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12 Rep. 133, because the defendants, at the time of publishing the slander, mentioned the name of the person from whom they heard it.
Denman, F. Pollock, and R. V. Richards, contra. The question as to the right of publishing judicial proceedings does not arise. The lord mayor elect was not sitting in a judicial capacity, or inquiring into any matter over which he had jurisdiction as a magistrate. But even if the matter had been within his jurisdiction, the defendants would not have been justified in publishing what passed, as it was a mere ex parte proceeding, Rex v. Fisher, 2 Campb. 563. And if this is to be considered as a case where the slanderous matter was first stated in the presence of the defendants to the lord mayor elect in his private character, then the defendants were not justified in publishing it in writing or print, although at the time of the publication they stated the name of the person from whom they heard it; because, with respect to a great part of the matter published by them, they give the plaintiff no right of action against any other person. With respect to all that *part which charges the plaintiff with having deluded the persons #90 who emigrated, no action would lie against the person who merely lo uttered it; but it became actionable when reduced into writing or print, and that was the act of the defendants., It may even be questionable, whether any action would be maintainable against the original utterer of the other words, which charges the plaintiff with having, by false pretences, got possession of the money of the emigrants ; for unless they import that the fraud was committed in this country they do not charge an offence within the stat, 30 G. 2, c. 24. It is quite clear, however, that as to the other part of the slander no action would be maintainable against the parties who uttered it. Now, in Lord Northampton's case, the naming of the original author of the slander is considered a justification for the person who repeats it, because the party repeating it thereby gives the party slandered a right of action against another person. That reason does not apply here, and therefore, this case docs not fall within that rule: besides, it is quite clear that an action is maintainable against a person who maliciously repeats slander, although he names his author at the time. Maitlund v. Goldney, 2 East, 426. The jury, by their verdict, have found that the defendants published maliciously. Besides, here the libel does not profess to give the evidence verbalim, but a mere summary of the case. That is not a justifiable publication. Lewis v. Waller, 4 B. & A. 605.
ABBOTT, C. J. I am of opinion, that the rule for entering the judgment for the plaintiff, notwithstanding *the verdict found for the defendants on #9 some of the issues, ought to be made absolute. My judgment in this 10 case is founded entirely upon the matters stated upon the record. It does not appear by the record that the libel gives an account of any thing which took place before the magistrate, whilst he was acting in his judicial character, or even in the discharge of his magisterial functions. The question, therefore, does not necessarily arise in this case, whether it be lawful to publish a correct report of proceedings which take place in the course of a judicial enquiry, or even of any enquiry before a magistrate acting in the discharge of his official duty. The allegation in the libel is, that an application was made to the magistrate, sitting for the lord mayor, for his advice as to the disposal of some orphan children ; but the libel itself proceeds to state matter which goes far beyond what any application of that kind would warrant. It charges the plaintiff with having deceived the persons whom he had induced to emigrate, and with having, by false pretences, got possession of all their money. Assuming that the parties who originally uttered this slander might be justified by the occasion and purpose with respect to which it was uttered, it by no means follows that these defendants would be justified in republishing the slander so unnecessarily uttered, on the ground that their publication was only a true, fair, and correct report of what had taken place ; for it is by no means true that the publication of every matter which passes even in a court of justice, however truly represented, is, under all circumstances and with whatever motive published, justifiable. It has been said, however, that this is a privileged publication ; because the defendants only professed to repeat that which they heard another person say, and they name that person at the 1992 time when they *repeat it, and that this case falls within the rule laid
