CHAPTER XIX ascribed to it. If the judge is satisfied that it is so capable, it must then be left to the jury to say whether the publication has the meaning so ascribed to it (x). But if the judge, taking into account the manner and the occasion of the publication, and all other facts which are properly in evidence, is not satisfied that the words are capable of the meaning ascribed to them, then it is not his duty to leave the question raised by the innuendo to the jury (y). Direction of the Judge to the Jury. Libel or no libel as a question for the Court. : The judge may, in his discretion, direct the jury that the publication in question is, in point of law, a libel (2). And the jury are bound to take the judge's definition of a libel and if the matter proved to have been published be calculated to bring the plaintiff into disrepute, or hold him up to ridicule, that will constitute a libel: and the jury have no right, in determining the question as to whether or not the matter charged is a libel, to enter into any other matters which do not arise upon that issue: and therefore, where it appears that a verdict for the defendant is manifestly wrong, it may be set aside upon the ground that the matter was a libel, notwithstanding that the jury have found that it was not (a). And so also, if the judge direct the jury that the publication in question is, in law, a libel; and acting upon that direction, they find a verdict for the plaintiff; if the court should afterwards be of opinion that the publication is not a libel, the verdict will be set aside for misdirection (b). But the judge is not bound to state to the jury, as matter of law, whether the publication complained of is or is not a libel: the proper course is for him to define what is a libel in point of law, and to leave it to the jury to say whether the publication in question falls within that definition; and, as incidental to that, whether it is calculated to injure the character of the plaintiff (c). As to what is the province of the court in an action of libel; and whether, where the writing is such that opinions might differ as to whether it is a libel or not, the court can give judgment for the defendant, on the ground that, though the jury have found that in their opinion the writing is a libel, the court (x) Sturt v. Blagg, 10 Q. B. 908. (z) Tuson v. Evans, 12 A. & E. 733; (a) Leri v. Milne, 4 Bing. 195; 12 Moore, 421; Hakewell v. Ingram, 2 C. L. Rep. (1854), p. 1397. (b) Hearne v. Stowell, 12 A. & E. 719, 732. (c) Parmiter V. Coupland and another, 6 M. & W. 105; Baylis v Lawrence, 11 A. & E. 920. does not think it made out to be a libel; is a question which CHAPTER XIX. has recently undergone considerable discussion, and was the subject of very learned and elaborate arguments and judgments in a recent case in the House of Lords (d); in which it was held,-affirming the judgment of the majority of the Court of Appeal-that the Court has such power; and that the principle upon which the Court should proceed is-that unless the plaintiff has so far satisfied the onus which lies on him to show it to be a libel, that the court can, with sufficient certainty, say that the writing has a libellous tendency, they should not so say (e). set aside. In the case of Levi v. Milne (supra), the defendant published When Verdict of Jury will be some doggerel verses describing, in ludicrous narrative, the proceedings of the plaintiff, a sheriff's officer, in attempting to arrest a party on a capias: the verses were headed by a woodcut descriptive of the scene, and the plaintiff was styled throughout-" L-y the Bum." L-y the Bum." The presiding judge directed the jury that the article in question being calculated to render the plaintiff ridiculous, and to occasion pain to his feelings, was clearly a libel. The jury inquired whether a shilling would carry costs, and being answered in the affirmative, found for the defendant. The court set aside the verdict, and directed a new trial. And Best, C.J., in the course of his judgment, said, that if the jury were to be made judges of the law as well as of fact, parties would be always liable to suffer from an arbitrary decision. In the present case the jury had taken upon themselves to find a verdict on the law of the case in direct defiance of the ruling of the judge, and therefore their verdict must be set aside (ƒ). In the case of Hearne v. Stowell (g) a distinction was taken between libel and slander, in the course of the argument on showing cause against a rule for arresting judgment. It was contended that under the Libel Act (h) all questions as to whether the matter charged is, or is not libellous, are to be expressly referred to the jury; and that the court could have no power, after the verdict of the jury, to arrest the judgment in actions for libel, because such questions were wholly removed by the Libel Act from the cognizance of the court, and (d) The Capital and Counties Bank v. Henty, 7 App. Cas. 741; 52 L. J. Q. B. D. 232. (e) 1bid., 7 App. Cas. 782; 52 L. J. 254, per Lord Blackburn. (f) Levi v. Milne, 4 Bing. 195 12 Moore, 418; Hakewell v. Ingram, 2 (g) 12 A. & E. 719. CHAPTER XIX. exclusively submitted as matters of fact, to the jury. But as to those propositions, the court expressed dissent, and held that a plaintiff, in order to support his verdict, must be able to show that there is a libel charged upon the record; that to entitle a plaintiff to judgment it is not enough to charge malicious motives and a calumnious tendency: the facts and circumstances that give a sting to a publication apparently innoxious should be brought to the notice of the court; for the court will not direct judgment against the defendant, either on an indictment or in an action, without seeing that a libel has been published by him. And after verdict for the plaintiff, judgment was arrested, on the ground that the publication was not, on the face of it, libellous; and the court refused, even upon the assumption that the plaintiff was charged with imposing the penance, to intend that the jury had evidence before them of