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Nos. 2, 3.
- Parkes v. Prescott; Emmens v. Pottle. — Notes.
to the plaintiff in a sealed letter, the Court ruled that an action on the case would not lie because the matter was not published, but that the Star-Chamber for the King takes notice of such cases and punishes them because "such quarrellous letters tend to the breach of the peace." Barrow v. Lewellin (1615), Hobart, 62. “If a writing is not communicated to any one but the person of whom it is written, there is no publication of it." Per EsHER, M. R. in Pullman v. Hill (C. A., 1891) 1891, 1 Q. B. at p. 527, 60 L. J. Q. B. 299 at p. 301. But if the defendant knew or believed that the letter would be opened by another person, for instance, the plaintiff's clerk, and the letter is so opened, there is publication. Delacroix v. Thevenot (1817), 2 Starkie, 63.
If the defendant showed the letter to his own clerk, or gave it to be type-written, Pullman v. Hill, supra; or sent a telegram containing a libel, Whitfield v. South Eastern Railway Co. (1858), El. Bl. & El. 115, 27 L. J. Q. B. 229; Williamson v. Freer (1874), L. R., 9 C. P. 393, 43 L. J. C. P. 161, 30 L. T. 332, 22 W. R. 878; or wrote the libel on a post-card, Robinson v. Jones (1879), 4 L. R., Ir. 391, there is sufficient evidence of publication.
Where the defendant sent a libel on A. to A.'s wife, he was held liable, Wenman v. Ash (1853), 13 C. B. 836, 22 L. J. C. P. 190; but where he showed it to his own wife, and to no one else, the plaintiff was nonsuited on the ground of non-publication. Wennhak v. Morgan (1888), 20 Q. B. D. 635, 57 L. J. Q. B. 241, 59 L. T. 28, 36 W. R. 697.
The rule in Emmens v. Pottle applies only in a case where the distributor of a newspaper proves as a fact that he did not know of the libellous matter, or that he could not read it. Distribution of any paper containing a libellous statement is primâ facie evidence of publication against the distributor. Duke of Brunswick v. Harmer (1849), 14 Q. B. 185, 19 L. J. Q. B. 20. It is no defence that the distributor acted as the agent of another. Maloney v. Bartley (1812), 3 Camp. 210.
Reading out a libellous extract from a newspaper, or any document, is publication of the libel, which renders the reader liable. John Lamb's Case (1610), 9 Co. Rep. 60; Forrester v. Tyrrell (C. A. 1893), 9 Times Law Reports 257, 57 J. P. 532. So if a newspaper copies a libellous extract from another newspaper, it is a fresh publication, though the circumstance may be shown in mitigation of damages. Saunders v. Mills (1829), 6 Bing. 213; Talbutt v. Clarke (1840), 2 M. & Rob. 312.
In Tompson v. Dashwood (1883), 11 Q. B. D. 43, 52 L. J. Q. B. 425, 48 L. T. 943, it was ruled by a Divisional Court of the Queen's Bench Division that a communication which, if made to the person to whom
Nos. 2, 3. — Parkes v. Prescott; Emmens v. Pottle.
it was intended to be made, would be privileged, is privileged although sent by a bonâ fide mistake to another person.
But this case is overruled by the unanimous decision of the Judges of the Court of Appeal (Lord ESHER, M. R., SMITH, L. J., and DAVEY, L. J.) in Hebditch v. McIlwaine (1894), 1894, 2 Q. B. 54, 63 L. J. Q. B. 587, 70 L. T. 826, 42 W. R. 422. There the defendant had written a letter containing libellous matter to a board of guardians in the mistaken belief that they had a public duty to perform in the matter. The Court held that no privilege attached to the occasion.
The proprietor of a newspaper is liable for all defamatory matter published in it, even though it was caused by a slip of his printer's man in setting up the type. Shepheard v.Whitaker (1875), L. R., 10 C. P. 502, 32 L. T. 402.
In Colburn v. Patmore (1840), 1 Cr. M. & R. 73, the proprietor of a journal claimed damages against the editor for inserting a libel on account of which he had been fined. The claim was ruled out of court on a technical point of pleading, but the Judges of the Court of Exchequer all concurred in the opinion that the proprietor who is himself criminally liable is not entitled to compensation from his editor who had published the libel.
