art. 30, p. 122, cnfra.

(e) Art. 31, p. 123, infra.

(f) Art. 32, p. 130, infra.

(g) Art. 33, p. 133, enfra.

(A) Art. 34, p. 134, infra.

(i) Art. 35, p. 135, infra.
PRIVILEGE. 101.

(9.) Statements made with the object of pro-
tecting an interest common to the writer
or speaker and the person to whom the
statement is made (k).

(10.) Statements made in discharge of a legal,
moral, or social duty (Ll).

Nore—‘ The question whether the occasion is
privileged, if the facts are not in dispute, is a
question of law only, for the judge, not for the
jury. If there are questions of fact in dispute
upon which this question depends, they must be
left to the jury, but, when the jury have found
the facts, it is for the judge to say whether they
constitute a privileged occasion” (m).

“A confusion is often made between a privi-
leged communication and a privileged occasion.
It is for the jury to say whether a communi-
cation was privileged ; but the question whether
an occasion was privileged is for the judge, and
that question only arises when there has been
publication to a third party” (m). In other
words, “whether or not the occasion gives that
privilege is a question of law for the judge; but
whether or not the party has fairly and properly
conducted himself in the exercise of it (¢.e. whether
he has acted maliciously), is a question for the

(k) Art. 36, p. 138, infra.

(1) Art. 37, p. 143, onfra.

(m) Per Lord Esher, M. R., in Hebditch v. McIlwaine (1894),
2 Q. B. at p. 58.

(n) Per Lopes, L. J., in Pullman v. Hill & Co. (1891), 1
Q. B. at p. 529.
102 THE LAW OF LIBEL AND SLANDER.

jury” (0). Ifthe judge rules that the occasion is
privileged, “and if there is no evidence of malice
to go to the jury, it is his duty to enter judgment
for the defendant. On the other hand, if the
occasion is not privileged, or if there is any
evidence of malice, then the case must be left to
the jury” (p).

It is, however, frequently a matter of great
difficulty to determine whether or not a particular
occasion is privileged. As was pointed out by
Erle, C. J., in Whiteley v. Adams (q), in a passage
which was lately cited with approval by Lopes,
L. J. (vr): “Judges who have had from time to
time to deal with questions as to whether the
occasion justified the speaking or the writing of
defamatory matter, have all felt great difficulty in
defining what kind of social or moral duty, or
what amount of interest, will afford a justitica-
tion; but all are clear that it is a question for the
judge to decide.”

Again, in the words of Lindley, L. J., in the
case of Stuart v. Bell (s): “The reason for

(0) Per Lord Campbell, C. J., in Dickson v. Earl of Wilton
(1859), 1 F. & F. at p. 419.

(p) Per Lindley, L. J., in Stuart v. Bell (1891), 2 Q. B. at
p. 345. See also Aberdein v. Macleay (1893), 9 Times L. R.
539; and as to what constitutes malice, see Article 38, p. 152,
anfra.

(g) (1863), 15 C. B. N.S. at p. 418.

(r) In Allbutt v. General Council of Medical Education and
Registration (1889), 23 Q. B. D. at p. 413. See also the
observations of the same learned judge in Borsius v. Goblet
Freres (1894), 1 Q. B. at p. 846.

(s) (1891), 2 Q. B. at p. 346.
JUDICIAL PROCEEDINGS, ETC. 103

holding any occasion privileged is common con-
venience and welfare of society, and it is obvious
that no definite line can be drawn so as to
mark off with precision those occasions which are
privileged, and separate them from those which
are not. Coaxhead vy. Richards (t), in which four
eminent judges were equally divided upon the
question whether an occasion was privileged or
not, is a striking illustration of the truth of the
remark.”

Arr. 25.—Statements made in parliament or in
the course of judicial, naval, military, or
state proceedings.

Every statement made in parliament ov im the
course of judicial, naval, military, or state pro-
ceedings is absolutely privileged, and no action
will lie however false and malicious such statement
may have been.

Note 1.—ZJn parliament. No member is in any
way liable for anything said in the House (w),
but this privilege does not attach to anything
said outside the walls of the House, nor to a
speech printed and privately circulated outside
the House (2).

A qualified privilege, t.e. a privilege rebuttable
by proof of express malice, attaches to a speech

(t) (1846), 2 C. B. 569.

(uw) Bill of Rights, 1 Will. M. st. 2, c. 2.

(x) Rex v. Abingdon (1794), 1 Esp. 226; Rew v. Creevey
(1813), 1 M. & 8. 273.
104 THE LAW OF LIBEL AND SLANDER.

printed and circulated by a member amongst his
own constituents only (y).

A petition to parliament (z) or to any committee
thereof (a) is absolutely privileged. So, too, is
anything said by a witness before a Select Com-
mittee of either House (0).

Nore 2.—Judicial proceedings. “The authori-
ties establish beyond all question this: that neither
party, witness, counsel, jury, nor judge can be
put to answer civilly or criminally for words
spoken in office ; that no action of libel or slander
lies, whether against judges, counsel, witnesses,
or parties, for words written or spoken in the
course of any proceeding before any court recog-
nized by law, and this though the words written or
spoken were written or spoken maliciously, without
any justification or excuse, and from personal
ill-will and anger against the person defamed” (c).

“The ground of that rule is public policy” (d).
Thus all pleadings (e) and affidavits (7) are

(y) Davison v. Duncan (1857), 7 E. & B. 233; 26 L. J.
Q. B. 104; Wason v. Walter (1868), L. R. 4 Q. B. 95; 38
L. J. Q. B. 42.

(z) Lake v. King (1680), 1 Saund. 131; 1 Lev. 240; 1
Mod. 58.

(a) Kane v. Mulvany (1866), Ir. R. 2 C. L. 402.

(4) Goffin v. Donnelly (1881), 6 Q.B.D. 307; 50 L.J.Q.B.303.

(c) Per Lopes, L. J., in Royal Aquarium, &c. Soc. v. Parkinson
(1892), 1 Q. B. at p. 451.

(d) Per Lord Esher, M. R., zbed. at p. 442.

(e) Lord Beauchamps v. Sir R. Croft (1569), Dyer, 285 a.

(f) Astley v. Young (1759), 2 Burr. 807 ; Gompas v. White

(1890), 54 J.P. 225; Lilley v. Roney (1892), 8 Times L. R.
642,
JUDICIAL PROCEEDINGS. 105

absolutely privileged. So, too, are statements
made in an objection to a bill of costs carried in
under the provisions of Ord. LXV., Rule 27 (9).
Similarly, every statement made by an advo-
cate whilst acting in that capacity, whether
counsel (i), solicitor (7), or the party in person (A),
is absolutely privileged, and no action will lie, no
matter how false or malicious or irrelevant to the
matter in issue the words complained of may have
been. Where, however, an advocate is knowingly
acting without any sort of authority or retainer,
or where his retainer has to his knowledge been
withdrawn, it is submitted that his statements
would be in no way privileged, even though made
in a court of justice.

Further, it is submitted that for reasons of public
policy where a professional relation is created
between a solicitor and client no action will le
in respect of any communication passing between
the solicitor and client with reference to the matter
upon which the client is seeking the professional
advice of such solicitor, and which is relevant to
such matter; and that provided the communica-
tion fulfils these conditions the privilege is not
destroyed by the fact that the solicitor or client in
making such communication is actuated by malice

(9) Pedley v. May (1892), 8 Times L. R. 2.

(h) Munster v. Lamb (1883), 11 Q. B. D. 588; 52 L. J.
Q. B. 726.

(*) Mackay v. Ford (1860),5 H.& N. 792; 29 L. J. Ex.
404.

(k) Hodgson v. Scarlett (1818), 1 B. & Ald. 244.
106 THE LAW OF LIBEL AND SLANDER.

against some third person (/). It is also sub-
mitted that the same rule would apply to similar
communications between counsel and solicitor,
and between counsel and client.

With regard to witnesses and jurors, and also
with regard to judges of interior courts, the
general rule laid down on the preceding page
requires modification. Every statement made
by a witness in the box is absolutely privileged,
provided that it refers to the inquiry before
the Court, and this is so even it the statement
in question is volunteered (m). But no privilege
would attach to the statements of a witness wholly
unconnected with the matter in issue, and made
entirely on his own account, and to serve his own
ends, nor to statements made before entering or
after leaving the box (nm). So, too, every obser-
vation of a juror made in the jury-box is abso-
lutely privileged if connected with the matter in
issue (0).

As regards words spoken by a judge, the general
rule laid down above is true only of judges of
superior courts, z.e., of the House of Lords, the
Judicial Committee of the Privy Council, the
Court of Appeal, the High Court of Justice and

(J) See the observations of Lord Herschell, L. C., in Browne
v. Dunn (1893), 6 R. at pp. 71, 72, and 73 ; and of Lord Bowen,
wbhid. at p. 80.

(m) Seaman v. Netherclift (1876), 1 C. P. D. 540; 45 L. J.
C. P. 798.

(n) Lrotman v. Dunn (1815), 4 Camp. 211; Lynam v.Gowing
(1880), 6 L. R. Ir. 259.

(0) Rex v. Skinner (1772), Lofft, 55.
JUDICIAL PROCEEDINGS. 107

any Divisional Court thereof (»), and Courts of Nisi
Prius and Assize (q). Every statement made in
otce by a judge of a superior court is absolutely
privileged, and under no circumstances will an
action lie therefor (7). A similar privilege is ex-
tended to words spoken in office by the judges of
interior courts of record, provided that the judge
has jurisdiction in the matter before him. If
he knows, or ought to know, that he has no
jurisdiction, he is in no way protected (s). No
privilege attaches to words spoken out of office (t).

Everything said in office by a justice of the
peace is also privileged, and no action lies unless
the words complained of are wholly unconnected
with the matter in issue, and are spoken mali-
ciously and without reasonable and probable
cause (1).

“A justice (or other judicial authority) sitting
to administer the lunacy laws . . . is exercising
a judicial function ; . . . the occasion (therefore is)
absolutely privileged, and statements made in the
course of the proceedings are not actionable” (x).

It is, however, important to notice that this

(p) Jud. Act, 1873, s. 39.

(q) Ex parte Fernandez (1861), 30 L. J. C. P. 321.

(r) Anderson v. Gorrie (1895), 1 Q. B. 668.

(s) Calder v. Halket (1839), 3 Moo. P. C. C. 28; Houlden v.
Smith (1850), 14 Q. B. 841; 19 L. J. Q. B. 170.

(t) Paris v. Levy (1861), 9 C. B. N.S. 342; 30 L. J.

Cc. P. 11.
(w) Kirby v. Simpson (1854), 10 Exch. 358; Gelen v. Hall

(1857), 2 H. & N. 379.
(x) Per A. L. Smith, L. J., in Hodson v. Pare (1899), 1 Q. B.

at p. 458.
108 THE LAW OF LIBEL AND SLANDER.

privilege is confined to statements made in the
course of strictly judicial proceedings, aud is one
which will not be extended. “It belongs...
to courts recognized by law, and to such courts
only” (y). A meeting of the London County
Council for granting music and dancing licences
under 25 Geo, 2, c. 36, s. 2, is not such a court;
and it was accordingly held by the Court of
Appeal in Royal Aquarium, ée. Soc. v. Parkinson (2)
that a county councillor, making a defamatory
statement at such a meeting with regard to a
person applying for a licence, is not entitled to
absolute immunity from an action in respect of
such statement. He is only entitled to the ordi-
nary qualified privileze which may be rebutted by
proof of express malice.

Nore 3.—Naval, military, and state proceedings.
Everything written or said in the course of any
naval or military proceeding is absolutely privi-
leged. Thus, any defamatory statement made
before a naval or military court-martial, no matter
how untrue and malicious, is protected (a). Simi-
larly, no action lies in respect of such a statement
in a report made in the course of military or naval

duty (0).

(y) Per Lopes, L. J., in Royal Aquarium, de. Soc. v. Par-
kinson (1892), 1 Q. B. at p. 451.

(z) (1892), 1 Q. B. 431.

(a) Dawkins v. Lord Rokeby (1875), L. R. 7 H. L. 744; 45
L. J. Q. B. 8.

(2) Dawkins v. Lord Paulet (1869), L. R. 5 Q. B. 94; 39
L. J. Q. B. 53.
REPORTS, ETC., ORDERED BY PARLIAMENT. 109

* For reasons of public policy the same protec-
tion would no doubt be given to anything in the
nature of an act of state, for example, to every
communication relating to state matters made by
one minister to another, or to the Crown.*

Art. 26.—Reports, &c., published by order of
Parliament.

All reports, papers, votes, and proceedings pub-
lished by order of either House of Parliament,
and every verified copy thereof, are absolutely
privileged, and all proceedings at law, civil or
criminal, will be immediately stayed on produc-
tion of a certificate that such reports, &c., were
published by order of either House (c).

Nore 1.—This statutory provision terminated
the long struggle between the House of Commons
and the Courts of Justice, the latter having held,
in the famous case of Stockdale v. Hunsard (d), that
at common law no privilege attached to the publica-
tion of parliamentary reports and papers, even if
such publication were by order of the whole House.

Nore 2.—-The publication of extracts from or
abstracts of such reports, &c., is privileged, if, in
the opinion of the jury, such publication was bond
fide and without malice (e).

* This passage was cited with approval by Lord Esher,
M. R., and Kay, L. J., in Chatterton v. Secretary of State for
India in Council (1895), 2 Q. B. at pp. 191, 194.

(c) 3&4 Vict. c. 9, ss. 1, 2, pp. 256, 257, infra.

(d) (1839), 9 A. & EB. 1, 243; 7C.& P. 731.

(ce) 3.& 4 Vict. c. 9, 8. 3, p. 258, enfra.
110 THE LAW OF LIBEL AND SLANDER.

Arr. 27.—Reports in a newspaper of proceed-
ings in a court of justice.

It is submittel that @ report im any news-
paper (f) of proceedings publicly heard before
any Court exercising judicial authority (g) pub-
lished contemporaneously with such proceedings (h),
ts privileged, provided that it is—

(1.) Fawr aid accurate (1).

(2.) Not prohibited by order of the Court (k).

(3.) Not blasphemous (1), seditious, or wm-
decent (1).

Nore 1.—Having regard to sect. 3 of the Law
of Libel Amendment Act, 1888 (x), it is submitted
that the above is an accurate statement of the
law as it now stands, and that a report coming
within the above Article, and satisfying the pro-
visos contained therein, is absolutely privileged, so
that, no matter how malicious may have been the
publication of it, uo action will le. For although
sect. 3 does not state in express terms that the
report shall be absolutely privileged, there are no
words, as in sect. 4, to the effect that the report
shall be privileged “unless it shall be proved that

(7) As to the meaning of “ newspaper,” see p. 111, infra.

(g) See pp. 116, 117, infra.

(kh) See Note 2, p. 113, entra.

(¢) See pp. 117—119, enfra.

(k) Rex v. Clement (1821), 4 B. & Ald. 218; 11 Price, 69.

(1) Rea v. Mary Carlile (1819), 3 B. & Ald. 167,

(m) Steele v. Brannan (1872), L. R. 7 C. P. 261; 41 L. J.
M. C. 85; 26 L. T. 509; 51 & 52 Vict. c. 64, s. 3.

(n) Set out on p. 274, enfra.
NEWSPAPER REPORTS, 111

such report was published or mode maliciously.”
Moreover, if this interpretation be incorrect, sect. 3
is merely declaratory of the law as it existed
before the passing of the Act. On the other hand,
if such reports be in fact absolutely privileged, a
remarkable example is afforded of the failure of
the legislature to accomplish its intentions, for it
is quite clear from the debates im parliament (0)
(evidence of which would, of course, not be ad-
mitted to show what those intentions were) that
the legislature did not intend that such reports
should be privileged if published maliciously.
Newspaper.—By sect. 1 of the Law of Libel
Amendment Act, 1888, the meaning of the word
“newspaper” for the purposes of such Act is defined
to be the same as in the Newspaper Libel and
Registration Act, 1881, “¢., “any paper contain-
ing public news intelligence or occurrences, or
any remarks ov observations therein printed for
sale, and published in Eneland or Ireland periodi-
eally, or in parts or numbers at itervals not ex-
ceeding twenty-six days between the publication
of any two such papers, parts, or numbers ; also
any paper printed in order to be dispersed and

(0) Sect. 3 of the Bill as originally submitted to Parliament
provided that “a fair and accurate report published in any
newspaper of proceedings of and in any Court exercising
judicial authority, shall be absolutely privileged.” In Committee
on June 6th, 188s, Sir Algernon Borthwick moved and carried
an amendment to the effect that the word “absolutely ” should
be omitted, in order, as was then expressly stated, to render
such reports unprivileged if it were proved that they had been
published maliciously.
112 THE LAW OF LIBEL AND SLANDER.

made public weekly or oftener, or at intervals
not exceeding twenty-six days, containing only,
or principally, advertisements.” Therefore the
Act has no application to magazines, or to monthly
trade papers, or to any paper or pamphlet, though
printed for sale and containing public news, and
published periodically, if such publication be at
intervals exceeding twenty-six days (jp). If any
of these contain a report of judicial proceedings,
such report is in no way affected by the Act of
1888—the law still being that it is privileged,
provided that it is :—

(1) fair and accurate ;

(2) not prohibited by order of the Court ;

(3) not blasphemous, seditious, or obscene ;
but,—and this is the point to notice,—all privilege
which the defendant may have will be effectually
rebutted by proving that he published the libel
maliciously (g). Where the defendant has pub-
lished the report complained of in the ordinary
course of his business as proprietor, editor, or re-
porter of the newspaper, it will be very difficult,
if not impossible, to prove malice ; but where the
defendant was a party to the action reported (7),
or the solicitor for one of the parties (s), it will be
more easy to satisfy a jury that he published the
report maliciously.

(py) Cf. Att.-Gen. v. Bradbury and Evans (1851), 21 L. J. Ex.
12; 7 Ex. 97.

(q) Salmon v. Isaae (1869), 20 L. T. 885.

(r) As in Dodson v. Owen (1885), 2 Times L. R. 111.

(s) As in Stevens v. Sampson (1879), 5 Ex. D. 53 (C. A.) ;
49 L. J. Ex. 120,
NEWSPAPER REPORTS. 113

Note 2.—/f published contemporaneously with
such proceedings. If, as above submitted, sect. 3
of the Act of 1888 extends the privilege hitherto
possessed by reports of judicial proceedings
published in a newspaper, it is, on the other
hand, at least open to question whether by the
insertion of these words it does not restrict it.
Prior to the passing of this Act every fair and
accurate report of judicial proceedings, whether
published by a newspaper or not (t), and whether
published contemporaneously with such proceed-
ings or not, was primd facie privileged, and in
order to succeed the plaintiff would have had to
prove that the defendant had published the report
maliciously. The fact that the report was not
published until some time after the proceedings
had taken place would be evidence of malice, but
that was all; it would not ipso facto render the
report unprivileged, and the jury would have to
find malice. Though the matter is not wholly
free from doubt, it is submitted that at the
present time the law is still the same, except in
the case of reports which come within sect. 5 of
the Law of Libei Amendment Act, 1888 (wu). It
has been suggested, erroneously in the author's
opinion, that the effect of this section is to
deprive of all privilege every report in a news-
paper of proceedings publicly heard before any
Court exercising judicial authority, ¢f a 7¢s not
published contemporaneously with such proceedings,

(t) Per Brett, L. J., in Mulessich v. Lloyds (1877), 46 L. J.
C. P. 404; 36 L. T. 423.
(wu) See Art. 27, p. 110, and Note 1, p. 110, supra.

1.8. 1
114 THE LAW OF LIBEL AND SLANDER.

even though fair and accurate, and published
bond fide and without malice. It is, however,
submitted that if the Court is of opinion that the
report is mot published contemporaneously with
the proceedings, the section does not apply, and
the privilege is then the qualified privilege given
by the common law, which will be rebutted on
proof of malice.
To sum up then, a report of judicial proceedings
will fall into one of the following classes :
(1.) Reports in a newspaper as defined by
sect. 1 of the Law of Libel Amendment
Act, 1888 (x), published contempora-
neously with such proceedings. These, it
is submitted, are absolutely privileged (y).
(2.) Reports in a newspaper as so defined not
published contemporaneously with such
proceedings. These obtain a qualified
privilege by the common law; but the
fact of their not being published con-
temporaneously would in the majority
of cases be such strong evidence of
malice as to render the privilege useless,
(3.) Reports elsewhere than in a newspaper as
so defined. ‘These also obtain a qualified
privilege by the common law (z), which
may be rebutted by proof that they were
published maliciously by the defendant.
What then is the precise meaning of the words 7
published contemporaneously with such proceedings ?

(x) For definition, see supra, p. 111.
(y) See Art. 27, p. 110, and Note 1, p.110, supra.
(2) See Art. 28, p. 115, enfra,
NEWSPAPER REPORTS. 115

Strictly speaking, a report published in an evening
paper of a trial which has taken place on the same
day is not “published contemporaneously with such
proceedings,” still less the report in the next
morning's paper. It cannot, however, be seriously
contended that such reports are not now, as they
have been for more than a century, privileged if
substantially correct. The difficulty of course arises
when we consider what length of time must elapse
between the trial and the publication of the report
in order to bring the latter within the description
“not published contemporaneously with such pro-
ceedings.” And it is evident that the time in
question must vary according to the opportunity
and time of publication of the paper. Thus, a
report published in a daily paper a fortnight after
the proceedings had taken place would be in a very
different category from the same report published at
the same time by a paper which only appeared once
in every fortnight, and which had had no previous
opportunity of publishing it.

Arr. 28.—Other reports of judicial proceedings.

A report of judicial proceedings other than that
dealt with in the preceding Article is privileged,
provided that it is (1) fair and accurate, (2) not
prohibited by order of the Court, and (3) not
blasphemous, seditious, or indecent; but such
privilege will be rebutted by proof that defendant
published such report maliciously (4).

(a) As to the meaning of maliciously, see p, 152, infra,

12
116 THE LAW OF LIBEL AND SLANDER.

Note 1.—Prior to 1888 every fair and accurate
report of judicial proceedings, whether published
in a newspaper or not, obtained at the common law
a qualified privilege, which was liable to be rebutted
by proof that it was published maliciously. And
this is still the law except as to reports coming
within Art. 27, p. 110, sepra, which, as has been
submitted, are absolutely privileged, and are pro-
tected, no matter how malicious may have been
their publication. The qualified privilege at
common law is the same “for a private individual
as for a newspaper” (4); it is not a special privilege
accorded to newspapers (c).

Note 2.—Report of judicial proceedings. Under
this description come reports of proceedings before
a judge at chambers (d), in gaol before a registrar
in bankruptcy (e), before a County Court judge in
his own room to which the public have access (/),
before examiners duly appointed to inquire into
the sufficiency of sureties offered on trial of an
election petition (9).

Having regard to the case of Usill v. Hales (h),
it is also now clear law—although it was at
one time doubted—that all reports of ex parte

(6) Per Brett, L. J., in Milissich v. Lloyds (1877), 46 L. J.
C. P. 404.

(c) See the observations of Day, J., in Rumney v. Walter
(1892), 8 Times L. R. at p. 262,

(d) Smith v. Scott (1847), 2 C. & K, 580.

(e) Ryalls v. Leader and others (1865), L. R. 1 Ex. 296; 35
L. J. Ex. 185; 14 L. T. 563,

(f) Myers v. Defries, Times, July 23, 1877.

(g) Cooper v. Lawson (1838), 8 A. & E. 746.

(h) (1878), 3 C. P. D. 319; 47 L. J.C. P. 323 ; 38 L. T. 65.
REPORTS OF JUDICIAL PROCEEDINGS. 117

proceedings are similarly protected, whether such
proceedings result in the discharge by the magistrate
of the party charged (as in Curry v. Walter (7)
and Lewis v. Levy (k)) or not. Usill v. Hales (1)
was followed in Atmberv. The Press Association (m),
where plaintiff sued the defendants for a libel upon
him contained in a fair and accurate report of an
ex parte application for a summons against him for
perjury. It was proved that the only persons
present at the hearing were the counsel making
the application, the magistrates, their clerk, his
assistant, and the defendants’ reporter. Jt was also
proved that the defendants had published the report
in the ordinary course of their business, and that
they had subsequently published a fair and accurate
report of the hearing of the summons when the
charge against the plaintiff was dismissed as being
wholly without foundation. Upon these facts
Hawkins, J., non-suited the plaintiff, and this
decision was upheld by the Court of Appeal.

Note 3.—Fair and accurate. It is not necessary
that the report should be verbatim, but it must be
“ substantially a fair account of what took place”
in Court (7). Thus, “it is sutticient to publish a
fair abstract” (0). A report is not fair and accurate

(z) (1796), 1 B. & P. 525; 1 Esp. 456.

(k) (1858), 27 L. J. Q. B. 282; E. B. & B. 537,

(1) (1878), 3 C.P. D. 319; 47 L. J. C. P. 323; 38 L. T. 65.

(m) (1892), 8 Times L. R. 671; (1893), 1 Q. B. 68 (C. A.).

(n) Per Lord Campbell, C. J., in Andrews v. Chapman (1853)s
3C. & K. 289.

(0) Per Mellish, L. J., in AMilissich vy. Lloyds (1877), 46
L. J. C. P. 404.
118 THE LAW OF LIBEL AND SLANDER.

which contains an epitome of the speeches of
counsel, but omits all reference to the evidence (p),
or only refers to it by stating that the witnesses
“proved all that had been stated by the counsel
for the prosecution” (q); or which states that
certain facts appeared from the evidence, when in
reality no evidence had been given of such facts (7) ;
or which states “from inquiries made by our
reporter, &c., &c.,” when in fact the reporter had
not made inquiries, but had merely copied certain
atfidavits (s). A report which only consists of part
of the judgment, material parts of which are omitted,
is of course not privileged (¢). If possible, the
summing up of the learned judge should always
be given, although this will not protect a report
which contains in addition such an account of the
proceedings at the trial as renders the report taken
as a Whole unfair and inaccurate (wu). As regards the
report of a judgment standing by itself, it would
appear that ‘‘a fair and accurate report of the judg-
ment in an action, published bond fide and without
malice, is privileged, although not accompanied by
any report of the evidence given at the trial” (a).

(p) Woodgate v. Ridout (1865), 4 F. & F. 202.

(q) Lewis v. Walter (1821), 4 B. & Ald. 605; Roberts v.
Brown (1834), 10 Bing. 519; 6 C. & P. 757.

(r) Pinero v. Goodlake (1866), 15 L. T. 676; Ashmore v.
Borthwick (1885), 49 J. P. 792; 2 Times L. R. 113, 209.

(s) Leg. v. Andrew Gray (1861), 26 J. P. 663.

(t) Hayward & Co. v. Hayward & Sons (1886), 34 Ch. D.
198; 56 L. J. Ch. 287; Grimwade v. Dicks (1886), 2 Times
L. R. 627.

(u) Milissich y. Lloyds (1877), 46 L. J.C. P. 404; 36 LT.
493 ; 13 Cox, C. ©. 575.

(x) Per Fry, L. J., in Macdougall v. Knight (1890), L. R. 25
REPORTS OF JUDICIAL PROCEEDINGS, 119

The report must be strictly confined to what
actually took place in Court. The reporter must
not add any comments of his own; if he does, no
privilege will attach thereto (y). “If any com-
ments are made, they should not be made as part
of the report. The report should be confined to
what takes place in Court, and the two things, report
and comment, should be kept separate ” (2).

The report of a trial should never be preceded
by a title which exaggerates the real facts of the
case. If it is, even though the report itself is
fair and accurate, damages may be recovered for
the libellous title. Thus, damages have been
recovered for heading the report of a case
“ Judicial delinquency” (a), “Sbameful conduct
of an attorney” (b), “ An honest lawyer ” (ce),
“ Wilful and corrupt perjury ” (d); the facts in
each case not justifying the imputations contained
in the heading (e).

Q. B. D. at p. 11. See, however, the observations of the Lord
Chancellor and Lord Bramwell in Jfacdougall v. Knight (1889),
14 App. Cas. at pp. 200—203.

(y) Cooper v. Lawson (1838), 8 A. & E. 746; 2 Jur. 919.

(z) Per Lord Campbell, C. J.,in Andrews v. Chapman (1853),
3C. & K. at p. 288.

(a) Stiles v. Nokes (1806), 7 East, 493.

(6) Clement v. Lewis and others (1820), 3 Br. & Bing. 297 ;
7 Moore, 200; Bishop v. Latimer (1861), 4 L. T. 775.

(c) Boydell v. Jones (1838), 7 Dowl. 210; 1 Horn. & H.
408; 4M. & W. 446.

(d) Lewis v. Levy (1858), 27 L. J. Q. B. 282; E. B. & E.
537.

(e) See also pp. 83—84, supra.
120 THE LAW OF LIBEL AND SLANDER.

Art. 29.—Extracts from registers kept pursuant
to statute, and reports of proceedings of
quasi-judicial bodies created by statute.

The publication of an extract from a register kept
pursuant to statute (d), or of a report of the proceed-
ings of a quasi-judicial body created by statute (e),
is privileged, provided that the extract or report is
fair and accurate, but such privilege will be rebutted
by proof that defendant published such extract
or report maliciously (f ).

Nore 1.—Latract from a register kept pursuant
to statute. “Where there is a register kept by virtue
of an Act of Parliament for the purpose of giving
information to the public, then, if a person makes
a copy of it and publishes it, although he does so for
the purpose of warning the public or tradesmen
about to give credit, yet if all that he does is to
publish a copy of the register which is intended to be
a public document it is a privileged publication” (9).
“The publication of a mere extract from a record of
judgements kept pursuant to statute is on the same
footing as a fair report of a judicial proceeding ” (/),

(d) Fleming v. Mewton (1848), 1 H. L. C. 343; Annaly v.
Trade Auxiliary Co., Ld. (1890), 26 L. R. Ir. 394.

(e) Allbutt v. General Council of Medical Education, ce.
(1889), 23 D. Q. B. 400.

(f) As to the meaning of “maliciously,” see Article 38,
p. 152, infra.

(g) Per Lord Esher, M. R., in Searles v. Scarlett (1892),
L. R. 2 Q. B. at p. 60, confirming Fleming v. Newton (1848),
1H. L. C. 363, ¢. v.

(h) Per Pollock, B., in Wr/Ziams v. Smith (1888), L. R. 22

Q. B.D. at p. 189 This case was tried before the Law of
Libel Amendment Act, 1888, became law, and therefore the
REPORTS OF QUASI-JUDICIAL BODY. feed

and is therefore privileged, unless the plaintiff can
prove that it was published maliciously.

In order to come within the protection of the
above rule, the extract must be fair and accurate.
Thus it was held in feiss v. Jerry (2), that there is
no privilege for the publication of an inaccurate
extract from a register kept pursuant to the Deeds
of Arrangement Act, 1887, even though the extract
in question was supplied by a Government official
under sect. 12 of the Act, and was thought by the
defendant to be a correct copy of the register.

As examples of publications within the protection
of the above rule may be mentioned the publi-
cation by trade or mercantile journals of receiving
orders under the Bankruptcy Act, extracts from
registers of bills of sale, County Court judgments, &e.

Nore 2.—<a report of the proceedings of a quasi-
judicial body created by statute. In Allbutt v.
General Council of Medical Education, dc. (hk),
the Court of Appeal held that a fair and accurate
report published without malice of the minutes of
the General Medical Council was privileged. “It
seems to us,” said the Court (/), “having regard
to the nature of the tribunal, the character of the
report, the interests of the Council, and the duty ot
the Council towards the public, that this report
stands on principle in the same position as a judicial

learned judge was referring to the qualified privilege which fair
reports of judicial proceedings have always obtained at common
law. See p. 116, supra.

(2) (1895), 11 Times L. R. 373.

(k) (1889), 23 Q. B. D, 400.

(1) Ibid., at p. 410.
199 THE LAW OF LIBEL AND SLANDER.

report.” It was urged on behalf of the plaintiff that
the privilege had been lost because there had been
a publication to the public at large, to a class
beyond those interested in the matter; but the Court
declined to adopt this view, stating (7) that in
their opinion ‘the public at large were interested
in these proceedings, and their publication was
information to which the public were entitled.”

Art. 80.—Reports of proceedings in parliament.

A report of proceedings in either House of Parlia-
ment ts privileged, provided that wt is fair and
accurate; but such privilege will be rebutted, if
plantiff prove that defendant published such report
maliciously (k).

Norse.—The above rule was fora long time doubt-
ful, but it is now clearly and satisfactorily settled
by Wason v. Walter (1), in which case the plaintiff
sued the proprietor of the Zimes for publishing a
report of a debate in the House of Lords comment-
ing severely on plaintiff’s conduct in procuring the
presentation of a petition to the House of Lords,
which charged a high judicial officer with misconduct,
and it was held that the report was privileged.

(i) Lbid., at p. 413.

(k) Wason v. Walter (1868), L. R. 4 Q. B. 73; 38 L. J. Q.B.
34. As tothe meaning of fair and accurate and maliciously,
see respectively pp. 117—119, supra, and p. 152, infra.

(2) (1868), L. R. 4 Q. B. 73; 38 L. J. Q. B. 34.
REPORTS OF PUBLIC MEETINGS. 123

Art. 31.—Reports of proceedings of public
meetings.

«l report published in any newspaper of the pro-
ceedings of a meeting bond fide and laofully held for
a lawful purpose and for the furtherance or discussion
of any matter of public concern, whether the admission
thereto be general or restricted, vs privileged, provided
that—{1) the report vs fair and accurate; (2) the
matter complained of is not blasphemous or indecent ;
and (3) the matter complained of is of public concern,
or the publication thereof is for the public benefit.
This privilege may be rebutted by proof (1) that the
report was published maliciously ; or (2) that the
defendant has after request refused or neglected to
insert in his newspaper a reasonable letter or statement
by way of contradiction or explanation of such
report (m).

Norte 1.—The law contained in this Article was
introduced by sect. 4 of the Law of Libel Amend-
ment Act of 1888.

In order to establish privilege for the publication
of proceedings at a public meeting, the defendant
will have to prove (a) that the report is fair and
accurate ; (b) that the meeting was bond fide and.
lawfully held for a lawful purpose, and for the
furtherance or discussion of any matter of public
concern; (c) that the matter complained of is of public
concern, or that the publication of the matter
complained of is for the public benefit.

(m) 51 & 52 Vict. c. 64,8. 4, pp. 274—275, infra. As to the
meaning of newspaper, see p. 111, supra ; and of the words
fair and accurate and maliciously, pp. 117—119, supra, and
p. 152, infra, respectively.
J24 THE LAW OF LIBEL AND SLANDER.

There has been a great deal of discussion as to
whether it will be necessary, in order to establish
privilege for the publication in a newspaper of any
of the proceedings specified in sect. 4 of the Act of
1888, to prove (1) that the matter is of public con-
cern, aid (2) that the publication thereof is for the
public benefit; or whether it will be sufficient to
prove either (1) or (2). At first sight the former
construction appears to be the correct one, but it is
submitted that a careful consideration of the words
of the section (nv) will prove that this is not so.
For the privilege is only taken away where the
matter is not of public concern, and the publication
of it is not for the public benefit; and if so, it
follows that where either the matter is of public
concern or the publication of it is for the public
benefit the privilege exists.

This view is confirmed by a consideration of
the clause in the same section which deals with
blasphemous or indecent matter. ‘That clause con-
tains two provisos—a proviso that no blasphemous
matter shall be protected, and a proviso that no
indecent matter shall be protected—consequently
the privilege will be taken away if it be proved
that the matter is blasphemous, or if it be proved
that the matter is indecent. On the other hand,
the clause dealing with the question under dis-
cussion is really only one proviso consisting of two
terms, both of which must co-exist in order that the
proviso may apply and the privilege be taken away ;
and should only one of them exist, the proviso fails
to apply and the privilege remains. In other words,

(x) Set out at pp. 274—275, injra.
REPORTS OF PUBLIC MEETINGS. 125

the Act does not give any new protection where two
blemishes occur, the first being that the matter is
not of public concern, the second that the publication
of it is not for the public benefit.

The effect of the two clauses may be presented in
the following tabular form :

I. “ Provided that there shall be no privilege

where—
(a) the matter is blasphemous, or
(b) the matter is indecent.”
Therefore if either condition (a) or (b) is
satisfied there is no privilege.
Il. “Provided that there shall be no privilege
where—
(a) the matter is not of public concern, and
(8) the publication of it is not for the
public benefit.”
Therefore if condition (a) or (B) is satisfied
there is privilege.

In the first case reported under this section—
Kelly v. O'Malley and others (0)—the facts were
as follows:—A meeting of dock labourers was
held for the purpose of discussing the sugar
bounties, and the plaintiff had attempted to
speak to the meeting, but was unable to do so
owing to the noisy and derisive observations of
certain persons who had known him some years
previously at Bristol, and who were present at the
meeting with the express object of preventing him
from addressing it. An accurate report of the pro-
ceedings appeared in the Star, containing, inter alia,
the substance of the noisy and derisive observations,

(0) (1889), 6 Times L. R. 62.
126 THE LAW OF LIBEL AND SLANDER.

which had no connection whatever with the sugar
bounties, but referred to events which had happened
at Bristol some twelve years previously. Mr. Baron
Huddleston left it to the jury to say whether such
events were matters of public concern, and whether
their publication was for the public benefit, and the
jury answered both questions in the negative. In
this and the other reported cases () under the same
section the Court expressed no opinion on the point
discussed above. In its practical aspect the dis-
cussion is perhaps somewhat useless, for it is difficult
to imagine any libellous matter of public concern
the publication of which would not be for the public
benefit, or any libellous matter of private concern
which it would be for the public benefit to publish.
It is possible that the pot may never be judicially
decided, for the case of Pankhurst v. Sowler (q)
seems to show that the question is for the jury, not
for the judge ; and it is most probable that any jury
which finds that the matter is of public concern would
also find that its publication was for the public benefit.

Nore 2.—A meeting bond fide and lawfully held
Sor a lawful purpose, and for the furtherance or dis-
cussion of any matter of public concern, whether the
admission thereto be general or restricted. The last
words of this clause would apparently cover reports
of meetings not in the widest sense public, ¢.g., of
meetings to which admission can only be obtained
by ticket, provided, of course, that the object of the

(p) Chaloner v. Lansdown & Sons (1894), 10 Times L. R.
290; Ponsford v. Minancial Times, Ld. and Hurt (1900), 16

Times L. R. 248.
(¢) (1887), 3 Times L. R. 193.
REPORTS OF PUBLIC MEETINGS. 127

meeting is lawful and for the furtherance or dis-
cussion of any matter of public concern. Probably,
also, reports of meetings held at a private house of
the same nature at which persons were only present
by invitation would be included. The meeting must
be “bond fide... held,” i.c., it must not be held
for the mere purpose of defamation—consequently,
the report of any meeting, if the jury were satisfied
that it had been held for such purpose, would not be
protected. Moreover, the meeting must be “ /azfully
held,” v.e., it must not be held in violation of the
law, e.g., In contravention of the statutes against
tumultuously petitioning Parliament (7); and “ for
a lawful purpose ;” thus it must not be illegal (s),
or seditious (¢), or held under such circumstances as
will probably cause a breach of the peace (w). It
has been held (a) that a meeting of the shareholders
of a public company called for the purpose of
obtaining the co-operation of the shareholders to a
project for providing further capital is a “ public
meeting” within the meaning of the Act. A chapel
service does not, however, come within this descrip-
tion (y), although it had been advertised that the
sermon would be preached.

Nore 3.—The publication thereof is for the public

(r) 13 Car.2, c.5; 1 W. & M.sess. 2,¢.2; 57 Geo. 3, c. 19,8, 23.

(s) Rex v. Birt and others (1834), 5 C. & P. 154; Rex v.
Fursey (1835), 6 C. & P. 81.

(t) Redford v. Birley and others (1822), 3 Stark. 103.

(u) Rex v. Hunt and others (1819), 3 B. & Ald. 566; Reg. v.
Vincent (1838), 9 C. & P. 91, 109.

(x) Ponsford v. Financial Times, Ld. and Hart (1900), 16
Times L. R. 248.

(y) Chaloner v. Lansdown & Sons (1894), 10 Times L. R. 290,
128 THE LAW OF LIBEL AND SLANDER.

benefit ; in other words, it is not enough that the
report is fair and accurate, and that it is for the
public benefit that reports of meetings of the same
kind as this particular meeting should be published,
e.g., that it is an accurate report of a political meet-
ing or of the meeting of the shareholders of a
company—to obtain protection under this head it
must be proved that the publication of the very
words complained of is for the public benefit. This
imposes on every editor the duty of editing the
whole paper; he must not trust to the proved
accuracy of his reporter; he must himself read
through the report, and be careful to eliminate all
blasphemous, seditious and obscene matter (z), every
unfair attack on a public man, everything defamatory
of a private individual. No doubt this is almost a
practical impossibility in the case of a daily paper,
where the type has to be set up with the greatest
possible speed ; but, nevertheless, it seems to be clear
law, according to the decision in Ponsford v.
Financial Times, Ld. and another (a), that unless this
is done the proprietors will be liable to an action for
libel. Thus in the case cited the defendants had in
good faith published a fair report of the proceedings
at a meeting of the shareholders of a public company.
The report contained, amongst other things,a verbatim
speech of the chairman of the company, in the course.
of which certain accusations had been made against
the cashier of the company, who was the plaintiff in
the action. It was admitted that the accusations

(z) Steele v. Brannan (1872) L.R. 7 C. P. 261; 41 LJ.

M. C. 85.
(2) (1900), 16 Times L. R. 248,
REPORTS OF PUBLIC MEETINGS. 129

were wholly unfounded, and it appeared that the
plaintiff had recovered a verdict with substantial
damages against the chairman for having procured
the publication of his speech in the defendants’
newspaper. It was admitted that the report was
a fair report, and had been published by the defen-
dants in good faith ; and it was contended by the
defendants that the publication was privileged on
the ground that the company was a public com-
pany, and that the meeting of shareholders was a
public meeting within the meaning of section 4 of
the Law of Libel Amendment Act,1888. Mathew, J.,
held that the defendants were not protected by the
Act, and gave judgement for the plaintiff for 40s.“ It
seems to me,” said the learned judge, “that the report
of any statement made at the meeting in question,
which was strictly confined to adiscussion of the com-
pany’s financial position, would have been privileged.
But it does not follow that a report of all that
was said in the course of a speech on the affairs
of the company would be protected. This seems
to be clearly the result of the proviso in section 4.
... It was argued for the defendants that full
effect would be given to the proviso by holding
that it applied only to publications, no part of
which could be shown to have been of public
concern or to have been of benefit to the public.
But the proviso in terms applies to any matter con-
tained in a report, and, therefore, to any part of a
report which was of a defamatory character. In
this case the chairman, in his reference to the
plaintiff, was not discussing the matters in which
L.&. K
130 THE LAW OF LIBEL AND SLANDER.

the public were interested. He was stating his
opinion or impression that the plaintiff, who had
heen dismissed, had been guilty of criminal conduct
asa servant of the company. But such a charge
ought not to influence any reasonable man, who
contemplated either the buying or selling of shares
or any other business transaction with the com-
pany. It had no other authority than the asser-
tion of the speaker, whose knowledge must have
been derived from what he had been told, and who
was not unlikely to have been misled by information
supplied to him for the purpose of his speech. It
was, therefore, not a matter the publication of which
was for the public benefit. The charges against the
plaintiff were of grave importance to him and to his
accuser, but were no more of public concern than
any other defamatory statements which might or
might not be true.”

Art. 32.—Reports of vestry meetings, &c.

A report published tn any newspaper (b) of any
meeting of a vestry, town council, school board, board
of guardians, board or local authority formed or
constituted under the provisions of any Act of
Parliament (¢), or of any committee appointed by
any of the above-mentioned bodies, or of any meeting
of any commissioners authorized to act by letters
patent, Act of Parliament, warrant under the Royal

(4) As to the meaning of “ newspaper,” see p. 111, supra.

(c) This would cover the report of the meeting of a county
council.
REPORTS OF VESTRY MEETINGS. 131

Sign Manual, or other lawful warrant or authority,
or of select committees of either House of Parlia-
ment (d), is privileged, provided that—

(1.) Such report ¢s farr and accurate (e) ;

(2.) The public or a newspaper reporter was
admitted, or given an opportunity of
admission, to such meeting ;

(3.) The matter complained of is not blasphemous
or tndecent; and

(4.) Lhe matter complacned of is of public concern,
or the publication thereof is for the public
benefit ( f).

This privilege may be rebutted by proof (1) that
the report was published maliciously; or (2) that
the defenlant has after request refused or neglected
to insert in his newspaper a reasonable letter or
statement by way of contradiction or eaplanation of
such report (7).

Notre 1.—The public or a newspaper reporter was
admitted, or given an opportunity of admission, to
such mecting. It is submitted that the insertion of
the words in ordinary type is in accordance with
and justified by the true construction of the 4th

(d) See Rex v. Wright (1799), 8 T. R. 293. The 4th section
of the Law of Libel Amendment Act, 1888 (51 & 52 Vict.
c. 64), also protected reports “of any meeting . . . of justices
of the peace in quarter sessions assembled, for administrative
or deliberative purposes.” These functions of the justices were,
however, transferred by the Local Government Act, 1888, to
the county councils.

(e) See p. 117, ef seg.

(f) See Note 3, p. 127, supra.

(g) 51 & 52 Vict. c. 64, 8. 4, set out on pp. 274—275, infra.

K 2
182 THE LAW OF LIBEL AND SLANDER.

section of the Law of Libel Amendment Act,
1888 (h).

Nore 2.—It must be remembered that the report
of any such meeting as the above, if published
elsewhere than in a newspaper, as defined by the
Newspaper Libel and Registration Act, 1881, e.9.,
in a magazine or a monthly trade paper, is in no way
privileged (7). Moreover, no report of any meeting
other than those dealt with in Articles 29, 30, 31,
and 82 (A), is privileged, whether published in a
newspaper or elsewhere. ‘Thus, if a newspaper or
periodical publishes a fair and accurate report of
the proceedings at a meeting of the creditors of
a bankrupt, such report is in no way privileged,
and anyone defamed thereby can maintain an action
for libel. In such a case the defendant has only
two courses open to him—to justify the words
complained of (/), or to apologize and pay money
into Court (m). The fact that the report is a fair
and accurate account of what actually took place is
no defence (7), though it may operate to mitigate
the damages (0).

