William Blake Odgers.

A digest of the law of libel and slander; with the evidence, procedure, and practice, both in civil and criminal cases, and precedents of pleadings online

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Online LibraryWilliam Blake OdgersA digest of the law of libel and slander; with the evidence, procedure, and practice, both in civil and criminal cases, and precedents of pleadings → online text (page 1 of 77)
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A DIGEST



OF THE LAW OF



LIBEL AND SLANDER,



WITH THE



EVIDENCE, PROCEDURE, AND PRACTICE, BOTH IN
CIVIL AND CRIMINAL CASES,



AND



PRECEDENTS OF PLEADINGS.



BY

W. BLAKE ODGERS, M.A, LL.D.,

LATE SCHOLAR AXD LAW STUDENT OF TRINITY HALL, CAMBRIDGB

OF THE MIDDLE TEMPLE AND THE WESTERN CIRCUIT,

BARRISTER-AT-LAW.



FIRST AMERICAN EDITION.



By MELVILLE M. BIGELOW, Ph.D.



BOSTON:
LITTLE, BROWN, AND COMPANY.

1881.



T
OdXSU



Entered according to Act of Congress, in the year 1881, by

Little, Brown, & Co.,
In the Office of the Librarian of Congress, at Wasliington.



Univf.rsity Press:
John WiLst).N a.nu Son, Cambridge.



TO

ARTHUR CHARLES, Esq., Q.C,

KECORDER OF BATH,
IN ACKNOWLEDGMENT OF MANY KINDNESSES,

I Dedicate this Book.



776936



EDITOR'S PUEFACE.



The excuse, if one be needed, for another book on
Libel and Slander, and that an English one, may be
found in the excellence of the author's work. A clear
head and a skilled hand are to be seen throughout. And
this, with the fui'ther fact that the volume is a fresh expo-
sition of the latest phase of the law, made tmo ictu and
not piecemeal, is sufficient to justify the editor in asking
for it a place alongside the valuable work of Mr. Towns-
hend.

The work too is in the editor's opinion extremely
valuable in the part more peculiarly English. The rules
of practice, the forms and precedents, and the details
concerning the conduct of causes, will prove almost as
suggestive here as in England, whether in aid of liti-
gation or of legislation ; and the editor does not know
where so much valuable information of the kind may
be obtained within convenient limits.

The American cases are cited as late as September, so
far as the Reports were at hand at that time.

Boston, Sept. 16, 1881.



PREFACE.



This book has been called " A Digest of the Law of Libel and
Slander," because an attempt has been made to state the law on
each point in the form of an abstract proposition, citing the
decided cases in smaller type merely as illustrations of that
abstract proposition.

Every reported case decided in England or Ireland during the
last fifteen years has been noticed. Every case reported in Eng-
land during this century has, I believe, been considered and men-
tioned, unless it has either been distinctly overruled or has become
obsolete by a change in the practice of the Courts or by the repeal
of some statute on which it depended. The earlier cases have
been more sparingly cited, but I think no case of importance since
1558 has been overlooked. The leading American decisions have
also been referred to, and whenever the American law differs from
our own, the distinction has been pointed out and explained.

Canadian and Australian decisions have also been quoted, when-
ever the English law was doubtful or silent on the point. The
cases have been brought down to the early part of January, 1881.

It would be of but little use to place all these decisions before the
reader and leave him to draw his own conclusions. A huge col-
lection of reported cases piled one on the top of the other is not
a legal treatise, any more than a tumbled pile of bricks is a house.
I have throughout attempted to strike a balance, as it were, and
state the net result of the authorities. But this is a process
requiring the greatest care and much expenditure of time.
When I commenced this book in 1876, I did not at all realize
the amount of labor which was requisite in order to ascertain the
law and state it clearly in an abstract form.



Vlll PREFACE.

