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his knowledge by the editor, sued the editor to recover back the amount of fine and costs which had been so brought upon him; but the court held that there was no ground on which such an action was sustainable, because one of two participators in an indictable offence can have no remedy against the other.1

Remedy for slander or libel by action for damages.The remedy by civil action for slander or libel is founded on the same views as other actions for damages, namely, that inasmuch as character or reputation is the means of livelihood to most, and is at least a substantial means of power and happiness to all, any invasion of this right is a good cause for a jury awarding a sum of money as damages. This sum may be viewed, not merely as compensation to the plaintiff, but also as a punishment to the defendant Isufficient to induce him and others to abstain from such wrongful acts in future. This last ground, indeed, is of the essence of all laws, for if laws do not supply a sufficient average motive to abstain from injuries, they are either no laws at all or altogether inadequate for their purpose. The chief characteristic of an action for damages as contradistinguished from an indictment or information is, that the plaintiff is entire master of this remedy either to enforce it or let it alone. If he commence it he can also withdraw it, with or without some small payment to the defendant, such as the court may sometimes enforce; as is usual in all civil cases, for needlessly putting such defendant to expense by beginning an action and not going on with it. But in all circumstances the plaintiff is subject to no control in enforcing this remedy. He can either sue for the injury or not, and he can withdraw his action if he pleases without any dictation or control of third parties.

The first action for slander was in 30 Edward III., and from that time to Elizabeth the actions were few, and only for weighty causes. In rude and turbulent times slanders are usually redressed by a blow, and legal remedies are not dreamt of. During the reigns of Elizabeth and James L., the actions began to increase. 2 And Holt, C.J., seemed to

1 Colburn v Patmore, 1 C. M. R. 73.

2 2 Selw. N. P. 1191. Bac. Abr. Sland. D. 1. 3 Bl. Com. 124. COKE in his time said these actions were far too frequent.-Crofts Brown, 3 Bulstr. 167. But LORD HARDWICKE said that the old

think that actions for words ought to be encouraged, for they were a great means to preserve the peace.1

The pleadings in actions for libel.-The same leading feature distinguishes the plaintiff's statement of his claims in an action as was noticed of an indictment. The pleading must set out the defamatory words, so that the court may see, that they are capable of bearing a defamatory sense, and so that the defendant may know distinctly the charge. If this were not a rule, words, innocent in themselves, might by the witnesses be perverted from their true meaning, or be by the jury so interpreted as to make a defendant clearly liable at law. It is not, however, necessary to set out the whole book or publication; such passages as contain the libellous matter will suffice.3 And when the libel has been destroyed and secondary evidence becomes admissible, it is still necessary to set out the words as near as possible, and prove those very words instead of merely proving their substance. Though it was usual in pleadings to call a libel a false and malicious libel, yet neither the one nor the other epithet was essential, for in civil actions both are implied, especially as the words of the libel require to be set out, and so bear on their face what the court knows at sight to be libellous. And it is enough, in modern practice,

judges used their utmost endeavours to explain away the most opprobrious words.-Carpenter v Tarrant, Cas. t. Hardw. 339. It is said that in the reports there is no action for slanderous words before Edward III. and only one such for fifty years of that reign; three such actions under Edward IV; five under Henry VIII.; in Elizabeth 17.-March on Slander, 4. And VAUGHAN, C. J., said that formerly no actions for words were brought unless the slander, if true, would endanger the life of the slandered person, and that the growth of these actions would spoil all communications.-King v Lake, 2 Vent. 28.

And when a solicitor of Gray's Inn, and who had the Countess of Lincoln for client, sued a man for saying "he would milk her purse and fill his own pockets," whereby he lost her as a client, Vaughan, C. J., wished to laugh the case out of court, saying the words had no more relation to the plaintiff's business than "saying of a lawyer he hath a red nose or but a little head." The three other judges, however, held the words, coupled with special damage, were actionable.-Ibid.

1 Clifton Wells, 12 Mod. 634.

2 Wright v Clements, 3 B. & Ald, 509; Gutsole v Mathers, 1 M. & W. 503; Bradlaugh v R., 3 Q. B., D. 607. 3 Rutherford v Evans, 6 Bing. 458. 4 Rainy Bravo, L. R. 4 Privy C. 287.

to allege, that the words were used in a defamatory sense, though the inuendo mistake that defamatory sense.1 And for a like reason, if the libel was in a foreign language the original words and also a translation should be set out.2 As, however, many libels do not bear on the face of them an expressly defamatory sense, it is necessary in the pleading to set forth that sense; and as few libels describe in exact terms the person meant to be libelled, it is also necessary to indicate by an inuendo, that the plaintiff was the person, of and concerning whom the words were used.3 If the words are used in reference to a trade or profession, it must be shown in what way the words were connected with such trade or profession. And the statement of claim must expressly or impliedly allege that the libel was published.5

If special damage is necessary to constitute a cause of action, then the statement of claim must state the nature of such special damage with some detail. Thus, some names should be given where they must necessarily be known to the plaintiff; as in case of loss of friends, who used to entertain the plaintiff with food. But where the names of individuals are not necessarily known none need be set forth; as, for example, the hearers of a preacher refusing to continue attendance; 7 or customers at an inn or eating-house, who are not necessarily known to the keeper.8

The defence to action that the libel is true.-One qualification of the remedy of an action for libel is, that it is not enough to establish the tendency of the words to cause injury to character, but it is also necessary to establish the falsehood of the libellous act or conduct alleged; and yet the truth of the libel is rather a defence to be proved by the defendant than an allegation to be disproved by the plaintiff. The reason why it lies on the defendant to prove the truth rather than on the plaintiff to prove its falsehood,

1 C. L. P. Act, 1852, § 61; Watkin v Hall, L. R., 3 Q. B. 402. 2 Zenobio v Axtell, 6 T. R. 162; R. v Goldstein, 3 B. & B. 201. 3 LORD MANSFIELD said that an inuendo meant something explanatory of what was said before sufficiently; but it did not mean the addition of new matter.-R. v Tooke, 20 St. Tr. 794.