(h) See pp. 274—275, cnfira.

(¢) See however the observations of the Court in Allbutt v.
General Council of Medical Education, dc. (1889), 23 Q. B. D.
at pp. 411,412. For definition of newspaper, see p. 111, supra.

(k) pp. 121, 122, 123, 130, supra.

(2) See p. 83, supra,

(m) See pp. 158—159, infra.

(2) Davison v. Duncan (1857), 2 6L. J. Q. B. 104; 28 L. Ty
0.5. 265; 7 E. & B. 229,

(0) Duncombe v. Daniell (1837), 8 C. & P. 222; per Wight-

man, J., in Davis v. Cutbush (1859), 1 F, & F. 487 ; and see
pp. 171, 172, enfra.
GOVERNMENT NOTICES AND REPORTS. 133

Arr. 33.—Notices and reports published at
request of Government office or authority.
The publication at the request of (1) any Govern-
ment office or department, (2) officer of’ stute,
(3) commissioner of police, or (4) chief constable,
of any notice or report issued by them for the tn-
formation of the public, is privileged, provided that
(i.) the matter complarned of ?s not blasphemous or
indecent; and (i.) the matter complained of ts of
public concern, or the publication thereof ts for the
public benefit. But this privilege may be rebutted
by proof (1) that such publication was published or
made maliciously; or (2) that the defendant has,
after request, refused or neglected to insert in his
newspaper a reasonable letter or statement by way of
contradiction or explanation of such publication (p).

Note.—It will be observed that this Article
only deals with notices or reports published at
the request of any Government office or authority.

Two points should be noticed—

(1.) That the publication of a notice or report
issued by any other body, eg., a vestry, is not
privileged until officially published; and it would
seem that this is so, even where official publication
is authorized by Act of Parliament (q).

(2.) That the publication of all reports, papers,
votes, and proceedings by order of either House
of Parliament is absolutely privileged (7).

(p) 51 & 52 Vict. c. 64, s. 4, set out on pp. 274—275, infra.

(q) Popham v. Pickburn (1862), 31 L. J. Ex.133; 5 LT.

846.
(r) 3&4 Vict. c. 9; supra, p. 109.
134 THE LAW OF LIBEL AND SLANDER.

Art. 84.—Statements made in order to redress
public grievances or punish crime.

Every statement made to a public servant or to other
person im authority with the object of redressing w
public grievance or preventing or punishing crime ts
privileged, but such privilege will be rebutted if plaintiff
prove that defendant made such statement maliciously.

Norz.—Thus every communication affecting a
Government official is privileged, provided it is
addressed to the proper person, eg., a letter
written to the Postmaster-General concerning the
conduct of a postmaster (s); or to a bishop con-
cerning the conduct of a parson in his diocese (E) ;
or a memorial to the Lord Chancellor concerning
the conduct of a magistrate, and praying for his
removal (uw); or a petition to the House of
Commons concerning the conduct of the Vicar-
General (x), or to the Privy Council concerning
a sanitary inspector removable by them (y), or
to the Secretary of War, with the object of
compelling a military officer to pay a debt (2).

So, too, everything bond fide said or written to the

(s) Blake v. Pilfold (1832), 1 Moo. & Rob. 198; Woodward
v. Lander (1834), 6 C. & P. 548.

(t) James v. Boston (1845), 2 C. & Ky, 4.

(wv) Harrison v. Bush (1855), 5 E. & B. 344; 25 L. J. Q. B.
25°99.

(w) Lake v. King (1669), 1 Lev. 240; 1 Saund. 131; Sid.
414.

(y) Proctor v. Webster (1885), 16 Q. B. D. 112; 55 L. J.
Q. B, 150; 53 L. T. 765.

(2) Fairman v. Ives (1822), 5 B. & Ald. 642.
STATEMENTS TO REDRESS PUBLIC GRIEVANCE, 135

proper person with the object of preventing or punish-
ing crime is, in the interests of society, privileged.
Thus it has been held that anything honestly commu-
nicated for that purpose to the master (a) or father (0)
of the plaintiff, or to a constable (c), is privileged.

But if the statement is not honestly made with this
object (d), or is made recklessly (¢), or to more persons
than necessary (f), or by (g) or to (2) someone uncon-
nected with the matter, there will be no privilege (’).

Moreover, if such a communication is made to
a person who has no interest or duty in regard
to the subject-matter of the communication, the
occasion will not be privileged, even though the
defendant bond fide and reasonably believed that
such person had such an interest or duty (/).

Art. 35.—Statements made in order to protect
interest of writer or speaker.

Every statement made with the object of protecting
some interest of the writer (1), or speaker (m), und

(a) Kine v. Sewell (1838), 3 M. & W. 297 ; Amann v. Damm
(1860), 8 C. B. N.S. 597; 8 W. R. 470.

(1) Fowler et ux. v. Homer (1812), 3 Camp, 294.

(c) Johnson v. Evans (1800), 3 Esp. 32.

(d) Hooper v. Trustcott (1836), 2 Bing N.S. 457; 2 Scott, 672.

(e) Smith v. Hodgeskins (1633), Cro. Car. 276.

(f) Jones v. Williams (1885), 1 Times L. R, 572 ; and see
pp. 151, 155, infra.

(g) Harrison v. Fraser (1881), 29 W. R. 662.

(h) Hebditch v. McIlwaine (1894), 2 Q. B. 54.

(¢) Padmore vy. Lawrence (1840), 11 A. & KE, 380; Jones v.
Thomas (1885), 34 W. R. 104; 53 L. T. 678 ; 2 Times L. R. 95.

(1) Blackhamv. Pugh (1846), 2 C. B. 611; 15 L. J.C. P. 290.

(m) Somerville v. Hawkins (1851), 10 C. B. 583; 20 L. J.
136 THE LAW OF LIBEL AND SLANDER.

reasonably necessary for such purpose, is privileged,
but such privilege will be rebutted if plaintiff prove
that defendant published such statement maliciously.

Note.—Thus, if the plaintiff has previously
attacked the defendant, any statement made by
the latter which is necessary in order to protect
himself, and which is in any way relevant to the
accusations made against him by the plaintiff, is
privileged.

“Tf a man bond fide writes a letter in his own
defence, and for the defence and protection of his
interests and rights, and is not actuated by any
malice, that letter is privileged, although it may
impute dishonesty to another, but in such cases
malice may either be proved by the letter itself
or by other evidence” (7); e.g., where the policy
holder of an insurance company published a
pamphlet charging the directors with fraud, and
the directors published a pamphlet in reply
defending themselves, and accusing the plaintiff
of making false and calumnious accusations, and
further stating that he had upon a certain occasion
made statements on oath in direct contradiction
of statements which he had previously made in
writing, it was left to the jury to say whether
the counter-charges made by the defendants
were made bond fide, and whether they went
beyond the occasion, and the jury found for the
C. P. 131; 16 L. T. 0. S. 283; Ifanby v. Wrett, and Hastmead
v. Wet (1856), 18 C. B. 544; 25 L. J.C. P. 294.

(n) Per Littledale, J., in Coward v. Wellington (1836), 7
C. & P. at p. 586.
STATEMENTS IN SELF-DEFENCE, 137

defendants(o). So, too, where the plaintiff has.
previously attacked the defendant in the news-
papers (p), or in publie(q), and the defendant
retaliates by publishing in the papers in self-
defence a statement of the case from his point
of view, and in so dceing makes defamatory
statements concerning the plaintiff, such statement
is privileged if made bond fide.

Again, if the plaintiff has enticed the defendant
into making the defamatory statement in the
presence of a third party (7), or if a friend or
agent of the plaintiff at his request(s), or with
his knowledge or consent(¢), has induced the
defendant to make the statement complained of,
such statement is privileged. Hf, however, the
defendant first made unprivileged statements con-
ecrning the plaintiff which led the latter to seek
for an explanation from the defendant, such explana-
tion will not be privileged (1).

The privilege noticed above has also been held
to apply to any statement which is necessary to

(0) Keenig v. Ritchie (1862), 3 F.& F. 413; Reg. v. Veley
(1867), 4 F. & F. 1117.

(p) Coward v. Wellington (1836), 7 C. & P. 531.

(q) Laughton v. Bishop of Sodor and Man (1872), L. R. 4
P.C. 495; 42 L. J. P.O. 11.

(vr) Kine v. Sewell (1838), 3 M. & W. 297 ; Griffiths v. Lewis
(1846), 7 Q. B. 67; 14 L. J. Q. B. 249 5 Palmer v. Hummerston
(1883), 1 Cab. & E. 36.

(s) Weatherston v. Hawkins (1786), 1 T. R. 110.

(t) Smith v. Wood (1813), 3 Camp. 323; Hopwood v. Thorn
(1850), 8 C. B. 293; 19 L. J. C. P. 945; Whiteley v. Adams
(1863), 15 C. B. N.S. 392; 33. L. J.C. P. 89.

(wu) Smith v. Matthews (1831), 1 Moo. & Rob, 151,
138 THE LAW OF LIBEL AND SLANDER.

protect the interests of a principal (x) or client (y),
and the fact that such statement is unauthorized
will not destroy the privilege (z).

All privilege will, however, be lost if the state-
ment is too widely published (a), or is unneces-
sarily strong (b); if, for example, the defendant
has been attacked by the plaintiff in an obscure
local journal and retaliates in a leading London
paper, or the retaliation goes beyond what is
actually necessary in order to protect the plaintiff's
interests(c). And the honest belief of the defendant
that the statement complained of is necessary for
his own protection or that of his principal or client
will not in itself render the occasion privileged.
It must be in fact reasonably necessary that the
statement in question should be made (d).

Arr. 36.—Statements made in order to protect
a common interest.

Every statement made with the object of protecting
an interest common to the writer or speaker, and the
person to whom such statement is made, and reasonably

(x) Hargrave v. Le Breton (1769), 4 Burr. 2422.

(y) Steward v. Young (1870), L. R.5 C. P. 122; 39 L. J.
C. P. 85.

(2) Watson v. Reynolds (1826), Moo. & Mal. 1.

(4) Jones v. Welliams (1885), 1 Times L. R. 572.

(4) Cooke v. Wildes (1855), 5 E. & B. 328; 24 L. J. Q. B.
367 ; Huntley v. Ward (1859), 1 F. & F. 552; 6C. B. N.S. 514.

(¢) Robertson v. M‘Dougall (1828), 4 Bing. 670; 3 C. & P.
259; Luson v. Kvans (1840), 12 A. & E. 733 ; Hancock v. Case
(1862), 2 F.& F. 711.

(d) Hebditeh v. McIlwaine (1894), 2 Q. B. 54.
STATEMENTS TO PROTECT COMMON INTEREST. 139

necessary for such purpose, is privileged, but such
privilege will be rebutted if plaintiff? prove that
derendant made such statement maliciously.

Note.—‘“If the communication was of such a
nature that it could be fairly said that those who
made it had an interest in making such a com-
munication, and those to whom it was made had
a corresponding interest in having it made to them,
—when those two things co-exist, the occasion is
a privileged one” (e).

This common interest may be in respect of very
varied and different matters; indeed, the only
limitation appears to be that it should be some-
thing legitimate and proper, something which the
Courts will take cognizance of, and not merely
an interest which is due to idle curiosity or a
desire for gossip(/f). Thus it was held that the
occasion was privileged in the following cases :—
A letter written by a ratepayer affecting the
character of the parish constable, to be read at
a parish meeting at which the accounts of the
parish were to be considered (g); an accusation
made by a parishioner, before justices sitting in
special sessions, objecting to the plaintiff who was
about to be sworn in as parish constable (/); charges

(e) Per Lord Esher, M. R., in Hunt v. G. MN. Rail. Co.
(1891), 2 Q. B. at p. 191.

(f) Per Coltman, J., in Rumsey v. Webb et wa. (1842), Car.
& M. at p. 105; Bottertll and another v. Whytehead (1879),
41 L. T. 588.

(g) Spencer v. Amerton (1835), 1 Moo. & Rob. 470.

(h) Kershaw v. Bailey (1848), 1 Ex. 743; 17 L, J. Ex. 129.
140 THE LAW OF LIBEL AND SLANDER.

made at a parish meeting for the nomination of
officers as to the previous conduct in office of a
patish officer seeking re-election (7); anything said
by a life governor of a school, to its steward, con-
cerning one of the tradesmen employed to supply
the school (/); correspondence between a curate of
one parish and incumbent of another, as to the
character of a parishioner of the latter who had
formerly lived in the parish in which such curate
worked (/); a bishop’s charge to his clergy (7m) ;
communications between vicar and curate as to
ecclesiastical matters(); statements made by a
member of a Trade Protection Society in pursuance
of the rules of such society to the secretary con-
cerning the conduct of another member(o); a
letter written by one creditor who had been
appointed the trustee in liquidation of a debtor's
estate to another creditor (p), or by a solicitor
acting for certain shareholders of a company to
other shareholders(qg); communications made to

(¢) George v. Goddard (1861), 2 F. & F. 689.

(k) Humphreys v. Stilwell (1861), 2 F. & F. 590.

(2) Whiteley v. Adams (1864), 15 C. BLN. 8S. 392; 33 L. J.
C2PESo,

(m) Laughton v. Bishop of Sodor and Man (1872), L. R. &
P. 6. 495; 42 L J.C. Pod.

(nr) Clark v. Molyneux (1877), 3 Q. B.D. 237 5 47 LJ. Q. B.
230; 14 Cox, C. C. 10.

(0) White and others v. Batey & Co., Ld. and another (1892),
8 Times L. R. 698.

(p) Spill v. Maule (1869), L. R. 4 Ex, 232; 38 L. J. Ex.
138.

(q) Quartz Hill Gold Mining Co. v. Beall (1882), 20 Ch. D.
501; 51 L. J. Ch. 874,
STATEMENTS TO PROTECT COMMON INTEREST. 141

a lady by a relation or connection as to the
character of her intended husband (7).

But in all these cases the privilege will be lost
if the statement is made to an unnecessarily large
number of persons (s); thus, where the defendant
published an advertisement in a public paper,
reflecting strongly on the character of the plaintiff,
who had been adjudicated bankrupt, it was held
that such a publication was in no way privileged,
although published with the avowed intention of
convening a mecting of the creditors for the purpose
of consulting upon the measures proper to be
adopted for their own security (¢). ‘A com-
munication sufficient for the purpose,” said Lord
Ellenborough (a), “might have been made in
measured language. The want of proper caution
had rendered the publication actionable, as being
published to the world at large.”

In such a case the fact that the defendant
believed in the truth of the defamatory statement
which he was making will afford him no defence.
“JT am clearly of opinion,” said Kelly, C. B., in
Botterill v. Whytehead (x), “that if a man should
receive information which is injurious if true to

(r) Todd v. Hawkins (1837), 8 C. & P. 88; 2 M. & Rob. 20.

(s) Loogood v. Spyring (1834), 1 C. M. & R181; Duncombe
v. Daniell (1836), 8 C. & P. 222; Martin v. Strong (1836), 5
Ad. & E. 535; Hoare v. Stlverloch (1848), 12 Q. B. 6245 17
L. J. Q. B. 806; Parsons v. Surgey (1864), 4 F. & F. 247; and
see pp. 155—156, infra.

(t) Brown v. Croome (1817), 2 Stark. 297.

(w) Lbid. at p. 301.

(x) (1879), 41 L. T. at p. 590.
142 THE LAW OF LIBEL AND SLANDER.

the character of another, he is not justified in
publishing that information to the prejudice of
him to whom it relates, merely because he believes
it to be true.” Nor is it any defence that the
defendant bond fide believed that the occasion was
privileged when in fact it was not (7).

So, too, “where a defendant, on an occasion which
is privileged as between himself and some other
person, makes some defamatory statement affecting
a third person which has nothing to do with the
privileged occasion, . . . that third person would
have a right of action against the defendant, and
as between him and the defendant there would be
no privileged occasion. But when there is only an
excessive statement having reference to the privileged
occasion, and which, therefore, comes within it,
then the only way in which the excess is material
is as being evidence of malice” (z).

And where part ef the communication extends
to matters outside those matters in which the
plaintiff and defendant have a common interest,
such part will not be protected. Thus, where the
plaintiff and defendant were jointly interested in
property in Scotland of which C. was manager, and
the defendant wrote to C. a letter principally about
the property and the conduct of the plaintiff with
reference thereto, but containing a charge against

(y) Hebditch v. McIlwaine (1894), 2 Q. B. 54; Goslett v.
Garment (1897), 13 Times L. R. 391.

(2) Per Lord Esher, M. BR, in Nevill v. Fine Arts, &e. Co.
(1895), 2 Q. at p. 170. See also Fryer v. Kinnersley (1863),
15C. B. N.S. 422; 33 L. J. C. P. 96. As to when excessive
language affords evidence of malice, see p. 156, infra.
STATEMENTS IN DISCHARGE OF DUTY. 143

the plaintiff with reference to his conduct to his
mother and aunt; it was held that though the part
of the letter about the plaintiff’s conduct as to the
property might be confidential and privileged, such
privilege could not extend to the part of the letter
about the plaintiff's conduct to his mother and
aunt (a).

The privilege will not, however, be lost by the
publication to printer’s men who set up the type,
provided that printing is necessary (b).

Art. 37.—Statements made in discharge of a
duty.

Every statement made in discharge of « legal, moral,
or social duty, and reasonably necessary for the due
discharge of such duty, ts privileged, but such privilege
will be rebutted if plaintiff prove that defendant nuule
such statement maliciously.

Nott.—“ The rule is this, that when the cir-
cumstances are such as to cast on the defendant
the duty of making the communication to a third
party, the occasion is privileged ” (c).

“The duty may be legal, social, or moral” (d).

(a) Warren v. Warren (1834), 1 C. M. & R. 250.

(2) Davis v. Cutbush and others (1859), 1 F. & F. 487;
Lawless v. Anglo-Egyptian Cotton Co. (1869), L. R. 4 Q. B.
262; 1OB.& S. 226; 38 L. J. Q. B. 129.

(c) Per Lopes, L. J.,. in Pullman v. Hill & Co. (1891), 1
Q. B. at p. 530.

(d) Per Lopes, L. J., in Stuart v. Bell (1891), 2 Q. B. at
p- 353. See also per Williams, J., in Fryer v. Kinnersley (1863),
33 L. J.C. P. at p. 98.
144 THE LAW OF LIBEL AND SLANDER.

“Where,” says Blackburn, J. (e), “the person is
so situated that it becomes right in the interests
of society that he should tell to a third person
certain facts, then if he bond fide and without
malice does tell them, it 1s a privileged communi-
cation.” Thus, where a person answers an inquiry
bond fide and without malice, the answer, if
relevant to the inquiry, is a privileged communi-
cation. And this is true of every answer to a
confidential inquiry, for “every one owes it as a
duty to his fellow-men to state what he knows
about a person when inquiry is made” (f). Further,
‘when once a confidential relation is established
between two persons with regard to an inquiry of
a private nature, whatever takes place between
them relevant to the same subject, though at a
time aud place different from those at which the
confidential relation began, may be entitled to
protection as well as what passed at the original
interview, and it is a question for the jury whether
any further conversation on the same subject,
though apparently casual and voluntary, does not
take place under the influence of the confidential
relation already established between them, and is.
therefore, entitled to the same protection ” (4).

(ce) Davies v. Snead (1870), L. BR. 5 Q. B. 611 ; 39 LJ. Q. B.
202, cited with approval by Jessel, M. R., and Brett, L. J., in
Waller v. Loch (1881), 7 Q. B. D. 621, 622; 51 L. J. Q. B.
274.

(f) Per Grove, J., in Robshaw v. Smith (1878), 38 L. T. at
p. 423.

(g) Per Pollock, C. B., in Beatson v. Skene (1860), 29 L. J.
Ex. at p. 438.
STATEMENTS IN DISCHARGE OF DUTY. 145

Even if volunteered, the communication may
fall within the protection of the general rule laid
down above, for “it is not necessary in all cases
that the information should be given in answer to
an inquiry” (h). ‘Even in this case, the jury
is to consider whether the words were dictated
by a sense of duty”(). Under such circum-
stances it will, of course, be more difficult for
the defendant to satisfy a jury that in making
the communication he was not actuated by
malice (k).

Under this head of privileze come communica-
tions as to the characters of clerks and servants.
“There is no law to compel the master to give
the servant a character; it might be a duty which
his feelings might prompt him to perform, but
there is no law to enforce the doing of it” (d).
If, however, he does it, he must do it honestly,
and then, even if the character be in fact untrue,
the master will be protected (m).

“No action lies for giving the trwe character of
a servant upon application made to his former
master to inquire into his character with a view

(h) Per Jessel, M.R., in Wadler v. Loch (1881), 7 Q. B.D.
621; 51 L. J. Q. B. 274.

(¢) Per Coltman, J., in Rumsey v. Webb et wx. (1842), Car.
& M. at p. 105.

(k) Pattison vy. Jones (1828), 8 B. & C. 586; 3 C. & P.
387.

(2) Per Lord Kenyon, C. J., in Carrol v. Bird (1800), 3 Esp.
at p. 202.

(m) Rogers v. Clifton (1803), 3 B. & P. 587; Murdoch v.
Funduklian (1885), 2 Times L. R. 215, 614.

L.S. L
146 THE LAW OF LIBEL AND SLANDER.

of hiring him, unless there should be extraordinary
circumstances of express malice ” (7).

Moreover, “if I have given a servant a good
character, and I afterwards find that I have been
deceived, I am bound to make the same com-
munication then as I should have made before if
the fact had been known to me” (0), and any
such communication made bond fide will be
privileged (p).

Again, if a master discharges one of his servants,
and tells the others why he has done so, such
communication will also be privileged (9).

Thus, where the plaintiff was a guard in the
service of the defendants, a railway company, and
the defendants dismissed him on the ground that
he had been guilty of gross neglect of duty, and
published his name in a printed monthly circular
addressed’ to their servants, stating in it that he
had been dismissed and the ground of his dismissal,
it was held that such circular was privileged if
published Lond fide and without malice towards
the plaintiff (7).

A similar protection is extended to all com-
munications made honestly, and on reasonable

(n) Per Lord Mansfield in Hargrave v. Le Breton (1769),
4 Burr. at p. 2425.

(0) Per Coleridge, J., in Gardner v. Slade and wife (1849),
18 L. J. Q. B. at p. 336.

(p) Ibid., and see Child v. Affleck and wife (1829),9 B. &
Cc. 403.

(q) Somerville v. Hawkins (1851), 10 C. B. 590; 20L. J.
c. P. 131.

(r) Hunt vy. G. N. Rail. Co. (1891), 2 Q. B. 189,
STATEMENTS IN DISCHARGE OF DUTY. 147

grounds, to a father or master as to the doings
of his child(s) or servant (¢); by one friend to
another as to a doctor(w), or tradesman (a), or
an intending suitor(y); by a servant to his
master(z); by an under-master to the head-
master («); by an official in the army or navy
or any Government office to his superior(b); by
a master concerning his servant or a child
entrusted to his charge to the parent or guardian
of such servant or child(c); by a parishioner to
the bishop of his diocese as to the conduct of
the vicar(d) or curate, or locum tenens; by a
parishioner to his vicar as to the conduct of his
locum tenens or curate(e); by a ratepayer to
a member of the Watch Committee as to the
conduct of a superintendent of police(f); by the
secretary of a charity organization society to a

(s) Per Erle, C. J., in Whateley v. Adams (1863), 33 L. J.
C. P. at p. 95.

(t) Masters v. Burgess (1886), 3 Times L. R. 96.

(uw) Dixon v. Smith (1860), 29 L. J. Ex. 125; 5 H. & N. 450.

(x) Storey vy. Challands (1837), 8 C. & P. 234.

(y) 15 C. B. N. 8. 410, 411.

(z) Scarll v. Dixon (1864), 4 F. & F. 250; Mead v. Hughes
and wife (1891), 7 Times L. R. 291.

(a) Hume v. Marshall (1878), 42 J. P. 136.

(b) Sutton v. Plumridge (1867), 16 L. .T. 741; Stace v.
Griffith (1869), L. R. 2 P. C. 420; 20 L. T. 197 ; Henwood v.
Harrison (1872), L. R. 7 C. P. 606; 41 L. J.C. P. 206.

(c) Fowler and wife v. Homer (1812), 3 Camp. 294 ; Aberdein
vy. Macleay (1893), 9 Times L. R. 539.

(d) James v. Boston (1845), 2 C. & K. 4.

(e) Clark v. Molyneux (1877), 3 Q. B. D. 237; 47 L. J.
Q. B. 230.

(f) Bannister v. Kelly (1895), 59 J. P. 793.

L 2
148 THE LAW OF LIBEL AND SLANDER.

stranger as to the deserts of an applicant to such
stranger for charity (g); by a member of a trade
protection society to the secretary of the society (A);
and by the director of a company to the members
thereof concerning the character of an official of
such company (?).

On the same ground, “if a communication made
by a solicitor to a third party is reasonablv neces-
sary and usual in the discharge of his duty to his
client, and in the interests of his chent, the occasion
is privileged ” (4).

It has also been held that the publication of
the minutes of the General Council of Medical
Education, containing a statement that the name
of a specified medical practitioner has been removed
from the register on the ground that, in the opinion
of the Council, he has been guilty of infamous
conduct in a professional capacity, is, if the report
be accurate, and published bond fide and without
malice, privileged, and the medical practitioner
cannot maintain an action of libel against the
Council in respect of the publication (0).

(9g) Waller v. Loch (1881), 7 Q. B. D. 619; 51 L. J. Q. B.
274.

(h) White and others v. Batey & Co., Ltd. (1892), 8 Times
L. R. 698.

(t) Harris v. Thompson (1853), 13 C. B. 333.

(&) Per Lopes, L. J., in Boxsius v. Goblet Freres (1894),
1 Q. B. at p. 846. See also Wright v. Woodgate (1835), 2 C.
M. & R. 573, and Baker v. Carrick (1894), 1 Q. B. 838. As to
communications made by a solicitor to his client, see p. 105,
supra.

(1) Allbutt v. General Council of dfedical Education and
Registration (1889), 23 Q. B. D. 400.
STATEMENTS IN DISCHARGE OF DUTY. 149

Nor, as was held by the Court of Appeal in
the case of Andrews v. Nott Bower (m), will an
action le in respect of statements contained in
a report published bow fide and without malice
by the head-constable of a borough in obedience
to an order lawfully given to him by the magis-
trates of such borough. In delivering judgment
in this case, Lord Esher, M. R., said (7): “I think
the head-constable was obeying an order which the
magistrates had power to give him, and which he
was bound to obey. It was an order of a Court
given to one of its officers with regard to the mode
in which its business should be carried on. [I am
of opinion that the publication of the report was,
under these circumstances, upon a_ privileged
occasion.”

But statements made by a clergyman as to the
knowledge of an architect employed for church work
are not privileged, such clergyman being in no way
connected with the church in question, either as a
subscriber towards the work or otherwise (0).

As has been already pointed out, it is some-
times a matter of the greatest dithculty to deter-
mine whether an occasion is privileged or not.
It was remarked by Lindley, L. J., in the Court
of Appeal (p): “Coxhead v. Richards (q), in which

four eminent judges were equally divided upon

(m) (1895), 1 Q. B. 888.

(n) Lbid., at p. 894.

(0) Bottercil v. Whytehead (1879), 41 L. T. 588.
(y) In Stuart v. Bell (1891), 2 Q. B. at p. 346.
(g) (1846), 2 C. B. 589.
150 THE LAW OF LIBEL AND SLANDER.

the question whether an occasion was privileged or
not, is a striking illustration of the truth of the
remark. In that case the mate of a ship wrote to
the defendant, a friend of his, a letter reflecting
on the character of the captain. The defendant,
who was a stranger to the owner of the ship,
showed the letter to the owner; the owner dis-
missed the captain, who sued the defendant for
libel. Tindal, C. J., and Erle, J., held the occasion
privileged. Coltman and Cresswell, JJ., held that
it was not. In Amann v. Damm/(r) the late
Willes, J., said he was fully prepared to go the
whole length of the doctrine laid down by Tindal,
C. J., and Erle, J., in Coxhead v. Richards (s).
Lord Blackburn also approved of it in Davies v.
Snead(t). Waving carefully considered all the
four judgments in that celebrated case Coxhead
v. Richards (s), I have no hesitation in saying
that the judgment of Tindal, C. J., is the one
which carries conviction to my own mind, and
is the one which I consider the most accurate
and safe to take as a guide, nor am I aware of
any subsequent case in which that judgment has
been disapproved.”

In all the above cases it must be remembered
that ‘“‘the belief of the defendant that there was
a duty to make the communication is irrelevant to
the question whether the occasion is privileged” (w),

(r) 8 C. B. (N. S.) 597.

(s) (1846), 2 C. B. 569.

(t) (1870), L. R. 5 Q. B. 608-611.

(wu) Per Lord Esher, M. R., in Hebditch v. McIlwaine (1894),
2 Q. B. at p. 61.
STATEMENTS IN DISCHARGE OF DUTY. 151

and further that the privilege does not extend to
expressions wholly unwarranted by the circum-
stances of the case(v), nor to unnecessary publica-
tion (x). On the other hand, ‘the simple fact
that there has been some casual bystander cannot
alter the nature of the transaction” (y). That there
were other persons present than those to whom the
defendant was under a duty to make the statement
in question will not necessarily destroy the privilege ,
if their presence was accidental, or could not be
prevented by the defendant, the privilege will not
be lost. Thus, in Pittard v. Oliver (z) it was held
that the privilege which would have attached to
defamatory statements made at a meeting of a
board of guardians of which the defendant was
a member was not destroyed by the presence of
reporters. ‘Was the defendant’s duty to the
guardians and to the ratepayers generally taken
away by the presence of these other persons, who
were not called in by him, and over whose presence
he could exercise no control? The question answers
itself; the presence of these persons left his duty
to discuss the matter untouched; the occasion was
privileged for the performance of that duty, and

(v) Per Parke, B., in Warren v. Warren (1834), 1 C. M. &
R. at p. 252; Gilpin v. Fowler (1854), 9 Ex.615; 23 L. J. Es,
152; fryer v. Kinnersley (1863), 33 L. J. C. P. 96.

(«) Browne v. Croome (1817), 2 Stark. 297 ; Lay v. Lawson
(1836), 4 A. & E.795; Botterill and another v. Whytehead
(1879), 41 L. T. 588.

(y) Per Cur. in Loogood v. Spyring (1834), 1 C0. M. & R. at
pp. 193-194.

(z) (1891), 1 Q. B. 474.
152 THE LAW OF LIBEL AND SLANDER,

the privilege was not taken away by the presence
of such people under such circumstances ” (@).

“Where, indeed, an opportunity is sought for
making such a charge before third persons, which
might have been made in private, it would afford
strong evidence of malicious intention, and thus
deprive it of that immunity which the law allows
to such a statement when made with honesty of
purpose; but the mere fact of a third person
being present does not render the communication
absolutely unauthorized, though it may be a cir-
cumstance to be left with others, including the
style and character of the language used, to the
consideration of the jury, who are to determine
whether the defendant has acted bond fide in
making the charge, or been influenced by malicious
motive ” (b).

Ant. 38.—Malice.

Malice is any corrupt or wrong motive, or personal
spite or tl-will (c).

Note.— “If the occasion is privileged, the
plaintiff must prove malice in fact; the burden
of proving this is on him, as was settled in Clark
v. Molyneux (d). Malice in fact is not confined

(a) Per Lord Esher, M. R. (1891), 1 Q. B. at p. 478.

(6) Per Cur. in Toogood v. Spyring (1834), 10. M. & R. at
p. 194.

(c) Stuart v. Bell (1891), 2
Society v. Parkinson (1892), 1

(d) (1877), 3 Q. B. D. 2
1891), App. Cas. 73.

Q. B. 351; Royal Aquarium, de.
Q. B. 434.
7.

3 See also Jenoure v. Delmege
MALICE. 153

to personal spite and ill-will, but includes every
unjustifiable intention to inflict injury on the
person defamed, or, in the words of Brett, L. J. (e),
every wrong feeling in a man’s mind” (/).

“Tt lies on the party who would deprive the
other party of his privilege to show what the law
calls malice. But by that term is meant, not only
spite, for any indirect motive other than a sense of |
duty is what the law calls malice” (q).

And in the recent case of Royal Aquarium, ce.
Soc. v. Parkinson (h) Lord Esher thus explained
the meaning of the word malice in relation to a
privileged occasion. ‘The question is, whether
the defendant is using the occasion honestly or
abusing it. Ifa person on such an occasion states
what he knows to be untrue, no one ever doubted
that he would be abusing the occasion. . . . But
there is a state of mind, short of deliberate false-
hood, by reason of which a person may properly be
held by a jury to have abused the occasion, and in
that sense to have spoken maliciously. If a person
from anger or some other wrong motive has allowed
his mind to get into such a state as to make him
cast aspersions on other people, reckless whether
they are true or false, it has been held, and I think
rightly held, that a jury is justified in finding that
he has abused the occasion. Therefore, the question

(e) In Clark v. Molyneux (1877), 3 Q. B. D. at p. 247.

(f) Per Lindley, L. J., in Stuart v. Bell (1891), 2 Q. B. at
” ne Lord Campbell, C. J.,in Dickson v The Kart of
Wilton (1859), 1 F. & F. at p. 419.

(4) (1892), 1 Q. B. at pp. 443, 444.
154 THE LAW OF LIBEL AND SLANDER.

seems to me to be whether there is evidence of such
a state of mind on the part of the defendant. It
has been said that anger would he such a state of
mind ; but I think that gross and unreasoning pre-
judice, not only with regard to particular people,
but with regard to a subject-matter in question,
would have the same effect. If a person charged
with the duty of dealing with other people’s rights
and interests has allowed his mind to fall into such
a state of unreasoning prejudice in regard to the
subject-matter that he was reckless whether what
he stated was true or false, there would be evidence
upon which a jury might say that he abused the
occasion.”

In the same case Lopes, L. J., said (7), “ Not
only must the occasion create the privilege, but the
occasion must be made use of bond fide and without
malice. The defendant is only entitled to the pro-
tection of the privilege if he uses the occasion in
accordance with the purpose for which the occasion
arose. He is not entitled to the protection of the
privilege if he uses the occasion for some indirect
or wrong motives. This casts upon the plaintiff
the burden of proving express malice or malice in
fact. Ifit be proved that out of anger or for some
other wrong motive the defendant has stated as
true that which he does not know to be true, and
he has stated it not stopping or taking the trouble
to ascertain whether it is true or not—stated it
recklessly by reason of his anger or other indirect
motive—the jury may infer that he used the

(i) (1892), 1 Q. B. at p. 454,

 
MALICE. 155

oceasion not for the reason that justifies it, but
for the gratification of his anger or other indirect
motive.”

Thus, malice may be proved by showing that the
defendant knew the words were untrue when he
wrote or spoke them (4), or that they were uttered
with the intention of injuring the plaintiff (7), or
that the plaintiff and defendant were rivals or had
previously quarrelled (m), or that the defendant
was actuated by personal resentment (7), or any
other wrong motive (0).

Sometimes, also, malice may be proved by the
unnecessarily extensive publication of the words (p),
or by their unnecessary violence (q). “No doubt a
customer may complain to a tradesman with whom
he deals of what he deems irregular or dishonest ;
but if he does so outside the door of the tradesman’s
shop—so as to be heard by the public—or even
inside the shop, he speaks slanderous words unneces-
sarily in the presence of third parties, or to third

(k) Gerard v. Dickenson (1590), 4 Rep. 18; Cro. Eliz. 197 ;
Smith v. Hodgeskins (1633), Cro. Car. 276.

(1) Peacock v. Reynal (1612), 2 B. & G. 151.

(m) Hooper v. Truscott (1836), 2 Bing. N. C. 457 ; 2 Scott,
672.

(n) Gilpin v. Fowler (1854), 9 Ex. 615; 23 L. J. Ex. 152;
88 Jur. 293 ; Dickson v. Earl of Wilton (1859), 1 F. & F. 419.

(0) Rogers v. Clifton (1803), 3 B. & P. 587; Jackson v.
Hopperton (1864), 16 C. B. N. S. 829; 12 W. RB. 913; 10
L. T.529.

(p) Gilpin v. Fowler (1854), 9 Ex. 615; 23 L. J. Ex. 152.

(q) Per Parke, B., in Wright v. Woodyate (1835), 2 C. M.
& R. at p. 578; Fryer v. Kinnersley (1863), 15 C. B. N.S.
422; 33 L. J.C. P. 96.
156 THE LAW OF LIBEL AND SLANDER.

parties, and uses language which is extreme and
beyond the occasion; all this, with the tone and
manner in which the words were spoken, will be
evidence for the jury to consider whether, in law,
the words were spoken maliciously and without
excuse” (7). “It may be that the language used
in a libel, though under other circumstances
justifiable, may be so much too violent for the
occasion and circumstances to which it is applied
as to form strong evidence of malice upon the issue
of whether the communication is covered by the
privilege, and that an inference of actual malice
may be drawn from its use ” (s).

On the other hand, as Lord Esher, M. R., pointed
out in the case of Nevill v. Fine Arts and General
Insurance Co. (t), “a man may use excessive
language and yet have no malice in lis mind.”
In the words of Lopes, L. J. (w), in the same case,
“where the excess merely is that the statement
made with reference to the privileged occasion is
too strong, the authorities show that such excess
may be evidence of actual malice; but it is not
in every case in which the words used are somewhat
too strone that there is evidence to be left to the
jury of actual malice. They must be too strong
to a substantial extent in order to afford evidence
upon which a jury can find actual malice.”

(rv) Per Lush, J., in Oddy v. Lord George Paulet (1865), 4
F. & F. at p. 1010.

(s) Per Cockburn, C. J., in Spill v. dfaule (1869), L. R. 4
Ex. at pp. 235, 236.

(t) (1895), 2 Q. B. at p. 170.
(w) Lbid. at p. 172.
MALICE. 157

All evidence showing the state of defendant’s
mind at the time he uttered the words complained
of is admissible in order to rebut the plea of
privilege by showing malice, and upon this prin-
ciple proof is allowed that the defendant has
previously (w) or subsequently (y) published other
libels or slanders of the plaintiff.

But it is no evidence of malice to prove that
the defendant, under a sense of duty, volunteered
to write or speak the words complained of (z), or
published them by mistake (a), or that the words
used were not in fact true (0).

And though it is no doubt some evidence, and
generally speaking strong evidence, of malice, it is
not necessarily conclusive proof of malice to show
that the defendant did not believe his statement to
be true, for as Kelly, C. B., observed in Botterill v.
Whytehead (c), “he may believe it to be untrue,
and yet may be perfectly justified in publishing it
to persons with whom he is in communication, and
with whom it may be his duty to communicate

(x) Stuart v. Lovell (1817), 2 Stark. 93; Barrett v. Long
(1851), 3 H. L. C. 395.

(y) Mead v. Daubigny (1792), Peake, 168; Pearson v.
Lemaitre (1843), 5 M. & Gr. 700; 12 LJ. Q. B. 253; 7 Jur.
748 ; 6 Scott, N. R. 607.

(2) Gardner v. Slade et ux. (1849), 13 Q. B. 798; 18 L. J.
Q. B. 336.

(a) Scarll v. Dixon (1864), 4 F. & F. 250; Brett v. Watson
(1872), 20 W. R. 723; Tompson v. Dashwood (1883), 11
Q. B. D. 43; 52 L. J. Q. B. 425; 48 L. T. 943.

() Caulfield v. Whitworth (1868), 16 W. R. 936; 18 L. T.
527.

(c) (1879), 41 L. T. at p. 590.
158 THE LAW OF LIBEL AND SLANDER.

freely on the subject of the information he has
received.” So, too, “it is not enough to show a
want of reasoning power or stupidity, for those
things of themselves do not constitute malice. A
man may be wanting in reasoning power, or he may
be very stupid, still he may be acting bond fide,
honestly intending to discharge his duty. The
question is not whether the defendaut has done that
which other men, as men of the world, would not
have done, or whether the defendant acted in the
belief that the statements he made were true, but
whether he acted as he did from a desire to dis-

charge his duty ” (d).

Art. 39.—Defence of apology under sect. 2 of
Lord Campbell’s Act, 6 & 7 Vict. c. 96.

In an action for libel contained in any public
newspaper or other periodical publication, zt is a
good defence to prove that such libel was inserted in
such newspaper or other periodical publication with-
out actual malice, and without gross negligence, and
that before the commencement of the action, or at the
earliest opportunity afterwards, the defendant inserted
m such newspaper or other periodical publication a full
apology for the said libel; or if the newspaper or
periodical publication in which the said libel appeared
should be ordinarily published at ‘intervals exceeding
one week, that he had offered to publish the said apology

(d) Per Cotton, L. J., in Clark v. Molyneux (1877), 3 Q. B. D.

at p. 249, cited with approval in Murdoch v. Funduklian
(1885), 2 Times L. R. at p. 217.
DEFENCE OF APOLOGY. 159

in any newspaper or periodical publication to be selected
by the plaintiff in such action (e).

There must, however, be a payment of money into
Court by way of amends at the time the plea is filed
(8 ¢ 9 Vict. e. 75, s. 2); and therefore, having regard
to Order XXII. rule 1, no other defence denying
Liability can be pleaded together with such plea.

Nore.—It should be noticed that this defence is
only available in an action for a libel contained in
any public newspaper or other periodical publica-
tion, words which would apparently cover almost
every kind of journalistic publication. It is not
enough for the defendant to plead that he inserted
the apology “at the earliest opportunity after” the
commencement of the action, if he had an oppor-
tunity before action(f). Any defendant relying
upon this defence must offer some evidence to prove
positively that there was no gross negligence on his
part (9).

The apology should be full and free, and pub-
lished in a conspicuous part of the paper. It should
be given at least as prominent a position as the
words complained of.

Paymentintocourt under sect. 2 of Lord Campbell’s
Act affords no defence in itself, although it is a
necessary part of the defence afforded by the
section (h).

(e) 6 & 7 Vict. c. 96 (Lord Campbell’s Act), s. 2.

(f) Per Keating, J., in Ravenhill v. Upcott (1869), 33 J. P. 299.

(g) Per Wills, J., in Peters and another v. Edwards and

another (1887), 3 Times L. R. 423.
(z) See pp. 219—220, znfra, and the cases there cited.
160 THE LAW OF LIBEL AND SLANDER.

Arr. 40.—Accord and satisfaction.

Accord and satisfaction is an agreement that the
plaintiff will forego his right of action on the execution
of a valuable consideration. Such agreement may be
made by the defendant himself (i), or by one jointly
liable with him (k), or by a third party (l), and ts a
good defence to an action for libel or slander.

Nore.—Thus the defendant will escape liability
by proving that the plaintiff agreed to accept from
him certain apologies in full discharge of the
plaintiff’s cause of action, and that in pursuance
thereof he published such apologies in the manner
agreed upon (2).

Art. 41.—Release.

The plaintiff may release his cause of action by
executing a deed to that effect.

Art. 42.—Res Judicata.

It is a good defence that the plaintiff has already
brought an action in respect of the same words against

(¢) Boosey v. Wood (1865), 34 L. J. Ex. 65; 3H. & C. 484;
Marks vy. Conservative Newspaper Co. (1886), 3 Times L. R.
244.

(k) Thurman vy. Wild and another (1840), 11 A. & EL 453;
Bainbridge v. Lax and others (1846), 9 Q. B. 819.

(2) Jonesand another v. Broadhurst (1850), 9 C. B. 173.
RES JUDICATA. 161

the defendant or a third person with whom the
defendant was jointly concerned in the publication
of such words.

Nors.—This is so whether the plaintiff has failed
or succeeded in the previous action.

The defendant must be jovintly not severally con-
cerned with the third party. Thus, where the
third person against whom the previous action has.
been brought is a partner of the defendant in a firm
of printers or publishers, the hability being joint,
the fact that there has been a previous action
against one of the partners is an answer to am
action in respect of the same libel against the other
partner(n). Similarly where an action for libel has
been brought against the editor of a newspaper and
judgment recovered against him, the plaintiff cannot.
subsequently maintain an action against the pro-
prietor in respect of the same libel, for the cause of
action is in both cases the same, there being a joint.
publication.

But where the liability is sever, as, e.g., in the
case of the author of a libel and the proprietor of
the newspaper in which it has appeared (0), a
previous action against one of them is no answer
to an action against the other (p).

(n) Brinsmead v. Harrison (1872), L. R. 7 C. P. 547.

(0) See pp. 59—60, 62, supra.

(p) Creevey v. Carr (1835), 7 C. & P. 64; Frescoe v. May
(1860), 2 F. & F. 123.

L.S. M
162 THE LAW OF LIBEL AND SLANDER.

Art. 43.—Statute of Limitations.

An action of libel, and of slander for words action-
able only by reason of special damage, must be brought
within six years from the time of publication and the
time when such special damage was sustained respec-
tively (q), and an action of slander for words actionable
per se within two years from the time of publication,
but if the plaintiff was at such time an infant or a
lunatic (r), or the defendant was beyond the seas, the
action must be brought within six years, or two years
respectively from the time at which such disability
is removed (s).

Note.—Beyond the seas. This expression does »
not include any part of the United Kingdom or the
Channel Islands. Formerly, by 21 Jac. 1, ¢. 19, if
at the date of publication of the libel the plaintiff
were imprisoned or beyond the seas, he could bring
his action at any time within six years from his
freedom or return, but this right was abolished by
the Mercantile Law Amendment Act, 1856 (19 & 20
Vict. c. 97), sect. 10.

(q) Lord Saye and Sele v. Stephens (1628), cited Cro. Car.
535 ; Litt. 342.

(r) Formerly this was also true in regard to married women.
Since the Married Women’s Property Act, 1882, however, a
married woman is no longer under disability, but can sue as
if she were a feme sole; see Lowe v. Fox (1885), 15 Q. B. D.
667.

(s) 21 Jac. 1,¢.19,s.7; 4&5 Anne, c. 3 [al. c. 16], s. 19;
3 & 4 Will. 4, ¢ 42,8. 7; 19 & 20 Vict. c. 97,8. 12. See,
however, in the case of slander for words actionable only by

reason of special damage, Littleboy v. Wright (1674), 1 Lev. 69;
1 Sid. 95.
DEATH OF PLAINTIFF OR DEFENDANT, 163

It should be noticed that if once the disability
cease—in which case the time begins to run—no
subsequent disability can affect the operation of the
statute or prevent the time from continuing to run
against the plaintiff.