It is often very difficult to determine whether or no a decision
has ceased to be a binding authority : our judges in the present
day seldom expressly overrule a previous decision ; they comment
on it, distinguish it, explain it away, and then leave it with its
lustre tarnished, but still apparently a binding authority should
identically the same facts recur. There is no rule which decides
how long the process of " blowing upon " a case must continue
before it may be considered overruled. Whenever such a case
has been cited, I have always referred the reader to the places
where it has been criticised, adding, however, my own opinion as
to the effect of such criticism on the authority of the case. And
in man}' places it has been necessary to review the cases in a note,
showing how they bear one on another, and justifying the view
which I have taken of their result. Such notes are printed in
a medium type, smaller than that devoted to the abstract propo-
sitions of the Digest, larger than the Illustrations which follow
them.

In thus ascertaining the principles underlying the various de-
cisions, no assistance whatever has been derived from any previous
book on the Law of Libel and Slander. No such book has been
written on the same plan. For all conclusions of law herein stated,
I am, of course, solely responsible.

My object throughout has been to save the reader trouble. All
the references to every decision have always been cited. All con-
siderations of style, &c., have been sacrificed to clearness and
convenience. I have abruptly changed from the third to the first
or second person, whenever there was any possibility of mis-
taking the antecedent of any pronoun. It is sometimes difficult
to follow A., B., and C, through a long sentence : it is easier
to distinguish between " I," " you," and " he." Again, when-
ever I have been in doubt whether the law on a particular subject
should be noticed in one chapter or in another, I have invari-
ably stated it in both. Thus, nearly the whole of the chapter on
Malice will be found scattered up and down the long chapter on
Privilege. So, too, for the sake of practical convenience, all the
cases as to the hmuendo and the construction to be put on De-



PREFACE.



famatory Words, have been collected in Chapter III. In Chapter
XII. all the law as to Husband and Wife, Principal and Agent,
&c:, &c., has been gathered together under the somewhat stilted
but convenient title of The Law of Persons. A separate chapter
has been devoted to the subject of Costs. In the chapters on
Blasphemous and Seditious Words, I have not hesitated to ex-
press freely my conviction that many of the early decisions would
not be followed in the present day.

One difficulty connected with the subject-matter of the book
I have endeavored to avoid by restoring the word " malice "
to its simple and ordinary meaning. The distinction between
" maUce in law " and " malice in fact " is of comparatively
recent origin. " Malice in law " is the vaguest possible phrase ;
it merely denotes "absence of legal excuse." The plaintiff is
never called on to prove the existence of " malice in law ; " the
defendant has to show the existence of some legal excuse. In
short, to say that a libel must be published " maliciously " means
merely that it must be published " on an unprivileged occasion."
I have therefore abandoned this technical and fictitious use of the
word. Throughout this book (to use the words of Brett, L. J.,
in Clark v. Mohjneux, see p. 266) " ' Malice ' does not mean
'malice in law,' a term in pleading, but actual malice, that which
is popularly called malice."

The second part of the book is devoted to Practice, Proced-
ure, and Evidence. I have fought both a civil action and a crim-
inal trial through from beginning to end, giving practical hints to
each side. Chapter X. is in short a manual of the practice in an
action of tort under the Judicature Act. I have taken up the
subject at an earlier point than is usual in law books, and have
submitted to the plaintiff certain matters which he should care-
fully consider before he issues his writ (p. 449).

In the Appendix will be found a full collection of Precedents
of Pleadings, both in Civil and Criminal cases. Some are drawn
from the reports ; others are hypothetical cases of my own
invention ; but the majority are pleadings in actions in which
friends of mine, or I myself, have been professionally engaged.



X PREFACE.

In June, 1880, appeared the Report of the Select Committee
of the House of Commons appointed to inquire into the Law of
Newspaper Libel. I have ventured to deal seriatim with the three
recommendations contained in this Report, and to express my
opinion thereon (pp. 261, 391, 531). A copy of the Report will
be found in Appendix B. (p. 662).

In conclusion, I have to acknowledge my great obligation to
my learned friend, Mr. Wurtzburg, of Lincoln's Inn, who has
kindly revised the proofs of this book, added all the references
to the various reports, and prepared the elaborate Table of Cases
at the commencement of the volume.

W. Blake Odgers.

5, Hare Court, Temple, E. C.
February, 1881.



TABLE OF CONTENTS.



PAGE

TABLE OF CASES xxi-xlv

TABLE OF STATUTES CITED xlvii-xlix

TABLE OF RULES AND ORDERS CITED 1-lii



PART I.