down in Lord Northampton's case. Now it is to be observed that that was a case of oral slander: this is the case of slander reduced into writing or print by the act of the defendants. It is thereby rendered more injurious, and part of it has thereby become actionable, which before was not so. There may, therefore, be a material distinction in this respect between merely repeating slander and publishing it in writing or print. I do not mean, however, to pronounce any decided opinion upon that point, because, admitting the law to be correct, as laid down in Lord Northampton's case, in its fullest extent, and assuming that it applies to written as well as to oral slander, I think that this case does not fall within it. The rule there stated is this : “If I. S. publish that he hath heard J. N. say that 1. G. was a traitor or thief, in an action on the case, if the truth be so, he may justify. But if J. S. publish that he hath heard generally, without a certain author, that J. G. was a traitor or thief, there an action on the case lieth against J. S., for this, that he hath not given to the party aggrieved any cause of action against any but against himself who published the words." Now, this case falls short of the rule there laid down in two particulars; the first is, that with respect to a considerable part of the matter published no action would be maintainable against the party who uttered it. I allude to that part which charges the plaintiff with having, by false representations, induced the persons alluded to to emigrate. It is perfectly clear, that if the words published by the defentlants had only been spoken no action would be maintainable in respect of them, unless the plaintiff could show that he had thereby sustained a special damage. The other particular in which this case falls short of the rule laid down in Lord
* Northampton's case is, that here the defendants do not offer themselves ] as witnesses to prove the uttering of the words. The rule is, that “if J. S. publish that he heard J. N. say." In that case J. S. offers himself as a witness to prove that J. N. did utter the slander ; but here the defendants do not say that they heard Captain Antrim repeat the slander, and, therefore, they do not offer themselves as witnesses, and do not bring themselves within the rule laid down in Lord Northampton's case. I am of opinion, therefore, that it is no answer to the action that the matter published by the defendants was a correct report of what actually took place in the presence of the magistrate, inasmuch as it appears that he was not then called upon to act either in a judicial or magisterial capacity ; and, secondly, that this is not a privileged publication, on the ground that the defendants, at the time of publication, named the party who originally uttered the slander. The rule for entering judgment for the plaintiil, non-obstante veredicto, must be made absolute.
BAYLEY, J. There is a great distinction between oral and written slander. No action is maintainable for words spoken, unless they impute to a man a crime for which he is punishable by law, or that he has an infectious disorder ; or unless they are spoken of him in his office, profession, or business. But an action is maintainable for slander either written or printed, provided the tendency of it be to bring a man into hatred, contempt, or ridicule. Now, here, the report of the matter stated by Captain Antrim, is calculated to bring the plaintiff into hatred; it is, therefore, actionable when reduced into writing. +07 The greater part of the matter *charged, if merely spoken, would give
I no cause of action to the plaintiff'; and it may be questionable whether any action could be maintainable even in respect of that part which charges the plaintiff with having obtained the money of the emigrants, under false pretences, for unless they were defrauded of the money in this kingdom it
would not be a case within the statute of the 30 G. 2, c. 24 ; and there being no false token, it would not be an offence at common law. This, therefore, may be considered as a case where either wholly or in part the matter charged became actionable, from the circumstance of its having been written or printed by the act of the defendants, and, therefore, if the plaintiff cannot maintain this action against the defendants he has no remedy whatever. According to the rule laid down in Lord Northamplon's case the party is excused, because, by naming the person from whom he heard the slander, he gives the party slandered an action against another ; but here the defendants gave the plaintiff no action against any other person. The reason of the rule does not apply to the present case. This being a case, therefore, where the matter published by the defendants is actionable, and no action can be maintained in respect of a part, if not in respect of the whole, against any other person, it follows that it must be maintainable against the defendants, or otherwise the plaintiff would be without any remedy.
