William Blake Odgers.

The law of libel and slander : the evidence, procedure, and practice, both in civil and criminal cases, and precedents of pleadings, with a chapter on the Newspaper Libel and Registration Act, 1881 online

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Online LibraryWilliam Blake OdgersThe law of libel and slander : the evidence, procedure, and practice, both in civil and criminal cases, and precedents of pleadings, with a chapter on the Newspaper Libel and Registration Act, 1881 → online text (page 43 of 86)
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like handbills or notices, and from otherwise prejudicing or interfering with
the trial of the action or the persons to be examined as witnesses therein.
Maekett v. Commissioners of Heme Bay, 24 W. R. 845.

The defendant, on receiving a statement of claim charging him with fraud,
[* 339] wrote an angry letter to the plaintiff, a clergyman, threatening to have
a few thousand copie's printed, with defendant's own remarks thereon, and
copies of the defendant's letters, and distributed amongst all the clergy, " ad-
dressed from the Clergy List." Fry,' J., granted an injunction to restrain the
threatened publication, as being both a libel on the plaintiff as plaintiff, and
also as tending to prejudice the fair trial of the action.

Kitcapv. Sharp, 52 L. J. Ch. 134 ; 31 W. R. 227 ; 48 L. T. 64.

The plaintiffs and the defendant were ship brokers ; the plaintiffs delivered a
statement of claim charging the defendant with unfair and improper conduct
in his business, and before any defence was delivered circulated copies among
the business connections of both parties. Malins.V. C, held that the plaintiffs
had committed a contempt of Court, and must pay the costs of a motion to
commit them ; he also granted an injunction to restrain the plaintiffs from pub-
lishing or circulating copies of the statement of claim in the action .

Bowden and another v. Russell, 46 L. J. Ch. 414 ; 36 L. T. 177.

Closely akin to the power of restraining contempts of Court, is
the power which all superior Courts undoubtedly possess of forbid-
ding for a time reports of or comments on their own proceedings,
whenever the presiding judge considers that such publication will
prejudice future proceedings.


On the trial of Thistlewood and others for treason, in 1820, Abbott, C. J.,
announced in open Court that he prohibited the publication of any of the pro-
ceedings until the trial of all the prisoners should be concluded. In spite of
this prohibition, the Observer published a report of the trial of the first two
prisoners tried. The proprietor of the Observer was summoned for the con-
tempt, and, failing to appear, was fined 500£.
R. v. Clement, 4 B. & Aid. 218.

Where one of two prisoners charged with murder confessed before his trial,
and by his confession seriously implicated the other, the Court of Sessions pro-



liil)ilc(] the 'Edinburgh Evening Courant from publishing the confession, lest it
should prejudice the fair trial of the other prisoner.

Bell's Notes, 165.

See also Entond's Oase(Dec. 7th, 182!)), Shaw, 229.

Fleming and others v. Newton, 1 II. L. C. 363 ; <"> Bell's App. 175.

Riddell v. Clydesdale Horse Society, 12 Court of Session Cases (4th
Scries), 976.
Where several prisoners were to be tried at one sessions for similar acts of
sedition, and on the trial of the first one the jury disagreed, and theDublin
Evening Post severely attacked the jury for not convicting him, the Dublin
Assize Court made an order prohibiting all comments in any newspaper upon
the proceedings of the session till all the prisoners had been tried, considering
[*340] that such comments were calculated to excite feelings of hostility towards
the prisoners about to be tried.

R. v. O'Dogherty, 5 Cox, C. C. 348.
The House of Lords, when sitting as a Court of Law, claimed for many
years the right to appoint one printer to publish their proceedings, and to order
that no other person should presume to publish the same, even after the case
was at an end. So, in the case of an impeachment, Lord Erskine, L. C,
held, after great hesitation, that such an order must be enforced by injunction;
thus apparently admitting that one chamber of the legislature had the
power to create a monopoly. Such a decision would not be upheld in the
present day.

Gurney v. Longman (1807), 13 Vesey, 493-509.

And see Millar v. Taylor (1769), 4 Burr. 2303-2417.

