Page images
PDF
EPUB

Chap. III. 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 newspaper or periodical publication in which the said libel appeared should be ordinarily published at intervals exceeding one week, had offered to publish the said apology in any newspaper or periodical publication to be selected by the plaintiff in such action; and that every such defendant shall, 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 "(u). The apology must be full and sufficient, and printed in suitable type (v).

Damages.

It has been held in a recent case that the offering an apology and payment into Court under the statute can be pleaded as an alternative defence with justification (w). When a plea of apology and payment into Court under the statute is pleaded, it is competent for the plaintiff to show by evidence of the publication of previous libels on the plaintiff by the defendant, that the defendant was actuated by express malice (x).

The damage must be the necessary consequence of the defamatory statement (y), and such as naturally and reasonably arises from the use of the words (z); it must not be too remote (a). Thus the proprietor of a public entertainment cannot maintain an action against a person for libelling one of his company, whereby she was deterred from appearing on the stage (b). The Courts are very reluctant to interfere with the discretion of the jury as to the amount of damages they shall award (c), unless where the sum awarded appears utterly inconsistent (d).

Evidence of rumours before the publication of the libel that the plaintiff had committed the offences charged in it, and evidence

(u) Chadwick v. Herapath, 3 C. B.
885; O'Brien v. Clement, 16 M. & W.
164.
; 28

(v) Lafone v. Smith, 3 H. & N.
L. J. Ex. 33.
(w) Hawkesley v. Bradshaw, 5 Q. B. D.
302; 49 L. J. Q. B. 333.

(x) Barrett v. Long, 3 H. L. Cas. 414.
(y) Chamberlain v. Boyd, 11 Q. B. D.
407.

(z) Haddon v. Lott, 15 C. B. 411, 24

L. J. C. P. 49.

(a) Allsopp v. Allsopp, 5 H. & N. 534; 29 L. J. Ex. 315.

(b) Ashley v. Harrison, Peake, 194; 1 Esp. 48.

(c) See Kelly v. Sherlock, L. R. 1 Q. B. 209, 35 L. J. Q. B. 209; Jackson v. Hopperton, 16 C. B. N. S. 829.

(d) Rendall v. Hayward, 5 Bing. N. C. 424; Armytage v. Hayley, 4 Q. B. 917.

of particular facts and circumstances tending to show that the Chap. III. misconduct of the plaintiff in matters similar to those referred to in the libel, will not be admitted in reduction of damages (e). By the 6 & 7 Vict. c. 96, s. 1, the defendant (after giving notice. of his intention) may give evidence in mitigation of damages that he made or offered an apology to the plaintiff before the commencement of the action, or as soon afterwards as he was able. The former mode of proving publication of libels published in newspapers, by production of certified copies of declarations of proprietorship filed under 6 & 7 Will. IV. c. 76 (ƒ), no longer holds good, as that portion of the Act which relates to evidence of publication is repealed by 32 & 33 Vict. c. 24; no statutory proof of publication can, therefore, now be offered in evidence.

Every sale of a newspaper to a person, is evidence of a publication. Where a copy of a newspaper was delivered to a messenger sent by the plaintiff to procure it, it was held to be a sufficient publication to sustain an action for libel (g).

Where a man makes a request to another to publish defamatory matter of which for the purpose he gives a statement, and the agent publishes that matter in a newspaper, adhering to the sense and substance of it; although the language is to some extent his own, the man making the request is liable to an action as publisher (h).

Proof of publi

cation of libels

in newspapers.

A corporation is liable for a libel published by its directors (i). Liability of Where, therefore, a railway company published, through a line of corporation for telegraph, a false statement that a bank had stopped payment,

it was held that the company was responsible for the publication (j).

libel.

Since the passing of the Judicature Acts (k), the power of the Injunction. Courts in respect of injunctions has been extended, and an injunction will now be granted to restrain the publication of a libel which may prove injurious to a man's trade even without proving special damage (1). All that it is necessary to show, is

(e) Falvey v. Stamford, L. R. 10 Q. B. 54. In a case where the plea under the statute 6 & 7 Vict. e. 96 is not moved, see Jones v. Mackie, L. R. 3 Ex. 1. (f) The 6 & 7 Will. IV. c. 76, is now entirely repealed by the 33 & 34 Vict. c. 99, Inland Revenue Acts Repeal Act, 1870.

(g) Brunswick (Duke of) v. Harmer, 1 Q. B. 189.

(h) Parkes v. Prescott, L. R. 4 Ex. (Ex. Ch.) 169.

(i) Alexander v. N. E. Rail. Co., 6 B. & S. 240, 34 L. J. Q. B. 152.

(j) Whitfield v. S. E. Rail. Co., E. B. & E. 121, 27 L. J. Q. B. 229.

(k) See Judicature Act, 1873, 36 & 37 Vict. c. 66, s. 25, sub-s. 8.

