PART IV. The foregoing cases will sufficiently show the use of the CHAPTER XIL innuendo to explain the nature of ambiguous imputations. We have next to inquire when innuendoes should be inserted to apply the libel to the plaintiff. Innuendo to connect libel with plaintiff. The leading case upon this point is Le Fanu v. Malcolmson, (a) which came before the House of Lords on a writ of error from the Irish Court of Exchequer Chamber. The libel complained of was an article, in the Warder newspaper, upon "The Factory Question in Ireland," containing a letter from a correspondent, who complained of the tyranny which was carried on "in some of the Irish factories." Many alleged acts of cruelty and tyranny were mentioned, but there was no direct allusion to the plaintiffs. The declaration contained introductory averments that the plaintiffs were the owners of an extensive factory at Portlaw, in the county of Waterford; and that the defendants did publish of and concerning the said plaintiffs, and of and concerning the said factory, and of and concerning the manufacturing of cottons, linens, and other fabrics, carried on in the said factory, and of and concerning the said trade and calling of the said plaintiffs, the libel containing the false, &c., matter of and concerning the said plaintiffs, their factory, and the manufactory carried on therein, and of and concerning their conduct towards, and their treatment of, the persons employed by them in their said factory. Innuendoes applied the words "some factories," and the other ambiguous terms in which the plaintiff's factory was spoken of, to the factory of the plaintiffs, and the House of Lords held that the innuendoes did not extend the sense of the libel, but merely pointed out the particular individuals to whom, in fact, the libel applied, and that the declaration was good. Lord Campbell, in the course of his judgment said:(b) "Mr. Ellis relies on Solomon v. Lawson ; (c) but the proposi (b) lb. 668. (a) 1 H. L. Cas. 637. (c) 8 Q. B. 823. The declaration in this case contained two counts. The first count, after reciting that the plaintiff was employed in supplying fresh water to ships at St. Helena, and had for that purpose fitted up a schooner with wooden tanks, and that the ship M. being at St. Helena, the plaintiff conveyed fresh water to her in the wooden tanks of his schooner, complained that the defendant published (in a letter to the Times newspaper, set out in the count) of and concerning the plaintiff in his said employment, and concerning the water so supplied to the M., a statement that persons on board the M. had become ill soon after leaving St. Helena, where they had taken in fresh water, which illness was caused by the water; that the water was run into a copper tank. whence the casks were filled alongside; that the poison was imbibed from the tank, and that it behoved the authorities to order its removal PART IV. tion there laid down, and which I adopt, is this, that where there is a publication, or a sentence spoken verbally, which CHAPTER XII. clearly conveys an imputation of crime on some person, that in that case it may, by innuendo, be applied to the plaintiffs: if that proposition is well supported in law, the objection made here fails, because in this there clearly is a gross imputation on some individuals, and the question is whether it may not be applied to the plaintiffs. What is there to show that that proposition is not well founded according to authority? There is Solomon v. Lawson; but there it was an historical fact that was narrated: all that was there stated might be true without imputing blame to any person. There was no charge brought against either a class or an individual, and by mere innuendo you cannot give a new sense to words which they do not naturally bear. It comes round to the old rule that you cannot by innuendo extend the natural meaning of the words which are spoken or written, but by the innuendo you may point out the particular individual to whom these words apply; those words in themselves clearly imputing a crime upon the part of some individual." The same observation applies to this case as well as to the others we have cited, viz., that the introductory averments would now be unnecessary, and that it would be sufficient to add, after the words "some factories," "meaning the factories of the plaintiffs;" and after the words "the cruelties of the slave trade or the Bastile are not equal to those practised in some of the Irish factories," "meaning the factories of the plaintiffs, and meaning thereby that the plaintiff's had treated