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Courts from ever granting such injunctions: hence, even admitting the authority of Beddow v. Beddow, it is neither "just" nor "convenient" that such injunctions should be granted now.

Moreover, these sections are now repealed by the Statute Law Revision Act, 1883 (46 & 47 Vict. c. 49), though this repeal would not "affect any jurisdiction or principle, or rule of law or equity, established or confirmed" by them, if there were any.

In conclusion, I must refer to one question raised by Fry, J., in Thomas v. Williams, 14 Ch. D. 864; 49 L. J. Ch. 605; 28 W. R. 983; 43 L. T. 91. To the actual decision in that case no one can take exception. It was a case of trade libel, and the plaintiff asked for an injunction to restrain the publication of circulars injurious to his business. The defendant was entitled to have the case tried by a judge and jury; but he neglected to claim a jury at the proper time. He waited till all the evidence on both sides had been put in, and then applied at the final hearing to change the mode of trial. Fry, J., decided that this application was made too late, and that he had jurisdiction, sitting alone, to try the cause, and to grant an injunction, should he think fit, which no one would now dispute. The defendant had in fact tacitly consented to his lordship being both judge and jury. But, incidentally, Fry, J., remarked, "It was urged that the plaintiff is suing upon a libel, and that since Fox's Act no relief can be given by any Court upon a libel unless the libel has been in the first place submitted to the decision of a jury. That objection appears to me entirely untenable, because, when Fox's Act is looked at, it is plain that it applies only to proceedings by way of criminal information or indictment for libel, and has nothing whatever to do with civil actions based upon the libel."

This is literally true, no doubt; but I wholly deny the correctness of the head-note which draws from this remark the inference that "the defendant in a civil action for libel has the same right to a trial by jury as the defendant in any other civil action; he has no higher right." For Fox's Act laid down no new principle; the procedure which it rendered imperative in criminal cases was already, before that enactment, the invariable rule in all civil cases, and has remained so ever since it had, in earlier days, been the rule in criminal cases also. As Littledale, J., says, in Baylis v. Lawrence (11 A. & E. at p. 925), "Although that Act applied more particularly to criminal cases, yet I know no distinction between the law in criminal cases and that in civil, in this respect. Therefore that which has been declared to be law in criminal cases is the law in civil cases." (And see Parmiter v. Coupland, 6 M. & W. at p. 108.) The discovery,

therefore, that Fox's Act applies only to criminal cases in no way impairs the right of a defendant to demand that the question of libel or no libel be submitted to a jury, and not decided against him by the judge alone.

In none of the decisions since Thomas v. Williams has the question of jurisdiction ever been seriously considered. In Quartz Hill Gold Mining Co. v. Beall (20 Ch. D. 501; 51 L. J. Ch. 874; 30 W. R. 583; 46 L. T. 746), Mr. Higgins, Q.C., for the plaintiff, did indeed contend that there was no jurisdiction to grant an injunction on an interlocutory application. But the only case he cited to the Court was Hinrichs v. Berndes, in the Weekly Notes, whereupon the Master of the Rolls interposed with the remark, "You had better go to the merits. There is no doubt about the jurisdiction," and thereupon the learned counsel, having an overwhelming case on the merits, very wisely followed his lordship's advice and succeeded. It is always somewhat ungracious to argue that the Court has no jurisdiction; it is pleasanter and generally wiser to contend that the present case is not one in which the Court will exercise its powers. The leading case on the point-Prudential Assurance Co. v. Knott-was never cited to the Court, nor any of the other cases relied on above. And then the Master of the Rolls and Lords Justices Baggallay and Lindley gave judgment on insufficient materials, as I think, expressing their clear conviction that the Court had such jurisdiction under sects. 79 and 82 of the Common Law Procedure Act of 1854. In Hill v. Hart Daries, Cookson, Q.C., is reported as stating (21 Ch. D. at p. 799), "Prudential Assurance Co. v. Knott is no longer law," and for that proposition he cites Thomas v. Williams and Beddow v. Beddow; this proposition was apparently not denied by counsel for the defendants; and Kay, J., in his judgment, treated it as clear law. "As to the law," he says, "I have no doubt whatever about it. It seems to me that it is perfectly settled that any libel which is calculated to injure another man in his trade, or a trading company, will be restrained by injunction, and although there has been, it is said, no reported case which applies that law and practice to a friendly society or joint stock company, I have not the least doubt that it is as applicable to the case of a friendly society or joint stock company as it is to an individual trader."

When it came to asking for an injunction to restrain a slander in Hermann Loog v. Bean, 26 Ch. D. 306; 53 L. J. Ch. 1128; 32 W. R. 994; 51 L. T. 442; 48 J. P. 708, counsel for the defence did at last make a stand. Mr. Oswald argued stoutly that, "oral slander is only fit to be tried before a jury. There is only one case in which

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the Court has interfered by interlocutory injunction against a written libel, and there is no case in which it has interfered at all to restrain oral statements." But it was now too late. Cotton, L. J., says, "The Court has of late granted injunctions in cases of libel, and why should it not also do so in cases of slander? The defendant-though, no doubt, the tongue is an unruly member to govern— must take care that he keeps his tongue in order, and does not allow it to repeat those statements which he is by the injunction restricted from uttering." Bowen, L. J., similarly asks, "Can there be any distinction in principle between a slander which is contained in a written document, and a slander which is not?" Similarly, other judges hereafter will ask: If the Court has power to restrain slanders injurious to a trader, why not also slanders injurious to a lawyer or a doctor, to a magistrate or a judge, to a nobleman or a cabinet minister? If we may order a man to hold his tongue in one class of actionable slanders, why not in all? To charge a man with crime is surely a more serious offence than to throw doubts on his solvency. Prevention is better than cure. Boni judicis est ampliare jurisdictionem. Not a word is said as to jurisdiction in any of the later cases.