Manby v. Owen (1755), 4 Burr. 2329, 2404.

Roper v. Streater, Skin. 234 ; 1 Mod. 217.

The Stationers v. Patentees of Rolle's Abridgment, Carter, 89.

Buttericorth v. Robinson, 5 Ves. 709.

II. Injunctions granted after Verdict or at the final Hearing.

The Superior Courts have also unquestionable power to grant an
injunction to restrain any further publication of what a jury has
found to be an actionable libel or slander. After such a finding in
his favour, the plaintiff may clearly ask for an injunction for his
protection in the future in addition to damages for the injury done
him in the past. Libel or no libel, malice or no malice, are pre-
eminently questions for a jury, but after they have once been
decided the judge may grant an injunction, if he is of opinion that
any repetition of the libel would be injurious to the plaintiff's
property. {Saxby v. Fasterbrook, 3 C. P.' D. 339 ; 27 W. R. 188.)
So when an action is commenced in the Chancery Division (as it
now may be), and the defendant does not demand a jury, or applies
for one too late, the judge who tries the action may, at the hearing,
grant an injunction. (27iorle>/s Cattle Food Co. v. Massam, 6
Ch. D. 582 ; 46 L. J. Ch. 713 ; 14 Ch. D. 763 ; 28 W. R. 295 ; 41
L. T. 542 ; (C. A.) 14 Ch. D. 781 ; 28 W. R. 966 ; 42 L. T. 851 ;
Thomas v. Williams, 14 Ch. D. 864 ; 49 L. J. Ch. 605 ; 28 W. R.
983; 43 L. T. 91. See also the remarks of Lord [*34l] Langdale, M.
R., in Clark v. Freeman, 11 Beav. 117, 118; and of the late Master of
the Rolls in Ilinrichs v. Berndes, Weekly Notes for 1878, p. 11.)




The plaintiff and the defendant were rival railway signal manufacturers.
They both invented practically the same improvement ; but defendant was the
first to patent it. Plaintiff "subsequently petitioned for a patent, but was
refused as being too late. Thereupon the defendant published an advertise-
ment announcing that " Saxby's application was cancelled by the Crown on the
ground of piracy from Easterbrook." Plaintiff claimed damages £1,000, and
an injunction to 'restrain the defendant from publishing libels againsl the plain-
tiff of the like nature and description. The jury awarded forty shillings, and
Lord Coleridge, C. J., granted a perpetual injunction. The Divisional Court
decided that lie' had power so to do, as the jury had previously found the mat-
ter libellous. [N.B. — This is the only reported case in which any injunction
has been granted in the Queen's Bench Division in an action of libel or slander.]
' Saxby v. Easterbrook, 3 C. P. D. 339 ; 27 W. II. 188.
Joseph and Josiah Thorley had equal rights to manufacture " Thorley's Food
for Cattle," both possessed the secret of its composition, and manufactured the
same article. Yet the executors of Joseph advertised that they " alone pos-
sessed the secret for compounding that famous condiment," which they knew
to be false. Malins, V.-C., refused to grant an injunction on an interlocutory
application ; but granted it at the final hearing, and his decision was upheld by
the Court of Appeal.

2horl( tf's Cattle Food Co. v. Massam (inrerlocutorv), 6 Ch. D 582 ;
46 L. J. Ch. 713.
(Before Malins, V.-C.)14 Ch. D. 7G3 ; 28 W. R. 295 ; 41 L. T.

(C. A.) 14 Ch. D. 781 ; 28 W. R. 966 ; 42 L. T. 851.
And see James v. James, L. R. 13 Eq. 421 ; 41 L. J. Ch. 253 ; 26
L. T. 568.
Mr. Gandy owned two patents for manufacturing cotton belting ; plaintiffs
were formerly his agents. An injunction was granted by Pearson, J., in 1883,
to restrain the plaintiffs from selling the belting of other manufacturers as that
of Gandy. Subsequently Gandy inserted an advertisement in the British Trade
Journal, complaining that unprincipled persons were imitating his belting, and
misleading the public, stating that the above injunction had been granted, and
that he had reason to believe that plaintiffs still continued to sell a large quantity
of other belting as his. North, J., granted an injunction with costs against
both Gandy and the publisher of the British Trade Journal, and also ordered
Gandy to pay £500 damages.

