libellous by reference to the language of another publication, that other publication must be set out verbatim, and not merely in substance. (a) PART IV. CHAPTER XII. Where several libellous paragraphs are contained in one Several libels in publication, they may all be declared upon in one count; but one publication. paragraphs in different numbers of a newspaper must form the subject of separate counts.(b) If the libel be written in a foreign language, it must be Libel in foreign set forth in the original; for the court will arrest judgment language. if only a translation be given. (c) At one time it was considered that a translation need not be given, and that it was better not to attempt one, as a mistranslation might jeopardize the action. (d) This view is supported by an anonymous case in Hobart (p. 126), where the court gave judgment for the plaintiff in an action for slander in Welsh, although the declaration did not aver what the word meant; but the court took information by Welshmen as to the meaning thereof. The learned reporter quotes two earlier cases where like judgment was given. However, Lord Kenyon, in the case of Zenobio v. Axtell, (e) said the plaintiff should have set out the original words, and then have translated them. And the case of Rex v. Goldstein (f) seems decisive upon the point. That was an indictment for the forgery of a Prussian treasury note, and there being no translation of the note in the indictment, the court, upon that ground, arrested the judgment. Although the Common Law Procedure Act of 1852 has Innuendoes. done away with the necessity for prefatory statements and inducements, innuendoes are still necessary where the words do not prima facie and necessarily convey an imputation on the plaintiff. The effect of the change brought about by the Act of 1852 is explained by Mr. Justice Blackburn in the case of Cox v.Cooper.(g) His Lordship there says: "The 61st section of the Common Law Procedure Act was intended to alter the form of pleading in an action of libel, but it was never intended to alter the law of libel. The law is that, whereever there are written words which tend to bring a man into contempt, they disclose a cause of action. By the old rules of pleading, the words used, if unexplained, ought to be taken in their ordinary sense; and if, in their ordinary (a) Solomon v. Lawson (8 Q. B. 823; see pp. 838, 839). (b) Hughes v. Rees (4 M. & W. 204). (c) Zenobio v. Axtell (6 T. R. 162). () Wms. Saunders, 242, n. (1); Ross v. Lawrence (Styles, 263). (g) 12 W. R. 76; 9 L. T. N. S. 329. PART IV. sense, they did not disclose a cause of action, the pleader CHAPTER XII was obliged to explain them, and set out the circumstances under which they were written, and make averments that they were written of and concerning certain facts and in a particular sense-and this needed great care and particularity. I remember that there was an instance, a great many years ago, where there were numerous actions in which the libel consisted solely of these words, ‘A. B. is a person fit to be a member of a certain society.' These words were not in themselves actionable; but it was averred in the declaration and proved at the trial, that the person who sent round the circular containing these words was the secretary of a society for the protection of tradesmen against swindlers, and that when he wrote round to warn his correspondents against any person, he said, 'He is a fit person to be a member of our society.' The declaration set out all these facts, and was so expressed as to be held perfectly good. But by the new form of proceeding, under the 61st section, it would have been sufficient to say, 'He is fit to be a member of our society,' meaning thereby 'He is a swindler,' and all the circumstances would have been admitted in proof at the trial, which formerly would have had to be set out with great particularity. But it would not have been sufficient to set these words out and say that they were used for the purpose of conveying some bad impression. There must be a distinct averment that the words, if they are not actionable in themselves, bear a specific meaning which is in itself actionable." Innuendoes still required, but without introductory averments. Cases in which required. The conclusion to be drawn from this judgment, supported by the words of the Act itself, and subsequent authorities which will be noticed hereafter, is that innuendos are still necessary where they would have been required under the old law, but that in no case do they require the support of an inducement or prefatory averment. This latter proposition is of more consequence than, perhaps, at first sight is apparent; and we would, therefore, not only refer the reader to what has been already said in this and the preceding chapter on the subject of prefatory averments, but also direct his attention to cases, to be presently cited, which illustrate the change which the Common Law Procedure Act of 1852 has introduced in pleading. The cases in which innuendoes are required may be innuendoes are divided into two classes, viz., (1) where the language, though purporting on the face of it to be written of the plaintiff, is ambiguous, and capable of an innocent construction; or where apparently it can only bear an innocent PART IV. meaning, but, taken in connection with extrinsic circumstances may be proved to be defamatory: (2) where the CHAPTER XIL publication is plainly defamatory, but requires the aid of explanatory matter to make it appear that it was written or published of and concerning the plaintiff. We shall notice first the cases in which innuendoes are To explain required to explain a patent or latent ambiguity in the ambiguity in language. language. "The court," says Parke, B., "will inform itself of the meaning of English words, though unusual and peculiar to a particular country; a strong instance of which is the case in which the term Healer of Thieves' was expounded to mean a furtherer of felons, without any averment as to the local use of those terms: (1 Roll. Abr. 86, L. Pl. 1.) And such is the rule as to Welsh words: (Hob. 126.) But the case of Angle v. Alexander, (a) in the analogous case of slander, decides that a distinct averment that particular English words had acquired some sense different from their natural one, was necessary, and that an innuendo without such averment was insufficient; and on the authority of that case, which was decided in the Exchequer Chamber. . . . we think that