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merely comment on the article which they it was held that an action could be main. have advertised to the public. In Ma- tained in respect of a statement in a lacky v. Soper (1), where a paragraph was newspaper, that a ship of the plaintiff was published in a newspaper, falsely stating unseaworthy. that the petition in a bill filed in the Court [MELLOR, J., referred to Campbell v. of Chancery against the plaintiff and certain Spottiswoude (4). ] other persons as shareholders in a mine, It has been held actionable to publish had been granted by the Vice Chancellor, words which throw discredit on the and that persons duly auth..sed had commodity in which the plaintiff deals arrived at the workings, it was held that as Tubart v. Tipper (5), Sturkie on Libel, the slander did not affect the person or

ed. 161. character of the plaintiff, it was not action. Joyce, in reply. able without proof of special damage, and in Etans v. Harlow (2), where the action MELLOR, J.-I regret that in this case was for a publication by the defendant of there should be a difference of opinion on a notice that certain self-acting lubri- the Bench, and if the action had rested cators sold by the plaintiff were not good on the first part of the paragraph, which for their purpose, but wasted the tallow, it is said to suggest that the plaintiff's' adwas held that the words were not a libel vertisement is untrue, I should certainly on the plaintiff, either generally or in the have thought that the words complained way of his trade, but were only a of were of too vague a character to be flection upon the goods sold by him, which evidence of a libel for the jury. The was not actionable without special damage. words to which I refer are these, The same principle applies to the present have not seen the · Bag of Bags,' we

cannot say that it is useful, or that it is (LUSH, J.— This is not a case of slander portable, or that it is elegant; all these it of title, and are not the words nothing may be.” If the writer had stopped there more than an expression of the writer's I should have thought that the words opinion on the good taste of the advertise- could not be actionable, without some ment?]

allegation that they were intended and There is nothing to distinguish the re- calculated to convey an impression that marks of the defendant from the ordinary the bag was not portable, or useful, or criticisms on the titles of books and other elegant, for it would not have been clear publications, and such criticisms are gene- that the real meaning of the words might rally supposed to be privileged.

not be the reverse of that which the Parry, Serjeant (J. O. Griffits with plaintiffs' counsel has endeavoured to put

0. him), in support of the declaration. The upon them. But we must look at the article is a spiteful attack on the plaintiff's succeeding words, which are as follows:

, in the way of their trade. Whether re

“but the only point we can deal with is garded as a libel on the goods which they the title, which we think very silly, very sell, or on the mode in which they carry slangy, and very vulgar, and which has on their business, it is equally a cause of been forced upon the notice of the public action. The words, “ As we have not seen ad nauseam.” The words were possibly the Bag of Bags, we cannot say that it is not meant as an imputation on the plainuseful, &c.," suggest that the plaintiff's have tiffs, but I cannot help thinking that it is been guilty of misstatements, and to say for the jury, and not for the Court, to dethat they have forced an article “

cide whether these words do or do not notice of the public ad nauseam,” is a go beyond the limits of fair criticism. slander on the mode in which they conduct The jury may hold that the criticism is their business. In Ingram v. Lawson (3)

13 not unfair, and that the plaintiffs have

advertised their article in a manner which (1) 3 Bing. N.C. 371. (2) 5 Q.B. Rep. 624.

(4) 2 B. & S. 776 ; s. c. 32 Law J. Rep. (N.s.) (3) 6 Bing. N.C. 212 ; s. C. 9 Law J. Rep. (N.s.) Q.B. 185. C.P. 145.

(5) i Camp. B. Rep. 350.

upon the

the jury.

is not altogether tradesmanlike, but on which has been forced on the notice of the the other hand I cannot say that they public ad nauseam.' would not also be justified in holding that Now are we to hold that it is libellous the words do convey an imputation on to publish such an observation as this ? It the plaintiff's’ mode of carrying on their appears to me that the defendant is merely business, and that they are therefore expressing an opinion, and that if we actionable. The jury may think this decide that he is liable to an action for language calculated to bring the plain- libel, we shall be bound to hold that it is tiff's into odium, and to disparage them in libellous for a critic to say that the title the opinion of the public in respect of the given to a book is silly or vulgar. For manner in which they conducted their these reasons, I think that there is no business. I should have been glad to see case for the jury, and that the defendant my way to a different conclusion, for I do is entitled to judgment. not think that actions of slander and libel HANNEN, J.-I am of opinion that upon ought to be encouraged, but I cannot on this declaration there is a question to be demurrer hold that the declaration con- left to the jury, and that they have to detains no matter for the consideration of termine whether the words were published