Kerr v. Gandy, 3 Times L. R. 75.
Where the plaintiff in a trade-mark case failed on all points but one, and
afterwards published a " caution " to the trade, which stated the effect of the
judgment so far as it was in his favour, but omitted all allusion to the parts of
the judgment in defendant's favour, North, J., held the report unfair, gave
[*342] the plaintiff £5 damages, and granted an injunction restraining its circula-
ion, with costs.

Hay ward & Co. v. Hayward & Sons, 34 Ch. D. 198 ; 56 L. J. Ch.
287 ; 35 W. R, 392 ; 55 L. T. 729.

III. Injunctions granted on an Interlocutory Application before
or icithout any Verdict.

It has now been decided in the Chancery Division (in the face of
a long series of decisions to the contrary), that the Court has juris-
diction to grant an injunction to restrain the publication of a libel
upon an interlocutory application at any stage of the action.
( Quartz Hill Gold Mining Co. v. Beall (C. A.), 20 Ch. D. 501 ;
51 L. J. Ch. 874 ; 30 W. R. 583 ; 46 L. T. 746.) And also to



restrain any slander calculated to injure the plaintiff's business.
(Hermann Loog v. Bean (C. A.), 20 Ch. I). 306 ; 53 L. J. Ch.
1128 ; 32 W. R. 904 ; 51 1.. T. 442 ; 48 J. P. 708.) No such in-
junction lias as yet been granted in the Queen's Bench Division, so
far as I am aware.

But this jurisdiction must he exercised with great caution so far as
interlocutory applications are concerned, and especially m cases of
Blander. Thus, an interlocutory injunction "will not be granted
restraining any publication that is prima facie privileged (Quartz
Hill Gold Mining Co. v. Beall (C. A.), 20 Ch. D. 501 ; 51 L. J.
Ch. 874 ; 30 W. R. 583 ; 46 L. T. 746), or that may he bond, fide
comment on a matter clearly of public interest. (Armstrong and
Others v. Armit and Others, 2 Times L. R. 887.) Nor will an injunc-
tion he granted until it is proved that the matters alleged in the docu-
ment complained of are untrue, so that the further Issuing of such doc-
uments would not be bond fide. (Ilalsey v. Brotherhood (C. A.), 19
Ch. D. 386 ; 51 L. J. Ch. 233 ; 30 W. R. 279 ; 45 L. T. 640. See also
[*343] Anderson v. Liebig^s Extract of Meat Co., Limited, 45 L.
T. 757.) Hence on this application, apparently, it lies on the
plaintiff to prove that the defendant's statements are false. (Bur-
nett v. Tak, 45 L. T. 743.) As soon as this is done an injunction
will he granted against continuing them, as all future publications
would then be maid fide. (Hill v. Hart Havies, 21 Ch. D. 798 ;
51 L. J. Ch. 845 ; 31 W. R. 22 ; 47 L. T. 82 ; Societe Anonyme
des Manufactures de Glaces v. Tilahmarfs Patent Sand Blast Co.
(C. A.), 25 Ch. D. 1 ; 53 L. J. Ch.'l ; 32 W. R. 71 ; 49 L. T. 451 ;
48 J. P. 68.)

And although an interim or interlocutory injunction cannot as a
rule be obtained unless the applicant shows clearly that " irreparable
damage" will ensue from the continuance of the acts complained of
— damage, that is, for which no amount of damages can adequately
compensate him (Mogul Steamship Co. v. M' Gregor, Gow <b Co.,
15 Q. B. D. 476 ; 54 L. J. Q. B. 540 ; 53 L. T. 268 ; 49 J. P. 646)—
yet in this special branch of equity injunctions appear to be freely
granted without proof of any actual damage whenever the judge
thinks the words are calculated to injure the plaintiff's business ;
and this, even in the case of slander of title, where special damage
is essential to the caus£ of action at common law. (Thomas v.
William*, 14 Ch. D. 864 ; 49 L. J. Ch. 605 ; 28 W. R. 983 ; 43 L.
T. 91. But see Dicks v. Brooks (C. A.), 15 Ch. D. 22 ; 49 L. J.
Ch. 812 ; 29 W. R. 87 ; 43 L. T. 71.)