A DIGEST OF THE LAW OF LIBEL AND SLANDER.



CHAPTER I.

INTRODUCTORY 1-16

Definitions 1

Distinction between Libel and Slander 3

Motive Immaterial, save on the Question of Damages 5

Acts injurious to Reputation 8

"Liberty of the Press " defined 10

History of tlie Censorship of the Press ib.

Injunction to Restrain a Libel will not be granted 13



CHAPTER II.

DEFAMATORY WORDS 17-92

Definitions 17

Injury to the Reputation the gist of the Action 18

PART L — LIBEL.

Libel defined 21

Libels on Persons in Ofiice 27

Libels on Professional Men 29

Libels on Traders 30

Libels on Traders' goods 32

Fair and bond fide Comment on Matters of Public Interest 34

Criticism defined and distinguished from Defamation 36

Malicious and Unfair Attacks 38



Xll TABLE OF CONTENTS.

What are Matters of Public Interest 41

Mkirs of State 42

Admiuistratiou of Justice 44

Public lustitutious and Local Authorities 46

Ecclesiastical Affairs 47

Books, Pictures, &c 48

Theatres, Concerts and other Public Entertainments 49

Other Appeals to the Pubhc 50

PART II. — SLANDER.

I, Words imputing an Indictable OfFence 54

Early Cases on this Subject 58

The Charge must be Specific and Precise 60

The Crime imputed must be possible 61

II. Woi'ds imputing a Contagious Disease 62

III. Words spoken of the Plaintiff in the way of his Office, Profession,

or Trade 64

Such Words must affect him in such Office, Profession, or Trade . 65

Imputation of Professional Ignorance or Unskilfulness .... 67
Plaintiff must be carrying on such Trade, &c., at the time he is

Defamed 69

Words imputing Waut of Integrity to any one holding an Office

of Trust 70

Words concerning Clergymen 72

-Words couceruiug Barristers, Solicitors, &c 74

Words concerning Physicians and Surgeons 75

Words affecting Traders in the way of tlieir Trade 77

Imputations of Insolvency 78

Imputations of Dishonesty and Fraud in the Conduct of their

Trade 79

IV. Words Actionable only by reason of Special Damage 82

Words imputing Immorality 83

Words imputing Unchastity 84

Unsatisfactory State of the Law on this point 86

All Words causing Special Damage are Actionable 87

CHAPTER III.

CONSTRUCTION AND CERTAINTY 93-132

What Meaning the Speaker intended to convey is immaterial .... 93

Libel or no Libel is a question for the Jury 94

Duty of the Judge 94

Words not to be construed in mitiori sensu 95

Jury to consider the Words as a whole 98

When Evidence may be given of other Defamatory Publications by De-
fendant of Plaintiff 99

Of the Innuendo 100

The Words must be set out verbatim, in the Statement of Claim . . . 101

1. Words clearly Defamatory 105

'2. "Words joW«a/aaV Defamatory 107



TABLE OF CONTEKTS. XIU

3. Neutral Words 109

4. Words prima /acie Innocent lliJ

5. Words clearly lunoceut IIG

Certainty. Early Teclmicalities 118

Certainty of the Imputation 120

Criminal Charges 121

Indirect Imputations 125

Certainty as to Person Defamed 127



CHAPTER IV.

SO AND ALUM MAGNATUM 133-136

St,atutes 133

What Words are included therein 135



CHAPTER V.

SLANDER OE TITLE, OE WORDS CONCERNING THINGS . . 137-149

DeGnition 137

I. Slander of Title proper 138

Actionable, if words false and malicious, and if special damage be

proved ib.

Proof of Malice 142

II. Slander of Goods Manufactured or Sold by another 145

Other Words producing Special Damage 148

CHAPTER VI.

PUBLICATION 150-168

Definition of 150

Plaintiff must Prove a Publication by the Defendant in fact .... 153

Publication per alium 155

Publication in a Newspaper 157

Repetition of a Slander 161

Naming your Authority now no Defence 162

Rule that every one Repeating a Slander becomes an Independent Slan-
derer 166

Exceptions to this Rule 167

CHAPTER VII.

JUSTIFICATION 169-181

Onus of Proving Words true is on the Defendant 169

The whole Libel must be Proved true ib.

