No. 11. Blagg v. Sturt; Sturt v. Blagg. Notes.

give notice that they will not receive in payment cheques drawn on any of the branches of the Capital and Counties Bank." The circular became known to other persons. There was a run on the bank and considerable loss inflicted on it thereby. There was no evidence of the innuendo except what might appear from the publication itself. The jury at the trial being unable to agree, the defendants moved for judgment on the ground that there was no case to go to the jury. They were unsuccessful in the Common Pleas, but succeeded in the Court of Appeal. It was held by the House of Lords (Lord SELBORNE, L. C., Lord BLACKBURN, Lord WATSON and Lord BRAMWELL, diss. Lord PENZANCE), that the words were not libellous in their plain and natural meaning, and, no circumstances having been given in evidence to show why the persons receiving the circular should infer from it any more than was said, there was no case to go to the jury. Lord SELBORNE in delivering his judgment in the House of Lords said: "I do not understand any of the learned Judges in the Courts below to have been of opinion that the question of libel or no libel must always, and necessarily, be left to a jury as to words not in themselves (that is, in their proper and natural meaning, according to the ordinary rules for the interpretation of written instruments) libellous, without some evidence either of a libellous purpose on the part of the writer, or of some other extrinsic facts calculated to lead reasonable men to understand them in a libellous sense. I should myself be very sorry if such were the law." The learned lord then cited with approval the opinion of WILDE, C. J., in the principal case, and proceeded: "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. In deciding that question he ought not to take into account any mere conjectures which a person reading the document might perhaps form as to some out of various motives or reasons which might have actuated the writer, unless there is something in the document itself or in other facts properly in evidence which to a reasonable mind would suggest, as implied in the publication, those particular motives and reasons." Lord BLACKBURN delivered a judgment substantially to the same effect, Lords WATSON and BRAMWELL concurred, the latter observing that no witness had been called who had received the circular and who acted upon it as imputing insolvency. Lord PENZANCE however emphatically dissented, considering that an imputation on the plaintiff's credit would be the first and most obvious reason for the statement in the circular which would arise in the mind of any one reading it, and that the question ought to have been submitted to a jury accordingly.

No. 11. Blagg v. Sturt; Sturt v. Blagg. — Notes.

The question of publication of a libel is a mixed question of law and fact. The jury find the facts relied upon for establishing publication, and the judge decides whether the facts so found constitute publication in law.

In questions of privilege it is for the judge to decide whether the occasion was privileged, and for the jury whether the communication was privileged. Per CAMPBELL, C. J., in Dickson v. Earl of Wilton (1859), 1 F. & F. at p. 419; per LINDLEY, L. J., in Stuart v. Bell (1891), 1891, 2 Q. B. at p. 345, 60 L. J. Q. B. at p. 579; per LOPES, L. J., in Pullman v. Hill (1892), 1892, 1 Q. B. at p. 529. In Clarke v. Molyneaux (C. A. 1878), 3 Q. B. D. 237, 47 L. J. Q. B. 230, 37 L. T. 694, 26 W. R. 104, it was laid down that if the judge found the occasion privileged, he ought to direct the jury that unless they are satisfied that the defendant did not use the occasion for the reason which conferred the privilege, but for some indirect reason or motive, they must find for the defendant; that the burden of proving the wrong motive is on the plaintiff; and that if the wrong motive is malice, he must show actual malice, and it is not enough to show absence of reasonable cause.

Where the question is raised of fair and bonâ fide comment on matters of public interest, the judge decides whether the matter was of public interest, and the jury then considers whether the comment was fair and bona fide or otherwise. Merivale v. Carson (C. A. 1887), 20 Q. B. D. 275, 58 L. T. 331, 36 W. R. 231, confirming Campbell v. Spottiswoode (1863), 3 B. & S. 769, 32 L. J. Q. B. 185.

