1862. KONIG บ. RITCHIE. The plaintiff admitted that he had given Fowler the information on which his pamphlet was founded, and that he had aided him in circulating it. And there was evidence that it had caused injury to the society. The plaintiff's witness, Jones, himself stated that he had been deterred from effecting an insurance in consequence of it. There was no evidence of any publication by the defendant except as above mentioned. And there was not only no evidence of any ill-feeling on the part of the defendant towards the plaintiff but there was evidence the other way. He had only been manager since 1856; he had no concern with the transactions in question, and the plaintiff himself had said to him that he knew he had no idea of injuring him, but that he, the plaintiff, "could only get at the directors" through him. The defendant, it will be observed, utterly denied the oral slander, and the jury expressly negatived it. It was not justified, and it was not contended that it would have been privileged; on the contrary, it was urged, as a reason why it could not have been uttered, that it would have been wholly irrelevant. The case therefore turned entirely on the printed libel. Sir F. Kelly submitted that the publication was privileged, being in pursuance of a duty and an interest to vindicate the society from the imputations of fraud made against them. COCKBURN, C. J., thought that the occasion was privileged, provided the publication did not go beyond it, but that there would be a question for the jury upon that as well as to the slander. At the close of the case for the plaintiff, COCKBURN, C. J. (to the jury).-The plaintiff himself, after the matter had been decided upon at law and in equity, was a party to an appeal to the public; and I own I cannot feel much sympathy for a man, who, having been the first to make an appeal to public opinion, when he is answered, in the same manner by a counter appeal, changes the tribunal which he has himself selected, and invokes the arm of the law. As to the original merits of the case. There had been a proposal by the plaintiff himself in writing, under his own hand, and the company indorsed on the policy a licence in exact accordance with his proposal. The death occurred at a place far beyond the limits of the ports mentioned in the licence; for no one can say it was a "port in the Mediterranean." That being so, it is not to be wondered at that the company resisted payment of the policy. They adhered to the terms of the licence, which was in accordance with the plaintiff's own written proposal. And they were justified in so doing. For otherwise, what would be the use or advantage of having any written contract at all, if it might be departed from or varied by either party at pleasure? In the litigation which ensued, the plaintiff, for the first time, set up an oral agreement with the agent for a larger licence; and alleged that the licence indorsed was "in fraud of" that agreement "and a pretended compliance with" it. And this was the charge which, with his concurrence, after the litigation was closed, was put forth in an "appeal to the policy-holders." What were the company to do? Nothing could be conceived more odious than these charges, or more likely to injure the character of the directors or the business of the company. Were they not entitled fairly to answer them? They answered them in the pamphlet complained of, which declares them to be "false and calumnious," and this they justify; that is, they allege that the plaintiff made charges against them, i. e., in his " declaration" in the former action, which were false and calumnious. The question will be upon that plea whether that is so. 1862. KENIG V. RITCHIE. 1862. KOENIG บ. RITCHIE. The first question which arises, however, is (even supposing the plea of justification not made out), whether the publication was privileged? As to that, the law is, that a publication is privileged which is called for either by the duty or the fair and honest interest of the party who has made it. And I am of opinion that the answer here was privileged, and that the publication was privileged. If you are of opinion that it was bonâ fide for the purpose of the defence of the company, and in order to prevent these charges from operating to their prejudice, and with a view to vindicate the character of the directors, and not with a view to injure or lower the character of the plaintiff, if you are of that opinion, and think that the publication did not go beyond the occasion, then you ought to find for the defendants on the general issue. But then, secondly, the defendants plead that the plaintiff made charges against them which were false and calumnious. Were they true? For, if not, they certainly are calumnious. If not true, were they put forth with the plaintiff's sanction and concurrence? It is said that they were merely the language of his pleader. But who gave the pleader his instructions? If you think that these charges were originally put forth by the plaintiff or with his knowledge and sanction, and that they were not true, then you should find for the defendants, that the plea of justification is proved. But even if otherwise, the defendants are entitled to the verdict on the general issue, if you are of opinion that the publication was bonâ fide for the purpose of their vindication, and did not go beyond that object. As to the alleged oral slander, did the defendant really utter the words ascribed to him? Verdict for the defendant. CAMPBELL v. SPOTTISWOODE. 