A publication contrived by the plaintiff, eg., a
sale of the libellous newspaper by the defendant to
the plaintiff's agent, brought about for the express
purpose of maintaining the action, is a fresh publi-
cation from the date of which the time will begin
to run again, even though the real grievance be a
publication many years before that date. Thus, in
the case of The Duke of Brunswick v. Harmer (t),
a sale to the plaintiff’s agent of a copy of the news-
paper containing the libel seventeen years after its
original publication, was held to constitute a fresh
publication, from the date of which the Statute of
Limitations would begin to run anew.

Art. 44.—Death of plaintiff or defendant.

The maxim actio personalis moritur cum persona
applies to every action for libel or slander, and, there-
fore, where a libel or slander has been published by or
in respect of uny person, and such person dies, no right
of action survives either for or against his executor or
administrator.

Nore 1.—Even though the action has been com-
menced before the death of plaintiff or defendant,

(¢) (1849), 19 L. J. Q. B20; 30. &K. 10; 14 Jur 110;
14 Q. B. 185.

M 2
164 THE LAW OF LIBEL AND SLANDER.

the death of either party before verdict puts an end
to it. On the other hand, it is specially provided,
by Ord. XVII, Rule 1, that “there shall be no
abatement by reason of the death of either party
between the verdict or finding of the issues of fact
and the judement, but judgment may in such case
be entered, notwithstanding the death.” The effect.
of this rule would appear to be that Ireland v.
Champneys (2) is no longer law. In that case, the
plaintiff in an action for libel died after interlocutory
judement had been signed, a writ of inquiry issued,
and damages assessed, and it was held that final
judgement could not be entered for the plaintiff
for the damages assessed, the suit having abated by
his death.

Where the plaintiff dies after final judgment has
been entered in his favour, the executors or ad-
ministrators are entitled to appear as respondents
on appeal from such judgment (2).

Nore 2.—It may be noticed here that where the
Court in an action for administration appoints
receivers for the purpose of conducting a newspaper,
anil the receivers publish a libel in such newspaper,
they may be sued therefor. The estate alone will
be liable for any damages recovered against them,
but they will be personally lable for the costs of
the action (y).

(u) (1813), 4 Taunt. 884.

(x) Zwycross v. Grant and others (1878), 4 C. P. D. 40 47
L. J. Q. B. 676; 39 L. T. 618.

(y) Stubbs v. dursh (1866), 15 L. T. 312.
EVIDENCE IN AGGRAVATION OF DAMAGES. 165

A libel on the business carried on by a receiver
and manager appointed by the Court is a contempt
of Court, and may be punished by committal of the
offender (z).

Arr. 45.—Evidence in aggravation of damages.

At the trial of an action for libel or slander the
plaintiff may prove in aggravation of damages the cir-
cumstances under which the words were published (a),
and, if it has been pleaded, the special damage af any
which such words have caused.

Nore 1.—The circumstances winder which the
words were published. Thus, the plaintiff may
show that the libel was scattered broadcast when
the defendant was under no duty and had no right
to publish it except to a lmited number of per-
sons(b). He may show that the defendant was
culpably negligent (c) ; that he could without any
difficulty have discovered that his charges were
unfounded, or that he persisted in maintaining
their truth even at the trial itself (d). So, too,

(z) Helmore v. Smith (1886), 35 Ch. D. 449; 56 L. J. Ch.
145; 56 L. T. 72.

(a) Vines v. Serell (1835), 7 C. & P. 163; Darby v. Ouseley
(1856), 25 L. J. Ex. 233; Blake v. Stevens and others (1864),
11 L. 7.543; 4 F. & F, 232; Risk Allah Bey v. Whitehurst
(1868), 18 L. T. N.S. 615.

(b) De Crespigny v. Wellesley (1829), 5 Bing. 402; Stockdale
vy. Hansard (1839), 9 A. & E. 149 ; Gathercole v. Meall (1846),
15 L. J. Ex. 179; 10 Jur. 337; 15 M. & W. 319.

(c) Smith v. Harrison (1856), 1 F. & F. 565.

(d) Simpson v. Robinson (1848), 12 Q. B. 511; 18 L. J.
Q. B. 73.
166 THE LAW OF LIBEL AND SLANDER.

where the action is for the publication of a libel in
a newspaper, evidence is admissible in aggravation
of damages to show that the defendant knew that
the words published would be, and that the same in
fact were, repeated and published in other editions
of the same newspaper; and therefore where the
Statement of Claim contained an allegation to that
effect, the Court refused an application by the
defendant to strike it out (e).

“In actions for libel . . . the jury, in assessing
damages, are entitled to look at the whole conduct
of the defendant from the time the libel was pub-
lished down to the time they gave their verdict.
They may consider what his conduct has been
before action, after action, and in court during the
trial” (f). But the plaintiff is not allowed, in
order to aggravate the damages, to give evidence
of his good character unless the defendant has pre-
viously suggested on the pleadings or in cross-
examination that it is bad(g). Neither is he
allowed, with the same object in view, to prove
that the defendant has published other libels of
him (A). Where, however, there is a plea of quali-
fied privilege, and therefore a question of malice,

(e) Whitney and others v. Moignard (1890), L. R. 24 Q. B. D.
630.

(f) Per Lord Esher, M. R., in Praed v. Graham (1889), 24
Q. B. D. at p. 55; Gordon v. Street (1899), 69 L. J. Q. B. 45;
81 L. T. 237; 48 W. R. 158; reported on another point in
(1899), L. R. 2 Q. B. 641.

(9) Guy v. Gregory (1840), 9 C. & P. 587; Brine v. Bazal-
gette (1849), 18 L. J. Ex. 848; 3 Ex. 692.

(h) Pearson v. Lemaitre (1843), 12 L. J. Q. B. 253.
EVIDENCE IN AGGRAVATION OF DAMAGES. 167

evidence of other libels is, as has been already
stated, admissible (7).

Note 2.—Special damage. Special damage, if
properly pleaded, may also be proved in aggravation
of damages. The plaintiff is always required to
prove strictly that the special damage is imme-
diately caused by the defendant’s words (zk). It is
not sufficient that such words conduced to the
damage ; they must have been the main factor in
producing it.

If the damage is mainly attributable to the
caprice or unreasonable conduct of a third party, or
conduct which under the circumstances could not
be reasonably anticipated, the defendant is not
liable (7). Thus where the defendant, who was a
married woman, accused another married woman of
having committed adultery, and the latter told her
husband of the accusation, and he thereupon insisted
upon a separation, it was held that the defendant
was not liable (m).

In Speight v. Gosnay (n), the defendant uttered
a slander consisting of a false imputation upon the
chastity of the plaintiff, an unmarried woman, in
the presence of plaintiffs mother. The mother
repeated it to the plaintiff, who repeated it to the

(t) See p. 157, supra.

(k) See p. 24, supra.

(1) Ashley v. Harrison (1793), 1 Esp. 48; Peake, 256.
(m) Parkins et ux. v. Scott et ux. (1862), 1 H. & C. 153; 31

L. J. Ex. 331.

(n) (1891), 60 L. J. Q. B. 231; 55 J. P. 501; but now an
action would lie for such an imputation without proof of special
damage ; see pp. 20, 37, supra.
168 THE LAW OF LIBEL AND SLANDER.

man to whom she was engaged to be married, and
he broke off the engagement. There being no
evidence that the defendant authorized or intended
the repetition of the slander, or that he knew of the
plaintiff's engagement, it was held by the Court of
Appeal that an action of slander could not be
maintained against him, on the ground that the
special damage was too remote.

So where the plaintiff was a veterinary surgeon,
and in order to prove special damage a person was
called to say he had ceased to employ the plaintiff
since the words complained of were spoken; but
it appeared that he was not present when the
defendant uttered them, and therefore must have
heard them from some third person, it was held by
Martin, B., that such evidence of damage was
inadmissible (0).

Where, however, the words are actionable per se,
the rules as to the admissibility of evidence do not
always appear to be so rigidly applied as in other
cases ; €.g., in the former case the jury, in esti-
mating the damages, have been allowed to consider
mental pain and anxiety (p), which, as has been
already stated (qy), does not constitute special
damage so as to sustain an action where the words
are not actionable per se.

(0) Hirst v. Goodwin (1862), 3 F. & F. 287.

(p) Per Lord Wensleydale in Lynch vy. Knight and Wife
(1861), 9 H. L. C. at p. 598.

(q) See p. 22, supra.
EVIDENCE IN MITIGATION OF DAMAGES. 169

Art. 46.—Evidence in mitigation of damages.

At the trial of an action for Ubel or slander, the
defendant may prove tn mitigation of damages (1) (after
notice in writing of his intention so to do duly given
to the plaintiff at the time of filing or delivering the
plea in such action) that he made or offered an
apology to the plaintiff for such defamation before the
commencement of the action, or us soon afterwards as he
had an opportunity of doing so, in case the aetion shall
have been commenced before there was an opportunity of
making or offering such apology (r); and (2) the eir-
cumstances under which the libel or slander was published,
or the character of the plaintiff, provided that he has
furnished the particulars thereof to the plaintiff seven
days at least before the trial, or has pleaded the truth
of the words complained of, otherwise he eannot give
such evidence except by leave of the judge (s). At the
trial of an action for a libel in any newspaper the
defendant may also prove in mitigation of damages
(8) that the plaintiff has already recovered (or brought
actions for) damages, or has received, or agreed to
receive, compensation in respect of a libel or libels, to
the same purport or effect as the libel for which such
action has been brought (t).

Note 1.—The first and second of the above
provisions may be taken advantage of by any deten-
dant to an action for libel or slander. Wherever

(r) Lord Campbell’s Act (6 & 7 Vict. c. 96), s. 1, see Note 1.

(s) Rules of Supreme Court, 1883, Ord. XXXVI, r. 37, see
also pp. 170—171, 223—224, infra.

(t) Law of Libel Amendment Act, 1888 (51 & 52 Vict.
c. 64), s. 6, see Note 2, p. 173, infra.
170 THE LAW OF LIBEL AND SLANDER.

the defendant can make use of the latter provision
he should be careful to give the seven days’ notice
required by it, as otherwise he will not be entitled,
without the special leave of the judge who tries the
case, to give evidence which in many cases will
prevent the plaintiff from obtaining other than
nominal damages. The effect of Ord. XXXVI,
Rule 37, which provides for the above notice being
given, is not to enable the defendant to give in
evidence what, before the rule came into force, he
could not give, but merely to prevent him from
giving the evidence therein specified, unless he does
give such notice. He may not, of course, go into
irrelevant matters (w). Thus he cannot be per-
mitted to show that the plaintiff has not contra-
dicted or complained of previous publications by
some other persons of the same libel (x). And
where no justification has been pleaded, he may not
give evidence which tends to prove that the libel is
in fact true (y). Thus, in Penny v. Stubbs (2),
where the plaintiff brought an action for slander,
alleging that the defendant had accused him of
having committed perjury, and the defendant paid
40s. into Court and apologized, and then proposed
to give evidence under Ord. XNNVL, Rule 37, to
prove that the plaintiff had made statements in the

(u) Darby v. Ouseley (1856), 25 L. J. Ex. 227; 1 H& N.1.

(vw) Per Maule, J., in Ingram v. Lawson (1840), 9 C. & P.
333 ; and Pankhurst v. Hamilton (1886), 2 Times L. R. 682.

(y) Smith v. Richardson (1737), Willes, 20; Underwood v.
Parks (1744), 2 Strange, 1200; Speck v. Phillips (1839), 5
M. & W. 279; 8L. J. Ex. 277,

(z) Unreported, tried in the Q. B. D., Feb. 19th, 1892.
EVIDENCE IN MITIGATION OF DAMAGES. 171

witness-box in another action which were not in
fact true, Vaughan Williams, J., held that such
evidence was inadmissible.

‘The defendant may, however, always give evidence
to prove that he was not acting maliciously but in
good faith. Thus, in Harle v. Catherall and
others (a), where the defendant, an editor, declined
to discover the name of the writer of the libel, but
threw open his columns to the plaintiff, who wrote
a number of letters in explanation and contradiction
of the charge which the defendant inserted, it was
held that the defendant was entitled to prove these
facts in mitigation of damages. So, too, in Snuth v.
Scott (b), where the libel was contained in an inac-
curate report of proceedings in a court of Justice,
evidence was admitted to show that the inaccuracy
was caused by accident, and was not intentional on
the part of the defendant.

That some other newspaper or individual has
previously published the same charges against the
plaintiff and has not been sued is no defence, nor is
it even admissible as evidence in mitigation of
damages (c). If, however, the defamatory statement
appears on the face of it to be copied from a certain
newspaper or communicated by a particular indi-
vidual, the defendant may prove in mitigation of

(a) (1866), 14 L. T. 801.

(b) (1847), 2 C. & K. 580. See also Charlton v. Watton
(1834), 6 C. & P. 385; Pearson v. Lemaitre (1843), 12 L. J.
Q. B. 253; 7 J. P. 336.

(c) Saunders v. Mills (1829), 6 Bing. 213; 3 M. & P. 520;
Talbutt v. Clark and another (1840), 2 M. & Rob. 312; Zucker
y. Lawson (1886), 2 Times L. R. 593.
172 THE LAW OF LIBEL AND SLANDER.

damages that a paragraph to the same effect did
appear in that newspaper, or that the statement
complained of was in fact communicated to him by
such person (/’). And it would seem that general
evidence of bad reputation is admissible in mitiga-
tion of damages (e), although evidence of rumours
to the same effect as the libel complained of is
inadmissible (f). If however the defendant can
prove that in copying the libel from another news-
paper, or (semble) in repeating the slander, he
omitted certain parts which referred in very adverse
terms to the plaintiff, the fact that he did so is
admissible as evidence to prove absence of malice,
and this necessitates the admission in evidence of
the original libel (g). And defendant can prove in
mitigation of damages that plaintiff had, prior to
the publication of the libel complained of, libelled
or slandered the defendant, provided that he can
also prove that this provoked him to retaliate by
publishing the libel sued for (1), but not otherwise (2).

(d) Duncombe v. Daniell (1837), 8 C. & P. 222; 2 Jur. 32;
1W.W. & H. 101; per Wightman, J., in Davis v. Cutbush
(1859), 1 F. & F. 487.

(e) Scott v. Sampson (1882), 8 Q. B.D. 491; 51L. J. Q. B.
380; 46 L. T. 412; Wood v. Durham (1888), 21 Q. B. D. 501;
57 L. J. Q. B. 547 5 57 L.T.770. See also Wood v. Cox (1888),
4 Times L. R. 550; and the observations of Lord Coleridge,
L. C. J., in summing up the case to the jury at the trial of the
last-mentioned case as reported in 4 Times L. R. at p. 655.

(f) Scott v. Sampson, supra.

(9) Creevey v. Carr (1835), 7. C. & P. 64.

(h) Wakley v. Johnson (1826), Ry. & M. 422; Tarpley v.
Blabey (1835-36), 2 Bing. N. C. 437; 7 C. & P. 395; Watts v.
Fraser and another (1837), 7 A. & E. 223; 7C. & P. 369.

(t) May v. Brown (1824), 3B. & C. 113; 4 D. & R. 670.
CONSOLIDATION OF ACTIONS. 173

Note 2.—The third of the above provisions,
which was introduced by s. 6 of the Law of Libel
Amendment Act, 1888, is very valuable to news-
paper proprietors. For example, if prior to that Act
a country newspaper had copied a libellous article
from a London newspaper, evidence could not be
given that the plaintiff had already recovered damages
against the London paper for the same article (/)-
It will be observed that the provision is confined to
libels appearing in a newspaper as defined by the Act,
so that it has no application to any libel which appears
elsewhere, e.g.,in a monthly periodical or book (/).

Art. 47.—Consolidation of actions.

It shall be competent for a judge or the Court, upon
an application by or on behalf of two or more defen-
dunts in actions in respect to the same, or substantially
the same, libel, brought by one und the same person, to
make an order for the consolidation of such actions, so
that they shall be tried together ; and after such order
has been made, and before the trial of the said actions,
the defendants in any new actions instituted in respect
to the sume, or substantially the same, libel, shall also
be entitled to be joined in a common action upon « joint
application being made by such new defendants and
the defendants in the actions already consolidated (m).

Notre.—This is a most valuable provision to
newspaper proprietors, and is aimed at preventing
~ (k) Hunt v. Algar and others (1833), 6 U. & P. 245.

(2) See pp. 111—112, supra.
(m) 51 & 52 Vict. c. 64, s. 5.
174 THE LAW OF LIBEL AND SLANDER.

the repetition of such cases as Tucker v. Lawson (1)
and Colledge v. Pike (0), where a series of actions
were brought against different newspapers for the
same libel which they had all copied, and heavy
damages recovered against each. Prior to the Law
of Libel Amendment Act, 1888, it was held in the
last-mentioned case that in such circumstances,
inasmuch as there were distinct and separate
publications, and consequently the liabilities of the
various defendants were different, there could be no
consolidation of the actions, and the only relief
which the defendants could obtain was in regard
to costs, and this was effected by obtaining a stay
of all the actions except one. Each defendant was
then liable for whatever damages the plaintiff
recovered in that action, and by this means a
plaintiff could recover enormous damages for what
was really the same libel. By this Act, however,
such a course is rendered impossible, as the actions
may be consolidated ; and, as will be seen by the
next Article, the jury can now apportion the
amount of damages between the defendants. The
Court has jurisdiction to make an order for con-
solidation before the delivery of defences in the
actions (), and an order will be made where the
application appears to be reasonable, even though
the defences raised are different (q).

(x) (1886), 2 Times L. R. 593.

(o) (1886), 56 L. T. 124,

(p) Stone v. Press Association (1897), 2 Q. B. 159 (C. A.)
(q) Eddison v. Dalziel (1893), 9 Times L. R. 334,
ASSESSMENT OF DAMAGES. 175

Art. 48.—Assessment of damages in a
consolidated action.

In a consolidated action, the jury shall assess the
whole amount of damages (if any) in one sum, but a
separate verdict shall be taken for or against each
defendant in the same way as if the actions consoli-
dated had been tried separately; and if the jury
shall hare found a verdict against the defendant or
defendants in more than one of the actions so consoli-
dated, they shall proceed to apportion the amount of
damages which they shall have so found between and
against the said last-mentioned defendants ; and the
judge at the trial, if he awards to the plaintiff the
costs of the action, shall thereupon make such order
as he shall deem just (r) for the apportionment of
such costs between and against such defendants (s).

Nore.—This enables a jury, after assessing the
damages suffered by the plaintiff in a consolidated
action (see preceding Article), %e., the amount
recoverable in all the actions, to go further, and
apportion the amount of damages recoverable
against each defendant. Without this provision,
each defendant would of course be liable for all the
damage, as indeed he still is in any action not
coming within the meaning of a consolidated action
under sect. 5 of the Law of Libel Amendment
Act, 1888 (f).

(r) See Hopley v. Williams (1889), 6 Times L. R. 3; 53

J. P. 822.
(s) 51 & 52 Vict. c. 64, 8. 5.

(é) See p. 59, supra.
176 THE LAW OF LIBEL AND SLANDER.

Art. 49.—Injunctions.

The Court has jurisdiction in an action of libel or
slander to restrain by injunction cither before or at
the trial any further publication of such libel or
slander (t), but before the trial such jurisdietion will
be exercised with great caution (1).

Nore.—In order to obtain an interim injunction
the plaintiff must make his application promptly (x) ;
he must also prove that the defendant intends to
continue the publication complained of (y), and that
there is “such immediate and pressing injury to
person or property threatened by the defendant’s
proceedings as to make it desirable . . . that (the
Court) should interfere ” (z).

The jurisdiction of the Court to issue injunctions
in cases of libel is not, as has been supposed,
confined to cases of libels affecting trade or pro-
perty («). It is also applicable to libels affecting
character only ; “in all cases where the Court

(t) Saxby v. Easterbrook (1878), 3 C. P. D. 339;27 W R.
188; Thorley’s Cattle food Co. v. Afussam (1880), 14 Ch. D.
781 (C. A.); 42 L. T. 851; Kerr v. Gandy (1886), 3 Times L. R.
75; Hayward v. Hayward and Sons (1886), 34 Ch. D. 198.

(u) Quartz Hill Mining Co. v. Beall (1882), 20 Ch. D.
501 (C. A.); Bonnard v. Perryman (1891), 2 Ch. 269 (C. A.)

(a) Monson v. Tussauds, Limited (1894), 1 Q. B. 671.

(y) Per Jessel, M. R., in Quarts Hill Consolidated Gold
Mining Co. v. Beall (1882), 20 Ch. D. at pp. 508, 509.

(z) Per North, J., iu Sulomons v. Knight (1891), 2 Ch. at p. 297,
cited with approval by the Court of Appeal, wed. at p. 298.

(a) Per Lord Halsbury in Monson v. Tussauds, Limited ;
Monson v. Lowis Tussand (1894), 1 Q. B. at p. 690. See also
the observations of Davey, L. J., ebed. at p. 698.
INJUNCTIONS. 177

shall think it just and convenient, the remedy
exists ” (b).

There have been several important cases on this
branch of the law, and the Court of Appeal has
stated that an interim injunction will only be
eranted “in the clearest cases where any jury would
say that the matter complained of was libellous, and
where, if the jury did not so find, the Court would
set aside the verdict as unreasonable” (¢c). Thus
in Collard vy. Marshall (d) an interim injunction
was eranted to restrain the defeudant, who was the
secretary of a trade union, from publishing a placard
stating that there was a strike now on at the
plaintiff’s works, that the sweating system was
practised, and the polishing badly done there ;
these statements being held to be untrue, and the
defendant not suggesting that he could produce
further evidence in support of them(e). So,
too, in Lhe London and Northern Bank, Ltd. v.
George Newnes, Ltd. (f) au interim injunction was
granted to restrain the defendauts from publish-

ing a statement that the plaintiffs are “ now in

(4) Per Lord Halsbury, ibid. at p. 690.

(c) Per Lord Esher, M. R., in Coulson vy. Coulson (1887), 3
Times L. R. 846, approved and adopted by the Court in
Bonnard v. Perryman (1891), 2 Ch. at p. 284. See also Liver-
pool Ifousehold Stores Association vy. Smith (1887), 37 Ch. D.
170; and the observations of Lord Herscbell, L. C., in White vy,
Mellin (1895), App. Cas. at pp. 162, 163.

(4) (1892), 1 Ch. 571.

(c) See also Pink v. Federation of Trades and Labour Unions
(1892), 67 L. T. 254; Trollope v. London Building Trades
Federation (1895), 11 Times L. R. 228 and 280.

(f) (1899) 16 Times L. R. 76.

L.S. N
178 THE LAW OF LIBEL AND SLANDER.

liquidation,” it being clear that the statement was
unfounded.

No such injunction will be granted when the
defendant swears that he will be able to justify the
libel, and the Court is not satisfied that he may not
be able to do so (g), or where the words complained
of are primi facie privileged (h), or may be fair
and bondi fide comment on a matter of public
interest (2), or where the plaintiff does not show an
actionable wrong, e.g., where, as in the case of
slander of title, special damage is necessary to the
maintenance of the action, and no special damage
is shown (k). An injunction will not be granted
to restrain the mere unathorized use of a man’s
name ; unless it can be shown that the publication
complained of is defamatory or injures the plaintiff
in his property, business, or profession, there is no
cause of action either for damages or for an
injunction (/).

The Court has also a general jurisdiction to
restrain by injunction the publication of any matter
which tends to prejudice the administration of

(9) Bonnard v. Perryman (1891), 2 Ch. 269; Collard v.
Marshall (1892), 1 Ch. 571.

(h) Quartz Hill Gold \ining Co. v. Beall (1882), 20 Ch. D.
501 (C. A.); 51 L. J. Ch. 874; 46 L. T. 746; Allinson v.
General Council of Medical Education, &c. (1892), 8 Times
L. R. 784 (C. A.); Champion & Co., Limited v. Birmingham
Vinegar Brewery Co., Limited (1893), 10 Times L. R. 164.

(t) Armstrong and others v. Armit and others (1886), 2
Times L. R. 887.

(k) Per Lord Herschell, L. C., in Whete v. Afellin (1895),
App. Cas. at p. 163.

(2) Dockrell v. Dougall (1899), 80 L. T. 556 (C. A.).
Costs. 179

justice, provided that application for such relief is
made without delay. Thus the publication of any
comments which are calculated to prejudice the
fair trial of an action which is pending will be
restrained (72).

Further, by the Corrupt and Illegai Practices
Prevention Act, 1895 (mn), the Court has power to
restrain by injunction any false statement of fact
made before or during any parliamentary election
concerning the personal character or conduct of
any candidate at such election, and made for the
purpose of affecting the return of such candidate
thereat. In order to come within the Act, the
statement complained of must be a statement of
fact as opposed to a statement of opinion (0).

Art. 50.—Costs.

If the action is tried without a jury the costs are in
the discretion of the judge, und if he makes no order
each party must pay his own costs. If the action is
tried with a jury, the costs follow the event, unless for
good cause shown the judge otherwise orders (/).

(m) Reg. v. Payne (1896), 1 Q. B. 577; and see p.p. 88, 89,
supra, and cases there cited in foot-notes (a) and (0).

(n) 58 and 59 Vict. c. 40, ss. 1, 3.

(0) Bayley v. Edmunds (1895), 11 Times L. R. 537; Borough
of Sunderland (1895), 5 O’M. and H. 53; Hillis v. National
Union of Conservative, dc. Associations and others, Times news-
paper for October 3, 1900; Law Times journal for October 6,
1900.

(p) Rules of the Supreme Court, 1883, Ord. LXV., r. 1.

N 2
180 THE LAW OF LIBEL AND SLANDER,

Norr.—In actions for libel or slander either party
is entitled as of right to have the case tried with
a jury (q), and this is almost the invariable practice.
Generally speaking, therefore, if the plaintiff recovers
any damages at all he gets his costs, unless the
judge for good cause deprive him of them. “No
general rule can be laid down” as to what consti-
tutes good cause, ‘but the conduct of the parties
in each case and the facts of each case must be
looked at” (7). ‘ The facts must show the existence
of something, having regard either to the conduct of
the parties or to the facts of the case, which makes
it more just that an exceptional order should be
made than that the case should be left to the ordi-
nary course of taxation” (s). ‘‘The smallness of the
damages awarded does not of itself constitute ‘good
cause, although it is always a matter to be considered
in deciding whether or not good cause exists ” (t).

Art. 51.—New Trial.

The Court will grant a new trial (1) on the ground
of misdirection or improper admission or rejection of
evidence, provided that some substantial wrong or

(q) Rules of the Supreme Court, 1883, Ord. LXV., r. 1.

(r) Per Lord Esher, M. R., in Wood v. Cox (1889), 5 Times
L. R. at p. 274.

(s) Jones v. Curling (1884), 13 Q. B. D. at p. 268. Sve
also Hughes v. Merrett (1886), 17 Q. B. D. 373.

(t) OConnor v. The Star Newspaper Co. (1893), 9 Times
L. R. at p. 234. See also per A. L. Smith, L. J., chad. at
p. 235.
NEW TRIAL. 181

miscarriage of justice has been occasioned thereby (u),
or (2) if it be proved that the jury have not exercised
u reasonable discretion (¢).

Nore.—By Ord. XXXIX., Rule 6, of the Rules
of the Supreme Court, 1883, ‘a new trial shall not
be granted on the ground of misdirection, or of
the improper admission or rejection of evidence,
or because the verdict of the jury was not taken
upon a question which the judge at the trial was
not asked to leave to them, unless in the opinion of
the Court to which the application is made some
substantial wrong or miscarriage has been thereby
occasioned in the trial, and if it appear to such
Court that such wrong or miscarriage affects parts
only of the matter in controversy or some or one
only of the parties, the Court may give final jude-
ment as to part thereof, or some or one only of the
parties, and direct a new trial as to the other part
only or as to the other party or parties.”

In the recent case of Bray v. Ford (x), where
the judge misdirected the jury in favour of the
plaintitf upon a material part of the alleged libel,
and the jury returned a verdict for the plaintiff
for £600 damages, it was held by the House of
Lords that, since the assessment of damages is
peculiarly within the province of the Jury in an
action for libel, and since the jury had returned

(uw) Phillips v. L. & S. W. Rail. Co. (1879), 5 Q. B. D. 78;

49 L. J. Q. B. 833.
(v) Rules of the Supreme Court, 1883, Ord. XXXIX,, r. 6;

and see Bray v. Ford (1896), App. Cas. 44.
(x) (1896), App. Cas. 44.
182 THE LAW OF LIBEL AND SLANDER,

their verdict on what they were erroneously led
to think was the case, and not on the real case
which the defendant was entitled to have submitted
to them, and might, in assessing the damages, have
been influenced by the misdirection, there had been
a substantial wrong or miscarriage within Order
XXXIX., Rule 6, and that there must be a new
trial. And this ruling would be in no way affected
by the fact that the Court might think that the jury
would have given the same damages if the law had
been correctly expounded (7).

A new trial has been granted in an action for
libel on the ground that at the trial, although the
libel was admitted on the pleadings, the judge
directed the jury that it was for them to say
whether the words complained of were a libel or
not, and also that he was wrong in admitting
evidence for the defendants of facts not referred
to in their particulars in mitigation of damages and
in rejecting rebutting evidence tendered on the
plaintiff’s behalf (z). And in another case, where
privilege was pleaded, it was held to be a misdirec-
tion by the learned judge to tell the jury that the
question of privilege depended upon their finding
whether the defendant did or did not believe his
statement to be true, inasmuch as the onus is on the
plaintiff to show malice, not upon the defendant to
negative its existence (a).

(y) (1896), App. Cas. 44.

(2) Maclaren and Sons v. Davis and another (1890), 6 Times
L. R. 372.

(a) Clark v. Molyneux (1877), 3Q. B. D. 237; 47 L. J.
Q. B. 230 ; Jenoure v. Delmege (1891), App. Cas. 73.
NEW TRIAL, 183

It will be found that the different grounds on
which the Court has set aside the verdict of a jury
fall within the principle set out in the last part of
the above Article. In order to obtain a new trial
it must be conclusively proved that the jury have
not exercised any reasonable discretion at all (0).
Thus, in Praed v. Graham (e), where the Court
was asked to set aside the verdict on the ground
that the damages given by the jury were excessive,
Lord Esher said, “If. . the Court thinks that,
having regard to all the circumstances of the case,
the damages are so excessive that no twelve men
could reasonably have given them, then they ought
to interfere in the verdict.” It is not sufficient that
the Court itself would have come to a different
conclusion, for estimates and opinions may differ
widely. “Judges have no right to overrule the
verdict of a jury as to the amount of damages
merely because they take a different view and
think that if they had been the jury they would
have given more or would have given less” (d).

So, too, where it would not be wholly unrea-
sonable to attribute a libellous meaning to the words
complained of, and the jury have found that the

(6) Metropolitan Rail. Co. v. Wright (1886), 11 App. Cas.
152: Commissioner for Railways v. Brown (1887), 13 App. Cas.
133. See also Australian Newspaper Co. ve Bennett (1894),
App. Cas. at p. 287; Jones v. Spencer (1897), 77 L. T. 536.

(c) (1889), 24 Q. B.D. at p. 55. See also Gordon v. Street
(1899), 69 L. J. Q. B. 45; 81 L. T. 2375 48 W. R. 108:
reported on another point in (1899), L. R. 2 Q. B. 641.

(d) Per James, L. J., in Phillips v. Lo & 8S. Wo Rail. Co.
(1879), 5 Q. B.D. at p. 83.
184 THE LAW OF LIBEL AND SLANDER.

words do in fact bear that meaning, a new trial
will not be granted merely because the Court itself
would not have come to the same conclusion (@).

The Court has power to refuse an application for
anew trial where such application is made merely
on the ground that the damages are excessive, upon
the plaintiff then and there consenting to the
damages being reduced to such an amount as the
Court would consider not excessive had they been
eiven by the jury. Under these circumstances the
defendant has no voice in the matter (/).

The Court of Appeal has jurisdiction on a motion
for a new trial under the Supreme Court of Judica-
ture Act, 1890 (g), to direct judgment to be entered
for either of the parties, instead of ordering a new

trial (h).

(e) Beamish vy. Dairy Supply Co., Limited (1897), 13 Times
L. R. 484 (C. A).

(f) Belt v. Lawes (1884), 12 Q. B. D. 356.

(g) 53 & 54 Viet. c. 44.

(h) Allcock v. Hall (1891), 1 Q. B. 444.
Part I.—OF CRIMINAL PROCEEDINGS.

—_>—_

Art. 1.—Libel a crime.

The publication of a libel is a misdemeanor punish-—
able by fine and imprisonment (a), for which proceedings
may (subject to Art. 4, infra) be taken by way of
maictment or information.

Notr.—Libel as the subject of criminal pro-
ceedings is either (1) defamatory, or (2) blasphe-
mous, seditious, or obscene (b). Whatever amounts
to a libel in a civil action (see p. 1, supra) will
be held a defamatory libel on a criminal trial, and
criminal proceedings will sometimes lie where an
action will not. Thus, it is a defamatory libel
and a crime, though not actionable (c), to write
and publish words injurious to the reputation of
any deceased person (d), or of any collection of
individuals, without referring to any individual

(a) See 6 & 7 Vict. c. 96, ss. 4, 5, p. 260, infra.

(Z) As to blasphemous, seditious, and obscene libels, sce
p- 196, enfra.

(c) Owing to there being no proper plaintiff. Rex v. Darby
(1687), 3 Mod. 139.

(d) Rex v. Topham (1791), 4 T. BR. 126; contra Reg. v.
Ensor (1887), 3 Times L. R. 366. The dicta in Reg. v.
Labouchere (Vallombrosa’s case) (1884), 12 Q. B. D. 220, only
affect the remedy by way of information.
186 THE LAW OF LIBEL AND SLANDER.

in particular (e), provided that in each case such
words tend to provoke a breach of the peace.
Thus, it has been held a libel in criminal law to
write and publish of “certain Jews lately arrived
from Portugal and living near Broad Street,” that
they had murdered a Jewish woman and her child
because the child was begotten by a Christian, in
consequence of which publication, as sworn to on
the aftidavits, many Jews in various parts of the
city had been threatened with death, and had
been maltreated (f). Similarly, it was held that
criminal proceedings would lie for imputing that
a certain nunnery was a brothel of prostitution,
although no reference was made to any special
individual (g); and in another case a criminal
information was granted against the proprietor and
publisher of a newspaper for publishing observations
defamatory of the clergy of a particular diocese,
though no mention was made of any particular
clergyman (/).

So, too, in some cases there may he a good
defence to an cetioi, on the ground that the words
complained of are true, but this in itself is no
answer to criminal proceedings: there the defendant
must be prepared to go further and prove not only
that the words complained of are true, but also
that their publication is for the public benefit.

(e) Rex v. Osborn (1732), W. Kelynge, 230; 2 Barnard.
138, 166; Rex v. Welliams (1822), 2B. & Ald. 595; Rex v.
Gathercole (1838), 2 Lewin, C. C. 237.

(f) Rex v. Gathercole, supra.

(g) Rex v. Osborn, supra.

(h) Rea v. Walliams, supra.
LIBEL A CRIME. 187

Moreover, no action will lie where the words com-
plained of have been communicated only to the
plaintiff himself, it being necessary, as has already
been pointed out (2), to prove that the defendant
has communicated the words to some third person.
But in criminal proceedings it is sufficient that the
libel has been published to the plaintiff himself,
the foundation of such proceedings being the
natural tendency of such words to provoke a breach
of the peace. And this is, of course, the foundation
of the old maxim, “The greater the truth the
vreater the libel,’ which only applies to criminal
proceedings. In a civil action the truth of the
words complained of is a complete defence (x).

On the other hand, slander, as such, is never
a crime, though the words complained of may
come within the criminal law as being blasphe-
mous, seditious, or obscene (/), or as being a
solicitation to commit a crime (m), or a contempt
of Court (n).

Further, by sect. 1 of the Corrupt and legal
Practices Prevention Act, 1895 (0), “‘any person
who, or the directors of any body or association
corporate which, before or during any Parliamentary
election, shall, for the purpose of affecting the
return of any candidate at such election, make
or publish any false statement of fact in relation

(2) See p. 13, supra.

(k) See p. 82, supra.

(2) See p. 196, infra.

(m) Rea v. Higgins (1801), 2 East, 5.

(n) Rea v. Pocock (1741), 2 Strange, 1157.
(0) 58 & 59 Vict. c. 40.
188 THE LAW OF LIBEL AND SLANDER.

to the personal character or conduct of such candi-
date shall be guilty of an illegal practice within the
meaning of the provisions of the Corrupt and
Nlegal Practices Prevention Act, 1883, and shall be
subject to all the penalties for and consequences
of committing an illegal practice in the said Act
inentioned.” In order to come within the Act the
statement must be a statement of fact, not merely
an expression of opinion (/).

By sect. 2, however, “no person shall be deemed
to be guilty of such illegal practice if he can show
that he bad reasonable grounds for believing, and
did believe, the statements made by him to be
true.”

Sect. 3 provides for the granting of an injunc-
tion (q) to prevent the repetition of any such
statement, and sect. 4 exonerates a candidate in
certam cases from hability for the publication of
such statements by his agents.

It will be noticed that in order to amount to
an illegal practice within the meaning of the Act
it is immaterial in what form the statement is
mace.

Nore 2.—The following is a brief outline of the
(ifferent steps to be taken in a prosecution for

(p) fee Borough of Sunderland (1895), 5 O’M. & H.53 ; Ellis
v. National Union of Conservative, &c. Assocvations and others,
Times newspaper for October 3, 1900 ; Law Times journal for
October 6, 1900, vol. cix. p. 493.

(qg) As an instance of a case in which such an injunction
was granted, see Bayley v. Edmunds and others (1895), 11
Times L. R. 537.
PROCEEDINGS BY INDICTMENT. 189

libel, according as the proceedings are by way of
indictment or information.

I. Where the proceedings are by way of indict-
ment, Generally speaking the first step taken
by the prosecutor is to charge the defendant before
a stipendary magistrate or two justices of the
peace ; but whenever the libel has been published
in a newspaper, and it is desired to prosecute
the proprietor, publisher, editor, or other person
responsible for such publication, the prosecutor
must first obtain the leave of a judge at chambers
under sect. 8 of the Law of Libel Amendment
Act (7).

“On a charge of libel before justices, the defendant
usually appears in answer to a summons; but if
he dves not do so the Court may, if satisfied that
the summons has been duly:served upon him, pro-
ceed to hear the case although he is not present,
or—the course generally adopted in practice—issue
a warrant for his apprehension, under 11 & 12 Vict.
ce. 42, s. 1. At common law, upon the hearing
there are only two questions for the consideration
of the Court—“ first, whether the matter complained
of was libellous, and secondly, whether the publi-
cation of it was brought home to the accused ” (s).
After hearing the complainant’s case the Court will
inquire of the accused whether he wishes to call
any witnesses (¢), and evidence on his behalf will

(rv) See Art. 4, p. 200, infra, and note thereto.

(s) Per Cockburn, C.J., in Reg. v. Carden (1879), 5 Q. B.D,
6,7; 49 L. J.M.C.1; 41 L. T. 504.

(t) 30 & 31 Vict. c. 35, s. 3.
190 THE LAW OF LIBEL AND SLANDER.

then be admissible to prove that the words com-
plained of are no libel (w); that they do not relate
to the complainant (x); that they were not published
by the accused (y); that their publication is
absolutely privileged (z); or that they are a fair
and bond fide comment on a matter of public
interest («). The Court will then either dismiss
the case, or, if satisfied that there are reasonable
erounds for doing so, will commit the accused for
trial.

So much, then, for the jurisdiction at common
law. Next, as to the alterations which have been
introduced by statute. In the first place, by
sect. 4 of the Newspaper Libel and Registration
Act, 1881 (44 & 45 Vict. c. 60), “a Court of
summary jurisdiction, upon the hearing of a charge
against a proprietor, publisher, or editor or any
person responsible for the publication of a news-
paper, for a libel published therein, may receive
evidence as to the publication being for the public
benefit, and as to the matters charged in the libel
being true, and as to the report being fair and
accurate and published without malice, and as to
any matter which under this or any other Act or
otherwise might be given in evidence by way
of defence by the person charged on his trial on
indictment, and the Court, if of opinion after

(w) See pp. 185—186, supra.

(z) See pp. 3—6, supra.

(y) See pp. 199—200, infra.

(z) See pp. 99, 103, 109, 110, supra.
(a) See pp. 89—98, supra.
PROCEEDINGS BEFORE MAGISTRATE. 191

hearing such evidence that there is a strong or
probable presumption that the jury on the trial
would acquit the person charged, may dismiss the
case.”

This section effected a great change in the law
so far as the press were concerned. Its object is to
enable a magistrate, upon the hearing of a charge
of libel against any of the persons mentioned, to
receive and hear such evidence as would be
admissible on the trial of an indictment for libel,
and, if he should be of opinion that at the trial
the defendant would be acquitted, to dismiss the
case. “Independently of statute the magistrate
could not receive evidence of the truth of the
libel” (b), because that was no defence to criminal
proceedings. ‘The question then arises,” said
Cockburn, L. C. J. (0), “whether [sect. 6 of ] Lord
Campbell’s Act (c) enables him to do so. In my
opinion it does not, because the defence founded
upon the truth of the libel does not arise at
that stage and cannot be put forward before the
magistrate. Suppose the defendant had succeeded
fully and entirely in showing the truth of the libel;
what, then, would have have been the duty of the
magistrate? He would nevertheless have been
bound to send the case for trial, because by the
statute the truth of the libel does not constitute
a defence until the statutory conditions are complied
with, and they cannot be complied with at that
stage of the inquiry.”

(b) Reg. v. Carden (1879), 5 Q. B. D. at pp. 6, 7.
(c) See pp. 260—261, enfra.
192 THE LAW OF LIBEL AND SLANDER.

It is clear, then, that the only cases in which
a& magistrate can receive evidence of the truth of
the libel are : (1) where the defendant is charged
under sect. 4 of Lord Campbell’s Act with mali-
ciously publishing a defamatory libel, knowing the
same to be false (d) ; and (2) by virtue of sect. 4
of the Newspaper Libel and Registration Act, 1881,
upon the hearing of a charge against a proprietor,
publisher, editor, or any person responsible for the
publication of a newspaper, for a libel published
therein. It must be remembered that the latter
section is, however, limited in its application, owing
to the special meaning to be attached to the term
“newspaper” (e).

If there be a committal, the accused will be
released on reasonable bail. If, on the other hand,
the case be dismissed, then, inasmuch as by sect. 6
of the Newspaper Libel and Registration Act, 1881,
every libel is to be deemed an offence within the
Vexatious Indictments Act, 1859 (22 & 23 Vict.
c. 17), the Court may be “required to take the
recognizance of the prosecutor to prosecute the
charge... . and to transmit such recognizance

. and depositions to the Court in which such
indictment ought to be preferred.”

Lastly, it may be noticed that by sect. 5 of the
Newspaper Libel and Registration Act, 1881 (/),
where the party charged is the proprietor, publisher,

(d) Ex parte Ellisen, not reported, approved by Lush, J., in
Reg. v. Carden (1879), 5 Q. B. D. 11, 13.

(e) See p. 111, supra.

(f) 44 & 45 Vict. c. 60.
PROCEEDINGS BEFORE MAGISTRATE. 193

editor, or any person responsible for the publication
of the newspaper in which the libel has appeared,
he may, after he is shown to have been guilty and
if the Court thinks the libel trivial, elect to be
summarily dealt with—in which case the Court
may summarily convict him, and adjudge him to
pay a fine not exceeding £50. It is difficult,
however, to see the practical utility of the above
provision, for it is only applicable when the Court
of summary jurisdiction “is of opinion . . . . that
the libel was of a trivial character,” and it is surely
most improbable that in such a case the judge in
chambers would make the preliminary order for a
criminal prosecution, which must be “first had and
obtained” under sect. 8 of the Law of Libel
Amendment Act, 1888 (9).

If the defendant is committed for trial, the
prosecutor will prefer an indictment before the
grand jury at the Central Criminal Court or
the assizes, as the case may be, and will then
proceed to trial before judge and jury. The
prosecution must satisfy the jury that the words
complained of are libellous, that they referred to
the prosecutor, and would be so understood by
those to whom they were published (h), that they
were published by the defendant (z), and in the
county in which the venue has been laid. As to
the defences which may then be set up, see p. 202,
mfra.

(g) See p. 200, enfra.
(h) See p. 9, supra.
(¢) See pp. 199—200, infra.

LS. 0
194 THE LAW OF LIBEL AND SLANDER.

Il. Where the proceedings are by way of informa-
tion. A criminal information may be (1) ex officio,
2.¢., filed by the Attorney-General,-—a course which
is however only adopted in very serious and press-
ing cases of a public nature, and of which the latest
example was in 1830; or (2) filed by the Queen’s
coroner and attorney by express order of the Queen’s
Bench Division in open Court (4). In the latter
case, also, “there must be some pressing circum-
stances to entitle the applicant to that extraordinary
remedy” (2), and it would appear from the judgment
of the Court in the important case of The Queen v.
Labouchere (Vallombrosa’s case) (m) that as a
general rule the remedy is reserved for cases of libel
upon persons in an official or judicial position, and
filling some office or post which makes it for the
public interest necessary that such jurisdiction
should be exercised for the refutation of the
libellous charges made. The Court in this case
quoted (7) with approval, as illustrating the principle
upon which such information should be granted to
a private person, the following passage from Black-
stone (0): ‘The objects of the other species of
information filed by the Master of the Crown Office
upon the complaint or relation of a private subject,
are any gross and notorious misdemeanors, riots,

(k) Will. & Mary, c. 18. s. 1; Crown Office Rules, 1886,
r. 46,

(1) Per Manisty, J.,in Zu parte Littleton (1888), 52 J. P. at

. 264.
: (m) (1884), 12 Q. B. D. 320.

(n) Ibid. at p. 330.
(0) Book IV. ¢. 23, p. 309.
PROCEEDINGS BY INFORMATION. 195

batteries, libels, and other immoralities of an
atrocious kind not peculiarly tending to disturb
the government (for those are left to the care of
the Attorney-General) but which on account of
their magnitude or pernicious example deserve the
most public animadversion.”

