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BYLES, J. This is a case involving principles of great importance and daily application, and I therefore much regret the division of opinion. It was an action for a libel. The declaration alleges that the two defendants caused to be published in a newspaper " the words following." It then sets out in two counts several passages of a long newspaper report of a parish meeting containing various defamatory charges against the plaintiff. No evidence was given of any direction by the defendants to publish the precise words set out in the declaration, or, indeed, to publish any particular part of the libel, either as set out in the declaration or as laid in extenso before the jury. The only direct evidence to charge the defendants with the libel was this, that they said they hoped the press would take notice of the case, and that publicity would be given to it. By comparing the parol evidence with the libel itself, it may be collected that one of the defendants said he hoped the chairman would give an outline of the proceedings. It did not appear that the defendants had ever made or seen any outline or afterwards approved of the libel, or even seen it. I very much doubt whether the expression of a hope that the press would take notice of the case or give publicity to it, or that the chairman would give an outline of the proceedings, amounts to an authority to publish in a newspaper defamatory and unjustifiable matter spoken at a meeting. Suppose reporters are engaged to report at a public meeting, is any one who requests or assents to their services liable to an action of libel for a report in a newspaper not only of what may have been said by himself, but of what may have been said by other speakers, and reported in the newspapers accordingly. Before, however, we arrive at this novel and most important question, the common law interposes a technical difficulty. It is not sufficient at common law that expressions equivalent to those set out in the declaration were written and published by a defendant. The libel must be proved as laid in the declaration. It was at one time thought that the plaintiff need only prove the substance of a libel. But that doctrine was overruled in Lord MANSFIELD's time; - see The King v. Berry, 4 T.R. 217, and it is now clear law that the words of a libel must be set out in the declaration and must be proved as laid. A variance is fatal. It is true a variance is now amendable. But no amend. ment was here asked for or made, or could be made so as to cure the objection that the evidence does not show what particular
No. 2. — Parkes v. Prescott, 38 L. J. Ex. 110, 111.
parts or what particular defamatory expressions were or were not authorized by the defendants. And this is not an objection of form, but of substance. Among other reasons for this is that the sting of a libel may be sheathed in the particular instances of misconduct imputed in the libel, or even in the particular expressions used. Take the case of oral slander, an extreme case it is true, but extreme cases test principles. Suppose A., in general terms, without specifying any particular accusation, * should desire B. to defame C., and B. accordingly speaks (* 111] and publishes the words “ C. is a murderer," can A. be sued in an action wherein the declaration should allege that he, A., spoke and published the words“ C. is a murderer” ? But it does not follow that c. has no remedy against A. It may well be that A. in the case supposed would be liable to a special action on the case at the suit of C. for inducing B. to defame C. I see no reason why the originator of a libel may not be reached in the
The counsel for the plaintiff were therefore, in the argument before us, asked for authorities to prove that a man could be liable in a civil action for a particular libel, the words of which he had neither written nor dictated or spoken beforehand, nor himself published or assented to afterwards. Two cases only have been brought under our notice. Adams v. Kelly, and The
. Queen v. Cooper. But in Adams v. Kelly, precise instructions were given and taken down in writing for the insertion of the particular defamatory expressions used in a particular newspaper, the “ Observer,” and Lord TENTERDEN insisted on those precise instructions being laid before the jury. The only other case cited was a criminal case, The Queen v. Cooper. But in that case it was shown that after the libellous article came out, the defendant had seen it, and had expressed his approbation of it.
That case was, moreover, a criminal case. It was an indictment for a libel. And there is a great distinction between the authority which will make a man liable criminally and the authority which will make him liable civilly. A principal is not civilly liable for the acts of his agent unless the agent's authority be by the agent duly pursued, but the principal may be criminally liable though the agent may have deviated very widely from his authority or instructions, or, as Lord Bacon puts it (Bacon's Maxims, 16), “ Lawful authority is to receive a strict interpretation, unlawful authority a wide and extended interpretation.” “Mandata licita
No. 2. — Parkes v. Prescott, 38 L. J. Ex. 111.
recipiunt strictam interpretationem, sed illicita latam et extensam. Lord Bacon proceeds to comment on this maxim and says, " In committing of lawful authority to another, a party may limit it as strictly as it pleaseth him, and if the party authorized does transgress his authority, though it be but in circumstances expressed, yet it shall be void in the whole act. But when a man is author and monitor to another to commit an unlawful act, then he shall not excuse himself by circumstances not pursued. This distinction Lord Bacon proceeds to illustrate by examples in civil and criminal cases. Thus, he says, “ If a man command
a J. S. to kill J. D. on Shooter's Hill and he doth it on Gad's Hill, or to kill J. D. by poison and he doth it by violence, in these cases, notwithstanding the fact be not executed, yet he is accessory nevertheless.” And he goes on to show that a man cannot impose a condition on an unlawful act. As if a man bid J. S. to steal in a house and expressly restrain him from so doing except when he can get in without breaking, but J. S. breaks into the house and steals, yet the principal is accessory to the burglary, for, says Lord Bacon, “a man cannot condition with an unlawful act, but he must at his peril take heed how he putteth himself into another man's hands." It is true that a libel is a criminal act, but in this case the plaintiff does not proceed for the criminal act, but for the civil injury. Reading the case of The Queen v. Cooper with the light of this distinction between civil and criminal proceedings, which distinction is clear law and sound sense, it may well be that when a defendant tells the editor of a newspaper, as he did in that case, to show another up, and the editor of the newspaper does in gross terms unauthorized and not intended by the defendant, the latter may nevertheless be criminally liable, though he might not be civilly liable. Besides, in misdemeanors, although all who procure, abet, assist or assent to, are principal misdemeanants, yet the Judge may apportion and restrain the punishment to the real demerits of each delinquent. But in a civil action the object is damages, which cannot be apportioned among the defendants : but all who remain on the record must be liable for the whole amount, and neither of the defendants in this action is liable except for what both authorized.