1863. London Sittings. Hilary Term. lished, in a re of which he and editor, some appeals LIBEL. The action was by the Rev. Dr. Campbell, The plaintiff editor and part proprietor of the British Standard and having pubEnsign, religious newspapers, against the printer of the ligious paper, Saturday Review, for an article in that journal on the was proprietor 14th of June last, commenting on certain letters and announcements in the plaintiff's paper. The letters were by the plaintiff, and entitled "Missions to China," and in the papers in which they appeared were appended thereto cer- promote tain announcements and appeals to the religious public, in which the name of a Mr. Thompson often appeared, and of which the following, signed by the publisher, is a specimen : for assistance in circulating the paper, with a view to certain reli gious object, and also some lists of subscriptions in aid of his appeals, the defendant published certain letters and comments thereon, the effect of which was found to be, to convey that the plaintiff's real ob "Co-operation is earnestly invited to aid in sending forth on all sides arguments and appeals, calculated to awaken compassion for the lost millions of the land of China." "The free circulation list now amounts to upwards of 20,000 copies, included in which are the following:-The Hon. Charlotte Margaretta Thompson, Prior Park, Bath, 5,000; the Earl of Gainsborough, 1,000; the Earl of Shaftesbury, 1,000; the Hon. Arthur Kinnaird, 1,000; the Rev. Dr. and friends, 1,000. While this is worthy of the generous donors and the matchless cause, it is full ject was to proof encouragement to the editor and highly cheering to myself. I do trust of his paper; that the noble example here set will have the effect of calling the atten- and to suggest tion of many Christians of zeal and means who have hitherto neglected that the letters China." mote the sale and lists of subscriptions were, some of fabricated: In another of the lists of subscribers for copies for distri- them, probably bution were the following, "R. G., 250 copies; A London Held, that Minister, 120; an Old Soldier, 100." And various letters were likewise published, one of which ran thus : : "Ah, would we have our great Protestant principles, privileges and blessings more widely propagated and more securely perpetuated, then let us to a man willingly, liberally and prayerfully set up an Ensign for the nations. Put me down for 500 copies." the subject was a fit one for Upon these announcements and appeals the article com- the right of fair comment; but, so far as they went beyond that right, and suggested fraudulent acts, or motives, they were not so, merely because bonâ fide, unless they were also fair. 1863. CAMPBELL v. SPOTTIS WOODE. plained of as libellous commented, and the following were the passages selected as the subject of complaint: "The doctor refers frequently to Mr. Thompson as his authority-so frequently that we must own to having had a transitory suspicion that Mr. T. was nothing more than another Mrs. Harris, and to believe, with Mrs. Gamp's acquaintance, that there never was no such person.' But as Mr. Thompson's name is down for 5,000 copies of the Ensign we must accept his identity as fully proved (a), and we hope the publisher of the Ensign is equally satisfied on the point. Certain it is that Mr. Thompson knows more about China than anybody else in England. "To spread the knowledge of the Gospel in China would be a good and an excellent thing, and worthy of all praise and encouragement; but to make such a work a mere pretext for puffing an obscure newspaper into circulation, is a most scandalous and flagitious act, and it is this act, we fear, we must charge against Dr. Campbell (b). Buy the letters, and save the heathen. About twenty-five letters will be required;' they must be circulated and read, and for this I am wholly dependent on the good offices of the friends of the heathen.' There is no disguise in all this. Letters from correspondents, all bearing the mark of one haud (c), put the matter on a very simple basis. Ah,' writes one, 'would we have our great Protestant principles, privileges and blessings more widely propagated, and more securely perpetuated, then let us to a man willingly, liberally and prayerfully set up an Ensign for the nations.' The good soul adds, put me down for 500 copies.' "There have been many dodges tried to make a losing paper 'go,' but it remained for a leader in the Nonconformist body to represent the weekly subscription as an act of religious duty (d). Moreover, the wellknown device is resorted to of publishing lists of subscribers, the authen (a) So that here was a distinct disclaimer, as regards this name, of any idea of its being fictitious. (b) This gives the key to the real meaning of the whole article, that the making out that the advancement of Christian missions was an object to be attained or promoted by subscribing to the plaintiff's paper was a mere pretext, "a scandalous and flagitious act," and an "imposture; not that the imposture lay in fabricated subscriptions or fictitious letters, save only as a matter of mere inference arising from the similarity of tone or style. (c) This is the only passage which at all suggests a fabrication of letters, and it is done studiously by way of critical inference from the style of the letters, not by way of independent suggestion. The distinction is all-important. Why may not a public writer infer from the similarity of style in different letters or articles that they are from the same hand? There is no suggestion of a fraudulent intent in this passage. (d) This is the "dodge" or "imposture" aimed at all through; ut supra (b). |