ART. 2.-Construction.

In order to determine whether a statement is defamatory, it must first be construed in its natural and ordinary meaning; if not defumatory in such meaning, it must be construed in the special meaning, if any, in which it was understood by the persons by and to whom it was published (e).

NOTE. It is for the judge to say whether the words are capable of a defamatory meaning, but for the jury to say whether, under the circumstances of the case, they in fact bear that meaning (e). It is only where the words complained. of do not in any sense bear a defamatory meaning that the judge is justified in withdrawing the case from the jury; in no other case can the defamatory meaning of the words be treated as a matter of law (f). Thus, where words are capable of an innocent and a defamatory meaning, it is a question of fact for the jury in what meaning they were actually understood (g). And in every case the burden of proof is on the party who alleges that the words were understood in a meaning other than their natural and ordinary meaning. "If the word is an ordinary English word, then the Court will construe it in its natural meaning, unless

(e) Capital and Counties Bank v. Henty (1882), 7 App. Cas. 741; 52 L. J. Q. B. 232; 47 L. T. 662.

(f) O'Brien v. Salisbury (1890), 54 J. P. 215.

(g) Churchill v. Gedney (1889), 53 J. P. 471; Ritchie v. Sexton (1891), 64 L. T. 210; 55 J. P. 389.

some other is shown to have been given it. If the word is a cant expression or a commercial term (h), then the meaning may depend upon the circumstances in evidence" (¿).

It is important to notice that where the words are not defamatory in their natural and ordinary sense, the plaintiff must be prepared to satisfy the jury that there were facts known both to the person publishing the defamatory matter, and to the person to whom it was published, which would naturally lead the latter to understand the words in a defamatory sense. As was pointed out by Brett, L. J., in the well-known case of Capital and Counties Bank v. Henty (j), "the first question. for the jury is whether the document would be read in a defamatory sense by persons of ordinary reason in the position of those to whom it is published. If, in the opinion of the jury, it would not be so read according to the prima facie meaning of the language, then there is a further question (if there is any evidence upon which it can be raised) whether there were facts known both to the person who framed the alleged libel, and to the persons to whom it was published, which would lead the latter reasonably to put upon the document the construction that, having a second defamatory sense, it was issued ironically or other

(h) Smith v. Jeffreys (1846), 15 M. & W. 561 ; 15 L. J. Rep. Ex. 325.

(i) Per Bramwell, B., in Barnett v. Allen (1858), 27 L. J. Ex. at pp. 414, 415.

(j) (1880), 5 C. P. D. at p. 539.

wise than in the primary sense of the language." In that case Messrs. Henty, brewers at Chichester, issued to their tenants a circular containing the following words:-"Messrs. Henty & Sons hereby give notice that they will not receive in payment any cheques drawn on any of the branches of the Capital and Counties Bank." The issue of this circular caused a run upon the bank, who thereupon brought an action of libel against Messrs. Henty. It was, however, held that the words in their natural and ordinary meaning were not libellous; that therefore it was for the plaintiffs to prove that, by reason of the special circumstances of the case, they were understood in a special libellous sense; and that, in the absence of any such evidence, there was no case to go to the jury, and there must therefore be judgment for the defendants.

Moreover, where the words are not prima facie defamatory, and where the plaintiff therefore intends to maintain that the words were defamatory by reason of their being understood in a special sense, he must be careful to insert in his Statement of Claim an averment specifying the defamatory meaning of the words complained of, and showing how they come to have that meaning, and how they relate to the plaintiff (). Such an averment is called an innuendo. No innuendo is necessary where the words complained of are defamatory in their ordinary meaning (1).

(k) Per Lord Selborne, in Capital and Counties Bank v. Henty (1882), 7 App. Cas. at p. 748.

(1) Russell and another v. Webster (1874), 23 W. R. 59.

ART. 3.-No action without publication. No action can be maintained for libel or slander unless there be publication, i. e., a communication by the defendant of the words complained of to some person other than the plaintiff.

NOTE.-A communication to one person other than the plaintiff. Thus there is no publication, and therefore no action will lie, if the defamatory matter be communicated only to the plaintiff himself. This was expressly decided in Barrow v. Lewellin (m), where the defendant despatched a sealed letter through the post to the plaintiff. As the present Master of the Rolls said, in the recent case of Pullman v. Hill & Co. (n), "if the statement is sent straight to the person of whom it is written, there is no publication of it, for you cannot publish a libel of a man to himself. If a letter is not communicated to any one but the person to whom it is written, there is no publication of it." It is, however, otherwise if it can be proved that the defendant knew, when he posted the letter containing the libel, that it would probably be opened by some person other than the defendant, for example, his clerk (). So, too, "if the writer of a letter shows it to any person other than the person to whom it is written, he publishes it" (p); for example, if he shows it to his own clerk, or places it in the hands of a type-writer in order that such (m) (1615), Hob. 62.

(n) (1891) 1 Q. B. at p. 527.

(0) Delacroix v. Thevenot (1817), 2 Stark. 63.

(p) Per Lord Esher, M. R., in Pullman v. Hill, (1891) 1 Q. B. at p. 527.

clerk or type-writer may copy it for him, there is a publication of the letter (g). Similarly it has been held that there is a publication if the libel be on a post-card (r), or contained in a telegram (s), for in each case "it is necessarily communicated to all the clerks through whose hands it passes "(t). "The moment a man delivers a libel from his hands, his control over it is gone; he has shot his arrow, and it does not depend upon him whether it hits the mark or not" (u).

In accordance with the common law principle that husband and wife are one person, "the uttering of a libel by a husband to his wife is no publication" (v). "For many purposes they are," however, "essentially distinct and different persons, and, amongst others, for the purpose of having the honour and feelings of the husband assailed and injured by acts or communications made to the wife" (w). Thus it has been held that sending a defamatory letter to a wife about her husband is sufficient publication (x).

(g) Pullman v. Hill & Co., supra.

(r) Robinson v. Jones (1879), 4 L. R. Ir. 391.

(s) Whitfield v. S. E. Rail. Co. (1858), E. B. & E. 115; Williamson v. Freer (1874), L. R. 9 C. P. 393.

(t) Per Brett, J., in Williamson v. Freer (1874), L. R. 9 C. P. at p. 395.

(u) Per Best, J., in Rex v. Burdett (1820), 4 B. & Ald. at p. 126.

(v) Per Huddleston, B., in Wennhak v. Morgan (1888), L. R. 20 Q. B. D. at p. 537.

(w) Per Maule, J., in Wenman v. Ash (1853), 13 C. B. at pp. 844, 845.

(x) Wenman v. Ash (1853), 13 C. B. 836; 22 L. J. C. P.