The Libel Law Amendment Act 1888 (51 & 52 Vict. c. 64), ss. 5 & 6, provides that where several persons are sued in respect of the same libel, the judge may consolidate the actions, and apportion the damages awarded amongst the defendants; and that a defendant in an action for a libel may give evidence in mitigation of damages, that the plaintiff has recovered damages in another action or agreed to receive compensation for a libel to the same purport or effect.
AMERICAN NOTES. The first principal case is cited in Newell on Defamation, pp. 245, 380 ; and the second at pp. 239, 728. The first principal case is cited in Townshend on Libel and Slander, sect. 115, and the second, at sect. 124.
In Clay v. People, 86 Illinois, 147, a newspaper reporter told the defendant he should read defendant's statement to the paper for publication; he replied, “ Let them go." Held, that he was responsible for the publication. So held where a libellous article, stating that a neighbouring ticket agent was not responsible, was conspicuously posted forty days in the defendant's general office. Fogg v. Boston, $c. R. Co., 148 Massachusetts, 513.
The sender of a libellous letter is liable for its further publication by the receiver if that was a probable consequence. Miller v. Butler, 6 Cushing (Mass.), 71; 52 Am. Dec. 768.
" Every defendant who signed the paper knowing it was intended to be printed, or who signed it and delivered it to another without knowing it would be printed, would be guilty of circulating it. Signing a libellous paper Nos. 2, 3. — Parkes v. Prescott; Emmens v. Pottle. – Notes.
when it is being carried around to procure signatures, and delivering it when signed to the carrier or another person, is itself a publication of it before it is printed; and if no protest or direction against its being printed is made by the signer, and it is afterwards printed by the person to whom it is delivered, or by such person's authority, it is no defence for the signer to say that he did not intend or direct its publication.” Cotulla v. Kerr, 74 Texas, 89 ; 15 Am. St. Rep. 819.
A creditor may be liable for libel in permitting libellous communications to be sent to his debtor by his agents or associates in a collecting agency, when he sets the proceeding in operation. State v. Armstrong, 106 Missouri, 395; 13 Lawyers' Rep. Annotated, 419; Muetze v. Tuteur, 77 Wisconsin, 236; 9 Lawyers' Rep. Annotated, 86.
The publisher of a newspaper is responsible for a libel therein, although he was ignorant of its publication or even expressly forbade it. Dunn v. Hall, 1 Carter (Indiana), 345; Andres v. Wells, 7 Johnson (New York), 260; 5 Am. Dec. 267 ; Smith v. Ashley, 11 Metcalf (Mass.), 367; 45 Am. Dec. 216; Moore v. Francis, 121 New York, 199; 18 Am. St. Rep. 810; Detroit D. P. Co. v. McArthur, 16 Michigan, 447; Huff v. Bennett, 6 New York, 337; Lewis v. Hudson, 44 Georgia, 572; Commonwealth v. Willard (Penn.), 25 Albany Law Journal, 283; Buckley v. Knapp, 48 Missouri, 152. But he is not liable unless he knew it was libellous; as when he supposed it was a fictitious story. Smith V. Ashley, supra; Dexter v. Spear, 4 Mason (U. S. Circ. Ct.), 115. And the editor may escape by showing that the publication was against his will. Com. v. Kneeland, Thacher (U. S. Circ. Ct.), 346.
But the innocent seller of a libellous newspaper is not liable. Street v. Johnson, 80 Wisconsin, 455; 27 Am. St. Rep. 42, citing Emmens v. Pottle, and Smith v. Ashley, 11 Metcalf, 367 ; 45 Am. Dec. 216. See note, 15 Am. St. Rep. 326.
One whose name is that of another for whom a libellous article was intended cannot maintain an action. Hanson v. Globe Newspaper Co., 159 Massachusetts, 293; 20 Lawyers' Rep. Annotated, 856. But otherwise where no inquiry was made. Weber v. Butler, 81 Hun (New York), 244.