The Rev. Thomas Scott, at the time of his death, was employed in revising
and improving the fourth edition of the Commentaries on the Bible, with the
assistance of A. After his death, the plaintiff employed A. to finish this work,
and then published it under the title of ' ' The 5th Edition of Scott's Bible, with
the Author's last Corrections and Improvements." In January, 1841, the
defendants, Fisher & Co., began to publish, in monthly numbers, an illustrated
edition of Scott's Bible, and'a reprint of the fourth edition, the copyright in
which had expired ; they advertised it, both in the public papers and on the
wrappers of the numbers, as " a new and carefully revised edition of the work,"



and as intended to " contain the whole unadulterated labours of the author, not
as [*344] re-edited byadifferent hand and an inferior mind, but precisely a*
the learned commentator bequeathed them to the world; the edition being
printed from the Last which the author published in the vigour of life." The
bill prayed thai I lie defendants might be restrained from selling or disposing of
any more copies of their publication, having on the wrappers or covers thereof
the advertisement or announcement before mentioned. But Lord Tottenham,
L. C, held "that the advertisement complained of did not hold out to the
public that the defendants' work contained any matter which was the exclusive
property of the plaintiff; that although it further alleged that any additional
or other matter which was contained in any edition subsequent to the fourth
was spurious and of no value, that allegation, if untrue, was no subject for an
injunction, although it might be the subject of an action, as being a libel on or
disparagement of the plaintiff's edition."

8 eley v. Usher (1841), 11 Sim. 581.
And see Martin v. Wright (1833), 6 Sim. 297.
There is in Scotland a public register of protests for non-acceptance and non-
payment of bills of exchange and promissory notes, established by the Scotch
Acts of 1681 and 1(596, and the 12 Geo. Ill, c. 72, and 23 Geo. III. c. 18, to
which everybody has a right of access. The defendants printed and published
an accurate copy of this register for the benefit and information of merchants.
A person whose name was upon the register applied to the Court of Session for
an interim interdict to restrain such publication, so far as his own name was
concerned. The Court granted the application, regarding it as an unauthorized
publication of their own proceedings. But the House of Lords, on appeal,
reversed the decree, holding that no such interdict ought to have been granted ;
Lord Cottenham expressing a strong opinion that such interdicts are an excess
of the -powers of the Court of Session ; as by such intervention " jurisdiction
over libels is taken from the jury, and the right of unrestricted publication is

Fleming and others v. Neicton (1848), 1 H. L. C. 363 ; 6 Bell's App.

175, post, p. 354 ; and see Riddell v. Clydesdale Horse Society (1885),

12 Ct. of Session Cases (4th series), 976.

But, in 1869, Malins, V.-C, granted both an interim and a final injunction

to restrain one of the creditors of a bankrupt firm from advertising, for the

information of all the other creditors, that the plaintiff was a partner in that

firm, and was solvent.

Dixon v. Holden, L. R. 7 Eq. 488 ; 17 W. R. 482 ; 20 L. T. 357.
A motion was made on behalf of plaintiffs, the trustees of a permanent benefit
building society and deposit bank, for an injunction to restrain the further pub-
licationand sale by the defendants of a book containing libellous comments on.
the plaintiffs' annual balance-sheets, and imputations on the solvency of the
society ; but Sir John Wickens, V.-C, refused the application, on the ground
that he had no jurisdiction to grant such an injunction.