In the case of a criminal information coming
within the second of the classes mentioned above,
counsel for the prosecution must within a reason-
able time after the offence complained of move
the Divisional Court upon affidavits for an order
nisi, calling upon the defendant to show cause why
an information should not be filed (p). The rule
nisi, if granted, is then drawn up and served on
the defendant, who shows cause. If the rule is
then made adsolute, the prosecutor enters into a
recognizance of £50 effectually to prosecute such
information, and to abide by and observe such
orders as the Court shall direct, and then proceeds
to trial as directed by the Crown Office Rules,
1886. The trial itself is similar to the trial of
an indictment.

(p) Crown Office Rules, 1886, r. 48.
196 THE LAW OF LIBEL AND SLANDER.

Art. 2.—Blasphemous, seditious, and obscene
words, &c.

The publication (q) of blasphemous (1), seditious (s),
or obscene (t) matter, whether in writing, printing, or
by word of mouth, is a imisdemeanor, punishable by
fine and imprisonment, for which proceedings may be
taken either by way of information or indictinent.

Nore 1.—It is difficult to precisely define the
meaning of the word blasphemous, but it would
seem that to come within that meaning the matter
must relate to the Deity, any person of the
Trinity, the Bible, the Book of Common Prayer,
or Christianity in general (7), and the publication
must be made with intent to wound the feelings
of believers, or to lead astray the uneducated.
This particular intent is the gist of the offence,
and is usually inferred from the intemperate and
scurrilous tone adopted by the defendant. In the
absence of such an intent there is no blasphemy.
In the words of Best, C. J., “every man may fear-
lessly advance any new doctrines, provided he does

(q) As to what constitutes publication, see pp. 199—200,
anfra.

(r) Rer v. Williams (1797), 26 How. St. Tr. 656; Rer v.
Curhile (1819), 3 B. & Ald. 167; 1 Edw. 6,¢.1,8.1; 2 & 3
Edw. 6, ¢. 1, ss. 2,3; 1 Eliz.c. 2. ss. 2, 3; 13 Eliz. ¢. 12,
s.2; 14 Car. 2,¢.4,58.1; 9 Will. 3, ¢. 35 ; 53 Geo, 3,c. 160.

(s) 60 Geo. 3 & 1 Geo. 4, ¢. 8, 8. 1.

(t) Rex v. John Wilkes (1770), + Burr. 2527 ; 2 Wils. 151;
Reg. v. Carlile (1845), 1 Cox, C.C. 229 ; Reg. v. Hicklin (1868),
L, R. 3 Q. B. 360; 37 L. J. M.C. 89; 18 L, T. 398.
SEDITIOUS WORDS. 197

so with proper respect to the religion and govern-
ment of the country” (wu); or, as Erskine, J., put
it in a later case, “by the law of this country,
every man has a right to express his sentiments
in decent language” (a) ; and finally, to quote the
latest expression of judicial opinion on the subject,
that of Lord Coleridge, C. J.,in Reg. v. Ramsay
and Foote (y), “if the decencies of controversy are
observed, even the fundamentals of religion may
be attacked without a person being guilty of

blasphemous libel.”

Nore 2.—For words to be seditious they must
be published with intent “to bring into hatred
or contempt or to excite disaffection against the
person of his Majesty, his heirs or successors, or
the government and constitution of the United
Kingdom as by law established, or either House
of Parliament, or the administration of justice, or
to excite his Majesty’s subjects to attempt, other-
wise than by lawful means, the alteration of any
matter in Church or State by law established, or
to raise discontent or disaffection amongst his
Majesty's subjects, or to promote feelings of ill-
will and hostility between different classes of such
subjects” (z).

(w) Rex v. Burdett (1821), 4 B. & Ald. 314.

(x) Reg. v. Adams (1842), Trial of Holyoake, London, 1842.

(y) (1883), 48 L. T. 739 ; 1C.& FE. 146 ; 15 Cox, C.C. 231.

(2) Stephen’s Digest of the Criminal Law, 5th ed. Art. 98,
pp. 70—71. See 60 Geo. 3 d; 1 Geo. 4, c. 8, 5. 1, at pp. 253—
254, infra.
198 THE LAW OF LIBEL AND SLANDER.

Not 3.—As to what constitutes “ obscene”
matter, according to Cockburn, L. C. J., in Reg.
v. Hicklin(a), “the test of obscenity is this,
whether the tendency of the matter charged as
obscenity is to deprave and corrupt those whose
minds are open to such immoral influences and
into whose hands a publication of this sort may
fall.” The question what circumstances will be
sufficient to justify the publication of obscene
matter is a difficult one. Sir James Stephen, in
his Digest of the Criminal Law (b), has dealt with
it at length, and comes to the conclusion that “a
person is justified in publishing obscene books,
papers, writings, prints, pictures, drawings, or other
representations, if their publication is for the public
good, as being necessary or advantageous to religion
or morality, to the administration of justice, the
pursuit of science, literature or art, or other objects
of general interest; but the justification ceases if
the publication is made in such a manner, to such
an extent, or under such circumstances, as to excced
what the public good requires in regard to the
particular matter published.”

As to the power of a stipendiary magistrate or
two justices of the peace to suppress and destroy
obscene publications, see 20 & 21 Vict. ¢. 83 (c).

As to summary conviction for affixing to any
wall, fence, hoarding, &¢., or publishing, any

(a) (1868), L. R. 3 Q. B. 360; 37 L. J.M.C. 89; 18 L. T.
398.

(6) 5th ed. Art. 191, pp. 133—134.

(c) Set out in Appendix C, pp. 265—267, infra.
PUBLICATION. 199

picture, or printed or written matter, which is of
an indecent or obscene nature, see the Indecent
Advertisements Act, 1889 (c).

Nore 4.—It should be noticed that a defendant
is not allowed to set up as a defence upon the trial
of an indictment or information for the publication
of a blasphemous, seditious, or obscene libel that
such words are true, and that it is for the public

benefit that they should be published (e).

Art. 3.—Publication.

In criminal cases it is not necessary, as tm the case
of a civil action, that there should be publication in
the sense of a communication by the defendant of the
words complained of to some third party—it is
sufficient if the words complained of be communicated
by the defendant to the prosecutor himself, provided
that their natural tendency is to provoke the prosecutor
and excite him to commit a breach of the peace Gar

Nore.—It must also be remembered that in
criminal cases the question of publication is

(d) 52 & 53 Vict. c. 18, set out in Appendix C., pp. 277—
278, infra.

(e) Cooke v. Hughes (1824), Ry. & M. 115; Reg. v. Duffy
(1870), 9 Ir, L. R. 329; 2 Cox, CC. 45; Be parte O'Brien
(1883), 12 L. R. Ir. 29 ; 15 Cox, ©. C. 180.

(f) Rex v. Garret, Hicks case (1618), Hob, 215 ; Poph. 139 ;
Rex v. Wegener (1817), 2 Stark. 245 ; Reg. v. Brooke (1856),
7 Cox, C. C, 251.
200 THE LAW OF LIBEL AND SLANDER.

entirely a question for the jury (g); not, as in
civil cases (h), partly for the judge and partly for
the jury. With the exception of this difference,
and that pointed out above, the law of publication
in criminal libel is the same as that in civil cases (4).
Not only the person who originally composed the
libel, but every one who prints, sells, gives away, or
exposes a copy of it is guilty of publication at law,
and is liable to be prosecuted (7).

Art. 4.—No prosecution for newspaper libel
except by leave of judge.

No criminal prosecution by way of indictment shall
be commenced against any proprietor, publisher, editor,
or any person responsible for the publication of a
newspaper (k), for any libel published therein without
the preliminary order of a judge at chambers. Such
application shall be made on notice to the person
accused, who shall have un opportunity of being heard
against it (1).

(7) See p. 206, infra.

(h) See p. 19, supra

(t) See the observations of Lord Mansfield in Rex v. Almon
(1770), 20 How, St. Tr. at p. 851; Bayley, J., in Rex v.
Carlile (1819), 3 B. & Ald. at p. 169; and Best, J., in Rex v.
Burdett (1820), 4 B. & Ald. at p. 126.

(x) As to meaning of “ newspaper,” see p. 111, supra.

(2) See 51 & 52 Vict. c. 64, s. 8, the provisions of which
would appear to have no application to any criminal informa-
tion, having regard to the construction placed by the Court
of Appeal in Yates v. The Queen (1885), 14 Q. B. D. 848, upon
s. 3 (now repealed) of the Newspaper Libel and Registration
Act, 1881,
PROSECUTION FOR NEWSPAPER LIBEL. 201

Nore.—This article is based upon sect. 8 of the
Law of Libel Amendment Act, 1888, which replaced
sect. 3 of the Newspaper Libel and Registration
Act, 1881, which required the fiat of the Director of
Public Prosecutions before any such criminal prose-
cution could be commenced. The repealed section
really afforded little protection to the proprietor
or editor of a newspaper, for, as Lord Coleridge
pointed out in the House of Lords, the Director
of Public Prosecutions frequently issued his fiat for
the institution of criminal proceedings for libels in
newspapers when he ought to have refused it.

The judge in chambers will make no order under
this section unless he is satisfied that the case is
one which will not be met by a civil action, and
there is no appeal from his decision whether he
grant or refuse the order (m).

Moreover, the advantages of the above provision
are limited to “the proprietor, publisher, editor, or
any person responsible for the publication of a
newspaper,” as to which several points are notice-
able. In the first place it affords no protection to
the actual composer, or author of the libel, to the
reporter, or the writer of any article, even though
attached to the staff of the newspaper, or to the
compositor, or the office boy, all of whom are liable
to be prosecuted at common law. It is doubtful
whether it includes the printer under the phrase
“person responsible for the publication.” The Act
of 1888, unlike that of 1881, contains no definition
of proprietor, so that it is difficult to say precisely

(m) Ex parte Pulbrook (1892), 1 Q. B. 86.
202 THE LAW OF LIBEL AND SLANDER.

what construction the Court will put upon the term.
It would seem unlikely, in the absence of any
express clause to that effect, that the wide meaning
given to it in the Act of 1881 will be held applic-
able. Further, it will be noticed that the section is
confined to newspapers as defined by the Act of
1881 (x). Therefore it has no application to books
or periodicals not coming within that definition.

Art. 5.—Defences.

The defences to criminal proceedings for-a defamatory
libel are—

1. That the words complained of ure true, and
that it was for the public benefit that they should be
published (0)

2. That the publication of the words complained of
as privileged (p).

3. That the words complained of are a fair and
bond fide comment on a matter of public interest (q).

4. That the publication was made without the
authority or knowledge of the defendant, and did not
arise from want of due care or caution on his part (1).

The last-mentioned defence is also available upon
the trial of an indictment or information for the
publication of blasphemous, seditious, or obscene
words (r).

(n) 51 & 52 Vict. c. 64, 8. 1, set out on pp. 268—269, infra.

(0) 6 & 7 Vict. c. 96,8. 6. Art. 6, p. 203, infra.

(p) See Note, and pp. 99—100, supra.

(7) See Note, and pp. 89—98, supra.

(7) 6 & 7 Vict. c. $6, s 7; and see Art. 7, pp. 204—205,

infra,
DEFENCES TO CRIMINAL PROCEEDINGS. 203

Norr.— Of the above defences those numbered 2
and 3 have already been fully dealt with in treating
of the defences to an action (s). Whether the
defence be that the words complained of were
published on a privileged occasion (t), or were a
fair and bond fide comment on a matter of public
interest (z), the law is precisely the same in civil
and criminal proceedings. And here again, as was
observed in treating of the defences to an action, it
may be said that it is also a defence that the words
complained of are not libellous (a), or do not relate
to the prosecutor (y), or that there has been no
publication (z); but in all these cases the onus of
proving the contrary is on the prosecutor, and if he
does not do so, he fails to make out even a primi
facie case.

Art. 6.—Defence under sect. 6 of Lord
Campbell’s Act (6 & 7 Vict. c. 96).

On the trial of any indictment or information for
a defamatory libel, it is a good defence to prove
that the words complained of are true, and that it
was for the public benefit that they should be
published (a).

(s) See pp. 99—100, 89—98, supra.

(t) See pp. 99—100, supra.

(uw) See pp. 89—98, supra.

(x) See pp. 1—9, supra.

(y) See pp. 3—6, 185—186, supra.

(z) See pp. 199—200, supra.

(a) 6 & 7 Vict. c. 96, 8. 6, pp. 260—261, infra.
204 THE LAW OF LIBEL AND SLANDER.

Nore.—It has already been pointed out that the
truth of the words complained of affords a good
defence to an action for libel (b), but this is not so
in the case of criminal proceedings ; the defendant
must be prepared to go further and prove not only
that the words complained of are true, but also that
it was for the public benefit that they should be
published. If he can satisfy a jury on both these
points, he will be entitled to a verdict of not guilty
by virtue of sect. 6 of Lord Campbell’s Act (c).
The defendant must prove the truth of the words
complained of with the same exactness as is required
of him in a civil action (b). It is provided by the
section cited that this defence will not be available
unless it be specially pleaded. Moreover, it has no
application to blasphemous, seditious, or obscene

words (7).

Art. 7.—Employer’s criminal liability for libels
published by his servants.

Upon the trial of any indictment or information.
Jor the publication of u libel, it ts a good defence to
prove that such publication was made without the
authority, consent, or knowledge of the defendant,
and that the said publication did not arise from
want of due care or caution on his part (e).

(2) See p. 82, supra.

(c) 6 & 7 Vict. c. 96.

(d) Ex parte O’ Brien (1883), 12 L. R. Ir. 29 ; 15 Cox, C. C.
180.

(e) 6 & 7 Vict. c. 96, 8. 7, p. 261, enfra.
EMPLOYER'S CRIMINAL LIABILITY. 205

Norre.—This defence owes its existence to sect. 7
of Lord Campbell’s Act, and is peculiar to the
criminal law. The general rule of law, as we
have seen (f), is that a principal or master is liable
for any libel published by his agent or servant, with
his authority or consent; and this is true not only
as regards liability to an action, but also as regards
criminal liability. Moreover, as has been pointed
out, provided that the agent or servant, in
publishing such libel, was acting in pursuance of
general orders, the master is equally lable to
an action, though he was totally ignorant of the
fact of publication; and, prior to Lord Camp-
bell’s Act, he would have been criminally liable
also (q).

Now, however, in accordance with the above
provision, the proprietor of a newspaper is not
criminally liable for a libel which has been inserted
in it without his knowledge or consent merely
because he has given the editor a general authority
to publish what he thinks proper therein (2). So,
too, the directors of a printing company are not
criminally liable for a libel contained in a paper
printed by the servants of the company unless they
knew of or saw the libel before its publication, or

(f) p. 63, supra.
(g) Nutt’s case (1727), 1 Barnard. K. B. 306; Fitz. 47;

Rex v. Dodd (1736), 2 Sess. Cas. 33; Rex v. Cuthell (1799), 27
How. St. Tr. 642; Rea v. Walter (1799), 3 Esp. 21; Rex v.
Gutch and others (1829), Moo. & Mal. 433.

(h) Reg. v. Holbrook and others (1877), 3 Q. B. D. 35; 37
L. T. 530; (1878), 4 Q. B.D. 42; 48 L. J. Q. B. 113; 39
L. T. 536.
206 THE LAW OF LIBEL AND SLANDER.

gave express instructions for its appearance (¢). In
all such cases, it will be a question for the jury
whether the publication arose from any want of
due care or caution on the defendant’s part; and
the fact that the defendant has employed an editor
for the management of a particular department of
the newspaper, and has entrusted to him the busi-
ness of deciding what articles should be inserted in
the paper, is not necessarily proof of the defendant’s
having consented to the publication of the libel by
him (4). This defence is available upon the trial of
any indictment or information for the publication
of a defamatory libel, or of blasphemous, seditious,
or obscene words (/).

Art. 8.—Libel or no libel a question for the

jury.

On the trial of every indictment or information the
jury sworn to try the issue may give a general verdict
of guilty or not guilty upon the whole matter put in
assuc upon such indictment or information (m).

Nore.—This well-known provision was passed
in the reign of George III., mainly through the

(«) Reg. v. Allison and others (1888), 59 L. T. 933; 53
J. P. 215.

(k) Per Cockburn, C. J., and Lush J.; Mellor, J., diss., in
Reg. v. Holbrook, supra.

(1) Reg v. Bradlaugh and others (1883), 15 Cox, 0. C. 2
eg. v. Ramsay and Foote (1883), 48 L. T. 734;1C.&E. 1
15 Cox, C. C. 231.

(m) 32°Geo. 3, c. 60 (Fox’s Act), s. 1.

7;
32 ;

a
FOX’s ACT. 207

instrumentality of Mr. Fox, and is contained in the
statute known as Fox’s Libel Act (32 Geo. 3, ¢. 60).
Prior to this provision becoming law it had come to
be the practice for the judge, and not the jury, to
decide whether the words complained of were or
were not a libel, inasmuch as, on proof of publica-
tion by the defendant of the words complained of
and of the sense ascribed to them in the indictment
or information, the judge would, as in the famous
trial of the Dean of St. Asaph (x), direct the jury to
find the defendant guilty. The judge is, of course,
still at liberty to explain to the jury any point of
law, and, if he thinks it proper to do so, he may
state his own opinion (0), but the jury “are the
sole judges of the guilt or innocence of the defen-
dant... . (they) are the judges of law and fact,
and on them rests the whole responsibility. In
this sense the jury are the true guardians of the
liberty of the press” (p). It may be mentioned
that sect. 3 of the Act expressly reserves the right
of the jury to find “a special verdict in their dis-
cretion, as in other criminal cases.”

(n) Rex v. Shipley (1784), 4 Dougl. 73; 21 St. Tr. 1043 ;
3T. RB. 428, n.

(0) 32 Geo. 3, c. 60, 8. 2.

(p) Per Fitzgerald, J., in Reg. v. Sullivan (1868), 11 Cox,
Cc. C. 52.
APPENDIX A.

—_4+—-

On the Conduct of a Civil Action.

It is always wise not to issue a writ for libel or slander
in a hurry. In no class of cases perhaps is a judicious
handling of the case in its preliminary stages more
essential for a client’s success. Indiscretion and want of
tact are, far more than is generally supposed, the cause
of ultimate failure in an action of this kind. The plaintiff
himself, in nine cases out of ten, is highly indignant,
often unreasonably so, seeing only his own view of the
case, and is anxious to issue a writ with all speed in
order that he may at the earliest possible moment pro-
perly punish his opponent and set himself right with his
friends and the public. The plaintiff’s solicitor will not,
however, if he is wise, allow himself to be carried away
by his client’s wishes on this point, but will insist upon
carefully considering his client’s legal position before
moving in the matter. It is always prudent before
commencing proceedings to write a judiciously worded
letter to the defendant, giving him an opportunity to
withdraw and apologize. Such a course will frequently
secure for the plaintitf a verdict in a doubtful case, and,
where his case is a strong one, will materially increase
his chance of obtaining heavy damages. Whatever be
the circumstances, such a letter can do no harm, and at
the trial it will always find favour both with the judge
and jury.

In cases where the libel is contained in a paper or
book, there is sometimes difficulty in proving publication
at law, and in discovering the names and addresses of the

L.§& P

We
210 APPENDIX A.

persons responsible for such publication. To meet this
difficulty the legislature has passed several statutes.
By 2 & 3 Vict. c. 12, s. 2, every paper or book which is
meant to be published or dispersed must bear on it the
name and address of the printer ; and by 39 Geo. 3, ¢. 79,
s. 29, the printer must for six calendar months carefully
preserve at least one copy of each paper printed by him,
and write thereon the name and address of the person
who employed and paid him to print it, and show the
same to any justice of the peace who, within such six
calendar months, shall require to see the same.

As a rule, rather than be made the defendant in an
action for libel, the printer will readily disclose the name
of his employer. If, however, he declines to do go, the
plaintiff can usually secure the services of a justice of the
peace for the purpose of making the necessary demand.
If such demand is not complied with, the penalty can be
recovered in a sttmmary manner, in accordance with the
provisions of 39 Geo. 3, c. 79, ss. 34, 36, and 9 & 10 Vict.
c. 33, s. 1 (a).

Where the libel has been published in a newspaper,
difficulty is often met with in attempting to ascertain the
author of the libel, for an editor will not, as a rule, vive
this information, nor is he bound to do so. To quote
the words of Baron Martin, in Harle v. Catherall and
others (b): “When a inan went to an editor to ask for
the name of an anonymous correspondent, no blame
attached to the editor for refusing to give the name.
Indeed, an editor would be almost mad to do so. I should
blame no editor for so refusing.”

The plaintiff, therefore, generally has to satisfy himself
with suing the proprietor and editor, who usually procure
an indemnity from the author. The proprietor’s name
and address can generally be ascertained without any
difficulty by virtue of the provisions of the Newspaper

(«) Set out in Appendix C., pp. 252, 2683—264, infra.
(4) (1866), 14 L. T. at p. 802.
REGISTER OF NEWSPAPER PROPRIETORS. 211

Libel and Registration Act, 1881 (c). Under this Act
a register of newspaper proprietors was ‘established at
Somerset House (d), which is open to the inspection of
any person on payment of one shilling (e). Such register
is at present to be found in Room No. 7. It is the duty
of the printers and publishers of every newspaper to
make a return to the registry office each July, con-
taining the title of the newspaper and the names,
occupations, and addresses (business and_ residential)
of all the proprietors of the paper (jf); and a certified
copy of an entry in this register is sufficient primd facie
evidence of all matters and things thereby appearing (9).

If the newspaper is published by a limited company
the Act has no application (k). Even when the defendant
is not a limited company, the plaintiff cannot be sure
that the defendant was proprietor of the newspaper at the
time the libel was published merely because his name
appears on the register, for since the return was made lie
may have ceased to be proprietor ; and though the transfer
of interest may have been registered by either party
thereto (2), there is no provision which renders it illegal
not to do so.

The plaintiff may of course succeed in fixing the de-
fendant with proprietorship at the time of publication by
administering interrogatories, or by proving that the
newspaper was bought from the defendant or on the
defendant's premises.

If the publisher has in the first instance been sued,
the proprietor can, upon the hearing of a summons before
a master in chambers, be made a co-defendant (4).

A difficulty sometimes met with in practice is to decide

(c) 44 & 45 Vict. c. 60.

(d) Lbid.s. 8.

(7) Lbid. ss. 13, 14.

(/) Ibid. s. 9.

(g) Lbid. s. 15.

(A) Thid. s. 18.

(‘) Under s. 11. : :

(k) Edward v. Lowther (1876), 45 L. J.C. P.dl7; 84 L. T. 255; 24
W. R. 434.

P2
212 APPENDIX A.

how to sue a person, who is out of the jurisdiction and not
ordinarily resident within it, for a libel published by an
agent in this country. This difficulty may sometimes be
overcome by adding to the claim for libel a claim for an
injunction to restrain the further publication of the words
complained of, and then applying for leave to serve the
writ out of the jurisdiction under sub-section (f) of Ord.
XI, Rule 1 (J). But this course will not succeed if the
Court thinks it improbable that the libel will be repeated
and is satisfied that the claim for an injunction is not
made bond fide, but merely in order to bring the case
within the rule (™m). So, too, leave will be refused if the
injunction could not, if granted, be rendered etfectual
against the defendant, even though it might be against
his agent (v). Another course which may sometimes
succeed is to first sue the agent, and then to apply for
leave to join the principal as a necessary and proper
party under Ord. XI, Rule 1, sub-section (g) (0).

Where a foreign corporation has an office and trades in
this country so as to be resident here, it may be sued here
and service may be made upon its head officer here (7).

Where the document containing the libel is in the posses-
sion of a third person, it is always well for the plaintitt’s
solicitor to give such person formal notice to preserve it.

Tn actions for slander, where so much depends upon the
exact words spoken, it is prudent to obtain signed proofs
from the witnesses as early as possible.

Trial without pleadings, which is now permitted, subject
to certain conditions (qg), 1s not generally advisable in the
interests of a plaintiff in an action for libel or slander;
for under such circumstances he will not know until he
gets to trial what defence will be raised against him.

() TLorier v. Huwkins (1885), 15 Q. B. D. 680.

Cn) De Bernales v. New York Herald (1893), 2 Q. B. 97, n.

(x) Ibid. See also Marshall v. Murshall (1888), 38 Ch. D. 330.

(0) Croft v. King 1893), 1 Q. B. 419; Williams v. Cartwright (1895),
1Q. BL. 142 (C. A.) 3 Chance v. Beveridge and Freeman's Journal (A895),
11 Times L. R. 528,

(p) Order IX., r. 8; and see La Bourgogne (1899), A.-C, 431 (A. L.).
(q) Order XVITIa.
SECURITY FOR COSTS. 213

Proceedings having commenced, it is imperative that
the defendant should carefully consider his position, if
indeed he has not already done so. This is especially
necessary where the libel has been published in a news-
paper, for if the defence of apology under Lord Campbell’s
Act is to be raised, such apology must be inserted in the
paper “either before the commencement of the action or
at the earliest opportunity afterwards” (7). And let the
defendant remember that if he offers the plaintiff an
apology it must be full and free, not half-hearted or
niggardly. If he has a bad case the sooner he recognizes
that fact the better, for by so doing he will save much
expense and anxiety. Generally speaking, if the plaintiff
is ordinarily resident out of the jurisdiction, the defendant
can compel him to give security for costs (s). And
provided that the defendant can prove that the plaintiff
has no visible means of paying the defendant’s costs,
an order will be made that the action be remitted to the
Coanty Court, unless the plaintiff shall, within a certain
time, give full security for the defendant’s costs, or satisfy
the Court that he has a cause of action fit to be prose-
cuted in the High Court (¢). The application for such
order is made under the summons for directions before
a master, and must be supported by affidavit. In order
to defeat it, the plaintiff must show that he has a cause
of action more fit to be tried in the High Court than in
the County Court (wz), and in Critchley v. Brown (x) a
Divisional Court held that, where the alleged slander was
an imputation upon the chastity of a married woman, the
imputation was sufficiently grave to make the action fit to
be tried in the High Court.

The Statement of Claim must be carefully drafted. It
is the invariable practice to allege that the defendant

(7) See p. 158, supra.

(s) See p. 58, supra.

(t) County Courts Act, 1888 (41 & 52 Vict. c. 43), s. 06.

(uw) Kurrer vy. Lowe § Co.and Medley (1889), 5 Times L. R, 234 5 Banks
y. Hollingsworth (1893), 1 Q. B. 442 (C. A.) 3 Williams v. Morris (1894),
10 Times L. R. 603.

(x) (1886), 2 Times L. Tt. 238.
214 APPENDIX A.

published the words “falsely and maliciously.” It is,
however, unnecessary to aver that the defendant published
the words maliciously (vy). Further, as the plaintiff need
not in his Statement of Claim “allege any matter of fact
which the law presumes in his favour, or as to which the
burden of proof lies upon the other side” (z), and as the
law presumes in his favour that the words complained of
are false (a), it is submitted that the omission of the word
“falsely ? would not invalidate the Statement of Claim.
The Statement of Claim should contain the precise words
complained of, for they are “‘ material facts” within the
meaning of Ord. XIX., Rule 4(b). This is sometimes
impossible, for example, where the action is for libel, and
the document containing the libel is in the possession
of the defendant or some third party who declines to allow
the plaintiff to copy or even to inspect it.

If the libel is in the possession of the defendant, the
plaintiff should find out as nearly as he can the exact
words of the libel from those persons to whom the de-
fendant has shown it, and should insert these words in his
Statement of Claim. He should then apply for discovery
of documents, when, unless the defendant successfully
claims that the document in question is privileged from
discovery, the plaintiff will be able to obtain inspection
of it, and can then deliver an amended Statement of
Claim setting out the precise words used.

If the libel is in the possession of some third person who
will not allow the plaintiff to inspect it, the only course
open to the plaintiff is to set out the supposed contents of
the libel in his Statement of Claim, give such third person
a formal notice to preserve the document in question,
serve him with a subpena duces tecwm to produce it at
the trial, and trust to the judge allowing the Statement

(y) Per Bayley, J., in Bromage v. Prosser (1825), 4 B. & C. at p. 255.
See also the observations of Lord Russell, C. J., in Leg v. Munslow
(1895), 1 Q. B. at p. 763.

(<) Order XIX,, r. 25.

(«) Per Field, J., and Huddleston, B., in Belt v. Lawes (1882), 51
L. J. Q. B. at p. 361.

() Harris v. Warre (1879), 4 C. P. D. 125.
DOCUMENTS PRIVILEGED FROM PRODUCTION. 215

of Claim to be amended if necessary when the case comes
on for hearing. Such a course is necessarily unsatisfactory,
for even if the libel is not contained in a document which
is absolutely privileged from production, the plaintiff is
obliged, until he gets to trial, to rely upon the statements
of those to whom the alleged libel has been shown, and
there is always a possibility of his discovering at the
eleventh hour that the words complained of do not
amount toalibel. Unless therefore he can rely implicitly
upon the recollection of those who have seen the alleged
libel, he will be very unwise to bring an action.

Moreover, official documents. such as communications
made by one officer to another in the course of his
duty (c), or official communications between persons em-
ployed by the State (@), are absolutely privileged from
production on the ground of public policy, and if the
alleged libel be contained in such a document, and the
objection to produce it at the trial be taken by the proper
person, the plaintiff must fail, as no secondary evidence
is allowed of the contents of such a document (e). So,
too, in the case of a professional communication passing
between a solicitor and client, the original document is
similarly privileged from production. In this case, how-
ever, if privilege from production of the document is
claimed at the trial, the plaintiff will be entitled to give
secondary evidence of its contents (f).

In drafting the Statement of Claim, in addition to
setting out the precise words complained of, the pleader
should also be careful to insert an divnuwendo where the
meaning of the words or their application to the plaintiff
is not clear, otherwise his client may be non-suited.

(+) Ford v. Blest (1890), 6 Times L. BR. 295.

(@) Beutson v. Skene (1860), 5 H. & N. 83%; 29 L. J. Ex, 430 ; H.M.S.
Bellerophon (874), 44 L. J. Ad. 5; Hughes vy. Vargas (1893), 9 Times
L. R. 551 (C. A.). P

(e) Anderson v. Hamilton (1816), 2B & B. 156, n.; Stace ve Griffith
(1869), L. R. 2 P. C. at p. £28. ;

(f) Marston v. Downes (1834), 1 A. & E. 31, 6 C. and P. 381 ; Mills ve
Oddy (1834). 6 U. & P, 728 ; Newton v. Chaplin (1850), 10 C, B. 356 5 and
see pp. 225—226, infra.
216 APPENDIX A.

Thus in an action for slander (yg), where the words
complained of were, “Did he have a fire twice? He 1s
a funny fellow,” it was held that, as neither the words them-
selves nor the innuendo accused the plaintiff of a crime, the
pleading was defective, and the plaintiff was non-suited.

It is sufficient for the innuendo to allege a criminal offence ;
it is not necessary to specifically state what is the precise
offence which the plaintiff alleges the words mean (h).

Strictly speaking, it would seem that allegations which
merely go to aggravate the damages ought not to be
inserted in the Statement of Claim, as they are not
“material facts” within the meaning of Ord. XIX.
Rule 4 (i). It is, however, the recognized practice in
chambers to allow such matters to be pleaded, and an
application to strike them out of the Statement of Claim
would probably be refused (&). Thus, in Whitney v.
Moignard (), an allegation that defendant knew that
the libel would be, and that in fact it was repeated in
other journals, was allowed.

Moreover, if the plaintiff interrogates as to matters of
this kind, he will find it useful, on the hearing of an
application for further and better answers to such inter-
rogatories, to have these matters in issue on the record.

It is very often convenient not to set out in the
Statement of Claim the names of the persons to whom
and the places where the words complained of have been
published, but to leave it to the defendant to apply for
particulars of such names and places. This course gives
the plaintitt’s solicitor time in which to collect additional
information on the subject, and in some cases it is both
inconvenient and impossible to give all the necessary
particulars in the Statement of Claim.

It is, however, usual for the Master, on the hearing of

(y) Jucobs v, Schmaltz (1890), 62 L. T. 121; 6 Times L. R. 155.

(4) Webb vy. Bearan (1883), 11 Q. B. D. 609; Robinson ve Turnbull,
per Ridley, J., in Judge’s chambers on February 11, 1899.

(i) Harris vy. Warre (879), 4 0. P. D. 125.

(hk) See Millington v. Loring (1880), 6 Q. B.D. 190 (C. AL).

@) (isu), 24 Q. B.D. 630.
DRAFTING STATEMENT OF CLAIM. 217

the summons for directions, to order that the different
pleadings be delivered “ with full particulars,” and if such
an order has been made and one of the parties then
delivers a pleading without the necessary particulars, the
Master will generally, on the hearing of an application for
such particulars, order the party in question to pay the
costs of the applicaiion.

Where the words affect the plaintiff in the way of his
office, profession, or trade, the pleader should be careful
to insert an averment to that effect; and where the
words are spoken, be should also allege that at the time
the words were spoken the plaintiff held such office or
carried on such profession or trade (77).

If the words are not actionable per se, the pleader must
specifically allege in his Statement of Claim the special
damage sustained by the plaintiff.

It is not necessary for the plaintiff to specify in his
Statement of Claim the amount of damages which he
claims (7), and it is wiser not to do so. For Precedents
of Statements of Claim see Appendix B., Nos. 3—11,
pp. 236—243, infra.

Upon delivery of the Statement of Claim the defendant
should consider whether he should apply for particulars
of the names of the persons to whom and the places where
the words complained of have been published and of the
special damage if any alleged by the plaintiff. Such an
application is made under the summons for directions by
two clear days’ notice to the other party (0).

In an action tor slander the defendant is clearly entitled
to particulars of the persons to whom the slander is alleged
to have been uttered (p), and an order for such particulars
will be made before defence (q).

In the words of Pollock, B. (rv), “it may be necessary

(Cm) See pp. 9, 28, supra.

(1) London and Northern Bunk, Limited v. George Newnes, Limited
(1500), 16 Times L. RB. 433 (C. A).

(#) Rules of Supieme Court, Order XXX, r. 5.

(p) Bradbury vy. Cooper (1883), 12 Q. B.D. O4.

(q) Roselle v. Buchanan (1886), 16 Q. B.D, 656.
(ry) Gouruud v. Fitzgerald (1889), 37 W. BR. at p. 55.
218 APPENDIX A.

for the defendants to know the place and the time, and
before whom the alleged slander was uttered.”

In Williams v. Ramsdale (s), “the best particulars the
plaintiff can give of the persons present” were ordered.
Such particulars were, however, refused in an action for
libel (¢), and such refusal was upheld by the Court of
Appeal (uw). The reason of such refusal was, however,
expressly stated to be that the application was made too
late; and it is submitted that upon an application of this
kind there is no ground for making any distinction be-
tween actions of libel and slander, and that in both cases
a defendant is entitled to particulars provided that his
application is made promptly.

Where the Statement of Claim alleges that by reason
of the publication of the words complained of the plaintiff
has been injured in his business or trade, the defendant
is entitled to particulars of the special damage alleged,
and it is always wise to ascertain exactly what the plaintitt
intends to prove under these words. If the defendant is
applying for particulars of other matters in the State-
ment of Claim, he can include in his notice under the
summons for directions an application for “ particulars of
special damage if any alleged by plaintiff in his Statement
of Claim.” If, however, be is not applying under tlhe
summons for directions for particulars of other matters, lis
solicitors should write to the plaintiff’s solicitors asking
for an undertaking that the plaintiff will not offer any
evidence of special damage at the trial. If such an under-
taking is refused, the defendant should make an applica-
tion for particulars of the special damage alleged. For a
Precedent of a Notice of Application for Particulars see
Appendix B., No. 12, p. 243, infra.

Such particulars should be settled with the greatest
care; and where the words complained of have been
published to a large number of persons, and the plaintiff

(s) (1888), 36 W. BR. 125.

(t) Gouraud vy. Fitzgerald (1889), 37 W. R. 55.
(w) 37 W. RB. 265.
DRAFTING DEFENCE. 219

is uncertain whether he may not be able before the case
comes on for trial to discover other publications than he
is at present aware of, his particulars should be drafted
with a view to enable him to deliver further particulars
of such other publications in the event of his obtaining
evidence thereof at a later stage of the proceedings. A
Precedent of such Particulars will be found in Appendix B.,
No. 18, p. 248, tnfra.

In settling the Defence, the defendant should consider
which of the defences mentioned on pp. 81—82, supra,
ought to be set up. If he decides to pay money into Court,
he cannot plead any other defence denying lability (zx).

Thus in Mackay v. Manchester Press Co. (y), where a
general payment in was made in a libel action, with
a Defence partly denying the innuendo in the State-
ment of Claim, the defendants were ordered to amend
their Defence by stating to which part of the Statement
of Claim the payment into Court was intended to apply.
Nor can the defendant plead an apology under sect. 2 of
Lord Campbell’s Act (2), with any other defence denying
liability, for it is necessary to pay money into Court by
way of amends at the time any plea under that section
is delivered («).

In Gray v. Burtholomew (b) it was held by the Court
of Appeal that where the defendant pays money into
Court, but at the trial the jury find a verdict for the
plaintiff for less than the amount paid in, the judge has
power under Ord. XXII., Rule 5, to direct the money
paid in, less the amount recovered, to be paid out to
defendant.

On the other hand, in Dunn v. The Devon and Exeter
Const. Newspaper Co., Ltd. (c), it was held by Wills, J.,
that where the action is against a newspaper and the

(wv) Ord. XNIL, 11.

(y) (1889), 6 Times L, ht. 16.

(z) 3& 4 Vict. c. 96.

(a) 8 & 9 Vict. e& 74, 8. 2.

(Bb) (1895). 1 Q. Th, 209. Sve also Les! vy. Osborne Co, (1896), 12

Times L. R. 419.
(¢) (1894), 10 Times L. Lt. 335 ; (1895), 1 Q. B. 211, n.
220 APPENDIX A.

defendant pleads an apology under sect. 2 of Lord Camp-
bell’s Act (8 & 9 Vict. c 75), and pays money into
Court, and the jury find a verdict for the plaintiff for
less than the amount paid into Court, the plaintiff is,
notwithstanding the verdict of the jury, entitled to
the whole amount paid in This decision was however
doubted by Lord Esher, M. R., in Gray v. Bartholomew
(supra), and it is respectfully submitted would not be
upheld.

It is not open to a defendant who has paid money inte
Court as part of a defence under sect. 2 of Lord Campbell’s
Act to treat the payment into Court as being made under
Ord, XXII., Rule 1, for under such circumstances, as was
pointed out by A. L. Smith, L. J., in Oxley v. Wilkes (d),
“the payment into Court was a necessary part of the
defence under the Libel Act, 1843, without which it would
have been bad; and if that payment into Court were
treated as being also a separate defence in itself under
Order XXII., Rule 1, then the defendants would be pleading
it together with another defence to the action, which under
that rule they are not entitled to do.” And where the
defendant pleads sect. 2 of Lord Campell’s Act, but is unable
to offer any evidence of a sufficient apology within the
meaning of the Act, inasmuch as payment into Court
under this section affords no defence in itself, the plaintiff
is entitled to his costs even though he recover less than
the sum which has been paid into Court (e).

It frequently happens that a defendant can rely on
two or more different defences, but such a course is not
always desirable. For instance, if the defendant has un-
doubted evidence to prove that he never spoke any of
the words complained of, it is unwise to plead privilege,
as such a plea rather suggests that he did in fact utter
the words complained of. Under such circumstances it
is better to rely solely upon the defence that he never
uttered the words. Again, if there is a clear defence of

(d) (1898), 2 Q. B. at p. 59.
(e) Sley v. Lillotson §* Son (1898), 14 Times L, R, 545.
DRAFTING DEFENCE. sf.

qualified privilege, and no evidence of malice, it would be
foolish to justify, as such a course, if persisted in at the
trial, affords some evidence of malice (f). And in any
case it is dangerous to justify, unless the defendant is
perfectly sure of his ground; for if he fails at the trial,
such a plea will most certainly aggravate the damages.

In pleading to the allegation in the Statement of
Claim that the defendant falsely and maliciously wrote
{or spoke] and published the words complained of,
“there is...no good done by a traverse of the
allegation that the defendant published falsely ; bat it
is, on the other hand, mischievous, as under it a defendant
might set up a defence of truth, as a justification ; and
Ord. XIX., Rule 18, shows that a plaintiff is entitled to
know if such defence is contemplated” (g). Nor is
it sufficient to deny generally in the Defence that the
“defendant wrote or published the same maliciously, as
alleged.” The facts must be set out upon which the de-
fendant relies, either to show justification or privilege (h).

The Defence must not be embarrassing. Thus, in
Fleming v. Dollar (i), where the Defence to an action
for libel, after admitting publication, alleged that certain
of the words complained of were fair comment, and that
the rest were true, and then set up a justification with
an admission that the same was not complete, and pleaded
payment of 40s. into Court in satisfaction, it was held
that such a Defence was contrary to Ord. XXII., and
embarrassing, and must be struck out. In Davis vy.
Billing (k:), where by his Defence the defendant admitted
that a certain passage in an alleged libei was libellous,
and paid 40s. into Court and apologized, the Court of
Appeal ordered the Defence to be amended, on the
ground that the defendant could not separate one part of
the alleged libel from another. Where, in an action for

(1) Simpson v. Robinson (1848), 18 L. J. Q. B. 73.

(y) Per Field, J., in Belt v. Lawes (1882), 51 L. J. Q. B. at p. 361.
(4) Belt v. Lewes (1882), 51 L. J. Q. B. 359.

(i) (1889), 23 Q. B. D. B88.

(k) (1891), 8 Times L. R. 58.
222 APPENDIX A.

libel, par. 1 of the Statement of Claim stated the libel,
par. 2 stated facts upon which the plaintiff would rely at
the trial as showing malice, and referred to an appendix,
the Court on an application to strike out par. 2 and the
appendix struck out the latter (allowing it to be delivered
as particulars) but left in par. 2 (1). Again, the defendant
may not in his Defence set out his version of the words
used and then justify those words(m), nor may he put a
meaning upon the words which is not alleged in the
Statement of Claim, and which they are not reasonably
capable of bearing, and then seek to justify the words in
that sense (7).

The Defence must confine itself to material facts. In
Wood v. Durhain (0), a jockey sued in respect of an alleged
libel charging him with dishonest riding. The defendant
pleaded justification, and afterwards applied to amend his
Defence by adding a paragraph to the effect that plaintiff
at the date of publication was commonly reputed to have
been in the habit of dishonestly riding in horse races,
The application was refused on the ground that as general
evidence of the plaintiff’s bad reputation, if admissible,
could only be giveu in reduction of damages, the para-
graph did not contain a statement of material facts, but
was merely a “denial or defence... as to damages”
within the meaning of Ord. XXI., Rule 4.

Precedents of Defences will be found in Appendix B.,
Nos. 14 to 21, pp. 244—248, onfra.

Where the defendant has pleaded that the words are
true, the plaintiff is entitled to particulars of the matters
upon which the defendant intends to rely in support of
such plea(p), in order that the plaintiff may know what
case he will have to meet at the trial (q).

(1) Glossop v. Spindler (1885), 29 Sol. Jour. 556.

(m) Rassam v. Budge (1893), 1 Q.B. 571; 9 Times L. R. 247 ; W.N. 52.

(nx) See the observations of Field, J., as reported in Wood vy. Durham
(18ss), + Times L. R. at p. 556.

(v) (1888), 21 Q. B.D. 501.

(p) Oakey-Hall v. Bryce (1890), 6 Times L. R. 844: Zierenberg v.

Lubouchere (1893), 2 Q. B. 183.
(q) Cnderwood v. Parks (A744), Str. 1200.
PLEADING JUSTIFICATION. 223.

Thus, in Hennessy v. Wright (vr), where the defendant
pleaded that the alleged libels were reports of public
meetings “and were true in substance and in fact,” it
was held that the plaintiff was entitled to know whether
this meaut that the defendant had truly reported what
was said, or that what he had reported was true.

If the charge is general, and the defendant justifies, he
must give specific instances in his pleadings or par-
ticulars (s). “The plea ought to state the charge with
the same precision as an indictment” (¢), and ‘if the
instances are not put into the plea, the particulars must
be as precise as would be necessary in an indictment” (7).
Thus, in Foster v. Perryman (xv), defendant was ordered
to give particulars of the passages in the plaintiff’s life
to which he referred, and upon which he intended to
rely at the trial in support of his plea of justification.
In Devereux v. Clarke (y), defendant, who bad published a
review stating that the plaintiff was, by his own showing
in a book he had published, a liar, was ordered to point
out the passages in the plaintiff’s book whereon he relied.

On the other hand, if the charge is specific, for example,
that defendant cheated at cards on certain specitied occa-
sions, particulars are unnecessary (2).

Where the defendant has not justified he cannot, it
seems, under Ord. XXXVI., Rule 37, or otherwise, give
any evidence in mitigation of damages going to prove the
truth of the words complained of. There appears to be no
reported case on the subject, but im the unreported case
ot Penny v. Stubbs, tried on February 19th, 1892,
Vaughan Williams, J., held that the defendant, having
admitted that he had called the plaintiff a perjurer,

(r) (1888), 57 L. J. Q. B. 594.

(s) Zierenberg v. Labvuchere (1893), 2 Q, B. 183.

(t) Per Parke, B., in Hickinbotham vy. Leach (1842), 10 M. & W, at

. 363.

: (w) Per Lord Esher, M.R., in Zierenberg v. Lubuuchere (1893), 2 Q. B.
at p. 157.

(wv) (1891), 8 Times L. R. 115.

(y) 1891), 2 Q. B. 582. ae ;

(2) Cumming vy. Green (1891), 7 Times L. Li. 409, See p. 89,
supra.
aa APPENDIX A.

and not having justified, could not give evidence under
Ord. XXXVI, Rule 37, to prove that the plaintiff had
made statements in the witness-box in another action
which were not in fact true.

Generally speaking, in an action for libel and slander,
the Reply is a mere joinder of issue; but sometimes it is
desirable to plead fresh matter or to raise an objection in
point of law. For examples of this, see Appendix B.,
Nos. 22 and 23, p. 248, infra.

It is submitted that in replying to a Defence of privi-
lege, in which the defendant has pleaded that he pub-
lished the words without malice, it is sufficient merely to
join issue (for this puts in issue the question of malice),
and that it is not necessary to reply specially that the
defendant in publishing the words complained of was
actuated by express malice.