the persons in their employment in said factory with cruelty.' To a like effect is the subsequent case of Turner v. Merryweather. (a) There the libel was as follows: " Extraordinary case in the Ecclesiastical Court by a barrister-at-law. Yet in defiance of all the watching there is strong reason and replace it with an iron one; thereby meaning that the plaintiff had been guilty of supplying bad and unwholesome water to the M. The Court arrested judgment on this count, because there was nothing in the letter which warranted the innuendo applying the imputation of misconduct to the plaintiff (see p. 838). The second count recited that defendant published a statement "in substance as follows" (setting out the publication charged in the first count), and charged that defendant afterwards published (in a further letter to the Times) of and concerning the plaintiff, &c., and of and concerning the first publication, a stateinent that the copper tank was fitted up in a schooner belonging to the plaintiff. The Court arrested judgment on this count also, on the ground that where a publication is not libellous, unless by reference to the language of a previous publication, such previous publication must be set out in the declaration verbatim, and not merely in substance. (a) 7 C. B. 251; 18 L. J. 155, C. P.; and in error 19 L. J. 10, C. P. PART IV. for believing that a considerable sum of money was transCHAPTER XII. ferred from Mr. Turner's name in the books of the Bank of England, by power of attorney obtained from him by undue influence, after he became wholly incompetent to perform any act requiring reason or understanding." The declaration contained the proper introductory averments, and the following innuendo: "meaning thereby that the said plaintiff and the said J. H. Turner, had transferred or caused to be transferred the said money from the said W. Turner's name in the said books of the said Bank, by means of a power of attorney obtained by them from the said W. Turner, by undue influence exercised by them over the said W. Turner, at a time when the said W. Turner had become and was mentally incompetent to give a power of attorney and to perform any act requiring reason and understanding." This innuendo was held by the Court of Common Pleas and by the Exchequer Chamber to be well laid. Coltman, J.,(a) said: "The old decisions which support the argument that an innuendo cannot be allowed to make persons certain who were uncertain before, are not now sustainable." The Court of Queen's Bench decided, in the case of Hemmings v. Gasson, (b) "that sect. 61 of the Common Law Procedure Act, and the two forms in schedule B to that Act, enable the pleader to put any construction he pleases upon the words complained of, by innuendo; and that it is for the jury to say whether the words were spoken with such meaning." Innuendo may put any construction on words of libel. If jury negative meaning, ut by innuendo. But the question arises: suppose the declaration puts a meaning on the words of the libel which the jury negative, can the plaintiff fall back upon their natural meaning, and say they are libellous without any innuendo? In answering this question, it may be well to state what the rule was under the old system of pleading. This is luminously stated by Parke, B., in delivering the unanimous opinion of the Judges to the House of Lords, in the case of Barrett v. Long. (e) He says, that if the innuendo "is more extensive than the words will bear, and therefore unwarranted by them, we are of opinion that it may be rejected as repugnant and void; and the words are libellous, and therefore actionable without its aid. That an innuendo which is bad, and on the face of it repugnant to the words, may be rejected, was decided in the cases of Corbet v. Hill(d) and Smith v. Cooker; (e) and if the words are sufficient (a) 18 L. J. 158, C. B. See p. 413. (b) E. B. & E. 346. (d) Cro. Eliz. 609. PART IV. without the innuendo, the action is maintainable. (a) The same rule prevails where the innuendo unnecessarily intro- CHAPTER XIL duces new matter, as in Harvey v. French. (b) The case would be different if the words are capable of two senses, and the innuendo ascribes one meaning to them, and is good on the face of it. Williams v. Stott (c) is an authority that in such a case it could not be rejected." 