any injury to the plaintiff which the declaration did not show, though some evidence to that effect was in fact given (i). When Judge may withhold Case from jury. The manner of is material. The judge should not withhold the case from the jury unless he can clearly see, upon the face of the record, that the matter charged cannot in any way be libellous (k). It is only when the judge is satisfied that the publication cannot be a libel, and that if it is found by the jury to be such, their verdict will be set aside, that he is justified in withdrawing the question from their cognisance (1). But where, in the opinion of the judge, the words, in their ordinary sense and meaning, do not convey any defamatory imputation, and are not shown by the evidence to be capable of the libellous construction put upon them by the innuendo, he is justified in directing a nonsuit (m); or a verdict for the defendant (n). Independently of all questions as to privilege, the manner the publication of the publication, and the things relative to which the words are published, and which the person publishing knew, or ought to have known, would influence those to whom it was published in putting a meaning on the words, are all material in deter (i) Hearne v. Stowell, 12 A. & E. 719. See the observations of Lord Blackburn, on this case, 7 App. Cas. 778; 52 L. J. Q. B. D. 252. (k) Fray v. Fray, 17 C. B. (N. S.) 603; and see Teacy v. M Kenna, Ir. R. 4 C. L. 374. (1) See per Kelly, L.C.B., Co. v. Lee, L. R. 4 Ex. 288. (m) Mulligan v. Cole and others L. R. 10 Q. B. 549; 44 L. J. 153. The judgment in this case was quoted with approval by Lord Blackburn, in a recent case in the House of Lords, see 7 App. Cas. 782; 52 L. J. Q. B. D. 254; and see Nevill v. Fine Arts, &c. Ins. Co. (1897), A. C. 68. (n) Hunt v. Goodlake, 43 L. J. C. P. 54; O'Brien v. Marquis of Salisbury 54 J. P. 215. mining whether the writing is calculated to convey a libellous CHAPter XIX. imputation (o). fairness of report of The question as to the fairness of a report of the proceedings Questions of of the court of justice is for the jury, not the judge (p); and so also as to whether or not a report of proceedings before judicial proceedings are a magistrate, with comments thereon, is a fair report or a for the jury. garbled one; and the plaintiff has a right to the opinion of a jury thereon. And therefore, if in such a case the judge, instead of submitting the question to the jury, takes upon himself to decide as to the fairness or unfairness of the report, and rules that there is no case to go to the jury, and directs a verdict for the defendant, the court will set aside the verdict, and order a new trial (q). of fact when When a matter of fact is to be excused as comment upon Comments another fact, the fact alleged and sought to be excused must upon matters be a reasonable inference from the facts alleged, and upon justifiable. which it is a comment. Whether the matter complained of is capable of being reasonably inferred from such other facts is a question of law, just as on the trial of an indictment it is for the judge to say whether the guilt of the prisoner can be reasonably inferred from the facts proved. If not it is his duty to withdraw the case from the jury and direct a verdict of not guilty. If on the other hand, it be capable of being inferred, the question whether in the particular case it ought to be inferred, is for the jury (r). Comment in order to be fair must be based upon facts; if Misstatements. therefore a defendant cannot show that his comments contain no misstatements of fact, he cannot support his defence of fair comment. If he makes a misstatement of any of the facts upon which he comments, he at once negatives the possibility of his comment being fair (s). (0) See per Lord Blackburn, 7 App. Cas. 771; 52 L. J. Q. B. D. 248. (p) Risk Allah Bey v. Whitehurst and others, 18 L. T. (N. S.) 615, per Cockburn, L.C.J. (g) Street v. The Licensed Victuallers' Society, 22 W. R. 553. (r) Lefroy v. Burnside (No. 2), L. R. (Ir.), 4 Ex. D. 566. (8) Vide Digby v. The Financial News, Ltd., 1 K. B. (1907) 502, C. A. 320 CHAPTER XX. Law and CHAPTER XX. COSTS, IN ACTIONS OF SLANDER AND LIBEL. New law and practice as to Costs. Appeal as to Costs. Order depriving successful party of Costs under the County Courts Acts. Costs on joinder of different causes of Apportionment of Costs where actions of libel consolidated. Costs where action referred to arbitra- Costs where an apology and payment THE law and practice as to costs, in actions and other proceedings on the civil side in the High Court of Justice, practice as to have been materially altered by the Judicature Acts, and the Orders and Rules of the Supreme Court made in pursuance thereof. Costs. Discretion of Subject to the provisions of those Acts, and the Rules and the Court as to. Orders aforesaid, the costs of and incident to all proceedings in the Supreme Court . . . . are in the discretion of the Court or Judge . . Provided that where any action, cause, matter, or issue is tried with a jury, the costs must follow the event, unless the judge by whom such action, cause, matter, or issue is tried shall, for good cause, otherwise order (a). By section 33 of the Judicature Act, 1875 (as amended by 46 & 47 Vict. c. 39), "any enactment inconsistent with this Act, or the principal Act," is repealed. It has been held, that the effect of that section is, that any prior enactment as to costs which is inconsistent with the Judicature Acts and the Rules of the Supreme Court made in pursuance thereof, must be taken to be abrogated (b). And so in an action of libel, in which the jury found a verdict for the plaintiff with nominal damages, and the judge at the trial refused to certify for costs; it was held, that the plaintiff was entitled to his costs (c). Costs follow the event, regardless of the amount of damages, unless the court or judge orders to the contrary. (a) R. S. C. 1883, Ord. LXV., r. 1. (b) Garnett v. Bradley, 3 App. Cas. 956; 48 L. J. Q. B. D. 191. (c) Parsons v. Tinling, 2 C. P. D. 119; 46 L. J. 230. |