The right to all relevant discovery would seem to be
less absolute than in other actions (w) ; for example, the
general rule allowing a party discovery for the purpose
of giving particulars would probably be applied with
some caution to a defendant required to give particulars
of justification (b). Thus, in Zierenberg v. Labo uchere (c),
Lord Esher, M.R., pointed out that as a general rule
“the defendant is not entitled to discovery for the pur-
pose of finding out whether he has a defence or not.”
And where the defendant puts in a plea of justification,
and delivers particulars in support of his plea, the issues
to be tried under that plea are limited to the matters
referred to in the particulars; and the defendant can
only obtain discovery of documents relating to those
matters (qd).

As mentioned above (e), the plaintiff sometimes finds
himself in a difficulty where he has no copy of the libel,

(a) Hennessy v. Wright (1888), 24 Q. B. D. 445, n. ; Parnell v. Walter
(1590), 24 Q. B.D. 421; Zierenberg v. Labouchere (1893), 2 Q. B. 183.

(D) See Gourley v. Plimsoll (1873), L. R. 8 C. P. 362.

(©) (1s8u8), 2 Q. B. at p. 188.

() Yorkshire Prov. Life Ins. Co. v. Gilbert and Rivington (1895).
2Q. B. 148.

(ec) Pages 214-215.
DISCOVERY. 225

and the original is in the possession of the defendant who
claims in his affidavit of documents that it is privileged
from production. The claim of this kind most commonly
met with in practice is where the document in question
is a letter passing between a solicitor and his client, and
the question whether such a document is privileged from
inspection is often one of considerable difficulty. The
mere fact that the letter passed between a, solicitor and
his client does not make it privileged (f); it is necessary
to show that it was a professional communication of a
confidential character made for the purpose of obtaining
or giving legal advice(g). If the defendant’s affidavit
goes this length no order will be made for production,
and it would seem that the privilege applies whether
the action be brought by or against the solicitor (h), or
by or against his client (2).

It is not, however, always easy to say whether a parti-
cular letter is or is not “a professional communication of
a confidential character.”

On the one hand, a letter containing a statement of
facts written by a client to his solicitor for the purpose of
obtaining such solicitor’s advice thereon, and the solicitor’s
letter in reply thereto, come within the description, and
will, therefore, be privileged from production in any
action, whether such letter was written with reference
to that particular action or not (4).

On the other hand, “letters containing mere statements
of fact are not privileged” (/).

If a defendant swears that the alleged libel is “a pro-
fessional and confidential communication between solicitor
and client,” it is generally useless for the plaintiff to

(Sf) Penruddock v. Hammond (1847), 11 Beav. 61; Gardner v. Irvin
(1878), 4 Ex. Div. 53. ;

(g) Gardner v. Ircin, supra; O'Shea v. Wood (1891), L. R. P. D. 286.

(h) Procter v. Smiles (1886), 2 Times L, R, 474; Ward v. Marshall
(1887), 3 Times L. R. 578.

(i) O'Shea v. Wood (1891), L. R. P. D. 286. ;

(k) Wilson v. Rastall (1792), 4 T. R. 753, 760; Goodall v. Little
(185), 1 Sim. N. 8. 155; AMinet v. Morgan (1873), L. R. 8 Ch. 361.

(1) Per Kay, L. J., in O'Shea v. Wood (1891), L. BR. P. D. at p. 290.

L.Ss. Q
226 APPENDIX A.

apply for production, or for a further and_ better
affidavit of documents(m). He must be content to go
to trial, trusting to the evidence of those persons to whom
the defendant showed the libel; and if at the hearing
the defendant declines to produce the alleged libel, and
insists on still claiming that it is privileged from pro-
duction, the plaintiff will be entitled to call such persons
for the purpose of giving secondary evidence of its
contents (7).

Thus, in Procter v. Smiles (0), where the defendants
were solicitors, it was held that they could not be com-
pelled to produce certain documents of which they were
in possession merely as solicitors for their client; and in
Lowden v. Blakey (p), a draft advertisement, submitted
by a party for the approval of his counsel, was held
privileged from production in a libel action subsequently
brought against such party upon the advertisement as
published.

So, too, the plaintiff may be unable to obtain dis-
covery if the alleged libel is contained in an official
document (q).

Where the defendant in an action for a libel published
in anewspaper admits publication of the alleged libel, he
will not, except under special circumstances, be compelled
to produce the manuscript (7). The defendant will not be
compelled to give discovery which will tend to criminate
him, but the objection must be taken on oath; it is
sufficient if he swears that the discovery would tend to
criminate him (s).

(m) See, however, Russell v. Juchkson (1851), 9 Hare, 392 F Postlethwaite
vy. Rickman (1887), 85 Ch. D. 725; Williams v. Quebrada R., Sc. Co.
(1895), 2 Ch. 751.

(nr) Marston v. Downes (1834), 1 A. & E.31; 6C. & P. 3813 ITs v.
Odily (1834), 6 C. & P. 728+ Doe v. Ross (1840), 7M. & W. 102; Doe v.
Clifford (1847), 2 C. & Kir. 448; Vewton v. Chaplin (1850), 10 C. B. 356.

(o) (1886), 55 L. J. Q. B. 467,

(p) (1889), 23 Q. B. D. 332.

(q) See p. 215, suprw, and the cases there cited.

(7) Blane v. Burrows (1896), 12 Times L. R. 521; Hope v. Brash
(1897), 2 Q. B. 188

(s) Webh v. Hast (1880).5 Ex. D. 108; Spokes v. Grosvenor Co.
(1897), ¥ Q. B. 124.
INTERROGATORIES. 27

It has been held by the Court of Appeal (¢) that under
Ord. XXXI., Rule 7, all or any of a set of interrogatories
may be set aside as being unreasonably or vexatiously
exhibited, or may be struck out as being prolix, oppres-
sive, unnecessary, or scandalous; and, further, that if the
interrogatories as a whole come within this description,
they may all be set aside, or struck out, although some
of them, taken alone, would be unobjectionable.

Thus, in Hindlip v. Mudford (w), where the defendants
had not justified, but pleaded fair comment, and then
administered interrogatories as to the truth of the libel,
such interrogatories were ordered to be struck out.

The general rule is this—that the interrogatory must
be answered if the answer will “disclose anything which
can be fairly said to be material to enable (the party
interrogating) either to maintain his own case or to
destroy the case of his adversary” (a).

The party interrogated may object to answer any one
or more of the interrogatories on any of the following
grounds :—

1. That to do so might tend to criminate him.

The interrogatory cannot be struck out on this ground,
but the objection must be taken in the answer in pre-
cisely the same way as in the case of any other inter-
rogatory (7).

“TI decline to answer on the ground that my answer
might tend to criminate me,” is a sufficient answer ; belief
that it would criminate need not be asserted (z).

That the answer would tend to criminate others than
the person interrogated is not a valid objection, unless

(tf) Oppenheim & Co. v. Sheffield (1893), 1 Q. B. 5; disapproving
Sammons v. Bailey (1890), 24 Q. B. D. 727.

(w) (1890), 6 Times L. B 367. =

(x) Per Lord Esher, M. R., in Hennessy v. Wright (1888), 24 Q. B. D.
at p. 447.

oy) Allhusen v. Labouchere (1878), 3 Q. B. D. 654; Fisher v. Owen
(1878), 8 Ch. D. 645 ; disapproving Atherley v. Harvey (1877), 2 Q. B. D.
£24, where interrogatories asking defendant in effect whether he pub-
lished the libel were struck out.

(2) Lamb v. Munster (1882), 10 Q. B. D, 110.

Q 2
228 APPENDIX A.

the Court is satisfied that the interrogatory is not put
bond fide for the purposes of the action (a).

2. That it is irrelevant.

Thus, in an action against the proprietor of a newspaper,
if the defendant admits the publication of the words com-
plained of, he need not answer interrogatories as to the
names of the persons from whom his information has been
obtained (0), or the steps he has taken to test that infor-
mation (c), or the name of the writer of the libellous
article (d), or the possession of the manuscript (e) ; for such
interrogatories are “not material to enable the plaintiff
either to maintain his own case or to destroy his adver-
sary’s” (f).

Again, although the defendant must answer an inter-
rogatory asking him whether the words complained of
were not intended to apply to the plaintiff, he need not
answer the further question, “If they were not intended
to apply to the plaintiff, to whom were they intended to
apply?” (9).

Documents required merely for the purpose of compar-
ing handwriting may be relevant ; thus, where the defen-
dant denied that he had written the letter containing the
alleged libel, it was held that the plaintiff was entitled to
ask him if he had written another letter, that the writing
might be compared (h).

Where the plaintiff in an action for libel against the
proprietors of a newspaper interrogates the defendants as
to how many copies were printed and published of the

(a) M Corquodale vy. Bell (1876), W. N. 39.

(b) Zangyes v. Inman Co, (1889), 88 L. T. Jo. 32; Parnell v. Walter
(1890), 24° Q. B. D. 441.

(c) Parnell v. Waiter (1890), 24 Q. B. D. 441; Mackenzie v. Steinkopf
(1890), 6 Times L. R. 141.

(d) Gibson v. Evans (1889), 23 Q. B. D. 384; Hennessy v. Wright,
No. 2 (1888), 36 W. BR. at p. 880.

(¢) British Co. v. Wright (1884), 32 W. R. 413; Hennessy v. Wright
(1888), 57 L. J. Q. B. 594 ; Hope v. Brash (1897), 2 Q. B. 188.

(f) Per Lord Coleridge, C. J., in Gibson v. Hvans (1889), 23 Q. B. D.
at p. 387.

(g) Wilton v. Brignell (1875), W. N. 239.

(A) Jones v. Richards (1885), 15 Q. B. D, 439; and see Wilson v.
Thornbury (1874), 17 Eq. 517.
INTERROGATORIES. 229

issue of the newspaper which contained the alleged libel,
it is usually sufficient for the defendants to answer that a
considerable number of copies of that issue were printed
and published (i). But there may be circumstances in
which the defendants would be required to answer the
interrogatory more definitely, for instance, “if in such a
case it could be shown that the place where the news-
paper circulated was obscure, and nothing would be
known as to the extent of its circulation, it might be that
such an interrogatory would be proper” (i).

Where the defendant has in pursuance of Ord. XXXVL.,
Rule 37, furnished particulars to the plaintiff of matters
as to which he intends to give evidence in mitigation of
damages, he is entitled to administer interrogatories to
the plaintiff as to the matters referred to (1). So, too,
where it is an issue in the case whether the occasion is
privileged, interrogatories are admissible for the purpose
of proving or disproving that the defendant has been
actuated by malice (m).

3. That it rs fishing.

Interrogatories administered by a party “in order that
he may find out something of which he knows nothing
now, which might enable him to make a case of which he
has no knowledge at present, . . . come within the de-
scription of fishing interrogatories, and on that ground
cannot be allowed ” (7).

Thus, in an action for slander, where the plaintiff was
accused of using blasphemous words, it was held that he
need not answer interrogatories directed to prove that, if
he had not used the exact words alleged, he had in fact
used language of much the same nature (0).

(@) Whittaker v. Scarborough Post Newspaper Co, (1896), 2 Q. B. 148 ;
overruling on this point Parnell v. Walter (1890), 24 Q. B. D, 441.

(hk) Lbid. per Lord Esher, M. R., at p. 150.

() Scaife v. Kemp (1892), 2 Q. B. 319, :

(mn) Cooper v. Bluckmore (1886), 2 Times L. R. 746 ; Wartin and Wife
v. Lrustees of the British Museum and Thompson (1893), 10 Times L. R.
"O Per Lord Esher, M. R., in Hennessy v. Wright (1888), L. R. 24

Q. Bb. D. at p. 448.
(0) Pankhurst v. Hamilton (1886), 2 Times L, R. 682.
230 APPENDIX A.

On the other hand, in an action of slander where the
plaintiff in his Statement of Claim has alleged publication
on or about a specified date, ¢.7., on or about October 1,
1900, to certain specified persons, A. and B., “and other
persons whose names are unknown to the plaintiff,” he is
entitled to administer interrogatories to the defendant in
the following form, and the defendant cannot refuse to
answer them on the ground that they are fishing or
oppressive or unnecessary (p) :—“ Did you on or about
March 1, or when, speak of the plaintiff the words com-
plained of, or words to that effect?” “Were the said
words spoken in the presence of A. and B. and other
persons, or any and which of them?”

4. On the grownd of legal professional privilege.

For example, in an action for libel, the defendants
were held protected from answering as to statements in
their particulars of justification, on the ground that their
only information had been procured as solicitors with a
view to litigation (q).

5. That it seeks to inguire the names of witnesses
to be called or the evidence to be adduced at the
trial.

Thus, in an action for selling newspapers containing
libels, interrogatories asking the defendants what pre-
cautions they took to ascertain whether newspapers
contained libels were disallowed, as asking them how
they were going to make out their case (7’).

It should be noticed that, although the person inter-
rogated may object to answer on the ground that to do
so would disclose the names of persons whom he is going
to call as witnesses at the trial, such objection will only
be allowed when, as is usually the case, the names in
question do not form any substantial part of the material
facts in issue.

Where the name is a material fact it must be disclosed,

(p) Dalgleish v. Lowther (1809), 2 Q. B. 590 (C. A.).
(¢) Procter v. Smiles (1ssv), 55 L. J. Q. B. 467.
(7) Ridgway v. Smith and sun (Asvyu), 6 Times L, R. 275,
INTERROGATORIES. 231

and it is no answer that in giving the information the
party may disclose the names of his witnesses.

Thus, in Marriott v. Chamberlain (s), the defendant
pleaded that the libel was true. The substance of the
libel was that the plaintiff had fabricated a story to
the effect that a certain circular letter, purporting to
be signed by the defendant, had been sent round to the
defendant’s competitors in business. he plaintiff had,
in speeches and letters, stated that he had seen a copy
of the alleged letter, that two of such letters were in
existence, in possession respectively of a firm of bankers
and a firm of manufacturers at Birmingham, and that his
informant in the matter was a solicitor of high standing
at Birmingham. In interrogatories administered by the
defendant, the plaintiff was asked to state the name and
address of his informant in whose hands he had seen the
copy of the letter, and the names and addresses of the
persons to whom the letter had been sent, and in whose
possession the two letters were; but he refused to do so,
on the ground that he intended to call those persons as
witnesses at the trial. It was held that the defendant
was entitled to discovery of the names and addresses of
such persons, as being a substantial part of facts material
to the case, upon the issue of the plea of justification.

It is, of course, legitimate to explain or qualify an
answer ; for instance, the defendant in a libel action was
held justified in adding to his answer that he published
the libel honestly and without malice ({).

6. Lhat it inquires as to the contents of a written docu-
ment, unless the purty interrogated has admitted that
such document has been lost or destroyed.

“T do not think,” said Bowen, L. J., in Dalrymple v.
Leslie (uw), “that any law or authority exists by which a
person can be compelled to set out his imperfect recol-
lection of a document not produced for his inspection,

(s) (1886), 17 Q. B. D. 154. See also Lumphries §* Co, v. The Taylor
Drug Co, (188s), 39 Ch. D. 693,

(t) Malone v. Fitzgerald (1886), 18 L, R. Ir, 187.

(wv) (1881), 8 Q. B.D. at p. 8.
232 APPENDIX A.

which is not suggested to be lost or beyond the jnris-
diction of the Court, or which, for anything that appears.
to the contrary, might even be in the possession of the
interrogating party.”

In accordance with the above rule, interrogatories ask-
ing the owner of a newspaper, who admitted responsibility
for the libel, as to the contents of the manuscript, were
not allowed (2).

An application for a new trial must be made by motion
to the Court of Appeal (y). By Ord. XXXTX., Rule 4, the
Notice of Motion is required to be a fourteen days’ notice.
If the trial has taken place in London or Middlesex, such
notice must be served within eight days after the trial;
if the trial has taken place elsewhere than in London or
Middlesex, within seven days after the last day of sitting
on the circuits for England and Wales during which the
trial has taken place.

The Notice of Motion should state the grounds upon
which a new trial is asked, ¢.g., 1f misdirection is alleged,
particulars must be given (z). A Precedent of such a
Notice of Motion will be found in Appendix B., No. 24,
p. 249, infra.

As to the grounds upon which a new trial will be
granted, see pp. 180—184, supra.

(wv) Hennessy v. Wright (1888), 24 Q. B. D. 445, n.

(y) Rule of the Supreme Court, August, 1890.

(2) Pfeiffer v. Midland Ry. Co. (1886), 18 Q. B. D, 243 ; Maunfitt v.
Smith (1887), 12 P. D. 116.
SH MAND mo Bw

H

. Libel on Pickle Manufacturers in Journal—Injunction.

APPENDIX B.—FrORMS AND
PRECEDENTS.

—_>——_
CONTENTS.
NO.
1, Juidorsement On: as WTibiscscvenwsuvcasetenyeuvetexdaswenevansectst sivadous tess
2. Affidavit in support of Application to issue and serve Notice

of a concurrent Writ under Ord. XI., r. 1 (2), on a Defen-
dant out of the Jurisdiction 00... cceccceceeeeecceueeeecceeneeee

STATEMENTS OF CLAIM.

- Libel on Surgeon contained in a Letter .........ccececeeeeseeeeeeees
. Libel in Newspaper published by Company reflecting on

Solicitor and Clerk to Borough Magistrates ...........0...008
Libel on firm of Printers published in Newspaper, and in
Newspapel POStEls: -ccscncsamne sand iaceans waieecnseenaeseis :

 

Slander on Grocer—Special Damage ............:ccceeseseeeeeeceeeaeees
By Husband and Wife for Slander on Wife under Slander of

W Omen Acts, USOT isda c sn sitsrinacas ranjcleasia nines were vewsineemana Ya 56

 plander-on Goods! ..essssapaeiees seatosinananie aus sennaey Sechvawessesedeneeseett
. Form of Declaration used in the Lord Mayor's Court in the City

Of Lond ON, wvessneveasivsciaes ysuhawvesieden Sevens c.saatidsiedes'tanoncnesce

  

11. Statement of Claim in Action for Libel removed by Writ of
Certiorari from the Lord Mayor’s Court into the King’s
Bench Division of the High Court of Justice ................68
12. Notice of Application for Particulars of Publication and Special
Damage alleged in Statement of Claim .........ceeeee eee
13s Particulars weave. sondaecienssavsmiassetnoenn awewonnaeceeee acuivedwiawedemnaed
DEFENCES.
14. To Action for Libel against Proprietors of a Newspaper—Fair
Comment—Justification .......00.ccececeeesssecsecseerenseeseeeeeee
15, Libel in Newspaper—Fair Report—Fair Comment—Justifica-
POM ps wnsv crt ainavaisses seus tuts rasles tontnmediy vend nisaedetuaasvas insted das
16. By Shareholder to Action for Libel contained in Cireular—
Privilege sx eesccidswacs ccemiteoraseteeiewes sateen vasst uote teeataae ses
17. By Member of Town Council to Action for Slander at Meeting
of Committee of Council—Privilege oo... ceeeseete scene
18. Libel in Newspaper—Apology before Action under Sect. 2 of
Lord Campbell’s Act (6 & 7 Vict. C. 96) cesscccccsccscenseeteeee
19. Libel in Book sold by Booksellers ............000655 ae
20. Libel in Newspaper—Payment into Court ... “
21. Slander—Words of Heat .......cccccesecseseeee seeseeseeneneeres eaeteagens

236.
236.
237
238
230
240-
240
241
242

243
243.

246.
234 APPENDIX B.

 

REPLIES.
NO. PAGE
22. To Defence of Fair Comment vee D248
23. To Defence of Privilege ......eccccssessececeeeeereees zie vee 248
24, Notice of Motion for New Trial sissies esearsesecsisaetceasorceaneseedeess 249

No. 1.—ZJndorsement on a Writ.

The plaintiff's claim is for damages for libel [or “for slander”).

No. 2.—Affidavit in support of Application to issue and serve
Notice of a concurrent Writ under Ord. XI, r. 1 (g), ona
Defendant out of the Jurisdiction (a).

In the High Court of Justice. 1901. 3B. No. 110.
King’s Bench Division.

In the matter of the Judicature Acts, 1873 to 1894.

 

Between A. B. and C. B. his wife............... Plaintiffs,
and
He i and: Gi Hs. ay ecuesen casein sen vennas Defendants.
I, A. B., of , one of the above-named plaintiffs, make

oath and say as follows :-—

1. I am advised by my solicitors and verily believe that
I have a good cause of action against the above-named
defendants.

2. Iam also advised by my solicitors and verily believe that
my wife and co-plaintiff, the above-named C. B., has a good
cause of action against the above-named defendant.

3. 1 have recently ascertained from inquiries made at
1, A Street, London, which is the London office of the
defendant E. I’, and from inquiries made elsewhere, that the
said defendant is now in some part of France, and that he will
probably be in Paris during the next few days, but that he
intends only to remain in France a few days longer, and then
to proceed to Switzerland and remain there during the
remainder of the present month. The places where the
defendant K. F. will probably be found during the present
month are outside the jurisdiction of this Honourable Court.

4. The defendant E. F. is a British subject.

 

(a) See pp. 72—75, supra.
FORMS AND PRECEDENTS. 235

5. The defendant E. F. is the sole proprietor and editor of
a weekly journal called “The J K »’ and has
a branch publishing office at 1, A Street, from which
copies of the said journal are sold and distributed by the
orders of the defendant E. F. throughout the United Kingdom.

6. The defendant E. F. pays the expenses of the said oftice
and receives the profits made by the sale of the said journal
in London and elsewhere.

7. The defendant G. H. is employed at the above-mentioned
office as confidential paid secretary of the defendant E. F., and
assists in the sale and distribution of the said journal, and
I am informed and verily believe that the defendant G. H.,
acting on the instructions of the defendant E. F., has circulated
and distributed throughout the United Kingdom a large
number of copies of the said journal for June lst, 1901.

8. A short time ago the attention of my wife and myself
was drawn to the issue of the said journal for June Ist, 1901,
and to the passages contained therein on pages 63 and 64, and
which refer to myself, and to the passages contained on page 65
of the said journal, which refer to my wife. A copy of the
said journal for June 1st, 1901, is now produced and shown to
me marked “ A. B. 1.”

9. I sent a clerk to the said office on June 3rd, 1901, to
obtain a copy of the said journal for June Ist, 1901. The
clerk informed me that he was told on inquiry at the said
office that there were no more copies of the said journal for
June lst, 1901, then in stock, as all those which had been
received at the said office had been sold out, but that a large
number of additional copies had arrived in London and would
shortly be received at the said office.

10. I sent the said clerk to the said office a few days later
and he returned with a copy of the said journal, which he said
he had bought at the said office, and which is now produced
and shown to me marked “ A. B, 2.”

11. The said journal for June 1st, 1901, contains gross libels
upon me. It accuses me amongst other things of dishonesty,
hypocrisy, cowardice, fraud, and immorality, and it accuses my
wife of dishonesty.

12. The whole of these charges are absolutely false.

13. 1 am advised by my solicitors and verily believe that the
defendant E. F. is a necessary and proper party to this action,
and that the defendant G. H. was duly served with the writ in
this action at 1, A Street, London, on June 4th, 1901,
by L. M.

14. The writ in this action is now produced and shown to
me marked “A. B, 3.”

 

 

 

 
236 FORMS AND PRECEDENTS.

No. 3.—Statement of Claim—Lvbel on Surgeon contained
in a Letter.

In the High Court of Justice. 1901. B. No. 111.
King’s Bench Division.
Writ issued the lst day of May, 1901.
Between Av Bis vsssiss veneses cas ses seresoenenses Plaintiff,

Ce Die caiebriatinn ania gee cannes aes Defendant.

tatement of Claim.

1. The plaintiff is and at the time hereinafter mentioned
was a surgeon practising in the city of E. and the neighbour-
hood thereof. The defendant is also a surgeon practising in
the said city.

2. On or about April 20th, 1901, the defendant falsely and
maliciously wrote and published of the plaintiff, and of him in
the way of his profession of a surgeon, in a letter sent to one
B. C., the words following, that is to say [set out the precise
words complained of |.

3. The said words meant that the plaintiff was ignorant,
unskilful, and negligent in his said profession and in the
discharge of his professional duties.

4, The plaintiff has been thereby greatly injured in his credit
and reputation, and in the way of his said profession, and has
been brought into public scandal, hatred, and contempt.

And the plaintiff claims damages (4).

 

No, 4.—Statement of Claim—-Libel in Newspaper published by
Company reflecting on Solicitor and Clerk to Borough
Magistrates.

1. The plaintiff is a solicitor of the Supreme Court of Judica-
ture, and is clerk to the justices of the borough of W., in the
county of B. He has practised the profession of a solicitor in
the said borough of W., and has held the said office of clerk to
the borough justices for the last seven years.

2. The defendant E. F. is the editor of “The a
paper which is widely read in W., and throughout South
, and which has a larger circulation than any other
local weekly paper. The defendant company is the proprietor,
printer, and publisher of the said paper.

3. On or about April 20th, 1901, the defendants falsely and
maliciously printed and published in their said newspaper of

 

 

(2) It is unnecessary to specify the amount of damages claimed, London
§ Northern Bank, Ltd.v. Georye Newnes (19V0),16 Times L, R. 433 (C.A.).
PRECEDENTS OF STATEMENTS OF CLAIM. 237

the plaintiff, and of him in the way of his said profession and
office, the words following, that is to say :—
[Here set out in full the libel. ]

4. The said words meant that the plaintiff had been guilty
of dishonourable and unprofessional conduct; that he had
acted corruptly in, and was wholly unfit for, his said office ; and
that he ought at once to be discharged therefrom, and struck
off the rolls.

5. The plaintiff has been thereby greatly prejudiced and
injured in his credit and reputation, and in his said office, and
brought into public scandal, hatred, and contempt.

And the plaintiff claims damages.

 

No. 5.—Statement of Claim—Libel on Firm of Printers pub-
lished in Newspaper, and in Newspaper Posters.

1. The plaintiffs are a firm of printers, who for upwards of
fifty years have carried on, and are now carrying on, business
at A Street, in the city of London, and for several years
past also at C., in the county of S. The defendant X. Y. is the
managing editor and proprietor of a weekly journal, called
“The D .” The defendants E. F. & Co. are the
printers, and the defendant G. H. is the publisher, of the said
journal. The said journal has a large and extensive circulation
in London, Leeds, Newcastle, and elsewhere.

2. In the issue of the said journal for April 20th, 1901, the
defendant X. Y. falsely and maliciously wrote and caused to be
printed and published, and the defendants E. F. & Co. falsely
and maliciously printed and published, and the defendant G. H.
falsely and maliciously published of the plaintiffs, and of them
in the way of their said business, the words following, that is
to say :—

 

 

 

[Set out the exact words complained of.]

3. On or about the said date the defendants falsely and
maliciously caused to be printed and published, in the form
‘of a certain libellous poster, of the plaintiffs, and of them in
the way of their said business, the words following, that is
to say :—

[Set out words in full. |

4. The defendants caused several of such posters to be
posted up in the neighbourhood of the plaintiffs’ printing
-establishments.

5. The said words meant that the plaintiffs were unfit to be
trusted by, or to employ decent or respectable persons, and that
they had been guilty of shameful, dishonest, and dishonourable
238 APPENDIX B.

dealings with, and were in the habit of cheating and defrauding,
those who dealt with or were employed by them, and that they
would not employ, and would discharge from their employment,
any one whom they believed to be a trade-unionist, and that they
had in fact discharged persons from their employment for that
reason, and that they treated their employés with cruelty and
inhumanity, and that they oppressed and ground them down,
and deliberately overworked them and drove them like slaves.

6. The plaintiffs have been thereby greatly injured in their
character, credit, and reputation, and in the way of their said
business, and have been brought into public hatred, ridicule,
and contempt.

And the plaintiffs claim damages.

No. 6.—Statement of Claim—Libel on Pickle Manufacturers
in Journal—Injunction.

1. The plaintiffs carry on business as pickle manufacturers
at A. During the last ten years the sales of the plaintiffs’
pickles have been largely increased. The amount of such
sales is mainly dependent upon the high reputation for purity
of the plaintiffs’ pickles among grocers and others in the
retail trade from whom the plaintiffs obtain orders through
their travellers.

2. The defendant is proprietor, editor, and publisher of a
weekly journal called “The F Journal.” The said
journal has a large and extensive circulation throughout A.,
and particularly amongst grocers and others in the retail
trade.

3, In the issue of the said journal for April 20th, 1901, the
defendant contriving and intending to injure the plaintiffs in
the way of their business of pickle manufacturers, and with the
object of inducing the plaintiffs’ customers and others to believe
that the pickles manufactured by the plaintiffs were adulterated
and unfit for use, falsely and maliciously wrote and printed and
published of the plaintiffs and of them in the way of their said
business and in relation to the pickles manufactured by them,
the following words :—

 

[Set out words. ]

4, The defendant meant and was understood to mean by
the words set out above that the pickles manufactured by
the plaintiffs were adulterated and unfit for use and ought
not to be purchased by the public, and could not be bought
by grocers with confidence, and that the plaintiffs knew them
to be such and could not prove to the contrary, that they had
PRECEDENTS OF STATEMENTS OF CLAIM. 239

acted in a most unjustifiable and discreditable manner, and had
most unfairly and dishonourably attacked the G. Co., and had
represented the pickles manufactured by the said company to
be adulterated when they knew that such was not the fact, and
that the plaintiffs had been guilty of shameful and dishonest
dealings, and were in the habit of cheating and defrauding
those who dealt with them, and that they were unfit to be
trusted by honest tradesmen, and that the defendant could
prove such to be the fact.

5. The defendant continues and threatens, and intends to
continue, the publications hereinbefore complained of.

6. By reason of the facts hereinbefore stated the plaintiffs
have been and will be prejudiced in their said business, and the
reputation of the pickles manufactured by them has been
impaired, and the plaintiffs have been greatly injured in their
credit and reputation, and have been brought into public
hatred, ridicule, and contempt.

And the plaintiffs claim—

1. Damages.

2. An injunction to restrain the defendant, his agents and
servants from further writing, circulating, distributing, or
otherwise publishing the said libels, or any further or other
libels affecting the plaintiffs in their said business or otherwise.

No. 7.—Statement of Claim—Slander on Grocer— Special
Damage.

1. The plaintiff is a grocer carrying on his trade at P., in the
county of Cambridge.

2. On or about April 20th, 1901, the defendant falsely
and maliciously spoke and published of the plaintiff, in the
way of his trade and in relation to his conduct therein, the
words following, that is to say [here set out the actual words
spoken], meaning thereby that the plaintiff cheated, and was
guilty of fraudulent, corrupt, and dishonest practices in his
said trade.

3. In consequence of the said words the plaintiff was
injured in his credit and reputation as a grocer, and in his
trade, and A., B., and C., who had hitherto dealt with the
plaintiff in his said trade, ceased to deal with him, and the
D. E. & F. Co., who had previously supplied the plaintiff
with goods on credit, thereupon refused to sell any more goods
to the plaintiff on credit as the said company otherwise would
have done.

And the plaintiff claims damages.
240 APPENDIX B.

No. 8.—Statement of Claim by Husband and Wife for Slander
on Wife under Slander of Women Act, 1891.

1. The plaintiff A. B. is, and was at the time hereinafter
mentioned, a butcher carrying on his trade at 100, Cattle
Street, Islington. The plaintiff C. B. is, and was at the time
hereinafter mentioned, the wife of the plaintiff A. B.

2. On or about June 23rd, 1901, the defendant falsely and
maliciously spoke and published of and concerning the plaintiff
‘C. B. to John Smith and Thomas Jones the following words :—

[Here set out the words complained of. |

3. The said words meant that the plaintiff had been guilty
‘of unchastity and adultery, and was a woman of loose and
immoral character.

4. The plaintiff C. B. has been thereby greatly injured in
her character, credit, and reputation, and has been brought
‘into public scandal, hatred, and contempt.

And the plaintiffs claim damages.

 

No. 9.—Statement of Claim—Slander on Goods.

1. The plaintiff carries on, and at all material dates
‘carried on, business under the style or title of as a
manufacturer and seller of various kinds of ink, and in
particular of ink known as A. B. Ink. The defendants are
rival manufacturers and sellers of ink, and also sell ink known
‘as A. B. Ink.

2. On or about April 13th, 1901, the defendants contriving
and intending to injure the plaintiff in his said business, and to
prevent and diminish the sale of his said A. B. Ink, falsely and
maliciously printed and published and caused to be printed
and published of and concerning the plaintiff, and of and
concerning him as such manufacturer and seller aforesaid,
and of and concerning him in the way of his said business and
in relation to the quality of his said A. B. Ink, the following
words :—

 

[Here set out words complained of. |

3. The said words meant that the A. B. Ink manufactured
and sold by the plaintiff had been analyzed by the Government
‘chemist and condemned by him as being of poor quality and
unfit to be used for the purpose for which it was sold, and that
it was so in fact, and was of an inferior quality to the A. B. Ink
manufactured and sold by the defendants.

4. The said A. B. Ink manufactured and sold by the plaintiff
had not been condemned by the Government chemist as being
of poor quality or unfit for the purpose for which it was sold,
DECLARATION IN MAYOR’S COURT. 241

nor was it so in fact, and it was not of an inferior quality to:
the A. B. Ink manufactured and sold by the defendants.

5. By reason of the premises certain persons, and particularly
C., D., and E, who had previously been in the habit of buying
A. B. Ink of the plaintiff, ceased to do so, and certain other
persons, and particularly F., G., and H., who would have
bought A. B. Ink of the plaintiff, were induced to refrain from
buying the same, whereby the plaintiff has been prejudiced and
injured in his said business and in the sale of his said A. B.
Ink, and the sale thereof has been much diminished, and the
plaintiff has been and is thereby prevented from acquiring the
profits which he might and otherwise would have acquired.

And the plaintiff claims—

1. Damages.

2. An injunction to restrain the defendants, their agents and
servants, from furtber printing, circulating, distributing, or
otherwise publishing the said libels or any other libels affecting
the plaintiff in his said business or in any way relating to his
said A. B. Ink.

No. 10.—Form of Declaration used in the Lord Mayor's Court
in the City of London.

In the Mayor’s Court, London.
The 22nd May, 1901.

Between As "Bs sess setesaias sev aude bese ranens Plaintiff,
and
The C. D. Publishing Co....... Defendants.
Declaration.

A. B., by Messrs. E. F., his solicitors, sues the C. D. Publish-
ing Co. for that the defendants on or about April 20th, 1901,
falsely and maliciously printed and published of the plaintiff,
and of him in the way of his business of a draper, in a newspaper
called “* The G J——.,” the words following, that is say [set
out exact words complained of]. And the plaintiff also sues the
defendants for that the defendants in the issue of their said
newspaper for April 27th, 1901, falsely aud maliciously printed
and published of the plaintiff, and of him in the way of his
said business, the words following, that is to say [set owt exact
words used}. And the defendants meant and were understood
to mean thereby, &c. And by reason of the publication of the
said words the plaintiff has been injured in his credit and
reputation and in his said business, &e.

And the plaintiff claims 500/.

 

L.§. R
249, APPENDIX B.

No. 11.—Statement of Cluim in Action for Libel removed by Writ
of Certiorart from the Lord Mayor's Court, London, into
the King’s Bench Division of the High Court of Justice.

In the High Court of Justice.

King’s Bench Division.

Removed from the Lord Mayor’s Court in the City of London
by his Majesty’s writ of certiorari, issued on the lst day
of July, 1901, out of the King’s Bench Division of the
High Court of Justice.

Between Ay Boas sss cssesceever seven ver cee Plaintiff,

Ce DD acivieanecan cigs Sak separeeeke S Defendant.

Statement of Claim.

1. The plaintiff is a stock and share broker and dealer,
carrying on business at in the City of Londov. The
defendants are a company incorporated under the Companies
Acts, 1862 to 1890, and are the proprietors and publishers
of a daily paper called “The $ B .’ which has an
extensive circulation in London and the provinces.

2. On or about April 20th, 1901, in the Lord Mayer’s Court
m the City of London, an action was tried in which the
plaintiff sued the Rev. A. B. for 150/., money due and owing
to him in respect of certain dealings in stocks and shares.
The said action was settled in Court, and a juror was withdrawn
upon terms.

3. Thereupon, in their issue of the said paper for April 20th,
1901, the defendants published a report of the trial of the said
action, and falsely and maliciously caused to be written and
printed and published of the plaintiff, and of him in the way of
his said business, the words following, that is to say :—

[Set out exact words used. |

4. The defendants in the issue of the said paper for April 23rd,
1901, further falsely and maliciously caused to be written and
printed and published of the plaintitf, and of him in the way of
his said business, the words following, that is to say :—

[Copy article of April 23rd in full. |

5. The said words meant that the plaintiff conducted his
business dishonestly; that he was in the habit of scattering
circulars broadcast, and so wording such circulars as to attract
the attention and excite the cupidity of parsons and other
people not well acquainted with the ways of business ; that he
induced such people to open accounts with him by making
false and fraudulent statements ; that, in particular, he had by
false and fraudulent statements induced the Rev. A. B. to pay

 

 

 
PARTICULARS. 243

over money to him, and that he had grossly deceived and
defrauded the said Rev. A. B.; that he was a swindler, a rogue,
and a liar; that he was unfit for and ought not to be trusted
in his said business ; and that no respectable bank ought to
allow him either to open or keep an account with them, as
by so doing they would be lending their name to a fraud and
a lie.

6. The plaintiff has been thereby injured in his credit and
reputation and in his said business, and has been brought into
public hatred, scandal, and contempt.

And the plaintiff claims 500/. damages.

No. 12.—WNotrce of Application for Particulars of Publication
and Special Damage alleged in Statement of Claim.

TAKE NOTICE that the above-named defendant intends to
apply to Master Archibald in Chambers, Central Office, Royal
Courts of Justice, Strand, London, on Monday, June 24th,
1901, at 1.30 o’clock in the afternoon, on the hearing of an
application on the part of the defendant for an order that
the plaintiff do deliver to the defendant within seven days
particulars in writing stating when, where, and to whom the
libels alleged in paragraphs 3, 4, and 5 of the Statement of
Claim were respectively written and published, and also
particulars of the special damage alleged in paragraph 7 thereof,
and that in default of delivery of such particulars the plaintiff
be precluded from giving any evidence in support of the said
paragraphs at the trial of this action, and that the defendant
have ten days further time to deliver his Defence after the
delivery of the said particulars.

Dated the day of , 1901.

A&B,
Solicitors for the defendant.
To the plaintiff, or to Messrs. — , his solicitors.

 

 

 

 

No. 13.—Particulars.

Delivered pursuant to the order of Master Archibald, dated
June 24th, 1901. The following are the particulars, showing
when, where, and to whom the libels in paragraphs 3, 4, and 5
of the Statement of Claim were respectively written and
published, and of the special damage mentioned in paragraph 7
of the Statement of Claim :—

1. The libel set out in paragraph 3 of the Statement of Claim

R-2
244 APPENDIX B.

was contained in a letter written by the defendant, and published
by him, to A. B. in Bath on March Ist, 1901.

2. The libel set out in paragraph 4 was shown by the
defendant to C. D. at the defendant’s house at Templeton on
March 2nd, 1901.

3. The libel set out in paragraph 5 was, Ke.

4. The plaintiff believes, and will invite the jury to believe,
that the defendant showed a copy of the said libels to divers
other persons whose names are at present unknown to the
plaintiff.

5. The special damage in paragraph 7 of the Statement of
Claim consists of the verbal refusal at D on March 4th,
1901, of A., B., and C., former customers of the plaintiff, to give
him any further orders.

 

No. eS toan Action for Libel against the Proprietors
Justification,

1. The elenilanes admit that they are the proprietors of
a weekly newspaper called ‘‘ The

2. The defendants deny that they published the said words
as alleged or with any of the meanings in the Statement of
Claim alleged, or with any defamatory meaning.

3. The said words, if defamatory, do not refer to the
plaintiff.

4, In so far as they consist of allegations of fact, the said
words are true in substance and in fact, and in so far as they
consist of expressions of opinion they are fair comments made
in good faith and without malice upon the said facts, which are
a matter of public interest (a).

                                      

 

No. 15.—Defence—Libel in Newspaper—Faitr Report—Fair
Comment—ZJ ust ification.

1. The defendants are the proprietors of a weekly newspaper
called “ The Fly-Fisher.”

2. The defendants admit that they printed and published in
their said newspuper the words set out in paragraph 1 of the
Statement of Claim, but deny that they did so with any of
the meanings in the said paragraph alleged. The said words
are incapable of the said alleged meanings or any other
defamatory meaning.

3. The said words without the said alleged meanings are no
libel.

(a) See Penrhyn vy. The Licensed Victuallers Mirror (1890), 7 Times
L. R. 1; and pp. 82—87, 89—0s,
PRECEDENTS OF DEFENCES. BAS

4. The said words form part of a fair and accurate report in
the said newspaper of proceedings publicly heard before a Court
exercising Judicial authority (namely, the action of A. v. B.,
tried in the High Court of Justice before Mr. Justice M. and
a jury on June 3rd, 1901), which said report was published
contemporaneously with such proceedings (4).

5. The said words form part of a fair and accurate report
of judicial proceedings publicly heard in the High Court
of Justice (namely, the action mentioned in the preceding
paragraph), and were published Jord fide and without
malice (c).

6. The said words are fair and bond fide comment on matters
of public interest, namely, the said judicial proceedings, and
the promotion and registration of the E. M. F. Co., and were
published by the defendants bond fide for the benefit of the
public and without any malice towards the plaintifts («/).

7. The said words, without the said alleged meanings and
according to their natural and ordinary signification, are true
in substance and in fact (e).

 

No. 16.—WDefence by Shareholder to Action for Libel contained in
Cirenlar—Privilege,

1. The defendant does not admit that he caused any of the
words set out in paragraph 2 of the Statement of Claim to be
printed or published.

2. The defendant does not admit that he caused any of
the said words to be printed or published of or concerning
the plaintiff.

3. The defendant never caused any of the said words to be
printed or published with any of the meanings alleged. The
said words are incapable of the said meanings or of any other
defamatory meaning.

4, The defendant was oue of the largest shareholders in the
A. Co., and printed and published the said words (if at all,
which is not admitted) in the form of a circular. And the
defendant prepared and issued the said circular in the dond
fide belief that every statement therein contained was true and
without malice towards the plaintiff, and with the honest desire
to protect the interest of himself, the other shareholders, and
the creditors of the said company. And the said circular was

(b) This raises the statutory defence afforded by sect. 3 of the Law of
Libel Amendment Act, 18S8, see p. 110, supra.

‘(c) This raises the old common law defence of qualified privilege. Sce
pp. 115, 116, supra.

(d) See pp. 89—98.

(e) See pp. 82—87.
246 APPENDIX B.

published by the defendant to the said shareholders and
creditors, who had a corresponding interest with the defendant
in the matters therein referred to, and as was reasonably
necessary and proper for the protection of the said interests,
to certain compositors and printers and to no one else, and is
therefore privileged (¢).

 

No. 17.—Defence by Member of Town Council to Action for
Slander at Meetiny of Committee af Council— Privilege.

1. The defendant never spoke or published any of the words
complained of.

2. The defendant never spoke or published any of the said
words of or concerning the plaintiff, or of or concerning the
plaintiff in the way of his trade as a builder.

3. The defendant never spoke or published any of the said
words with any of the meanings alleged.

4. The defendant is, and at the date of the alleged publication
was, a member of the town council of the borough of F., and
a member of the picr committee of the said council. The
said words (if spoken and published at all, which is denied) were
spoken and published at a meeting of the said committee in
reference to, and in the course of a discussion on, an offer for
the use and occupation of the pier pavilion, and were spoken
and published only to persons who had a common interest with
the defendant in the matters complained of, and it was the
defendant’s duty, as a member of the said council and committee,
to speak the words complained of, and the said words (if spoken
at all) were spoken by the defendant in pursuance of the said
duty and without malice towards the plaintiff, and in the honest
belief that every word the defendant said was true. The
occasion is therefore privileged (c).

 

No. 18.—Defence—Libel in Newspaper—Apology before Action
under Sect. 2 of Lord Campbell's Act (6 & 7 Vict. c. 96).

1. The defendants admit that they printed and published the
words set out in paragraph 1 of the Statement of Claim.

2. The said words were contained in a public newspaper
called “The Poolewe Record,” which is published by the
defendants once a week, namely, on Saturday. The said words
were inserted in the issue of such newspaper for Saturday,
April 20th, 1901, without malice and without gross negligence.

3. Before the commencement of this action, to wit, in the

(2) See pp. 135. 188, 143, supra.
(¢) See p. 143, supra.
PRECEDENTS OF DEFENCES. PLT

issue of their said newspaper immediately following that in
which the said words appeared, that is, in the issue for Saturday,
April 27th, 1901, the defendants inserted a full apology for
the said words, according to the statute in such case made and
provided, in the words following, that is to say [here copy the
apology in eatenso],

4. The defendants deny each and every allegation contained
in paragraph 2 of the Statement of Claim. They bring the
sum of 40s. into Court by way of amends for the injury
sustained by the plaintiff by the publication of the said words,
and say that that sum is sufficient to satisfy the plaintif’s
claim in this action (d).

 

No. 19.—Defence—Libhel in Book sold hy Booksellers.

1. The defendants never published any of the words set out
in the Statement of Claim.

2. The defendants never published any of the said words of
the plaintiff.

3. The defendants never published any of the said words with
the meanings alleged.

4. The defendants admit that in April, 1901, they sold at
their premises in Book Street, in the City of London, certain
copies of the book mentioned in the Statement of Claim, which
contained the words set out in paragraph 2 thereof, but by
reason of the facts stated in paragraph 5 hereof, the defendants
say that they néver published the said words.

5. The defendants are booksellers carrying on a large
business in Book Street aforesaid. The said copies of the
said book were sent by the publishers thereof to the defendants’
servants and sold by them in the ordinary course of the
defendants’ said business and not otherwise, and this is the
alleged publication. Neither the defendants nor their servants
knew at the time when they sold the said copies, nor ought
they to have known, what were the contents thereof, nor that
the said copies coutained any libel on the plaintiff or were
likely to contain any libellous matter. Such want of knowledge
was not the result of any negligence on the part of the defendants
or their servants (¢).

 

No. 20.—Defence—Lthel in Newspaper—Payment into Court.

