Page images
PDF
EPUB

tendered the premium before the end of the fifteen days, but after the loss.

By a policy under seal', referring to certain printed pro posals, a fire office insured the defendant's premises from 11th of November, 1802, to 25th December, 1803, for a certain premium, which was to be paid yearly on each 25th of December, and the insurance was to continue so long as the insured should pay the premium at the said times, and the office should agree to accept it. By the printed proposals it was stipulated, that the insured should make all future payments annually, at the office, within fifteen days after the day limited by the policy, upon forfeiture of the benefit thereof, and that no insurance was to take place till the premium were paid; and by a subsequent advertisement (agreed to be taken as part of the policy), the office engaged that all persons insured there, by policies for a year or more, had been and should be considered as insured for fifteen days beyond the time of the expiration of their policies; it was holden, notwithstanding this latter clause, (the insured having, before the expiration of the year, had notice from the office to pay an increased premium for the year ensuing, or otherwise they would not continue the insurance, and the insured having refused to pay such advanced premium) that the office was not liable for a loss which happened within fifteen days from the expiration of the year for which the insurance was made; though the insured, after the loss, and before the fifteen days expired, tendered the full premium which had been demanded; for the effect of the whole contract, &c. taken together, was only to give the insured an option to continue the insurance or not, during fifteen days after the expiration of the year, by paying the premium for the year ensuing, notwithstanding any intervening loss, provided the office had not, before the end of the year, determined the option, by giving notice that they would not renew the contract.

In covenant against the defendants, who were members of the Sun fire-office, a tender was pleaded and money paid into court, under the 19 G. 2. c. 37. s. 7. It was objected, that the statute did not extend to insurances against loss by fire; but the court overruled the objection, on the ground, that the statute was not necessarily confined to marine insurances; that it ought to be construed as extensively as the mischief, and there was as much reason to have money paid into court on a fire insurance as on any other".

t Salvin v. James, 6 East, 571.

u Solomon v. Bewicke, 2 Taunt. 317.

CHAP. XXVI.

LIBEL.

I. Of the nature of a Libel, and in what Cases an be maintained for this Injury.

Action

may

II. Of the Declaration and Pleadings,

III. Of the Evidence.

1. Of the Nature of a Libel, and in what Cases an Action may be maintained for this Injury,

A LIBEL is a malicious defamation expressed in printing or writing, or by signs, pictures, &c. tending to injure the reputation of another, and thereby exposing such person to public hatred, contempt, or ridicule (1).

An action on the case is maintainable against any person, who falsely and maliciously publishes any libel against

another.

As there is a difference between the malignity and injurious consequences of slanderous words spoken or written", the one being sudden and fleeting, the other permanent, deliberate, and disseminated with greater ease; many words which, if spoken, would not be actionable, are actionable, if a Austin v. Culpeper, 2 Show. 314. King v. Lake, Hardr. 470. Per Hale, C. B.

(1) "If any man deliberately or maliciously publishes any thing in writing concerning another, which renders him ridiculous, or tends to hinder mankind from associating or having intercourse with him, an action lies against such publisher." Per Wilmot, C. J. 2 Wils. 403.-" I have no doubt that the writing and publishing any thing which renders a man ridiculous, is actionable."-Per Bathurst, J., S. C. See also the same opinion expressed by Gould, J., S. C.

published in the way of libel (2). Hence the word swindler; if spoken of another, (unless it be spoken in relation to his trade or business) is not actionable"; but if it be published in the way of libel, it is actionable. Hence, also, the publication of a letter containing some verses, in which plaintiff was called an itchy old toad, was deemed a libel. So the publication of a letter, in which plaintiff was stated to be one of the most infernal villains that ever disgraced human nature, has been holden actionable, without proof of special damage.

A fair and candid comment on a place of public entertainment, in a newspaper, is not a libel.

In like manner a comment upon a literary production, exposing its follies and errors, and holding up the author to ridicule, will not be deemed a libel, provided such comment does not exceed the limits of fair and candid criticism, by attacking the character of the writer, unconnected with his publication; and a comment of this description every one has a right to publish, although the author may suffer a loss from it. Such a loss the law does not consider as an injury; it is a loss which the party ought to sustain, inasmuch as it is the loss of fame and profits to which he was

b Savile v. Jardine, 2 H. Bl. 531. J'Anson v. Stuart, 1 T. R. 748. d Villers v. Monsley, 2 Wils. 403.

e Bell v. Stone, 1 Bos. & Pul. 331.
f Dibdin v. Swan, 1 Esp. N. P. C. 28.
Kenyon, C. J.

