day of 1880, 2. The defendant on the infringed the plaintiff's said copyright by representing or causing to be represented, without the consent in writing of the plaintiff, the said musical composition at a place of dramatic entertainment, called Bolingbroke Hall, in the county of Surrey. The plaintiff claims the penalty of 40s. given by the statute 3 & 4 Will. IV. c. 15, s. 2. Defence. 1. The plaintiff is not the assignee of the said copyright. 2. The defendant did not represent or cause to be represented the said musical composition, as alleged in the statement of claim or at all. 3. The said offence, if committed by the defendant (which he denies), was committed more than twelve calendar months before action brought. Reply. The plaintiff joins issue upon the defence. 247 Corporation (a). Defence to an Action against a Local Board that the Contract sued on was not under Seal. The contract sued upon by the plaintiff was a contract made (if at all) by the defendants as an urban authority under the (a) The common law rule is that corporations can only sue or be sued upon contracts made under their common seal. To this principle there are a few exceptions, as, in the case of incorporated companies having gain for their object, who are liable upon contracts not under seal, provided they are necessary for and incidental to the purposes for which they are created. (South of Ireland Colliery Co. v. Waddle, L. R. 4 C. P. 617; 38 L. J. C. P. 338; Reuter v. The Electric Telegraph Co., 6 E. & B. 341; 26 L. J. Q. B. 46. In the East London Waterworks Co. v. Bailey (4 Bingham, 283), Best, C.J., enumerated the exceptions to the general rule that a corporation cannot express its will except by writing under its common seal. By sect. 85 of the Public Health Act, 1848 (11 & 12 Vict. c. 63), every contract by a local board of health whereof the value exceeds £10, and by sect. 174 of the Public Health Act, 1875 (38 & 39 Vict. c. 55), every contract by an urban authority, whereof the value exceeds £50, shall be 38 & 39 Vict. c. 57, and though the value or amount of the said contract exceeded £50, the same was not made in writing sealed with the common seal of such authority. Covenant. 1. Claim by Covenantee against Covenantor on a Covenant to pay Money. The plaintiff's claim is for principal and interest due under a covenant in a deed dated the 1st of January, 1882. The deed upon the covenant in which the plaintiff sues was made by the defendant as part of the compromise of certain criminal proceedings for alleged forgeries, which the plaintiff in writing. sealed by the common seal of such board or authority, as the case may be. It was decided in Hunt v. The Wimbledon Local Board (4 C. P. D. 49; 48 L. J. C. P. 207) that where the defendants, a local board, had authorised their surveyor to employ the plaintiff to prepare certain plans for offices they intended to erect, but which they did not erect, though the jury found that the offices were necessary for the purposes of the defendants, yet inasmuch as the value of the work exceeded £50, and there was no contract under seal, that the plaintiff could not recover. On the other hand, where an urban sanitary authority upon an outbreak of scarlet fever in its district, agreed with the plaintiff, a medical practitioner, by a contract not under seal, to pay him for attending to the fever patients at the rate of 5s. 3d. per day for each of the tents in which the patients were received, and his charges in all amounted to £97 78. 9d., in an action against the authority to recover this amount, it was held by the Court of Appeal, distinguishing Hunt v. The Wimbledon Local Board (supra), that the agreement between the plaintiff and the defendant was not a contract whereof the value or amount exceeds £50," and that the plaintiff was entitled to recover. (Eaton v. Basker, 50 L. J. Q. B. 444.) had instituted against him, and which were then depending, and the defendant only signed the said deed in consideration that the plaintiff would not further prosecute the said charges of forgery. 2. Another Claim by Covenantee against Covenantor on a Covenant to pay Money. The defendant by her deed, dated the 1st of May, 1882, covenanted to pay to the plaintiff the sum of £200 on the 1st of June, 1882. The plaintiff claims £200. Defence and Counter-claim. Defence. 1. At the time the defendant signed the said deed, she had just attained her twenty-first year. 2. The plaintiff is her uncle, with whom she was residing at the time. 3. The defendant had no independent advice or legal assistance at the said time, and she was acting entirely under the advice and compulsion of the plaintiff. 4. The plaintiff induced the defendant to sign the said deed by representing to her that it was a mere form, and that she would never have anything to pay under it. Counter-claim. 5. And, by way of counter-claim, the defendant repeats all the allegations contained in the 1st, 2nd, 3rd, and 4th paragraphs hereof, and claims (1.) that the said deed of the 1st of May, 1882, may be set aside and cancelled; and (2.) that, if necessary, for the purpose aforesaid this action be transferred to the Chancery Division of the High Court of Justice. Reply. 1. The plaintiff joins issue upon the defence. 2. As to the counter-claim the plaintiff says that at the time when the said deed was signed the defendant did have independent advice and acted throughout under the advice of her solicitor. 3. She was not acting under the advice or compulsion of the plaintiff. 4. The plaintiff denies that he ever represented to the defendant that the said deed was a mere form and that she would not have anything to pay under it, or that he ever made any representation to that effect. For other actions upon covenants see Bond, Landlord and Tenant, and Mortgages. What is a libel. Averment of damage not essential. Distinction herein between libel and slander. Slander not generally actionable unless special damage averred. Defamation (a). 