Where in an action for libel the judge rules the occasion privileged, it is not enough to exonerate the defendant for the jury to find that the defamatory statement was in excess of the occasion, unless they find that the defendant was actuated by malice. Nevill v. Fine Arts, &c. Co. (14 Feb. 1895), 1895, 2 Q. B. 156, 64 L. J. Q. B. 681, 72 L. T. 525. For if they meant that the language was in excess of the occasion so as to take away the privilege, that would be contrary to the judge's ruling; if they only meant excess in the sense that malice might be inferred, the finding was immaterial without an express statement that they did draw that inference.

AMERICAN NOTES.

The language of the Rule is precisely adopted from the principal case in Townshend on Slander and Libel, sect. 284.

This is supported by Dottarer v. Bushey, 16 Pennsylvania State, 204; Dunnell v. Fiske, 11 Metcalf (Mass.), 551; Marshall v. Gunter, 6 Richardson Law (So. Car.), 419; Justice v. Kirlin, 17 Indiana, 588; Hays v. Mather, 15 Illinois Appellate, 30, citing the principal case; Gregory v. Atkins, 42 Vermont, 237.

66

In Cooper (James Fenimore, the novelist) v. Greeley (the editor of the New York Tribune,"), 1 Denio (N. Y.), 347, the Supreme Court said: "The innuendo in this case, which states the meaning of the publication to be that the plaintiff, in consequence of being known in the County of Oswego, was in bad repute there, and would not for that reason like to bring a suit for libel in that county, appears to me to express the true meaning of the publication. The question whether the alleged libel was published of and concerning the plaintiff, and whether the true meaning of the words is such as is alleged in the innuendo or not, is a question of fact which belongs to the jury, and not to the Court to determine. Van Vechten v. Hopkins, 5 Johnson, 211; (4 Am. Dec. 339); Goodrich v. Woolcott, 3 Cowen, 231; Peake v. Oldham, Cowp. 275; 2 Bl. R. 961; Dexter v. Taber, 12 Johnson, 239."

In Petsch v. St. Paul D. P. Co., 40 Minnesota, 291, it was held that where the language is libellous and fairly susceptible of the meaning claimed for it by the plaintiff, it is proper to aver in the complaint the meaning as intended by the defendant and as understood by readers, and such averments raise a question of fact.

If the words are capable of the meaning ascribed to them by the innuendo, it is for the jury to determine whether they were used in that sense. Price v. Conway, 134 Pennsylvania State, 340; 19 Am. St. Rep. 704.

Where any doubt exists as to the meaning of a publication, so that extrinsic evidence is needed to determine its character, its significance is a question for the jury. Bourreseau v. Detroit E. J. Co., 63 Michigan, 425; 6 Am. St. Rep. 320; Rodgers v. Kline, 56 Mississippi, 808; 31 Am. Rep. 389. Where an article is not ambiguous, the question of the meaning is for the Court, but where it is ambiguous, the meaning is a question for the jury. Mosier v. Stoll, 119 Indiana, 244; Pratt v. Pioneer Press Co., 30 Minnesota, 41; Lewis v. Chapman, 16 New York, 369.

2 Thompson on Trials, sect. 2031, says, whether the meaning is such as is charged in the innuendo is a question for the jury. As where the charge was of a woman's "keeping" a man not her husband, with innuendo that adultery was meant. Henicke v. Griffith, 29 Kansas, 516.

"It is only when the Court can say that the publication is not reasonably capable of any defamatory meaning, and cannot reasonably be understood in any defamatory sense, that the Court can rule as matter of law, that the publication is not libellous, and withdraw the case from the jury, or order a verdict for the defendant." Twombly v. Monroe, 136 Massachusetts, 469.