These considerations lead me to the conclusion that the learned Judge was right in directing the jury to find a verdict for the defendants.
MELLOR, J. The question in this case arose a bill of
exceptions to the ruling * of MARTIN, B., on the trial of (* 112] an action of libel, brought by the plaintiff against the defendants, for falsely and maliciously causing to be printed and published certain libels, in newspapers called the “ Borough of Marylebone Mercury " and the “ Paddington Times," of and concerning the plaintiff. The plea was not guilty. The libels in question consisted of a report of what took place at a meeting of the board of guardians of the parish of Marylebone, respecting the case of a girl named Mary Ann Parkes, the daughter of the plaintiff, and of the observations of various members of the board at such meeting relating thereto. The libel complained of was furnished to the newspapers in question by reporters who were accidentally present in the course of their duty, and who reported the proceedings as articles of news to the respective newspapers. It was not alleged that the report was approved or seen by the defendants. It was proved that the defendant Prescott was in the chair at the meeting, and that Ellis, the other defendant, was present. The report in question was a summary of what took place at such meeting. The defendant Ellis, in the course of the discussion, said, “ he hoped the local press would take notice of this very scandalous case,” and requested the other defendant, Prescott, to give an outline of it. The defendant Prescott, in the course of a statement to the guardians of the case, said, “ I am glad gentlemen of the press are in the room, and I hope they will take notice of it," upon which the other defendant, Ellis, said, And so do I;" and further, the defendant Prescott said he hoped publicity would be given to the case. The counsel for the plaintiff having proved that the libel in question contained a summary of the proceedings by calling the two reporters, stated that he had no further evidence to offer in support of the defendants' liability, whereupon the counsel, on the part of the defendants, insisted that in the absence of further evidence “ there was not sufficient evidence to go to the jury in support of the issue above joined.” Baron MARTIN thereupon declared his opinion to the jury, that the several matters so given in evidence were not sufficient evi. dence to go to them, and directed them to find a verdict for the defendants. Upon the question thus raised upon the bill of exceptions for our determination, I am of opinion that Baron MARTIN rightly directed the jury to find a verdict for the defendants. It is to be observed that the two reporters were not taken to the meeting of the board of guardians by the defendants, but were
No. 2. — Parkes v. Prescott, 38 L. J. Ex. 112, 113.
present there, in the course of their duty, to report matters of interest to the inhabitants of the district in which the newspapers in question circulated. They exercised their own discretion as to what they would report, and they proved that each report in question contained a summary only of the proceedings and observations of the various guardians present. Neither summary was seen by either of the defendants, who were entirely ignorant of the mode in which the reporters might, in their discretion, deal with the proceedings and observations made at the meeting. It appears to me that it would be most pregnant with mischief if every speaker at a meeting, at which reporters for the public press may be present, could be made responsible by indictment or action for what reporters chose, in their discretion, to report in a summary of the proceedings, because he happened to say that he hoped the press would take notice of the case, or would give publicity to the matter, or any similar expression. In spoken slander the defendant is only liable for his own expression; but if the plaintiff should succeed in this action, it would tend to confound the well-settled distinction between oral slander and libel, and would make a man responsible not for his own expression only, but for all the observations made by any other person who might be present at such meeting. I think that, in order to make a man responsible for a report printed and published by a third person, it ought to be shown that he had seen or heard, or dictated the report itself, or approved of the libellous statement therein. There are but few cases which bear upon this subject, and the one mainly relied upon by the counsel for the plaintiff was The Queen v. Cooper, in which Lord DENMAN, C. J., is reported to have said, that “if a man request another generally to write a libel, he must be answerable for any libel written in pursuance of his request; he contributes to a misdemeanor, and is therefore responsible as
a principal.” It is to be observed, that WIGHTMAN, J., (* 113] * who tried the case, and COLERIDGE, J., placed their judg
ment on the special circumstances of the particular case, and indirectly declined to appove the large proposition asserted by Lord DENMAN. COLERIDGE, J., said, “I agree on a very short ground. The question is, whether there be evidence that the defendant approved of this, not a libel,” and, again, “ I do not put the argument beyond this, that materials are furnished, then complaint is made that the expected publication does not appear; that perhaps does not carry the proof much further. But when