The Rule applies to all Reported Speeches or Repetitions of Slander . . 173

Justification must be Specially Pleaded 177

Justification in a Criminal Case 178

Roman Law as to Truth of Libel 180



XIV TABLE OF CONTENTS.

CHAPTER VIII.

PRIVILEGED OCCASIONS 182-263

Defence that Words were spokea ou a Privileged Occasion 182

Occasions Absolutely Privileged 183

Occasions in -which the Privilege is Qualified ib.

The Judge to Decide wLetlier Occasion is Privileged or not .... 185

PART I.

OCCASIONS ABSOLUTELY PRIVILEGED 185-196

(i) Parliamentary Proceedings 186

(ii) Judicial Proceedings 188

Words Spoken by a Judge ib.

Woi'ds Spoken by Counsel 190

Words Spoken by a Witness 191

(iii) Naval and Military Affairs 194

PART II.

QUALIFIED PRIVILEGE 196-263

Cases of Qualified Privilege classified 196

I. Where circumstances cast upon the Defendant the duty of
Making a CoiiMUNiCATioN.

A. Communicatiom made in pursuance of a Duti/ owed to Society . . 198
Duty may be Moral or Social ib.

(i) Characters of Servants 200

(ii) Other Confidential Communications of a Private Nature.

{a) Answers to Confidential Inquiries 203

{b) Confidential Communications not in answer to a pre-
vious luquiry 207

{c) Communications made in discharge of a duty arising
from a Confidential Relationship existing between

the parties 209

(i/) Information volunteered when there is no Confiden-
tial Relationship existing between the Parties . . 213

Difficulty of the Question 215

(iii) Information given to any PubUe Officer imputing Crime or

Misconduct to others 220

Such Officer must have some Jurisdiction to entertain Com-
plaint 223

B. Communications made in Self-Defence.

(iv) Statements necessary to protect Defendant's private In-
terests 225

(v) Statements provoked by a previous attack by Plaintiff on

Defendant 228

Statements invited by the Plaintiff 230

n. Where the Defendant has an Interest in the Subject-matter
OF THE Communication, and the Person to whom the Com-
munication IS made, has a Corresponding Interest . . . 233

Where a large Body of Persons are interested 237

If Strangers present, the Privilege will be lost 239



TABLE OF CONTKNTS. XV

in. Privileged Reports.

(i) Reports of Judicial Proceedings 243

Matters coram nonjadice 244

Reports not privileged 249

Reports must be accurate 250

No Comments should be interpolated 254

An accurate Report may still be malicious 256

(ii) Reports of Parliamentary Proceedings 257

(iii) Other Reports 259

Suf^^estion of the Select Committee of the House of Com-

261



mous



CHAPTER IX.

MALICE 264-288

Intention of Defendant as a rule immaterial 264

Material when the Occasion is one of Qualified Privilege 266

Onm of proving Malice lies on the Plaintiff 269

I. Extrinsic Evidence of Malice 271

Former publications by Defendant of Plaintiff 272

That the Words are false is alone no evidence of Malice .... 274
II. Evidence of Malice derived from the Mode and E.x.tent of Publication,

the Terms employed, &c 277

(i) Where the Expressions employed are exaggerated and uu-

warrantable ; but there is no other Evidence of Malice . 279

(ii) Where the Mode and Extent of Publication is Excessive . 282

Communications volunteered 286



CHAPTER X.

DAMAGES 289-333

General and Special Damage Defiued and Distinguished 289

I. General Damages 291

General Loss of Custom 293

II. Ecidencefor the Plaintiff in Aggravation of Damages.

(i) Malice 296

(ii) Extent of Publication 298

(iii) Plaintiff's Good Character ib.

III. Ecidence for the Defendant in Mitigation of Damages.

(i) Apology and Amends 299

(ii) Absence of Malice 301

Conflicting Cases on this Point 303

(iii) Evidence of the Plaintiff's Bad Character ..... 304

(iv) Plaintiff's previous Conduct in provoking the Publication 306

(v) Absence of Special Damage 308

rV. Special Damage where the words are not actionable per se . . . . ib.