HOLROYD, J. I am also of opinion that the plaintiff is entitled to judgment, notwithstanding the verdict found for the defendant on some of the issues, for that finding does not afford any answer to the action. The count alleges that the defendants, maliciously *intending to injure the character of the plain- stor
[*35 tiff, published the libel. The pleas state, that that libel contains a true lo account of some proceedings which took place before the lord mayor elect. But it appears by the libel, that those proceedings were not in any way connected with the judicial or magisterial character of the lord mayor elect. The jury have found by their verdict on the other issues, that the facts stated in the libel were untrue. The question therefore, is, whether a person falsely and maliciously publishing matter, (for after verdict it must be taken to have been done maliciously.) is justified in so doing because it is a correct account of what was said by others. I am of opinion that such a plea is no answer to the action. It gives no ground of action against any other person. It does not state who heard the slander repeated. It therefore gives the plaintiff no means of establishing by evidence his right of action against another. Part of the matter alleged would not be actionable at all, if the words were only spoken, unless there were special damage. It comes to this, if Mr. Prince, and Captain Antrim had, themselves, caused the matter to be printed, an action might be maintained against them; but they only made an oral statement before the lord mayor, and that is not actionable. But it has been printed by another, and he says, that he is not liable to an action, because at the time that he printed it he disclosed in the publication itself the name of the person from whom he heard it; but if the action be not maintainable against him, the party of whom the slander has been published in a manner which the law considers injurious, will have no remedy against any person. In Mailland v. Goldney, the declaration contained a charge against the defendants, that they published the slander with the *knowledge that the person who had originally uttered it was satisfied that it was untrue. The 133 defendants justified, by showing that they had named the original author at the time when they published the slander; and Lord Ellenborough, said, " that the fact of such previous uttering was merely used by the defendants as a pretence for publishing the same slander ; that shows malice in the defendants, and an injury to the plaintiffs.” The opinion of that learned Judge was, that an action would lie against a person who maliciously repeated slander, even though he named his author at the time. Now, in this case the jury by their verdict found that the defendants published the slander malici. ously; and, therefore, our decision in this case accords with the opinion of Lord Ellenborough. For these reasons, I am of opinion that the plaintiff is entitled to recover in this action.
LITTLEDALE, J. I am of the same opinion. I think that the lord mayor elect liad no legal authority to inquire into the matter brought before him by
Captain Antrim; that he was not then exercising his office of a magistrate; and that this case is to be considered in the same light as if the communication had been made to him in his private room. It is unnecessary, therefore, to decide in this case, whether the defendants would have been justified in publishing this matter in a newspaper, if it had contained a correct report of a proceeding which had taken place before a magistrate acting in a judicial capacity. But the question is, whether a person hearing slanderous matter uttered in private company, may cause that matter to be written, printed, and +39 published, provided that he, at the same *time, state the name of the
"I person from whom he heard it. Now, if the law as to the repetition of oral slander were to be propounded for the first time to day, the propriety of the rule laid down in Lord Northampton's case, might perhaps admit of some doubt. It is sufficient, however, to say that this case does not fall within that rule. If the slanderous matter published constitute a civil injury, either from the nature of the matter charged, or from the manner in which it is published, it is quite elear that the party injured must have an action against some person. If, therefore, the plaintiff' in this action cannot have an action against the relator of the slander, he must have one against the person who subsequently printed and published it. Now, here it is evident, that in respect of part of the slanderous matter charged, no action would lie against the relator, because the words themselves were not actionable. As to the other part, it may be doubtful whether any action could be maintained. It being clear, however, that no action would lie against the original relator as to part, it follows as a necessary consequence, that as to that part it must lie against the pariy who printed and published it, for otherwise the party injured will be widinitany remedy.
*DYER et al. v. PEARSON, PRICE, and CLAY.
A. employed B., his agent, to import goods from a foreign country. Upon the arrival
of the goods, B., who resided in London, transmitted 10 A., who resided in the coun. try, the invoice, but delivered the bill of lading to a warehouse keeper in order to get the goods entered and warehoused. In the warehouse keeper's books they were deecribed as the property of B. By the bill of lading the goods were to be delivered to the order of the shipper or his assigns, and it was endorsed by the shipper in blank. B. had no authority from A. 10 sell the goods, but after they had been standing in his name in the warehouse keeper's books nearly five months, B. sold them: Held, in an action of trover brought by A. against the purchasers, that upon these facts the iary ought to have been direcied that A. was entitled to recover, inasmuch as B. hr.d no authority to sell, or at least that it ought to have been submitted as a qusstion of lact to the jury, whether A. bad by his conduct enabled B. to hold himself out to th's world, as haviug the property as well as the possession of the goods.