The defendants admit tbat they are the printers and publishers
of a newspaper called the “A Gazette,” and that they

 

(d) See p. 158, supra.
(e) See pp. 16—19, 66—67, supra, and cases there cited.
248 APPENDIX B.

published in the issue of the said newspaper for April 20th, 1901,
the words set out in paragraph 2 of the Statement of Claim.
They deny that the said words bear the meanings alleged in the
said paragraph, but they admit that they are libellous in their
natural signification, and that they refer to the plaintiff, and
the defendants bring into Court the sum of ten guineas, and
say that sum is sufficient to satisfy the plaintiff’s claim in
respect of the said words without the said alleged meanings,
which are denied (/).

 

No. 21.—Defence—Slunder— Words of Heat.

1. The defendant admits that he spoke and published the
words set out in paragraph 2 of the Statement of Claim, but
denies that he spoke or published them with the meanings in
the said paragraph alleged.

2. The said words are merely words of heat, and were
uttered by the defendant in anger, as every one who heard
the words well knew ; they did not mean, and were not under-
stood to mean, that the plaintiff had committed any criminal
offence.

3. The said words are incapable of any of the said meanings,
or of any other defamatory or actionable meaning.

4+. The defendant will object that the said words are not
actionable without proof of special damage, and that none is
alleged.

 

No. 22.—Reply to Defence of Fair Comment.

1. The plaintiff joins issue with the defendant upon his
Defence.

2. The words complained of are not fair or bond fide comment
on any matter of public interest. They are not comments, but
false statements on matters of fact.

No. 23.—Reply to Defence of Privilege.

1. The plaintiff joins issue with the defendant upon his
Defence.

2. The plaintiff will contend that the matters stated in
paragraph 4 of the Defence are not sufficient in law to establish
the privilege therein claimed.

Cf) See p. 219, supra.
MOTION FOR NEW TRIAL. 249

No. 24.—WNotice of Motion tor New Trial (y).
In the Court of Appeal.
Between A. Bo... cece cece eens Plaintiff,

(I) a deted Meustdancieias oven cies Defendant.

Take notice that this Honourable Court will be moved at
the expiration of fourteen days from the date hereof, or so soon
thereafter as vounsel can be heard, by Mr. , of counsel
on behalf of the defendant, for an order that the verdict
obtained in this action be set aside and judgment entered for
the defendant, on the ground that there was no evidence fit to
be submitted to the jury in support of the plaintiff's case, or in
the alternative that a new trial be had between the parties on
the grounds—

1. That the verdict was against the weight of evidence.

2. That the damages were excessive.

3. That the judge misdirected the jury —

(a) In not directing them that there was no evidence
of publication.

(2) In not directing them that the occasion was
privileged, and the action could not be maintained
without evidence of malice.

(c) In not sufficiently explaining the nature of the
privilege, and that the onus lay upon the plaintiff of
showing that the defendant did not believe in the truth
of the charges.

(d) In leaving to them the question whether or not
the occasion of the communications complained of was
privileged.

And that in the meantime further proceedings be stayed.

 

(g) See pp. 180—184, 232, supra.
APPENDIX C.—STATUTES.

 

 
 
 
 
 
  

CONTENTS.
PAGE

Be Ges 3; C5100) CHOXS NCE) ccs anciacacs auc ses gheisteaes gcadianieesicaders 250—241
3!) Geo. 38, ¢. 79 251—252
60 Go. 3 & 1 Geo. $, e.8 253—254
6&7 Will. 4, ¢. 76, 5.19. . 254-255
283 Viet, C: 12 sssuccnss. ». 255—256
BEG Wits 950) gt imesh Staten teint ee. ont uaa en as een te 256—258
6&7 Vict..¢.. 96 Chord Campbell's ACt) sc oicincsssseceiensaewsees 258—261
By See NOt SCL 1D: ycsaietaudisensaiiendheanetunseyees .. 262—263
9 & 10 Vict. ¢. 33... 263—264
11 & 12 Vict. ¢. 12... . 264-265
DO Ne BT NACH 683. sa cacanissminexivonainbassnaeconmesasianmnien 265—267
44 & $5 Vict. cv. 60 (Ne

1881) 268—273

51 & 52 Vict. c. 64 CLaw of Libel Amendment Act, 1888)....... 274-277
42 & 53 Vict. c. 18 (Indecent Advertisements Act, 1889) 277—278
54.455 Viet. c. 51 (Slander of Women Act, 1891) 278
58 & 59 Vict. c. £0 (Corrupt and Illegal Practices Prevention

ACh SSB) —casececsciue sea gipeadiintichoeemieseenpcacceaebionsesecss 279—280

  

Fox’s Act, 32 Geo. III. c. 60.

An Act to remove doubts respecting the Functions of Juries in
cases of Libel. [a.p. 1792.]

On the trial of an indictment for a libel the jury may give a
general verdict upon the whole matter put in issue, and shall not
be required hy the Cowt to find the defendant guilty merely on
proof of the publication and of the sense ascribed to tt im the
information. |—Whereas doubts have arisen whether on the
trial of an indictment or information for the making or pub-
lishing any libel, where an issue or issues are joined between
the king and the defendant or defendants, on the plea of not
guilty pleaded, it be competent to the jury impanelled to try
the same to give their verdict upon the whole matter in issue :
Be it therefore declared and enacted by the king’s most
excellent Majesty, by and with the advice and consent of the
Lords spiritual and temporal, and Commons, in the present
39 Geo. TIT. oc. 79. 251

Parliament assembled, and by the authority of the same, that
on every such trial, the jury sworn to try the issue may give
a general verdict of guilty or not guilty upon the whole
matter put in issue upon such indictment or information ; and
shall not be required or directed, by the Court or judge before
whom such indictment or information shall be tried, to find the
defendant or defendants guilty, merely on the proof of the
publication by such defendant or defendants of the paper
charged to be a libel, and of the sense ascribed to the same in
such indictment or information (a).

2. But the Court shall give their opinion and directions on the
matter in tissue as in other criminal cases.]—Provided always,
that, on every such trial, the Court or judge before whom such
indictment or information shall be tried, shall, according to
their or his discretion, give their or his opinion and directions
to the jury on the matter in issue between the king and
the defendant or defendants, in like manner as in other
criminal cases.

8. Jury may find « special verdict.|—Provided also, that
nothing herein contained shall extend or be construed to extend
to prevent the jury from finding a special verdict, in their
discretion, as in other criminal cases («).

4. Defendants may move in arrest of judgment, as before
passing this Act.|—Provided also, that in case the jury shall
find the defendant or defendants guilty, it shall and may be
lawful for the said defendant or defendants to move in arrest
of judgment on such ground and in such manner as by law he
or they might have done before the passing of this Act ; any-
thing herein contained to the contrary notwithstanding.

39 Geo, III. c. 79. [a.v. 1799.]

28. Not to extend to papers printed by authority of Parlia-
ment.|—Nothing in this Act contained shall extend, or be
construed to extend, to any papers printed by the authority
and for the use of either House of Parliament.

29. Printers to keep a copy of every paper they print, and
write thereon the nume and abode of their employer.—Penalty
of 201. for neglect or refusing to produce the copy within six
months. ]—Every person who shall print any paper for hire,
reward, gain, or profit, shall carefully preserve and keep one
copy (at least) of every paper so printed by him or her, on

(«) See pp. 206, 207, supra.
252 APPENDIX C.

which he or she shall write, or cause to be written or printed,
in fair and legible characters, the name and place of abode of
the person or persons by whom he or she shall be employed to
print the same, and every person printing any paper for hire,
reward, gain, or profit, who shall omit or neglect to write, or
cause to be written or printed as aforesaid, the name and place
of abode of his or her employer on one of such printed papers,
or to keep or preserve the same for the space of six calendar
months next after the printing thereof, or to produce and show
the same to any justice of the peace, who, within the said
space of six calendar months, shall require to see the same,
shall for every such omission, neglect, or refusal, forfeit and
lose the sum of twenty pounds (0).

31. Not to ertend to impressions of engravings, or the printing
names and addresses. |—Nothing herein contained shall extend
to the impression of any engraving, or to the printing by
letterpress of the name, or the name and address, or business
or profession, of any person, and the articles in which he deals,
or to any papers for the sale of estates or goods by auction or
otherwise.

84. Prosecutions to be commenced within three months after
penalty ts incurred. |—No person shall be prosecuted or sued
for any penalty imposed by this Act, unless such prosecution
shall be commenced, or such action shall be brought, within
three calendar months next after such penalty shall have been
incurred.

35. Recovery of penalties.|—And any pecuniary penalty
imposed by this Act, and not exceeding the sum of twenty
pounds, shall and may be recovered before any justice or
justices of the peace for the county, stewartry, riding, division,
city, town, or place in which the same shall be incurred, or the
person having incurred the same shall happen to be, in a
summary way.

36. Application of penalties. ]|— Al] pecuniary penalties here-
inbefore imposed by this Act shall, when recovered in a
summary way before any justice (c), be applied and dis-
posed of in manner hereinafter mentioned; that is to say,
one moiety thereof to the informer before any justices,
and the other moiety thereof to his Majesty, his heirs and
successors (¢).

(c) See 9 & 10 Vict. c. 33, s. 1, at pp. 263—264. infra.

(b) See p. 210, supra.
fo
(¢d) The above sections are re-enacted by 32 & 33 Vict. c. 24, Sched. II.
60 Geo. IIT. & 1 Gro. TY. c. 8. 253

60 Gero. IIT. & 1 Geo. IV. c. 8.
[30th Dec. 1819. ]

Court to make order for the seizure of copies of the libel in
possession of the persons against whom verdicts shall have been
had, d&e.—Beidence of possession being given upon oath.—In ertse
of refusul of admission, proceedinys.|—Whereas it is expedient
to make more effectual provision for the punishment of
blasphemous and seditious libels: Be it enacted by the king’s
most excellent Majesty, by and with the advice and consent of
the Lords spiritual and temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, that
from and after the passing of this Act, in every case in which
any verdict or judgment by default shall be had against any
person composing, printing, or publishing any blasphemous
libel, or any seditious libel, tending to bring into hatred or
contempt the person of his Majesty, his heirs, or successors, or
the Regent, or the government and constitution of the United
Kingdom as by law established, or either House of Parliament,
or to excite his Majesty’s subjects to attempt the alteration of
any matter in church or state as by law established otherwise
than by lawful means, it shall be lawful fur the judge, or the
Court before whom or in which such verdict shall have been
given, or the Court in which such judgment by default shall
be had, to make an order for the seizure and carrying away
and detaining in safe custody in such manner as shall be
directed in such order, all copies of the libel which shall be in
the possession of the person against whom such verdict or
judgment shall have been had, or in the possession of any
other person named in the order for his use; evidence upon
oath having been previously given to the satisfaction of the
Court or judge that a copy or copies of the said libel is or are
in the possession of such other person for the use of the person
against whom such verdict or judgment shall have been had
as aforesaid ; and in every such case it shall be lawful for any
justice of the peace, or for any constable, or other peace officer
acting under any such order, or for any person or persons
acting with or in aid of any such justice of the peace, constable,
or other peace officer, to search for any copies of such libel in
any house, building, or other place whatsoever belonging to
the person against whom any such verdict or judgment shall
have been had, or to any other person so named in whose
possession any copies of any such libel belonging to the person
against whom any such verdict or judgment shall have been
had, shall be ; and in case admission shall be refused, or not
obtained within a reasonable time after it shall lave beeu first
254 APPENDIX C.

demanded, to enter by force by day into any such house,
building, or place whatsoever, and to carry away all copies of
the libel there found, and to detain the same in safe custody
until the same shall be restored under the provisions of this
Act, or disposed of according to any further order made in
relation thereto (¢).

2. In what case copies of libels seized restored without fee, &e.,
or disposed of as Court shall direct.|—And be it further enacted,
that if in any such case as aforesaid, judgment shall be
arrested, or if, after judgment shall have been entered, the
same shall be reversed upon any writ of error, all copies so
seized shall be forthwith returned to the person or persons
from whom the same shall have been so taken as aforesaid,
free of all charge and expense, and without the payment of
any fees whatever: and in every case in which final judgment
shall be entered upon the verdict so found against the person
or persons charged with having composed, printed, or published
such libel, then all copies so seized shall be disposed of as
the Court in which such judgment shall be given shall order
and direct.

4. Second offence—Punishment. |—And be it further enacted,
that if any person shall, after the passing of this Act, be legally
convicted of having after the passing of this Act composed,
printed, or published any blasphemous libel or any such
seditious libel as aforesaid, and shall after being so convicted,
offend a second time, and be thereof legally convicted before
any commission of oyer and terminer or gaol delivery, or in his
Majesty’s Court of King’s Bench, such person may, on such
second conviction, be adjudged, at the discretion of the Court,
either to suffer such punishment as may now by law be inflicted
in cases of high misdemeanors, or to be banished from the
United Kingdom and all other parts of his Majesty’s dominions,
for such term of years as the Court in which such conviction
shall take place shall order.

6 & 7 Win. IV. co. 76. [a.p. 1836. ]

19. Descovery of proprietors, printers, or publishers of news-
papers may be enforced by bill, de.|—lf any person shall file
any bill in any Court for the discovery of the name of any
pergon concerned as printer, publisher, or proprietor of any
newspaper, or of any matters relative to the printing or pub-
lishing of any newspaper, in order the more effectually to bring

 

i(e) See p, 196, supra.
2 & 3 Vier. c. 12. 255

or carry on any suit or action for damages alleged to have
been sustained by reason of any slanderous or libellous matter
contained in any such newspaper respecting such person, it
shall not be lawful for the defendant to plead or demur to such
bill, but such defendant shall be compellable to make the
discovery required ; provided always, that such discovery shall
not be made use of as evidence or otherwise in any proceeding
against the defendant, save only in that proceeding for which
the discovery is made (/).

2 & 3 Vier. o. 12. [a.p. 1839.]

2. Penalty upon printers for not printing their name and
residence on every paper or book ; and on persons publishing the
same.|—Every person who shall print any paper or book what-
soever, which shall be meant to be published or dispersed, and
who shall not print upon the front of every such paper, if the
same shall be printed on one side only, or upon the first or
last leaf of every paper or book which shall consist of more
than one leaf, in legible characters, his or her name and usual
place of abode or business, and every person who shall publish
or disperse, or assist in publishing or dispersing, any printed
paper or book on which the name and place of abode of the
person printing the same shall not be printed as aforesaid,
shall for every copy of such paper so printed by him or her
forfeit a sum not more than five pounds: Provided always,
that nothing herein contained shall be construed to impose
any penalty upon any person for printing any paper excepted
out of the operation of the said Act of the thirty-ninth
year of King George the Third, chapter seventy-nine, either
in the said Act, or by any Act made for the amendment
thereof (9).

3. As to books or papers printed at the University Presses. |—
In the case of books or papers printed at the University Press
of Oxford, or the Pitt Press of Cambridge, the printer, instead
of printing his name thereon, shall print the following words,
«Printed at the University Press, Oxford,” or, “The Pitt Press,
Cambridge,” as the case may be.

4, No actions for penalties to be commenced, except in the
name of the Attorney or Solicitor-General in England or the

 

(f) This section was re-enacted by 32 & 33 Vict. ¢. 24, Sched. IL., and
is still the law. The original statute, 6 & 7 Will. 4, c. 76, was entirely
repealed, no reference, however, being made to this section.

(g) See p. 210, supra.
256 APPENDIX C.

Queen's Advocate in Scotland.]|—Provided always, that it shall
not be lawful for any person or persons whatsoever to com-
mence, prosecute, enter, or file, or cause or procure to be
commenced, prosecuted, entered, or filed, any action, bill,
plaint, or information in any of her Majesty’s Courts, or before
any justice or justices of the peace, against any person or
persons for the recovery of any fine, penalty, or forfeiture
made or incurred, or which may hereafter be incurred under
the provisions of this Act, unless the same be commenced,
prosecuted, entered, or filed in the name of her Majesty’s
Attorney-General, or Solicitor-General in that part of Great
Britain called England, or her Majesty’s Advocate for Scotland
(as the case may he respectively); and if any action, Dill,
plaint, or information shall be commenced, prosecuted, or filed
in the name or names of any other person or persons than is or
are in that behalf before mentioned, the same and every pro-
ceeding thereupon had are hereby declared and the same shall
be null and void to all intents and purposes (2).

3 & 4 Vict. o. 9.

An Act to give Summary Protection to Persons employed in the
Publication of Parliamentary Papers.
[14th April, 1840. ]

Proceedings, criminal or civil, against persons for publication
of papers printed by order of Parliament to be stayed upon
delivery of a certificate and affidavit to the effect that such publi-
cation is by order of either House of Parliament.|—Whereas
it is essential to the due and effectual exercise and discharge
of the functions and duties of Parliament, and to the promo-
tion of wise legislation, that no obstructions or impediments
should exist to the publication of such of the reports, papers,
votes, or proceedings of either House of Parliament, as such
House of Parliament may deem fit or necessary to be pub-
lished ; and whereas obstructions or impediments to such
publication have arisen and hereafter may arise by means of
civil or criminal proceedings being taken against persons
employed by or acting under the authority of the Houses of
Parliament or one of them, in the publication of such reports,
papers, votes, or proceedings; by reason and for remedy
whereof it is expedient that more speedy protection should
be afforded to all persons acting under the authority afore-
said, and that all such civil or criminal proceedings should

(2) The above sections are re-enacted by 32 & 33 Vict. c. 24, Sched. II.
3 & + Vier. co. 9. 257

be summarily put an end to, and determined in manner here-
inafter mentioned: Be it therefore enacted by the (ueen’s
most excellent Majesty, by and with the advice and consent
of the Lords spiritual and temporal, and Commons, in this
present Parliament assembled, and by the authority of the
same, that it shall and may be lawful for any person or
persons who now is or are, or hereafter shall be, a defendant
or defendants in any civil or criminal proceedings commenced
or prosecuted in any manner soever, for or on account, or in
respect of the publication of any such report, paper, votes, or
proceedings by such person or persons, or by his, her, or their
servant or servants by or under the authority of either House
of Parliament, to bring before the Court in which such pro-
ceeding shall have been or shall be so commenced or prose-
cuted, or before any judge of the same (if one of the superior
Courts at Westminster), first giving twenty-four hours’
notice of his intention so to do to the prosecutor or plaintiff
in such proceeding, a certificate under the hand of the Lord
High Chancellor of Great Britain, or the Lord Keeper of the
Great Seal, or of the Speaker of the House of Lords for
the time being, or of the Clerk of the Parliaments, or of the
Speaker of the House of Commons, or of the Clerk of the same
House, stating that the report, paper, votes, or proceedings,
as the case may be, in respect whereof such civil or criminal
proceeding shall have been commenced or prosecuted, was
published by such person or persons, or by his, her, or their
servant or servants by order or under the authority of the
House of Lords, or the House of Commons, as the case may
be, together with an affidavit verifying such certificate; and
such Court or judge shall thereupon immediately stay such
civil or criminal proceeding, and the same, and every writ
or process issued therein shall be, and shall be deemed and
taken to be, finally put an end to, determined, and superseded
by virtue of this Act (2).

2. Proceedings to be stayed when commenced in respect of a
copy of an authenticuted report, d&c.]—And be it enacted, that,
in case of any civil or criminal proceeding hereafter to be
commenced or prosecuted for or on account or in respect
of the publication of any copy of such report, paper, votes,
or proceedings, it shall be lawful for the defendant or defendants
at any stage of the proceedings to lay before the Court or judge
such report, paper, votes, or proceedings, and such copy, with
an affidavit verifying such report, paper, votes, or proceedings,
and the correctness of such copy, and the Court or judge shall
immediately stay such civil or criminal proceeding, and the

(i) See pp. 109, 133, supra.

L.s. 8
258 APPENDIX C.

same, and every writ and process issued therein, shall be
deemed and taken to be finally put an end to, determined, and
superseded by virtue of this Act (*).

3. In proceedings for printing any extract, &c., it may be
shown that extract was bond fide made.|—And be it enacted
that it shall be lawful in any civil or criminal proceeding to
be commenced or prosecuted for printing any extract from or
abstract of such report, paper, votes, or proceedings, to give
in evidence under the general issue such report, paper, votes,
or proceedings, and to show that such extract or abstract was
published Fond fide and without malice; and if such shall be
the opinion of the jury, a verdict of not guilty shall be entered
for the defendant or defendants (Z).

4. Act not to affect privileges of Parliament.]—Provided
always, and it is hereby expressly declared and enacted, that
nothing herein contained shall be deemed or taken, or held,
or construed, directly or indirectly, by implication or other-
wise, to affect the privileges of Parliament in any manner
whatsoever.

Lorp CampBeL’s Act (6 & 7 Vicr. c. 96).

An Act to amend the Law respecting Defamatory Words and
Libel. [24th August, 1843. ]

Offer of an apology admissible in evidence in mitigation of
damages. |—For the better protection of private character, and
for more effectually securing the liberty of the press, and for
better preventing abuses in exercising the said liberty, Be
it enacted by the Queen’s most excellent Majesty, by and with
the advice and consent of the Lords spiritual and temporal,
and Commons, in this present Parliament assembled, and by
the authority of the same, that in any action for defamation
it shall be lawful for the defendant (after notice in writing
of his intention so to do, duly given to the plaintiff at the
time of filing or delivering the plea in such action) to give in
evidence, in mitigation of damages, that he made or offered
an apology to the plaintiff for such defamation before the
commencement of the action, or as soon afterwards as he
had an opportunity of doing so, in case the action shall have
been commenced before there was an opportunity of making or
offering such apology (2).

2. In an action against a newspaper for libel, the defendant

(k) See pp. 109, 133, supra.
(2) See p. 169, supra.
LORD CAMPBELL’s act (6 & 7 Vicr. c. 96). 259

anay plead that it was cnserted without malice and without
neglect, and may pay money into Cowrt as amends.|—And be it
enacted, that in an action for a libel contained in any public
newspaper or other periodical publication, it shall be com-
petent to the defendant to plead that such libel was inserted
in such newspaper or other periodical publication without
actual malice and without gross negligence, and that before
the commencement of the action, or at the earliest opportunity
afterwards, he inserted in such newspaper or other periodical
publication a full apology for the said libel, or if the news-
paper or periodical publication in which the said libel appeared
should be ordinarily published at intervals excceding one
week, had offered to publish the said apology in any news-
paper or periodical publication to be selected by the plaintiff
in such action ; und that every such defendant shall, upon filing
such plea, be at liberty to pay into Court « sum of money by way
of amends for the injury sustacned by the publication of such
libel, and such payment into Court shall be of the sume effect,
cand be available in the same manner and to the same extent, and
be subject to the same rules and regulations as to payment of
costs and the form of pleading, except so far as reyards the
pleading of the additional facts hereinbefore required to be
pleaded by such defendant, as if actions for libel had not been
excepted trom the personal actions in which rt ts lawful to pay
money into Court under an Act passed in the session of Parlia-
ment held in the fourth year of his lute Majesty, intituled “ An
Act for the further Amendment of the Law, and better Advance-
ment of Justice” (m); and that to such plea to such action it
shall be competent to the plaintiff to reply generally, denying
the whole of such plea (7).

3. Publishing or threatening to publish a libel, de. with intent
to extort money, punishable by imprisonment with hard labour. |
—And be it enacted, that if any person shall publish or
threaten to publish any libel upon any other person, or shall
directly or indirectly threaten to print or publish, or shall
directly or indirectly propose to abstain from printing or
publishing, or shall directly or indirectly offer to prevent the
printing or publishing, of any matter or thing touching any
other person, with intent to extort any money or security for
money, or any valuable thing, from such or any other person,
cor with intent to induce any person to confer or procure for
any person any appointment or office of profit or trust, every
such offender, on being convicted thereof, shall be liable to

(m) The words in italics were repealed by the Civil Procedure Acts
Repeal Act, 1879 (42 & 43 Vict. ¢. 59), Schedule, Part JI.
(m) See pp. 158, 159, supra.

§ 2
260 APPENDIX C.

be imprisoned, with or withont hard labour, in the common
gaol or house of correction, for any term not exceeding three
years; provided always that nothing herein contained sball
in any manner alter or affect any law now in force in respect
of the sending or delivery of threatening letters or writings.

4. Punishment of false defamatory libel.|—And be it enacted,
that if any person shall maliciously publish any defamatory
libel, knowing the same to be false, every such person, being
convicted thereof, shall be liable to be imprisoned in the
common gaol or house of correction for any term not exceeding
two years, and to pay such fine as the Court shall award (0).

5. Punishment of malicious defamatory libel.|—And be it
enacted, that if any person shall maliciously publish any
defamatory libel, every such person, being convicted thereof,
shall be liable to fine or imprisonment, or both, as the Court
may award, such imprisonment not to exceed the term of
one year (0).

6. Proceedings upon the trial of an indictment or information
for a defamatory lite?l.—Double plea.—Plea of not guilty in cit
and criminal proceedings.|—And be it enacted, that on the
trial of any indictment or information for a defamatory libel,
the defendant having pleaded such a plea as hereinafter
mentioned, the truth of the matters charged may be inquired
into, but shall not amount to a defence, unless it was for the
public benefit that the said matters charged should be pub-
lished ; and that to entitle the defendant to give evidence of
the truth of such matters charged as a defence to such indict-
ment or information, it shall be necessary for the defendant,
in pleading to the said indictment or information, to allege
the truth of the said matters charged in the manner now
required in-pleading a justification to an action for defamation,
and further to allege that it was for the public benefit that
the said matters charged should be published, and the par-
ticular fact or facts by reason whereof it was for the public
benefit that the said matters charged should be published, to
which plea the prosecutor shall be at liberty to reply generally,
denying the whole thereof: and that if after such plea, the
defendant shall be convicted on such indictment or information,
it shall be competent to the Court, in pronouncing sentence,
to consider whether the guilt of the defendant is aggravated
or mitigated by the said plea, and by the evidence given
to prove or to disprove the same ; provided always, that the
truth of the matter charged in the alleged libel complained
of by such indictment or information shall in no case be
inquired into without such plea of justification; provided

(0) See pp. 185, 192, supra.
LORD CAMPBELL’s act (6 & 7 Vicr. c. 96). 261

also, that in addition to such plea it shall be competent
to the defendant to plead a plea of not guilty ; provided also,
that nothing in this Act contained shall take away or pre-
judice any defence under the plea of not guilty, which it
is now competent to the defendant to make under such plea,
to any action or indictment, or information for defamatory
words or libel ().

7. EHvidence to rebut prind facie case of publication by an
ayent.|—And be it enacted, that whatsoever, upon the trial
of any indictment or information for the publication of a libel
under the plea of not guilty, evidence shall have been given
which shall establish a presumptive case of publication against
the defendant by the act of any other person by his authority,
it shall be competent to such defendant to prove that such
publication was made without his authority, consent, or know-
ledge, and that the said publication did not arise from want
of due care or caution on his part (¢).

8. On prosecution for private libel defendant entitled to costs
on acquittal.]—And be it enacted, that in the case of any indict-
ment or information by a private prosecutor for the publication
of any defamatory libel, if judgment shall be given for the
defendant, he shall be entitled to recover from the prosecutor
the costs sustained by the said defendant by reason of such
indictment or information; and that upon a special plea of
justification to such indictment or information, if the issue be
found for the prosecutor, he shall be entitled to recover from
the defendant the costs sustained by the prosecutur by reason
of such plea, such costs so to be recovered by the defendant
or prosecutor respectively to be taxed by the proper officer of
the Court before which the said indictment or information
is tried.

9. Lnterpretution of Act.]|—And be it enacted, that wherever
throughout this Act, in describing the plaintiff or the defendant,
or party affected or intended to be affected by the offence,
words are used importing the singular number or the masculine
gender only, yet they shall be understood to include several
persons as well as one person, and females as well as males,
unless when the nature of the provision or the context of the
Act shall exclude such construction.

10. Commencement and extent of ct.|—And be it enacted,
that this Act shall take effect from the first day of November
next ; and that nothing in this Act contained shall extend to
Scotland.

(p) Sce pp. 191, 202, 203, 204, supra.
(qZ) See pp. 202, 204, 205, supra.
262 APPENDIX C.

8 & 9 Vier. c. 75.

An Act to amend an Act passed in the session of Parliament held
in the sirth and seventh years of the reign of her present
Majesty, intituled “An Act to amend the Law respecting
Defamatory Words and Libel.”

[81st July, 1845.]

In cases of uction for libel in Iveland where defendant shall
plead matters allowed by 3d 4 Will. 4, ¢. 42, and pay money
into Court, such payment to be of the effect as if required by said
Act.|—Whereas by an Act passed in the session of Parliament
held in the sixth and seventh years of the reign of her present
Majesty, intituled “An Act to amend the Law respecting
Defamatory Words and Libel,” it is amongst other things
enacted and provided that the defendant, in an action for a
libel contained in any public newspaper, or other periodical
publication, may plead certain matters therein mentioned, and
may upon filing such plea be at liberty to pay into Court a
sum of money by way of amends for the injury sustained by
the publication of such libel ; and it is thereby further enacted,
that such payment into Court shall be of the same effect, and
be available im the same manner and to the same extent, and
be subject to the same rules and regulations as to payment of
costs and the form of pleading, except so far as regards the
pleading of the additional facts thereinbefore required to be
pleaded by such defendant, as if actions for libel had not been
excepted from the personal actions in which it is lawful to pay
money into Court under an Act passed in the session of Parlia-
ment held in the fourth year of his late Majesty, intituled “An
Act for the further amendment of the Law and the better
Advancement of Justice;” and whereas the said Act of the
fourth year of the reign of his late Majesty relates only to
proceedings in the Superior Courts in England, but by an Act
passed in the session of Parliament held in the third and fourth
years of the reign of her present Majesty, intituled “‘ An Act
for abolishing Arrest on Mesne Process in Civil Actions, except
in certain cases, for extending the Remedies of Creditors
against the Property of Debtors, and for the further Advance-
ment of Justice” (7), in Ireland, a like provision is made for
payment of money into Court in all personal actions pending
in any of the Superior Courts in Ireland as is contained in the
said Act of the fourth year of the reign of his late Majesty in
regard to actions pending in the Superior Courts in England,
with a like exception of actions for libel ; and it is expedient

(r) 3 & 4 Vict. c. 105, s. 46, repealed by Stat. Law Rey. Act, 1875.
9 & 10 Vicr. c. 33. 263

to prevent any doubts as to the application of the said recited
Act of the sixth and seventh years of the reign of her present
Majesty to actions pending in the Superior Courts in Ireland,
which may be created by reason of the omission of a reference
in the last-mentioned Act to the said Act of the third and
fourth years of the reign of her present Majesty: Be it there-
fore enacted and declared by the Queen’s most excellent
Majesty, by and with the advice and consent of the Lords
spiritual and temporal, and Commons, in this present Pavlia-
ment assembled, and by the authority of the same, that where
in any action pending in the Superior Courts in Ireland for a
libel contained in any public newspaper or other periodical
publication, the defendant shall plead the matters allowed to
be pleaded by the said first-mentioned Act, and shall on filing
such plea pay money into Court as provided by such Act, such
payment into Court shall be of the same effect and be available
in the same manner and to the same extent, and be subject to
the same rules and regulations now in force, or hereafter to be
made, as to payment of costs and the form of pleading, except
so far as regards the pleading of the additional facts so
required to be pleaded by such defendant, as if actions for
libel had not been excepted from the personal actions in which
it is lawful to pay money into Court under the said recited
Act of the third and fourth years of the reign of her present
Majesty.

2. Defendant not to file such plea without paying money into
Court by way of amends.|—And be it declared and enacted,
that it shall not be competent to any defendant in such action,
' whether in England or in Iveland, to file any such plea without
at the same time making a payment of money into Court by
way of amends, as provided by the said Act (s), but every such
plea so filed without payment of money into Court shall be
deemed a nullity, and may be treated as such by the plaintiff
in the action (¢).

9 & 10 Vicr. c. 33.
[27th July, 1846.]

1. Proceedings under 39 Geo. 3, c. 79, shall not be commenced
unless in the name of the law officers of the Crown.|—lIt shall
not be lawful for any person or persons to commence, prose-
cute, enter, file, or cause or procure to be commenced, prosecuted,

(8) Words in italics repealed by Civil Procedure Acts Repeal Act,
1879 (42 & 43 Vict. c. 59), Sched. Part Il.
(t) See pp. 159, 219—220, supra.
264 APPENDIX C.

entered, or filed, any action, bill, plaint, or information in
any of her Majesty’s Courts, or befure any justice or Justices of
the peace, against any person or persons for the discovery of
any fine which may hereafter be incurred under the provisions
of the Act of the thirty-ninth year of King George the Third,
chapter seventy-nine, set out in this Act, unless the same be
commenced, prosecuted, entered, or filed in the name of her
Majesty’s Attorney-General or Solicitor-General in England, or
her Majesty’s Lord Advocate in Scotland, and every action,
bill, plaint, or information, which shall be commenced, prose-
cuted, entered, or filed in the name or names of any other
person or persons than is in that behalf before mentioned, and
every proceeding thereupon had, shall be null and void to all
intents and purposes (w).

 

11 & 12 Vicr. c. 12.

An Act for the better security of the Crown and Government
of the United Kingdom.

[22nd April, 1848.]

3. Offences declared felonies by this Act to be punishable by
transportation or iinprisonment.J—And be it enacted, that if
any person whatsoever, after the passing of this Act, shall,
within the United Kingdom or without, compass, imagine,
invent, devise, or intend to deprive or depose our most Gracious
Lady the Queen, her heirs or successors, from the style, honour,
or royal name of the imperial crown of the United Kingdom,
or of any other of her Majesty’s dominions and countries, or to
levy war against her Majesty, her heirs or successors, within
any part of the United Kingdom, in order by force or constraint
to compel her or them to change her or their measures or
counsels, or in order to put any force or constraint upon, or in
order to intimidate or overawe both Houses or either House of
Parliament, or to move or stir any foreigner or stranger with
force to invade the United Kingdom, or any other of her
Majesty’s dominions or countries under the obeisance of her
Majesty, her heirs or successors, and such compassings, imagina-
tions, inventions, devices, or intentions, or any of them, shall
express, utter, or declare, by publishing any printing or
writing, or by open or advised speaking, or by any overt act
or deed, every person so offending shall be guilty of felony, and

(w) See pp. 210, 251—252, supra. This section is re-enacted by 32 & 33
Vict. c. 24, Sched. IT.
20 &. 21 Vier. c 83. 205

being convicted thereof, shall be liable, at the discretion
of the Court, to be transported beyond the seas for the
term of his or her natural life, or for any term not less
than seven years, or to be imprisoned for any term not
exceeding two years, with or without hard labour, as the Court
shall direct.

20 & 21 Vier. oc. 83.

aln Act for more effectually preventing the Sule of Obscene Books,
Pictures, Prints, and other articles,
[25th August, 1857.]

WHEREAS it is expedient to give additional powers for the
suppression of the trade in obscene books, prints, drawings,
and other obscene articles: Be it enacted by the Queen’s most
excellent Majesty, by and with the advice and consent of the
Lords spiritual and temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as
follows :

1. Justices, dc., may authorize search of suspected premises. |
—lt shall be lawful for any metropolitan police magistrate or
other stipendiary magistrate, or for any two justices of the
peace, upon complaint made before him or them, upon oath,
that the complainant has reason to believe, and does believe,
that any obscene books, papers, writings, prints, pictures,
drawings, or other representations, are kept in any house,
shop, room, or other place, within the limits of the jurisdiction
of any such magistrate or justices, for the purpose of sale or
distribution, exhibition for purposes of gain, lending upon hire,
or being otherwise published for purposes of gain, which com-
plainant shall also state upon oath that one or more articles
of the like character have been sold, distributed, exhibited,
lent, or otherwise published as aforesaid, at or in connection
with such place, so as to satisfy such magistrate or justices
that the belief of the said complainant is well founded, and
upon such magistrate or justices being also satisfied that any
of such articles so kept for any of the purposes aforesaid are of
such a character and description that the publication of them
would be misdemeanor, and proper to be prosecuted as such,
to give authority by special warrant to any constable or police
officer into such house, shop, room or other place, with such
assistance as may be necessary, to enter in the day time, and
if necessary to use force, by breaking open doors or otherwise.
and to search for and seize all such books, papers, writings,
266 APPENDIX C.

prints, pictures, drawings, or other representations as aforesaid,
found in such house, shop, room, or other place, and to carry
all the articles so seized before the magistrate or justices
issuing the said warrant, or some other magistrate or justices
exercising the same jurisdiction; and such magistrate or
justices shall thereupon issue a summons, calling upon the
occupier of the house or other place which may have been so
entered, by virtue of the said warrant, to appear within seven
days before such police stipendiary magistrate or any two
justices in petty sessions for the district, to show cause why
the articles so seized should not be destroyed; and if such
occupier or some other person claiming to be the owner of the
said articles shall not appear within the time aforesaid, or shall
appear, and such magistrate or justices shall be satisfied that
such articles, or any of them, are of the character stated in the
warrant, and that such, or any of them, have been kept for
any of the purposes aforesaid, it shall be lawful for the said
magistrate or justices, and he or they are hereby required, to
order the articles so seized, except such of them as he or they
may consider necessary to be preserved as evidence in some
further proceeding, to be destroyed at the expiration of the
time hereinafter allowed for lodging an appeal, unless notice of
appeal as hereinafter mentioned be given, and such articles
shall be in the meantime impounded ; and if such magistrate
or justices shall be satisfied that the articles seized are not of
the character stated in the warrant, or have not been kept for
any of the purposes aforesaid, he or they shall forthwith direct
them to be restored to the occupier of the house or other place
in which they were seized.

2. Tender of umends, de.]—No plaintiff shall recover in any
action for any irregularity, trespass, or other wrongful pro-
ceeding, made or committed in the execution of this Act, or
in, under, or by virtue of any authority hereby given, if tender
of sufficient amends shall have been made by or on behalf of
the party who shall have committed such irregularity, trespass, or
other wrongful proceeding, before such action brought ; and in
case no tender shall have been made, it shall be lawful for the
defendant in any such action, by leave of the Court where such
action shall depend, at any time before issue joined, to pay into
Court such sum of money as he shall think fit, whereupon such
proceeding, order, and adjudication shall be had and made in
and by such Court as in other actions where defendants are
allowed to pay money into Court.

8. Limitation of actions.|—No action, suit, or information,
or any other proceeding of what nature soever, shall be
brought against any person for anything done or omitted to
20 & 21 Vicr. c 83. 267

be done in pursuance of this Act, or in the execution of the
authorities under this Act, unless notice in writing shall be
given by the party intending to prosecute such action, suit,
information, or other proceeding to the intended defendant,
one calendar month at least before prosecuting the same, nor
unless such action, suit, information, or other proceeding
shall be brought or commenced within three calendar months
next after the act or omission complained of, or in case
there shall be a continuation of damage, then within three
calendar months next after the doing such damage shall have
ceased.

4, Appeal.]—Any person aggrieved by any act or deter-
mination of such magistrate or justices in or concerning the
execution of this Act may appeal to the next general or
quarter sessions for the county, riding, division, city, borough,
or place in and for which such magistrate or justices shall have
so acted, giving to the magistrate or justices of the peace
whose act or determination shall be appealed against, notice in
writing of such appeal and of the grounds thereof, within
seven days after such act or determination, and before the
next general or quarter sessions, and entering within such
seven days into a recognizance with sufficient surety before a
justice of the peace for the county, city, borough, or place in
which such act or determination shall have taken place, per-
sonally to appear and prosecute such appeal, and to abide
the order of, and pay such costs as shall be awarded by such
Court of Quarter Sessions, or any adjournment thereof, and
the Court at such general or quarter sessions shall hear and
determine the matter of such appeal, and shall make such
order therein as shall to the said Court seem meet; and such
Court, upon hearing and finally determining such appeal, shall
and may according to their discretion award such costs to the
party appealing or appealed against as they shall think proper ;
and if such appeal be dismissed or decided against the appel-
lant, or be not prosecuted, such Court may order the articles
seized forthwith to be destroyed: provided always, that it shall
not be lawful for the appellant on the hearing of any such
appeal to go into or give evidence of any other grounds of
appeal against any such order, act, or determination than
those set forth in such notice of appeal.

5, Limitation of Act.])—This Act shall not extend to

Scotland.
268 . APPENDIX C.

44 & 45 Vicr. c 60.

An Act to amend the Law of Newspaper Libel, and to provide
for the Registration of Newspaper Proprietors.
[27th August, 1881.]

WHEREAS it is expedieut to amend the law affecting civil
actions and criminal prosecutions for newspaper libel :

And whereas it is also expedient to provide for the regis-
tration of newspaper proprietors :

Be it enacted by the Queen’s most excellent Majesty, by and
with the advice and consent of the Lords spiritual and tem-
poral, and Commons, in this present Parliament assembled,
and by the authority of the same, as follows:

1. Luterpretation.|—In the construction of this Act, unless
there is anything in the subject or context repugnant thereto,
the several words and phrases hereinafter mentioned shall have
and include the meanings following ; (that is to say),

The word ‘registrar ” shall mean in England the registrar
for the time being of joint stock companies, or such person as
the Board of Trade may for the time being authorize in that
behalf, and in Ireland the assistant registrar for the time
being of joint stock companies for Ireland, or such person as
the Board of Trade may for the time being authorize in that
behalf.

The phrase “ registry office” shall mean the principal office
for the time being of the registrar in England or Ireland, as
the case may be, or such other office as the Board of Trade
may from time to time appoint.

The word “newspaper” shall mean any paper containing
public news, intelligence, or occurrences, or any remarks or
observations therein printed for sale, and published in England
or Ireland periodically, or in parts or numbers at intervals
not exceeding twenty-six days between the publication of any
two such papers, parts, or numbers (.r).

Also any printed paper in order to be dispersed, and made
public weekly or oftener, ov at intervals not exceeding twenty-
six days, containing only or principally advertisements (x).

The word “occupation” when applied to any person shall
mean his trade or following, and if none, then his rank or
usual title, as esquire, or gentleman.

The phrase ‘‘place of residence” shall include the street,
square, or place where the person to whom it refers shall
reside, and the number (if any) or other designation of the
house in which he shall so reside.

(«) See p. 111, supra.
NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. 269

The word “ proprietor” shall mean and include as well
the sole proprietor of any newspaper, as also in the case of
a divided proprietorship the persons who, as partners or other-
wise, represent and are responsible for any share or interest
in the newspaper as between themselves and the persons in
like manner representing or responsible for the other shares
or interests therein, and no other person.

2. Newspaper reports of certain meetings privileged. J—Any
report published in any newspaper of the proceed/ngs of a public
meetiny shall be priniteyed, (F such meeting was lamfully convened.
Sor a lawful purpose and open to the public, and if such renort
was fair and aceurate, and published without malice, and if the
publication of the nutter complained of was tor the public benepit ;
provided always, that the protection intended to be afforded by
this section shall not be available as a detence in any proceeding,
af the plaintiff or prosecutor can show that the defendant has re-
Fused to insert in the newspaper in which the report containing
the matter complained of appeared a rveasonahle letter or statement
of explanation or contradiction by or on behalf of such plaintiff
or prosecutor (y).

3. No prosecution for newspaper libel without fit of Attorney-
General.]—No criminal prosecution shall be commenced ayainst
any proprietor, publisher, editor, or any person responsible for
the publication of a newspaper for any libel published therein,
without the written fiat or allowance of the Director of Public
Prosecutions in England or her Majesty's Attorney-General in
Ireland being first had anc obtained (2).

4. Inquiry by Court of summary jurisdiction as to libel being
for public benefit or betng true.]—A Court of summary juris-
diction, upon the hearing of a charge agaiust a proprietor,
publisher, or editor, or any person responsible for the pub-
lication of a newspaper, for a libel published therein, may
receive evidence as to the publication being for the public
benefit, and as to the matters charged in the libel being true,
and as to the report being fair and accurate, and published
without malice, and as to any matter which under this or
any other Act, or otherwise, might be given in evidence by
way of defence by the person charged on his trial on indict-
ment, and the Court, if of opinion after hearing such evidence
that there is a strong or probable presumption that the jury
on the trial would acquit the person charged, may dismiss
the case ().

(y) This section was repealed by 51 & 52 Vict.c 64,s.2. See sect. £
of that Act, pp. 274—275, infra.

(z) This section was repealed by 51 & 52 Vict. c. 64, s. 8, 7. "., p. 276,
infra,

(a) See pp. 190—192, supra. :
270 APPENDIX C.

5. Provision us to summary conviction for libel.|—If a Court
of summary jurisdiction upon the hearing of a charge against
a proprietor, publisher, editor, or any person responsible for
the publication of a newspaper for a libel published therein,
is of opinion that though the person churged is shown to
have been guilty the libel was of a trivial character, and that
the offence may be adequately punished by virtue of the
powers of this section, the Court shall cause the charge to
‘be reduced into writing and read to the person charged, and
then address a question to him to the following effect : ‘*Do
you desire to be tried by a jury, or do you consent to the
case being dealt with summarily?” and, if such person
assents to the case being dealt with summarily, the Court
may summarily convict him and adjudge him to pay a fine
not exceeding fifty pounds (4).

Section twenty-seven of the Summary Jurisdiction Act,
1879, shall, so far as is consistent with the tenor thereof,
apply to every such proceeding as if it were herein enacted
and extended to Ireland, and as if the Summary Jurisdiction
Acts were therein referred to instead of the Summary Juris-
diction Act, 1848.

6. 22 & 23 Viet. c. 17, made applicable to this Act.|—Every
libel or alleged libel, and every offence under this Act, shall
be deemed to be an offence within and subject to the pro-
visions of the Act of the session of the twenty-second and
twenty-third years of the reign of her present Majesty,
chapter seventeen, intituled “An Act to prevent vexatious
indictments for certain misdemeanors.”

7. Board of Trade may authorize registration of the names of
only a portion of the proprietors of a newspaper. |—Where, in
the opinion of the Board of Trade, inconvenience would arise
or be caused in any case from the registry of the names of
all the proprietors of the newspaper (either owing to minority,
coverture, absence from the United Kingdom, minute sub-
‘division of shares, or other special circumstances), it shall
be lawful for the Board of Trade to authorize the registration
-of such newspaper in the name or names of some one or more
responsible “representative proprietors.”

8. Register of newspaper proprietors to be established.|—A
register of the proprietors of newspapers as defined by this Act
‘shall be established under the superintendence of the registrar(c).