Mid'kcm v. Ward, L. R. 13 Eq. 619 ; 41 L. J. Ch. 464 ; 26 L. T. 831.
The plaintiffs, who were subscribers to an association called The Underwriters"
Registry, and who had had a ship registered by the association in the highest
class, moved to restrain the defendants, the committee of the association, from
insertim-; in their published registry of ships the words " Class suspended"
against ."the name of the plaintiffs' ship, the defendants having, by plaintiffs'
permission, had a second survey of the ship, and altered their opinion as to its
class. Held, that [* 345] the defendants were justified in notifying to their sub-
scribers and the public their honest opinion as to the merits of the ship, and
had a right, to suspend the class until the plaintiffs should have altered the ship'
according to their requirements. Injunction refused.

Clover and anotlier v. Royden, L. R. 17 Eq. 190 ; 43 L. J. Ch. 665 ;
22 W. R. 254 ; 29 L. T. 639.
Hall, V.-C, refused to grant an injunction asked for by an insurance com-
pany to restrain the continued publication of a pamphlet which commented upon
the statistical returns of various insurance companies, compared the expenses of
their establishments with their liabilities, imputed to the plaintiff company
insol-wmcy and reckless extravagance in its management, and contained other
17 lib. & SLAN. (329)


Statements injurious to the plaintiff company in its trade and business. On
appeal, bis refusal was confirmed by Lord Cairns, L. C, and James and Mellisb
L.J.J., on the ground that the Court had no jurisdiction to gram such an in-

Prudential Assurance Co. v. Knott, L. R. 10 Ch. 142 ; 44 L. J. Ch.
L92 ; 23 W. R. 249; 31 L. T. 866.

The prosecutors in a trade-mark case agreed not to press for a conviction if
the plaintiff, the offender, would apologise, lie thereupon gave them a letter
of apology, with authority to make such use of it as they might think necessary
and they accordingly offered no evidence, and he was acquitted. They pub-
lished this letter as an advertisement, and continued to do so for nearly two
months. Thereupon plaintiff moved to restrain any further publication, on the
ground that the permission he had expressly given them to publish it was ob-
tained by duress. Held, that there was no duress, that the compromise was a
lawful one, and that the Court could not grant any injunction, even though the
publication of the apology was injuring plaintiff's business.

Fisher v. Apollinaris Go. (C. A.), L. It. 10 Ch. 2!)7; 44 L. J. Ch. 500;
23 W. R. 460; 32 L. T. 628.

The plaintiff, who was a vendor of cigars, moved to restrain the. defendants,
Berndes & Co,, from publishing in the London Tobacco Trade Review a circular
which it was alleged they were about to publish in that journal, and which the
plaintiff considered would injure his trade, and also to restrain the printer and
publisher of the Review from inserting the advertisement. The Master of the
Rolls ordered the motion to stand over till the hearing, and observed that he
was not prepared to say that, if, under the Judicature Act, a plaintiff could
sustain an action for libel, this Court would not at the hearing, while awarding
damages for the libel, restrain the continuance of its publication.
Einrichs v. Berndes, W. N. 1878, p. 11.

Where a 'circular was sent by one shareholder to his brother shareholders,
containing statements as to the financial position of the company which were
not positively proved to be untrue, and inviting all the shareholders to take
some joint action with reference to the company, it was held that though the
Court had jurisdiction to "grant ian interlocutory injunction restraining the pub-
lication, yet it would not do so when the circular was, as here, prima facie a
privileged communication.

quartz Rill Gold Mining Go. v. Beall (C. A.), 20 Ch. D. 501 ; 51 L.
J. Ch. 874 ; 30 W. R. 583 ; 46 L. T. 746.

A member of a friendly society issued to persons not members of the society
[*346] circulars containing inaccurate statements as to the financial condition of
the society. Kay, J., on motion, granted an injunction to restrain " the further
issuing of this circular, or any other circular or letter containing false or inac-
curate representations as to the credit or financial condition of the said society."
lEll v. Hart Dames, 21 Ch. D. 798 ; 51 L. J. C. H. 845 ; 31 W. R. 22.