James v Brook, 9 Q. B. 13.

5 Baldwin v Elphinston, 2 W. 6 Moore Meagher,

Bl. 1037; Watts v Fraser, 7 A. & E. 233.
1 Taunt. 39. 7 Hartley v Herring, 8 T. R. 133.
Harries, 1 H. & N. 251.

8 Evans v

seems to be no other than this, that it is more easy to prove the one than the other-the positive than the negative. In the time of Lord Hardwicke, 1735, it seems that it was not recognised as quite clear that the truth of a libel could be set up as a defence to an action.1 But the judges' opinions delivered to the House of Lords in 1792 treated it as then settled. It is now enough for a defendant to say, that the libellous words or writings were true. And he must take notice also of the inuendoes added by the plaintiff. The reason given for the truth of the libel being a good defence to an action for damages has been said to be, not that it negatives malice, but that it shows that the defendant had no character to lose, and hence that no allegation could do it injury. But though the truth of the libel is a defence to an action, the mere honest belief in its truth is no defence whatever, if in point of fact the libellous matter is not true; and yet this honest mistake may lead a jury to reduce the damages which they award. for the wrong done. And for a like reason, if a libel impute felony, and all that can be proved in defence is, that there were circumstances leading merely to suspicion of felony, this will be no defence. It is sometimes attempted to justify a libellous statement by proving a general rumour or evil reputation existing to the same effect as the libel. At one time it was allowed for the defendant to give evidence of such reputation, without a plea of justification, as in mitigation of damages. But the inadmissibility of such evidence has been decided as already stated. And hence when there is no plea of justification, it cannot be asked of witnesses or proved, that before the cause of action the plaintiff was generally reputed to have been guilty of the conduct imputed. Where the libel imputed a criminal effence and the truth is pleaded, if the plaintiff has been tried on the charge and convicted, the defendant may give in the conviction as some evidence of the truth of the libel. But even though acquitted, the defendant may still prove

8

6

1 R. v Roberts, Dig. L. Lib. 89.

2 Jud. Act, Ord. xix.

3 Macpherson v Daniels, 10 B. & C. 272. Campbell Spottiswoode, 3 B. & S. 769. 5 Mountney Watton, 2 B. & Ad. 673; Chalmers Shackell, 6 C. & P. 475. 6 Leicester Walter, 2 Campb. 7 See ante, p. 183; Thompson Nye, 16 Q. B. 175; Bracegirdle v Bailey, 1 F. & F. 538. 8 Ibid.

251.

the truth of the charge, for the acquittal having been res inter alios acta is not res judicata. And the trial of this plea does not materially differ from a criminal prosecution, as where the libel is an imputation of bigamy and the defence set up is its truth. And if there was a doubt, the jury ought to be directed to give the defendant the benefit of it.3 When libel is said to be substantially true.-It often happens that a libellous statement consists of several parts, some of which are true and some of which are false. In this case, unless the truth or other justification can be proved as a defence to the whole libel, the plaintiff must obtain damages for that part which is not covered by the defence, if that is a material part of the whole. Hence much of the difficulty, on such occasions, turns on the construction of the libel compared with the nature of the defence proved. Thus, where A wrote to a master about his servant that there was "nothing too base for him to be guilty of;" and what was proved in defence was, that the servant had once signed an IO U, and afterwards denied his signature; this was held a fair justification of the general words used. As to such cases the rule is, that the substantial imputation must be looked at, and the mere turn of the expression or some vague exaggerations and abusive epithets are not to be regarded. In other words, if the sting of the charge be proved, the rest is of little consequence. Thus, the use of the words scamp and rascal is often nothing more than a rhetorical exaggeration, and does not add to the substantial imputation, if there is one sufficiently substantial in the rest of the language; as, for example, where the defendant in charging the plaintiff to be a seller of poisonous pills, called him in course of his libel "ignorant scamp," and "rot-gut rascal." And hence, sometimes, the difference between libel and no libel may turn on a slight mistake in describing the imputation, but a mistake not very material; as where the plaintiff had been described as having been convicted of riding in a railway carriage without a ticket and fined, with an alternative of three

1 England & Bourke, 3 Esp. 80; Cook v Field, 3 Esp. 134. 2 Willmott Harmer, 8 C. & P. 697. 3 Richards v Turner, Car. & M. 417. 4 Clarke v Taylor, 2 Bing. N. C. 654; Ingram v Lawson, 5 Bing. N. C. 66. 5 Tighe v Cooper, 7 E. & B. 639. 6 Morrison Harmer, 3 Bing. N. C. 767. 7 Ibid.

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