9, Annual returns to be made.|—It shall be the duty of the
printers and publishers for the time being of every newspaper
to make or cause to be made to the Registry Office on or
before the thirty-first of July one thousand eight hundred

(d) See pp. 192, 193, supra. (c) See pp. 210, 211, supra.
NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. 271

and eighty-one, and thereafter annually in the month of July
in every year, a return of the following particulars according
to the Schedule A. hereunto annexed ; that is to say,

(a) The title of a newspaper :

(b) The names of all the proprietors of such newspaper

together with their respective occupations, places
of business (if any), and places of residence (d).

10. Penulty for omission to make annual returns, |—If within
the further period of one month after the time hereinbefore
appointed for the making of any retum as to any newspaper
such return be not made, then each printer and publisher of such
newspaper shall, on conviction thereof, be liable to a penalty
not exceeding twenty-five pounds, and also to be directed by a
summary order to make a return within a specified time.

11. Power to purty to make return. |—Any party to a transfer
or transmission of or dealing with any share of or interest in
any newspaper whereby any person ceases to be a proprietor
‘or any new proprietor is introduced may at any time make
or cause to be made to the Registry Oftice a return according
to the Schedule B. hereunto annexed and containing the
particulars therein set forth (e).

12. Penalty for wilful misrepresentation in or omission from
veturn.|—If any person shail knowingly and wilfully make
or cause to be made any return by this Act required or per-
mitted to be made in which shall be inserted or set forth the
name of any person as a proprietor of a newspaper who shall
not be a proprietor thereof, or in which there shall be any
misrepresentation, or from which there shall be any omission
in respect of any of the particulars by this Act required to
be contained therein whereby such return shall be misleading,
or if any proprietor of a newspaper shall knowingly and wil-
fully permit any such return to be made which shall be mis-
leading as to any of the particulars with reference to his own
mame, occupation, place of business (if any), or place of resi-
dence, then and in every such case every such offender being
convicted thereof shall be liable to a penalty not exceeding
one hundred pounds.

13. Registrar to enter returns in register.|—It shall be the
duty of the registrar and he is hereby required forthwith to
register every return made in conformity with the provisions
of this Act in a book to be kept for that purpose at the
Registry Office and called “the register of newspaper pro-
prietors,” and all persons shall be at liberty to search and
‘inspect the said book from time to time during the hours of
dusiness at the Registry Office, and any person may require

(d) See p. 211, supra, (e) See p. 211, supra.
DT tes APPENDIX C.

a copy of any entry in or an extract from the book to be
certified by the registrar or his deputy for the time being or
under the official seal of the registrar (7).

14. Fees payable for registrar’s services.|—There shall be
paid in respect of the receipt and entry of returns made in
conformity with the provisions of this Act, and for the inspec-
tion of the register of newspaper proprietors, and for certified
copies of any entry therein, and in respect of any other services
to be performed by the registrar, such fees (if any) as the
Board of Trade with the approval of the Treasury may direct
and as they shall deem requisite to defray as well the addi-
tional expenses of the Registry Office caused by the provisions
of this Act, as also the further remunerations and salaries (if
any) of the registrar, and of any other persons employed
under him in the execution of this Act, and such fees shall
be dealt with as the Treasury may direct (/).

15. Copies of entries in and ertracts from register to be evt-
dence. |—Every copy of an entry in or extract from the register
of newspaper proprietors, purporting to be certified by the
registrar or his deputy for the time being, or under the official
seal of the registrar, shall be received as conclusive evidence
of the contents of the said register of newspaper proprietors,
so far as the samé appear in such copy or extract without
proof of the signature thereto or of the seal of office affixed
thereto, and every such certified copy or extract shall in all
proceedings, civil or criminal, be accepted as sufficient primd
Jacte evidence of all the matters and things thereby appearing,
unless and until the contrary thereof be shown (/).

16. Recovery of penalties and enforcement of orders. |—All
penalties under this Act may be recovered before a Court of
summary jurisdiction in manner provided by the Summary
Jurisdiction Acts.

Summary orders under this Act may be made by a Court
of summary jurisdiction, and enforced in manner provided
by section thirty-four of the Summary Jurisdiction Act, 1879 ;
and, for the purposes of this Act, that section shall be deemed
to apply to Ireland in the same manner as if it were re-enacted
in this Act.

17. Definitions.|—The expression ‘‘a Court of summary
jurisdiction” has in England the meanings assigned to it by
the Summary Jurisdiction Act, 1879; and in Ireland means
any justice or justices of the peace, stipendiary or other
magistrate or magistrates, having jurisdiction under the
Summary Jurisdiction Acts.

The expression “ Summary Jurisdiction Acts” has as regards

(7) See p. 111, supra.
NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. 273

England the meanings assigned to it by the Summary Juris-
diction Act, 1879; and as regards Ireland, means within the
police district of Dublin metropolis the Acts regulating the
powers and duties of justices of the peace fer such district, or
of the police of that district, and elsewhere in Ireland the Petty
Sessions (Ireland) Act, 1851, and any Act amending the same.

18. Provisions as to registration of newspaper proprietors not
to apply to newspaper belonging to a joint stock company.|—The
provisions as to the registration of newspaper proprietors
contained in this Act shall not apply to the case of any
newspaper which belongs to a joint stock company duly
incorporated under and subject to the provisions of the
Companies Acts, 1862 to 1879 (9).

19. Act not to extend to Scotland.|—This Act shall not
extend to Scotland.

20. Short title.|—This Act may for ail purposes be cited as
the Newspaper Libel and Registration Act, 1881.

The SCHEDULES to which this Act refers.

 

SCHEDULE A.
Return made pursuant to the Newspaper Libel and Registration

 

Act, 1881.
3 . Places of Places of
Names of Occupations a i fi
in business (if | Resid f
Title of the Newspaper. the of the nip kee ae a ie 7

Proprietors, | Proprietors. Proprietors. | Proprietors.

 

 

 

SCHEDULE B.
Return made pursuant to the Newspaper Libel and Registration

 

Act, 1881.
Names of Names of . Places of Places of
Title of Persons who | Persons who ee business (if | Residence
Newspaper. cease to be become Proprietors any) of new of new

Proprietors. | Proprietors. Proprietors. | Proprietors.

 

(4g) See p. 211, supra,
274 APPENDIX C.

51 & 52 Vicr. co. 64.

An Act to amend the Law of Lnbel.
[24th December, 1888. ]

WHEREAS it is expedient to amend the law of libel: Be it
therefore enacted by the Queen’s most excellent Majesty, by
and with the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament assembled,
and by the authority of the same, as follows:

1. LInterpretation.|—In the construction of this Act the
word “newspaper” shall have the same meaning as in the
Newspaper Libel and Registration Act, 1881 (A).

2. Repeal of 44 & 45 Viet. c. 60, s. 2.]—Section two of the
Newspaper Libel and Registration Act, 1881, is hereby re-
pealed (2).

8. Newspaper reports of proceedings in Court privileged.]—
A fair and accurate report in any newspaper of proceedings
publicly heard before any Court exercising judicial authority
shall, if published contemporaneously with such proceedings, be
privileged: Provided that nothing in this section shall authorize
the publication of any blasphemous or indecent matter (/).

4, Newspaper reports of proceedings of public meetings and of
certain bodies and persons primleged.| —~A fair and accurate
report published in any newspaper of the proceedings of a
public meeting, or (except where neither the public nor any
newspaper reporter is admitted) of any meeting of a vestry,
town council, school board, board of guardians, board or local
authority formed or constituted under the provisions of any
Act of Parliament, or of any committee appointed by any of
the above-mentioned bodies, or of any meeting of any com-
missioners authorized to act by letters patent, Act of Parlia-
ment, warrant under the Royal Sign Manual, or other lawful
warrant or authority, select committees of either House of
Parliament, justices of the peace in quarter sessions assembled
for administrative or deliberative purposes, and the publication
at the request of any Government ottice or department, officer
of state, commissioner of police, or chief constable, of any
notice or report issued by them for the information of the
public, shall be privileged, unless it shall be proved that such
report or publication was published or made maliciously :
Provided that nothing in this section shall authorize the pub-
lication of any blasphemous or indecent matter: Provided
also, that the protection intended to be afforded by this

(A) See pp. 111, 114, 202, supra,
CG) See p. 269, supra.
(2) See p. 110 et seg.
LAW OF LIBEL AMENDMENT Act, 1888. 275

section shall not be available as a defence in any proceedings
if it shall be proved that the defendant has been rejuested to
insert in the newspaper in which the report or other publica-
tion complained of appeared a reasonable letter or statement
by way of contradiction or explanation of such report or other
publication, and has refused or neglected to insert the same :
Provided further, that nothing in this section contained shall
be deemed or construed to limit or abridge any privileze now
by law existing, or to protect the publication of any matter
not of public concern and the publication of which is not for
the public benefit (/).

For the purposes of this section “public meeting” shall
mean any meeting lond fide and lawfully held for a lawful
purpose, and for the furtherance or discussion of any matter
of public concern, whether the admission thereto be general
or restricted (7).

5. Consolidation of actions.]|—It shall be competent for a
judge or the Court, upon an application by or on behalf of
two or more defendants in actions in respect of the same, or
substantially the same, libel brought by one and the same
person, to make an order for the consolidation of such actions,
so that they shall be tried together ; and after such order
has been made, and before the trial of the said actions, the
defendants in any new actions instituted in respect to the
same, or substantially the same, libel shall also be entitled
to be joined in a common action upon a joint application
being made by such new defendants and the defendants in
the actions already consolidated (7).

In a consolidated action under this section the jury shall
assess the whole amount of the damages (if any) in one sum,
but a separate verdict shall be taken for or against each
defendant in the same way as if the actions consolidated
had been tried separately ; and if the jury shall have found a
verdict against the defendant or defendants in more than one
of the actions so consolidated, they shall proceed to apportion
the amount of damages which they shall have so found
between and against the said last-mentioned defendants ; and
the judge at the trial, if he awards to the plaintiff the costs
of the action, shall thereupon make such order as he shall
deem just for the apportionment of such costs between and
against such defendants (0).

6. Power to defendant to give certain evidence in mitigation of

(1) See pp. 110, 123, 130-132, 133, supra,
(mw) See pp. 126—130, supra.

(wn) See pp. 173 —174, supra,

(0) See p. 175, supra.
276 APPENDIX C.

damages.|—At the trial of an action for a libel contained in
any newspaper the defendant shall be at liberty to give
in evidence in mitigation of damages that the plaintiff has
already recovered (or has brought actions for) damages or
has received or agreed to receive compensation in respect of
a libel or libels to the same purport or effect as the libel for
which such action has been brought (7).

7. Obscene matter need not be set forth in indictment or other
judicial proceedings.|—It shall not be necessary to set out in
any indictment or other judicial proceeding instituted against
the publisher of any obscene libel the obscene passages, but
it shall be sufficient to deposit the book, newspaper, or other
documents containing the alleged libel with the indictment
or other judicial proceedings, together with particulars show-
ing precisely by reference to pages, columns, and lines in what
part of the book, newspaper, or other documents the alleged
libel is to be found, and such particulars shall be deemed to
form part of the record, and all proceedings may be taken
thereon as though the passages complained of had been set
out in the indictment or judicial proceeding (q).

8. Order of judge required for prosecution of newspaper pro-
prietor, &c.|—Section three of the forty-fourth and forty-fifth
Victoria, chapter sixty, is hereby repealed, and instead thereof
be it enacted that no criminal prosecution shall be commenced
against any proprietor, publisher, editor, or any person re-
sponsible for the publication of a newspaper for any libel
published therein without the order of a Judge at Chambers
being first had and obtained.

Such application shall be made on notice to the person
accused, who shall have an opportunity of being heard against
such application (7).

9. Person proceeded against criminally a competent witness. |
—tEvery person charged with the offence of libel before any
court of criminal jurisdiction, and the husband or wife of the
person so charged, shall be competent, but not compellable,
witnesses on every hearing at every stage of such charge (s).

Cp) See pp. 62, 169, 173, supra.

(q) This provision is aimed at preventing the recurrence of cases like
Bradlaugh and Besant v. The Queen (1878) (C. A.), 3 Q. B. D. 607; 48
L.J. M.C.5; 26 W. R.410; 38 L. T. 1185 14 Cox, C. C. 68, where the
appellants were indicted for publishing an obscene book and were con-
victed, but the Court for Crown Cases Reserved subsequently quashed
the conviction on the technical ground that the obscene passages in the
book had not been fully set out in the indictment, the book having been
merely referred to therein by name.

(v) See pp. 189, 193, 200—202, supra,

(x) See now the Criminal Evidence Act, 1898 (61 & 62 Vict. v. 35).
INDECENT ADVERTISEMENTS ACT, 1889. 277

10. Extent of Act.|—This Act shall not apply to Svotland.
11. Short title. |—This Act amay be cited as the Law of
Libel Amendment Act, ]&8s.

5) & 53 Vien c 18.

An Act to suppress Indecent Advertisements,
[26th July, 1889.

BE it enacted by the Queen’s most excellent Majesty, by
and with the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament assembled,
and by the authority of the same, as follows :

1. Short trtle.]—This Act may be cited as the Indecent
Advertisements Act, 1889.

2. Commencement of Act.|—This Act shall come into opera-
tion on the first day of January, one thousand eight hundred
and ninety.

3. Summary proceedings against persons affixing, &c., in-
decent or obscene pictures or printed or written matter.|—Who-
ever affixes to or inscribes on any house, building, wall,
hoarding, gate, fence, pillar, post, board, tree, or any other
thing whatsoever, so as to be visible to a person being in or
passing along any street, public highway, or footpath, and
whoever affixes to or inscribes on any public urinal, or delivers
or attempts to deliver, or exhibits, to any inhabitant or to any
person being in or passing along any street, public highway,
or footpath, or throws down the area of any house, or exhibits
to public view in the window of any house or shop, any pic-
ture or printed or written matter which is of an indecent or
obscene nature, shall, on summary conviction in manner pro-
vided by the Summary Jurisdiction Acts, be liable to a penalty
not exceeding forty shillings, or, in the discretion of the Court,
to imprisonment for any term not exceeding one month, with
or without hard labour.

4. Summary proceedings against persons sending others to do
the acts punishable under sect. 3.]—Whoever gives or delivers
to any other person any such pictures, or printed or written
matter mentioned in section three of this Act, with the intent
that the same, or some one or more thereof, should be affixed,
inscribed, delivered, or exhibited as therein mentioned, shall,
on conviction in manner provided by the Summary Jurisdic-
tion Acts, be liable to a penalty not exceeding five pounds, or,
in the discretion of the Court, to imprisonment for any term
not exceeding three months, with or without hard labour.
278 APPENDIX C.

5. Certuin advertisements declared indecent.|—This section
declares that advertisements of a certain specified nature shall
be deemed to be printed or written matter within the meaning
of section 3 of this Act.

6. Constable may arrest on view of offence.|—Any constable
or other peace officer may arrest without warrant any person
whom he shall find committing any offence against this Act.

7. Interpretution.|—In this Act the expression “ Summary
Jurisdiction Acts ”—

In England means the Summary Jurisdiction (English)

Acts within the meaning of the Summary Jurisdiction
Act, 1879;

In Scotland means the Summary Jurisdiction (Scotland)
Acts, 1864 and 1881, and any Acts amending the same ;
and

In Ireland means within the police district of Dublin metro-
polis the Acts regulating the powers and duties of justices
of the peace for such district, or of the police of such dis-
trict, and elsewhere in Ireland the Petty Sessions (Ireland)
Act, 1851, and any Act amending the same.

54 & 55 Vicr. c. 51.

An Act toamend the Law relating to the Slander of Women.
[5th August, 1891. ]

Bz it enacted by the Queen’s most excellent Majesty, by and
with the advice and consent of the Lords Spiritual and Tem-
poral, and Commons, in this present Parliament assembled,
and by the authority of the same, as follows :

1. Amendment of law.]—Words spoken and published after
the passing of this Act which impute unchastity or adultery
to any woman or girl shall not require special damage to
render them actionable (t).

Provided always, that in any action for words spoken and
made actionable by this Act, a plaintiff shall not recover more
costs than damages, unless the judge shall certify that there
was reasonable ground for bringing the action (2).

2. Short title and extent.|—This Act may be cited as the
Slander of Women Act, 1891, and shall not apply to Scotland.

(t) See pp. 20, 37, supra.
ILLEGAL PRACTICES PREVENTION ACT, 1895. 279

58 & 59 Vier. oc. 40.

aln Act to amend the Corrupt and Illegal Practices Prevention
Act, 1883.
[6th July, 1895.]

BE it enacted by the Queen’s most excellent Majesty, by
and with the advice and consent of the Lords Spiritual
and Temporal, and Commons, in this present Parliament
assembled, and by the authority of the same, as follows:

1. Certain false statements concerning a candidate to be an
illegal practice.|—Any person who, or the directors of any
body or association corporate which, before or during any
parliamentary election, shall, for the purpose of affecting
the return of any candidate at such election, make or pub-
lish any false statement of fact in relation to the personal
character or conduct of such candidate, shall be guilty of
an illegal practice within the meaning of the provisions
of the Corrupt and Illegal Practices Prevention Act, 1883,
46 & 47 Vict. ¢. 51, and shall be subject to all the penalties
for and consequences of committing an illegal practice in the
said Act mentioned, and the said Act shall be taken to be
amended as if the illegal practice defined by this Act had been
contained therein (7).

2. Evidence on hearing of charge under the Act. |—No person
shall be deemed to be guilty of such illegal practice if he
can show that he had reasonable grounds for believing, and
did believe, the statement made by him to be true. Any
person charged with an offence under this Act, and the
husband or wife of such person, as the case may be, shall
be competent to give evidence in answer to such charge (w).

3. Injunction against person making false statement.|—Any
person who shall make or publish any false statement of
fact as aforesaid, may be restrained by interim or perpetual
injunction by the High Court of Justice from any repetition
of such false statement, or any false statement of a similar
character, in relation to such candidate, and for the purpose
of granting an interim injunction, prima facie proof of the
falsity of the statement shall be sufficient (z).

4, Candidate exonerated in certain cases of rllegal practice
by agents.]|—A candidate shall not be liable, nor shall be
subject to any incapacity nor shall his election be avoided,

 

(wu) Ellis v. National Union of Conservative and Constitutional
Associations and others, Times of October 3rd 1900; Law Times for
October 6th, 1900; Le Borough of Sunderland, 5 OM. & W. 53. See
pp. 179, 187-—188. supra.

(c) See now the Criminal Evidence Act, 1898 (61 & 62 Vict. ¢. 36),
280 APPENDIX C.

for any illegal practice under this Act committed by his
agent other than his election agent, unless it can be shown
that the candidate or his election agent has authorized or
consented to the committing of such illegal practice by
such other agent, or has paid for the circulation of the
false statement constituting the illegal practice, or unless
upon the hearing of an election petition the election court
shall find and report that the election of such candidate
was procured or materially assisted in consequence of the
making or publishing of such false statements.

5. Short title.|—This Act may be cited as the Corrupt
and Illegal Practices Prevention Act, 1895, and shall be
constrned as one with the Corrupt and Illegal Practices
Prevention Act, 1883, and that Act and this Act may be
cited together as the Corrupt and [legal Practices Pre-
vention Acts, 1883 and 1895.

 
INDEX.

ABATEMENT,
of a suit by death of plaintiff or defendant, 163, 164.

ABSOLUTE PRIVILEGE,
what constitutes, 99.
cases of, are—
(1) statements made in parliament, or in the course of
judicial, naval, military, orstate proceedings, 103-109.
‘3s reports, &c., published by order of parliament, 109, 110.
3) reports in a newspaper of proceedings in a Court of
justice, if published contemporaneously with such
proceedings, 110-115.

ABSTRACTS,
of Parliamentary Reports, when privileged, 109.
of reports of judicial proceedings, when privileged, 110, 117-119.

ABUSE,
mere general words of, need not be justified if gist of libel is
justified, 86.
vulgar, if spoken, not actionable without special damage, 27.

ACCIDENTAL PUBLICATION,
civil liability for, 17, 18, 37-38.
criminal liability for, 204-206.

ACCORD AND SATISFACTION,
what constitutes, 160.
a good defence to an action, zbid.
who may make an agreement of, aid.
must be for valuable consideration, tid.

ACCURATE,

and fair, what is, 117.

reports must be, 110, 115, 122, 123.
ACT,

of state, 109.

ACTIO PERSONALIS MORITUR CUM PERSONA, 163.

ACTION, ;
assessment of damages in a consolidated, 175.
apportionment of costs _,, 55 abid.

Cy
INDEX.

ACTION —continued.
consolidation of, 173, 174.
can only be in cases of same or substantially
the same libel, zbed.
costs of, 179 180.
fair and bond fide comments on, after conclusion, no libel, 88, 89.
must be brought within what time, 162.
and where, 19, note (f).
no comment on, till concluded, 88, 179.
previous, a good defence, 160, 161.
report of, where privileged, 88, 99, 100, 110 et seg., 115 et seg.
who is liable to, for libel in newspaper or journal, 62-63.

ACTION ON THE CASE, 3-4.

rule as to proving damage in, 23.
“ACTIONABLE per se,”

what words are, 19, 20.
ACTIONS,

limitation of, 162-163.

consolidation of, 173-175.

ACTS,
of public men, fair and bona fide comments on, 96.

ADMINISTRATION ACTION,
libel by receivers appointed in an, 164.

ADMINISTRATION OF JUSTICE,
a matter of public interest, 97.
articles in newspaper reflecting on, 85, 88, 94-95, 97, 178-179.
fair and bond fide comments on, no libel, 88, 94-95.
no comment allowed until trial is concluded, 88-89, 178-179.

ADMINISTRATORS,
cannot sue or be sued for libel or slander, 163.
of deceased plaintiff, position of, 164.

ADMIRALTY,
report by Board of, privileged, 96.

ADMISSION,
of improper evidence, when ground for new trial, 180-181, 182.
of reporters, 126, 151.

ADULTERATION OF GOODS,

to impute, to a tradesman, actionable per se, 4, 35.

ADULTERY,
words imputing, to a woman or girl, do not require proof of
special damage to support action for slander, 20, 37.

ADVERTISEMENT,
of cure may be criticised, 98.
indecent, may be destroyed, 199.
of tradesmen, may be criticised, 98.
in public paper, no privilege for, when, 141.

(2)
INDEX.

ADVOCATE,
statements by, when privileged, 104-105.

AFFAIRS OF STATE,
a matter of public interest, 95.
fair and bond fide comments on, no libel, 89, 95.

AFFIDAVITS,
are privileged, 104-105.
in support of application to serve notice of writ out of jurisdic-
tion, precedent of, 233.

AGENT,
and principal, 16-18, 63-67, 204-206.
command of principal no defence, 65-66.
innocently publishing a libel, 16-18, 63-67, 189, 204-206.
company or corporation, when liable for libel or slander, pub-
lished by, 78 et seg.

AGGRAVATION OF DAMAGES,
evidence in, what may be given as, 165 et seq.
facts in, are in practice inserted in Statement of Claim, 216.

AGREEMENT,
to accept apologies from defendant, 160.

ALIEN,
enemy cannot sne, 75.
friend can sue, red.
friend must generally give security for costs, ibid.

AMENDS,
evidence of, in mitigation of damages, 169.

AMUSEMENT,
places of, are ‘‘ of public interest,” 97.

ANNUAL RETURN,
of the title of a newspaper and of names of proprietors, Xc.,
printers and publishers to make, 211.

ANTICIPATION,
restraint on, 70.

ANXIETY,
when jury may consider, 22, 168.

APOLOGY,

as a defence under Lord Campbell’s Act, 158, 159.

may not be pleaded with a defence denying liability, 159.

notice of intention to give evidence of, in mitigation of damages,
169.

publication of, agreement to accept when executed is a good
defence to an action, 160.

should be full and prominent, 159.

(3)
INDEX.

APPEAL,
is by way of motion for new trial, 180-184, 232.
precedent of notice of motion, 249.
APPORTIONMENT,
of damages, in consolidated actions, 175.
of costs, ebed.
ARCHITECT,
libel on, 7.
slander on, 35.
ART,
fair and bond fide comments on, no libel, 98.

ASSESSMENT,

of damages in a consolidated action, 175.

ASSIGNEE,
of a bankrupt may not sue for libel on bankrupt, 77.

ASTERISKS,
may be actionable if showing plaintiff was referred to, 5.

AUTHOR,
fair and bond fide comment on work of, no libel, 89, 91, 97-98.
liability of, for libel in newspaper, 64, 200, 201.

AUTHORITY,
to another to publish a libel, as regards civil liability, 16-19,
63-67.
to another to publish a libel, as regards criminal liability, 2041-206.

BAIL,
for appearance at trial, magistrate will accept reasonable, 192.

BANKRUPT,
may sue for libel or slander, 72, 77, 78.
right of action of, does not pass to trustee, 77.

BANKRUPTCY,
imputation of, to trader, actionable per se, 35.
Act, 1882. .77.

BARRISTER, ‘
communications between client and, when protected from dis-
closure, 225, 226, 230.
libel on, what is, 8.
privilege of, 104, 105, 106.
slander on, what is, 34-35.

BELIEF,
in truth of charge, how far essential to qualified privilege, 37,
99-100, 141, 152 e¢ seq.
no defence except in cases of qualified privi-
lege, 37.
in truth of libel, evidence of, in mitigation of damages, 171.

(2)
INDEX.

*“ BEYOND THE SEAS,”
Statute of Limitations does not run, 162.
what is, abid.

“BLACK LISTS,”
when privilesed, 121, 140.

BLASPHEMOUS WORDS,
uot ee in reports, 110, 115, 123, 131, 133.
publication of, a crime, 196,
what are, bid.

BOARD OF ADMIRALTY,
report by, is privileged, 96.

BOARD OF DIRECTORS,
report of meeting of, when privileged, 128-130, 132.

BOARD OF GUARDIANS,
fair and bond fide comments on, no libel, 97.
report of meetings of, when privileged, 130.

BOARD OF TRADE,

powers of, under Newspaper Libel and Registration Act, 1881..
270-272.

BONA FIDE,
comment on matter of public interest, what is, 91-95.

BONA FIDES,
of defendant, no defence except on occasion of qualified privilege,
37-388, 99-100, 141, 152 eé seq.
in cases of slander of title, 40-41.
goods, 46-47.
may be proved in mitigation of damages, 171.
required in all fair comments, 93.

BOOK,
fair and bond fide comment on, no libel, 89, 97-98.
libellous, sale of, by bookseller’s servant, 16-18, 65-67, 204-206.
not within protection given to “newspapers” by the Acts of
1881 and 1888. .111-112.
obscene, statute for preventing sale of, 265-267.
may be svized and destroyed by order of magistrate, 198.
must bear the name and address of printer, 210.

BOOKSELLER, ;
liability of, for sale of libellous publication, 16-18, 63-65, 200,
204 et seq.
libel on, 4.
slander on, 35-36.
BURDEN OF PROOF,
in slander of title, 39.
in slander of goods, 45.
in cases of privilege, plaintiff must prove malice, 9:)-100, 152.
on party who alleges words did not lear their natural and
ordinary meaning, 10.

(5 )
INDEX.

BURGLARY,
a charge of, is actionable per se, 26.
BUSINESS,
loss of general, when sufficient to support action for slander, 22-24.

BYSTANDERS,
presence of, does not always destroy privilege, 151-152.

CAMPBELL’S (LORD) ACT,
defence of apology, and payment into Court under, 158.
defence under, precedent of, 246-247.
offer of apology admissible as evidence in mitigation of damages
under sect. 1. .169. =
libel inserted without actual malice and without gross negligence,
and apology tendered, sect. 2..158, 219-220.
liability of employer for acts of servant under sect. 7. . 204-206.
defence that words complained of are true and for the public
benefit under sect. 6. .203-204.
is not applicable to blasphemous, seditious, or obscene words,
ibid,
nor to hearing before magistrates, 191.
payment into Court under sect. 2. .158-159, 219-220.
text of, 259-261.
CANDIDATE,
false statements as to, 179, 187-188.
for parliament or public office, acts of, comments on, 96.
“CANT” TERMS,
construction of, 10-11.
CARDS,
cheating at, 86, 223.
CARICATURE,
may be a libel, 3.
CAUSES OF ACTION,
joinder of, 52, 56-58.
separate and distinct by two or more persons, cannot he joined, 53.
CERTIFICATE,
of entry in register of newspapers, 211.
that publication is by order of parliament, all proceedings stayed
on, 109.
CEERTIORART,
writ of, precedent of statement of claim in astion for libel moved
into High Court by, 242.

CHALK MARKS,
may be a libel, 3,

CHAMBERS,
judge at, order of, when necessary for criminal prosecution, 200.
report of proceedings in judges, privileged, 116.

(6)
INDEX.

CHARACTER,
evidence of plaintifi’s good, not admissible, unless attacked, 166.
bad, when admissible in mitigation of
damages, 169, 172, 222. f
of clerks or servants,—privileged communication, 145-146,

CHRISTIANITY,
publications against, 196.

CIRCULARS,
of tradesmen, fair and bond fide comments on, no libel, 98.
when conditionally privileged, 137, 138, 141, 1-6.

CIRCULATION,

of newspapers, interrogatories as to, 228, 229.

CIRCUMSTANCES,
of publication may aggravate damages, 165.

CIVIL PROCEEDINGS, defences to, 81-82.
(1) justification, 83-87.
(2) fair and bond fide on matter of public interest, 89-98.
(3) privilege, 98-152.
(4) apology, 158-159.
(5) accord and satisfaction, 160.
(6) release, ibid.
(7) res judicata, 160-161.
(8) Statute of Limitations, 162-163.
(9) death of plaintiff or defendant, 163-164.
forms aud precedents in, 233-249.
hints as to conduct of, 209-232.

CLERGY AND CLERGYMEN,

bishop’s charge to, conditionally privileged, 140.

communication between curate and vicar conditionally privileged,
abid.

communication between curate and incumbent of another parish
conditionally privileged, aid.

communication to bishop concerning, conditionally privileged, 1-47.

communication between parishioner and vicar conditionally
privileged, eid.

criminal information against newspaper for defamatory observa-
tions concerning, 186.

libel on, 7, 8.

slander on, when actionable, without proof of special damage,
32, 33.

statement by, about church architect, when privileged, 149.

CLERK,
character of, a privileged communication, 145.

publication to a, 14.
slanders on, actionable per se, 36.

Cry
INDEX.

CLIENT,
and counsel or solicitor, communications between, to what
extent privileged, 105-106.
statements to protect, are privileged, when, 137-138, 148.

CO-DEFENDANTS,
joining husband and wife as, 70.

COMMAND,
of principal, no defence for agent, 16-18, 65-67, 200, 204.

COMMENT,
bond fide belief in truth of, no defence in itself, 90, 94.
definition of, 87, 88.
distinction between report and, abed.
exaggerated, not necessarily unfair, 91.
fair and bond fide, what is, 91-92.
on matter of public interest not privileged, but
no libel, 90.
functions of judge and jury in regard to, 89, 92.
general rules to be observed, 91-95.
must be on actual fact, 94.
on administration of public institutions, 97.
on advertisements, 98.
on anything which invites public attention and criticism, bid.
on architecture, zbid.
on art, tbed.
on authors, ibid.
on books, 93, 98.
on conduct of public men, 96-97.
on ecclesiastical matters, 97.
on government, 95.
on judicial proceedings, 96-97.
not allowed till proceedings terminate, 88-89, 179.
on legal matters, 97.
on literature, 88, 92, 93, 97.
on local affairs, 97.
on parliament and committees thereof, 95.
on places of public amusement or entertainment, 97.
on state matters, 95.
when a contempt of court, 88-89, 164, 179.

COMMERCIAL TERMS,
construction of, 10-11.

COMMISSION,
proceedings of royal, may be criticised, 95.

COMMISSIONERS,
meetings of, reports of, privileged, 130-131.

COMMITTAL,
for trial in prosecutions for libel, 192.

(8 )
INDEX.

COMMITTEE,

meetings, what reports of, privileved, 130, 131,
may be criticised, 95.
of House of Parliament, petition to, may be criticised, bid.
of lunatic,
duties of, 76.
must be joined as co-plaintiff, b/d.
must obtain leave of Court before suing, ibid.

COMMON INTEREST,

communications as to matters of, conditionally privileged, 101,
138-143.

COMMON LAW,

if publication proved and matter libellous, magistrate must
commit at, 189-190.

master liable, civilly and criminally, at, for acts of servant,
63-65, 205.

privilege at, for reports of judicial proceedings, 116.

COMPANY,

comments on, 98.

joint stock, not bound to register newspaper belonging to it, 211.

railway, not liable to action for publishing conviction of pas-
senger for breach of bye-law, if facts stated accurately, 84-85.

reports of meetings of shareholders of, when privileged, 127-130,
132.

when action maintainable by or against, 78.

COMPENSATION,

from other sources, may be proved in mitigation of damages,

when, 169, 173.

COMPETITION,
in trade, no ground of action, 48-49.

COMPOSER,
of libel, liability of, 64, 66, 200.

COMPOSITOR,
liability of, 66, 200.

CONDUCT,
of defendant may aggravate damages, 165, 166.

of a civil action, 209-232.
of criminal proceedings, 188-195.

CONFIDENTIAL COMMUNICATIONS,
when privileged, 143-144.

CONSIDERATION,
necessary, to accord and satisfaction, 160.

CONSOLIDATION,
of actions, 54, 173. ;
assessment of damages in, 175,

Ties (33 U
INDEX.

CONSTRUCTION,
function of the innuendo, 13, 215--216.
of libel, duties of judge and jury in a civil action, 10.
in a criminal case, libel or no libel a question for the
jury, 206.

CONTAGIOUS DISEASE,
verbal imputation of, actionable without proof of special damage,
20, 27-28.

CONTEMPORANEOUS,
report of trial to be absolutely privileged must be, 110 et seq.
what is, 114-115.

CONTEMPT OF COURT,
comment on case before conclusion thereof may be, 88-89, 165,
178-179.

CONTRACT,
as to printing a libel, not enforceable, 61.

CONTRADICTION,
letter of, effect of refusal to publish, 123, 130-131, 133.

CONTRIBUTION,
none between tort feasors, 61.

CONTROVERSY,
newspaper, a matter of public interest, 97-98.

CONVICTION,
of criminal court, accusation of whether libellous, 84-85.
of passenger for breaking bye-law, when railway company may
publish, 84-85.
summary before magistrate, 193, 198.

CO-PLAINTIFES,
joining husband and wife as, 70.

COPYING,
libels from another newspaper, evidence of, when admissible in
mitigation of damages, 62, 169,
171-178.
no defence, 62, 171.
position of defendant who has
incurred liability in, 62, 167,
175.
CORPORATION,
comments on, 97.
liability of, on a privileged occasion, guere, 81.
mualice of, abid.
when action maintainable by or against, 78-81.

CORRUPT PRACTICES PREVENTION ACT, 1895..179, 187-
188,

(10 }
INDEX.

COSTS,
appointment of, in consolidated action, 175.
in action by or against a married woman, 69.
“ good cause” for depriving of, what is, 180.
if action tried with jury, follow the event, unless for good cause
judge otherwise orders, 179.
in discretion of judge, if action tried without a jury, did.
of action by and against infant, who is liable for, 75.
in action under Slander of Women Act, 1891. .37.
security for, 58, 59, 213.
where apology under s. 2 of Lord Campbell’s Act has been
pleaded, 220.
COUNCIL,
county or town, fair and bond fide comments on proceedings of,
no libel, 97.
reports of, privileged, 130, 131.
COUNSEL,
communications between client and, when protected from dis-
closure, 225, 226, 230, to what extent privileged, 105.
libel on, 8.
privilege of, 99, 104, 105.
report of speech of, 85-86.
slander on, 34, 35.

COUNTY COUNCIL MEETING,
fair and bondi fide comments on, no libel, 97.
for granting Heences not a Court recognized by law, 108.
reports of, privileged, 130-131.

COUNTY COURT,
no jurisdiction in libel except by consent, 19, note (/).
remission of actions to, 59, 78, 213.

COUNTY COURT JUDGE,

proceedings of, may be criticised, 96.

report of proceedings before, privileged, 110, 115, 116.
COURT MARTIAL,

proceedings of, are privileged, 108.

COURT OF APPEAL,
jurisdiction of, as to new trial, and entering judgment in lieu
thereof, 184.

COURT OF SUMMARY JURISDICTION,
hearing before, 189-193.
power to seize and destroy obscene publications, 198.
summarily convict for publication of indecent advertise-
ments, 198-199.
COURTS OF JUSTICE,
fair and bond fide comments on, nv libel, 89, 97.
proceedings in, what are, 116-117.
comment on, what is, 91-95, 96.
when allowed, 88, 178-179.
how different from report, 87-88.

( 11 ) U2
INDEX.

COURTS OF JUSTICE—continued.
reports of, when privileged, and to what extent, 110-119.
statements made before, when absolutely privileged, 103, 104-108.

CREDITORS,
letters between, as to liquidation, when privileged, 140.
meeting of, report of, not privileged, 132.

CRIME,
general accusation of, actionable per se, 26.
publication of libel is a, 1, 185.
statements made to prevent, 134-135.
words imputing, actionable per se, 26.
justification of, 85.

CRIMINAL INFORMATION, 194-195.
procedure in applying for, zbid.
trial of, ibid.
two kinds of, zbid.
when granted, ibid.

CRIMINAL OFFENCE,
imputation need not be of an indictable offence, 26.
in accusations of, no need to prove special damage, 20.

CRIMINAL PROCEEDINGS,
can be taken for libel, 185.
before magistrate, 189-193.
by indictinent, 189.
by information, 194.

CRIMINAL PROSECUTION,
for libel, procedure on, 188-195.
when order of judge required for, 200-202.

CRITIC,
duties of, 88, 91-95.

CRITICISM. See Comment.

CROWN OFFICE INFORMATION, 194-195,
CROWN OFFICE RULES, 1886. .195.
CUSTOM,

loss of general, when evidence of is admissible and snfficient to
support action for words not actionable per se, 23-24.

DAMAGE,
presumed in libel on proof of publication, 19.
special, must be proved in slander, except in four cases, 20.
special, what is, 21-25, 167-168.

( 12 )
INDEX.

DAMAGES,
amount of, need not be specified in Statement of Claim, 217, 236.
assessment Of, and apportionment of costs in consolidated action,
1h;
evidence in aggravation of, for plaintiff, 165-168.
evidence in mitigation of, for defendant, 169-173.
DEAD,

libel on the, not actionable, 185.
criminal proceedings for, zbid.
DEAF ANT) DUMB,
person, may publish slander, 2.

DEATH,
of plaintiff or defendant before verdict, effect of, 163.

of plaintiff after final judgment, effect of, 164.

DEBATES,
at meeting of board of guardians, report of, when privileged,
130-131.

at meeting of local authority, reports of, when privileged, ibid.

at public meeting, report of, when privileged, 123 e¢ seq.

at school board meetings, reports of, when privileged, 130-131.

comments on, when allowed, 88, 89, 95-97.

in Parliament, reports of, when privileged, 122.

in county council meeting, reports of, when privileged, 130,
note (c), 131, note (d).

reports of, when privileged, 99, 100, 109, 120, 121, 122, 123,
130, 132.

DECEASED PERSON,
libels on, 185.
DECLARATION,
in Lord Mayor’s Court, precedent of, 241.

DEEDS OF ARRANGEMENT ACT, 1887. .121.

DEFAMATORY WORDS,
actionable when published, 1, 13.
criminal proceedings for publication of, 185 et seq.
in certain cases not actionable in the interests of public policy,
99.
what are, 1-9, 10, 185.

DEFENCE,
to an action, what is, 81-82.
accord and satisfaction, 160.
apology, 158-159.
death of plaintiff or defendant, 163-164.
fair and bond fide comment on a matter of public interest,
89-98.
justification, 83-87.
master’s commands no defence, 16-18, 65-67, 205.
previous action, 160-161.
privilege, 99-152.

(13)
INDEX.

DEFENCE—continued.
to an action—continued.

release, 160.

Statute of Limitations, 162-163.

that words are not libellous, 1, 82, 90, 203.

that there has been no publication, 13, 17, 82, 199, 203.

that words do not relate to the plaintiff, 3-4, 82, 203.

must not be embarrassing, 221.

of certain kinds, must be expressly raised, 82.

precedents of, 244-248,

to criminal proceedings, what is, 202.

fair and bond fide comment on a matter of public interest, 203.

privilege, bed.

that publication was made without the authority or know-
ledge of the defendant, and did not arise from want of due
care or caution on his part, 202, 204-205.

that words are true, and their publication is for the public
benefit, 186, 202, 203-204.

that there has been no publication, 187, 199-200, 203.

that words are not libellous, 185, 203.

that words do not relate to the complainant, 186, 203.

DEFENDANT,
death of, destroys right of action, 163-164.
out of jurisdiction, modes of suing, 212.
when not liable, for publication of libel, 13, 16-18, 199, 204.

DEFENDANTS,
joint, no contribution between, or indemnity to, 59, 61.
who are liable as, ibid., 161.

DEFINITION,
- of libel and slander, 1.

DELIVERY,
of libel to third person, when a publication, 13-18, 199-200.

DENIAL OF LIABILITY,
cannot co-exist with payment into Court, 159, 219.

DESTRUCTION,
of obscene books or pictures by magistrate’s order, 198.

DETAILS,
of a charge, need not be justified in every case, 86.

DIRECTORS,
report of meeting of board of, not privileged, 132.

DISABILITY,
infancy, lunacy, beyond seas, 162-163.

DISCOVERY,
of author of libel, 64, 209-211, 228.
of printer, 211.
of proprietor, 210, 211.
of publisher, 210.
of documents, 224-227,

( 14 )
INDEX.

DISEASE,
contagious, words imputing, when actionable per se, 20, 27-28.

DISTINCTION,
between report and comment, importance of, 87.
between libel and slander, 3.

DISTRIBUTOR,
of newspaper containing a libel, liability of, 16-18, 65-67, 200.

DIVISIBLE,
when libel is, defendant can justify one part and admit liability
as to another part, 87.

DOCTOR,
libel on, 8.
privileged communications as to, 121-122, 147, 148.
slander on, 28, 33.
Statement of Claim for libel on, 236.

DOCUMENTS,
discovery of, 224-227.
which are absolutely privileged from production, 225, 226.

DUMB
person may publish slander, 2.
DUTY,
statements made in discharge of, are privileged, when, 101,
143-152.

ECCLESIASTICAL MATTERS. See Cimrey.
fair and bond fide comments on, no libel, 97.

EDITOR,
cannot be compelled to discover name of author, 210, 228.
cannot recover from employer, 61.
command of employer no defence to, 65-66.
duty of, 88, 128.
liability of, for libel in newspaper, 64.
proprietor for acts of, 61.
no prosecution against, without judge’s order, 200-202,

EFFIGY,
inay be a libel, 3.

ELECTION,
false statements at an, 179, 187-188.

EMBARRASSING,
when defence can be struck out as, 221.

EMPLOYER,
liability of, to an action, 63 et sey.
to criminal proceedings, 204 ¢¢ seq.

ENDORSEMENT,
of writ, precedent of, 234.

( 15 )
INDEX.

ENEMY, ALIEN,

cannot sue here, 75.

ENTERTAINMENT,

place of, comment on, 97.

ENTICEMENT,
a statement obtained by, is privileged, when, 137,

ENTRIES,
copies of, in register of proprietors to be evidence, 211, 272.

ERRONEOUS BELIEF
no defence, 141.

EVIDENCE,
as to meaning of libel, when allowed, 10-11.
copies of entries in register to be, 211, 272.
in aggravation of damages, 165-168.
in mmitigation of damages, 169-173.
on hearing before magistrates, 189-193.
of person proceeded against criminally, and husband or wife of
such person admissible, 276.
improper admission or rejection of, ground for new trial, 180, 182.

EX OFFICIO,
criminal information, what is, 194.
procedure on, tbid.

LX PARTE PROCEEDINGS,
extracts from parliamentary reports, when privileged, 109.
registers kept pursuant to statute, 120.
reports of, privileged, 116--117.

EXAGGERATION,
effect of, when occasion prim facie privileged, 142, 155, 156.
even if gross, may still be “fair comment,” 91.
if there is gross, plea of justification will fail, 84, 86.

EXCESSIVE,
damages, may be reduced, in lieu of new trial, 184.
lancuage, effect of, when occasion primd facie privileged, 142.
not always a proof of malice, 155, 156.

EXECUTORS,
cannot sue for libel on testator or be sued for libel published by
him, 163.
may appear on an appeal, when, 164.

EXPLANATION,
of report, refusal to publish, 123, 131, 133.

EXTRACTS,
from registers are privileged, when, 120, 121.
from register of newspaper proprietors are evidence, 272.
from parliamentary reports are privileged, when, 109.

( 16 )
INDEX.

FAIR AND ACCURATE REPORT. See Report.
FAIR COMMENT. Sve Comrent.

FALSITY,
of words presumed in action for libel, 45-46, not in action of
slander of title, 39.

FATHER,
statements made to, re his child, may be privileged, 147.

FELONY,
imputation of, actionable per se, 26.
justification of charge of, 84-85; and see cases referred to on
p. 85, note (7).

FEME SOLE, 69.

FICTION,
libel in work of, 12.

FICTITIOUS NAME,
plaintiff may show that he was referred to by, 5.

FINE,
for not making annual returns required by Newspaper Libel and

Registration Act, 1881. .271.
for publishing indecent advertisements, 277.
for publishing libel, 185.
on sumniary conviction by magistrates, 193.

FIRM,
actions by, 57-58.
joinder of, with actions by a partner, ¢hi/.

“« FISHING,”
interrogatories, not allowed, 229.

FOREIGN FIRM,
issue of writ against, 73.
judgment against, effect of, cbid.

FOREIGN PRINCIPAL,
how to sue for libel published by agent here, 73, 212.

FORGERY,
a charge of, is actionable per se, 26.

FORMER PUBLICATION,
of same libel by others, no defence, 62, 171.
when admissible in evidence, 169, 171-172, 173.

FOX’S LIBEL ACT (32 Geo. 3, c. 60), 207, 250-251.

FRAUD, Me
allegation of against a corporation is actionable, 80.

(17 )
INDEX.

FUNCTIONS,
of judge and jury in a civil action, 10, 19, 89, 101, 180, 183.
in criminal proceedings, 206, 207.