1862, s. 61. The law is altered, in this respect, by sect. 61 of the common Law Common Law Procedure Act, 1852, which enacts that Procedure Act, "where the words or matter set forth, with or without the alleged meaning, show a cause of action, the declaration shall be sufficient." The change is thus described by Blackburn, J.: "Sometimes it was not easy to frame a declaration to meet this [i.e. the former] state of the law, which was a trap for nonsuits; and therefore the Legislature enacted the provision in sect. 61. The effect of the first clause is, that an innuendo cannot be rejected, as formerly, because not supported by the prefatory averment. And the last clause enacts, that instead of a declaration with many counts, with as many innuendos, a count for libel or slander, with an innuendo that the words were used in a particular sense, may be read as two counts, one with the innuendo and the other without it; and proof of either is sufficient."(d) Several counts should be inserted where the precise words of the libel and the meaning to be attached to them are doubtful; because, although the plaintiff may obtain a verdict upon the libel, read without the innuendoes, he cannot at the trial adopt a fresh innuendo. "The plaintiff must always sustain the cause of action of which he has complained, and not abandon it by an allegation that certain words would have been actionable, if the declaration had been framed in a different manner."(e) damages. Damages need not be particularly stated unless the claim of plaintiff claims special damage. The latitude allowed to juries, as to the amount of general damages which may be given, is so wide that in practice special damages are seldom if ever claimed in actions of libel; but, if it is desired to claim them, they must be particularised in the declaration; for it is an established rule, that no evidence shall be (a) See also Roberts v. Camden (9 East, 93), cited by Parke, B., in Wakley v. Healy (7 C. B. 604, 605). (b) 1 Cr. & M. 11. (c) 1 C. & M. 675, 687. (d) Watkin v. Hall (9 B. & S. 286; S. C., L. Rep. 3 Q. B. 396; 18 L. T. N. S. 561; 37 L. J. 125, Q. B.; 16 W. R. 857). (e) Per Willes, J., Bremridge v. Latimer (12 W. R. 879; S. C., 10 L. J. N. S. 816). PART IV. CHAPTER XIL Defence. Plea of not guilty. received of any loss or injury, unless it be specially stated in the declaration. (a) We have, in the next place, to consider the defences which it is open to the defendant to make. His defence may be (1) a plea containing a denial of the charge in the declaration, or (2) a justification of the libel; (3) an apology, coupled with the payment of a sum of money into court; (4) a plea that the plaintiff has, either before or after the commencement of the action, agreed to accept certain acts of the defendant in full satisfaction and discharge of his right of action, and the damages and costs sustained by him in respect thereof, with an averment that the defendant has duly performed such agreement; or (5) the defendant may demur to the declaration on the ground that no libel appears on its face. Such is a rough summary of the modes of defence which can be adopted in the English courts at the present day. We shall now proceed to examine them in detail. The plea of not guilty, which is technically called the general issue, denies the publication of the libel, the publication of it maliciously and in the defamatory sense imputed, and that the matter charged is libellous. (b) It throws upon the plaintiff the onus of proving all the material allegations in the declaration. Under this plea the defendant may contend that the publication was privileged, because the fact of its being privileged rebuts the prima facie presumption of malice.(c) In the case of The Earl of Lucan v. Smith, (d) (an action for a libel contained in a newspaper article reflecting on the conduct of the plaintiff during the Crimean War), the court refused to allow a special plea, setting out alleged facts to show that the article complained of was a fair comment on the conduct of the plaintiff as a public character, together with the plea of not guilty; although the defendant was allowed to plead, in addition to not guilty, in general terms that the alleged libel was a fair comment. But it does not appear why such a plea was allowed, as the whole current of authorities shows that it was in effect the general issue.(e) In Wason v. Walter, (f) the defence that the (a) 1 Wm. Saunders, 243, d (5). (b) O'Brien v. Clement (15 M. & W. 435; 3 D. & L. 676; 15 L. J. 285, Ex.); Rules of Pleading of Trin. Term, 1853, Rule 16. (c) Hoare v. Silverlock (9 C. B. 20, 26). See also Lillie v. Price (5 A. & E. 645). (d) 1 H. & N. 483; 26 L. J. 94, Ex. (e) See Carr v. Duckett (5 H. & N. 783). (f) 8 B. & S. 671; L. Rep. 4 Q. B. 73; 19 L. T. N. S. 409; 38 L. J. 34, Q. B.; 17 W. R. 169). |