1862. HUDSON v. SLADE if you are satisfied as to the rest of the plea, then you may safely find that it is made out, and give your verdict for the defendants. As to the second part of the complaint, the alleged giving of the plaintiff into custody, it is denied, and Others. and not justified; and it is for you to say whether any of the defendants gave the plaintiff into charge: if so, then as it is not contended that there was any ground for charging the plaintiff with felony (for there could be no felony if he bonâ fide believed that he had a right to the book), then, as to that, the question will be one of damages. Collier excepted to the direction, on the ground that it implied that if the book was that of the company, the plaintiff was not entitled to it. The jury could not agree, and ultimately were discharged. KOENIG v. RITCHIE. London Sittings. Term. holder having, of a dispute with an LIBEL. The declaration stated that in January, 1852, A policy the plaintiff effected a policy on the life of one Haire with in the course the Scottish Equitable Life Assurance Society, through one of ur Cook, their then London agent, and that he placed before them a proposal as the basis of the said policy, whereby licence was to be given to Haire to travel to certain ports in the Mediterranean and certain adjacent districts. That in February, 1856, the plaintiff assigned the policy to one Fowler, and that on the 9th January, 1856, the life had dropped, and Fowler then became a claimant on the policy, and the claim was resisted on the ground that Haire had travelled ance company, published a a pamphlet accusing the fraud, and they having published a directors of pamphlet in answer, de claring these charges to be false and calumnious, and beyond the limits of the said licence,-to wit, a place also asserting That Fowler had sued in that, in a suit called Dar-el-Beida, in Africa. he had instituted, he had sworn (in support of those charges) in opposition to his own handwriting; and evidence being given that there was ground for these statements, and the pamphlet of the company having been only handed by the manager to a party applying for a policy, in answer to an inquiry by him as to the case:- Held, that if the publication was fair, bonâ fide, and without malice, and not for the purpose of injuring the policy holder, but of vindicating the company, then it was privileged; and that if his charges were false, the publication, even if not privileged, was justified, because, if false, they were calumnious. 1862. KONIG V. RITCHIE. the name of the plaintiff on the said policy, and had filed a bill in Chancery, and that in that suit the plaintiff gave evidence as to the instructions he had given to Cook, the agent of the company (who had since died), and as to the extent of the limits of the proposed licence. That thereupon the defendant falsely and maliciously published of the plaintiff of and concerning the matters aforesaid the libellous words following. [In the original, this was after quoting the plaintiff's declaration in his action on the policy, containing a count charging the company with fraudulently putting off upon him a narrower licence.] "In making these false and calumnious statements against the directors, Mr. Koenig, whose memory as to what had taken place between himself and Mr. Cook, appears to have been so clear and distinct, seemed entirely to have forgotten that the terms of the licence had been written by himself upon the proposal." And the further words (referring to the Chancery suit): "In the suit, Mr. Koenig, in face of his own written proposal, swore that it had been agreed between him and Cook that the licence should extend to all the ports in Africa, when Mr. Cook having unluckily died a few days before Mr. Haire, there was no opportunity of contradicting Mr. Koenig's statement by a counter-statement of Mr. Cook." Inuendo, that the plaintiff had sworn falsely and contrary to the truth. Second count in slander, that the defendant falsely and maliciously spoke and published of the plaintiff the slanderous words, to the effect that he had been concerned in a gigantic fraud upon the Society. Pleas: 1. Not guilty. 2. Denying the allegations in the declarations by way of inducement. 3. Except, as to the last count, that the words published are true in substance and fact. M. Chambers, Watkin Williams, and Edward Besley, for the plaintiff. Sir F. Kelly, Macaulay, and Rew, for the defendant. On the 31st December, 1851, the plaintiff, then trading to Africa, applied to Cook, the London agent of the Society, whose head office was at Edinburgh, for a policy for 2,000l. on the life of Haire. It was known that Haire was to visit Africa for purposes of trade, and the plaintiff told Cook he wanted a licence to allow of such visits, and in the proposal wrote a memorandum of the licence he should require with that view. This was sent by Cook to Edinburgh, and the answers to printed inquiries stated that Haire had travelled in Africa. The proposal was accepted, and on the 5th January, 1852, was sent. The policy contained the usual provision that it should be avoided by his going out of