A very celebrated case is Bloss v. Tobey, 2 Pickering (Massachusetts), 320, where the declaration averred, with suitable innuendoes, that the defendant charged the plaintiff with the offence of burning his own store. The Court held that this charged no crime and arrested judgment. (This decision drove from the profession of the law, in disgust, the plaintiff's attorney, William Cullen Bryant, and gained for the world an exquisite poet and man of letters, no longer "forced to drudge for the dregs of men, and scrawl strange words with a barbarous pen.") The same Court, in Thomas v. Blasdale, 147 Massachusetts, 438, held that the words, "He killed her by his bad conduct, and I think he knows more about her being drowned than any

body else. He is to blame for it," are not actionable in the absence of an innuendo charging the design to impute the crime of murder.

In Lewis v. Daily News Co., 32 Atlantic Reporter, 246, the Court of Appeals of Maryland decide that upon demurrer, it is always the province of the Court to determine whether the words charged in the declaration are libellous, and whether the innuendoes explaining them are fairly warranted by the language declared on; that every publication injurious to the character is presumed to be false and malicious until the truth thereof is pleaded, or it is shown that the occasion or motive justified the utterance, and that to falsely publish that plaintiff "would be an anarchist if he thought it would pay," explained by innuendoes to mean that plaintiff, for a money consideration, would engage in the unlawful, treasonable, and felonious designs of anarchists, and that an anarchist is a person who, actuated by mere lust of plunder, seeks to overturn by violence all constituted forms and institutions of society and law and order, and all right of property, is libellous.

In Gregory v. Atkins, 42 Vermont, 250, the Court said: "Their province, in an action of this character, is to find out whether or not the publication was made by the defendant, whether it was with intent to injure the plaintiff, or whether it was malicious and false, as well as to find that its sense and meaning is as set forth in the declaration. These are all elements and matters of fact which enter into and constitute the article libellous; but with these facts ascertained, the legal quality of the article is for the Court, and as much so as the language of a written contract, which is always, when unambiguous, a matter of legal construction. . . . When the language is ambiguous, or susceptible of a double meaning one innocent and harmless, the other libellous and injurious the sense is always for the jury to find, as well as to find and to say whether the innuendoes of the declaration, explanatory of the meaning, are justified by the words; and it is in this view that the question, whether a libel or not, is for the jury."

In Pennsylvania the Court is bound to instruct the jury whether the publication is or is not libellous. Pittock v. O'Niell, 63 Pennsylvania State, 253.

VOL. IX.-9

Thorley's Cattle Food Company v. Massam, 14 Ch. D. 763, 764. — Rule.

SECTION VII. Slander of Goods of Rival Trader.

To maintain an action for disparaging statements concerning his goods, the plaintiff must show: (a) that the statements were made with respect to the goods of the plaintiff in particular; (b) that they were untrue; and (c) that the plaintiff has suffered special damage.

Thorley's Cattle Food Company v. Massam.

14 Ch. D. 763-784 (s. c. 42 L. T. 851; 28 W. R. 966).

Defamation.

Slander of Goods of Rival Trader. — Injunction.

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[763] Joseph Thorley died in 1876, having for years carried on the manufacture of a condiment well known as Thorley's Food for Cattle." His executors continued his business. In 1877 a company was formed for manufacturing the same article, and employed a brother of Joseph Thorley who was acquainted with the secret of the manufacture. The executors published in the newspapers an advertisement warning the public that any food purporting to be Thorley's food for cattle, and not signed "Joseph Thorley," was not the manufacture of the establishment carrying on business as Joseph Thorley, the proprietors of which were alone possessed of the secret for compounding the food. The executors also issued a circular to their customers warning them against the course pursued by the company "in seeking to foist upon the public an article which they pretend is the same as that manufactured [* 764] * by the late Joseph Thorley." The Court came to the conclusion that there was no substantial difference between the food sold by the executors and that sold by the company :

Held, by MALINS, V. C., and by the Court of Appeal, that the advertisement and circular contained untrue representations calculated to injure the company in their trade, and that the issuing of them ought to be restrained by injunction.

This was an action by J. W. Thorley's Cattle Food Company against the executors of the late Joseph Thorley, who had for