in the exercise of a fair criticism, or Lush, J.-I am sorry to be compelled whether the passage was written with to differ from my learned brothers, but I the intention of unduly disparaging the cannot bring my mind to the conclusion plaintiffs. It seems to me that there is that the article in question contains any- much to support the argument, that the thing which is actionable, that is, which words were not written as a fair criticism, can fairly be construed to amount to a but were intended to injure. In the first libel. I cannot find anything in it which place, the title of an article sold by a conveys a personal imputation on the con- tradesman does not usually attract the duct of the plaintiffs, or which is calculated attention of critics, and it may be thought to damage them in the public estimation. that the defendant was induced by some If the words, fairly considered, are not motive other than a regard for good taste capable of the construction which the to notice the name that has been given to plaintiff's put upon them, there is no an article of commerce.

The writer says, case to go to the jury, and I confess that “the title we think very silly, very slangy, I am unable to see anything in this article and very vulgar, and it has been forced which either conveys an imputation on the upon the notice of the public ad nauseam.' character of the plaintiff's or the mode in It is for the jury, taking into considerawhich they carry on their business. The tion all the circumstances, to say whether writer begins by saying, "Let us premise or not the words are intended to disparage our remarks by declaring that they are the plaintiffs in the conduct of their not a planned advertisement,” which goes

business. to shew that he did not think that they

Judgment for plaintiff's. would generally be considered as defamatory. He goes on to say,

as we have not seen the ‘Bag of Bags,' we cannot say that it is usef il, or that it is portable, or

Attorneys-Hughes & Son, for plaintiffs ; Evans,

Laing & Eagles, for defendant. that it is elegant; all these it may be.” It has been argued that these words are ironical, and suggest that the bag is not what it is represented to be, but can we suppose that any reasonable person would put such an interpretation upon them? I think that to do so would be doing vioJence to the meaning of the words. The writer goes on,

The only point we can deal with is the title, which we think very silly, very slangy, and very vulgar, and


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1871. }

Action by the plaintiffs against the JOYCE AND OTHERS V. KENNARD. Nov. 17.

defendant on a policy of insurance. The Marine Insurance Right to complete following Case was stated for the opinion

of the Court. Indemnity Insurance against Losses as

1. The plaintiffs are lightermen, carry, Carriers-Construction.

ing on business in the city of London, and The plaintiffs, who were lightermen, the defendant is an underwriter, also in caused themselves to be insured by a Lloyd's the city. policy in the ordinary printed form, 2. In the month of October, 1869, the upon craft of every description "at and plaintiffs caused the following policy of

from all or any of the wharves, banks, insurance to be effected on their behalfquays, and places of arrival or departure in the river Thames, comprising the whole

"Be it known that Smith,

S.G. extent of the river from Wandsworth down

Sundius & Co., as agents wards to the Victoria Docks, including all

£2000 as well in their own name or any intermediate docks and wharves, and

“Delivered the

as for and in the name or

day of vice versa, until on board any merchant or

names of all and every stean vessel, barge or boat, or otherwise

other person or persons, landed at any wharf,8c. The policy was to whom the same doth, may, or shall

on all goods and produce as interest, may appertain in part or in all, doth make as. appear,and at the foot of it was written surance and cause themselves and them * to cover and include all losses, damages, and every of them to be insured, lost and accidents, amounting to 201. or upwards, or not lost, at and from all or any of on each craft, to goods carried by the plain the wharves, banks, quays, and places tijss as lightermen, or delivered to them to of arrival or departure in the river be water-borne either in their own or other Thames, and any merchant or steam vessel craft, and for which losses, damages, and of any description therein, comprising the accidents the plaintiffs may be liable or re- whole extent of the said river from Wandssponsible to the owners thereof or others worth downwards to the Victoria Docks, interested. It is agreed that the amount of including all or any intermediate docks each underwriter's liability shall not exceed and wharves, and vice versa, until on board the amount of his subscription."