Europe. But there was endorsed upon it a licence in exact accordance with a proposal written by the plaintiff, in these terms, dated 31st of December, 1851: "Notwithstanding the restrictions contained in the within policy, Mr. Haire will be at liberty, without licence or extra premium, to visit Tangier, or any other port within the Mediterranean; but it is understood that he is not to reside out of Europe at any place in the Mediterranean beyond the period of three months, or to go into the interior of Asia or Africa." It was admitted that all parties-Haire, the life insured; the plaintiff, who insured; and Fowler, one of the referees, and to whom the policy was afterwards assigned-knew at the time of the terms of the proposal, and, of course, having the policy in their possession, they could see that the licence endorsed upon it was in exact accordance therewith. And, in point of fact, Cook, when he sent the proposal for licence to the head office in Edinburgh, sent it with a letter to the effect that "occasional visits" to the ports in the Mediterranean would be "conducive to 1862. KENIG v. RITCHIE. 1862. KOENIG v. RITCHIE. health" rather than otherwise. No objection, however, was taken to the terms of the licence until after the death of Haire, the life insured. He died on the 9th of January, 1856, at a place called Dar-el-Beida, or Casa Blanca, a place in Morocco about 180 or 200 miles south-west of Gibraltar, on what is called the Barbary coast, but it is on the Atlantic or West Coast of Africa, and not in the Mediterranean. When the company found this out (which they did not at first), they disputed payment, and, as the last payment of premium was after the death and after, as they contended, the policy was forfeited by a death far beyond the limits of the licence, they proposed to return that premium, which, of course, had been received in ignorance of Haire's death. The plaintiff, suing on the policy, added a count to his declaration, in which he charged that he had agreed with the company's agent for a licence to visit all the ports on the coast of Africa, and that the company had fraudulently granted a policy with a licence more limited. The policy having been successfully defended by the company on the ground that the death was at a place beyond the limits of the licence, the parties went into equity, and in November, 1858, Vice-Chancellor Stuart decided that, by reason of mistake, there was no contract, and decreed a return of the premiums. Then Fowler published his pamphlet attacking the company, in which he embodied the same charge as had been made by the now plaintiff in his action, and which contained many misstatements. In the same year the company published a pamphlet in answer in Edinburgh. In this pamphlet, after setting forth the plaintiff's declaration in his action on the policy, which contained a count for fraudulently giving him a licence narrower than had been agreed upon, came the passage declared on, "In making these false and calumnious statements, &c." The publication by the defendant relied on was in March, 1860. One Jones said that having gone to the London office, and proposed for a policy, asked the de fendant, the manager, if the society ever disputed their policies, and he answered that they had never done so except in one case (referring to the present), which he said would be found described in this pamphlet (handing it to Jones), and which, he added, was a case of "gigantic fraud." This was relied upon, not only as a publication of the libel, but also as the substantive slander, for which the second count was added. The evidence of the defendant as to this was as follows: He said Jones observed to him, "You have disputed a case, I hear?" To which witness answered, "Yes; I suppose you refer to the case of Haire, who went beyond the limits of the licence on his policy." Jones asked for further particulars, and the witness said he had not time to state them, but he would find them in a pamphlet which had been put forth by the directors on the case, and he then asked a clerk, named Smalridge, to take out a copy, and he gave it to Jones to read in the office. He never used the words "gigantic fraud," nor any such words in reference to the case. Neither did he give him the pamphlet to take away, and though he did not in terms forbid it, he did not intend it, and was sorry to find out afterwards that Jones had taken it. He had only had six copies from the directors, and accounted for all of them. He had only two in the office at first for his private use or reference there, and he applied for one or two more for policy-holders, and the directors sent him six from Edinburgh, which were kept by Smalridge. Three of these were still in the possession of the clerk Smalridge. One had been given to a gentleman who had objected to complete an assurance in consequence of Fowler's pamphlet; another had been given to a member of the society who applied for information, and the sixth was the one given to Jones. The witness said his own two private copies were in his pocket. Smalridge, the clerk, confirmed this evidence. VOL. III. G G F.F. 1862. KONIG บ. RITCHIE. |