GAMEKEEPER,
slander on, 36.

GENERAL BUSINESS, LOSS OF,
when sufficient to support action of slander, 23-24, 50-51.

GENERAL VERDICT,
in criminal proceedings jury may give, 206-207.

GESTURES,
may be a slander, 1, 2-3.

GIRL,
imputation of unchastity to, is actionable per se, 37.

GOOD CAUSE,
for depriving plaintiff of costs, what is, 180.

GOOD CHARACTER,
of plaintiff, evidence of, when admissible, 166.

GOOD FAITH,
may be proved, in mitigation of damages, 171.

GOODS, SLANDER OF,
what is, 44.
what plaintiff must prove in action for, 45.

GOVERN MENT,
everything concerning, may be criticised, 95.
notices and reports, publication of, when privileged, 133.
official, communication to, generally privileged, 134-135.

GRAND JURY, 193.
GUARDIAN AD LITEM,

infant defends by, 75.
when liable for costs, zbid.

GUARDIANS,
fair and bond fide comment on proceedings of, no libel, 97.
report of proceedings of board of, privileged, 130.
statements made at meetings of board of, when privileged, 151.

HANDBILL,
of tradesman, may be commented on, 98.

HANDWRITING,
primd facie publication of libel, if manuscript in defendant's,
18.

(18 )
INDEX.

HEADING,
of article may be libellous, 83, 84, 119.
must be justified, ibid.

HUSBAND,
and wife, joinder of, in actions, 70.
can be sued by wife for libel or slander, when, 16.
liability of, for wife’s libel or slander, 71.
libel uttered by, to wife, not published, 15.
of person charged with crime of libel competent but not com-
pellable witness, 276.

ILLEGAL PRACTICES PREVENTION ACT, 1895..179, 187,
188, 279.

IMPRISONMENT,
for publication of libel, 185, 260.
for threatening to publish a libel, 260.

INDECENT ADVERTISEMENTS, 198-199, 278.

INDECENT MATTER,
publication of, in report of judicial proceedings, not privileged,
110, 115.
or in report of public meeting, 123.
or in report of vestry meetings, &c., 130.

INDECENT PUBLICATIONS,
seizure and destruction of, by order of magistrates, 198.

INDEMNIFICATION,
promise of, for publishing a libel, is void, 61.

INDEMNITY,
from negligent editor or author of libel, proprietor cannot

enforce, 61. eat
from co-defendant in case of joint publication, unenforceable, 59,

61.

INDICTABLE OFFENCE,
a slander need not impute an, to be actionable per se; imputa-
tion of criminal offence sutticient, 26.

INDICTMENT,
for libel, procedure on, 189-193.
order of judge, when required for, 200-202.

INDORSEMENT OF WRIT,
in actions of libel or slander, precedent of, 234.

INFANCY, ;
Statute of Limitations does not run in, 162.

INFANT,
can sue or be sued, for libel and slander, 72, 75.

(19)
INDEX.

INFORMATION, CRIMINAL,
ex officio, what is, 194.
procedure on, zbid.
two kinds of, bed.

INGRATITUDE,

charge of, libellous, 6.

INITIALS,
may show that plaintiff was referred to, 5.

INJUNCTION,
Court has jurisdiction to restrain publication of libel by interim
or final, 176-179.
interim, when granted, 176-178.

INNOCENT AGENT,
when excused for publication of libel, 16-18, 66-67.

INNUENDO,
defined, 13.
when required, ¢hid., 215-216.
when not required, bid.

INQUIRY,
answer to an, is privileged, when, 144.
writ of, 164.

INSANITY,
imputation of, libellous, 6.

INSOLVENCY,

to impute, to a tradesman, is actionable per se, 36.

INSPECTION,
of register of newspaper proprietors at Somerset House, 211.

INTENTION,
of defendant immaterial in civil action, except in case of
qualified privilege, 37.
in criminal cases, 196, 202, 204.

INTEREST,
statements made to protect self, when privileged, 135.
common, when privileged, 138.

INTEREST, MATTER OF PUBLIC,

fair and bond fide comments on, no libel, 89.

what is, 95-98.
administration of public institutions, 89.
advertisements, 98.
anything which invites public attention or criticism, ¢bzd.
architecture, zbid.
art, tbid.
authors, «bid.

( 20 )
INDEX.

INTEREST, MATTER OF PUBLIC—continued.
what is—continued,
books, 93, 98.
conduct of public men, 96.
ecclesiastical matters, 97.
government, 95.
judicial proceeding, 96, 97.
legal affairs, 97.
literature, ibid.
local affairs, ibid.
Parliament, and committees thereof, 95.
places of public amusement or entertainment, 97.
State matters, 95.

INTERIM INJUNCTION,
when granted, £5, 176-178.

INTERLOCUTORY JUDGMENT, 164.

INTERPRETATION,
of libellous words, in civil action, 9-11.
on criminal trial, 185, 206-207,

INTERROGATORIES,
grounds for refusing to answer, 227-232.
may be struck out, when, 227.

IRRELEVANT MATTERS,
order 36, r. 37, does not enable evidence to be given of, 170.

JEST,
no defence to an action for defamation, 38,

JOINDER OF,
causes of action, 52, 56.
rules as to, 56-58.
defendants, 54.
parties, 51-56.
partners, 57-58.
plaintiffs, 51.

JOINT,

defendants, 54-56, 59-61.

libel, in action against two or more defendants for, jury has no
power to sever the damages but must return one verdict
against all defendants, 60, 61.

publication of libel, liability in cases of, 54-56, 59-63, 160-161.

publishers, judgment in action against one bars action against
others, 62, 160-161.

JOURNAL,
other than newspaper, reports in, 112, 114, 115, 116-119.
when a “newspaper” within meaning of Acts of 1881 and 1888. .
111.

( 21 )
INDEX.

JOURNALIST,
defence to publication of libel by, 81-82, 202.
libel on, 4-5.
slander on, 35.

JUDGE,
discretion of, as to costs, 179-180.
duty of, in civil action, as to privilege, 101.
as to publication, 19.
as to comment, 89.
as to meaning of words complained of, 10.
in criminal proceedings, 206-207.
may tell the jury his personal opinion, 207.
of superior Court, everything said in office by, absolutely privi-
leged, 104-107.
of inferior Court, everything said in office by, absolutely privi-
leged, provided he has jurisdiction, 107.

JUDGE IN CHAMBERS,
no appeal from decision of, under 51 & 52 Vict. c. 64, 5. 8.. 201.
order of, generally required for criminal prosecution (by way of

indictment) for newspaper libel, 200-202.

JUDGE'S CHAMBERS,
report of proceedings in, privileged, 116.

e

JUDGMENT,
evidence of previous, when admissible in mitigation of damages,
169.

final, cannot be signed after plaintiff dies, 163-164.
interlocutory, effect of plaintiffs death after, 164.
previous, against same defendant a defence, 160-161.
other defendant no defence unless joint pub-
lication, ¢bid.
report of, when privileged, 118.

JUDICIAL PROCEEDINGS,
ex parte reports of, privileged, 116-117.
fair and bond fide comments on, no libel, 96, 97.
reports of, privilege of, when absolute, 99, 110-115.
qualified, 88, 100, 115-119.
what are, 104-108, 116.

JURISDICTION,
defendant out of, 72-75.
of Court, as to injunctions, 176-179.
publication out of, 74, 75.

JURORS,
observations of, absolutely privileged, when, 106.

JURY,
functions of, in civil action, as to publication, 19.
as to comment, 89, 92.
in assessing damages, 166, 168.

(22)
INDEX.

JURY—continued.
functions of, in civil action, in consolidated actions, 175.

as to meaning of words complained
of, 10-11.

as to privilege, 101.

as to publication being for public
benefit, 126.

in criminal cases, 206-207.

JUSTICE OF THE PEACE,
administration of law by, fair and bond fide comments on, no
libel, 96, 97.
hearing before, procedure on, 189-193.
reports of proceedings before, privileged, 110, 115, 116-117.
words spoken by, when action lies for, 107.
libe] on, what is, 7.
slander on, what is, 29-32.

JUSTIFICATION,
as a defence to civil action, 82-87.
in criminal proceedings, 186, 203-204.
is a dangerous plea, 83.
not allowed in blasphemous, seditious, or obscene libels, 204.
of general abuse, not necessary if gist of libel justified, 86.
of title to libellous article or paragraph, necessary, 83-84, 119.
precedents of Defence of, 244.
where libel contained in report of trial, 85.
where libel divisible part may be justified, and liability as to
rest admitted, 87.
whole libel must be proved substantially true, 83.

LAND AGENT,
libel on, 7.
slander on, 35.

LARCENY,
a charge of, is actionable per se, 26.

LAWFUL OCCASION,
what is in slander of goods, 46.

“LAWFUL PURPOSE,”
"meaning of, in sect. 4 of Law of Libel Amendment Act, 1888. .127.

“LAWFULLY HELD,”
meaning of, in sect. 4 of Law of Libel Amendment Act, 1888. . 127.

LEARNED PROFESSIONS,
slanders on, actionable per se, 32-35.

LEAVE,
of judge, needed to prosecute, when, 189, 200-202.

LEGAL MATTERS,
comment on, 96, 97.

( 23 )
INDEX,

LEPROSY,
a charge of, actionable per se, 28.

LETTER BEFORE ACTION,
advisability of, 209.

LETTER BETWEEN COUNSEL OR SOLICITOR AND
CLIENT,
when privileged from discovery, 225, 226.
whether actionable, 105-106.

LETTER OF EXPLANATION,
evidence of publication of, when admissible as evidence in
mitigation of damages, 171.
refusal to insert, effect of, 123, 131, 133.
written to protect interest of writer, when privileged, 135-136.

LIABILITY,
denial of, cannot be pleaded with payment into court, 159, 219.
joint and several, 59-638, 161.

LIBEL,

action for, without proof of special damage, 19.

blasphemous, what 18, 196.

construction of, duty of judge and jury as to, 9-12.

contract for printing, not enforceable, 61.

criminal proceedings for, 185.

detences to action for, 81-82.

criminal proceedings for, 202.
precedents of pleadings, &c., in actions for, 233-249.

definition of, 1, 185.

distinguished from slander, 1, 3.

evidence of other, when allowed in aggravation of damages,
166-167.

in mitigation of damages,

171-172.

evidence of truth of, when admissible, 170, 190-192.

in a newspaper, who is liable for, 16-18, 63-67, 200, 204-206.

injunction to restrain, 176-179.

obscene, what is, 198.

printer of, how to discover, 210.

proprietor of newspaper containing, how to discover, 210-211.

publication of, a crime, 185.

what is, 13-18, 199-200.

published abroad, when actionable here, 73-75.

repetition of, liability for, 67-69, 167.

seditious, what is, 197.

LIBELLOUS WORKS,

printer of, cannot recover for printing, 61.

LIBRARY,
liability for innocent publication of book containing libel by

circulating, 17-18.

( 24 )
INDEX.

LIMITATIONS,

Statute of, 162.
LITERATURE,

fair and bond fide comment on, is not a libel, 97.
LOCAL,

affairs, fair and bond fide comments on, no libel, 97.

reports of, when privileged, 123, 130, 132.

LOCAL BOARD,

proceedings of, fair and boni fide comments on, no libel, 97.

reports of, when privileged, 130-132.

LONDON COUNTY COUNCIL,

is not a “ Court recognized by law,” 108.

reports of, when privileged, 130, note (c).
LORD CAMPBELL’S ACT,

defence under, 158, 203, 219-220.
LORD MAYOR’S COURT,

precedent of Declaration in, 241.
LUNACY,

proceedings, statements before justice in, absolutely privileged,

107.
Statute of Limitations does not run in, 162.

LUNACY ACT,

1890. .75.
1891. .76.
LUNATIC,

can sue or be sued, 72, 75-77.
proc i i wa 76,
procedure in action by or against, 76

MAGAZINE,
joint liability of editor and printer of, for libel in, 59-63.
not a newspaper within the meaning of the Law of Libel
Amendment Act, 1888..111-112.
reports of judicial proceedings in, when privileged, 114, 116.
reports of public meetings in, not privileged, 132.
MAGISTRATE. Sce Justicr or THE PEACE.

MALICE,
actual, rebuts qualified privilege, 99.
burden of proof of, is on plaintiff, 99-100, 150.
definition of, 150.
may be inferred from excessive publication, 153.
may be inferred from violence of language used, when, 142,
155-156.
only material in cases of qualified privilege, 99, 152-158.
meaning of, in this work, 99, note (t).
onus of proof on plaintiffin action for libel or slander, 99-100, 150.
proof of, essential in action for slander of title, 39, 40-41.
proof of, how far essential in action for slander of goods, 46-48,
what may be evidence of, 153-158.
whether corporation can be guilty of, 81.

L.S. ( 25 ) x
INDEX.

MANUSCRIPT,
delivery of to printer is primi facte publication, 16.
in defendant’s handwriting, proof that, is primd facie publica-
tion, 18.

MARRIED WOMAN,
can sue or be sued, 69-70.
can sue her husband for libel or slander, when, 16.
liability of husband for libel or slander by, 71.
words imputing immorality to, 37.

MARRIED WOMEN’S PROPERTY ACT, 1882. .69, 71.

MASTER,
commands of, no defence for servant, 65-67.
liability of, in civil action, for acts of servant, 63-65.
in criminal proceedings for act of servant, 204-206.
statements made to, by, or as to, servant, may be privileged, 147.
statements made by, as to servant's character, 145-147.

MATTER OF PUBLIC INTEREST,
administration of public institutions, 97.
advertisements, 98.
anything which invites public attention or criticism, «id.
architecture, td.
art, tid.
authors, 97-98.
books, «hid.
conduct of public men, 96.
ecclesiastical matters, 97.
tair and bond fide comments on, no libel, 90.
government, 95.
judicial proceeding, 96, 97.
legal affairs, 97.
literature, ibid.
local affairs, tbid., 125-126.
parliament, and committees thereof, 95.
places of public amusement or entertainment, 97.
public meeting, 96, 126, 129.

State matters, 95.
what is, 95-98, 125-126, 129.

MEANING,
of words in a civil action, who decides, 91-2.
on a criminal trial, who decides, 206-207.

MEDICAL MAN,
libel on, 8.
privileged communications as to, 121-122, 147, 148.
slander on, 28, 33-34.
unauthorized use of name of, when actionable, 8, note (2).

MEDICAL REMEDIES,

criticism on advertisements of, 86, 89, 98.

( 26 )
INDEX.

MEETING,
of vestry, town council, school board, board of guardians, &c.,
reports of, when privileged, 130-132.
statements at, when privileged, 135, 138, 151.
public, what is a, 126-127.
reports of, when privileged, 123-130.
comments on, 96.
statements made at, when privileged, 135-136, 138-140,
151-152.
MERCHANT,
libel on, 4, 9.
slander on, 35.
goods manufactured by, 4, 44.

MILITARY PROCEEDINGS,

statements in, are privileged, 103, 108.
MINUTES,

publication of, privileged, when, 120, 121-122, 148.
MISDIRECTION,

may be ground for a new trial, 180-182.

MISMANAGEMENT,
allegation of, against a company, actionable, 80.

MISTAKE,
no defence to an action for defamation, 37-38.
publication by, 17, 66-67.
small and accidental, does not affect fair comment, 95.

MITIGATION OF DAMAGES,
evidence in, what may be given as, 25-26, 62, 68, 69.
particulars of, when necessary to be given, 169-173.
MONEY, ; ars
payment of, into Court, cannot accompany denial of liability, 159,
219.
must accompany plea of apology under Lord
Campbell’s Act, ibid.
MOTION, :
for a rule for a criminal information, 194.

MURDER,
a charge of, is actionable per se, 26.

NAME,
of author of libel, editor cannot be compelled to discover, 210, 228.
of printer of libel, 210.
of proprietor of newspaper, 211.
of publisher, 210, 211.

NATURAL MEANING, ; ;
words must first be construed in, but special meaning may be
shown, 9.

( 27 ) x 2
INDEX.

NAVAL PROCEEDINGS,
statements in, are absolutely privileged, 103, 108.

NEGLIGENCE,
absence of, no defence at common law, 37-38, but see Lord
Campbell’s Act (6 & 7 Vict. c. 96), s.2..156, and s. 7..
204.
of servant, master’s lability for, in civil action, 63-65.
incriminal proceedings, 204-206.
culpable, may aggravate damages, 165.

NEWSAGENTS,
liability of, 63, 65-67, 200.

NEWSPAPER,
apology for libel in, as a defence, 82, 158, 219-220.
comments in, on matter of public interest, what are, 91-98.
copying libels from another, no defence, 66, 171.
defences to action for libel in, 81-82.
criminal proceedings for libel in, 202.
definition of, in Law of Libel Amendment Act, 1888..111.
distributors of, 16-18, 62-63, 66-67, 200.
editor of, need not disclose name of author of libel, 210, 228.
interrogatories in action against, 228-230.
libel in, what is, 1, 185.
liability of proprietor for libels in, 60, 61, 64, 128, 200, 201, 204.
publisher for libels in, 60, 61, 64, 200, 201, 204.
editor for libels in, 60, 61, 64, 171, 200, 204.
printer for lbels in, 60, 61, 64, 200, 201, 205, 210.
author for libels in, 59, 61, 64, 201, 204.
proof of publication of, 13-19, 199-200, 209-211.
proprietors, register of, at Somerset House, 211.
receiver in bankruptcy conducting, 164.
report in, of judicial proceedings, 110, 114.
of parliamentary proceedings, 122.
of what meetings privileged, 123, 130-132.
who are liable for libel in, 62-63.
writers in, duties of, 88, 91-95.
not liable for trivial mistakes, 95.

NEWSPAPER LIBEL AND REGISTRATION ACT, 1881, text
of, in Appendix B., 268-273.

NEW TRIAL,
how to apply for, 232.
notice of motion for, precedent of, 249.
time for service of, 232.
what it must contain, tbid.
when granted, 180-184.

NEXT FRIEND,
infant sues by, 75.
personally liable for costs, ibid.

( 28 )
INDEX.

NOTICE,
that defendant intends to give certain evidence in mitigation of
daiaves, when necessary, and form of, 169.
to third party to preserve a libellous document, 212.
seven days, under O, xxxvi. vr. 37. .169.

NOTICE OF MOTION,
for new trial, precedent of, 249.

NOTICES,
publication of what, privileged, 100.
what, may be criticised, 95-98.
NOVEL,
libel in, what plaintiff must prove, 12.

OBSCENE PUBLICATION,

on wall, hoarding, &c., punishable by summary conviction,
196, 198-199.

report of judicial proceeding, if it amount to, not privileged, 110,
115, nor of public meeting, 123, nor of vestry meeting, &c.,
130-181.

seizure and destruction of, by order of magistrate, 198-199.

what is, 198.

OFFICE,
libel in way of, 7.
slander in way of, is actionable per se, 28, 29.
what must be proved, 28.
words must touch or affect, eid.
nature of, if legal, is immaterial, did.
of profit and of credit, difference between, 30-32.

OFFICIAL NOTICES AND REPORTS,
publication of, when privileged, 109, 133.

OFFICER OF STATE, 133.

ONUS OF PROOF,
lies where, 10, 11. ; a
on plaintiff to prove malice if occasion of qualified privilege, 99.

OPPORTUNITY,
of admission for reporters, 131.

ORDER, . . e * . .
nist, motion for, on application for criminal information, 195.

of judge required for criminal prosecution for libel in newspaper,

189, 200-202. a ok
of magistrate as to seizure and destruction of obscene publications,

198.
of Supreme Court, IT. r. 4. .72.

. XI. x. 1..72, 78, 75, 212.
XVI. vy. 1..51, 52, 57.
r. 4.54,

( 29 )
INDEX.

ORDER—continued.
of Supreme Court, XVIT. r. 1. .164.
XVIII, 55.
XIX. vr. 18. .221.
XXL. rv. 4. 222, 227.
XXII vr. 1..159, 220, 221.
r. 5. .219.
SAA 72007,
XXXVI. r. 37. .169, note (s), 170, 223, 224.
XXXIK. vr. 4. . 232.
r. 6.,182.
XVLIII. A, 73, 75.

OTHER LIBEL ACTIONS,
consolidation of actions allowed in respect of same, or substantially
the same, words, 173-174.
evidence of, when admissible in mitigation of damages, 169, 173.

OTHER LIBELS,
evidence of, not allowed merely in aggravation of damages, 166.
when allowed in mitigation of damages, 169-171.

OTHERS LIABLE,
consolidation of actions when for same, or substantially the same,

libel, 173-174.
evidence of, when admissible in mitigation of damages, 169-173.

PAINTINGS,
fair and bond fide comments on, no libel, 98.

PAMPHLET,
issued to the public, fair and bond fie comments on, no libel, 98.

PAPERS,
parliamentary, authorized publication of, 109.
extracts from or abstracts of authorized, 109,
256-258.

PARENT,
statements made to, re child, may be privileged, 147.

PARISH MEETINGS,
proceedings at, fair and hond fide comments on, 97.
reports of, when privileged, 123, 130.
statements made at, when privileged, 139, 140, 143, 151.

PARLIAMENT,

extracts from, and abstracts of papers, &c., issued by order of,
when privileged, 109.

papers, &c., issued by order of, and verified copies thereof,
absolutely privileged, 109, 133.

petition to, fair and bond fide comments on, no libel, 95.

proceedings in, &c., may be criticised, 95.

reports of, when privileged, 122.
statements made in, absolutely privileged, 103.

(30)
INDEX.

PARLIAMENTARY ELECTIONS,
false statements at, 179, 187-188.

PARLIAMENTARY PAPERS,
authorized publication of, prot ected, 99, 109, 133.
extracts from, and abstracts of, when

protected, 109.

PARTICULARS,
application for, when granted, 217-219.
precedent of, application for, 243,
precedent of, 243.

PARTIES,
joinder of, 51-56.
to a suit, statements of, in Court, privileged, 104.

PARTNERS,
action by, 57.
previous action against one is good defence where liability is

joint, 160- 161.
contra, where liability is several, 161.

PAYMENT INTO COURT,
effect of, if jury find verdict for less than amount of, 219-220.
must accompany plea of apology under Lord Campbell’s Act,
159, 219.
no plea denying liability can be pleaded if there be, 219.

PERIODICAL PUBLICATION, 82, 111-112, 114. See Magazine.

PERJURY,
charge of, 26, 83-84, 95, 119, 171, 223.

PETITION AND PETITIONERS,

to Parliament, fair and bond fide comments on, no libel, 95.
to Parliament, absolutely privileged, 104.

PICTURE,
if publicly exhibited, fair and bond fide comments on, no libel, 98.

may be a libel, 3.

PLACARD, ;
publication of, containing indecent matter, punishable on

summary conviction, 198-199.

PLACE OF ENTERTAINMENT,
comment on, no libel, 7.

PLAGUE,
charge of, actionable per se, 27-28.

PLAINTIFF, ae ‘
disability of, prevents Statute of Limitations from running

against, 162, 163.
who may be joined as, 51.

( 81 )
INDEX.

PLEADING,

sneeestions as to, 213 224.

PLEADINGS,
are absolutely privileged, 104—-J05,
precedents of, 213-225.
trial without, 212.

PLEAS,

severance of, 87.

POLICE,
affairs, everything concerning, may be criticized, 96, 97.

notices and reports, publication of, when privilesed, 133.

POLITICAL MEETINGS, ;
conduct of persons at, fair and bond fide comments on, no libel,
96.
proceedings at, reports of, when privileged, 123 eb seq.

POOR LAW,
administration of, fair and bond fide comments on, no libel, 97.

POST-CARD,
publication presumed if libel on, 14.

PRAISE,
ironical, may be a libel, 7, 119.

PRECEDENTS,
of indorrement on writ, 234.
affidavit under O, xi. r. 1 (5, hid.
Statements of claim, 236-243.
Jyefences, 214-248.
Reply, 245,
notice of application for particulars, 243.
particular, (hid,
uodtice of motion for new trial, 249.
PRESS,
writers for the, duties of, 88, 91-95, 119, 128.
liability of, 60, G1, 204-206,
defences open to, 61-52, 202.
PRESUMPTION,
that defamatory words are false, 45-46, 2) 4.
PREVIOUS ACTION,
for same libel, evidence of, admis-ible in mitigation of damages,
169, 173.
when a defence to an action, J60 -16].
PREVIOUS PUBLICATION,
of sae, or substantially tle same, libel by othera, when
admitsible as evidence, 169, 172, 173.

(82 )
INDEX,

PRINCIPAL,
commutnds of, no defence for servant, 65-66, 20 1-205,
foreign, how to sue for libel published by agent here, 73, 212.
liability of and defonees open to, for acts of servant, in civil
action, 16 18, 69, GO, 638° 65, 66 67,
Heeriminal proceedings, 202, 20-1 Yoo,
PRINTER,
eunbotnainddin an achion for his clues for printing a libel, 61,
defences open to, 16 18, 66 67, 8b SY, 202,
how lo discover, 200,
liability off 62 63, 61, 66 67, 2o2, 205,
mush make a cetiumn under Newspaper Libel and Registration
Aas VAST 03, 2.
must pring his mune and address on every publication, 260,
mtn preserve mumme Of Lis eniployer, (hid,
rights of, agninabl employer, on discovering THbellous mature of
vopy, GE G2.
Must keep copy of printed paper for six months, 200.

PRIEN'PENG,

libellous matter, no action maintaimeble for, Ob,

“PRIVAT AND CONFIDENTIAL,”
marking a letter immaterial to question whether oecasion was
privileved, bbe.

PRIVATE LIT,
of public man, comments on, when allowed, 97,

PRIVATE MEWMTINGS,
proceedings al, reports af, not privileged, 127, 032.
What are nol, b23, b260 1382.

PRIVEE,
usa defenes toa eivil vetion, 99 LOL,
crindual procecdings, 202, 208,
duty of jude as to, LOL, box,
mity be,
(1) Ahsolite= where no oaebion Ties, however untrue or
inaticious the statement may tive been, 09, 108 - EEO,
See Apsonire Priv tian.
Gh) Quadiied where the prima facie protection is rebutted
hy proof of neti mative, 99 TOO, EES Toe,
See Qu Abert PRIVILEGE

PRIVILEGED OCOASTON,
distinguished from privileged communication, LOL,
position of a corporation on, quere, SE,

PROCEEDINGS,
former, when a defence, P60 1GL.
in Court of dusticw, may be criticised, 96, 97,
in Parliament, amy be criticised, >,
report of ina Court of dustiee, ELO- TED
in Parliament, t22.

(38)
INDEX.

PROCURED BY DEFENDANT,

defamatory statement, when privileged, 137.

PROFESSION,
in slander, plaintiff must prove he practised such profession when
words were spoken, 9, in libel sufficient to prove he did so at
any time, ¢bed.
libels on members of, 7-9.

slanders on members of, special damage need not be proved,
28, 32-35.

PROOF. See BuRDEN oF PROOF.

PROPRIETOR OF NEWSPAPER,
how to discover, 211.
if limited company, not obliged to register, ibid.
liability to civil action for libels contained therein, 59, 60, 61,
62, 64, 128.
liability to criminal proceedings, 200, 205.
register of, at Somerset House, open to public inspection, 211.
registration of, defects of system of, ibd.
interrogatories, when he may refuse tu answer, 227-229.

PROSECUTION,
for libel, 185.
procedure on, 189-193.
when order of judge required for, 200-202.

PROSECUTIONS, DIRECTOR OF PUBLIC,

fiat of, not necessary for criminal proceedings, 201.
PROTECTION,

of reports, 99-100, 202.

of writers for the press, 81-82, 95, 202.
PROVOCATION,

by plaintiff's conduct in publishing previous libels, when
adinissible as evidence in mitigation of damages, 172.

PUBLIC ATTENTION ANID CRITICISM,

anything inviting, fair and bond fide comments on, no libel, 98.

PUBLIC BENEFIT,
that words are true and that the publication thereof is for the, a
defence under sect. 6 of Lord Campbell’s Act to criminal
proceedings, 203-204.
when publication is for, 127-130.
PUBLIC ENTERTAINMENTS,

fair and bond fide comments on, no libel, 97.

PUBLIC GRIEVANCES,
statements made to redres:, when privileged, 134-135.

PUBLIC INTEREST. Sce Matter or Pusuic INTEREST.
( 34 )
INDEX.

PUBLIC MEETING,
proceedings at, may be criticised, 96.
report of, 123-130,
report of, when privileged, 123.
what is a, 123, 126-127.

PUBLIC MEN,
conduct of, in public affairs, fair and bond fide comments on, no
libel, 96.
who are, 96-97.

PUBLIC POLICY,
fair and bond fide comment on, no libel, 95-97.

PUBLICATION,
all concerned in, are liable, 59, 60, 62-63, 64, 200.
as regards husband and wife, 15-16.
contemporaneous, what is, 114-115.
definition for purposes of civil action, 13, for criminal pro-
ceedings, 199.
excessive, may be evidence of malice, 142, 156.
fresh, what is, 163.
functions of judge and jury as to, in civil action, 19.
in civil action must be to third person, 13.
in criminal proceedings, need not be to third person, 187,
199-200.
joint, liability in cases of, 59-62, 160-161.
no action without, 13.
of comments on a pending trial may be restrained by injunction,
whether they amount to a libel or not, 88-89, 179.
of libel may be restrained by injunction, 176,
outside jurisdiction, 73-75.
previous, by other persons, no defence, 171.
when admissible as evidence in miti-
gation of damages, 169, 171-172,
173.
prima facie case of, 13, 16, 18.
question for jury alone in criminal trial, 206-207.
what is, as regards a civil action, 13-19.
criminal liability, 187, 199-200.
what necessary, in criminal cases, «bid.
when for public benefit, 127-130.
“PUBLICATION FOR PUBLIC BENEFIT,”
meaning of, within sect. 4 of Law of Libel Amendment Act,

1888 . . 127-130. /
under sect. 4 of Libel Act of 1888, not absolutely necessary for

defendant to prove, 123 et seq.
“PUBLISHED CONTEMPORANEOUSLY WITH SUCH PRO-

CEEDINGS,”
meaning of, 114-115.

PUBLISHER,
liability of, 59, 61, 62, 63-65, 200, 201, 202, 204-205.
return under Newspaper Libel and Registration Act of 1881 .. 211.

( 35 )
INDEX.

“ PUFFING,”
no action lies for, 49.

PUNISHMENT,
for publishing a libel, 185, 260.
for publishing a libel, &c., with intent to extort money, &c., 259.
for publishing indecent advertisements, 198-199, 277.

“c QUACK,”
to call a doctor a, is actionable per se, 33-34.

QUALIFIED PRIVILEGE,
where the prima facie protection is rebutted by proof of actual
malice, 99.
under this head come—

(a) Reports other than those in a newspaper of judicial
proceedings, and reports in a newspaper of such
proceedings, if not published contemporaneously
with such proceedings, 100, 110-120.

(b) Extracts from registers kept pursuant to statute, and
reports of proceedings of quasi-judicial. bodies created
by statute, 120-122.

(c) Reports of proceedings in Parliament, 100, 122.

(d) Reports of proceedings of public ineetings, 100, 123-130.

(e) Reports of vestry meetings, &e., 100, 180-132.

(f) Notices and reports published at request of Government
office or authority, 100, 133.

(g) Statements made to a public servant or other person in
authority with the object of preventing or punishing
crime or redressing a public grievance, 100, 134-135.

(h) Statements made with the object of protecting some
interest of the writer or speaker, and reasonably
necessary for such purpose, 100, 135-138.

(i) Statements made with the object of protecting an interest
common to the writer or speaker and the person to
whom the statement is made, 101, 138-143.

(j) Statements made in discharge of a legal, moral, or social
duty, 101, 143-152.

QUANTUM MERUIT, printer can sue for parts of book not
libellous, 61.

QUASI-JUDICIAL BODY CREATED BY STATUTE,
reports of proceedings of, have a qualified privilege, 100, 120,
121-122.

RAILWAY COMPANY,
not liable to action for publishing conviction of passenger for
breach of bye-law, if facts stated accurately, 84-85,
REASONABLE AND PROBABLE CAUSE,

want of, must be proved in an action of slander of goods, 47.

RECEIVERS,
in an administration action, liability of, 165.
appointed by court, libel on is contempt of court, 165.

( 86 )
INDEX.

RECKLESSNESS,
may be evidence of malice, 153, 154.

REDRESS OF GRIEVANCES,
statements as to, privileged, when, 134.

REFUSAL,
to insert a reasonable letter of explanation or contradiction,
consequences of, 128, 131, 275.

REGISTER,
certified copy of, evidence, 211, 272.
no obligation on printers and publishers of newspaper owned by
limited company to, 211.
of newspaper proprietors, open to inspection of the public, ibid.

REGISTRAR IN BANKRUPTCY,
proceedings before, report of, 116.

RELEASE,
what is, 160.
a good defence to an action, ibid.

RELIGION,
attack on, what is blasphemy, 196-197.

REMEDIES,
civil, 19, 20, 176. .
criminal, 185-195.
for libel in newspaper, 60, 62-63, 64, 200, 205.
for repetition of libel or slander, 24-26, 67-69.
of and against aliens, 72-75.
bankrupts, 72, 77-78.
companies, 78-81.
corporations, 2bid.
infants, 72, 75.
lunatics, 72, 75-76.
married women, 69-70.

REMISSION OF ACTIONS,
to County Court, when granted, 59, 78, 213.

REPETITION,
of libel or slander, liability for, 24-26, 67-69.
when evidence of, admissible in mitigation of
damages, 169, 171-173.

REPLY, :
raising objection in law, precedent of, 248.
to defence of fair comment, precedent of, ibid.

REPORT,
defined, 87.
differs from comment, 87-88.
may be criticised, when, 95-98.

( 37 )
INDEX.

REPORT—continued.
of judicial proceedings in newspaper, 100-115.
other than in a newspaper, 100, 115-120.

of county council meetings, 130-131.
of parliamentary proceedings 122.
of public meetings, 100, 123-180.
of other meetings, 130-132.
of school board meetings, tbid.
of vestry meetings, ibed.
of proceedings of board of guardians, ibid.

of parliamentary committee, 7bid.

of quasi-judicial body created by statute, 120,

121-122.
title of, must not be libellous, 83-84, 119.
publication of what, privileged, 99, 100, 132.
not privileged, 132.

fair, what is, 117-119.

REPORTER,
criminal prosecution against, no order of judge necessary, 201.
defences open to, 81-82, 202-203.
duties of, 88, 91-95, 117-119.
employer's liability for libels of, 63-65, 202, 204-205.
liability of, in criminal prosecution, 200, 201, 202-208.
presence of, does not necessarily destroy privilege, 151-152.

REPUBLICATION,
of libel, bv copying from another newspaper, no defence, 62, 171.
when admissible in mitigation of damages, 62, 169, 171, 173.

REPUTATION,
injury to, gist of action, 1, 83.
of plaintiff, when admissible as evidence in aggravation of
damages, 166.
of plaintiff, when admissible as evidence in mitigation of damages,
68, 172.
RES JUDICATA,
a good defence, 160, 161.

RESTRAINT,
of publication of libel by injunction, when granted, 176-179.

RETORT,
fact that libel complained of is a, admissible as evidence in
mitigation of damages, 172.
may sometimes amount to
a defence, 135-138.
REVIEWS,
of books, if fair and bond fide, no libel, 92-93, 97-98.

ROYAL COMMISSION,

evidence given before, fair and bond fide comment on, no libel, 95.

RULE NIS{,
in criminal information, 195.

( 38 )
INDEX.

RUMOURS,
to same effect as libel, evidence of, inadmissible, 68, 172.

SATISFACTION,

accord and, what is, 160.

a good defence to an action, tid.

SCHOOL BOARD,

meeting of, proceedings at, fair and bond fide comments on, no

libel, 97.
reports of, when privileged, 130.

SCHOOLMASTER,

to impute incapacity to, actionable per se, 35.

SECONDARY EVIDENCE,
not allowed, of documents absolutely privileged, 215.

SECONDARY MEANING, 9-13.

SECT,
libel on, may be a crime, though not actionable, 185-186.

SECURITY FOR COSTS,
alien, if not resident here, is generally ordered to give, 58, 72.
when plaintiff ordered to give, 58, 72, 78, 213.

SEDITIOUS,
words, publication of a crime, 196, 197.
what amounts to, 197.
not privileged in reports, 110, 115.

SELECT COMMITTEE,
fair and Lond fide comments on, no libel, 95.
report of meeting of, privileged, 120, 121-122, 130-131.
statements before, privilezed, 103.

SELF-DEFENCE,
statements made in, privileged when, 135-138.

SELF-INTEREST,
statements made in, privileged when, ibid.

SELLER,
of newspaper containing a libel, 16-18, 65-67, 200.

SERVANT,
character of, privileged communication, 145-146.
communication to master of, when privileged, 146-147.
criminal liability of master for libel published by his, 204-205.
liability of, for publishing libel by master’s order, 61, 62-63

65-67, 200.

liability of master for libel by, 63-65, 78-79, 204-205.
slanders on, 36.

SERVICE OF WRIT, ;
out of jurisdiction, leave required, 72.

( 89 )
INDEX.

SEVERAL LIABILITY, 59-60, 161.

SEVERANCE,
of damages, not allowed in action for joint publication, 60-61.
of parts of a libel, 87.

SHAREHOLDERS,
proceedings at, meetings of, reports of, when privileged, 123, 127,
128-130.

SIGNS,
may constitute a libel, 3.

SLANDER,

definition, 1.

distinguished from libel, 2, 3, 19.

company or corporation, when liable for, 78-81.

gestures may be, 3.

no action lies without proof of special damage except in four
cases, 2, 20 et seq.

repetition of, 67-69.

when action will lie for, 20.

when within the criminal law, 1, 2, 187.

SLANDER OF GOODS, 44-51.
definition of, 44.
what must be proved in action for, 45, 48.

SLANDER OF TITLE, 39-43.
definition of, 39.
what must be proved in action for, zbid.

SLANDER OF WOMEN ACT, 1891. .37, 278.

SMALLNESS OF DAMAGES,
not always “good cause” to deprive a plaintiff of his costs, 180.

SOLICITOR,

communications between client and, to what extent privileged,
105-106, when privileged from production, 225, 226.

libel on, 7, 8.

not obliged to produce documents of client, 225, 226.

slander on, 34.

statements by, in course of judicial proceedings absolutely
privileged, 105, to client, whether ever absolutely privileged,
105, to third party, when privileged, 148.

SOMERSET HOUSE,
register of newspaper proprietors at, 211,

SPECIAL DAMAGE,
loss of general business may be, 22-24.
may be proved in aggravation of damages, 167.
must be proved in actions for slander of title, 39, 42-43.
necessity of sometimes pleading, 23, 217, and applying for
particulars of, 218.

( 40 )
INDEX.

SPECIAL DAMAGE—continued.
precedent of count for, 239, 241.
precedent of application for particulars, 243, and of particulars,
wid,
what is, 2, 21-24, 167-168.
where not necessary to prove, 20.
SPECIAL MEANING,
words may be shown to have, 9-13.

SPEECHES,
fair and bona fide comments on public, no libel, 96, 98.
reports of, when privileged, 99, 100, 110, 115, 122, 128, 128-
130, 132.
STATEMENTS OF CLAIM,
how to draft, 213-217.
tnnuendo required in, when, 13, 215.
precedents of, 236-243.
STATEMENTS,
even voluntary, may be privileged, 145.
in discharge of a duty, privileged, when, 143-152.
when privileged, 99-100.

STATUE,
may be a libel, 3.

STATUTE OF LIMITATIONS, 75, 162-163.

STATUTES. See Appendix of Statutes, 250-280, and Contents of
such Appendix, 250. Sve also Index to Statutes cited, xxxix.

STIPENDIARY MAGISTRATE,
power of, to destroy obscene publications, 198.

STUPIDITY,
imputation of, if merely spoken, in reference to justice of peace,
not actionable per se, 30-81.
is not malice, 158.

SUBPGNA DUCES TECUM, 214.

SUBSCRIBERS TO CHARITY,
proceedings at mecting of, report of, not privileged, 132.
statements by to secretary, when privileged, 138-139, 140, 143,
147-148.

SUMMARY JURISDICTION OF JUSTICES,
to commit for trial, 189-193.
to convict for advertisement of indecent matter, 198-199.
to convict for publication of trivial libel in a newspaper,
192-193.
to issue warrant for apprehension of libeller, 189.
to seize and destroy obscene publications, 198.
to take bail, 192.
when magistrate can receive evidence of truth of libel, 192

L.S. ( 41 ) Y
INDEX.
SUMMARY JURISDICTION (MARRIED WOMEN) ACT, 1895
ll,

SUMMONS,
before a magistrate, procedure on hearing of, 189-193.
for particulars, 218-219.
precedent of, 243.
SURVEYOR,
libel on, 7, 8.
slander on, 35.

SUSPICION OF CRIME,
words of, not actionable per se when spoken, 27.

TELEGRAM,
publication presumed if libel contained in, 14.

THEATRE,
performances at, fair and bond fide comments on, no libel, 97.

“THE GREATER THE TROTH THE GREATER THE
LIBEL,” 187.

THIRD PARTY,

defendant not liable for damages due to unreasonable conduct
of, 167.

where document containing libel is in possession of, how to
proceed, 212, 214,

accidental presence of, privilege not destroyed by, 151.

unnecessary publication to, destroys privilege, 135, 138, 141, 151,
152.

TITLE,
of article or paragraph, may be libellous, 83, 84, 119.
must be justified, abed.
TONE,
of publication, may be evidence of malice, 142, 156.

TORT FEASORS,

no contribution between, 61.

TORTS,
committed abroad, actionable here, when, 73-75.

TOWN COUNCIL,
proceedings of, fair and bond fide comment on, no libel, 97.
proceedinys of, reports of, when privileged, 100, 139.
statements made at meetings of, when privileged, 135, 138, 143,
151, 152.

TRADE COMPETITION,

no ground for action, 48-49.

TRADE, PROFESSION, OR OFFICE,
words affecting, actionable per se, 28.
are libellous, when, 7.

( 42)
INDEX.

TRADE JOURNAL,
not a newspaper within 52 & 58 Vict. ¢. 96. .112.
reports in, not privileged, 132.

TRADE LIBEL,
injunction to restrain, 176.
what amounts to, 3-5, 44-51.

TRADESMAN,
libel on, 9.
slander on, 35-36.
slander of goods manufactured, or sold by, 44-51.
advertisement of, may be criticised, 98.

TRIAL,

before a magistrate, 189-193.

of criminal information, 194.

of indictment, 189-193.

without pleadings, not advisable, 212.
TRIAL, NEW,

on what grounds granted, 180 -184.

notice of motion of, precedent of, 249.

time within which to apply for, 232.

TRUSTEE IN BANKRUPTCY, 77.

TRUTH,

a defence to a civil action, 82-87.

belief in, of words complained of, no defence unless occasion
privileged, 37-38, 69, 94, 141.

not admissible as evidence in mitigation of damages, 170.

no defence to criminal proceedings unless publication was tor
public benefit, 202, 203, 204.

of libel, when magistrate can receive evidence of, 191, 192.

TYPEWRITER,
publication to, 14.

UNCERTAINTY,
of plaintiff, defeats action, 6.

UNCHASTITY,
imputation of, to woman or girl, actionable without proof of
special damage, 20, 37, 167, note (n), 213, 278.

UNLAWFUL MEBRTINGS,
proceedings at, reports of, not privileged, J27.
what are, tbid.

VENEREAL DISEASE,
a charge of, actionable per se, 20, 27-28.

VENDOR,

of newspaper or book containing a libel, liability of, 16-18, 63,
200, 2U1.

( 48 )
INDEX.

VERBATIM,
report to be fair and accurate, need not be, 117.

VERDICT,
of jury in civil action, 10, 19, 60, 61, 89, 101.
of jury in criminal case, 193, 206-207.

VESTRY CLERK,
libel on, 7-8.

VESTRY MEETINGS,
proceedings at, fair and bont fide comments on, no libel, 97.
proceedings at, reports of, wheu privileged, 130.
statements made at, when privileged, 138-140, 151.

VETERINARY SURGEON,
libel on, 7, 8.
slander on, 35.

VEXATIOUS INDICTMENTS ACT,
all libels now within, 192.
binding over to prosecute, tid.

VIOLENT LANGUAGE,
may be evidence of malice, 142, 155-156.
not always so, 156.

VOLUNTARY STATEMENTS,
may be privileged, 145.
uot necessarily evidence of malice, 156.

VULGAR ABUSE,
not actionable per se, 20-21, 28.
precedent of plea that words are merely, 248.

WIFE. See Marrigp Woman.

WITNESS,
name of, need not generally be disclosed in answer to interro-
gatories, 230.
statements of, when absolutely privileged, 104, 106.

WORDS,
defamatory,

action on the case for, 39, 44.

actionable per se, 20.

construction of, duty of judge and jury as to, in civil action,
10.

construction of, duty of judge and jury as to, in criminal trial,
206-207.

commercial terms, 10-11.

defences to action for, 81-82.

criminal proceedings for, 202.

injunction to restrain, when granted, 176-179.

ironical, may be a libel, 7, 119.

must be taken in their natural sense, 10-11.

( 44 )
INDEX.

WORDS— continued.

defamatory—continued.
of a cant or slang character, 10-11.
publication of, duty of judge and jury as to, in civil action, 19.
publication of, duty of judge and jury as to, in criminal trial,

199-200.

published outside jurisdiction, 73-75.
what are, 1-9.
when action lies for, 1-20.
when criminal proceedings lie for, 185 et seq.

blapshemous, 196-197.

seditious, 196, 197.

obscene, 196, 198.

WORK,
literary, may be criticised, 97-98.
of art may be criticised, 98.
printer cannot recover for libellous, 61.
remedy of printer who discovers he is printing libellous, ibid.

WRIT,

application for leave to serve, when defendant is out of jurisdic-
tion, must be to judge in Chambers, 72 et seq.

how endorsed, 234.

of certiorari, precedent of statement of claim in action of libel
removed by, 242.

precedent of affidavit in support of application for leave to serve
out of jurisdiction notice of concurrent, 234.

WRITERS FOR THE PRESS,
defences open to, 81-82, 202.
duties of, 87-88, 91-95, 119, 128.
liability of, 59, 61, 62, 202, 203, 205.

BRAVBURY, AGNEW, & CO, LD., PRINTERS, LONDON AND TONBRIDGE.

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