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procured, or authorized the publication therein (f). But it is not necessary that there should be an express request to publish; it is sufficient to prove that defendant sent his M.S. to the editor (g), or spoke the words complained of under such circumstances that he must have known and intended them to be published (h). He will be equally liable even though the editor has cut up his M.S. and merely published part of it (i), or has not inserted the exact words made use of by the defendant, provided that the sense and substance is the same (k). Difficulty is often met with in attempting to ascertain the author of the libel, for an editor will not as a rule give this information, nor is he bound to do so. To quote the words of Baron Martin in Harle v. Catherall and others (), “ When a man went to an editor to ask for the name of an anonymous correspondent, no blame attached to the editor for refusing to give the name. Indeed, an editor would almost be mad to do so. He should blame no editor for so refusing."

The plaintiff, therefore, generally has to satisfy himself with suing the proprietor of the paper, who usually procures an indemnity from the author.

NOTE 6.-All distributors of a newspaper are liable for the libels it contains, and it is no defence that in publishing the libel the defendant was merely acting as the servant or agent of another," for the warrant of no man,

(f) Per Lord Erskine in Burdett v. Abbot (1811), 5 Dow, H. L. 201.

(9) Bond v. Douglas (1836), 7 C. & P. 626; Reg. v. Lovett (1838), 9 C. & P. 462.

(h) Adams v. Kelly (1824), Ry. & Moo. 557.

(i) Tarpley v. Blabey (1836), 2 Bing. N. C. 437; 7 C. & P. 395; 1 Hodges, 414; 2 Scott, 642.

(k) Per Montague Smith, J., in Parkes v. Prescott (1869), L. R. 4 Ex. 179.

(1) (1866), 14 L. T. 802.


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not even of the king himself, can excuse the doing of an illegal act” (m). Thus a printer's man whose sole duty it was to clap down the press has been held liable (n) ; so too has a compositor for setting up the type of a libel (o); but it will be a good defence for the defendant to prove that he “ did not know that the paper contained . was likely to contain a libel,” and that he “ought not to have known it, having used reasonable care" (p). Thus, he is not liable if he prove that he cannot read (), or that he carried the libel in a sealed letter () or parcel (s).

In accordance with the above principles, “if a man receives a letter with authority from the author to publish it, the person receiving it will not be justified, if it contains libellous matter, in inserting it in the newspaper. No authority from a third person will defend a man against an action brought by a person who has suffered from an unlawful act” (t). Neither is it any defence that the libel was copied from another newspaper, and was stated to be so (u).


(m) Per cur. in Sands v. Child and others (1693), 3 Lev. 352; Maloney v. Bartley (1812), 3 Camp. 210.

(n) Rex v. Clerk (1728), 1 Barn. 304. (0) Rex v. Knell (1728), 1 Barn. 305.

(p) Per Lord Esher, M. R., in Emmens v. Pottle and Son (1885), 16 Q. B. D. p. 357; also per Bowen, L. J., at


358. (9) Per Lord Kenyon, C. J., in Rex v. Holt (1792), 5 T. R. 144.

(r) Per Lord Kenyon, C. J., in Rex v. Topham (1791), 4 T. R. 219.

(8) Day v. Bream (1837), 2 M. & Rob. 55.

(t) Per Best, C. J., in De Crespigny v. Wellesley (1829), 5 Bing. 402.

(u) Saunders v. Mills (1829), 6 Bing. 213; 3 M. & P. 520; Talbutt v. Clark (1840), 2 M. & Rob. 312.

ARTICLE 9.-Liability in cases of joint publication; no right to contribution or indemnity from co-defendant.

Where there has been a joint publication of the libel by two or more persons, each of them is liable for all the ensuing damage, and has no claim to contribution or indemnity against the other or others, even though there has been an express promise to that effect.

NOTE 1.—This is merely a particular application of the well-known rule that there is no contribution between tort feasors (a). The effect of it is, that the proprietor of a newspaper sued jointly with his negligent editor and the author of the libel cannot obtain compensation from either of them in respect of the damages which he has been obliged to pay to the plaintiff (6); nor will the fact that there has been an express promise to indemnify him if he will publish the libel, in any way improve his position, for such a promise is void, the consideration for it being illegal (c).

