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CHAPTER VI.

Publication is libellous if any

a person may wrongfully or maliciously utter slanderous matter though true, and thereby subject himself to an indictment), but because it shows that the plaintiff is not entitled to recover damages; for the law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess."

If the libel be false it is no justification, even in the case of public criticism appearing in the leading articles of newspapers, that the writer bona fide believes in its truth. (a) "Bona fide belief in the truth of what is written," says Blackburn, J., (b) "is no defence to an action; it may mitigate the amount, but it cannot disentitle the plaintiff to damages. Moreover, that honest belief may be an ingredient to be taken into consideration by the jury in determining whether the publication is a libel; that is, whether it exceeds the limits of a fair and proper comment; but it cannot in itself prevent the matter being libellous."

The publication, however, is actionable if any material material part be part of it be not proved true, and a plea which, professing to justify the entire libel, fails to justify a material part of it, is a bad plea. (c)

not true.

Thus, if a libel imputes to a person that he has been guilty of murder in killing his opponent in a duel, and alleges further that the duel was supposed to have been fought under circumstances revolting to the ordinary notions of honour (it being suggested that the plaintiff had spent the whole of the night preceding the duel in practising pistol firing), it is not a sufficient defence to prove merely that the plaintiff had killed his antagonist, and had been tried for murder and acquitted. (d) "When an action is brought for a libel," said Maule, J., in this case (e) " to make a good plea to the whole charge, the defendant must justify everything that the libel contains which is injurious to the plaintiff. If the libel charges the commission of several crimes, or the commission of a crime in a particular manner, the plea must justify the charge as to the number of crimes (ƒ) or the manner of committing the crime. If the crime is charged 639), Biggs v. The Great Eastern Railway Company (18 L. T. N. S. 482).

(a) Campbell v. Spottiswoode (3 B. & S. 769; 8 L. T. N. S. 201; 32 L. J. 185, Q. B.) (b) Ib.

(c) See per Jervis, C.J., Helsham v. Blackwood (11 C. B. 128; 20 L. J. 187, C. P.).

(d) Ib.

(e) Ib. 129.

(A) See Clarkson v. Lawson (6 Bing. 266, 587); Clarke v. Taylor (2 Bing. N. C. 654; 3 Scott, 95).

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with circumstances of aggravation as here, the plea is clearly bad if it omit to justify that. . . . . If the libel had imputed CHApter Vl. murder simpliciter, it would have been enough to show in the plea that the plaintiff had committed murder. But if the libel goes further, and states something besides, which is injurious to the plaintiff's character, it is clear upon every principle of the law of libel, that that must be justified as well as the rest, or the defence fails."(a)

Where the libel charged the plaintiff with having in two mayoralties bought coals at 6d. a bushel, sold them to the poor at 4d., and charged the corporation 8d., thereby pocketing 2d. a bushel, a plea that the plaintiff did this in his first mayoralty, and in his second altered his charges, buying the coals at 6., selling them to the poor at 3d., and charging the corporation 6d., was held a bad plea.(b)

So where the libel alleged that the plaintiff, a proctor, had been suspended from practice three times for extortion, a plea in justification which alleged only one suspension was held bad. (c) It was urged on behalf of the defendant in this case, that it was sufficient if the sting and substance of the libel were answered by the plea, and that the discredit attaching to a single suspension from office was not substantially aggravated by a repetition of similar reproof; but the court did not agree that a man's character would not fall into lower discredit by the imputation of repeated offences than by the imputation of one only, and held that the plea fell within that class which, professing to justify the whole of the libel, in effect justify only a part, and are therefore bad.

And where the libel consisted of a paragraph published in a newspaper, stating in substance that the plaintiff was a confederate of blacklegs; that he had sought admission into a yacht club; that he gave an entertainment in the expectation of being elected, but was blackballed, and the next morning bolted, and some of the tradesmen of the town had to lament the fashionable character of his entertainment; a plea of justification, which, after alleging facts to show that the plaintiff was the confederate of persons who had been guilty of cheating at cards, and the facts of his giving an entertainment, and being blackballed, &c.,

(a) See also Cuddington v. Wilkins (Hob. 81); Hilsden v. Mercer (Cro. J. 676); Upsheer v. Betts (Cro. J. 578).

(b) Goodburne v. Bowman (9 Bing. 532). See also Clarke v. Taylor (2 Bing. N. C. 654) and Johns v Gittings (Cro. Eliz. 239). (c) Clarkson v. Lawson (6 Bing. 266).

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stated that on the following morning he quitted the town CHAPTER VI. and neighbourhood, leaving divers of the tradesmen to whom he owed money, unpaid," was held bad, because the quitting might be innocent and without any intention to defraud. (a) "The libel as stated in the declaration," said Parke, B., "imputes to the plaintiff a fraudulent evasion of his creditors, he being unable to pay them. The plea does not meet that; for the plaintiff might be unable to pay without being guilty of fraud, as imputed by the word bolting' used in the libel. That expression charged the plaintiff with going away suddenly from Plymouth, leaving debts unpaid, and under such circumstances that the creditors could not find him, and therefore means more than the mere 'quitting,' which is stated in the plea. That would be an innocent departure, and consistent with proof that the plaintiff went out of the town for a day, but then returned and paid his debts."