Wiiat constitutes Special D.image • 309

Special Damage must be specially pleaded 313

Special Damage subsequently arising 317

V. Special D.rmnge where the words are actionable "^tv s& 318

VI. Remoteness of Damages 321



XVI TABLE OF CONTENTS.

Damage resulting to the Husband of the Female Plaintiff. . . . 323

Damage caused by the act of a Third Party 325

Not essential that such Third Person should believe the Charge . 327

Wrongful and Spontaneous Act of a Third Person 328

Originator of a Slander not hable for Damage caused by its repeti-
tion 329

Exceptions to this Rule 331

CHAPTER XI.

COSTS 334-343

Costs now follow the Event 334

All early Statutes as to Costs repealed by Judicature Act 335

Application to deprive successful Plaintiff of Costs 336

Costs of New Trial 338

Apportionment of Costs of Issues ib.

Costs after Payment in Court 3iO

Costs of Counterclaim 341

Costs in Criminal Proceedinsrs 343



CHAPTER Xn.

THE LAW OF PERSONS. IN BOTH CIVIL AND CRIMINAL

CASES 344-372

1. Husband and Wife 345

Claim by Husband for Words defamatory of Wife 347

Married Woman Defendant 350

Criminal Liability of a Married Woman 351

2. Infants 352

3. Lunatics 353

4. Bankrupts 354

5. Receivers 355

' 6. Executors and Administrators ib.

7. Aliens 356

8. Master and Servant — Principal and Agent 353

Master's Commands no Defence 359

Principal liable for Words spoken by his Authority 360

Ratification 361

Criminal Liability of Master or Principal 362

9. Partners 365

10. Corporations and Companies 367

11. Otlier Joint Plaintiffs 369

12. Jomt Defendants 370



CHAPTER XHI.

CRIMINAL LAW • 373-393

Illegality of Contracts as to Libellous Matter 374

I. Criminal Remedy by Indictment 375

Special Intent, when necessary 376



TABLE OF CONTENTS. XVll

Punishment at Common Law 37S

Statutes 397

II. Criiiiinal Eemedy by Information 380

Libels on Foreign Ambassadors, &c 3^3

III. Law Common to all Criminal Cases iO.

Publication of a Libel by one unconscious of its Contents .... 384

Criminal Liability of an Employer 385

Justification not permitted at Common Law 388

Justification under Lord Campbell's Act 389

Considerations as to Criminal Proceedings for Libel 390

Suggestion of the Select Committee of the House of Commons .... 391



CHAPTER XIV.

BLx\SPHEMOUS WORDS 394-403

Blasphemous Words defined 394

Intent to bring Religion into Contempt 395

Honest Advocacy of Heretical Opinions 390

Justification not allowed 398

Statutory Provisions 400

Jurisdiction of Ecclesiastical Courts 402



CHAPTER XV.

OBSCENE WORDS 404-408

Test of Obscenity 404

Summary Proceedings under 20 & 21 Vict. c. 83 405



CHAPTER XVI.

SEDITIOUS WORDS 409-448

Seditious Words defined 409

Treasonable Words 410

Words Defamatory of the Sovereign himself 413

Truth no Defence . 414

Words Defamatory of the King's Ministers 415

Words tending to Subvert the Government 418

Words Defamatory of the Constitution ■ . . . . 419

Latitude allowed to Political Writers 420

Words inciting to Disaffection and Riot 421

Words Defamatory of either House of Parliament 422

Commitment for Contempt 423

Colonial Legislative Bodies 425

Words Defamatory of the Superior Courts of Justice 420

Contempt of Court 428

Wilful Disobedience to an Order of Court 431

Attachment and Committal 433

Colonial Courts of Justice 438

Words Defamatory of Inferior Courts of Justice 440

b



Xviii TABLE OF CONTENTS.

, Contempt of an Inferior Court of Record 442

Sureties for Good Behavior 444

Statutory Powers of Inferior Courts 445

Ecclesiastical Courts 448



PART II.

PRACTICE, PROCEDURE, AND EVIDENCE.



CHAPTER XVII.