These decisions have been received with respectful astonishment in America (Greene v. N. Y. Dealers' Protection Association, 39 Hun. (46) New York Supr. Ct.) 300), but have been followed in Ireland in Punch v. Boyd and others, 16 L. R. Ir. 476.

I must admit, therefore, that it is now settled practice in the Chancery Division to grant injunctions to restrain libels and slanders on an interlocutory application; but I think it is my duty to state my opinion, for what it is worth, that such practice is an unconstitutional innovation, and a violation of the liberty of the press and of the right of free speech.

CHAPTER XII.

COSTS.

If an action of slander or libel be tried by a jury, the costs always follow the event unless the Judge before whom such action is tried or the Court shall for good cause otherwise order. (Order LXV. r. 1.) If by any chance such an action be tried by a judge alone (which it very seldom is, except in the case of trade libels; Thomas v Williams, 14 Ch. D. 864; 49 L. J. Ch. 605; 28 W. R. 983; 43 L. T. 91), the costs are absolutely in his discretion. The provisions of the County Courts Act, 1867 (30 & 31 Vict. c. 142, s. 5), no longer apply to actions of libel or slander, since s. 67 of the Judicature Act, 1873, came into operation for no action of either slander or libel can be brought in the County Court, except by consent.

Formerly the provisions of the County Courts Act applied to all actions, whether they could be brought in the County Court or not; the words of the Act being wider than the Legislature intended. (Sampson v. Mackay, L. R. 4 Q. B. 643; 10 B. & S. 694; 38 L. J. Q. B. 245; 17 W. R. 883; 20 L. T. 807; Gray v. West et ux., L. R. 4 Q. B. 175; 9 B. & S. 196; 38 L. J. Q. B. 78; 17 W. R. 497; 20 L. T. 221; Craven v. Smith, L. R. 4 Ex. 146; 38 L. J. Ex. 90; 17 W. R. 710; 20 L. T. 400; Kent v. Lewis, 21 W. R. 413.) Formerly also the provisions of Lord Denman's Act (3 & 4 Vict. c. 24, s. 2) applied to actions of slander and libel, and therefore a plaintiff who recovered less than 40s. damages could not recover any costs whatever from the defendant unless the judge immediately certified on the record that the slander or libel was wilful and malicious. But even if the judge certified both that the action was one fit to be tried in the Superior Court, and also that the slander was wilful and malicious, so as to take the case out of both the 30 & 31 Vict. c. 142, s. 5, and

the 3 & 4 Vict. c. 24, s. 2, still no certificate could enable a plaintiff to get more costs than damages if he sued for a slander actionable per se, and recovered less than 40s. (Evans v. Rees, 9 C. B. N. S. 391; 30 L. J. C. P. 16; Marshall v. Martin, L. R. 5 Q. B. 239; 39 L. J. Q. B. 85; 18 W. R. 378; 21 L. T. 788.) For the relentless words of the 21 Jac. I. c. 16, contain no proviso enabling a judge to make any exemption from the imperative rule that a plaintiff, suing on the case for slanderous words, and recovering less than 40s., shall have 'only so much costs as the damages so given or assessed amount unto." This statute, 21 Jac. I. c. 16, was held to apply only to words actionable per se, and not to actions of libel, of slander of title, of scandalum magnatum, or where the words are actionable only by reason of special damage alleged.

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But both the 21 Jac. I. c. 16, and the 3 & 4 Vict. c. 24, s. 2, and all special Acts relating to costs, are now repealed by s. 33 of the Judicature Act, 1875 (Parsons v. Tinling, 2 C. P. D. 119; 46 L. J. C. P. 230; 25 W. R. 255; 35 L. T. 851; Garnett v. Bradley (C. A.), 2 Ex. D. 349; 46 L. J. Ex. 545; 25 W. R. 653; 36 L. T. 725; (H. of Lds.) 3 App. Cas. 944; 48 L. J. Ex. 186; 26 W. R. 698; 39 L. T. 261; Ex parte Mercers' Company, 10 Ch. D. 481; 48 L. J. Ch. 384; 27 W. R. 424); while the County Courts Act, 1867, is, by the express words of s. 67 of the Judicature Act of 1873, restricted to actions in which relief can be given in a County Court; and slander and libel are not among such actions. (County Courts Act, 1846 (9 & 10 Vict. c. 95), s. 58.)

Hence now, if a plaintiff recovers nominal damages merely, he will get his costs, unless the judge or a Divisional Court otherwise orders. The defendant's counsel must at once apply to the judge to make an order depriving the plaintiff of his costs. But as a rule such an order will only be made where "contemptuous" damages, such as a farthing or a shilling, have been given, and not always then. There must be some "good cause" for such an order; something either in the conduct of the parties or in the facts of the case which, in spite of the finding of the jury, makes it more just that an exceptional order should be made. If there be no such "good cause," the Court of Appeal will set the order aside. If there be any

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