(2) In Bradley v. Methwyn, B. R. M. 10 G. 2. MSS. which was an action on the case for a libel, Ld. Hardwicke, C. J. observed, that "the present case is not for words, but for a libel, in which the rule is different, for some words may be actionable, or prosecuted by way of indictment, if reduced into writing, which would not be so, if spoken only. For the crime in a libel does not arise merely from the scandal, but from the tendency which it has to occasion a breach of the peace, by making the scandal more public and lasting, and spreading it abroad; which was so determined in this court, in the case of King v. Griffin, Hil. 7 Geo. 2." This subject was much discussed in Thorley v. E. of Kerry, on error in Exch. Ch. 4 Taunt. 355. where a defamatory writing, imputing hypocrisy to the earl, and that he used religion as a cloak for unworthy purposes, was holden to be actionable; Sir James Mansfield, who delivered the judgment, observing, that he was bound by the later authorities, although the distinction between speaking and writing was not to be found in Rolle's Abridgment, or the earlier editions of Comyns's Digest. The action was a common action on the case, and not an action for scandalum magnatum.

not fairly entitled3. But if a person, under the pretence of criticising a literary work, defames the private character of the author, and instead of writing in the spirit, and for the purpose, of fair and candid discussion, travels into collateral matter, and introduces facts not stated in the work, accompanied with injurious comments upon them, such person is a libeller, and liable to an action"..

A fair, plain, unvarnished account of the proceedings of a court of justice, is not a libel' (3), but a highly coloured account of such proceedings, mixed up with insinuations of perjury, cannot be justified.

A false or scandalous matter contained in a petition to a committee of Parliament', or in articles of the peace exhibited to justices of the peace, or in any other proceeding

g Carr v. Hood, 1 Camp. N. P. C. 355. n. Ellenborough, C. J.

h Nightingale v. Stockdale, London Sittings after H. T. 49 G. 3. Ellenborough, C. J.

i Curry v. Walter, 1 Bos. & Pul. 525.
but see 1 M. and S. 279, 281.
k Stiles v. Nokes, 7 East, 493.

Moulton

1 Hawk. B. 1. c. 73. s. 8.
v. Clapham, B. R. E. 15 Car. 1. Sir
W. Jones, 431. March, 20, S. C.

(3) In the case of the King v. Wright, 8 T. R. 293. the court refused to grant a criminal information against a bookseller for printing a true copy of a Report of a Committee of the House of Commons, though it reflected on the character of an individual. "It must not be taken for granted, that the publication of every matter which passes in a court of justice, however truly represented, is, under all circumstances, and with whatever motive published, justifiable; but that doctrine must be taken with grains of allowance." Per Ld. Ellenborough, C. J. and Grose, J. in Stiles v. Nokes, 7 East, 503. "It often happens that circumstances necessary for the sake of public justice to be disclosed by a witness in a judicial inquiry, are very distressing to the feelings of individuals, on whom they reflect; and if such circumstances were afterwards wantonly published, I should hesitate to say, that such unnecessary publication was not libellous, merely because the matter had been given in evidence in a court of justice." Per Lord Ellenborough, C. J., S. C. "If a member of Parliament publish in the newspapers his speech, as delivered in Parliament, and it contains charges of a slanderous nature against an individual, an information will lie for a libel; though had the words been merely delivered in Parliament, they would be dispunishable in the courts at Westminster." The King v. Ld. Abingdon, 1 Esp. N. P. C. 226. The King v. Creevey, 1 Maule and Selwyn, 273. S. P. and that the circumstance of the speech being published for the purpose of correcting a misrepresentation, will not render the author less amenable to the common law in respect of the publication.

in a regular course of justice, will not make the complaint amount to a libel.

Although that which is written may be injurious to the character of another", yet if done bona fide, or with a view of investigating a fact, in which the party making it is interested, it is not libellous. Hence, where an advertisement was published by the defendant, at the instigation of A. the plaintiff's wife, for the purpose of ascertaining whether the plaintiff had another wife living when he married A.; it was holden, that although the advertisement might impute bigamy to the plaintiff, yet having been published under such authority, and with such a view, it was not libellous.

A letter written confidentially to persons who employed A. as their solicitor", conveying charges injurious to his professional character in the management of certain concerns which they entrusted to him, and in which B. the writer of the letter was likewise interested, was holden not to be a libel.

A defamatory writing, expressing only one or two letters of a name, in such a manner, that, from what goes before and follows after, it must necessarily be understood to signify such a particular person, in the plain, obvious, and natural construction of the whole, and would be nonsense if strained to any other meaning, is as properly a libel, as if it had expressed the whole name at large; for it brings the utmost contempt upon the law, to suffer its justice to be eluded by such trifling evasions.

II. Of the Declaration and Pleadings.

Venue. THIS is a transitory action, and consequently the venue may be laid in any county.

It may be stated as a general rule, that the venue cannot be changed in this action; to this rule, however, there are the two following exceptions. 1st, Where the writing and publication are confined to the same county. In this case the venue may be changed into such county 9. 2d, If the libel be sent out of England in a letter, the venue may be changed into that county in which the letter was written'.

m Delany v. Jones, 4 Esp. N. P. C.

191.

n M'Dougall v. Claridge, 1 Camp. N. P. C. 267. Ld. Eilenborough C.J. Hurt's Case, Trin. 12 Ann. Hawk. book 1. c. 73. s. 5.

p Pinkney v. Collins, 1 T. R. 571.
q Freeman v. Norris, 3 T. R. 306. E.
of Kerry v. Thorley, B. R. M. 49
G. 3. MS. S. P.

r Metcalf v. Markham, 3 T. R. 652.

« PreviousContinue »