any merchant or steam vessel, barge or This policy was subscribed by various boat, or otherwise landed at any wharf, underwriters for different sums, amounting &c. The risk to commence on the 25th in the whole to 2,0001. The defendant day of September, 1869, and terminate on underwrote it for 1001. During the con- the 24th day of September, 1870, includ. tinuance of the risk a loss occurred to goods ing both days, upon any kind of goods curried by the plaintiffs as lightermen, for and merchandises, and also upon the body, which loss the plaintiff's became responsible tackle, apparel, ordnance, munition, artil. to the owners inierested in the goods to the lery, boat, and other furniture of and in amount of 1,1001., and paid that amount. the good ship or vessel called the craft, The total value of the interest of the of every description whereof is master, plaintiffs in goods curried in this and under God, for this present voyage, vther barges employed by them, amounted or whosoever else shall go for master in the at the time of the loss to 20,0001. and said ship, or by whatsoever other name or upwards :-Held, that the policy was not names the same ship or the master thereof properly a marine policy, but was in- is or shall be named or called, beginning tended to indemnify the plaintiffs against the adventure upon the said goods and losses sustuined by them as carriers, and merchandises from the loading thereof that the defendant was liable to the extent aboard the said ship, as upon the said of his subscription for the loss, and not ship, &c., and shall so continue and endure merely to such a proportion of the loss during her abode there upon the said as his subscription bore to the whole value ship, &c., and further until the said ship, of the plaintiff's' interest at the time of with all her ordnance, tackle, apparel, &c., the loss.

and goods and merchandises whatsoever, New Series, 41.-Q.B.


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shall be arrived at, as above, upon the us for this assurance by the assured, at
said ship, &c., until she hath moored at and after the rate of seventy shillings per
anchor twenty-four hours in good safety, cent. In witness whereof we, the as-
and upon the goods and merchandises surers, have subscribed our names and
until the same be there discharged and sums assured in London."
safely landed. And it shall be lawful for 7th October, 1869."
the said ship, &c., in this voyage to pro- “ To cover and include all losses, da-
ceed and sail to and touch and stay at any mages, and accidents amounting to 201.
ports or places whatsoever and whereso- or upwards in each craft to goods carried
ever in the river Thames from Wands- by Messrs. W. A. Joyce & Son as lighter-
worth to the Victoria Docks, and vice versa, men, or delivered to them to be water
without prejudice to this insurance. The borne, either in their own or other craft,
said ship, &c., goods and merchandises, and for which losses, damages, and acci.
&c., for so much as concerns the assured dents Messrs. W. A. Joyce & Son may
by agreement between the assured and be liable or responsible to the owners
assurers in this policy, are and shall be thereof, or others interested. It is agreed
valued at On all goods and produce that the amount of each underwriter's
as interest may appear. Touching the ad. liability shall not exceed the amount of
ventures and perils which we, the assurers, his subscription."
are contented to bear and do take upon us This policy was subscribed by different
in this voyage; they are of the seas, men of underwriters for different sums amount.
war, fire, enemies, pirates, rovers, thieves, ing in the whole to 2,0001.
jettisons, letters of mark and counter mark, 3. The defendant underwrote the policy
surprisals, takings at sea, arrests, restraints for 1001., and received by way of pre-
and detainments of all kings, princes, mium the sum of 31. 10s.
and people of what nation, condition, or 4. On the 7th of December, 1869, and
quality soever, barratry of the master and during the continuance of the risk cov.
mariners, and of all other perils, losses, ered by the policy, a loss, damage, and
and misfortunes that have or shall come accident within the meaning of the policy,
to the hurt, detriment, or damage of the happened to goods carried by the plain-
said goods and merchandises, and ship, tiffs as lightermen as aforesaid in a craft
&c., or any part thereof; and in case of called The Lord Cardigan, and for
any loss or misfortune, it shall be lawful which loss, damage, and accident the
to the assured, their factors, servants, and plaintiffs have become liable and respon-
assigns, to sue, labour, and travel for, in, sible to the owners and others interested
and about the defence, safeguard, and re- in the goods to the sum of 1,1001., and
covery of the said goods and merchandises have paid that amount.
and ship, &c. or any part thereof, without 5. It is agreed that the total value of
prejudice to this insurance, the charges the risks of the plaintiffs in this and other
wereof we, the assurers, will contribute barges employed by the plaintiffs at the
each one according to the rate and quan- time of the loss, and which were covered
tity of his sum herein assured. And it is by the policy, amounted to the sum of
agreed by us, the insurers, that this 20,0001. and upwards.
writing or policy of assurance shall be of 6. The total value of the goods in the
as much force and effect as the surest barge The Lord Cardigan at the time of
writing or policy of assurance heretofore the loss was 2,9061.
made in Lombard Street, or in the Royal 7. The plaintiffs contend that upon the
Exchange, or elsewhere in London. And true construction of the policy they are
so we, the assurers, are contented, and do entitled to be indemnified for the loss
hereby promise and bind ourselves, each actually sustained, viz., 1,1001., and to