1. Claim for a Libel published in a Newspaper concerning the Plaintiff, an Officer in the Army. 1. The plaintiff has sustained damage by the defendant on the 7th of September, 1879, falsely and maliciously printing (a) Anything written or printed and then published which is calculated to injure the reputation of another, or expose him to hatred, contempt, or ridicule, is a libel, and actionable as such without proof that the plaintiff has really suffered pecuniary loss or injury of any kind. It follows from this that it is not essential that the pleader in drawing a claim for libel should aver that the plaintiff has sustained actual damage, but until the Rules of the Supreme Court, 1883, it was usual to introduce a general allegation that he had suffered greatly in his credit and reputation, and had endured anguish of mind. General averments of that kind are now discouraged, but where any special damage has really been sustained by the plaintiff on which he relies to aggravate the damages, it should certainly be set out in the claim. There is an important distinction between the defamation which constitutes libel and that which constitutes slander. It is not law that anything spoken which is calculated to injure the reputation of another, or expose him to hatred, contempt, or ridicule, is actionable, without proof that the plaintiff has suffered actual damage. Certain classes of oral defamation, which will be referred to immediately, are actionable in themselves, just as written or printed defamation is actionable in itself; but, as a rule, mere oral defamation is not actionable without proof of actual, or as it is called, "special damage." Thus, to say of a man that he is a rogue, or of a woman that she is unchaste (Wharton v. Brook, 1 Ventr. 21), is not sufficient to ground an action, though to write or print the same thing, and then publish the writing or print, would be highly actionable. But if actual loss or injury directly results to the plaintiff from the defendant speaking those words, they would at once found proceedings. In such a case it will be seen a material element in the action is the special damage, and it then becomes necessary for the pleader specially to aver the damage, so that it may clearly appear on of and con and publishing in a newspaper called the the face of the claim. If in an action for slander, not coming within the exceptions now to be noticed, the pleader omitted to aver special damage, or set it out so insufficiently that it did not appear that the damage was of a kind that the Court could take cognizance of, then under the old system the claim would have been demurrable, and it will still be insufficient. There are, however, three classes of cases where slander is placed on Exceptions. the same footing with libel, and no averment of special damage is essen- to this tial-1. Any imputation that another has committed any criminal rule. offence, as that he is a thief, or has committed murder, or rape, or robbery, is actionable per se. (Webb v. Beavan, 11 Q. B. D. 609.) 2. So an imputation that another has contracted a contagious disease, unfitting him for decent society. 3. So any imputation with reference to another in his profession or trade, imputing any incompetency, or dishonesty, or disgraceful or improper conduct in relation thereto. In these cases the pleader is not bound to aver special damage in the claim (though if special damage has in fact accrued he ought to do so); he must take care, however, to make it very clear on the face of the pleading that the slanderous words really do belong to one of these classes. For instance, where the alleged slander is a reflection upon a man in the way of his profession, it should appear on the claim that the plaintiff exercised a particular profession, and then it should be positively averred that the words complained of were spoken of him with reference to such profession. The result is this. În cases of libel it is not essential to aver damage; in slander it is essential to do so, except in a limited number of cases. Subject to what has been said with reference to the averment as to special damage, and subject to this difference also that in the case of libel the libellous matter is alleged to have been written or printed, and in cases of slander, it is alleged to have been spoken, the averments that appear in a pleading for libel, and those that appear in a pleading for slander are the same, and it will therefore be convenient to treat of them together. Material averments.-A claim for libel or slander commences that the defendant named on a date specified falsely and maliciously wrote (or printed or spoke) and published of and concerning the plaintiff the words following, that is to say, then follow the words complained of. There may follow after this some averment of damage; in some cases, as already pointed out, it is essential. The material averments here are 1st. The falsehood of the matter. 2nd. The malice of the defendant. 3rd. The fact of publication. 4th. The connection of the defamation with the plaintiff. 5th. The words of the defamation. And, 6th. Where the defamation is oral, generally the special damage. 1. The Falseness of the Defamation.-It is necessary to aver that the words or writing complained of are false, for if they be true, then there is no libel or slander, for which a remedy can be had in a civil court. It is different where the party libelled seeks a remedy in a criminal court, and indicts his libeller. There the old saying, the greater the truth the greater the libel, to a certain extent holds, and the fact that the libel is true will be no shield to its publisher, unless he can show that his act in disclosing the matter was for the public good. This, however, concerns criminal law. What the pleader has to remember is this, that a plaintiff cannot recover damages against another for writing or saying of him that which, however defamatory, and injurious, and annoying, is nevertheless true. The material averments in an action for defama tion. The truth of the libel an answer in a civil court. Aliter in case of an indictment. |