One who writes an article in English, and employs another person as his agent to translate it into German and publish it, will be liable if the German article so published is libellous, although the translation is inaccurate. Wilson v. Noonan, 27 Wisconsin, 598. (Overruled on other points, 35 ibid. 321.)
An action against the seller of a newspaper containing a libel is not maintainable without proof that some one read the libel. Prescott v. Tousey, 50 New York Superior Ct. Rep. 12.
No. 4. — Dawkins v. Lord Rokeby, 45 L. J. Q. B. 8. — Rule.
SECTION III. — Privilege.
No. 4. - DAWKINS v. LORD ROKEBY.
(H. L. 1875.)
WHERE there exists an absolute privilege, e. 9., such as is enjoyed by a witness giving his evidence in a judicial cause or matter, proof of actual malice will not support an action for libel or slander.
Dawkins v. Lord Rokeby.
Defamation. Libel. Slander. — Privileged Communication. A military man giving evidence before a military Court of enquiry  which has no power to adıninister an oath, is entitled to the same protection as that enjoyed by a witness on oath in an ordinary judicial proceeding.
No evidence, whether written or oral, given by him in the course of the enquiry and relative to the enquiry, can be made the foundation of an action at law, however strong the presumption may be that such evidence was not only untrue but was also known to be untrue by him who gave it, or even that it was dictated by malice. For the correctness of this presumption inust always be a question until resolved by a jury, and public policy requires that witnesses should give their evidence freely and openly, and without fear of being harassed by a civil action on an allegation whether true or false, that they have spoken froin malice.
Where a witness before such a Court handed in a written statement voluntarily and wasked, after his examination was concluded, — Held, that evidence that the statements contained in such paper were untrue and were made maliciously, was wholly inadmissible.
This was a proceeding in error from a judgment of the Court of Exchequer Chamber, affirming a judgment of the Court of Queen's Bench upon a bill of exceptions to the ruling of BLACKBURN, J., at the trial of an action brought under the following circumstances :
The action was brought in the Court of Queen's Bench by the now plaintiff in error, an officer in the army, against the defendant in error, also an officer in the army, for verbal and written statements concerning the plaintiff alleged to be defamatory, made by
the defendant, touching the plaintiff, before a military Court of enquiry. The bill of exceptions, in which is set out the plaintiff's declaration in the action, the pleadings and all the facts at large, will be found printed in the report of the case before the Court of Exchequer Chamber in 42 L. J. Q. B. 63. It is only necessary here briefly to mention the following facts : The plaintiff was, between May and July, 1860, a lieutenant-colonel in the Guards, and the defendant was a lieutenant-general, and in command of a brigade which included the Guards. During that time some unpleasantness had arisen between these officers, and the plaintiff had repeatedly asserted that the defendant had made false statements of fact to his injury. The same state of things arose afterwards, the plaintiff making similar assertions as to other officers under whose command he came. He was asked to withdraw these assertions, and on his refusal, H. R. H. the Duke of
Cambridge, commanding in chief, on the 4th of February, [* 9] 1865, * directed that a Court of enquiry should be held for the
purpose of investigating the charges contained in the assertions made by the plaintiff against the other officers, and also to pronounce opinion upon the plaintiff's conduct generally, and his fitness for command.
By “The Queen's Regulations and Orders for the Army," section 12, a Court of enquiry may be assembled by any officer in command to assist him in arriving at a correct conclusion on any subject on which it may be expedient for him to be thoroughly informed, and such Court may be directed to investigate and report on any matter brought before it. But it has no power to administer an oath, nor can it compel the attendance of witnesses not military, and a Court of enquiry is not to be considered in any light as a judicial body.
The Court of enquiry so directed by the Duke of Cambridge to be held, met on the 10th of February, and the defendant was required to and did appear before such Court, and in the course of his examination he made several statements which the plaintiff alleged were defamatory. Moreover, after his examination was concluded, the defendant, without having been asked by the Court or any one else to do so, voluntarily handed to the Court (who received the same) a written paper containing statements which the plaintiff also alleged were libellous and defamatory.
The following are the expressions used by the defendant, Lord