And if the words declared upon impute an actual felony, a justification which merely sets out circumstances inducing suspicion is not sufficient. Thus, where the declaration stated that the defendant, intending to cause it to be believed that the plaintiff was guilty of feloniously stealing a horse, published a libel concerning him, which was headed "Horse stealer," and alleged that the plaintiff had been taken up, on suspicion of having stolen a horse, by a constable who was informed that "such a character' was at a certain public-house; the libel then going on to state circumstances of suspicion against the plaintiff, and alleging finally that having obtained permission to go out of the constable's sight, he had made his escape, but was retaken and confined in gaol for examination; innuendo that the plaintiff was guilty of stealing a horse: it was held that a plea setting out the several circumstances related in the libel, and

(a) O'Brien v. Bryant (16 M. & W. 168). See, also, Wadsworth v. Bentley (23 L. J. 3, Q. B.), where the declaration in an action of slander alleged that the defendant spoke of the plaintiff, in the way of his trade, the words, "He cheated me; "He is a thief, and robbed me of 1007.; and contained an averment of special damage, and the defendant pleaded a former judgment recovered for the same grievances. The record of the previous action showed the slanderous words to have been: "That thief is a villain, a scoundrel, and a rascal, and I can prove him a thief at any moment;" and it neither alleged that the words were spoken of the plaintiff in the way of his trade, nor contained an averment of special damage. This was held to be no bar to the action. "I cannot think," said Crompton, J., that the cause of action in that record, which contains words charging the plaintiff with felony, is the same cause of action as that in the present declaration, which imputes a charge against the plaintiff as a trader."

justifying all the parts of it except the word "horsestealer," was not a sufficient justification of the libel.(a)

But where the alleged libel, contained in a letter addressed to a person who employed the plaintiff as cashier, was, conceive there is nothing too base for him to be guilty of;" a plea alleging that the plaintiff signed and delivered to the defendant an IO U, and afterwards, on having sight thereof, falsely and fraudulently asserted that the signature was not his, and averring that the alleged libel was written and published solely in reference to this transaction, was held to be a sufficient justification. (b)

In an action for libelling the plaintiff by publishing in a newspaper an advertisement stating that a writ of capias had issued against him, that it had hitherto been impracticable to take him, and offering a reward for such information to be given to the sheriff's officer as would enable him to take the plaintiff; innuendo that plaintiff was in indigent circumstances, incapable of paying his just debts, and keeping out of the way to avoid being served with process; it was held a sufficient defence to prove that a writ of capias had been issued against the plaintiff, indorsed for bail, and delivered to the sheriff; that the plaintiff had kept out of the way to avoid being taken; that the sheriff's officer had been unable to take him; and that the defendant had published the advertisement at the request of the party suing out the writ, within four calendar months of the date of the writ, to enable the sheriff and his officer to arrest. (c)

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CHAPTER VI.

imputation be

not be justified.

Though the truth of every material part of the alleged If substantial libel must be proved in order to constitute a defence to an true, every action, if the truth of the substantial imputation contained expression need in the libel be proved, the justification need not extend also to every epithet or term of general abuse which may be found in the description or statement of the imputation, (d) and which contains no ground of charge substantially distinct in its nature or character from that which forms the main charge or gist of the libel.

Thus, in an action for libelling the plaintiffs in their business of sellers of medicine, by publishing that the defendants claimed "the merit of having crushed the self

(a) Mountney v. Watton (2 B. & Ad. 673). See, also, Chalmers v. Shackell (6 C. & P. 475).

(b) Tighe v. Cooper (7 E. & B. 639; 26 L. J. 215, Q. B.).

(c) Lay v. Lawson (4 A. & E. 795). See, also, Carr v. Duckett (29 L. J. 468, Ex.).

(d) See per Tindal, C.J., Morrisson v. Harmer (3 Bing. N. C. 767; 4 Scott, 533).

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styled hygeist system of wholesale poisoning, since they CHAPTER VI. Commenced exposing the homicidal tricks of those impudent and ignorant scamps who had the audacity to pretend to cure all diseases with one kind of pill;" and that "several of the rot-gut rascals had been convicted of manslaughter, and fined and imprisoned for killing people with enormous doses of their universal vegetable boluses," &c.; the defendants pleaded a justification of the libel on the ground of truth, but did not justify the expressions scamps" and "rascals ;" and they proved at the trial that two persons had died in consequence of taking large quantities of the plaintiff's pills, and that the parties who had administered the pills were tried, convicted, and imprisoned for manslaughter. The defence, after verdict, was held sufficient, though the plea contained no justification of the expressions "scamps' and "rascals," and though it had not been proved that the defendants had completely crushed the "self-styled hygeist system of wholesale poisoning."(a)

As to the objection grounded on the non-justification of the words "scamps" and "rascals," the Court said: "It must be admitted that if these terms of invective and reproach contain any ground of charge or imputation against the plaintiffs, substantially distinct in its nature or character from that which forms the main charge or gist of the libel, and the truth of which has been justified by the plea, the consequence contended for on the part of the plaintiff's would justly follow, for the plea upon that supposition would not contain an answer to so much of the declaration as by the commencement of the plea it expressly undertakes to justify. The main charge against the plaintiffs in the libel is, that they were the compounders and sellers of pills of a poisonous and deleterious nature; and the main and principal allegation in the plea of justification is that the pills sold by the plaintiffs, when administered and taken in the doses and quantities suggested and recommended by them, were of a highly dangerous, deadly, and poisonous nature, and in the highest degree injurious to the stomachs and bowels of persons using and taking the same.' The question therefore is, whether the terms of abuse which have been above referred to, carry the matter any further than this, the main charge. The words, themselves, in their vulgar use, convey no other meaning than that of general reproach and invective; and we can only discover whether they have any particular meaning in this libel by referring to the context of the libel and to the allegations on the (a) Morrisson v. Harmer (3 Bing. N. ċ. 767; 4 Scott, 533).