PRACTICE AND EVIDENCE IN CIVIL CASES 449-570

Considerations before Writ 449

Parties 452

Letter before Action ; Notice of Action . . . .* 453

Choice of Court if'-

District Registry 454

Statute of Limitations 455, 490

Former Proceedings 456

Joinder of Causes of Action 458

Indorsement on Writ 459

Service of the Writ 460

Appearance 462

Judgment by Default 463

Matters to be considered by the Defendant 465

Security for Costs 466

Remitting the Action to the County Court 468

Statement of Claim 469

Venue 474

Instructions for Statement of Defence 475

Demurrer ib.

Particulars 479

Statement of Defence 480

Traverses 481

Bond Fide Comment. No Libel 483

Privilege 484

Justification 485

Apology 487

Accord and Satisfaction 489

Previous Action 490

Other Defences ib.

Payment into Court 491

Counterclaims 494

Judgment in Default of Pleading 495

Reply 496

Rejoinder 498

Amendment of Pleadings ib.

Default in Pleading 500



T^IBLE OF CONTENTS. XIX

Interrogatories 500

Striking out luterrogatories 509

Answers to Interrogatories 511

Further and Better Answers 515

Discovery of Documents ib.

Further aud Better Affidavit 519

Inspection of Documents 520

Default in making Discovery 522

Notice of Trial. Entry for Trial ib.

Advice on Evidence 524

Examination of Witnesses before Trial 526

SpecialJury 528

Change of Venue ib.

Trial 529

Proof of the Plaintiff's Special Character 530

Proof of Pubhcation 531

Proof of the Libel 535

Proof of the Speaking of the Slander 537

Evidence as to the Innuendo 538

Proof that the Words refer to the Plaintiff 540

Proof that the Words were spoken of the Plaintiff in the way of his Office,

Profession, or Trade 541

Evidence of Malice ib.

Evidence of Damage 542

Nonsuit 543

Evidence for the Defendant 545

Withdrawing a Juror 550

Sumining-up ib.

Verdict 551

Judgment 552

Costs 553

Proceedings after Judgment 554

Application for a New Trial 556

Proceedings in the Court of Appeal 561

County Court Proceedings 565

Other Inferior Courts 569



CHAPTER XVIII.
PRACTICE AND EVIDENCE IN CRIMINAL CASES. . . .571-596

PART I.

PRACTICE AND EVIDENCE IN CRIMINAL PROCEEDINGS BY

WAY OF INDICTMENT 571-591

Proceedings before Magistrates 571

Indictment 574

Pleading to tlie Indictment 576

Certiorari 578

Evidence for the Prosecution 580



XX TABLE OF CONTENTS.

Evidence for the Defence 582

Suniming-up and Verdict 585

Proceedings after Verdict ib.

Seutcuce 589

Costs • 590

PART II.

PRACTICE AND EVIDENCE IN PROCEEDINGS BY WAY OE

CRIMINAL INFORMATION 591-596

Motion for the Rule 591

Argument of the Rule 593

Compromise 594

Trial and Costs 595



APPENDICES.

A. APPENDIX OE PRECEDENTS OF PLEADING, ETC. . . 596-661

Contents 596

I. Precedents of Pleadings in Actions for Libel 600

II. Precedents of Pleadings in Actions of Slander ........ 621

III. Precedents of Pleadings in Actions of Slander of Title .... 634

IV. Forms of Pleadings, Notices, &c., in the County Court .... 644
V. Precedents of Criminal Pleadings 649

B. REPORT FROM THE SELECT COMMITTEE OF THE HOUSE

OF COMMONS ON THE LAW OF LIBEL 662

C. APPENDIX OF STATUTES 664-683

Contents 664



GENERAL INDEX 685-748



TABLE OF CASES.



A.

V. Moor

Abraliiims v. Kidney
A brains i'. Smith
Abuij t'. Riches
Adams v. Ilannon



305

313
94, 99

305



V. Kelly 155, 333, 533, 535, 538

V. Lawson 22, 2'.)8

V. MereJew 104

V. Rankin 84

V. Rivers 83

V. Smith 805, 313

Adcock V. Marsh 2'.)8

Ad lam V. Colthurst 433, 447



Online LibraryWilliam Blake OdgersA digest of the law of libel and slander; with the evidence, procedure, and practice, both in civil and criminal cases, and precedents of pleadings → online text (page 1 of 77)