(1) Thomas v. Williams, 14 Ch. D. 864.

Chap. III. that the libel is calculated to do injury to the plaintiff's trade or

Defamatory

statements re-
specting
goods (n).

Slander of title.

business (m).

An action will lie for disparagement of goods, "for if,” as Bramwell, B., observes, "You have, without lawful cause, made a false statement about my goods to their comparative disparagement, which false statement has caused me to lose customers, an action is maintainable " (o). Mere ridicule and comments on the vulgarity of an article are not defamatory (p).

Where a person, in publishing an account of his own goods, compares them with those of another, describing his own as superior to them, but not making any false representation as to the quality and character of the latter, an action does not lie, though the plaintiff alleges that he has suffered special damage in consequence of the publication (q).

"An action for slander of title," observes Tindal, C. J., "is not properly an action for words spoken, or for a libel written and published, but an action on the case for special damage, sustained by reason of the speaking or publication of the plaintiff's title " (r). No action lies unless special damage has been sustained. The action for slander of title applies both to real and personal property (s). An action will lie against a person for asserting that goods offered for sale by auction were stolen, whereby persons were deterred from bidding (t); for publishing that goods of the plaintiff advertised by him for sale by auction belonged to the defendant, whereby the sale was prevented (u), for impugning the plaintiff's title to an estate, whereby the plaintiff was prevented from selling it (x); and for impugning the plaintiff's right to sing certain songs in public (y).

The law as to what constitutes slander of title is thus put very clearly by Maule, J. (z): "Slander of title ordinarily means a

[blocks in formation]

(s) Wren v. Weild, L. R. 4 Q. B. 730; 38 L. J. Q. B. 327. As to cases for slandering a title to a patent, sec Rollins v. Hinks, L. R. 13 Eq. 355; 41 L. J. Ch. 358; Axmann v. Land, L. R. 18 Eq. 330; 43 L. J. Ch. 655.

(t) Gutsole v. Mathers, 1 M. & W. 495. (u) Carr v. Ducket, 29 L. J. Ex. 468, 5 H. & N. 783.

(x) Pitt v. Donovan, 1 M. & S. 639; Smith v. Spooner 3 Taunt. 246; Brook v. Rant, 4 Ex. 521.

(y) Hart v. Wall, 2 C. P. D. 146; 46 L. J. C. P. 227.

(z) Pater v. Baker, 3 C. B., at p. 868,

statement of something tending to cut down the extent of title, Chap. III. which is injurious only if it is false. It is essential to give a cause of action, that the statement should be false. It is essential also that it should be malicious" (a); not, as Lord Ellenborough observes, "malicious in the worst sense, but with intent to injure the plaintiff. If the statement is true-if there really is the infirmity of title as suggested, no action will lie, however malicious the defendant's intention may be."

(a) Watson v. Reynolds, M & M. 1; Wren v. Weild, L. R. 4 Q. B. 730; Steward v. Young, L. R. 5 C. P. 122.

Chap. IV.

Definition of realty.

CHAPTER IV.

TORTS AFFECTING REALTY.-TRESPASS ON LAND.

"THINGS real," says Blackstone, "(otherwise called realty) consist of things substantial and immovable, and of the rights and profits annexed to, or issuing out of these *** Things real are usually said to consist in lands, tenements, or hereditaments." The word "land" in its legal signification usually includes not only that which is ordinarily understood by the term, but also water, which is described in legal documents as land covered with water (a). The word "land" also includes not only the surface of the earth, but everything under it, or over it, according to the maxim, Cujus est solum, ejus est usque ad cœlum (b). Tenement usually means any building whatsoever erected on and attached to the soil.

"Hereditament," says Sir Edward Coke is by much the largest and most comprehensive expression (c), for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal or mixed. Thus, an heirloom (d) or implement of furniture, which by custom descends to the heir together with the house, is neither land nor tenements, but a mere movable; yet being inheritable, is comprised under the one word hereditament; and so a condition, the benefit of which may descend to a man from his ancestor, is also a hereditament (e). Corporeal hereditaments are such as may be seen and handled, as for instance land and houses; Incorporeal, are such as are not the objects of sensation, as a right of way or a common of pasture.

4a;

(a) 1 Bl. Com. 169.
(b) Coke Litt.
Challoner V.
Thomas, Brownl. 142. When "land
covered with water is mentioned in a
conveyance, it is the land which is con-
veyed, and the words "covered with
water are mere words of description, to
denote the particular piece of land which
is meant; see also Duke of Beaufort v.

Vivian, 21 L. J. Ex. 204; Medway
Navigation Co. v. Earl of Romsey, 30 L.
J. C. P. 236.

(c) Co. Litt. 6a, 20a, 78a; R. v. Dersingham, 7 T. R. 671.

(d) Such as the Pusey horn.

(e) Winchester's Case, 3 Rep. 26, Bl. Com. 4th ed. i. 171.

« PreviousContinue »