the averment of the meaning of the term 'blacksheep' is properly introduced by way of inducement." (b) In the cases just cited from Rolle's Abr. and Hobart, there was neither introductory averment, nor innuendo as to the meaning of the Welsh or provincial terms used. But in the case from which Parke, B.'s judgment is quoted there was an introductory averment that the defendant used the word black-sheep' for the purpose of expressing and meaning, and the said word used by him was by divers, to wit, all the persons to whom the libel thereinafter mentioned was published, understood as expressing and meaning a person notorious by reason of bad character, and of stained and sullied reputation; and the defendant then also used the word 'blacklegs' for the purpose of expressing and meaning, and the said last mentioned word so used by him was by divers persons, to wit, all the persons to whom the libel thereinafter mentioned was published, understood as expressing and meaning a person guilty of cheating and defrauding others." (c) The innuendo after the words "black-sheep" was"meaning thereby that the plaintiff was a black-sheep' in the sense and meaning in which that word was so used by (a) 7 Bing. 123; 1 C. & J. 143. (b) Per Parke, B., McGregor v. Gregory (11 M. & W. 295). See also Hoare v. Silverlock, ante, p. 418. (c) 11 M. & W. 287. PART IV. CHAPTER XIL the defendant as aforesaid." That after "blacklegs was -" meaning thereby that the plaintiff was a black-leg in the sense and meaning in which that word was so used by the defendant as aforesaid."(a) In contrast with these pleadings is the case of Barnett v. Allen, (b) which was litigated after the passing of the Common Law Procedure Act, 1852. It was an action for slander; but, as prefatory averments were required in slander equally with libel, it shows the change effected by that Act. The slanderous imputation was that the plaintiff was a "black-leg ;" and the declaration simply stated that the defendant, contriving to injure the plaintiff, falsely and maliciously spoke of the plaintiff the words following, “I am surprised Mr. Reynolds should allow a black-leg (meaning the plaintiff) in this room" (meaning that the plaintiff obtained his living by dishonest gambling, and was a professed gamester, and a fraudulent gamester, &c.). court was equally divided as to whether the word "blackleg" was capable of meaning a fraudulent gamester. The In the case of Angle v. Alexander, (c) the last count of the declaration charged the defendant with speaking and publishing these words: "You (meaning the said plaintiff) are a regular prover under bankruptcy (meaning that the said plaintiff was accustomed to prove fictitious debts under commissions of bankruptcy)." The court held that the natural meaning of the words did not bear out this innuendo, and that, as there was no prefatory averment that the defendant had been accustomed to employ the words in that sense, the innuendo could not enlarge the sense of the words. These words still require an innuendo; and it is given in the schedule (B.) to the Common Law Procedure Act, 1852, as follows: "The defendant, meaning thereby that the plaintiff had proved, and was in the habit of proving, fictitious debts against the estates of bankrupts, with the knowledge that such debts were fictitious." To say of a person that he has wilfully set his own premises on fire, is not defamatory without an innuendo; as he may have done the act with an innocent purpose. Therefore, if the imputation intended be that he had done it to defraud an insurance company, or for some other improper purpose, such meaning must be pointed out by an innuendo.(d) Where the libel complained of was that the plaintiff was (a) 11 M. & W. 288. (b) 3 H. & N. 376; 27 L. J. 412, Ex. (c) 7 Bing. 122; 1 C. & J. 143. (d) Sweetapple v. Jesse (5 B. & Ad. 27). See Capel v. Jones (4 C. B. 259); and Rawlings v. Norbury (1 F. & F. 341). PART IV. a "Man Friday" to another, the count was held bad, for want of an averment that, by the term " Friday," subser- CHAPTER XII viency and degradation were intended. (a) Lord Denman, distinguishing this case from Hoare v. Silverlock (b), where the term "Frozen Snake" was held not to require an innuendo, says: "The Friday' alluded to was a very respectable person. Black men have not been declared to be criminal by any Act of Parliament."(c) Goldstein v. Foss (d) is a good example of the change introduced in the mode of pleading. The libel there complained of was a letter from the secretary of a trade protection society, to the following effect: "I am directed to inform you that the persons undernamed, or using the firms of Goldstein (meaning the plaintiff), Castles and Co., 51, Mark-lane, and Benjamin Porter Baker, Hackney-road, are reported to this society as improper to be proposed to be ballotted for as members thereof." The court held that the letter, without an innuendo, was not libellous, Abbott, C.J., saying: "There may be so many reasons why a person may be deemed unfit to become a member of the society, without casting any injurious reflection upon him, that I think we cannot possibly say with any degree of certainty that such was the intention with which this alleged libel was published." This, no doubt, would be held by the court at the present day. But the hardship of the judgment consisted in this, that the declaration contained an innuendo, (e) and also introductory averments, which the court held would have constituted a good cause of action, but for the fact that the innuendo was not properly connected with the introductory averment. Now, as we have seen, introductory averments are not necessary. Where the libel is ironical there must, of course, be an Where libel is innuendo alleging that the defendant meant the opposite of ironical. what he wrote; and it might be as well to charge the publication in this form-" that defendant published a certain ironical, false, &c., libel;"(f) but this cannot be considered necessary since the Common Law Procedure Act of 1852. (a) Forbes v. King (1 Dowl. 672). (b) Vide ante, p. 418; and see Homer v. Taunton (5 H. & N. 661; 29 L. J. 318, Ex.). (c) 12 Q. B. 632; 17 L. J. 306, Q. B. L. T. N. S. 329; 12 W. R. 75). See also Cox v. Cooper (9 (e) The innuendo was "thereby then and there meaning that the said plaintiff was a swindler and sharper, and an improper person to be a member of the said society." (f) Boydell v. Jones (4 M. & W. 446); Rex v. Dr. Brown (11 Mod. 86; Holt. Rep. 425). |