Trover for ten bags of wool. Plea, not guilty. At the trial before Abbott, C. J., at the London sittings after last Michaelmas term, the following appeared to be the facts of the case: The plaintiff's resided at Wootion under Edge, Gloucestershire. The defendants, Pearson and Price, were warehouse keepers, and the defendant Clay was a woollen draper, and all the defendants resided in London. In November 1823, the plaintiffs directed one Smith, who also resided in London, to import for them from Germany, thirty bags of wool. Smith ordered the same from Van Smissen & Co., merchants in that country, who required, that before the bills of lading should be delivered to Smith, bills drawn by them for the amount of the wools should be accepted by a banker in London. In consequence of this the plaintiffs procured Es
daile & Co., bankers in London, to accept bills for the amount. The thirty bags of wool arrived in December 1823, accompanied with a letter of advice, covering the bill of lading and invoice. Smith transmitted the invoice to the plaintiff's. By the bill of lading, the wool was made deliverable to order or assigns, and it was indorsed by Van Smissen d. Co. in blank. Smith delivered it to the defendants, Pearson and Price, to enable them to "enter #90 and warehouse the wool. Smith had no authority from the plaintiff's lui to sell the wools, but he procured the defendants, Pearson and Price, to advance the sums payable for the duties, and afterwards at their request, one Squires advanced a further sum of 2001. on the security of the wool. The wool was entered in the books of Pearson and Price as the property of Smith, and he transmitted twenty bags to the plaintiffs. In May 1823, Clay purchased the ten bags in question, of. Smith, for 5791. At that time the bill of lading remained in the possession of Pearson and Price, and the sum due to them in respect of the duties and other charges amounted to 3281. 118. 4d., which, with the sum of 2001. due to Squires, amounted altogether to 5281. 11s. 4d.; and that sum Clay, by order of Sunith, paid to Pearson and Price, and the remaining 511. he paid to Smith. In August, the plaintiff's claimed the ten bags of wool of Pearson and Price, and they, after notice of the plaintiff's claim, delivered the same to the defendant Clay. Before the commencement of the action, the plaintiffs tendered to Pearson and Price the amount of the charges due to them, and demanded the wool from all the defendants, which they refused to deliver. Upon these facts the Lord Chief Justice told the jury, that if a man takes upon himself to purchase from another under circumstances which ought to excite his suspicion, and to have induced him to distrust the authority of the person selling, such a purchaser could not hold the property if it afterwards turned out that the person from whom he bought had no authority to sell ; and he left it to the jury to say, whether Clay had purchased under circumstances which would induce a reasonable, prudent, and cautious man to believe that Smith, of whom he purchased had *au- ri thority to sell. If they thought that he had purchased under such cir- (140 cumstances, they were to find for the plaintiffs ; if otherwise, for the defendants. A verdict having been found, the defendants in Hilary term last, the present Attorney General (then Solicitor General) obtained a rule nisi for a new trial. He contended that the true question which ought to have been submitted to the jury was, whether the purchaser was led by any negligence on the part of the plaintiffs to suppose that Smith was the real owner of the goods ; for the general principle was, that an agent could not bind his principal beyond the scope of his authority, and for that reason, a factor having authority to sell, could not bind his principal by a pledge. Therefore, the true question in this case was, whether Smith had any authority, express or implied, to sell. It was clear that he had no express authority, and then the only question was, whether the plaintiff had left the property in the possession of Smilh, under circumstances from which the law would imply that he had authority to sell. Thus in Pickering v. Busk, 15 East, 36, the law did imply such authority. There the purchaser of hemp, lying at wharfs in London, had, at the time of his purchase, the hemp transferred in the wharfinger's books in the name of the broker who effected the purchase for him, and whose ordinary business was to buy and sell hemp: and this was held to give the broker an implied authority to sell it. Here, there were no circumstances from which such an authority could be implied; the original invoice was in the hands of the plaintiffs. There was no evidence that Smith was in the habit of buying and selling wool, and all the circumstances were *consistent with the fact of his being a mere agent, having authority to ren receive and transmit the goods to the country. An authority to sell, I was not to be implied from his possession of the bill of lading ; that gave him no title, for, by it the goods were to be delivered unto the order of the