The plaintiff dismissed one of his managers, the defendant, from his employ,
who. thereupon went about among the plaintiff's customers, making oral state-
ments reflecting on the solvency of the plaintiff, and advised some of them not
to pay the plaintiff for machines which had been supplied through himself. The
plaintiff brought an action to restrain the defendant from making statements to
the customers or any other person or persons that the plaintiff was about to stop
payment, or w T as in difficulties or insolvent, and from in any manner slandering
the plaintiff or injuring his reputation or business. No special damage was
proved; but it was held both by Pearson, J., and the Court of Appeal, that the
Court has jurisdiction to restrain a person from making slanderous statements
^ calculated to injure, the business of another person, and that this jurisdiction
extends to oral as well as written statements, though it requires to be exercised
with great caution as regards oral statements, and that in the present case an
injunction ought to be granted.

Hermann Loon v. Bean (C. A.), 26 Ch. D. 306 ; 53 L. J. Ch. 1128 ;
32 W. R. 994 ; 51 L. T. 442 ; 48 J. P. 708.

The coopers of Cork and Limerick, who made butter-firkins by hand, were
much annoyed at the plaintiff's starting a manufactory near Limerick for
making similar firkins by machinery ; and they induced the butter merchants



of Limerick to print and widely distribute a " Notice to Farmers " stating that
tliey would not purchase any butter packed in machine-made firkins, as they
found them " to be most injurious to the keeping qualities of butter," to the
great injury of plaintiff's business. The Irish Queen's Bench Division granted
an injunction to restrain the publication of this notice, on the authority of
Hermann Loog v. Bean, holding that the Judicature Act had altered the law as
laid down in Prudential Assurance Co. v. Knott.

Punch v. Boyd and others, 16 L. R. Ir. 476.
The Briton Life Association, which was not a limited company, amalgamated
twenty years ago with another company called the Medical and General Life
Association, and the company thus formed took the name of the Briton Medical
and General Life Association (Limited). In October, 1875, a new and distinct
company, the plaintiff, was registered as the Briton Life Association (Limited).
In 1885 a petition was presented for winding-up the Briton Medical and General
Life Association (Limited), and in those proceedings a proposal was made for a
reconstruction of the company and the reduction of its contracts. There wasl
a reference to chambers to ascertain whether this scheme could be properly
carried out with regard to the interests of the various persons concerned in the
company. The defendant, who was a policy-holder in the Briton Medical and
General Life Association (Limited), was alarmed at this proposal, and issued
the following advertisement to his fellow policy-holders:—' ' Life Policy Dangers.
Briton Life Office, which took over the Med'ical and General, is opposing the
winding-up petition by a scheme which seeks to save shareholders' unpaid
capital 'at expense of policy-holders. With a view to organized action, com-
[*347] municate at once with Dr. Roberts, Vanbi^gh Castle, Blackheath, S. E."
Kay, J., held, that persons reading this advertisement might understand it to
refer to the plaintiff company (though that company never had anything to do
with the Medical and General Association) and to impute insolvency to the
plaintiff company ; and he granted an injunction with costs. [It seems to me
a harmless advertisement, not libellous, and to have been published honestly in
reasonable self-defence.]

Briton Life Association (Limited) v. Roberts, 2 Times L. R. 319.
A newspaper article, commenting on recent alleged irregularities in the Ord-
nance Department of the War Office, whereby defective guns, &c , had been
supplyed to the nation and accepted without sufficient trial, asserted that the
plaintiff, a gun manufacturing company, had obtained contracts from .govern-
ment officials by corrupt means. The plaintiff brought an action for damages,
and also applied for an injunction to restrain the editor and printer of the paper
from further publishing libellous matter of the plaintiffs pending the action.
The Court (Lord Coleridge, C. J., and Denman, J.), refused the application,
as the subject-matter of the article was clearly one of great public interest, and
the comments thereon were not proved to be mala fide.

Armstrong and others v. Armit and others, 2 Times L. R. 887.

Restraining the Publication of Private Letters.

Online LibraryWilliam Blake OdgersThe law of libel and slander : the evidence, procedure, and practice, both in civil and criminal cases, and precedents of pleadings, with a chapter on the Newspaper Libel and Registration Act, 1881 → online text (page 43 of 86)