one for his own part, our heirs, executors, recover from the defendant 551. as his
and goods, to the assured, their executors, proportion of such loss.
administrators, and assigns, for the true 8. The defendant contends that under
performance of the premises, confessing the policy sued on, the plaintiffs are only
ourselves paid the consideration due unto entitled to recover from the defendant

or any

such a proportion of their loss as the sum and from ali

of the wharves, quays, for which the defendant subscribed the &c., until on board any merchant or steam policy, viz., 1001., bears to the total value vessel, or otherwise landed at any wharf, of all the goods on board all the plaintiff's &c., and at the bottom of the policy are craft which were between the limits men- the important words, “ to cover and intioned in, and which were covered by the clude all losses, damages, &c., amounting policy at the time of the loss before men- to 201. or upwards in each craft, to goods tioned, and have paid into Court the sum carried by Messrs. Joyce as lightermen, of-61., which is admitted to be sufficient to or delivered to them to be waterborne, satisfy the plaintiff's claim, assuming this either in their own or other craft, and contention to be correct.

for which losses, &c., Messrs. Joyce may 9. The defendant further contends be liable or responsible to the owners that in any view the plaintiffs are not thereof or others interested.” Now the entitled to more than such proportion of underwriters contend that although the the loss as 1001., the sum insured, bears to plaintiffs have become liable to the owners the total value in the barge, viz, 2,9061. of goods carried by them to the amount

10. The Court is at liberty to draw all of 1,1001., they are only entitled to recover inferences of fact which a jury ought to 1201. The only case which appears to have drawn.

have the slightest bearing on the subject The question for the opinion of the is Crowley v. Cohen (1), which will proCourt is, which of the principles above bably be cited by the defendant. But referred to is the proper principle upon that case is distinguishable. There the which the amount to be recovered by the policy was for 12,0001. on goods in canal plaintiffs ought to be settled.

boats, as interest may appear

hereafter If the Court should be of opinion that to pay average on each package or dethe plaintiffs are only entitled to recover scription as if separately insured, warranted such proportion of the loss as 1001. bears free from damage or loss that may

arise to the total amount at risk, namely, from or be occasioned by rain, snow,” 20,0001., then judgment is to be entered &c. And it was held that the assured for the defendant with costs of defence. were entitled to recover the proportion

If the Court should be of opinion that which 12,0001. bore to the value of the the plaintiffs are entitled to recover such goods afloat at the time of the loss, and a proportion of the loss as 1001. bears to not the proportion which it bore to the the total value of the goods in the barge, value of goods afloat during the year. then judgment is to be entered for the But that was the case of an ordinary plaintiffs for 311. 198. 3d., in addition to canal navigation risk; it did not extend to the sum of 6l. paid into Court with costs the plaintiffs' liability as carriers. Here of suit, and if the Court should be of the policy applies to future losses for opinion that the plaintiffs are entitled to which the plaintiff's might be answerable recover the proportion of the actual loss as carriers on wharf, quay, dock, or river; as contended for by the plaintiffs, judg- there the policy was confined to risks on ment is to be entered for the plaintiffs for the canal only. In Wilson v. Jones (2), the sum of 491., in addition to the 6l. paid where the question was whether a policy into Court with costs of suit.

by a shareholder in a telegraph company Quain (A. L. Smith with him), for the on a submarine cable, was to be construed plaintiffs.-The policy in question is in a as the ordinary marine policy, in which peculiar form, and the question is whether case there had been no total loss of it was merely intended to cover the ordi- the cable, or as a policy on the undernary marine risk, or all the risks which taking of laying down the cable sucthe plaintiffs ran in their business as cessfully; it was held that the latter carriers. The latter construction is the constructii n was the better one, although right one. The policy is the ordinary Lloyd's policy, adapted to the peculiar

(1) 3 B. & Ad. 478. risk incurred by the plaintiffs, and it will (2) 35 Luw J. Rep. (N.s.) Exch. 94; s. c. 36 be observed that it is upon goods lost at Law J. Rep. (p.s.) Exch. (Exch. Ch.) 78.

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