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NOTE 2.-A printer cannot maintain an action for printing a libel (d), and if he agrees to print a book for a certain price and finds in the course of his work that the book contains libellous matter, he may refuse to proceed, and can

sue for that part of the work which is not libellous in an action for work and labour performed, and materials provided, or, as it is called, on a quantum meruit (e).

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(a) Merryweather v. Nixan (1799), 8 T. R. 186. See infra, Part I., Article 29, note.

(b) Colburn v. Patmore (1834), 1 C. M. & R. 73; 4 Tyr. 677. (c) Arnold v. Clifford (Am.) (1835), 2 Sumner, 238.

(d) Poplett v. Stockdale (1825), Ry. & M. 337; Bull v. Chapman (1853), 8 Ex. 444.

(e) Clay v. Yates (1856), 25 L. J. Ex. 237; 27 L. T. 0. 8. 126; 1 H. & N. 73; 4 W. R. 557.


ARTICLE 10.-Defences to action for libel.
The defences to an action for libel are-

(1.) Justification (Article 11);
(2.) Fair comment (Article 13);
(3.) Privilege (Article 14); which may be

a) absolute (Articles 15, 16);

(b) qualified (Articles 17—20);
(4.) Apology (Article 21);
15.) Accord and satisfaction (Article 22);
(6.) Release (Article 23);
(7.) Previous action (Article 24);

8.) Statute of Limitations (Article 25). Note. - It may be said that it is also a defence that the words complained of are not libellous (Article 1), or do not relate to the plaintiff (Article 2), or that there has been no publication (Article 3); but in all these cases the onus of proving the contrary is on the plaintiff, and if he does not do so, he fails to make out even a primâ facie

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ARTICLE 11.Justification. It is a good defence to an action of libel that the words complained of are true in substance and in fact.

Note 1.- The plea of justification is, however, as has been well said, a dangerous plea to put upon the record, for if the defendant cannot prove it, or withdraws it at the trial, it may, and most probably will, aggravate the damages ($).

(f) Warwick v. Foulkes (1844), 12 M. & W. 507; Wilson v. Robinson (1845), 14 L. J. Q. B. 196; 9 Jur. 726; 7 Q. B. 68 ; Simpson v. Robinson (1848), 18 L. J. Q. B. 73; 13 Jur. 187; 12 Q. B. 511; Caulfield v. Whitworth (1868), 18 L. T. 527; 16 W. R. 936.

Moreover, in order to succeed the defendant will have to prove that the whole libel is substantially true. Thus, where the libel complained of is an article or paragraph preceded by a title, it is not sufficient to prove the truth of the facts stated in the article or paragraph: the title itself must be justified, or the plaintiff will succeed. So that in Bishop v. Latimer (g), where a newspaper published a paragraph preceded by the title “How Lawyer B. treats his Clients," which contained a report of a case in which one client of Lawyer B. had been badly treated, it was held, although the case itself was accurately reported, that the title was not justified by the facts, and that the plaintiff was entitled to damages. In another case, Clement v. Levis and others (), where a newspaper had published a correct report of certain proceedings in the Insolvent Debtors Court preceded by the title “Shameful Conduct of an Attorney,” the report was held privileged, but damages were recovered for the title (0).

If there is gross exaggeration the plea of justification will fail. Thus, in Clarkson v. Lauson (1), where the libel stated that the plaintiff, a proctor, had been three times suspended for extortion, it was held to be no justification to prove that he had been once so suspended. So where the defendant had stated that the plaintiff was a “ libellous journalist,” it was held that a plea of justification was not supported by proof that the plaintiff had libelled one person, who had obtained judgment against

(9) (1861), 4 L. T. 775.

(h) (1822), 3 Br. & Bing. 297; 7 Moore, 200; in the court below, Lewis v. Clement (1820), 3 B. & Ald. 702. See also Mountney v. Watton (1831), 2 B. & Ad. 673 ; Chalmers v. Shackell (1834), 6 C. & P. 475.

(0) See also p. 30, infra.

(j) (1829-30), 6 Bing. 266, 587; 3 M. & P. 605; 4 M. & P. 356. See also Johns v. Gittings (1590), Cro. Eliz. 239; Goodburne v. Bowman and others (1833), 9 Bing. 532; Clarke v. Taylor (1836), 2 Bing. N. C. 654; 2 Hodges, 65; 3 Scott, 95; Blake v. Stevens (1864), 11 L. T. 543; 4 F. & F. 232.

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